Delhi District Court
State vs . Sat Pal And Others on 20 September, 2013
IN THE COURT OF SH. HEM RAJ: MM(WEST)09:WEST:
TIS HAZARI COURTS:DELHI
STATE Vs. SAT PAL AND OTHERS
FIR No : 530/1995
U/S : 420/34 IPC
P.S. : VIKAS PURI
1. Serial No. of the Case : 289/2/10
2. Unique ID No, of the : 0240R0055231996
3. Date of Commission of Offence : 1993
4. Date of institution of the case : 30.03.1996
5. Name of the complainant : Sh. Prabhu Nath
6. Name of accused & address : (1) Sat Pal S/o Gurdas Ram
R/oA27, Mahavir Enclave.
(2) Ganga Sagar S/o Late Sh. Ram
Rattan, R/oA28/B, Kesho Ram
Park, Vikas Puri, Delhi59.
7. Offence complained : U/S 420/34 IPC.
8. Offence charged with : U/S 420/34 IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : All Accused Acquitted
11.Date of Final Order : 20.09.2013
J U D G M E N T
1 Feeling aggrieved with the judgment dated 13.12.2011, whereby accused persons namely, Satpa, Ganga Sagar and Neelam were FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.1/23 acquitted, the complainant Parbhu Nath Sah challenged the same and filed an appeal in the Sessions Court. The Ld. Sessions Judge Sh. Raj Kapoor vide his order dated 13.3.2013 was pleased to set aside the judgment passed by this court and remanded back the case to this court with the directions to this court to reappreciate the case on the point of the admissibility of the document which has been marked in view of the judgment of Sudhir Engineering Company Vs Nitco Roadways Ltd, 1995 Rajdhani Law Reporter 286, and the testimonies of PW2 and PW3 and other prosecution witnesses as well. It would be worthwhile to mention here that during the pendency of the appeal accused Neelam had expired and the proceedings stood abated against her in the appellate court itself.
2. The criminal law machinery was set into motion in this case when the Court vide order dated 07.04.1995 directed the registration of the FIR while allowing the application of the complainant U/S 156 (3) Cr.P.C. In his complaint Ex. PW3/A, the complainant alleged that the accused Ganga Sagar introduced him to accused Neelam and Sat Pal who were running a business of property dealing. Further that on 02.02.1993, accused Neelam and Sat Pal, offered the complainant, a residential plot measuring 175 sq. yards registration no. 59, BlockB, Sainik Vihar, PartII for a consideration of FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.2/23 Rs. 410/ per sq. yards. He further alleged that he was told that accused Sat Pal was the owner of the said plot and the same was free from all encumbrances. He further alleged that on 19.02.1993, the complainant paid a sum of Rs. 2000/ in cash to accused No. 1 who executed a receipt in token of acceptance of money. A further payment of Rs. 10,000/ in cash was made to accused Sat Pal on 28.02.1993 and the payment was acknowledged by him on the same receipt dated 19.02.1993. The total cost of the plot was decided as Rs. 71,750/ only. It was further alleged that Rs. 60,000/ was further paid by way of a Bank Draft drawn on SBI, Uttam Nagar Branch which was received by accused Sat Pal on 03.04.1993. It was further alleged that thereafter the complainant contacted all the accused persons to hand over the plot and to execute the documents but neither the possession of the plot was given to him nor were the documents executed in his favour. The complainant then became suspicious and inquired whether the accused Sat Pal was the actual owner of the plot or not and on the inquiries from the local persons in the neighborhood, it came to his knowledge that accused Sat Pal was neither the owner of the said plot nor was he in the possession of the same. Accordingly, he filed a complaint against the accused persons for the commission of offence U/S 415/418/420/34 IPC. After the investigation, a chargesheet U/S 420/34 IPC was filed against the accused persons.
FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.3/23 3 In compliance of Section 207 Cr. P.C. the copy of the charge
sheet along with other documents were supplied to the accused. Later on, vide order dated 07.10.1997, charge for offenses under Section 420/34 IPC was framed my Ld. Predecessor in which it was brought to the notice of the accused persons that they all in furtherance of their common intention induced the complainant to purchase the plot which was never owned by accused Sat Pal. The accused persons pleaded not guilty to the charge and claimed trial.
4 In order to prove its case against the accused the prosecution examined a total number of four witnesses. 5 PW1 HC Randhir Singh was the DO in this case who proved the copy of the FIR as Ex.PW1/A. 6 PW2 was Sh. S.K. Ghai, Deputy Manager in SBI Bank, Bhikaji Cama Place branch who deposed that he was working as Dy. Manager in SBI, Uttam Nagar Branch in the year 19951996. He proved the copy of the order no.328 for Rs.60,000/ in the name of Satpal issued on FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.4/23 07.04.1993 in payment order register as Ex.PW2/A. He also proved the clearing slip under which the said pay order as Ex.PW2/B. He also proved the certified copy of the record of Banker's cheque register of SBI, Uttam Nagar Branch as Ex.PW2/C and the certified copy of clearing slip of Reserve Bank of India as Ex.PW2/D. 7 In his crossexamination he stated that he has not prepared the draft in question. He was not posted in the concerned branch in the year 1993. He has not seen the original record.
8 PW3 Prabhu Nath Shah is the complainant in this case who deposed that he is residing at A27, Keshavram Park, near Village Binda Pur, Uttam Nagar, Delhi and accused Ganga Sagar who was residing in his locality took him to the house of accused Neelima Devi who was R/o A27, Mahavir Enclave, PartII in gali no.2. Neelima for the purpose of showing one plot. Devi and Ganga Sagar took him to one Satpal who was running a property dealer shop in the name of "Jai Baba Dev Property Dealer" in Mohan Garden, Sainik Vihar, PartII. One plot bearing no.59 in Mohan Garden, Sainik Vihar, PartII was shown to him by the accused persons. Accused Satpat told him that the said plot measuring 175 Square yards FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.5/23 belongs to him and he is willing sell the said plot. Satpal further told him that he will charge Rs.410/ per Sq. Yrd and he charged Rs.2000/ in cash from him and gave him one receipt regarding that amount. After about one week i.e. on 28.02.2003 he had given cash of Rs.10,000/ to accused Satpal in the presence of accused Neelima and Ganga Sagar. A receipt dated 19.03.1993 was given to him by accused Satpat regarding the said amount. The total cost of the plot was fixed at Rs.71,750/ and accused Satpal gave him two months time for making the payment and execution of documents regarding Sale Deed of the plot. He further deposed that on 03.04.1993 he had given a bank draft of Rs.60,000/ drawn on SBI, Uttam Nagar to accused Satpal in presence of accused Ganga Sagar and Neelima. Accused Satpal had issued one receipt dated 19.02.1993 regarding the said amount. The accused persons had not executed any document regarding the salepurchase of the said plot. He went several times at the house of the accused persons for getting the possession of the said plot but they failed to give him the possession of the plot. He proved his complaint dated 12.09.1994 filed in the Court of Ld. CMM against the accused persons as Ex.PW3/A. In his crossexamination he deposed that he had filed a Civil Suit of recovery against accused Satpal, Neelima and Ganga Sagar and a decree for an amount of Rs.95,000/ had been passed by the Civil Court FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.6/23 against accused Satpal. He denied that accused Ganga Sagar had never come to him or took him to accused Neelima Devi. He had not made any inquiry regarding the ownership of the said plot. He denied that he had taken the possession of the said plot from accused Satpal and had got diged the earth boundary wall of the plot. He further deposed that he had filed Civil suit concerning the said plot against the accused persons six months prior to filing the present complaint / FIR. He also denied that he had filed a false case against the accused persons despite receiving the possession of the plot.
