Delhi District Court
Digitally vs . on 9 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 80006/2016
Unique Case ID No. -: DLSH020004932009
FIR No. -: 133/2009
Police Station -: Harsh Vihar
Section(s) -: 419/420/468/471/120B
IPC
In the matter of -
STATE
VS.
1.SANDEEP RAWAT S/o Sh. Baneshwar Rawat R/o H. No. B-2/891, Gali No. 33, Harsh Vihar, Delhi-94.
2. SANJEEV RAWAT S/o Sh. Baneshwar Rawat R/o H. No. B-2/891, Gali No. 33, Harsh Vihar, Delhi-94.
3. BANESHWAR RAWAT S/o Lal Singh R/o H. No. B-2/891, Gali No. 33, Harsh Vihar, Delhi-94.
4. SUSHIL KUMAR S/o Sh. Lala Ram.
R/o H. No. A-2/205, Gali No. 7, Meet Nagar, Delhi.
.... Accused
1. Name of Complainant : Ram Dass Sandeep Rawat, Sanjeev
2. Name of Accused persons : Rawat, Baneshwar Rawat and Sushil Kumar Offence complained of or
3. : 419/420/468/471/120B IPC proved Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 1 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:25:50 +0530
4. Plea of Accused : Not guilty Date of commission of
5. : 13.10.2008 offence
6. Date of Filing of case : 26.10.2009
7. Date of Reserving Order : 27.04.2023
8. Date of Pronouncement : 09.05.2023
9. Final Order : Acquitted Argued by -: Sh. Nadeem, Ld. APP for the State.
Sh. C.P. Singh, Ld. Counsel for accused Sushil. Sh. Ashok Thagal, Ld. Counsel for the remaining accused.
INDEX -
HEADING PAGES 1. Factual Matrix 2-3 2. Investigation and appearance of accused 3-4 3. Prosecution Evidence 4-9 4. Statement of accused and defence evidence 9-10 5. Arguments 10-11 6. Analysis 11-25 7. Conclusion 25-26
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that in the year 2008, the complainant Ram Das had sold his house through the accused Sandeep Rawat, who works as a property dealer, for a consideration of Rs. 9,75,000/-. After the deal was finalized, the accused Sandeep showed him a plot measuring 50 sq. yds., located in A-2 Block, 20 Foot Road and informed him that the same is available for sale for around Rs. 10,00,000/-, Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 2 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:26:04 +0530 which was similar to the amount the complainant had received for the house he had sold through the accused. It is alleged that the complainant handed over Rs. 50,000/- to the accused Sandeep as earnest money and thereafter, on one day, accused Sandeep alongwith his brother Sanjeev and owner of the said plot Pawan Sharma came to the house of the complainant and obtained his signatures/thumb impression on some documents. The complainant gave the agreed amount of Rs. 10,00,000/- in front of his wife Kavita to the accused Sandeep alongwith a commission of Rs. 20,000/- and accused gave him the documents of property.
2. After a month, the complainant asked accused Sandeep to get the plot demarcated. On 20.11.2008, the accused Sandeep took the complainant on his motorcycle on the pretext of meeting the owner of the plot. After reaching Murad Nagar canal, he shot the complainant and assuming him dead, left the spot. It was later found that no person by the name of Pawan Sharma existed and accused Sushil posed as Pawan Sharma at the time he met the complainant. It is alleged that the complainant was duped of his money by the accused persons. As such, it is alleged that the accused persons have committed the offences under Section 420/468/471/34 IPC, for which FIR No. 133/2009 was registered at P.S. Harsh Vihar.
INVESTIGATION AND APPEARANCE OF ACCUSED -
3. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 3 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:26:16 +0530 persons were summoned to face trial.
4. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 419/420/468/471/120B IPC was framed against the four accused persons. The charge was later amended during the trial but the offences remained the same. All the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
5. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : HC Manoj (duty officer) PW-2 : Ram Das (complainant) PW-3 : Kavita (eye-witness, wife of complainant) PW-4 : Pradeep Kumar (document writer) PW-5 : Chander Bali (purchaser of property) PW-6 : Hari Sharan Aggarwal (owner of property) PW-7 : Dinesh Verma (banker) PW-8 : S. K. Singh, Advocate (prepared documents) PW-9 : Sheoraj Singh (finger print expert) PW-10 : ACP Virender Singh (IO) PW-11 : HC Bittu Singh (deposited documents at FPB) PW-12 : SI Rakesh Kumar (enquired into the complaint) SI Subodh Panwar (filed supplementary PW-13 :
chargesheet)
PW-14 : Dr. Devek Ram (FSL expert)
DOCUMENTARY EVIDENCE :
Ex. PW1/A : FIR
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 4 of 26
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.05.09
12:26:25
+0530
Ex. PW1/B : Rukka
Mark X : Complaint to DCP
Ex. PW2/A : Statement of Ram Dass
Mark Y : GPA dated 13.10.2008
Mark Z : Agreement to sell
Mark A : Deed of will
Mark B : Possession letter
Mark P : Statement of witness Kavita
Ex. PW3/A : GPA
Ex. PW3/B : Possession letter
Ex. PW3/C : Deed of will
Ex. PW3/D : Receipt of Rs. 1 Lakh
Ex. PW3/E : Agreement to sell
Ex. PW3/F : Arrest memo
Ex. PW3/G : Personal search memo
Ex. PW3/H : Pointing out memo
Ex. PW5/A
: Documents of the property
(OSR)
Ex. PW7/A : Account statement of Sandeep
Ex. PW7/B : Account opening form of Sandeep
Mark X : Statement of S. K. Singh
Ex. PW9/A : Report regarding finger print examination
Ex. PW9/B : Forwarding letter to SHO
Ex. PW10/A : Rukka
Ex. PW10/B : Disclosure statement of accused Sandeep Rawat
Ex. PW10/C : Arrest memo
Ex. PW10/D : Disclosure statement of accused Sandeep Rawat
Ex. PW10/D1 : Disclosure statement of accused Sushil Kumar Ex. PW10/E : Forwarding letter Ex. P1 (colly) : CCTV footage of ATM Ex. PW10/F : Arrest memo Ex. PW10/G : Arrest memo Ex. PW10/H : Personal search memos and Ex. PW10/I Ex. PW10/J : Forwarding letter Ex. PW10/K : Application for taking specimen signature Ex. PW12/A : Inquiry report Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 5 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09
12:26:35
+0530
Ex. PW13/A : FSL report
Ex. PW14/A : Opinion report
Ex. PW14/B : Specimen signature and writings
6. Ram Dass (PW2) is the star witness of the prosecution, being the complainant and victim. He entered into the witness box and stated on oath that he works as a confectioner. He had sold a property through the accused Sandeep Rawat for a consideration amount of Rs. 9,75,000/- and thereafter he shifted to a rented accommodation. On 10.10.2008, the accused Sandeep Rawat showed him a plot and told him that it was a good property, which he should purchase. He gave Rs. 50,000/- to the accused as earnest money and thereafter, on 13.10.2008, accused Sandeep alongwith Sanjay, Baneshwar and Sushil, who posed as owner of the property, came his house and he paid them Rs. 9,70,000/-. He also annexed his thumb impressions on certain documents. He demanded possession of the property from Sandeep, who promised to return in the evening but never came. For a month, the accused delayed handing over possession of the property and then on 20.11.2008, accused Sandeep took him to meet the owner of the property. On the way, Sandeep stopped the motorcycle and two other persons came there. Thereafter, accused Sandeep and one other person shot the complainant and he became unconscious. He was taken to the Hospital, where he was treated and after getting discharged, he enquired about Pawan Sharma but to no avail. He identified all the accused persons.
