Delhi District Court
State vs Vijay Kumar on 30 June, 2022
IN THE COURT OF MS. DEEKSHA SETHI, MM-
03, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI.
CNR No. : DLSW02-021650-2019
FIR No. : 52/2007
U/s : 420/467/468/471/452 IPC
P.S. : Uttam Nagar
State versus Vijay Kumar
a) ID. No. of the Case : 11067/2019
b) Name & address of the : Sh Sigeshwar Saha
complainant S/o Sh. Jatu Ram Sah
R/o I-23, Krishi Kunj
Pusa, New Delhi.
c) Name & address of : Vijay Kumar
accused person. S/o Sh. Sh. Sohan Lal
R/o A-689, Gali No.18,
Mahavir Enclave-II,
New Delhi.
d) Date of Commission of : 19.01.2007
offence
e) Offence complained of : 420/452/467/468/
471/506/174A IPC
f) Plea of the accused : Pleaded
not guilty.
State v/s Vijay Kumar Page 1 of 23
Cr. Case No. 11067/2019
g) Final Order : Convicted u/s 420 IPC
174A IPC.
h) Date of Institution : 08.07.2008
i) Final arguments heard on : 18.05.2022
j) Judgment Pronounced on : 30.06.2022
JUDGMENT
Brief facts
1. Vide this judgment I shall dispose of an old case in which FIR was registered on 19.01.2007 and chargesheet was filed on 08.07.2008 and supplementary chargesheet was filed on 12.11.2008.
2. The prosecution version on brief is that complainant Sh. Sigeshwar Saha had purchased the property plot no. 79 measuring 70 sq yards out of Khasra no. 15/13 situated in the revenue estate of village Hastal, Delhi State known as Niader Enclave in the year 2003 for Rs. 1,28,500/- from one Shri Vijay Kumar/accused and an agreement to this effect was also entered into with the seller. It is further the prosecution version that accused Vijay Kumar had executed certain documents in favour of the complainant on 03.05.2003 regarding the above said property, i.e., agreement to sell, affidavit and consideration receipt which have been duly notarized along with possession letter. These documents were also handed over to the complainant on the same day by the accused. The accused State v/s Vijay Kumar Page 2 of 23 Cr. Case No. 11067/2019 had also executed a power of attorney in the favour of the complainant regarding the above said property along with will on 03.05.2003 which has been duly registered with the Sub-Registrar, Janak Puri, New Delhi vide No. 10729 dated 02.05.2003.
3. It is further the prosecution case that when the complainant had gone to the plot to carry out construction, he was shocked to find that some other person claimed himself as owner of the above said plot and the said person had also produced some documents relating to the sale of the above said plot. The complainant had immediately contacted the accused Vijay Kumar on mobile and narrated all the facts to him. Thereafter, the complainant had gone to meet accused Vijay Kumar who had asked him either to take back the amount of Rs. 1,28,000/- or to take some other plot in the same area. He (the complainant) was also assured that his amount of Rs. 1,28,500/- will be returned to him with interest within one month.
4. The complainant had agreed to take another plot in the vicinity but after one month, the accused started avoiding him. It is submitted that thereafter, whenever the complainant had tried to contact the accused, he avoided him and also failed to fulfil his promise. It is submitted that on 02.04.2006, when the complainant had gone to meet accused, he clearly stated that he would not give anything to him (the complainant) and also threatened him that in case, he would make any complaint against him, it will not be good for him.
State v/s Vijay Kumar Page 3 of 23 Cr. Case No. 11067/20195. It is further the case of the complainant that he had made a complaint against the accused in PS Uttam Nagar, New Delhi on 05.04.2006 which was duly received by the police officials of PS Uttam Nagar, however, no action was taken by them.
6. It is further the prosecution version that the accused has cheated the complainant and other persons as well by forging the documents of the property. On 18.10.2006, the complainant had again lodged a complaint to ACP, West District, against the accused regarding threat extended by him to kill him (the complainant).