9 PW4 SI Mahender Singh has deposed that on 21.10.1995 he was posted at PS Vikas Puri. He further deposed that the complaint was handed over to him by Reader. After pursuing the complaint, he endorsed the same and handed over the same to DO for registration of the FIR. After registration of the FIR he investigated the matter and made search for the accused. He further deposed that during the investigation, he recorded the statement of Manager, SBI and supplementary statement of Prabhu Nath. 10 However, the aforesaid examination in chief was deferred at the request of Ld. APP for the State and PW4 again was recalled on FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.7/23 06.09.2003 for his further examination in chief. However, the Ld. APP sought the permission to defer the further examination of PW4 as the original agreement as well as receipt exhibited by the complainant were not available on the file and he sought the recall of the complainant and the summoning of the concerned Ahlmad of the Civil Court which was opposed by the Ld. Defence Counsel. The request for the Ld. APP was deferred for passing the appropriate Orders. Vide Order dated 28.07.2004, my Ld. Predecessor declined the request of the Ld. APP and the matter was posted for PE on 17.11.2004. The said Order was not challenged by the State. 11 PW4 was recalled for his further examination in chief on 14.12.2010. He was examined in chief and crossexamined on that day. 12 In his crossexamination on behalf of accused Neelam and Sat Pal, he admitted that he had not received any original document from the complainant. He went to the Registrar Office situated at Hastsal about the ownership of the property in question, but record was not present there. He stated that he had not filed any original receipt on the record about the payment / transaction between the complainant and the accused. He inquired from the neighbourers and came to know that no such plot exists. He further FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.8/23 stated that the bank had not given any original documents to him. 13 In his crossexamination on behalf of accused Ganga Sagar, he admitted that all payment were made to Sat Pal . He further stated that payment of Rs.2000/ as earnest money by Prabhu Nath Shah shows that accused Ganga Sagar admitted that he would also get 2% of the total sale consideration as his commission. He further stated that he had not inquired to the neighbourers of complainant about purchasing of the plot. He further stated that as per his investigation, Ganga Sagar was not a property dealer. 14 In his statement U/S 313 Cr.P.C. accused Sat Pal stated that he was an employee of Ram Chander Solanki and Balwan Singh who were the Property Dealers. When customers would come to their shop, they would ask him to show the plot to the prospective buyers. Further as per the directions of his employers, he took complainant to show him the plot in question. The complainant had taken the possession of the plot. Ram Chander and Balwan Singh had owed Rs. 1,30,000/ and as per the arrangements between the complainant and his employers, the complainant gave him a cheque of Rs. 60,000/ which payment was received by him in his account. Accused Neelam submitted that she has been falsely implicated in FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.9/23 this case. Accused Ganga Sagar stated that in the year 198788, his son was kept in wrongful confinement by the wife of the complainant and after 34 hours his son was found in his house. The complainant apologized in a Panchayati Agreement. He further stated that the complainant filed a false case in order to take revenge from him. The accused persons did not lead any defence evidence in their support.
15 I have heard the Ld. APP for the State as well as Ld. Counsels for the accused. I have also gone through the oral and documentary evidence available on the record carefully.
16 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
17 On the other hand, the Ld. Defence Counsels have argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.10/23 reasonable doubt. It has been further submitted that there are material contradictions in the oral testimonies and the documentary evidence on the record which rendered the case of the prosecution as doubtful and the same has fallen short being proved beyond reasonable doubt. He further submits that the prosecution has failed to prove the essential ingredients of the offence of cheating in as much as, there was no false representation on the part of the accused nor has it been proved on the record that the accused had any fraudulent or dishonest intention at the time of making of promise, if any, on the record. He further stated that in fact there was no false representation made by the accused to the complainant. In short, it has been submitted that no offence of cheating has been proved by the prosecution in this case.
