Delhi District Court
State vs . Kulbhushan Jain & Ors. on 25 January, 2020
IN THE COURT OF SH. PANKAJ ARORA, MM-03, West/THC, Delhi. STATE VS. KULBHUSHAN JAIN & ORS. FIR NO. 272/05 PS: MAYA PURI U/S: 420/468/471/120B OF IPC ID No. : 69723/16 Date of commission of offence : 04.10.2005 Date of institution of the case : 04.07.2006 Name of the complainant : Ms. Neelam Jain Name of accused and address : 1) Kulbhushan Jain, S/o Sh. Shital Prasad Jain, R/o 1016, Near Jain Mandir, Najafgarh, Delhi. 2) Chokhe Lal, S/o Sh. Mandal Lal, R/o RZ- 40, Vijay Park, Najafgarh, Delhi 3) Rajender, S/o Sh. Banwari Lal, R/o F-87, Inder Enclave, Nangloi, Delhi. (since expired on 12.05.2016) Offence complained of or proved : U/s 420/468/471/120B of IPC Plea of the accused : Pleaded not guilty Final order : Acquitted U/s 468/471 of IPC. Convicted U/s 420/120B of IPC. Date of judgment : 25.01.2020. JUDGMENT
1 The case of the prosecution in brief is that on 04.10.2005 at C 76, Khajan Basti, Nangal Rai, New Delhi, accused persons namely Kulbhushan Jain, Chokhe Lal & Rajender, had entered in a conspiracy to commit an offence punishable with imprisonment and also after entering into the conspiracy, they cheated the complainant Ms. Neelam Jain and induced her to hand over Rs. 3,77,000/- on the pretext of sale consideration of a plot bearing no. 182, Khasra No. 427, Siras Pur, Bhagat Singh Park, State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 1 of 15 which was not in the name of Chokhe Lal and forged GPA, agreement to sell and affidavit etc. and used the same as genuine, dishonestly while they were aware that the said documents were forged one. On the basis of complaint of Ms. Neelam Jain and pursuant to order dated 29.09.2005, U/s 156(3) of Cr.P.C., the present FIR came to be registered. The accused persons were arrested. After completion of necessary formalities, charge sheet was filed in this Court. Cognizance of the offence was taken. The accused persons were summoned. Charge for the commission of offence under Section 420/468/471/120B of IPC. was framed against the accused persons namely Kulbhushan Jain & Chokhe Lal on 02.07.2007, to which they pleaded not guilty and claimed trial.
Charge for the commission of offence under Section 420/468/471/120B of IPC. was framed against the accused namely Rajender on 05.05.2008, to which he pleaded not guilty and claimed trial.
During the pendency of trial, the accused Rajender had expired and therefore, proceeding against him stood abated vide order dated 12.05.2016.
2. The prosecution examined 14 witnesses in support of its case, which are as follows:-
1) Smt. Neelam Jain is the complainant in the present case, who was examined as PW-1. She deposed that in the year 2005, she was residing with her family at C-76, Khajan Basti, Mayapuri, D-Block, New Delhi. In the month of April, 2005, she along with her husband met accused Kulbhushan who was property dealer, at Jain Mandir, who offered her a plot for purchasing the same. The accused Kulbhushan met them two to three time regarding the same. After that they agreed to purchase the plot and she along with her husband visited the said plot which was situated at Siraspur, Bhagat Singh Park, Plot No. 182, Khasra No. in 427. Accused Kulbhushan introduced accused Chokhe Lal as a owner of above said plot. Accused Kulbhushan told that he along with Chokhe Lal and Rajender were partner in above-mentioned plot. Accused Kulbhushan and Rajender showed the documents of above said plot. After that, she entered into agreement to sell with accused Chokhe Lal and handed over Rs. 10,000/- as token State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 2 of 15 money on 25.04.2005. On the very next day i.e. 26.04.2005, she made payment to accused persons of Rs. 2,50,000/-.
