Delhi District Court
Fir 468/1994 State vs . Rajender Kumar Mittal & Others 1/29 on 31 January, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT: DELHI
FIR No. : 468/1994
PS : Shakarpur
u/S : 420/120B IPC
STATE v. RAJENDER KUMAR MITTAL & OTHERS
JUDGMENT
A Unique ID No. of case DLET02-000004-2002 B Criminal Case No. 323/2016 C Name of the complainant Sh. K.L. Verma
D Name of the accused & his 1. Raj Kumar (since deceased) parentage and address 2. Gajraj Singh, S/o. Sh. Khaja Singh (already acquitted vide judgment dated 08.06.2016).
3. Rajinder Mittal, S/o. Sh. Din Dayal.
R/o 11/19, Raj Nagar, Gaziabad, UP.
4. Rakesh Kumar, S/o. Sh. Deep Chand. (already convicted vide judgment dated 08.06.2016).
5. D.K. Dua, S/o. Sh. O.P. Deewan (already acquitted vide judgment dated 08.06.2016).
6. Smt. Raj Shree Mittal, W/o. Sh.
Rajinder Mittal. (already discharged vide order dated 06.09.07).
7. Tirupati Builders Pvt. Ltd. & Tirupati Associates (already acquitted vide judgment dated 08.06.2016).
E Offences Complained of 420/120B IPC
F Date of commission of In the year 1987.
offence.
G Date of Institution 16.12.1995
H Offence Charged 120B r/w 406/420 IPC and 406/420 IPC
I Plea of the accused Pleaded not Guilty
J Order Reserved on 31.01.2019
Date of Pronouncement 31.01.2019
K Final Order Accused Rajender Mittal is convicted for
offences u/s 120B r/w Section 406/ 420 IPC
and Section 406/420 IPC.
FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 1/29
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The present charge sheet has been filed with the allegations that accused persons had induced certain investors/buyers in purchasing residential plot at Tirupati Township. However, despite making the payments, neither the plot was alloted to them nor their money was refunded and in this manner, the accused persons had committed cheating with various investors.
2 Briefly stated, the facts of the case are that one Sh. K.L. Verma filed a complaint with SHO PS Shakarpur to the effect that he had booked a residential plot No. D-199 at Tirupati Township admeasuring 100 sq. yards at M/s Tirupati Associates A-115, Vikas Marg, Shakarpur. As per agreement M/s Tirupati Associates assured him to give the said plot within three years. He had deposited the required amount with M/s Tirupati Associates vide receipt No. 20161 dated 17.08.1988 (Rs. 13,000/- through cheque) and receipt No. 23575 dated 01.08.1989 (Rs. 3,250/-). But it was alleged that M/s Tirupati Associates neither alloted any plot nor refunded the amount and the said office was closed at the above mentioned address. This complaint was registered and investigation was initiated. On 12.05.1995, the matter was transferred to District Crime Cell for further investigation. 3 In addition to the sabove complaint, an association of victim persons (having 383 members on its roll) with the name of "Tirupati Township Plot Holders Associates (Regd.) also filed a complaint dated 03.06.1994 in the Court of Sh. A.K. Sarpal, the then Ld. MM, Karkardooma Courts, Delhi alleging offence of cheating by Tirupati Builders (Delhi) Pvt. Ltd., Tirupati Associates and Rajvansh Properties Ltd. all operating from A-115, Vikas Marg, Shakarpur, Delhi being managed and jointly run by Rajender Mittal, Gaj Raj, Raj Kumar etc. It FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 2/29 was alleged that the aforesaid accused persons entered into transactions for selling of various pieces of land by carving out colonies, named as Tirupati Vihar and Tirupati Township (proposed to be developed).
4 It was further alleged that for the purpose of boosting the sale of plots for the colony, Tirupati Vihar, M/s Gaurav Investment acted as a sole concern owned by D.K. Dua in connivance with accused Rakesh Kumar and sometimes in the year 1986, the accused persons made a conspiracy to cheat the public at large by offering plots on easy and attractive terms near and around Delhi. The accused persons informed the public at large that Tirupati Builders (Delhi) Pvt. Ltd., had developed a colony known as Tirupati Vihar on the national highway near Delhi and UP Border and invited them to book/purchase plots of land for residential and commercial purposes and also to build up flats. The advertisements to that effect were published on various dates from 1986 to 1988. It was also advertised that Tirupati Associates had developed a colony known as Tirupati Township on Delhi - Baghpat Road near Wazirabad Yamuna Bridge 4. The salient features for inducing the prospective buyers were to the effect that (1) the colonies were residential and approved, (2) No Objection Certificate for use of land was obtained from the concerned authorities and (3) covered under National Capital Planning (Rashtriya-Rajdhani- Yojna).