6.1. During the cross examination, Ram Dass (PW2) stated that he did not know the date on which he sold his property Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 6 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:01 +0530 for Rs. 9,75,000/-. He did not remember the details of the purchaser and stated that the documents were signed by him, after they were prepared by accused Sandeep. He did not have possession of any copy of the document pertaining to the sale. He stated that on 10.10.2008, he had gone to see the property with accused Sandeep and Pawan. He stated that he had not executed any receipt regarding the earnest money but stated that it was given in presence of Pawan and Chaman Lal. He stated that the amount of Rs. 9,70,000/- was given in cash, in presence of Chaman Lal, Pawan Sharma and Sandeep, on 13.10.2008. He stated that he had informed the police regarding the incident of 20.11.2008 but did not remember the mobile number from which the call was made. He stated that his wife had made a complaint regarding cheating in the present matter in December, 2008. He stated that his wife was present at the time of the deal. He admitted not making any inquiry from the local authority regarding the status/ownership of the property. He stated that the documents regarding the deal were read by some neighbor after he came to know about the cheating. He stated that he had sold his property vide GPA etc, which were not registered. His wife did not accompany them to the office of the Sub-registrar. He stated that the documents qua the sale of his plot were prepared at his house and he signed the stamp papers which were already typed. He handed over the ownership documents to the purchaser. He stated that he had asked accused Sandeep to hand over the chain of documents pertaining to the property and the identity card of the owner, but they were not given to him. Still, he relied upon the accused. He stated that he had taken Rs.
9,70,000/- from his brother-in-law Suresh Kumar, on 12.10.2008.
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 7 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:10 +0530
7. Kavita (PW3) is the wife of the complainant, whose deposition is similar to her husband, PW2. She entered into the witness box and stated that they had sold their house through accused Sandeep and then her husband contacted the accused Sandeep for purchase of some property. A plot was shown to her husband by the accused Sandeep and he informed that the plot belongs to one Pawan Sharma. One day, Sandeep came to their house with the documents and her husband paid him Rs.
10,00,000/- and gave Rs. 20,000/- as commission to Sandeep. However, the possession of the property was not handed over despite passage of one month and one day, accused Sandeep came to their house and took her husband to see the plot. She then came to know that her husband has been shot by the accused. Later, they came to know that the documents were forged and the plot does not belong to any Pawan. She identified the accused.
7.1 During her cross examination done by Learned APP for the State, Kavita (PW3) admitted that she had sold her plot to one Chandrabali for Rs 8,95,000/-. She admitted the questions put to her by the learned APP for the State regarding the transaction etc. When questioned by the learned counsel for the accused, the witness stated that she did not know from where the papers pertaining to the sale were prepared. She stated that the property which they sold was in her name, and it was sold for Rs. 10,00,000/-. She admitted that they did not enquire from the neighbours when they visited the plot in question.
8. ACP Virender Singh (PW10) is the IO in the present case, who stated on oath that on 05.07.2009, he was Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 8 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:20 +0530 marked the case after the inquiry done by ASI Rakesh Tyagi. He deposed about recording of statement of complainant Ram Dass, preparing rukka and registering the FIR. He deposed about the arrest of the accused persons, collection of the bank records etc. He took the specimens of the accused persons and transmitted the same for expert examination. He also identified the accused persons present from the dock.
8.1 During cross-examination, ACP Virender Singh (PW10) stated that he had not recorded statement of any neighbor and he did not remember the dates mentioned in the CCTV footage. He stated that the complainant had shown him the receipt of money later on. He stated that when he arrested the accused Sushil, the wife of the complainant, Kavita, also reached there. He admitted not taking any photographs of the plot. He denied the suggestions of the defence.
9. The remaining prosecution witness supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
10. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused persons were recorded without oath under Section 281 read with Section 313 CrPC. The accused persons stated that they are falsely implicated in the present case and are innocent. Accused Sandeep stated that his signatures do not appear on any document and he did not execute any document. He stated that he has been falsely implicated by the Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 9 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:29 +0530 complainant in a case in Ghaziabad and in order to link that case, the present case was falsely lodged against him. Accused Sanjay stated that he has been falsely implicated only because he is the brother of accused Sanjay. Similarly, accused Baneshwar stated that he has been implicated only because he is the father of the accused Sandeep. Accused Sushil stated that he had a dispute with the complainant Ram Das as he was working as his helper. He stated that the complainant was a property dealer. No defense evidence was led by the accused persons in the present case.
ARGUMENTS -
11. I have heard the learned APP for the State and learned counsel for the accused at length. I have also have given my thoughtful consideration to the material appearing on record.
