Delhi District Court
State vs P.K. Tyagi Etc on 23 January, 2024
IN THE COURT OF MS. VIDHI GUPTA ANAND, CHIEF
METROPOLITAN MAGISTRATE, SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI.
CIS No.DLSH020007162007
a Serial No. of the case : FIR No. 84/2004, PS
Shahdara[Cr. Case
No.84878/2016]
b Date of the commission of the : Unknown
offence
c Name of the Complainant : Sh. Bhawani Singh
d Name of Accused person and his : (1) Sh. P.K Tyagi
parentage and residence S/o Sh. Ram Niwas Tyagi
R/o G-1/260, Shalimar
Garden Extn-1,
Sahibabad, Ghaziabad,
UP.
(2) Manorma Tyagi
W/o Sh. P.K Tyagi
R/o G-1/260, Shalimar
Garden Extn-1,
Sahibabad, Ghaziabad,
UP.
e Offence complained of : 420/471 IPC r/w Section
467/468 & 34 IPC
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 02.01.2024
i Order pronounced on : 23.01.2024
FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 1 of 22
BRIEF FACTS AND REASONS FOR DECISION:-
1. Vide this judgment a case registered against Accused P.K. Tyagi and Accused Manorma Tyagi vide FIR No.81/2004, PS Shahdara shall be decided and disposed off.
2. The case of the Prosecution is that on unknown date and time at Punjab and Sindh Bank, Main Road, Babarpur, Shahadra, Delhi, the Accused persons namely Sh. P.K Tyagi and Smt. Manorma Tyagi, in furtherance of their common intention dishonestly induced Punjab & Sindh Bank, Babarpur Branch, Delhi to sanction various loans on the basis of collateral security of one Mangal Dass S/o Sh. Haveli Ram (since deceased) by using his forged signatures and therefore cheated the bank with loan amount of approximately of Rs. Seven Lacs and other overdraft facilities. Thus, a case was registered against the Accused persons U/s 406/419/420/468/471/34 IPC upon an application of the complainant u/s 156 (3) Cr.PC vide the above mentioned FIR.
Trial Proceedings
3. Upon completion of investigation, chargesheet was filed in the Court on 09.05.2007. Thereafter, vide order dt. 10.09.2008, cognizance of the alleged offences was taken and Accused persons namely Sh. P.K Tyagi and Smt. Manorma Tyagi were summoned in the Court. After their appearance in the court, both the Acused persons were admitted to bail and documents were supplied to them U/s 207 Cr.PC.
4. Thereafter, the matter was delayed on account of the FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 2 of 22 settlement efforts between the parties and ultimately on 11.01.2018, after hearing arguments on point of charge, it was held that prima facie case was made out against the Accused persons for offences punishable under Section U/s 420/471 r/w Section 467/468 & 34 IPC. Charges were accordingly framed against the Accused persons, to which they pleaded not guilty and claimed trial.
5. It is pertinent to note that on the same date itself, vide their separate statements U/s 294 Cr.PC Accused persons admitted taking of loans from Punjab and Sind Bank after furnishing the loan documents under signature of Accused Manorama Tyagi. They also admitted that the said loans were taken on a collateral security of property bearing number 9/4132, Ajit Nagar, Gandhi Nagar, Delhi- 31 registered in the name of one Mangal Das S/o Haveli Ram R/o 9/4132, Ajit Nagar, Gandhi Nagar, Delhi-31 vide registration number 2521, Ledger no.904, page no.24-25 dated 27.02.1963 and Accused P.K.Tyagi had stood as a guarantor along with aforesaid Mangal Das for the said loan. They also admitted execution of loan documents [Ex.D1 to Ex.D9 and Ex.D10 (OSR)] as well as bank guarantee [Ex.C1 to Ex.C4]. They specifically stated that the said documents be read in evidence without their formal proof and undertook not to dispute their identity, genuineness and authenticity.
Thus, as such, the factum of taking of loan from Punjab and Sind Bank by Accused Manorama Tyagi with Accused P.K.Tyagi standing as guarantor and property of Mangal Das bearing no. 9/4132, Ajit Nagar, Gandhi Nagar, Delhi-31 being given as collateral security is not disputed by the Accused persons. From the FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 3 of 22 above admission of the Accused persons, the limited point of consideration before the court is whether the while taking the said loan the alleged offences viz. Cheating and forgery have been committed by the Accused persons or not.