7. Since no action was taken by the police officials, the complainant had thereafter filed an application u/s 156(3) Cr.P.C. read with Section 200 Cr.P.C. on 17.01.2007 in the court. On the basis of the above complaint, the Ld. Metropolitan Magistrate vide order dated 17.01.2007 had directed the SHO concerned to register the FIR. The FIR was registered by the IO on 19.01.2007.
Proceedings before the Court
8. On completion of investigation, a chargesheet u/s 420/467/468/471/452 IPC was filed against the accused Vijay Kumar. After taking cognizance of the offences, the accused was summoned to face trial.
9. On his appearance, a copy of chargesheet along with documents was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter State v/s Vijay Kumar Page 4 of 23 Cr. Case No. 11067/2019 referred to as 'CrPC'). On finding a prima facie case against the accused, charge under sections 420/467/468/471/452/506 IPC was framed against him, to which he pleaded not guilty and claimed trial.
10. The prosecution in support of its case has examined the following witnesses.
(i) PW-1 is the complainant Sh. Sigeshwar Saha,
(ii) PW-2 is Sh. Bhupender Singh who claimed himself to be the owner of the plot in question,
(iii) PW-3 ASI Nempal Sharma had registered the FIR No. 52/07,
(iv) PW-4 SI Baljeet Singh has deposed that investigation of the case was handed over to him on 28.12.2007 and he had collected the file from the MHC(R). He further deposed that since the accused was not traceable, he had moved an application and initiated the proceedings u/s 82 Cr.P.C. against him.
Thereafter, he was transferred from PS Uttam Nagar.
(v) PW-5 SI Zile Singh has deposed that on 10.10.2008, he was posted at PS Uttam Nagar as ASI. On that day he had received an information from PS Jahangirpuri about the arrest of the present accused. Thereafter he had gone to Rohini Court and arrested the accused vide arrest memo Ex. PW5/A and State v/s Vijay Kumar Page 5 of 23 Cr. Case No. 11067/2019 conducted his personal search vide memo Ex. PW5/B. He had also collected the kalandra u/s 41.1(c) Cr.P.C. from HC Naresh Kumar PS Jahangirpuri and same is Ex. P1 (colly).
Thereafter he had filed a supplementary chargesheet in court.
(vi) PW-6 SI Radhe Shyam has deposed that in
the year 2006 complaiPW-1 is the
complainant Sh. Sigeshwar Saha,
(vii) PW-2 is Sh. Bhupender Singh who claimed himself to be the owner of the plot in question,
(viii) PW-3 ASI Nempal Sharma had registered the FIR No. 52/07,
(ix) PW-4 SI Baljeet Singh has deposed that investigation of the case was handed over to him on 28.12.2007 and he had collected the file from the MHC(R). He further deposed that since the accused was not traceable, he had moved an application and initiated the proceedings u/s 82 Cr.P.C. against him.
Thereafter, he was transferred from PS Uttam Nagar.
(x) PW-5 SI Zile Singh has deposed that on 10.10.2008, he was posted at PS Uttam Nagar as ASI. On that day he had received an information from PS Jahangirpuri about the arrest of the State v/s Vijay Kumar Page 6 of 23 Cr. Case No. 11067/2019 present accused. Thereafter he had gone to Rohini Court and arrested the accused vide arrest memo Ex. PW5/A and conducted his personal search vide memo Ex. PW5/B. He had also collected the kalandra u/s 41.1(c) Cr.P.C. from HC Naresh Kumar PS Jahangirpuri and same is Ex. P1 (colly). Thereafter he had filed a supplementary chargesheet in court.
(xi) PW-6 SI Radhe Shyam has deposed that in the year 2006 complainant Sh. Sigeshwar Saha had given a complaint alleging that accused Vijay Kumar has cheated him and has sold a plot to him which belonged to some other person. Both the parties were called by him. In the meantime, complainant had got registered an FIR on 19.01.2007 by moving an application u/s 156(3) Cr.P.C. During the investigation, both the parties were called at the spot and he had prepared a site plan of the property in question which is Ex. PW6/A. During the investigation, he came to know that Sh. Bhupender Singh was the actual owner of the property. He had recorded the statement of Sh. Bhupender Singh u/s 161 Cr.P.C. wherein he has stated that he had not sold the plot to accused Vijay Kumar. During the investigation, the accused had absconded and he (PW-6) had obtained NBWs against him.
