Delhi District Court
State vs . Davender Kaur on 29 January, 2020
IN THE COURT OF SH. MAYANK GOEL
METROPOLITAN MAGISTRATE-03, NORTH DISTRICT ,
ROHINI COURTS,DELHI
State Vs. Davender Kaur
FIR No. 253/07
PS : Model Town
U/s. 420 IPC
CIS No. 4946/2016
JUDGMENT
1) The date of commission : 12.01.2006
of offence
2) The name of the complainant : Ajit Singh
3) The name & parentage of accused : Davender Kaur
W/o Shri Jagjeet Singh
4) Offence complained of : U/s 420 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 29.01.2020
8)Date of Institution : 11.12.2006
THE BRIEF REASONS FOR THE JUDGMENT:
1) Briefly stated the case of the prosecution is that on 12.01.2006, at A-6/7, 3 rd
Floor, Rana Partap Bagh, Delhi, accused dishonestly and fraudulently represented and assured to the complainant Ajit Singh that the abovesaid property was free from all sorts of encumbrances and therefore induced the complainant to enter into an agreement to sell and purchased the abovesaid property and pursuant to FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 1/18 the said agreement, accused received a sum of Rs.5 lacs as earnest money concealing the fact that the said property was already mortgaged by him with Federal Bank, Karol Bagh Branch for obtaining a loan of Rs. 15 lakhs and therefore accused cheated the complainant and committed an offence u/s 420 IPC.
2) After completion of investigation, charge-sheet against the accused was prepared and filed in the Court whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr.P.C. charge was framed for offence u/s 420 IPC against the accused, to which accused pleaded not guilty and claimed trial.
3) In Prosecution evidence, the prosecution got examined 12 witnesses. PW- 1 is complainant Ajit Singh, who deposed that on 12.01.2006, he entered into an agreement to purchase the property bearing no. A-6/7, Rana Pratap Bagh, Delhi with the accused Davender Kaur; that the total consideration as per agreement was Rs.49,31,000/-; that at the time of agreement, accused had not shown him the original documents pertaining to the abovesaid property and assured to show him the same within 6-7 days; that on the same day, he paid Rs.5,00,000/- as earnest money (Rs.4,80,000/- by way of cheque, drawn on Bank of Baroda and Rs.20,000/- by way of cash). He further stated that at the time of payment, the property dealers who were running their business under the name 'M.K. Property' and one Sanjay Sunegra were also present; that the date 31.03.2006 was fixed as the final date for execution of sale deed and payment of balance money; that at the time of agreement, it was assured to him by the accused that the property is a free hold property and is free from all sorts of charges and encumbrance and it was on this assurance only that he had agreed to enter into the present agreement, copy of the said agreement dated 12.01.2006 is Marked A. He further stated that the original agreement to sell is lying in Tis Hazari Court where a civil FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 2/18 dispute with regard to the present property was pending; that after 12.01.2006, on several occasions, he demanded the original title deeds from the accused but the accused failed to produce the same and always asked for 2-4 days time and assured him that the title deeds are very well present with her and she will hand over the same to him.
PW 1 further deposed that since the accused was delaying in production of title deeds, he got suspicious and conducted an inquiry of his own; that through one of his sources, he came to know that the said property had been mortgaged at Fenderal Bank, Karol Bagh Branch and a loan of Rs.17.50 lakhs had been obtained by the accused against that property; that in this regard, he collected a letter from the manager of Federal Bank, Karol Bagh Branch and the same was given to the IO by him during investigation; that the said letter is Ex.PW1/A; that when he confronted the accused, she assured him that she will get the property documents released before 31.03.2006; that on 31.03.2006, he reached at sub- registrar office for the execution of sale deed, however, accused did not arrive there and feeling agreed, she filed a complaint to SHO Model Town, which is Ex. PW 1/B; that accused got enchashed the above said cheque of Rs. 4,80,000/- and even after the lodging of complaint & FIR, the accused had neither returned his money nor executed the sale deed.