18 In the present case the prosecution has filed the charge sheet against the accused for the commission of offence of cheating under Section 420 IPC. The charge against the accused has also been framed under Section 420 IPC.
19 The offence of Cheating has been defined under section 415 IPC in the following manner:
Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.11/23 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 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.
20 In the judgment of Harmanpreet Singh Ahluwalia V/s State of Punjab (2009) 7 SCC 712 in Para 25, His Lordship, Hon'ble Mr. Justice S.B. Sinha, elaborated the ingredients the offence of cheating as under: " 25. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
"(i) deception of a person either by making a false or misleading representation or by other action or omission; "(ii)fraudulently or dishonestly inducing any person to deliver any property; or
(iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Penal Code is existence of an intention (sic a fraudulent or dishonest intention at the time) of making initial promise or existence thereof from the very beginning of formation of contract."
21 In the judgment of State of Kerala Vs. A. Pareed Pillai and Anr, AIR 1973 SC 326I, in para 16, their Lordships of the Hon,ble Supreme FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.12/23 Court observed as under:
16. ".........................................................To hold a person guilty of the offence of cheating. It has to be shown that his intention was dishonest at the time of making the promise.
Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise." 22 Similarly in Hridya Ranjan Prasad Verma Vs. State of Bihar, (2000)4 SCC 168, in para 15 it was observed as under:
"15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed."
23 The Hon'ble Supreme Court again in the judgment of B. Suresh Yadav Vs.Sharifaa Bee,(2007) SCC107, in para 13 held as under:
"13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.13/23 litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so."
24 Again in Hira Lal Hari Lal Bhagwati v. CBI, New Delhi, 2003(3) RCR(Criminal) 273 : 2004(1) Apex Criminal 274 : [(2003)5 SCC 257], the Hon'ble Supreme Court in para 14 opined :
"I4 It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as officebearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise."
See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005)3 SCC 670] and Indian Oil Corporation v. NEPC India Ltd. & Ors., 2006(3) RCR(Criminal) 740 : [(2006)6 SCC 736].
FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.14/23 25 Now in view of the aforementioned legal position as enunciated
by the Apex Court, it has to be seen as to whether the prosecution has been able to prove the case against the accused beyond reasonable doubt which is consistent with the view taken by the Apex Court or not. 26 In view of the settled position of law as discussed herein above and the oral as well as the documentary evidence on the record I am of the considered opinion that the prosecution has miserably failed to prove the case for the commission of the offence under section 420 IPC against the accused beyond reasonable doubt.
27 The Ld. Counsel for the accused persons have submitted that PW3 Prabhu Nath Shah is not a reliable and trustworthy witness and on a careful appraisal of his testimony, the same suffers from reasonable doubts and the conviction of the accused persons cannot be warranted on such a statement. However, I find no force in the submissions of the Ld. Counsel and find that PW3 Prabhu Nath Shah remained consistent all along with his original complaint. He withstood the test of crossexamination with aplomb.
FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.15/23 The credibility of this witness could not be shaken despite the lengthy cross examination conducted by the Ld. Defence Counsel. He has gone the whole hog with his original case. I do not find any material contradiction or deviation in his testimony from his original case and therefore, in my considered opinion, the witness is a reliable witness and if taken as a whole his testimony inspires confidence, trust and reliability. Accordingly, I reject the contention of Ld. Defence Counsels being without any force in the same.