State v/s Vijay Kumar Page 7 of 23 Cr. Case No. 11067/2019Thereafter on 21.12.2007, he was transferred from PS Uttam Nagar.
(xii) PW-7 Inspector Raj Singh has deposed that in March, 2018 he was posted in PS Uttam Nagar as SI and the investigation in the present case was marked to him. He had collected the file from MHC(R) and at that time the proceeding u/s 82 Cr.P.C. had already been initiated against the accused Vijay Kumar. On 31.05.2008 accused Vijay Kumar was declared P.O. as per law. Thereafter file was handed over to the SHO concerned and chargesheet was filed.
11. Statement of the accused u/s 313 Cr.P.C. was recorded wherein he has denied the allegations leveled against him and submitted that he is innocent and falsely implicated.
12. Accused has examined himself as DW-1 u/s 315 Cr.P.C. and deposed that he had worked with Sh. Bhupinder Singh (PW-2) as his agent since 1989. He had stopped working as an agent with PW-2 in the year 2001. He used to work on commission basis and used to receive 2% commission for arranging clients for Sh. Bhupinder Singh, who was a real estate agent and used to sell and purchase properties. Usually property documents were executed between the parties and the same were handed over to him as well. However, no documents were handed over to him with respect to the property in question. The entire payment towards sale consideration was made by Sh. Sigeshwar State v/s Vijay Kumar Page 8 of 23 Cr. Case No. 11067/2019 Saha to Sh. Bhupender Singh and he has not committed any offence.
13. Ld. APP for the State has submitted that on the basis of the evidence appearing on record, the prosecution has proved its case beyond reasonable doubt that accused Vijay Kumar has fabricated the property documents and sold the plot in question to Sh. Sigeshwar Saha which in fact belonged to Sh. Bhupender Singh. He has, therefore, stated that accused is guilty of an offence u/s 420/467/468/471/452/506 IPC. He has further stated that since accused had absconded and was declared P.O., a charge u/s 174A IPC has also been framed against him on 28.01.2017. In short, he has submitted that prosecution has proved its case beyond reasonable doubt.
14. Ld. Defence counsel on the other hand has submitted that the accused is innocent and falsely implicated. He is illiterate and he used to work only on commission basis with Sh. Bhupender Singh till 2001. Ld. Counsel has further argued that whatever documents Sh. Bhupender Singh used to give to the accused, he used to hand over the same to the purchaser. It is submitted that since nothing incriminating has appeared against the accused, he is, therefore, innocent and be acquitted for the offences charged.
15. I have considered the rival submissions and gone through the record carefully.
Findings of the Court State v/s Vijay Kumar Page 9 of 23 Cr. Case No. 11067/2019
16. This is a very old case in which FIR was registered in the year 2007 and the chargesheet was filed in the year 2008. The undersigned had assumed charge of this court on 28.04.2022 only. Perusal of the record reveals that the material witnesses have been called number of times but unfortunately could not be examined for one reason or the other. The above facts have been narrated only for the purpose of showing that there is delay in recording the statement of witnesses and, therefore, certain discrepancies have cropped up in their statements but as discussed in later part of this judgment, these are not fatal to the prosecution case. It is a known fact that human memory fails with time and, therefore, minor contradictions appearing in the statement of witnesses which are not material, have to be ignored. Keeping in view the above fact, let this court now analyze the evidence appearing on record.