In his cross-examination by Ld. defence Counsel, PW2 state that he was introduced to the husband of accused by a property dealer namely K.D. Kaushik and thereafter, husband of accused introduced him to the accused. He admitted that he had written letter dated 18.03.2006 to the accused. He further stated that he had not written any letter on 29.03.2006 to the accused; that he had sent a legal notice through his advocate and he had not specifically stated by means of legal notice that he was treating the agreement dated 12.01.2006 as cancelled;
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 3/18 that he had personally visited Federal Bank, Karol Bagh Branch; that he cannot say as to why Mr. Sanjay Sunegra did not put his signature on witness column in the agreement dated 12.01.2006; that he had given statement to the police after registration of FIR; that the letter Ex.PW1/A was given to him by Ashok; that Ashok had not disclosed to him from where he had procured that letter. He denied that Ex.PW1/A is a confidential document and cannot be handed over to any third person except the loanee himself. He further stated that he had not taken any cash receipt from the accused with respect to the earnest money. He denied that he already knew through Ashok that property was under mortgage or that it was at his instance that the factum of hypothecation of title deeds was not recorded in the agreement or that the cheque of Rs.4,80,000/- was not encashed by the accused. He stated that he did not remember on which date he came to know about the fact of hypothecation, however, it was before 31.03.2006; that he did not know whether the site plan of the property A6/7, III floor was approved by MCD or not. He denied that in the year 2006, the Hon'ble Supreme Court has ordered demolition of unauthorized constructions in the residential and commercial of Delhi which were not having sanctioned plan or that after coming to know of this development he wanted to get rid of the agreement to sell dated 12.01.2006 or he took a false excuse of not knowing of the hypothecation of title deeds of property in question at the time of entering into the agreement or that he filed a false complaint u/s 200 Cr.P.C. by concealing material facts and material documents from the court or that he was deposing falsely.
5) PW-2 Sanjay Kumar Sunegra deposed that he knew the complainant Sardar Ajit Singh for the last 14-15 years and he was also friend of his grandfather; that he was looking for a residential property in Delhi; that his uncle namely Sh. Ashok was running a property dealing business under the name of 'M.K. Properties' alongwith some other property dealers; that his uncle recommended them to see FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 4/18 the property bearing no. A-6/7, Rana Partap Bagh; that Sh. Ajit Singh alongwith him and some other persons went there and he showed his willingness to purchase that property; that on 12.01.2006, the complainant entered into an agreement to sell with the accused; that on the same day the complainant gave Rs.5,00,000/- as earnest money; that at the time of payment, the property dealers who were running there business under the name M.K Property and he was also present; that the date 31.03.2006 was fixed as the final date for execution of sale deed and payment of balance money; that at the time of agreement, it was assured to the complainant by the accused that the property is a free hold property and is free from all sorts of charge and encumbrance; that it was on this assurance only that he had agreed to enter into the agreement and after 12.01.2006, complainant demanded the original title deeds from the accused on several occasions but the accused failed to produce the same and always assured him that the same are present with her and she will hand over the same to him.
In his cross-examination by ld. defence Counsel, PW-2 stated that he had a tailoring shop at Moti Bagh, Sarai Rohilla; that when late Sardar Ajit Singh went to M.K. Properties, Sh. Ashok Kumar was present there. He admitted that he took Sardar Ajit Singh to M.K. Properties for introducing him to his uncle and Sardar Ajit Singh, Sh. Ashok Kumar and myself went to see the property of the accused. He stated that Sh. Krishan also accompanied them; that when they went to the house of accused, she was not present there; that her husband and son told them that the property papers were deposited in the bank and they will show these papers after getting them released from the bank; that this conversation took place in the presence of late Sardar Ajit Singh; that it was after this conversation that the agreement dated 12.01.2006 took place and the agreement was signed in his presence. He denied that there was an oral agreement that approximately Rs.20 lac out of the balance payment would be paid on bringing the original documents FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 5/18 from the bank or that conversation with respect to removal of the clause as to the property be transferred free from encumbrances took place in his presence. He further stated that he did not know if Sardar Ajit Singh had cancelled the agreement before 31.03.2006 or if Sardar Ajit Singh had filed any civil case regarding this matter. He denied of deposing falsely.