12. It has been argued by the learned APP for the State that all the ingredients of the offences are fulfilled in the present case. He submits that the complainant and his wife have categorically deposed about the manner in which they have been cheated by the accused persons, who conspired to rob off the hard-earned money of the complainant, who trusted the accused Sandeep to purchase a house. He has argued that the documentary evidence on record has corroborated the ocular version of the witnesses and the case of the prosecution is proved beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offence.
13. Per contra, learned counsel for the accused persons except Sushil has argued that the State has failed to establish its case beyond reasonable doubt. He has argued that there is considerable delay in lodging of the present FIR, which has not Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 10 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:39 +0530 been explained by the prosecution in any manner. It is argued that the star witnesses of the prosecution are not reliable as the complainant has materially improved his version in the Court and there are glaring contradictions and inconsistencies in the version of the prosecution witnesses. It is argued that the testimony of the prosecution witnesses cannot be relied upon. Learned Counsel for accused Sushil has argued that the witness of the prosecution has come up with a completely new story on the stand and the accused has only been implicated as he was a helper of the complainant, and they had some disputes. He submits that the inconsistencies in the testimonies of the prosecution witnesses ought to be factored, as the same do not prove the offences beyond reasonable doubt. He has contended that the IO had taken the specimen signatures/thumb impressions of the accused while in police custody and had later obtained the permission of the Magistrate, as an afterthought. He submits that the FSL result is thus inadmissible in evidence as against the accused. Learned Counsel for accused Sushil has relied upon Mohs. Yunus vs. State 2010 (2) JCC 1319, Mukimuddin vs. State 1991 Cri. L. J. 2903 and Rakesh Kumar vs. State 2004 1 JCC 110 in support of his contentions. As such, it is prayed that the accused persons be acquitted for the said offence.
ANALYSIS -
14. The accused persons have been charged for the offences of cheating and dishonestly inducing delivery of property (S. 420 IPC), forgery for purposes of cheating (S. 468 IPC) and using as genuine a forged document or electronic record (S. 471 IPC) in the present case. They have also been charged Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 11 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:48 +0530 with the offence of criminal conspiracy (S.120B IPC). The essential ingredients of the offence of cheating, as punishable under Section 420 IPC, were recently culled out by the Hon'ble Supreme Court in Prof. R.K Vijayasarathy Vs. Sudha Seetharam (2019) 16 SCC 739, in the following terms-:
"16. The ingredients to constitute an offence of cheating are as follows:
16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:
16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
18. Section 420 of the Penal Code reads thus: "420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
19. The ingredients to constitute an offence under Section 420 are as follows:
19.1. A person must commit the offence of cheating under Section 415; and 19.2. The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 12 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:27:56 +0530 Therefore, the burden is on the prosecution to prove the aforesaid ingredients of the offence. For the offence under Section 468, the prosecution has to first prove that the document is forged. It is also to be proved that the accused committed forgery in terms of Section 463 IPC, with the intent of cheating the victim. Thus, merely preparing a forged document without proving the requisite mens rea to cheat would not satisfy the requirements of the provision. Even for proving the offence of forgery simpliciter, the necessary mens rea is required to be proved by the prosecution. Further, as per Section 471 IPC, the basic conditions required for commission of offence under the provision are as follows-:
a. The document or electronic record must be forged, b. The accused should have used the said document/record as genuine, having knowledge or reason to believe that such document/record is forged, c. The said use of the document/record must be dishonestly or fraudulently.
Thus, all these conditions should be met before a person can be convicted of the said offence. The punishment of the offence is similar to that of the offence of forgery.
15. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
16. In order to prove the offences charged against the accused persons, the prosecution has relied on the testimony of 14 witnesses. Out of the said witnesses, the testimony of PW2 complainant Ram Dass as well as PW3, wife of the complainant Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 13 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:05 +0530 Kavita is of prime importance for the prosecution. Their testimonies are to be evaluated in light of the legal principles mentioned above.
17. From the overall appreciation of the testimonies of the star witnesses PW2 and PW3, this Court is of the opinion that the same cannot be relied upon beyond reasonable doubt. At the outset, it is noted that in the initial complaint of the complainant Ex. PW2/A, which forms the basis of the FIR, it is mentioned that the complainant had sold his plot through the accused Sandeep and he was looking to buy another plot via the said accused, who works as a property dealer. It is stated that the accused Sandeep had showed him a plot of 50 yd.² at A2 Block, Harsh Vihar and father of the accused, co-accused Baneshwar had told the complainant that the plot is a good property and he guaranteed that the owner of the plot is genuine. However, when the complainant entered into the witness box as PW2, he has made no mention in his examination-in-chief of the fact that the accused Baneshwar had guaranteed the genuineness of the owner of the property.