6. In order to prove prove its case, Prosecution has examined as many as six witnesses including the Complainant and bank witnesses whose testimonies are discussed briefly in the following paragraphs:
6.1. PW1 Sh. Bhawani Singh: He is the Complainant in this case.
He deposed that he an employee of BSES and resides at 9/4132, Ajit Nagar, Delhi-31 (The same property which was given as collateral security by Mangal Das, as mentioned in the forgoing paragraphs). He deposed that in the year 2004 in the month of March-April some bank officials of Punjab and Sindh Bank came at his house and told him that the abovesaid house was mortgaged in the bank and in default of the loan amount the property needs to be auctioned. He further deposed that the loan was taken by some Mangal Das for an amount of Rs. 7 lakhs and upon inquiry he came to know that Mangal Das had already expired in year 1990. Complainant has further deposed that thereafter, he obtained the death certificate of said Mangal Das and filed a complaint in the Court (Ex.PW1/A) against P.K. Tyagi, Bank officials of Punjab and Sindh Bank and Neha Enterpries whose proprietor is Manorma Tyagi, upon which FIR was registered.
He further stated that he joined the investigation in the present case and during the investigation, IO prepared the site plan at his FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 4 of 22 instance i.e. Ex. PW1/B. Further, he also exhibited on record certified copy of sale deed of property bearing no. 9/4132, Gali no. 12-A, Ajeet Nagar, Gandhi Nagar, Delhi 110031 executed by Smt. Saroj Singh D/o Sh. Puran Chand in his favour as Ex. PW1/C. He also identified the copy of property document chain handed over to IO during investigation which marked as Mark A. He further marked copy of his ration card as Mark B, copy of house tax receipt as Mark C and photocopy of election card of his brother namely Jagdev Singh who is the co-owner of the abovementioned property as Mark D. He further stated that thereafter, he came to know that Punjab & Sindh Bank had kept his property as a collateral security for a loan obtained by Neha Enterprises. It is pertinent to note that he specifically stated that he did not want to pursue his case because as on date his property did not have any bank liability as mentioned in his complaint.
During his cross examination, he admitted it to be correct that Neha Enterprises made full and final payment of the loan amount to the bankers and property in question was totally free from any loan.
6.2. PW2 Onkar Maini. He was a bank witness and retired employee of Punjab and Sindh Bank. He deposed that he was posted as Manager of Punjab and Sindh Bank, Babarpur Road, Shahadra from August 1990 to November 1996 and during his tenure, Manorama Tyagi, proprietor of M/s Neha Enterprises applied for loan and one person namely Mangal Dass offered his property bearing no. 9/4132, Ajeet Nagar, Gandhi Nagar, Delhi 110031 as FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 5 of 22 collateral security and Accused P.K Tyagi was a guarantor of the abovesaid loan. He testified that as per banking norms, he verified all the facts, obtained the legal search of the property 9/4132, Ajeet Nagar, Gandhi Nagar, Delhi-110031 from the panel laywer of the bank qua the ownership of the property from the Registrar Office. He added that he alongwith his staff had also physically verified the property bearing no. 9/4132, Ajeet Nagar, Gandhi Nagar, Delhi- 110031 where Mangal Das met them and told he was the owner of the property and showed them the ownership papers, whereupon, he had sanctioned the loan.
During his cross-examination, he admitted it to be correct that loan procedure was conducted as per banking norms and also, that loan was twice enhanced on the basis of regular payments. He also admitted that he had not only met Mangal Das but also verified his ownership from the neighbours.
During his further cross-examination, Ld. Defence Counsel put a letter to him dated 31.10.2023 regarding the settlement proposal of M/s Neha Enterprises, copy of DD and original bank settlement paper issued by Punjab & Sindh Bank dt. 11.11.2013. Witness admitted these documents as those issued by the Recovery Branch Punjab and Sindh Bank after receiving the payment. Accordingly, the said documents were exhibited as Ex. PW2/D1 to D3.
6.3. PW3 Inder Mohan Pal Singh: He was also a bank witness and stated that he was the Manager of Punjab and Sindh Bank, Babarpur, Shahadra, Delhi from the period October 1997 to 1999.
FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 6 of 22 He stated that during his tenure, M/s Neha Enterprises was having a Cash Credit Limit and Term Loan prior to his taking charge as Branch Manager and the property bearing no. 9/4132, Ajeet Nagar, Gandhi Nagar, Delhi had already been mortgaged by its owner namely Mangal Das. He added that the limit of the account of Accused was enhanced during his tenure. He stated that the same was done after taking legal opinion, Index Inspection Report and Non Encumbrance Certificate from the panel Advocate of the bank namely Sh. B.S Ahuja. He further stated that the document was signed by the Accused Manorma Tyagi and Accused P.K Tyagi as the Guarantor in the presence of the Loan Officer Sh. Paramjeet Singh. During his cross examination, he stated that he and his loan officers physically inspected the property 9/4132, Ajeet Nagar, Gandhi Nagar, Delhi. He specifically stated that all the formalities of loans and sanctions of loan were done as per banking rules and norms. Further, he stated that the Accused persons and owner of the property Sh. Mangal Das signed the documents before the loan officers whenever they were physically present in the Branch of the bank. Also, after seeing the document Ex. PW2/D-1, PW-2/D-2 and PW-2/D3, he stated that the abovesaid documents were issued by the bank after receiving the settlement amount through DD Ex. PW2/D-2 from the Accused persons.
6.4. PW4. Retd SI Subhash Chander: He was the first IO of this matter. He deposed that on 30.03.2004, He received an order of the Court regarding registration of FIR, upon which he made endorsement (Ex. PW4/A) on the complaint already Ex.PW1/A and FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 7 of 22 got the FIR registered through Duty Officer. He further stated that thereafter, he called the complainant to the PS and recorded his supplementary statement and prepared the site plan Ex.PW1/B at the instance of the complainant. He deposed that he arrested the Accused P.K Tyagi and Accused Manorma Tyagi and conducted their personal searches vide memos Ex. PW4/C, Ex. PW4/D, Ex. PW4/E and Ex. PW4/F respectively and released the Accused persons. He stated that he gave notice to the bank officials to provide the complete loan documents but the same were not provided to him till 12.05.2005 and he gave his reply in this regard i.e. Ex. PW4/B. Lastly, he stated that on 25.08.2005, he was transferred from PS Shahadara to North East and had handed over the file to MHC(R) of PS Shahdara.
During his cross-examination, he stated that he physically inspected the property bearing no. 4132, Ajeet Nagar, Dharampura, Delhi. He added that complainant did not hand over or showed him the original property documents in respect of the above mentioned property. He admitted it to be correct that since the date of registration of present FIR till 25.08.2005, neither the complainant nor the bank officials handed over or showed him the original property documents or loan documents to him.
6.5. PW5 B.S Ahuja. He was the panel Advocate of Punjab & Sind Bank at the time of taking of the loan by the Accused persons. He deposed that the Bank Manager of Punjab & Sindh Bank, Babarpur Branch, Delhi had sought his legal opinion with respect to property no. IX-4132, Ajit Nagar, Gandhi Nagar, Delhi-31 in the FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 8 of 22 name of Sh. Mangal Das. He stated that accordingly, he had inspected the index record in the office of Sub-Registrar and thereafter issued a certificate with respect to the property. He exhibited his report dated 18.04.1996 as Ex. PW5/A. In his cross-examination, he stated that as per inspection before the office of Sub-Registrar, he found that the above said property bearing no. IX-4132, Ajeet Nagar, Gandhi Nagar, Delhi-31 was registered in the name of Sh. Mangal Dass.
6.6. PW6 Mohd Mehtab. He was also a bank witness and brought on record NOC dated 11.11.2013 issued in the favour of M/s Neha Enterprises (Ex. PW2/D3). He further stated that as per bank records, account of M/s Neha Enterprises had been closed after full and final settlement.
6.7. Apart from the above-mentioned witnesses, it is pertinent to note that there were several other witnesses mentioned, who could not be examined due to intervening circumstances. Witnesses namely Surender Mohan, Paramjeet Singh and Rajiv Sharma were dropped from list of witnesses vide orders dated 11.10.2022 and 16.05.2023 as they remain unserved even through DCP concerned. Further, the second OI of this matter i.e. SI Om Prakash could not be examined on account of his demise before his testimony could be recorded. Also, DO/SI Shashi was not examined as the registration of FIR was not disputed by the Accused persons.
7. Therefore, after examination of the aforesaid six Prosecution witnesses, vide order dt. 16.05.2023, Prosecution evidence was FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 9 of 22 closed.