17. Before proceeding further it may also be pointed out that evidence of PW-1 Sh. Sigeshwar Saha has been conducted on various dates and the last date was 28.01.2017 and by that time he was approximately 66 year old. He had to attend the court on 24.07.2009, 10.01.2011, 14.02.2012, 18.09.2013, 09.12.2013, 29.03.2014, 21.08.2014, 26.07.2016, 26.10.2016 and 28.01.2017 for recording his evidence. With this background, let this court first examine the testimony of PW-1 Sh. Sigeshwar Saha who has deposed that he had purchased the plot in the year 2002- 2003 from accused Vijay Kumar present in the court. He State v/s Vijay Kumar Page 10 of 23 Cr. Case No. 11067/2019 has stated that plot was measuring 70 sq yards. He, however, did not remember the number of the plot. However, as stated earlier, it has to be kept in mind that statement of this witness has been recorded after about seven years of lodging of complaint and thus, he cannot be expected to remember the number of plot as human memory fails with time. This witness has further submitted that a deal was struck for Rs. 1,28,500/- with accused and he (the accused) had executed GPA, agreement to sell and receipt regarding the transfer of the ownership of the plot in his favor. The accused had also executed a will in his favour. He has proved the following documents in this regard:
(i) GPA Ex. PW1/A
(ii) Will Ex. PW1/B
(iii) Copy of agreement to sell Ex. PW1/C
(iv) Copy of receipt Ex. PW1/D
18. PW-1 has next deposed that when he had gone to raise the construction on the plot, one Joginder Singh had objected to the same. The witness has thereafter in his deposition given the correct name of the person also who had objected to his raising construction as Sh. Bhupender Singh. He has deposed that Bhupender Singh had stated that he was the owner of the plot. On inquiry, he had come to know that accused Vijay Kumar was never the owner of the plot. Though, accused Vijay Kumar had promised him that he would return the money, but he had failed to return the same. This witness has also placed on record the copy of police complaint Mark P1/A as well as copy of State v/s Vijay Kumar Page 11 of 23 Cr. Case No. 11067/2019 complaint filed before Ld. Metropolitan Magistrate as Mark P1/B.
19. This witness was thoroughly cross-examined by the Ld. Defence Counsel. However, nothing beneficial to the defence has emerged out of the same. It is true that the complainant was not able to answer the question that how many documents were executed regarding sale of the plot.
He also could not tell whether the documents executed were either registered or notarized. However, this fact cannot be ignored that his examination-in-chief was recorded after about seven years of filing his complaint with the police and cross-examination was conducted after nine years. This witness has further stated that he had not signed any documents prepared by the accused regarding sale and purchase of the plot. He, however, voluntarily stated that he was asked to produce only his photograph. This witness has stated that he had not gone through the contents of the sale documents prepared by the accused. He has, however, clarified that he is illiterate. As stated above, cross-examination of the witness was conducted on 26.10.2016 whereas his examination-in-chief was recorded on 21.08.2014. Thus, this court will also have to keep in mind the difference of time of approximately two years between recording of examination in chief of complainant and his cross examination as well the fact that FIR was registered on 19.01.2007 and, thus, the minor inconsistencies which have appeared in his statement and which do not go to the root of the case, have to be ignored.
State v/s Vijay Kumar Page 12 of 23 Cr. Case No. 11067/2019Moreover, the documentary evidence which will be discussed in detail in the later part of this judgment as well as cross-examination of accused Vijay Kumar who had examined himself as DW-1 u/s 315 Cr.P.C. will also prove the fact that it was accused Vijay Kumar who had sold the property to the complainant in question showing himself to be the owner of the same.
20. The record reveals that PW-1 was further cross examined on 28.1.2017, i.e., about more than one year after his first cross-examination. In the said cross examination, he has stated that he had filed a complaint before the court but he is illiterate and cannot read and write. He has denied the fact that the complaint and affidavit are false. He has stated that he had not gone either to the Registrar's office or before Notary to get the documents registered or for attestation. However, he has stated that accused had given him the documents and he did not know from where he got the same attested. Thus, PW-1 has clarified the fact that he had not gone for any notarization or attestation but accused had himself got the same done. Though the witness has stated that he does not remember the date, month or year of the raising of construction, but as stated in the earlier part of this judgment, this court has to keep in mind that this witness is being cross-examined after about 10 years of registration of FIR, which is dated 19.01.2007, and after about three years of recording his examination in chief. Though this witness, i.e., Sigeshwar Saha during his cross- examination has also failed to remember the name of Sh.