5 The accused persons did not disclose that the conversion of the land from agriculture to residential has not been permitted by the concerned authority and that part land was acquired and part was under acquisition. This way the accused persons received a total amount of Rs. 29,93,162/- in respect of land Tirupati Vihar. The accused persons started selling the plots in the year 1986 whereas the Tirupati Builders purchased some land on 31.03.1987 and Tirupati FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 3/29 Associates performed Bhumi Pujan on 01.03.1987. At that time, Tirupati Builders (Delhi) Pvt. Ltd did not own any land for Tirupati Vihar. The total area of the land purchased by the said company for the purpose of developing Tirupati Vihar was 27,104 sq. yards (8 Bigha, 19 Biswa, 4 Biswansi) whereas the total area of land sold by accused persons to the purchaser including the members of Tirupati Township Plot Holders and other complainants were 1,59,150 sq. yards. In this way, they sold 1,32,046 sq. yards of land in excess to the land available with them.
6 During the course of investigation, Sh. A. K. Sarpal, the then Ld.M.M. on 21.08.1995 ordered that the investigation in this case be clubbed with case/FIR no. 468/94 at PS Shakarpur. Since then, the investigation of the complaint as well as the case was conducted jointly. During the course of investigation, the I.O. examined various witnesses and collected relevant documents and receipts, agreements etc from the plot buyers as well as concerned authorities. It was opined by the IO that the current addresses of the plot buyers were not available and it was not possible to examine all of them. The investigation revealed that Rajinder Mittal and his associates cheated 383 persons and they floated two colonies namely Tirupati Vihar and Tirupati Township. Both the colonies were unauthorized while the accused told the plot buyers that the colonies were approved. 7 On the basis of these allegations, present FIR No 468/1994 (Ex.
PW21/A) PS Shakarpur under section 420/406 IPC was lodged on 18.10.1994.
CHARGE 8 After investigation, charge-sheet under section 173 Cr. P.C was filed on 16.12.1995.
9 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., vide order dated 26.06.2006 passed by my Ld. Predecessor, FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 4/29 a charge was framed for the offences under Section 420 and 406 IPC read with Section 120B and under Section 120 B IPC read with Section 406 and Section 420 IPC against accused persons, namely, (1) Raj Kumar, (2) Gajraj Singh, (3) Rajinder Mittal, (4) Rakesh Kumar, (5) D. K. Dua, (6) Smt. Raj Shri Mittal and (7) M/s. Triputi Builders Pvt. Ltd.
10 One of the accused persons, namely, Smt. Raj Shri Mittal preferred a revision against the order on charge and vide order dated 06.09.2007 passed by Ld. Revision Court/ASJ, she was discharged as no sufficient material was found on record against her. 11 During course of trial, accused Raj Kumar expired and accused Rajender Kumar Mittal was declared a proclaimed offender. 12 After completion of trial qua the other accused persons, vide judgment dated 08.06.2016, accused Rakesh was convicted for offence u/s 419/420/406 & 120B IPC while accused Gajraj and D. K. Dua were acquitted from all the offences charged against them. 13 Accused Rakesh Kumar had challenged the conviction order and the order on sentence dated 02/07/2016 before Ld. Sessions Court and vide judgment dated 27/08/2016, the order of conviction of the accused Rakesh Kumar was upheld while the order on sentence was partially modified.
14 On 30/09/2016, accused Rajender Mittal was arrested as a PO and was produced before the court. Thereafter, the witnesses who were examined in absentia of accused Rajender Mittal were summoned and were cross examined on his behalf. Now, the Trial qua accused Rajender Mittal has also been completed.
PROSECUTION EVIDENCE 15 In order to prove its case, the prosecution examined as many as 22 witnesses, which are as under :-
1. PW-1 Bharat Bhushan Khanna, victim.
FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 5/29
2. PW-1A K. L. Verma, complainant/victim
3. PW-2 Satender Kumar Bhatnagar,victim
4. PW-3 Ravikant Gupta, victim
5. PW-4 C. B. Gupta, victim
6. PW-5 Pardeep Kumar Aggarwal, victim
7. PW-6 K. B. Saxena, victim
8. PW-7 Kapender Kumar, Registry Clerk, Dadri.
9. PW-8 Data Ram, Junior Technical Assistant.
10. PW-9 Ashok Kumar, Record Keeper, GDA.
11. PW-10 Kapender Kumar, Registry Clerk, Dadri.
12. PW-11 Balender Kumar Gandhi, Chief Manager.
15. PW-14 R. D. Trivedi, victim
16. PW-15 Nirmal Khanna,victim
17. PW-16 Tej Pal Singh, victim
18. PW-17 W/HC Rajani (assisted the IO).
19. PW-18 Retired ACP Satyavir Singh
20. PW-19 SI Jai Singh
21. PW-20 ACP Ram Chander
22. PW-21 HC Venkat Adri
16 The prosecution also exhibited large number of documents at the time of examination of aforesaid witnesses but their details are not being mentioned herein for the sake of brevity and they will be mentioned with complete description and exhibit marks in subsequent paragraphs wherever necessary.