6) PW-3 Ashok Kumar deposed that he was a property dealer earlier; that he was working as M.K Properties with K.D. Kaushik and Ashok Malik; that in the month of January, 2006, his nephew Sajay came with one Ajit Singh at his shop; that said Ajit Singh want to purchase a floor of the building; that he showed him many properties of the area and he choosed the IIIrd floor of the property which was in the name of accused Davender Kaur; that at that time, there was a pending loan of Rs.8-10 lacs and the same was very much told by them to Ajit Singh; that one agreement was taken place; that Ajit Singh paid an advance amount of Rs.5,00,000/- and he was a witness to the said agreement. He further stated that he insisted that pending loan amount should be mentioned in the aforesaid agreement but Ajit Singh requested not to do so and told them that they will clear the loan amount, copy of aforesaid agreement is Mark A. He further stated that at the instance of accused Davender Kaur, he contacted Ajit Singh many times to pay the loan amount before the due date of registry so that loan may be cleared; that Ajit Singh did not pay any amount; that on the due date of registry, Ajit Singh directly went to Registrar office and obtained inspection slip without prior intimation to him and without paying anything to accused Davender Kaur; that he requested Ajit Singh to purchase stamp papers but he failed to do so and later on started making excuses on one reason or another; that thereafter he started asking his money back; that on the same, he asked the accused to return the amount who told that Ajit Singh had failed to fulfill his part of the aforesaid agreement and due to that reason there was no need to return the same.
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 6/18 In his cross examination, PW3 admitted that on those days, MCD used to demolish the III Floor as per the direction of Hon'ble Supreme Court and that was the main reason why Ajit Singh backed out from the agreement. He admitted that later on accused cleared his loan and accordingly informed Ajit Singh.
8) PW-4 Ms. Pratibha Singh, Manager (Administration) Federal Bank, Branch Karol Bagh, Delhi, produced the documents regarding the mortgage of property bearing no. A-6/7, 3rd floor, Rana Pratap Bagh, Delhi in the name of Davender Kaur. (1) attested copy of letter of Equitable mortgage of property dated 23.12.1998 by Smt Davender Kaur is Ex. PW4/A, ((2) attested copy of agreement of hypothication of stock of goods for cash credit limit dated 22.12.1998 is Ex.PW4/B, ((3) attested copy of agreement of hypothecation of book debts dated 22.12.1998 Ex.PW4/C, (4) attested copy of demand promissory note dated 22.12.1998 is Ex.PW4/D, attested copy of security delivery letter dated 22.12.1998 is Ex.PW4/E, (5) attested copy of partnership letter dated 22.12.1998 is Ex.PW4/F, (6) attested copy of sale deed no. 5881 dated 22.09.1998 in favour of Smt. Davender Kaur is Ex.PW4/G, (7) attested copy of register of equitable mortgage in which when the property was mortgaged and when the property was released is mentioned, same is Ex.PW4/H. She further stated that according to the bank records, the abovesaid property was released from mortgage on 31.05.2006.
In her cross-examination by Ld. defence counsel, she did not have any personal knowledge of the loan transaction since she was not working with the concerned branch at the relevant time neither in 1998 nor in 2006. She denied of deposing falsely.
10) PW-5 Inspector Rajesh Vijay deposed that on 18.01.2008 FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 7/18 investigation of the present case was marked to him; that he obtained NBW of accused; that thereafter, he got the process u/s 82 Cr.P.C issued against the accused; that he also got the process published in a daily newspaper Dainik Jagran and Times of India and then he was transferred.
11). PW-6 is W/HC Rajina deposed of arrest of accused vide memo Ex. PW 6/A on 18.09.2007 and she conducted personal search of accused Davender Kaur and then accused was released on bail.