She further deposed that the deal was done for total consideration of Rs. 4 Lakhs 62 thousand. The agreement to sell on 25.04.2005 in this regard was prepared which is running into two pages and the same is Ex. PW-1/A. Accused Rajender also assured her and her husband, the real owner of the said plot was Chokhe Lal. The receipt of Rs. 10,000/- dated 25.04.2005, which she had paid to accused Chokhe Lal in the presence of accused Khulbhushan and accused Rajender is Ex. PW-1/B. The receipt of Rs. 2.5 lakh dated 26.04.2005 which she had paid to accused Chokhe Lal in the presence of accused Kulbhushan and accused Rajender as part payment of said consideration is Ex. PW-1/C. After payment of total Rs. 2 Lakh 60 thousand, the accused persons regularly visited her house and demanding for remaining money. She made further payment of Rs. 1 Lakh 17 thousand to accused persons in three to four installments.
She further deposed that she had handed over original paper of agreement to sell and five receipt of payments, "Kararnama" and one paper issued by accused Chokhe Lal to paper to IO.
She further deposed that later on, she came to know that property in question was actually not in the name of the accused Chokhe Lal but some other persons. She did not recollect the name of real owner of the said property due to lapse of time. As the accused persons were making demands of balance payment, her husband & herself called the accused persons at their residence. The accused persons came to their residence and thereafter, they made the call on 100 number. Police official arrived at their residence and took all of them to PS. Due to intervention of the police official, the accused Chokhe Lal agreed to return the money. Thereafter, the accused Chokhe Lal issued a cheque which is already marked as Mark-X & Mark-Y. However, on presentation of the said cheque in her bank, the same was returned on account of insufficient fund. The witness has correctly identified both the accused persons namely Kulbhushan Jain & Chokhe Lal and documents. Since the original documents were not traceable, photocopy of one certificate dated 22.08.1978, one agreement of August, State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 3 of 15 1978, one Kararnama, receipt of Rs. 10,000/- dated 25.04.2005, receipt dated 26.04.2005 of Rs. 2,50,000/-, receipt dated 26.05.2005 of Rs. 10,000/-, receipt of 03.06.2005 of Rs. 10,000/- were shown to her and she had correctly identified the said documents which were given by her to the IO in original, which are Ex. PW-1/E (Colly). During her cross-examination, she stated that one more case filed by her against the accused persons for a cheque at Dwarka Court. She entered into compromise with the accused persons in the said case. Compensation of Rs. 20,000/- was given to her by the accused persons. She admitted the suggestion that as per the settlement deed, whatever payment, the accused Chokhe Lal had to make to them, he made through a cheque, however, the cheque got dishonored. She denied the suggestion that he was continuing with the present case to extract some more money from the accused persons. She further denied the suggestion that he was deposing falsely.
2) Sh. Praveen Kr. Jain, is the husband of the complainant, who was examined as PW-2. He deposed that in the month of April, 2005, On the occasion of Mahavir Jainti, he and his wife met with Kulbhushan Jain (who is already known to me from the side of his in laws) at Jain Mandir, Najafgarh. Kulbhushan informed them that some land at Siraspur, Bhagat Singh Marg was being sold at a very reasonable price. Thereafter, on 24.05.2005, he, his wife and Kulbhushan along with two other persons namely Chokhe Lal and Rajinder went to visit the plot at the above mentioned address. They told them that they were joint owner of the said and which was purchased in the name of Chokhe Lal. He and his wife visited the plot at the instance of Kulbhushan, Chokhe Lal & Rajinder and agreed to purchase the said plot. On the next day, he and his wife went to office of Kulbhushan at Bhushan Jeweler, Anaj Mandi, Najafgarh where Chokhe Lal and Rajinder were already present. He informed them that he want to purchase the said plot in the name of his wife and after bargaining, a sum of Rs. 10,000/- was handed over to them as token money of the said plot. Thereafter, on the next day i.e. 26.05.2005, he gave a sum of Rs. 2, 50,000/- to three of them jointly at his home. Chokhe Lal issued a receipt for Rs. 2,50,000/- in favor of his wife. Thereafter, Rs. 1,17,000/- were also given to all of them on various occasion. Thereafter, he requested them to accompany him for verification of the documents of the plot but they kept on avoiding one pretext or the State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 4 of 15 other. They all kept on compelling him to give the rest of the consideration amount before the registration of the property but he requested them that let the documents be verified first and thereafter, he would give the rest of amount at the time of registration. On 28.07.2005, he visited the previous owner of the above mentioned and at Siraspur, Delhi where he came to know that he was dead 6 years ago whereas the documents in favor of Chokhe Lal were latest. Thereafter, on 29.07.2005, he called Kulbhushan Jain, Chokhe Lal & Rajinder at his home saying that he was ready to give the remaining amount. All of them reached at his home on the same day and after they reached at his home, he made the call on 100 number and police came at his home. All of them were taken to PS by police. He also accompanied the police. There, police tried to settle down the matter. Thereafter, he agreed to settle the matter on the promise that Chokhe Lal will give a sum of Rs. 3,75,000/- which he have paid to him. On the next date i.e. on 30.07.2005, Chokhe Lal came to his home and handed over a cheque for a sum of Rs. 3,75,000/- issued in favor of his wife. He presented the said cheque for encashment after one month but the same was dishonored with the remark " insufficient funds". Thereafter, he went to PS to lodge the complaint but the same was not registered. Thereafter, he moved an application U/s 156 (3) of Cr.P.C. and on that registration of FIR was ordered. After registration of FIR, police came to his home and recorded his as well as his wife statement. The witness has correctly identified all the accused persons. The witness was not cross-examined despite having given the opportunity.