STATEMENT OF ACCUSED 17 Statement of accused Rajender Mittal u/s 313 Cr. PC was recorded on 04.03.2017 wherein the entire incriminating evidence produced on record was put to him. He denied all the allegations and stated that he had been falsely implicated in this case as he is a relative of convict Rakesh Kumar. He had no concern with Tirupati Associates from the very first day of its inception till date. He was only a director in Tirupati Builders Private Limited from the date of its inception till January 1986. Till his resignation, convict Rakesh Kumar was not a director with Tirupati Builders Private Limited.
FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 6/29 DEFENCE EVIDENCE OF ACCUSED 18 Accused Rajender Mittal did not examine any witness in his defence .
19 Final argument have been heard. Record carefully perused.
Judicial Resolutions 20 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 21 In the present case, the accused Rajender Mittal is charged for the offence of cheating punishable under Section 420 IPC Criminal breach of trust punishable u/s 406 IPC and criminal conspiracy punishable under Section 120-B IPC. The brief law as laid down by Hon'ble Supreme Court and Hon'ble High Courts in respect of above offences is discussed herein under.
22 The essential ingredients of the offence of cheating are as follows :-
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce the person so deceived to do or FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 7/29 omit to do anything which he would not do or omit to do if he was not so deceived; and
(iii) such act or omission causes, or is likely to cause damage or harm to that person in body, mind, reputation or property. (In Mohd.
Ibrahim vs. State of Bihar 2009 (8) SCC 751.) 23 The Penal Code defines 'fradulently', an adjective form of the word "fraud", in section 25, as follows : "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
24 The term "fraudulently" is mostly used with the term "dishonestly"
which is defined in section 24 as follows: "Whoever does anything with the intention of causing wronglful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences.
25 In Devender Kumar Singla v. Baldev Krishan Singla, (SC) 2004 (2) J.T.539 : 2004 Cri.L.J. 1774, it has been observed that, " Section 420 deals with the cases whereby the deceived person is dishonestly induced 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. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person 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. Deception of any person is FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 8/29 common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to atract Section 420 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 the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420, (also in Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979)."
26 It was also observed in Shivanaryan Kabra vs. State of Madras (AIR 1967 SC 986) that it is necessary that a false pretence should be made in express words by the accused. It may be inferred from all the cirucmstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.
27 In another judgment G.V.Rao vs. L.H.V. Prasad and Others, 2000 (2) RCR (Crl.) 290, the Hon'ble Supreme Court of India held as follows:-
" As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainanat to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 9/29 or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575, a guilty intention is an essentila ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea"
on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of W.B., AIR 1954 SC 724, that in order to consitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." 28 The accused Rajender Mittal is also charged for offences u/s 406 IPC which provides punishment for criminal breach of trust. The offence of criminal breach of trust is defined in Section 405 IPC as per which the essential ingredients of the offence of criminal breach of trust are:
(i) Entrusting any person with any property or dominion over property
(ii) The person entrusted dishonestly misappropriates or converts it to his own use and uses it or dispossess it off in violation of (a) any direction of law prescribing the mode in which such trust is to be discharged or (b) any legal contract made touching the discharge of such trust.
29 Section 120 B provides punishment for the offence of criminal conspiracy which is defined in Section 120 A IPC. As per Section 120 A IPC, criminal conspiracy is the agreement between two or more person to do or cause to be done an illegal act or an act which is not illegal by illegal means.
30 The offence of criminal conspiracy can be established by direct evidence or by circumstantial evidence. Direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 10/29 conspirators. The Supreme Court in V.C. Shukla Vs. State , 1980 (2) SCC 665 held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond any reasonable doubt. The circumstances in a case, when take together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
31 The elements of a criminal conspiracy have been stated in Ram Narain Poply v. Central Bureau of Investigation, (SC) 2003 Cri.L.J. 4801 to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statue required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 11/29 the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.
32 For an offence punishable under Section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; or punishable, if for a criminal object or for use of criminal means.
33 No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which in itself may not be illegal. Therefore, the essence FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 12/29 of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurance have to be considered to decide about the complicity of the accused.
34 The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persistes, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus rule in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other. Again, there is no difference between the mode of proof of the offence of conspiracy and that of any other offence. It can be established by direct or circumstantial evidence. (Bhagwan Swarup Lal Bishan Lal etc. vs. State of Maharashtar AIR 1965 SC 682 at p. 686). 35 In short, the section can be analysed as follows: (1) there shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 13/29 have been said , done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it, and (5) it can only be used against a co-conspirator and not in his favour. 36 As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120 A, then in that event mere proof of an agreement betweew the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation , do not require that each and evey person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120 B IPC (S.C. Bahri vs. State of Bihar (AIR 1994 SC 2420).