18. Further, it is seen that the deposition of the star witnesses of the prosecution with regard to the presence of the accused persons on the date of incident i.e. 13.10.2008, suffers from various contradictions. In his complaint Ex. PW2/A, the complainant has stated that one day, the accused Sandeep along with accused Sanjeev and owner of the property Pawan Sharma had come to their house along with the documents and his signatures and thumb impressions were obtained on certain documents, which were already typed. He has stated that his wife PW3 Kavita was a witness to the fact that on that day, he had Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 14 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:12 +0530 given accused Sandeep Rs.10 lakhs as the sale consideration along with Rs. 20,000/- as commission. He has stated that thereafter, the accused persons took the papers and money and left their house.
19. Presence of accused: As noted above, in his statement and the FIR, the complainant has stated that on the date of incident, three accused persons had come to their house.
However, when the complainant took the stand as PW2, he stated that on 13.10.2008, all the four accused persons had come to their house. In this regard, PW3 Kavita has stated in her examination-in-chief that the accused Sandeep came to their house along with the documents of the plot and her husband had paid him money on that day. However, when she was cross examined by the learned APP for the State in this regard, she agreed to the suggestion that on the day, not only the accused Sandeep, but his brother Sanjeev as well as owner of the property Pawan @ accused Sushil had come to the plot. Therefore, the version of both the star witnesses in this regard suffers from contradictions and it is not reliable on the point as to which of the accused persons had come to their house on the date of incident.
20. It is apposite to mention at this juncture that the evidence of the prosecution witnesses on this point is significant in this case as it is the case of the prosecution that after the initial inducement by the accused Sandeep by showing the complainant a plot, on 13.10.2008, the accused persons had dishonestly induced the complainant to part with his property (money) by portraying to the complainant that the accused Sushil Kumar is the owner and seller of the property namely Pawan Sharma. Therefore, the evidence on the point as to who was present on the Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 15 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:20 +0530 date of inducement and delivery of property assumes significance in the present matter. However, it is seen that PW2 and PW3 have taken different stands on this point and the fact as to who was present at the house of the complainant on 13.10.2008 is doubtful.
21. Delivery of property: Moving forward, it was incumbent upon the prosecution to prove the delivery of property by the complainant, on account of the dishonest inducement on part of the accused persons. In this regard, the complaint in the FIR and the statement Ex. PW2/A has stated that he had given Rs.50,000/- to the accused Sandeep as earnest money. Thereafter, on the day when the accused persons had come to his house, he had given a further sum of Rs.10 lakhs along with Rs.20,000/- as commission to the accused Sandeep. Therefore, as per the version of the complainant in the said statement, a total amount of Rs.10,70,000/- was given to the accused. However, before the Court, the complainant PW2 stated that he had given Rs.50,000/- to the accused Sandeep as earnest money and on the date when the accused persons had come to his house, he had given the remaining amount of Rs.9,70,000/- to the accused persons. During evidence in Court, the complainant has stated that he gave a total amount of Rs. 10,20,000/- to the accused. The complainant has thus given versions with respect to the money which was handed over Sandeep.
22. The wife of the complainant PW3, who is an eyewitness to the transaction of money, has stated that on that day, her husband had given Rs.10 lakhs to the accused Sandeep and an additional amount of Rs.20,000/- to him as commission. The version of both the witnesses is contradicted by the Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 16 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:28 +0530 document on record, the receipt Ex. PW3/D, which mentions that the complainant has paid Rs.1 Lakh to Pawan Sharma. Even in the agreement to sale Ex. PW3/E, it is mentioned that the sale consideration for the said plot is Rs.1,00,000/- (one lakh). Thus, the documentary evidence is different from the oral evidence on this aspect. The complainant has stated in his cross examination at one point that he had given the amount of Rs. 9,70,000/- in cash in currency notes of Rs. 1,000/-. At another point in the cross examination, he has stated that he had given Rs. 9,70,000/- by giving Rs. 9,00,000/- in currency notes of Rs. 1,000/- and Rs. 70,000/- in currency notes of Rs. 500/-. Thus, the complainant has given two different versions with respect to the delivery.