However, merely that the testimony of PW3 has been found to be consistent, reliable and trustworthy does not mean that the prosecution has successfully proved the case against the accused persons beyond reasonable doubt. Still in my considered opinion the prosecution has miserably failed to prove the case against the accused for the commission of the offence under sectio 420 IPC. Firstly, the prosecution has not proved on the record the receipt evidencing the acceptance of payment by the accused Sat Pal in lieu of the promise of selling the plot in question to the complainant. The said document, which was only a photocopy only marked on the record. No steps were taken by the prosecution to produce the same document on the record as per law. When the Court rejected the oral prayer of the Ld. APP regarding the summoning of the file of the Civil Court containing the said receipt, the prosecution should have challenge the Order FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.16/23 and made sure that the receipt MarkA is proved on the record in accordance with law. However, the same was not done in this case. The IO has also not taken the original receipt from the file of the Civil Court and not sent the same to the CFSL for comparison so that it would have been proved that the receipt bears the signatures and the handwriting of accused Sat Pal. The IO has also neither taken the specimen signatures and the handwritings of the accused Satpal to prove that in fact the accused had his handwritings and signatures on the same.
28 Secondly, the prosecution has not proved as to how the case U/S 420 IPC has been proved against the accused. To prove the case against the accused U/S 420 IPC, the prosecution was required to prove that there was dishonest or fraudulent intention of the accused at the time of making the promise. In Vimla Vs Delhi Administration, AIR 1963 SC 1572, the Hon'ble Supreme Court observed that the expression "defraud" involves two elements,namely, deceit and injury to the person deceived. It is therefore clear on the record that the deception is the main ingredient of the offence of the cheating. I do not find that in the present case the prosecution has led any evidence on the record that the accused played the deception on the complainant. The prosecution has not led any evidence on the record that FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.17/23 the accused Sat Pal was not the owner of the plot in question. Who was the owner of the aforesaid plot if accused Sat Pal was not the owner of the said plot, has not been proved on the record. IO has not examined the real owner of the plot in question. No documentary evidence is available on the record that some particular person other than the accused Satpal was the owner of the plot in question. IO stated that he did not found the ownership documents at the office of the Registrar, situated at Hastsal. He stated that he inquired from the neighbors and then he came to know that no such plot exists. However, no such neighbor has been examined by the IO or has been cited as a witness who would have proved that there was no such plot bearing No. 59, Mohan Garden, Sainik Vihar, PartII, Delhi. No documentary evidence either has been led on the record to show that no such plot ever existed in the area. Accordingly, it has not been proved on the record that the promise/representation made by accused Sat Pal to the complainant was a false promise/representation which accused Sat Pal knew that he was making the false promise to the complainant. Unless and until, it was proved on the record that the accused Sat Pal made a false representation of selling the plot to the complainant which never existed, in my opinion, no cheating was done by the accused to the complainant. Although, the accused Sat Pal has admitted that he received the payment of Rs. 60,000/ by way of bank FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.18/23 draft from the complainant but the prosecution further required to prove that such payment was received in lieu of the promise of selling the plot in question to the complainant which plot was never in existence or the accused Sat Pal was never the owner of that plot. Though the accused Satpal has also admitted in his statement under section 313 Cr.P.C that he received the payment of Rs. 60000/ from the complainant but still the said payment does not make a case under section 420 IPC unless the prosecution proves some deception on the record the case against the accused could not have been proved.
29 Further, in his crossexamination, complainant stated that he did not make any inquiry, if accused Sat Pal was the owner of the plot in question. It means that complainant has not stated specifically in his statement that accused Sat Pal was not the owner of the said plot. The prosecution should have obtained the receipt MarkA lying in the Civil Court and after collecting the specimen signatures and handwriting of accused Sat Pal should have sent the same to FSL for comparison to ensure that the same bear his handwriting and signatures and claiming himself to the owner of the plot he executed the same whereas he was not the owner of the same. Further coupled with this fact, the prosecution should have proved that plot FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.19/23 bearing No. 59, never existed at any point of time nor the accused Sat Pal was the owner of the same. Merely the decree has been passed by a Civil Court does not mean that prosecution can be said to have proved the case against the accused. It is well settled proposition of the law the civil cases are decided on the preponderance of probabilities whereas the criminal cases are decided on the proof of beyond reasonable doubt.