12). PW-7 Krishan Dutt Kaushik deposed that he was doing private job; that he had worked ax a private dealer for about 3-4 years between 2004/05 to 2007/08 alongwith his friend Ashok Kumar; that one person Sardar Amarjeet Singh (again said Ajit Singh) came to him through Ashok as he wanted to purchase a house; that at last he decided to purchase house no. A-6/7, third floor, Rana Pratap Bagh which was registered in the name of wife of Sh. Jagjit Singh; that he did not remember the exact amount for which the deal was finalized; that payment of Rs.20,000/- was made in cash and a cheque of Rs. 4.80 lac was given to the accused. He further deposed that complainant told the accused to show original documents but the accused showed photocopy of original documents and told that the accused that the original documents were with bank; that the complainant told the accused that he will deposit remaining amount in bank on which accused insisted that the remaining money be given to the accused and she will deposit the same in bank. He further stated that the payment was not deposited by the accused; that 2-3 meetings were held between the complainant and the accused; that the documents were decided to be executed between the complainant and the accused on the last day of month of March of 2007 approximately; that on the decided day, he alongwith complainant Ajit Singh went to sub registrar office for registration of documents; that on that day, accused had not come up and they FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 8/18 waited there and then complainant approached the court.
In this cross examination by Ld. APP for State, he admitted that the date on which complainant came to him was 10.01.2006; that the day on which documents regarding the property were to be executed was 31.03.2006; that he had stated the wrong year in his examination-in-chief due to the passage of around 8 to 9 years; that after payment accused promised to show original documents to complainant; that after payment when the accused was asked to show the original papers of the property, he told that the original papers were with bank.
In his cross-examination by Ld. defence counsel, PW-7 stated that Ashok was his colleague; that this fact was told to him by Ashok; that accused told the complainant that his property was mortgaged with the Federal Bank from the day one and complainant had told that during the said three months he will deposit the amount in the bank and this statement was given by the complainant in his presence. He further stated that complainant had not given the said money after the agreement. He admitted that accused had told the complainant to deposit the money in the account many times as the account was settled with the bank by the accused; that he did not have knowledge as to how much payment was made by the accused. He stated that the real dispute between the complainant and the accused was that the complainant was insisting for payment to the bank directly and the accused was insisting the complainant for the payment to her. He denied that the complainant backed out from the deal on the ground of demolition drive of 3rd floor by the MCD. He denied that complainant did not want to finalized deal of purchase of the house in question on one or another pretext or that complainant had falsely registered the present case to pressurize the accused.
In his re-examination by Ld. APP for State, PW-7 stated that now he FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 9/18 remembered that the complainant told the accused that he will deposit the remaining amount in bank or he would get the loan transferred in his bank. In his cross examination by Ld. APP for the State he denied of giving statement to the police that accused revealed the fact of mortgage of property in question till some time after the payment of token money. He stated that accused disclosed the said fact on the first day but also promised to show the original documents by taking the same from bank.
13). PW-8 SI Rakesh Rana deposed that further investigation of this case was marked to him on 25.06.2009. He deposed of causing arrest of the accused vide memo Ex. PW 6/A and thereafter he was transferred from PS Model Town. In his cross examination by Ld. Defence counsel, he denied of deposing falsely.
14). PW-9 SI (retired) V.D. Pandey deposed that on 01.11.2009, investigation of the present case was marked to him; that he went through the file; that he visited the house of complainant many times to obtain the relevant documents but he told that the civil litigation were pending between him and the accused and documents were with his counsel; that he recorded statement of witness Ashok Kumar who was a mediator of the deal between the complainant and the accused. In his cross-examination by Ld. defence counsel, he denied that he did not conduct the investigation fairly or that he was deposing falsely.
15). PW-10 SI Sandeep deposed that on 23.08.2010 he served notice upon Manager of Federal Bank to which he provided the copies of relevant documents to him vide letter Ex.PW10/A; that he also served notice upon the Manager of Bank of Baroda and he obtained the copy of statement of accounts of one Ajit Singh which is Ex.PW10/B; that he recorded statement of both the Managers and investigation was marked to another IO.