Thereafter, on 05.06.2023, statements of the Accused persons U/s 313 r/w Section 281 Cr.PC were recorded wherein Accused persons denied the commission of the alleged offences stated that they have been falsely implicated in the present case and added that loan processing was done as per law. Further, they stated that without verifying the facts of the case, police officials registered the case on the basis of concocted story of the complainant Bhawani Singh who had filed the case just to declare himself as the actual owner of the property in question.
Despite opportunity, the Accused persons preferred not to lead any evidence in their defence and accordingly, defence evidence was closed and the matter was taken up for final arguments.
Final Arguments
8. Ld. APP for the State as well as Ld. Counsel for Accused persons addressed detailed arguments in support of their respective cases. Written arguments have also been filed on behalf of the Accused persons.
Ld. APP for the State strongly prayed for holding the Accused persons guilty for the alleged offences stating that the testimony of the complainant has strongly supported the Prosecution case as he has shown all the documents with respect to his ownership of property in question which itself shows that the ownership documents of Mangal Das are fake and the loan documentation was done on the basis of the same fake documents by the Accused FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 10 of 22 persons by misleading the bank officials. Thus, Ld. APP for the State argued for conviction of the Accused persons.
On the other hand, Ld. Counsel for the Accused persons vehemently argued for acquittal of the Accused persons stating that all the bank witnesses have deposed in favour of the Accused persons by stating that the loan processing was done as per law after due verification of the property documents and physical inspection. It was argued that it is rather the complainant who has been unable to show his ownership documents with respect to the property in question and has not even been able to provide the chain of ownership of the said property. Further, it was strongly pressed that the entire loan has admittedly been repaid to the bank and there is no encumbrance on the property in question whatsoever with respect to the loan taken by the Accused persons. Thus, it was argued that nothing survives in the present case against the Accused persons and they be set free from the charges leveled against them.
9. Submissions have been duly heard. Record has been carefully perused.
Appreciation of Evidence in the light of relevant legal provsions
10. It has already been mentioned above that the taking of loan by Manorma Tyagi as Proprietor of M/s Neha Enterprises having Accused P.K. Tyagi as guarantor has nowhere been disputed by the Accused persons. Accused persons have not even disputed the property bearing number 9/4132, Ajit Nagar, Gandhi Nagar, Delhi- 31 being kept as a collateral security for the purpose of loan taken FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 11 of 22 by them. In view of the offences alleged against the Accused persons, the question for determination before the court is as to whether the Accused persons had validly and genuinely had taken the loan or had cheated and dishonestly induced the bank officials to grant loan to them by using forged documents.
11. Before proceeding on to appreciate the evidence brought by Prosecution in this matter to prove its case, it is pertinent to take a look at the penal provisions invoked against the Accused persons and their implications.
11.1. First charge against the Accused persons is under Section 420 IPC titled as Cheating And Dishonestly Inducing Delivery Of Property. The section provides as follows:
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.
The provision makes it clear that for completion of the offence under section 420 IPC, commission of cheating by the Accused, as defined u/s 415 IPC, coupled with dishonest intention to induce the victim to deliver any property etc. is a pre-requisite. A recent judgment of Hon'ble Apex Court of India titled as M N G Bharateesh Reddy vs Ramesh Ranganathan and Another [2022 LiveLaw (SC) 701] explains the provisions as follows:
13. The ingredients of the offence of cheating are spelt FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 12 of 22 out in Section 415 of the IPC. Section 415 is extracted below:
"415. Cheating -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation -- A dishonest concealment of facts is a deception within the meaning of this section."
14. The ingredients of the offence under Section 415 emerge from a textual reading. Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so the former must induce the person so deceived to (i) deliver any property to any person; or (ii) to consent that any person shall retain any property; or
(iii) intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and such an act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation or property.
15. Section 420 deals with cheating and dishonestly inducing delivery of property. It reads as follows:
"420. 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 capable of converting 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."
16. In Hridaya Ranjan Prasad Verma v. State of Bihar, a two-judge bench of this Court interpreted sections 415 and 420 of IPC to hold that fraudulent or dishonest intention is a precondition to constitute the offence of cheating.
Further, the judgment of the Hon'ble Apex Court in the matter titled FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 13 of 22 as International Advanced Research Centre For Powder Metallurgy And New Materials (ARCI) & Ors. vs Nimra Cerglass (P) Ltd.& Anr (2015 XAD SC 129) elucidates upon the essentials of section 420 IPC in the following words:
The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and
(iii) mens rea of the Accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC.