30 In his entire testimony, the complainant has not stated anywhere that accused Sat Pal was not the owner of the plot nor such plot ever existed despite the same he was induced to purchase the said plot and being induced by the accused persons and believing their false representation to withdrew he went on to make the payment to the accused persons. He has merely stated that he asked all the accused persons to get prepared the documents of the plot but the same was not done by the accused persons nor the possession of the said plot was handed over to him then he requested them to refund his money which is also not refunded to him. Therefore, it is clear on the record that nowhere the complainant has leveled the allegations of cheating against the accused persons. Even, if it is admitted that the accused Sat Pal alongwith other accused persons promised to sell the plot in question and also received the money as alleged FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.20/23 by the complainant by way of receipt MarkA and that he subsequently did not fulfill his promise and further that he neither executed the documents nor refunded the money to complainant, does not make the case to fall in the purview of Section 420 IPC as there is no evidence of cheating. It is the case of mere failure of fulfilling the promise and the same would make the case one under the Civil Law and not the Criminal Law. Admittedly, a decree has been passed against accused Sat Pal by the Civil Court. But the prosecution has miserably failed to make a case U/S 420 IPC. As it has been settled by a plethora of the judgments before convicting an accused for the offence of cheating U/S 420 IPC, the false representation made by the accused has to proved on the record, which, in my considered opinion the prosecution has failed to prove. Since, the offence of the cheating has not been proved by the prosecution accordingly, the question of the common intention against the accused persons does not arise as well. 31 The Ld. Session court has directed this court to reappreciate the case on the point of admissibility of the document MarkA and MarkB in view of the judgment of Sudhir Engineering Company (supra). I have gone through the aforesaid judgment carefully and I am of the considered opinion that the aforesaid judgment does not come to rescue the case of the FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.21/23 prosecution. In the said judgment, the Hon'ble Supreme Court has laid down that marking of a document as an exhibit in any manner whatsoever is only for the purpose of identification and the endorsement of an exhibit number on a document has no relation with its proof. It is an admitted fact that the documents MarkA and B were not proved on the record as per law. Neither the IO has placed the original documents on the record nor the prosecution has taken any steps for the proof of the aforesaid documents in accordance with law. Perusal of the record reveals that on 03.07.2004, the examination of PW4 was deferred at the request of Ld. APP for the state on the ground that original agreement and receipt executed by the complainant were not available on the file and accordingly the complainant i.e. PW3 and concerned Ahlmad of the civil court sought to be called. Thereafter, the matter was adjourned for 17.04.2004 for appropriate order on the request of ld APP and ultimately vide order dated 28.07.2004 the then Ld. MM declined the request of the ld APP for further investigation on the ground that the case pertained to the year 1995. The said order was never challenged by the prosecution or the complainant. Hence, I have no hesitation in holding that the document MarkA and B were not proved on record in accordance with law as they are only the photocopies and they can not be read into evidence.
I have also gone through the testimonies of PW2 S.K. Ghai FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.22/23 and PW3 complainant Prabhu Nath Shah. Having gone through their testimonies, still in my opinion the case of prosecution for the case of cheating U/s 420/34 IPC can not be said to be proved for the offence beyond reasonable doubt in view of the observations made by me here in above.
32 From the above said discussions, I am of the opinion, that the prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubt on the record. Therefore, accused Satpal, and Ganga Sagar are hereby acquitted of offences U/S 420/34 IPC, they have been charged with. They be set at liberty forthwith. Their bail bonds are canceled. Surety bond are discharged. However, B/Bs furnished by the accused persons in view of the mandate of section 437A of Cr.P.C shall remain enforceable for a period of six months from today. Original documents, if any, be returned to the concerned parties after the cancellation of the endorsements, if any, after the confirmation of their identity. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 20 SEPTEMBER, 2013 MM09:WEST:THC
TH
20.09.2013
FIR No. 530/1996 STATE V/s SAT PAL ETC. PAGE No.23/23