37 In the light of the above mentioned provisions of law and decisions of the superior court regarding the offences, for which accused Rajender Mittal has been charged, let us now examine the evidence that has come on record qua accused Rajender Mittal.
38 Ld. APP for the State argued that in this case the accused Rajender FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 14/29 Mittal in conspiracy with others cheated many innocent investors/ victims who invested their hard earned money for purchasing of piece of land/plot but the accused persons only gave false promises without intending to give any such lands and they have not even repaid the invested amount. It is thus argued that the accused Rajender Mittal has thus, committed the criminal offences for which he is charged. It is also submitted that case of accused Rajender Mittal is on the same footing as that of co-accused Rakesh who has been convicted vide judgement dated 08.06.2016 on the basis of similar evidence. The said conviction order has also been upheld by Ld. Sessions Court vide order dated 27.08.2016. The accused Rajender Mittal has failed to carve out any difference in his case from that of convict Rakesh. Accordingly, on the basis of evidence on record accused Rajender Mittal is liable for conviction for the offences charged against him. 39 The complainant/victims and other public persons gave their detailed testimonies by narrating the sequence of events as to how they were induced through various advertisements to part with their money. 40 PW-1 Sh.Bharat Bhushan Khanna deposed that on 17.01.1998 he booked a plot measuring 125 Sq. Yds i.e. D-52 Trupati Township, near Ankur Vihar @ Rs. 292/- Sq. Yds at A-115, Vikas Marg, Shakarpur, Delhi (office of Trupati Associates). He gave an amount of Rs. 1,000/- by cheque on 17.01.1998 to Rakesh Sharma at his office. In the next month, he also gave another cheque for the same plot through cheque amounting to Rs. 13,600/- to Rakesh Sharma at this same office. He made two further payments in the year 1989 of Rs. 3650/- each through cheques. In this way, he paid a total amount of Rs. 21,900/-.
41 At the time of booking, Rakesh Sharma stated to him that the said plot is approved by GDA and the plot will be developed within a year. In the year 1991, when he went at the site there was no board of FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 15/29 Tiruputi Associates and nearby persons stated that there is no such land of Tirupati Associates at the given site. He made complaint and he went to the office of accused at Vikas Marg but the office of Tirupati Associates was not there at that time and he could not meet anybody at the office. He identified his signatures on the original receipt dated 26.09.1989 and 04.09.1990 which are Ex.PW1/A and Ex.PW1/B. He also identified the signature of Rakesh Kumar at point B who has signed this receipt dated 04.09.1990 Ex.PW1/B. He also identified the booklet i.e. terms conditions and agreement of sell of Tirupati Township between him and Rakesh Sharma which is Ex.PW1/C. He was never returned his amount nor any plot was given tohim by the accused persons.
42 PW-1A Sh. K. L. Verma (complainant) deposed that there was a board on the Vikas Marg Main Road and the title was Tirupati. He went to the office of Tirupati Associates in which he met with accused Rakesh Kumar who showed him the map of the plot of Tirupati Township and the land was located in Delhi. It was stated to him that the rate of land was Rs. 325/- per sq. yrd. for 100 sq. yds. He gave an amount of Rs. 13,000/- by way of cheque to accused Rakesh Kumar in the year 1988. He had also given the other amount also against the development charges.