In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the Accused and was made in order to deceive the complainant.
Thus, for establishing the offence of cheating, it is vital for the Prosecution to prove that the intention of the Accused was from the very beginning to cheat the victim and with that intention only inducement of the victim was done to deliver the property/valuable security. It is now for the court, to examine the facts and evidence to determine as to whether, the intention of the Accused persons while taking the loan was mala fide or bona fide.
11.2. Moving ahead, Accused persons have also been charged under Section 471 IPC titled as Using As Geninue A Forged Document Or Electronic Record. The section provides as follows:
Whoever fraudulently or dishonestly uses as genuine any document or electronic record forged which he knows or has reason to believe to be a forged [document or electronic record forged], shall be FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 14 of 22 punished in the same manner as if he had forged such document or electronic record forged 11.3. Lastly, Accused persons have also been implicated for offences of forgery as provided under section 467 and 468 IPC.
Section 467 IPC deals with the forgery of valuable security. Forgery of a valuable security etc. has been defined under section 467 IPC as under:
Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 468 IPC provides for punishment for Forgery For Purpose Of Cheating in the following words:
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.
11.4. The common element between sections 467, 468 and 471 IPC is the offence of forgery which is a pre-requisite of completion of the abovesaid offences. Forgery has been defined under Sec. 463 IPC as follows:
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 FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 15 of 22 person, or to support any claim or title, or cause any person to part with property, or to enter into any express or implied contract, with intent to commit fraud or that fraud may be committed, commits forgery.
In the light of above mentioned provisions, it is necessary for the Prosecution to first prove the commission of forgery by the Accused persons i.e. creation of false documents with the intention to commit fraud. For completion of offence u/s 471 IPC, it is essential that the Accused persons should have used the forged documents created by them as genuine. Elucidating upon the offence of forgery vis-a-vis Section 467 and 471 IPC, in its recent judgment titled as Shri Sukhbir Singh Badal vs Balwant Singh Khera [2023 LiveLaw (SC) 359] it has been held by the Hon'ble Supreme Court of India as follows:
5.8 Therefore, as per Section 463, "whoever makes any false documents, 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", he is said to have committed the offence of forgery. Making a false document is defined under Section 464 IPC. Therefore, for the offence of forgery, there must be making of a false document with intent to cause damage or injury to the public or to any person.
Therefore, making the false documents is sine qua non. Identical question came to be considered by this Court in the case of Mohammed Ibrahim & Ors. (supra).
While interpreting Sections 464 and 471 IPC and other relevant provisions of IPC, in paragraphs 13 and 14, it is observed and held as under:-
"13. 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 FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 16 of 22 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.
14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
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.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
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.
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 practising deception, or from a person not in control of his senses."
In the light of above mentioned provisions, the question that arises before the court is to determine first as to whether the Accused persons made any false documents or not and only thereafter, the applicability of sections 467/468/471 IPC shall be determined.
12. In the case at hand, even though Complainant alleges that property bearing number 9/4132, Ajit Nagar, Gandhi Nagar, Delhi- 31, belonged to him and its fake documents were given as collateral FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 17 of 22 security before the bank while taking of loan by Accused Manorama Tyagi, he has been unable to prove chain of ownership of the property in his favour. As per the Complainant, this property was jointly owned by him alongwith his brother Jagdev Singh, however, Jagdev Singh has nowhere been called as a witness in this matter. Be that as it may, no records from the Sub-Registrar office have been brought on record by the Prosecution to establish that the property in question indeed belonged to the Complainant at the time when it was given as collateral security for the loan of the M/s Neha Enterprises.
13. It is rather pertinent to note that all the bank witnesses have deposed that the loan was sanctioned in favour of Accused Manorama Tyagi after following the due process as per banking norms and also after physical verification of the property bearing number 9/4132, Ajit Nagar, Gandhi Nagar, Delhi-31 as well as its owner Mangal Das. PW2 has specifically stated that he had also inquired and confirmed about Mangal Das from the neighbours. As the loan was granted by the Bank officials after due verification of the person and the property concerned and after conducting due diligence, the question of giving any inducement to the bank does not arise.
14. Further, it is also important to note that the Panel Advocate of the Bank PW5 B.S.Ahuja has particularly deposed that he had inspected the index record in the office of Sub-Registrar and only after verification of the documents he had prepared the legal opinion and on the basis of the same loan was granted. From this testimony, FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 18 of 22 again the allegation of the Prosecution regarding creation of forged documents by the Accused persons becomes unsubstantiated.