3) Sh. Vijay Pal was examined as PW-3. He deposed that he was clerk at Syndicate Bank, Thana Road, Najafgarh. When police official demanded the information regarding account no. 878, he had enquired and found that the concerned account was opened by their bank on 10.05.2005 and was in the name of Sunita W/o Sh. Naval Singh, R/o 1004, Bhoro Wali Gali, Najafgarh, Delhi and also found one cheque book no. 072776 to 072800 was also issued by their bank regarding the above said account. The payment was stopped on 24.08.2005 regarding the above said account. Police official had shown a copy of the cheque. When he enquired about the signature on the cheque and matched it with the record of bank, the same did not match with the original record of the bank. The signature of the account holder was in Hindi. The witness has correctly State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 5 of 15 identified the cheque. The witness was not cross-examined despite having given the opportunity.
4) Sh. Naval Singh was examined as PW-4. He deposed that on 10.05.2005, he had got opened an account of his wife namely Sunita in Syndicate Bank, Najafgarh Branch. The account number allocated by the bank was 878 against which cheque book bearing leaves from 072776 to 072800 was issued. After about 2 months, he along with his wife has gone to the bank along with cheque leaf for some work. However, the said cheque got lost and they lodged the report regarding the loss of the said cheque submitted in the branch.
He further deposed that her wife used to sign in Hindi and he could identify her signatures. The police official had visited his house and made enquiry from him and also showed him a photocopy of the lost cheque. At that time, his wife was out of station. However, the said cheque bore signature of somebody else and the signatures on the same were not of his wife. The witness has correctly identified the cheque bearing no. 072779 of Syndicate Bank. The witness was not cross-examined despite having given the opportunity.
5) Sh. Rajesh Rana was examined as PW-5. He deposed that the police officials had made the enquiry from him regarding the present case. His grandfather's name was Shri Ram. His father Sh. Om Prakash Rana passed away on 31.01.2001. The property comprised in Khasra No. 427 was their ancestral property. The said fact is also recorded in the records of Patwari. His father Sh. Om Prakash Rana had never sold any land comprised in Khasra No. 427 ever.
He further deposed that the police official had shown him power of attorney in which thumb impression purportedly against name of his father could be seen. The said thumb impression are not of his father as his father was not illiterate but educated. Even the name of his father's father (my grandfather) has been mentioned as Nathu Ram instead of Shri Ram in the aforesaid power attorney. Therefore, the said power of attorney is forged and fabricated.
He had handed over the copy of license, secondary school certificate and death State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 6 of 15 certificate of his father to police official, which is Ex. PW-5/A to Ex. PW-5/C respectively. The said power of attorney is marked as Mark-P bearing purported thumb impression of his late father at point A and mentioning his grandfather name as Nathu Ram instead of Shri. Ram at point C. During his cross-examination, he stated that he never met with the accused persons. He was not aware it if forged GPA/Agreement to Sell etc. have been prepared by the accused persons.
6) Sh. Tarun Jain was examined as PW-6. He deposed that his mother namely Neelam Jain had purchased a property from Chokhe Lal, Kulbhushan Jain and Rajender. However, the forged documents were prepared by these persons in respect of the said property situated at behind Siraspur Gurdwara, GT Karnal Road. His mother had finalized price @ Rs. 3,77,000/- which were paid to the above-mentioned persons by her.