23. Pertinently, the prosecution witnesses have given contradictory explanations in their testimonies regarding the discrepancy appearing on record. To begin with, PW2 has admitted in his cross-examination that he did not execute any receipt with respect to the Rs.9,70,000/- that he had paid to the accused on that day. In the complaint Ex. PW2/A, the complainant has mentioned that since he is illiterate, the accused persons had mentioned Rs.1 lakh instead of Rs.10 lakhs in the receipt. However, the wife of the complainant PW3 admitted the suggestion of the learned APP and stated that it was the accused persons who had persuaded the complainant to mention less amount in documents and they had mentioned Rs. 1 lakh instead of Rs. 10 lakhs on the documents. Therefore, the version of both the witnesses in this regard is also contradictory as the complainant has claimed ignorance of the fact that while the witness PW3 has acknowledged that the said sum was mentioned in the document purposefully.
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 17 of 26
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.05.09
12:28:37
+0530
24. Source of funds: In addition to the above- mentioned contradictions, there is another glaring contradiction in the version of the witnesses on the point of source of funds. The complainant has stated that he used to work as a confectioner (halwai) and was earning a meagre Rs. 3,000/- per month as salary. The case of the prosecution is that the complainant had sold his property sometime before the alleged transaction and as such, he was in possession of the requisite funds. The prosecution has examined PW5 who is the buyer of the said property and who has disclosed that she had purchased a property from the wife of the complainant for Rs.8,95,000/- and said amount was handed to the wife of the complainant in the month of June, 2008. When the complainant PW2 was questioned with regard to the source of funds for the transaction in question, he stated that he had taken the money from his brother-in-law namely Suresh, who resides in Firozabad. He has stated that he had taken Rs.9,70,000/- from his brother-in-law, who had withdrawn the said amount from the Bank of Firozabad. The complainant had stated that he had brought the above noted amount of Rs.9,70,000/- from his brother-in-law Suresh Kumar on 12.10.2008 i.e. one day prior to the transaction in question.
25. He has specifically stated that on the day when he had gone to his house of the brother-in-law to take the amount, his wife PW3 was accompanying him. He had stated that they had gone by train and returned by the train on the next day. He has also specifically admitted that apart from the said money, he had not given the accused any other money. However, the version of the complainant in this regard has been totally belied by his wife PW3, who has stated on a specific query of the accused Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 18 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:50 +0530 persons that she did not visit her brother's house with her husband on 11.10.2008 and 12.10.2008. She stated that her husband had taken Rs.2,00,000/- as loan from some persons and apart from the said money, they used the money that they had got from selling of their property to pay the accused persons. Therefore, the source of funds of the complainant to fund the sale transactions is called into question by the version of the prosecution witnesses themselves on this point. This circumstance, when viewed in the fact that the property documents itself mention Rs.1 lakh instead of Rs.10 lakhs, throws a doubt on the case of the prosecution. There is no cogent explanation in the case of the prosecution with respect to these weaknesses in its case.
26. At this juncture, it is also apposite to note another contradiction in the version of the complainant and his wife. PW5 is the purchaser of the property of the complainant, and she has stated in her cross-examination that the documents were prepared in the Court at Sunder Nagri, Delhi, by her counsel and at the time, the complainant had accompanied her his wife PW3 Kavita. PW3 Kavita stated that she did not remember if she had gone to the office of the Sub-Registrar for preparation of the said documents regarding the sale of the earlier property. However, the statement of PW5 is contradicted by the version of the complainant PW2, who has stated in his cross-examination that the documents pertaining to the said plot were prepared by the accused Sandeep. At another occasion in the cross examination, he has stated that the documents were prepared by the purchaser of the said house. He also stated that the documents were prepared at his house and he did not accompany to the office of Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 19 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:28:58 +0530 the Sub-Registrar when he had sold the above-mentioned plot. Thus, the statement of the complainant is totally contrary to that of the purchaser of the property, PW5. There is also difference in versions with respect to the sale consideration. PW5 has stated that the sale consideration was Rs.8,95,000/- and the same is the version of the wife of the complainant PW3. However, the complainant has stated that the property was sold for Rs.9,75,000/-.