43 When he was not given any plot, he again went office and asked for his amount. He was neither given his amount nor the plot. He gave a complaint to the SHO Ex.PW1/A. He has given the receipt, etc to the police vide seizure memo Ex.PW1/B. He identified the receipts given to him in lieu of the amounts paid Ex.PW1/C and Ex.PW/D. 44 PW-2 Sh. Satender Kumar Bhatnagar deposed in his testimony that he read the advertisement regarding the plots by the name of Tirupati Vihar. He went to the office of Tirupati Associates situated at 115, Shakarpur, Delhi-92 and he met with a person namely Rakesh who FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 16/29 told him scheme regarding the plots. A plot measuring 100 sq. yards was agreed through agreement @ Rs. 175/- per sq. yards which is situated near Indirapuram. In August 1987, he gave an amount of Rs. 5,000/- by cash in the office of Tirupati Associates and they gave the receipt for the same. He also made further payments of Rs. 12,500/- to Tripati Associates. When he made the complete payment, he asked accused Rakesh for executing the documents in his favour by way of registry. In the month of February, 1988, accused Rakesh had taken all the original receipts from him and stated that the documents will be executed in his favour @ Rs. 90/- per sq. feet. In July, 1988, the documents were executed by Rakesh in his name at Dadri Court and he made the cash payment of Rs. 1,305/- in the Court. In September 1998, he went at the site and he saw the board of GDA was placed there. When he came to the office of accused and asked regarding all this, he was told by Rakesh that a case for the compensation between the office and GDA is going on and when the case will reach to some settlement, the compensation will be paid. He went many times to the office of accused and they repeated the same thing. Accused persons closed their office. He was neither paid his amount nor the plot. He identified the sale letter executed in his favour by Rakesh which is Ex.PW-2/A and the agreement which is Ex.PW-2/B. 45 PW-3 is another victim namely Ravikant Gupta who deposed that in the year 1987, he had met accused Rajender Mittal and Rakesh Kumar at their office situated at Shakarpur. They informed him that they were having their project by the name of Tirupati Vihar situated near Hindon Canal at Nizamuddin Highway. They had also given advertisements regarding the plot at the project in leading newspapers like Hindustan Times and Navbharat Times. He booked a plot measuring 160 sq. Yards with the accused persons for an amount of Rs. 185/- per sq yds and started giving the installments regarding the FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 17/29 said plot. The plots were situated at Tirupati Vihar. In April 1989, he was going to Kahipur by his car when he noticed that the land in question belonged to GDA and a notice board to this effect was also put there. Thereafter, he met Rakesh and asked him about the same on which he proposed that he is having another project Tirupati Township somewhere in Wazirabad wherein he offered him a plot of the same size and at same rate. He was sent to Gaurav Investment to get his plot exchanged to Tirupati Township. He further paid a few installments but found that there were no development at the site. He spoke to Rakesh Kumar and accused Rajender Mittal and they suggested that if he was not satisfied with the development, he could get his money back under their money back scheme and he was again directed to Gaurav Investment which in turn, again suggested him to exchange his plot for another block in the same Township. He applied for buy back but his money was never paid despite repeated assurances. Thereafter, he lodged a complaint with Consumer Forum as well as police. In 1999, one compromise was effected wherein accused Rajedender Mittal paid him entire money and now he was left with no claims against Tirupati Associates. He identified Accused Rajender Mittal and the documents containing terms, conditions and agreement for sale which is Ex.PW-3/A and also the photocopy of the receipts which are Mark A to Mark W. 46 PW-4 C. P. Gupta is the father of PW3 Ravikant Gupta who had deposed in consonance with PW-3.
47 PW-5 Pradeep Kumar Aggarwal is another victim who again deposed about having booked a plot with Tirupati Associates in Tirupati Township through newspaper advertisement in the year 1989. He also deposed that he had settled the matter with accused Rajender Mittal and received his money back. However, he admitted that before compromise, he had come to know that the land did not FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 18/29 belong to Tirupati Township.
48 PW-6 Sh K. B. Saxena is also one of the victim who had booked a plot with Tirupati Associates but his dealings were all with accused Rakesh. He also deposed about making payment to Rakesh but not having received the plot.
49 PW-12 Manju Saxena is another victim who had also booked a plot with Tirupati Township through Tirupati Associates and paid certain money against which, nothing was given to her. However, she stated that the entire dealing was done by her husband.
50 PW-14 R. D. Trivedi is also a victim who deposed that in January 1988, he saw an advertisement in Hindustan Times, Navbharat Times and Dainik Jagran regarding prehold plots at Delhi-Bhagpat Road issued by Tirupati Associates and Private Builders. On seeing the advertisement, he contacted at the office of Tirupati Associates at A- 115, Vikas Marg where he met accused Rakesh who introduced himself as Director of Triputi Associates Private Builder and assured him that the booking can be made at that office or at their office at LB- 35, Tolystoy Marg, Delhi. Thereafter, he went to the office at Tolystoy Marg where he met accused Rajender Mittal along with some staff who showed him some papers of NOC from GDA and purchase of land from local farmers as well as the site plan. He also told him that he can also visit the site for spot inspection which he did with one staff namely Mr. Dua. Accused Rajender Mittal told him that he was the owner of the company. After being satisfied and convinced with the representations made by accused Rajender Mittal and his staff, he booked the plot and deposited Rs.13,040/- but no receipt was issued to him. After about 15-20 days, he again visited the office at Tolstoy Marg and a receipt Ex PW-14/A-1 was issued to him. He started paying monthly installments of Rs. 383/- qua which also receipts Ex.PW-14/A to Ex.PW14/K were issued to him. In the year 1991, FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 19/29 accused Rajender Mittal was arrested and his accounts were freezed. When he contacted at office at Vikas Marg, he met accused Rakesh who assured him that the matter would be sorted. However, his money was never returned back nor any plot was given to him. He made a complaint at PS Shakarpur where FIR was registered. Thereafter investigation was transferred to Crime Branch and during investigation, his documents were seized by IO vide memo Ex PW- 14/M. Thereafter, he had also filed a case along with some other associates in District Consumer Forum which was decided in his favour. However, he was neither paid any money nor was given any plot. He also specifically stated that accused Rajender Mittal had represented himself to be the director of the Company. 51 PW-15 Nirmal Khanna is another victim who had also purchased a plot with Tirupati Township through Tirupati Associates and deposed that all her dealings were with accused Rakesh Kumar. She deposed about the representation made to her through advertisement in Hindustan Newspaper and proved the receipts of money paid by her as Ex PW-15/A to Ex PW-15/C which were handed over to the police vide seizure memo Ex PW-15/D. In her cross examination, she stated that she visited the office of accused persons for the first time and accused Rajender Mittal was present there.