State v/s Vijay Kumar Page 13 of 23 Cr. Case No. 11067/2019Bhupender Singh but that does help the defence for the reason that the witness has clearly stated his (Bhupender Singh's) name in his earlier statement recorded on 21.08.2014. Though it was also suggested to the witness that he had resold the plot to the accused but he had denied the said fact. However, it has also to be noted that accused has failed to place on record any documentary evidence at all to prove the fact that complainant had resold the plot in question to him.
21. Perusal of statement of owner PW-2 Bhupender Singh clearly reveals that he is the owner of the plot and he had not sold the same to accused Vijay Kumar. He has, however, stated he had sold another portion of the land to the accused in the same khasra. He has further deposed that since someone was doing construction in the plot in question, he had, therefore, stopped him from raising construction. He has deposed that the person who was raising the construction had told him that he had purchased the plot in question form one Vijay Kumar. He had, however, informed him, (i.e., PW-1 Sigeshwar Saha) that he (PW-2) is the owner of the plot in question.
22. This witness was thoroughly cross examined by Ld. Counsel for accused. However, nothing beneficial to the accused has emerged out of the same. This witness has stated in his cross-examination that he had executed the GPA in favor of the accused for a portion of the plot. The said GPA dated 04.07.2003 which was marked as Mark A/DA was shown to the witness and he clarified that the State v/s Vijay Kumar Page 14 of 23 Cr. Case No. 11067/2019 portion X has been added later in GPA (Mark A/DA) which shows the area of the plot. This witness has further stated that in the Receipt Mark B/DA, the area shown in the circle as measuring 43.33 sq. yards was not mentioned but the area mentioned was 21.60 sq. yards. Thus, it is clear that the above-mentioned documents Mark A/DA and Mark B/DA have not been admitted by the witness as these stand tampered and additions have been made in the same. This witness has further deposed that he had signed the document Mark C/DA, i.e., GPA dated 25.05.2004 issued by PW-2 in favor of the accused at point A and B which was attested by the notary on 25.03.2004. However, in the opinion of this court, this document also does not help the accused for the reason that the accused had sold the plot in question to the complainant on 02.05.2003 when he was not even owner of the plot, since as per GPA Mark C/DA dated 25.05.2004, he became the owner of the plot only in the year 2004. Moreover, careful perusal of Mark C/DA reveals that it does not relate to plot in question, since the area of the land/ plot is different in Mark C/DA and as per this document there is a road measuring 20 feet wide towards its north, whereas in Ex. PW1/A, there is a road measuring 09 feet only towards its north. Thus, even the land seems to be different in both the GPAs. This witness has also categorically denied the suggestion that he had executed any GPA in favour of accused with regard to the plot in question. He has further stated that he was interrogated by the police but no documents were given by State v/s Vijay Kumar Page 15 of 23 Cr. Case No. 11067/2019 him to the police. He has also denied the suggestion that accused had paid him the money against the plot in question and he had become dishonest after some years and, therefore, he had not produced the documents before the police.
23. Perusal of the record further reveals that PW-2 was further cross examined on 21.12.2017, i.e., after about more than three years of recording his examination-in-chief and cross-examination which are dated 12.11.2014 and 21.12.2017. In the cross examination conducted on 21.12.2017, though PW-2 has stated that he had not stopped the complainant Sh. Sigeshwar Saha from raising construction, however, as discussed in earlier part of the judgment, this court cannot ignore the fact that the FIR was registered in the year 2007 and examination-in-chief of the witness was conducted in the year 2014 and cross- examination was concluded in the year 2017. This fact cannot be ignored that the human memory fails with lapse of time and minor discrepancies and inconsistencies are bound to appear in the statement of witnesses, however, these discrepancies do not demolish the prosecution version.