27. In view of the above discussion, it is clear that the version of the complainant as well as his wife, who are the star witnesses of the prosecution, cannot be relied upon beyond reasonable doubt. There are material contradictions with respect to significant facts and this Court cannot turn a blind eye to these glaring contradictions, which go to the root of the matter. It was incumbent upon the prosecution to prove as to which accused had played what role in commission of the offence. In order to prove the same, the fact that the accused persons participated in the inducement of the complainant at different locations, be it the initial inducement or that on the day when the documents were signed and the transaction was made, was required to be proved in the present matter. However, the version of the complainant and the wife of the complainant, who is an eyewitness to the incident, is directly contradictory and mutually inconsistent on those points. Accordingly, it cannot be said beyond reasonable doubt that a) the accused persons were present on the day when the complainant had handed over the money, b) that the complainant had delivered the stated amount to the accused and
c) the complainant had source of funds to pay the kind of money he has deposed about.
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 20 of 26
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.05.09
12:29:07
+0530
28. There is no other independent witness to the transactions. The only other evidence on record is the bank statement of the account pertaining to the accused Sandeep, in which it is reflected that the accused had deposited Rs. 7 lakhs in his account on 13.10.2008. The prosecution has examined the bank witness PW7, who has proved on record the account statement of the accused. However, the said fact in itself is insufficient to hold the accused guilty. There is no link evidence to show that the money deposited by the accused was the same which was given to him by the complainant. Further, the screen shots of the CCTV footage (Ex. P1) allegedly showing the accused Baneshwar and Sanjeev taking out money from the ATM is also not of any help. Admittedly, there is no time and date stamp on the footage. Even otherwise, merely because some amount was withdrawn from an ATM does not prove the case of the prosecution. There is no other independent witness to the transactions.
29. Forgery: Moving forward, the allegations are that the accused persons had forged documents in order to cheat the complainant. The forgery is alleged with respect to the identity of the proposed seller of the property. The case of the prosecution is that the accused Sushil Kumar portrayed himself as the seller of the property by the fictitious name of Pawan Sharma and then he forged documents pertaining to the transaction like GPA etc.
30. In this regard, it is pertinent to note that the complainant himself has not deposed anywhere that the accused Sushil Kumar had affixed his signatures as Pawan Kumar on the documents in his presence. He has stated in his cross examination that he cannot say whether the GPA etc. had the thumb Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 21 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:29:17 +0530 impression of Pawan Sharma at the time when they were handed over to him.
31. The case of the prosecution as emanating from the evidence of the complainant PW2 is that when the accused persons had gone to the house of the complainant, the documents were already typed and the complainant had only affixed his signatures and thumb impressions on the documents. The complainant has admitted in his cross examination that the documents regarding the transaction were read over to him by the accused Sandeep and accused Pawan and he had signed the said documents and affixed his photographs on it. However, in the same breath, he has also stated next in his cross-examination that when the documents were handed over to him, the photograph of him as well as Pawan Sharma were already affixed on the GPA and the agreement to sell.
32. Notably, the statement of the complainant that the documents were already typed has been totally contradicted by the statement of another witness of the prosecution, i.e. PW4 Pradeep Kumar. The PW4 is the deed writer, who has stated on oath that on 13.10.2008, i.e. the date on which the accused persons had allegedly gone to the house of the complainant, the complainant had himself approached him and given certain documents for preparation of the registry documents of the plot i.e. GPA., agreement to sell, will, affidavit etc. He has deposed that he had prepared the documents and the same were typed by one Rashid. He has also stated that Rs.400/- was given to him by the complainant in order to prepare the documents and the complainant had himself given the photographs of his own and that of accused Sandeep. The witness has nowhere stated as to Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 22 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:29:27 +0530 how the documents were prepared by him. As such, his statement is enough to throw a doubt on the version of the complainant.