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 10/18
16). PW-11 Inspector Randhir Singh deposed that on 11.04.2007 on the direction of Hon'ble Court, the present case was registered on the complaint of Sh Ajit Singh against accused Davender Kaur; that he made endorsement upon the complainant which is Ex.PW1/B; that he recorded the statement of witnesses and collected the record of Federal Bank is Ex.PW11/A and reply/report of the bank is Ex.PW11/B; that he collected the report regarding attendance record of the complainant dated 31.03.2006 from Sub-Registrar, Pitam Pura, Delhi; that the application and reply is Ex.PW11/C; that he recorded the supplementary statement of complainant; that he was the first IO of the case and on 19.12.2007, after his transfer, case file handed over to MHC(R).
In his cross-examination by Ld. defence counsel, he denied that he had knowledge of civil suit filed by the complainant against the accused in Tis Hazari Courts before the registration of present case or that Federal Bank had informed him during the investigation that settlement arrived between the bank and the accused before the registration of FIR. He denied of deposing falsely.
17). PW-12 Avdhesh Kumar had brought the Peshi register and placed the copy of the attendance of the parties on 31.03.2006, copy of which is Ex.PW12/A. After prosecution evidence, statement of accused U/s 313 Cr.P.C. was recorded, wherein she pleaded innocence and false implication in the present case. She stated that she had already told that the property was already mortgaged with the bank; that she was present at the sub registrar office, however, Mr. Ajit Singh refused to come there. She also stated that complainant did not make the balance payment neither to her nor to the bank.
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 11/18 In defence evidence, DW1 is accused herself, who deposed that they had to give money to the bank; that at that time, they had no sufficient funds; that they sold their house to pay their money to the Bank; that complainant along with M.K. property dealer and Harvinder Singh came to her house and they settled the deal to sell the property for consideration amount of Rs. 49,31,000/-; that Sardar Ajit Singh gave an amount of Rs. 20,000/- in cash and a cheque amounting Rs. 480,000/- as down payment; at that time they had no document on property in question as it was already mortgaged with the bank and this fact was told to Sardar Ajit Singh before taking bayana amount. She further stated that at that time they stated to the complainant that they will receive further payment and hand over the documents of property in question after settlement with the bank; that they had to pay Rs. 17,50,000/- to the bank in two installments, one in February and another in March and it was communicated to the complainant, with request him to pay the money several times, however, complainant did not pay any amount to them and later on, they had to serve their assets and pay first installment to bank. She further stated that they again requested complainant for balance payment as they has to pay second installment to the bank but complainant avoided their request and did not pay any amount except bayana and she paid the second installment to the bank by borrowing money from her near relatives and friends. She further stated that after some time, complainant refused to purchase her flat as the third floor may be demolished by MCD; that they requested complainant to take the property but he refused and filed two cases against her.
In her cross examination by Ld. APP for the State, she stated that she did not remember whether any written agreement/contract was concluded regarding the sale of property number A-6/7, 3rd floor for consideration of Rs. 49,31,000/-. She admitted that at the time of agreement, they were not in possession of original FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 12/18 document of property in question. She stated that they had photocopy. She denied that they had not disclosed to the complainant that they were not having the original documents with them at the time of agreement or that they had not requested to the complainant for the payment/conclusion of the agreement or that she was deposing falsely.
DW-2 Manoj Kohli deposed that Sardar Ajit Singh paid earnest money of Rs 5 lakhs to Sardar Jagjeet Singh, husband of Davender Kaur ; that Sardar Jagjit Singh had already told to complainant before sale transaction that property in question was on bank loan and original documents of property was with Federal Bank; that husband of accused had made it clear to the complainant that they were settling the loan with Federal Bank and also told to the complainant that he will have to pay the entire loan amount as part payment before final sale deed and they will execute sale deed in his favour after collecting original loan docudments from Federal Bank. He further stated that complainant consented the entire terms and conditions of Jagjit Singh and paid the earnest money and promised to pay full and final loan amount to the Federal Bank before execution of final sale deed. He further stated that later on, he came to know that complainant did not honour his commitment and due to the fault of complainant, DE was failed and Davender Kaur had suffered heavy financial loses to clear the loan amount.