24. Thus, when this court analyses the evidence appearing on record, it is clear that the discrepancies and inconsistencies appearing in the statement of witnesses are minor in nature and there is no evidence on record to suggest that accused was the owner of the plot on 02.05.2003 when he had sold the same to the complainant Sigeshwar Saha (PW-1).
State v/s Vijay Kumar Page 16 of 23 Cr. Case No. 11067/201925. The other witnesses examined by the prosecution are more or less formal in nature as discussed in the earlier part of the judgment.
26. Perusal of record further reveals that accused has examined himself as a witness u/s 315 Cr.P.C and his examination-in-chief runs as under:
"I am the accused in the present case. I state that I used to work with Bhupender Singh as his agent since the year 1989. I quit the work of agency with him in the year 2001. I used to work on commission basis and used to receive 2% commission for soliciting clients for Bhupender Singh. Bhupender Singh was a real estate agent and used to sell and purchase property. Usually, property documents were executed between the parties and the same were handed over to me as well. However, no documents were handed over to me in respect of property in question. The entire payment towards sale consideration was made by Singeshwar Shah to Bhupender Singh. I did not commit the offences as alleged. I have been falsely implicated in the present case."
(Emphasis Supplied)
27. Perusal of the above examination in chief reveals that accused Vijay Kumar has stated that no documents were handed over to him in respect of plot in question. The entire payment towards the sale consideration was made by Sh. Sigeshwar Saha to Sh. Bhupender Singh. This witness was thoroughly cross examined by Ld. APP for the State v/s Vijay Kumar Page 17 of 23 Cr. Case No. 11067/2019 State. In the cross examination, the accused has admitted the fact that he was not the owner of the plot in question when it was sold to PW-1, i.e., the complainant but he had received a sum of Rs. 70,000/- from the complainant. He has admitted the fact that he had prepared the documents, i.e., GPA (Ex. PW1/A), Will (Ex. PW1/B), Agreement to Sell (Ex. PW1/C) and Receipt (Ex. PW1/D). Since the cross-examination is very relevant and reveals everything, it has been quoted for ready reference and runs as under:
"I studied upto 5th standard. I used to sit at the office of Bhupender Singh which was situated in Vikas Nagarm Niyader Enclave. It is correct that in the year 2002-2003, Singeshwar Shah came to our office for purchasing the plot which was situated in the area of Uttam Nagar. The plot was admeasuring of 70 sq. yards. The deal was done for the amount of Rs. 70,000/-. The document, i.e., GPA, will, agreement to sell and receipt of Rs. 70,000/- and possession letter were prepared by me and the said documents were prepared at the instructions of Bhupender Singh. The documents were prepared by me at District Centre, Vikas Puri, Delhi. I handed over the possession of property in question to the complainant at the same time. I handed over the documents of property in question to Singeshwar Shah for possession of the accused. The document already Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D and the possession letter are shown to the accused and the signatures are also shown to the accused and after seeing the signatures of himself, accused Vijay State v/s Vijay Kumar Page 18 of 23 Cr. Case No. 11067/2019 Kumar correctly identified the same and stated that the signatures on the documents are done by him at the time of documentation of property in question. At the time of documentation of property in question, I knew that the real owner of the property in question was Bhupender Singh. I was working under Bhupender Singh who was real estate agent but no employee ID/any agreement or other document were prepared by him. It is correct that I received the amount of Rs. 70,000/- from Singeshwar Shah.
It is wrong to suggest that I was working under Bhupender Singh who was real estate agent. It is further wrong to suggest that I was working on commission basis. It is wrong to suggest that I am deposing falsely in order to save myself."
(Emphasis supplied)
28. Perusal of the cross-examination of the accused thus, reveals that he has admitted the fact that he used to sit in the office of Sh. Bhupender Singh and in the year 2002 to 2003, Sh. Sigeshwar Saha had come to his office for purchasing the plot which was situated in the area of Uttam Nagar and was measuring 70 sq. yards. The deal was done for an amount of Rs. 70,000/-. He had also handed over the possession of the plot in question to the complainant. The documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D and the possession letter and the signatures appearing on the same were shown to accused and after seeing his signatures, he (i.e., accused Vijay Kumar) had identified the same and stated that the State v/s Vijay Kumar Page 19 of 23 Cr. Case No. 11067/2019 signatures on the documents were done by him. He has also admitted the fact that he had received an amount of Rs. 70,000/- from Sh. Sigeshwar Saha.