33. The only other evidence on record in this regard is the opinion of the handwriting experts. In this regard, the foremost objection of the learned counsel for the defence is that the signatures of the accused were taken in police custody and the permission of the Court was taken later on. It is argued that this submission is corroborated by the fact that the IO has not mentioned any dates on the pages wherein the specimen signatures and thumb impressions have been taken.
34. In this regard, it is correct that the application of the IO before the concerned Court, Ex. PW10/K was filed for obtaining specimen signatures and handwriting only. There is no mention that the thumb impressions were also obtained on that day. PW9 is the expert for the thumb impressions. He has proved the report Ex. PW9/A, the gist of which is that apart from one thumb impression in the name of Pawan Sharma, the other thumb impressions on the questioned documents allegedly that of Pawan Sharma are identical to that of accused Sushil. PW14 is another expert witness, who has proved the report Ex. PW14/A, which is the examination report on the signatures and hand writing. As per the report Ex. PW14/A, it is opined that accused Sushil had written the name "Pawan Sharma" on the questioned documents.
35. However, given the above discussion, the accused cannot be convicted solely on the basis of these reports. In this regard, it is pertinent to note the observations of the Hon'ble Apex Court in S. Gopal Reddy v. State of A.P. (1996) 4 SCC 596, wherein is was held, inter alia, as under:
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 23 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:29:35 +0530 "28. Thus, the evidence of PW 3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210, while dealing with the evidence of a handwriting expert, this Court opined: "... We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
36. Thus, in view of the above, it can be safely held that in absence of any other evidence to corroborate the expert opinion, it would be unsafe to convict an accused. In the present case, the other evidence on record is sufficient to throw a doubt on the case of the prosecution and the benefit of the same can Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 24 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:29:44 +0530 only go in favour of the accused.
37. The last contention is with respect to delay in registration of FIR. The incident in question is of 13.10.2008. The complainant has stated that he was shot on 20.11.2008 and remained under treatment. He has stated that his wife had filed a complaint in December, 2008 as he was not well. However, no such complaint has been tendered into evidence. The present FIR was registered, pursuant to enquiry, on 05.07.2009. PW12 has stated that he conducted enquiry into the matter prior to registration of FIR. There is no other elaboration on this point by the witness. It is mentioned in his testimony that the enquiry was marked to him on 31.03.2009. However, the fact remains that there is delay in the registration of FIR and the relevant documents to prove the date of first complaint, the duration and nature of enquiry etc. have not been proved on record. The delay in registration of FIR thus remains unexplained in evidence.
38. The defence of the accused persons in the present case is that they have been falsely implicated only to link them with another case under Section 307 IPC, which was going on the Ghaziabad Court. The accused Sushil has taken the defence that he was working with the complainant, who used to work as a property dealer and owing to differences between them, he has been falsely implicated in this case. The defence has not been proved by leading any evidence. However, it is settled law that the prosecution has to stand on its own legs and not rely on the weakness of defence of the accused.
CONCLUSION -
39. To recapitulate the above discussion, to bring home Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 25 of 26 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.05.09 12:29:59 +0530 the guilt of the accused, the prosecution was required to prove the offences under Section 419/420/468/471/120B IPC beyond reasonable doubt. The accused have been successful in pointing out the deficiencies in the case of the prosecution. The star witnesses of the prosecution cannot be relied upon beyond reasonable doubt. There are glaring inconsistencies and contradictions in the case of the prosecution itself, which go to the core of the case of the prosecution. This Court has no hesitation to hold that the prosecution has failed to prove the essential ingredients of the offences charged against the accused on the required threshold of criminal law. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
40. Resultantly, the accused persons namely SANDEEP RAWAT, SANJEEV RAWAT, BANESHWAR RAWAT and SUSHIL KUMAR are entitled for benefit of reasonable doubt and are hereby found not guilty. They are ACQUITTED of the offences under Sections 419/420/468/471/120B of the Indian Penal Code, 1860.
Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.05.09 12:30:09 +0530 Announced in (DEV CHAUDHARY) Open Court in Metropolitan Magistrate - 07 presence of Shahdara District, KKD accused. New Delhi, 09.05.2023 This judgment contains 26 signed pages.
Cr Case No. 80006/2016 State Vs. Sandeep Rawat & Ors. Page No. 26 of 26