52 Apart from aforesaid victims, the prosecution also examined many other witnesses including government officials as well as police personnel and the gist of the documents proved on record by all of them are as under:
Name of witness Documents which are proved PW1 Bhjarat Receipt dated 26.09.89 - Bhushan Khanna Ex.PW1/A Receipt dated 04.09.90 - FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 20/29 Ex.PW1/B Original agreement - Ex.PW1/C PW1A K. L. Verma Complainant - Ex.PW1/A Receipt vide seizure memo Ex.PW1/B Receipt - Ex.PW1/C Receipt - Ex.PW1/D PW-2 Satender Sale letter - Ex.PW2/A Kumar Bhatnagar Seizure memo (certain documents and original sell letter) - Ex.PW2/B PW-3 Ravikant Agreement of sale - Gupta Ex.PW3/A Documents are Ex.PW3/B Photocopy of receipts of Tirupati Associates - Mark A to W Statement to the police - Mark A1 PW-5 Pradeep Receipt - Ex.PW5/A Kumar Aggarwal PW-6 K. B. Saxena Documents are Ex.PW6/A to Ex.PW6/F Terms & Conditions - Ex.PW6/G PW-7 Kapender Sale deed no. 4766-4767 - Kumar Ex.PW7/A Sale deed no. 6880/6881 - Ex.PW7/B PW-8 Data Ram Copy of form 32 - Ex.PW8/A Copy of certificate of incorporation - Ex.PW8/B Wedding out document - Ex.PW8/C Covering letter - Ex.PW8/D PW-9 Ashok Kumar Letter no. 147 dated 14.06.1995 - Ex.PW9/A FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 21/29 Copy of dispatched register - Ex.PW9/B Letter issued by G. S. Goyal, Chief Architech - Ex.PW9/C PW-10 Kapender Copy of sale deed Kumar document no. 8263 dated 05.07.1988 - Ex.PW10/A PW-11 Bal Krishan Sale deed document no. Goyal 330, 331 and 332 dated 24.01.1990 are Ex.PW11/A, B & C. Sale deed document no. 281 dated 31.03.1987 - Ex.PW11/D PW-13 Surender Accounts Opening Form Kmar Gandhi of Tirupati Builders - Ex.PW13/A Letter of Sh. B. K. Gupta - Ex.PW13/B Letter no. BR/SKP/F- 12/16/18 dated 10.04.1996 - Ex.PW13/C PW-14 R. D. Trivedi Receipts are Ex.PW14/A to Ex.PW14/K Receipt of amount of Rs. 13,040/- - Ex.PW14/A1 Documents regarding receipts Ex.PW14/M Statement u/s 161 Cr.P.C of R. D. Trivedi - Mark X PW-15 Smt. Nirmal Receipt dated 01.03.1989 Khana of Rs. 37,800/- - Ex.PW15/A Receipt dated 26.09.1989 of Rs. 9,450/- - Ex.PW15/B Receipt dated 04.09.1990 - Ex.PW15/C Documents relating to plots - Ex.PW15/D PW-16 Tej Pal Singh Tenancy agreement dated FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 22/29 12.10.1985 - Ex.PW16/A Copy of rent agreement marked PW16/B PW-18 ACP Documents attached with Satyavir Singh ROC Ex.PW8/D are Mark X1 to X8, PW8/A, PW8/B, Mark PA, PB, PC and PD (colly) Copies of letter written to Managers of different banks are Ex.PW18/Q1 to Q8 Photocopy of list of member - Mark A Photocopy of certificate of Registration - Mark B. Photocopy of General Power of Attorney - Mark C Photocopy of Cutting of newspaper regarding Tirupati Vihar advertisements - Mark D (colly). Photocopy of details of Tirupati Township - Mark E. Photocopy of receipts vide seizure memo Ex.PW2/B - Mark F, G, H, and I. Receipt produced by Bharat Bhushan Khanna - Ex.PW18/B and Mark PA, PB and PC Cutting of photocopy of advertisement - Ex.PW18/C - Mark J Photocopy of certificate of Incorporation Mark K Copy of letter of Ravi Kant - Mark L alongwith details of Payment - Mark M Original receipts of FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 23/29 Tirupati Associates of Ravi Kant are Ex.PD and PE. Letter sent by Rakesh Kumar on behalf of Tirupati Associates to R. K. Gupta - Ex.PF. Certain documents given by Mrs. Manju Saxena - Ex.PW18/H. Documents given by Pradeep Aggarwal - Ex PW18/I Documents given by Mrs. Veena Singh - Ex PW18/J. Documents given by Sh R. D. Trivedi - Ex PW14/M and Ex.PW18/K. Documents given by Sh. U. N. Kohal - Ex.PW18/M. Arrest memo of accused Raj Kumar - Ex.PW18/N 53 PW-7 witness from Sub Registrar Office has proved that a sale deed
was executed in the year 1985 between Smt. Krishna Aggarwal and M/s Tirupati Builders through Rajender Mittal.