29. The above evidence on record thus, clearly proves that accused Vijay Kumar had shown himself to be the owner of the plot bearing no. 79 measuring 70 sq yards out of Khasra no. 15/13 situated in the revenue estate of village Hastal, Delhi State known as Niader Enclave and he had sold the same to the complainant Sh. Sigeshwar Saha and received the sale amount knowing it well that he was not the owner of the plot in question. The above evidence appearing on record thus, clearly points out that prosecution has proved its case beyond reasonable doubt u/s 420 IPC against accused Vijay Kumar.
30. There is, however, no evidence on record to prove the fact that accused has committed the offence u/s 467, 468 and 471 IPC since he has admitted the fact that he has signed the documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D in his own name. Section 463 IPC defines forgery and section 464 IPC defines making a false document. The Hon'ble Supreme Court in the judgment titled Mohammed Ibrahim & Ors. v/s State of Bihar & Anr., (2009) 8 SCC 751 has explained the offence of forgery and making a false document in the judgment. The Hon'ble Apex Court has further held that execution of a document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined u/s 464 IPC. If what is executed is not a false State v/s Vijay Kumar Page 20 of 23 Cr. Case No. 11067/2019 document, there is no forgery. If there is no forgery, then neither section 467 now section 471 of IPC are attracted. The relevant portion of the judgment of the judgment Mohammed Ibrahim (supra) is quoted hereinbelow:
"...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 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 State v/s Vijay Kumar Page 21 of 23 Cr. Case No. 11067/2019 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."
In the present case, the accused has not executed the documents claiming that he is someone else or authorized by someone else to sell the plot in question. He has not prepared the documents 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. Therefore, in view of the law laid down by the Hon'ble Apex Court in the above-referred judgment, execution of documents in question by the accused is not execution of false documents as defined under section 464 of the Code and if what is executed is not a false document, there is no forgery. Thus, the prosecution has failed to prove its case u/s 467, 468 and 471 IPC against the accused. The accused Vijay Kumar is, therefore, acquitted for the offences u/s 467, 468 and 471 IPC.
31. The prosecution has further failed to make out any case u/s 452 and 506 IPC as there is no evidence on record to the effect that accused had trespassed into the plot in question or ever threatened the complainant. The accused is, therefore, acquitted for the offences u/s 452 and 506 IPC also.
32. The prosecution has, however, proved its case against the accused u/s 420 IPC beyond reasonable doubt as discussed State v/s Vijay Kumar Page 22 of 23 Cr. Case No. 11067/2019 in the earlier part of the judgment since the accused had sold the plot in question to the complainant and received the sale amount knowing it well that he was not the owner of the same. The accused is, therefore, held guilty for the offence u/s 420 IPC.
33. So far as offence u/s 174A IPC is concerned, accused Vijay Kumar is also held guilty for the said offence since he had absconded and he was later on arrested as a P.O. on 07.10.2008. The said fact has been brought on record by the statement of PW-7 Inspector Rajvir Singh. There is no cross-examination on the said point and the accused has also not disputed the said fact. The prosecution has thus, proved its case u/s 174A IPC against the accused as well.
34. In view of the above discussion, accused Vijay Kumar is held guilty for the offences u/s 420 IPC and u/s 174A IPC and convicted accordingly.
35. Copy of this judgment be given to the convict free of cost.
36. This judgment contains 23 (twenty three) pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
37. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally signed by Deeksha Deeksha Sethi
ANNOUNCED IN THE OPEN COURT
Sethi Date:
TODAY i.e. ON 30.06.2022 2022.06.30
16:50:04 +0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
30.06.2022
State v/s Vijay Kumar Page 23 of 23
Cr. Case No. 11067/2019