He further deposed that when they came to know about the forgery, they lodged police complaint. Later on, non-bailable warrants were issued against the above- mentioned persons. On one day, he had gone to Najafgarh for some work where, he saw Kulbushan Jain present in his shop. He immediately made the call on 100 number and also to the concerned investigating officer of the present case. PCR came and took Kulbhushan and himself to PS Najafgarh. The investigating officer of the present case directly reached at PS Najafgarh. Certain formalities were conducted by the police while at PS Najafgarh. Thereafter, police officials took him and Kulbushan Jain to the house of Chokhe Lal, where he was found present. Chokhe Lal was also taken into police custody. Thereafter, both Kulbushan, Chokhe Lal and himself were brought to PS Maya Puri. He had put his signature on certain documents prepared by police officials. Later on, he was relieved from the investigation. During his cross-examination, he denied the suggestion that he has no knowledge about the present case or that the accused persons have been falsely implicated in order to extort money from them.
7) WSI Nirmala is the duty office in the present case and she was examined as PW- 7, who registered FIR No. 272/05 which is Ex. PW-7/A and made endorsement on the rukka which is Ex. PW-7/B. The witness was not cross-examined despite having given the opportunity.
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8) SI Daljeet Singh was examined as PW-8. He deposed that on 29.07.2005, he was posted at PS Maya Puri as HC. On that day, he received DD No. 21A regarding quarrel at C-76, Khajan Basti, Maya Puri, Delhi. When he reached there, he met Jaswant Rai Jain along with his brother in law (Damaad) namely Sh. Praveen, Sh. Kulbhushan Jain, Sh. Rajender Rohilla and Sh. Chokhe Lal and they told him that Sh. Praveeen Jain had purchased one plot in the name of his wife namely Smt. Neela in Siraspur, Delhi. Thereafter, complainant & accused persons were talking for amicably settling the matter with each other in respect of the disputed property. The accused persons agreed to pay the settled to the complainant but they did not have cash as well as cheque on that day. Thereafter, Sh. Praveen Jain gave in writing that he did not want any action in matter. IO recorded his statement on 13.11.2005 in this case. During his cross-examination, he admitted that settlement arrived in his presence between the husband of the complainant and accused.
9) ASI Ram Bahadur was examined as PW-8. He deposed that on 15.11.2005, he was posted at PS Maya Puri as Ct. On that day, he joined the investigation along with SI Shiv Shankar. At about 7.45 p.m., he along with IO went to the house no. 1016, Jain Mandir Gali, Najafgarh and they met with the accused Kulbhushan. IO made enquiry from the accused and thereafter, he was arrested and personally searched vide memos, which are Ex. PW-9/A & Ex. PW-9/B. IO recorded the disclosure statement of the accused vide disclosure memo, which is Ex. PW-9/B. It was disclosed by the accused that the accused Kulbhushan along with Rajender & Chokhe Lal used to pursue the property dealing. He also revealed that one plot bearing Khasra No. 427 at Siras Pur Village were shown to Ms. Neelam Jain and they were partners of equal share in the said plot measure 350 sq. yds. He also stated that Rs. 10,000/- were taken by Chokhe as earnest money and they have signed the documents. The deal was supposed to be in sum of Rs. 3,77,000/-. The accused persons also gave receipt to the complainant. He also stated that on 29.07.2005, the complainant called them to pay remaining amount and at the house of the complainant, verbal altercation took place amongst them and it was decided that the amount which was already given by the complainant would be returned to the complainant in cash as well as through the State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 8 of 15 cheque. One forged cheque was given by Chokhe Lal amnd this fact was revealed to Kulbhushan by Chokhe Lal. IO recorded his statement. The witness has correctly identified the accused Kulbhushan. The witness was cross-examined but nothing material came out in his cross-examination.
10) HC Vinay Kumar was examined as PW-10. He deposed that on 16.11.2005, he was posted at PS Maya Puri as Ct. On that day, IO had taken specimen signature of the accused Kulbhushan in his present on five pages and he have signed on those papers. IO recorded his statement. The specimen signature of the accused Kulbhushan is now Ex. PW-10/A (Colly). The witness was cross-examined but nothing material came out in his cross-examination.