54 PW-8 is a witness from ROC who produced the record of the company Tirupati Builders (Delhi) Private Limited (Ex.PW8/A) as per which accused Rajinder Mittal was one of the founder Directors of the company Tirupati Builders (Delhi) Pvt. Ltd. As per records he had voluntarily resigned from the directorship of the company on 20.01.1986. However, he again became the director of the company on 21.08.1991.
55 From perusal of testimonies of various public witnesses/victims especially PW3 Ravi Kant Gupta, PW4 C.P.Gupta, PW5 Pradeep Kumar Aggarwal, PW14 R.D. Trivedi and PW15 Nirmal Khanna, it is evident that substantial dealings qua the booking of the plots and receiving money were done by accused Rajinder Kumar FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 24/29 Mittal. He was actively involved in making representations to the victims regarding the sale of plots and having purchased the land by the company.
56 At the very outset, Ld. Counsel for accused argued that many of the public witnesses stated in Court that they have already received their respective amounts and they do not want any further action against accused, therefore, the offences stand compounded. 57 I find no conviction in the said argument since many witnesses gave their entire testimonies and they did not desire to compound offences. However at the end of the statement or cross-examination, some of the witnesses (i.e. PW3, PW4 & PW5) admitted that they have been returned their amount but there are no statement to the effect that they wants to compound the offences against the accused persons. In the absence of such statements seeking compounding of offences and in the absence of passing of speaking orders by the Court for giving permission for compounding of such offences as per Section 320 Cr.P.C., the depositions of said witnesses are good testimonies in the eyes of law.
58 Even if it is presumed that some of the witnesses (i.e. PW3, PW4 & PW5) had compromised the matter with the accused Rajender Mittal and also stated that they do not want any further action against him, in that case also there are various other witnesses, namely, PW1A Shri K.L Verma, PW2 Shri Satender Kr, PW6 Shri K.B. Saxena, PW12 Smt. Manju and PW14 Shri R.D. Trivedi and PW15 Nirmal Khana who did not whisper even a single word for compromise of offences rather they categorically deposed that neither their amount was refunded nor any plot was given to them. Further, the IO has disclosed that there were more than 300 persons/victims who were cheated and accordingly the offences can be compounded when matter is settled with all of them as per Section 320 Cr.P.C. Accordingly, there is no FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 25/29 ground for giving any weight to the submissions of ld. Defence counsel regarding compounding of offences.
59 As discussed above victims examined as PW3, PW4, PW14 and PW15 have categorically deposed that they had dealt with accused Rajinder Mittal directly for the purpose of booking of their plots, making payment of various installments, giving of promises/ inducements for transferring of land, etc. PW3 categorically deposed that he had met both Rajinder Mittal and convict Rakesh Kumar at main office situated at Shakarpur and they had told him about main project by the name of Tirupati Vihar situated near Hindon Canal and Nijamuddin Highway. Being induced by representation made, he had booked a plot admeasuring 160 sq. Yards and had made payment to the accused persons. When he came to know that the land actually belonged to GDA, he informed both accused Rajender Mittal and convict Rakesh Kumar, on which they directed him towards Gaurav Investment for buy back scheme, but his money was never returned nor any plot was given to him. He specifically identified accused Rajinder Mittal of Tirupati Associates. In his cross-examination, he even testified that when he went to the office of Tirupati Associates, accused Rajender Mittal was occupying a senior position than convict Rakesh as he was having a bigger cabin and had introduced himself as a partner. PW4 who is the father of PW3 has also corroborated his statement qua the role of accused Rajinder Mittal. 60 PW5 has also testified that he had also met Rajender Mittal in the office of Tirupati Associates and he was informed that accused Rajender Mittal was the Managing Director of Tirupati Associates. In his cross-examination he denied the suggestion that accused Rajender Mittal had never interacted with him at any time during the transaction.