In his cross examination by Ld. APP for the State, DW-2 stated that he knew the accused since childhood and as she was the mother of his friend Gurpreet; that he met Ajit Singh in the year 2006 at the house of his Gurpreet; that he visited at the house in the afternoon on 11.01.2006 or 12.01.2006; that Ajit Singh was already present there with his son and one dealer; that in his presence cash of Rs. 20,000/- was given; that he knew about the mortgage of the property in question with the bank, prior to the deal; that in his presence, no written work or signature FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 13/18 were done by anyone. He denied that accused had not stated the fact of mortgage of property with the bank at the time of transaction. He stated that transaction was of 3rd floor of the property bearing no. A-6/7, Rana Pratap Bagh, Delhi. He denied that he was not present at the time of transaction or that he was deposing falsely at the instance of Gurpreet and his mother/ accused.
I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
18). It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
19). Coming back to the facts of the present case, as per the case of prosecution, accused deceived the complainant and induced him to enter into an agreement to sell dated 12.01.2006 to sell the property in question and to pay her earnest money of Rs. 5 lakhs out of total consideration amount of Rs. 49 lakhs 31 thousand, by concealing the fact that the said property was mortgaged with the Federal bank, Karol Bagh branch at that time and thereby, accused cheated the complainant by not disclosing about the mortgage of the said property and further executing the sale deed in question in respect of the aforesaid property on its due date i.e 31.03.2006 nor paid back the earnest money amount received by the accused from the complainant.
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 14/18 In support of its case, prosecution examined 12 witnesses, out of which PW- 1 is complainant Ajit Singh and PW-2, PW-3 and PW-7 are the other persons, who are stated to be present there at the time of transaction in question on 12.01.2006. whereas, complainant/ PW-1 Ajit Singh supported the prosecution case and deposed that at the time of agreement, accused assured him that the property is a free hold property and free from also sorts of charge and encumbrance; that since accused was delaying the production of titled deeds, he got suspicion and conducted an inquiry, where he came to know that the said property was mortgaged with Federal Bank, Karol Bagh branch. However, the other witnesses to the said transactions have not supported the complainant version in this regard. PW-3 Ashok Kumar, who was one of the property dealers of the transaction in question, deposed that at that time there was a pending loan and same was very much told by them to Ajit Singh (complainant); that he was a witness to the agreement between the parties and he insisted that pending loan amount should be mentioned in the aforesaid agreement but Ajit Singh(compliant) requested not to do so and told them that they would clear the loan amount. He also deposed that at the instance of accused, he contacted complainant many times to pay the remaining amount before the due date of registry so that loan may be cleared but complainant did not pay any amount and on the day of registry, complainant directly went to the Registrar office and obtained inspection slip without making payment to the accused. In his cross-examination by Ld. defence counsel, he even stated that on those days, MCD used to demolish the 3 rd floor and that was the main reason why Ajit Singh backed out from the agreement. Hence, PW-3 Ashok Kumar, who was indisputably present at the time when earnest money was received by the accused, categorically deposed that the factum of mortgage of the property in question was very much informed to the complainant at that time itself and complainant even insisted not to mention the fact of pending loan in the FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 15/18 agreement. Hence, he completely demolished the stand of prosecution that accused concealed the fact of mortgage of property in question from the complainant at that time. Rather, this witness further goes on to say that it was the complainant who defaulted in making payment of remaining settlement amount to the accused and also that the accused backed out from the deal as on those days, MCD used to demolish the 3rd floors. He was not even cross-examined by the prosecution and his testimony remained unimpeachable. He not only created a serious doubt over the story of prosecution but also made the defence of accused that the factum of mortgage was within the knowledge of complainant at that time and also that complainant backed out from the deal and did not pay the remaining consideration amount, more probable.