11) ASI Umed Singh was examined as PW-11. He deposed that on 29.01.2006, he was posted at PS Maya Puri as Ct. On that day, he had joined the investigation of the present case with SI Shiv Shankar. During the investigation, he along with IO went to the house of Kulbhushan & Tarun Jain in Najafgarh. In the said house, Kulbhushan met and IO showed him the warrant of arrest. Thereafter, IO arrested accused Kulbhushan Jain in his presence. IO has also conducted the personal search of the accused Kulbhushan Jainv vide personal search memo, which is already Ex. PW-6/C. Thereafter, Tarun Jain, Kulbushan Jain, IO and himself to the house of the accused Chokhe Lal at Vijay Park, Najafgarh. The accused Chokhe Lal met them, who was interrogated by the IO vide disclosure statement which is already Ex. PW-6/E. Thereafter, the accused Chokhe Lal was arrested and personally searched vide memos, which are already Ex. PW-6/B & Ex. PW-6/D respectively. IO also obtained specimen hand-writing/signature of the accused Chokhe Lal which is already Ex. PW- 6/A. The witness was cross-examined but nothing material came out in his cross- examination.
12) Sh. Praveen Bhardwaj was examined as PW-12. He deposed that In the year 2006, he was working as Patwari and was posted in Office of SDM, Narela, Delhi. He provided copy of Khatoni of Khasra no. 427, Village Siraspur for the year 1990-91 to the IO. The said land was in the name of Sh. Om Prakash and Missel No. 881/2000-01 dated 07.03.2001. The land was in the name of Rajesh & Rakesh, both State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 9 of 15 the sons of Sh. Om Prakash. As per revenue record, owner of Khasra No. 427 was Sh. Om Prakash. After the death of Sh. Om Prakash, his son Rajesh & Rakesh became owner of the said Khasra. Copies i.e. Khatoni of Khasra No. 427 for year 1990-91 and 2003-04 provided by him to IO are on record which is Ex. PW-12/A & Ex. PW-12/B respectively. That day, he has brought the original record (OSR). The witness was not cross-examined despite having given the opportunity.
13) Retd. SI Shiv Shankar is the IO in the present case, who was examined as PW-
13. He deposed that on 04.10.2005, he was posted at PS Maya Puri as SI. On that day, the present case was marked to him for investigation. In the course of investigation, he went to house of the complainant in Khajan Basti, Maya Puri, where he met with complainant Smt. Neelam Jain and he recorded her statement and obtained the documents i.e. agreement to sell, Ikrarnama and one document in hand-writing of the accused Chokhe Lal, other relevant documents which were used for purpose of forgery and same is marked as Mark-X1 (Colly). He seized these documents by preparing seizure memo, which is Ex. PW-13/A. Thereafter, he went to Syndicate Bank, Nazafgarh to obtain the account details of the accused Chokhe Lal but same was found opened in the name of lady Sunita and when he enquired from husband of Sunita about the cheque issued by the accused Chokhe Lal, he disclosed that the said cheque was misplaced and same might be used the cheque. Thereafter, he went to verify the property no. 182 (Khasra No. 427) situated in Bhagat Singh Park, Village Saraspur and after verification of the said property, it was found that the same was registered in the name of one person namely Om Prakash (deceased) and subsequently in the name of his children. Thereafter, he obtained the relevant record pertaining to the above said property from SDM Office, Narela and the same is already marked as Mark-P and also obtained Nakal of Khatoni which are already Ex. PW-12/A & Ex. PW-12/B. Thereafter, he arrested and personally searched the accused Kulbhushan vide memos, which are Ex. PW-9/A & Ex. PW-9/A. Disclosure statement of the accused Kulbhushan was also recorded vide disclosure memo, which is already Ex. PW-9/C. Thereafter, he arrested and personally searched the accused Chokhe Lal, vide memo, which are already Ex. PW-6/C & Ex. PW-6/D. Disclosure statement of the accused Chokhe Lal was also State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 10 of 15 recorded vide disclosure memo, which is already Ex. PW-6/E. After arresting the accused persons, they were medically examined and put behind the bar. On the next day, they were produced before the court. He obtained the specimen signature and hand-writing of the accused Kubhushan Jain in Hindi and Chokhe Lal in Hindi & English and same are marked as Mark-Y (running into 15 pages) (Colly) and sent the same to FSL, Rohini, Delhi. Thereafter, he obtained the warrant against the accused Rajinder. Thereafter, he prepared the charge-sheet and same was filed before the court. The witness has correclty identified the accused persons namely Kulbhushan Jain & Chokhe Lal. During his cross-examination, he stated that no settlement between the complainant and accused persons made out in his presence but the fact of settlement was in his knowledge. He did not mention anywhere in the charge sheet that the settlement between the complainant and the accused had taken place.