61 PW14/R.D. Trivedi had categorically stated having met accused FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 26/29 Rajender Mittal along with staff in the office of Tolstoy Marg. He also deposed that Rajender Mittal had informed that he was the sole owner of the company and he had also shown him certain papers regarding NOC from GDA and purchase of land from local farmers. He deposed that most of the dealings were done with accused Rajender Mittal and after being satisfied with the representations made by accused Rajender Mittal, he had deposited money for the registration of plot. Accordingly, as per his deposition accused Rajender Mittal was actively involved in the fraudulent and dishonest representation being made regarding the deal in question.
62 PW15/Smt. Nirmal Khanna has also testified in her cross-
examination that when she had gone to the office of accused persons for the first time, four persons including accused Rajender Mittal were present there.
63 PW16/Tej Pal Singh has also deposed that accused Rajender Mittal used to sit in the office at A-115, Vikas Marg, Shakarpur, Delhi, which was given on rent by him to accused Rajender Mittal and convict Rakesh Kumar and he had seen a board of Tirupati Associates affixed on the said premises.
64 Accused Rajender Mittal has simply denied his involvement in the case. It is also submitted that he had nothing to do with Tirupati Associates and was merely a director in Tirupati Builders (Delhi) Pvt. Ltd. and that too only uptil 20.01.1986. There is no document collected by the IO to connect him with the Tirupati Associates and accordingly, there is no evidence against him for connecting him with the present case.
65 In the light of evidence discussed above and categorical occular testimony of various vicitims to the effect that accused Rajender Mittal had represented himself to be connected with Tirupati Associates and had also represented that Tirupati Associates had purchased certain FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 27/29 lands from the farmers and were authorised by GDA to make further sales/constructions, I have no hesitation in holding that the accused Rajender Mittal played a pivotal role in inducing the gullible buyers of plots by giving false promises without there being any sufficient land, its clear title and permission of the concerned authority by falsely claiming that the lands were available for sale being duly approved and freehold. Moreover, accused Rajender Mittal did not fulfill his promises by allotting the original assured piece of land or the alternative plots or by refunding the due amount to the buyers. I thus, hold that the prosecution succeeded in proving the offence of cheating punishable u/s 420 IPC against accused Rajender Mittal without any reasonable doubt.
66 Accused Rakesh Kumar has already been convicted in the present case for offence u/s 420 IPC on the same evidence. The conviction order dated 08.06.2016 is already upheld by Ld.Appellate Court vide order dated 27.08.2016. Accused Rajender Mittal has been unable to carve out any different case than that of Rakesh Kumar. It is only argued that convict Rakesh had signed various agreements and receipts while signatures of accused Rajender Mittal are not present on any documents. To my mind mere absence of signatures of accused Rajender Mittal on agreements and receipts is not sufficient to absolve him of the liability for his acts of cheating which are evident from the ocular testimonies of victims and cheated persons as discussed above.
67 Since the amounts deposited for purchase of plots were not refunded nor any original/alternative plots were given to the respective buyers, it is held that the said amount which was entrusted in good faith for purchase/allotment of land was converted to his own use or misappropriated by accused Rajender Mittal. Accordingly, he is also liable for conviction for offence punishable under Sectin 406 IPC.
FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 28/29 68 As far as conspiracy part is concerned, the testimony of the witnesses clearly show that both convict Rakesh Kumar and accused Rajender Mittal were present in their offices and the assurances were led by both of them regarding the free hold plots. Thus, on reading the evidence, in its entirety, it is established that accused Rajender Mittal and convict Rakesh Kumar conspired with each other to cheat hundreds of innocent persons thereby causing wrongful loss to them (victims) and wrongful gain to them. Accordingly, I hold that the accused Rajender Mittal is also guilty for the offence under Section 120-B IPC read with Section 420/406 IPC for the offence of criminal conspiracy and is convicted for the said offence. CONCLUSION 69 In view of the overall evidence on record and the reasons given above, it is held that the prosecution has proved its case against accused Rajender Mittal beyond any reasonable doubt. Accused Rajender Mittal is accordingly convicted for offences under Section 406/420 IPC and under Section 120B read with 420/406 IPC. 70 Be heard on the point of sentence separately.
Digitally signed by SHIVALI SHIVALI SHARMA
Location: East District
ANNOUNCED IN THE OPEN COURT Karkardooma Courts Delhi
ON 31.01.2019
SHARMA Date: 2019.01.31 12:58:44
+0530
(SHIVALI SHARMA)
CMM (EAST)/KKD/Delhi/31.01.2019
Certified that this judgement contains 29 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/ 31.01.2019 FIR 468/1994 State Vs. Rajender Kumar Mittal & Others 29/29