15. Another important aspect which needs consideration is that not only loan was granted to Accused Manorama Tyagi, but also the same was enhanced on account of timely payments made by the Accused and ultimately, the entire loan amount was repaid and settlement certificate Ex.PW2/D3 was issued by the bank in favour of the Accused. This not only indicates the bona fide intention of the Accused to repay the loan but also renders the allegation of cheating nugatory. Complainant has himself admitted in his testimony that his property is free from the alleged loan and he has no grievances against the Accused persons.
At this stage, it may also be noted that Complainant has stated in his evidence that he came to know about the property being given as collateral security after bank officials visited his house and told him that his property was mortgaged with the bank by one Mangal Das and on account of default in payment of loan, the same needs to be auctioned. Who were these bank officials, when did they visit the Complainant, the amount which was defaulted etc. nothing has been mentioned by the Complainant. None of the bank witnesses who have deposed in the court have stated anything regarding the default of loan payment by Accused and thus, this averment of the Complainant does not inspire the confidence of this court.
16. Moreover, Mangal Das could have been a relevant witness to the case as the entire case revolves around the property bearing number 9/4132, Ajit Nagar, Gandhi Nagar, Delhi-31 which FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 19 of 22 purportedly belonged to him. However, only in the evidence of Complainant has it come that he came to know that Accused Mangal Das had expired in the year 1990. Nothing has been mentioned by the IO in his testimony to verify the factum of death of Mangal Das or record his statement in case he was alive. This also becomes a major shortcoming in the Prosecution case.
17. Further, not even a single document brought on record has been proved to be forged by the Accused. Despite bringing in several witnesses and spending years in recording of evidence, Prosecution could not establish that the Accused persons had fraudulently taken the loan from the bank on the basis of false documents or that they had no intention to repay the same or that the collateral security provided by Mangal Das was fake. Rather, all the concerned loan witnesses have coherently and cogently stated that the loan was granted to Accused Manorama and also, enhanced, after due verification of records. Thus, there remains no scope of doubt that Prosecution has failed to establish any of the alleged offences of cheating or forgery against the Accused persons.
18. In the leading judgment of the Supreme Court of India in matter titled as Anand Ramachandra Chougule v. Sidarai Laxman Chougala [2019 (SCC online) SC 974], elucidating upon the onus of proof in a criminal trial, it was held that:
9. The burden lies on the Prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the Accused has only to create a doubt about the Prosecution case and the probability of its defence. An Accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the Prosecution. If the Accused takes FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 20 of 22 a defence, which is not improbable and appears likely, there is material in support of such defence, the Accused is not required to prove anything further. The benefit of doubt must follow unless the Prosecution is able to prove its case beyond all reasonable doubt.
Also, Narinder Kumar v. State (NCT of Delhi) [(2012) 7 SCC 171], it was held by the Apex Court that:
However great the suspicion against the Accused and however strong the moral belief and conviction of the court, unless the offence of the Accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the Accused and the Prosecution has to bring home the offence against the Accused by reliable evidence. The Accused is entitled to the benefit of every reasonable doubt.
19. Thus, this court has no hesitation in holding that despite examination of plethora of witnesses and bringing several documents on record, Prosecution failed to prove its case beyond all reasonable doubts as required in law. Quality and relevancy; and not quantity of evidence, is what determines the fate of a case. Culpability can be attached to the Accused persons only if it is proved that they have committed the alleged offence, which in this case, the Prosecution failed to do despite several efforts. In these circumstances, as a natural corollary following to the discussion above held, this court cannot hold the Accused persons guilty in the present case.
Conclusion
20. In view of the appreciation of evidence as well as above held discussion, the Accused persons namely P.K.Tyagi and Manorama Tyagi are held not guilty and acquitted for the FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 21 of 22 charges leveled against them under section 420/471 and Section 467/468/34 IPC.
Digitally signed by VIDHI VIDHI ANAND GUPTA GUPTA Date:
ANAND 2024.01.23 16:34:06 +0530 Announced in the Open Court (Vidhi Gupta Anand) on 23.01.2024 Chief Metropolitan Magistrate Shahdara District, Karkardooma 23.01.2024 FIR No. 84/2004 PS Shahdara U/s 420/471 IPC r/w Section 467/468 & 34 IPC State Vs. P.K Tyagi & anr. Page No. 22 of 22