Moreover, whereas, PW-2 Sanjay Kumar Sunegra supported the prosecution case in his examination-in-chief, however, he failed to support the prosecution case in his cross-examination. It is well settled that a witness making inconsistent statement as to the material facts and circumstances is unworthy of credence. In his cross-examination, he admitted that Sardar Harjeet Singh (complainant), Ashok Kumar and he went to see the property of accused. He further stated that when they went to the house of accused, she was not present there; that her husband and son told them that the property papers were deposited in the bank and they would show these papers after getting them from the bank; that conversation took place in the presence of Sardar Ajit Singh (complainant) and after this conversation, agreement dated 12.01.2006 took place. Hence, this witness also, in his cross-examination, supported the defence of accused that complainant was informed about the mortgage of property on that day and it was not concealed from the complainant.
Moreover, PW-7 Krishan Dutt Kaushik, who also indisputably, went to the FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 16/18 house of accused on that day at the time of transaction in question alongwith complainant and another property dealer, clearly deposed that when complainant told the accused to show original papers, accused showed photocopy of the original documents and told that the original documents with the bank. He also deposed that complainant told the accused that he will deposit remaining amount in bank, on which, accused insisted that remaining money be given to her and she will deposit the same in bank but payment was not deposited by the accused. Even in his cross-examination by Ld. APP for State, he retreated that when accused was asked to show the original papers of the property, he told that the original papers were with the bank. No suggestion, whatsoever, was given to the said witness to rebut the stand of PW-7 regarding the alleged concealment of mortgage by the accused. Hence, testimony of this witness also remained unimpeachable on this crucial and material aspect of this case. All the abovesaid three independent witnesses I.e PW-2 Sanjay Kumar, PW-3 Ashok Kumar and PW-3 Krishan Dutt Kaushik have deposed regarding the disclosure of abovesaid fact of mortgage of property in question with the bank and no previous animosity has been brought on record to show that these witnesses were deposing against the complainant and favorably to the accused.
Ld. APP for State has vehemently argued that agreement to sell and purchase mark A is a documentary evidence itself, wherein, it has been lead down in para no. 5 that the property under sale is free from all sort of encumbrances and no oral agreement can be taken into account to rebut the said documentary evidence. However, perusal of record shows that the said agreement to sell and purchase has not been proved by the prosecution in accordance with law and the original of the said agreement was never produced in the Court. In order to prove the documentary evidence, the original document itself has to be produced in the Court, which prosecution has failed to bring on record and therefore, the copy of FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 17/18 said agreement to sell and purchase cannot be read in evidence. It is well settled that prosecution has to stand on its own legs. As discussed hereinbefore, all the three independent witnesses, who were indisputably present at the house of accused at the time of deal in question, who has supported the defence version and hit the prosecution case from its roots and made the entire story of the prosecution highly doubtful.
20). It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
21). In the backdrop of aforesaid discussion, facts and circumstances and material available on record, it is clear that prosecution has failed to establish the charges against the accused beyond reasonable doubts and accordingly, accused is acquitted in this case. Accordingly, benefit of doubt is given to accused and she is acquitted for the offence punishable U/s 420 IPC. Accused is directed to furnish fresh bail bond in terms of Section 437A of Cr.P.C in the sum of Rs. 20,000/- with one surety in the like amount. Accused through her surety furnished requisite bail bond u/s 437A Cr.PC having affixed thereon photographs and address proof of accused as well as surety. Bail bond accepted.
Digitally signedAnnounced in open court MAYANK by MAYANK
GOEL
on 29.01.2020 GOEL Date: 2020.01.29
16:55:45 +0530
(Mayank Goel)
MM-3/North District
Rohini Courts/Delhi,
FIR No. 253/07, PS. Model Town, State Vs. Davender Kaur CIS No. 4946/16 18/18