14) Sh. Devak Ram Sharma is the forensic expert, who had examined the signatures of the accused persons in the impugned forged documents and he was examined as PW-14. He deposed that on 10.04.2007, he was posted at FSL, Rohini, Delhi as senior scientific officer of document division. Certain documents were received in his laboratory on 16.03.2006 from Addl. DCP, South, West, District vide their Memo No. 177R/SHO Maya Puri. The questioned documents were marked as Q1 to Q19, Q9/1, Q10/1 and specimen signature marked as S1 to S5 of Kulbhushan Jain and S6 to S15 of Chokhe Lal. He examined the documents with the help of available instruments in my laboratory and gave his opinion vide his reports which are Ex. PW-14/A and Ex. PW-14/D. He has also identified the question documents, which was sent by the IO for the comparison of signatures of the accused persons, which are Ex. PW-14/B & Ex. PW-14/C. The witness was not cross-examined despite having the opportunity.
3. Thereafter, statement of accused persons namely Kulbhushan Jain & Chokhe Lal U/s 313 of Cr.P.C. was recorded, wherein all the incriminating facts were put to the accused persons. The accused stated that they have been falsely implicated in the present case and they were innocent. Accused persons opted not to lead defence evidence.
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4. This Court has heard the arguments and perused the record.
5. It is observed that testimony of PW-1 Smt. Neelam Jain is consonance with facts stated in her original complaint, on the basis of which, an order under Section 156(3) of Cr.P.C. for registration of the present FIR was passed. She had correctly identified both the accused persons namely Kulbushan Jain & Chokhe Lal, who induced her to purchase one plot no. 182, Khasra No. 427, situated at Siras Pur, Bhagat Singh Park. She had also identified her signatures on the various documents executed between her and the accused persons. She categorically deposed that she was represented that real owner of the property in question was Chokhe Lal. Her husband Sh. Praveen Kumar Jain (PW-2) had also supported her version. From the testimony of PW-5 Sh. Rajesh Rana and PW-12 Sh. Pradeep Bhardwaj, Kanoongo, it is established that real owner of the property in question was one Sh. Om Prakash. Even though, original receipt, Kararnama were not produced, nevertheless, signatures of the accused persons namely Kulbhushan Jain & Chokhe Lal have been identified in the undertaking dated 30.07.2005 of the accused Chokhe Lal (Ex. PW-14/B) and one hand written receipt issued by the accused Chokhe Lal, witnessed by the accused Kulbhushan Jain (Ex. PW-14/C) regarding having received Rs. 65,000/- in cash from the complainant Smt. Neelam Jain as per the FSL report Ex. PW-14/A. It is pertinent to note that as per the prosecution case, the accused Chokhe Lal had executed property documents in favour of the complainant qua the property in question claiming himself to be the owner of the property in question. It is not the case of the prosecution that the accused Chokhe Lal has claimed himself to be original owner, who is one Sh. Om Prakash. Nor, there is anything on record to indicate that the accused persons had forged the signatures of the real owner Sh. Om Prakash.
Recently, the Hon'ble Supreme Court of Indian in the case of Sheila Sebastian vs. R. Jawaharaj on 11 May, 2018 while upholding decision of acquittal of accused persons by the Hon'ble High court of Madras, Madurai Bench rendered after reversing the concurrent finding of Ld. appellate court as well as Ld. trial court has observed as under:
State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 12 of 15 "The definition of false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no. 1 nor respondent no. 2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such a event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
Simultaneously it was held, after making strong remark against shabby investigation since the investigating officer did not make any effort to nab the imposter, that "Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed"
While dealing with question of making of false document, the Hon'ble Supreme Court of India in Mohd. Ibrahim & Ors. Vs. Sate of Bihar (2009) 8 SCC 751, held as under:-
"In short, a person is said to have made a false document, if (I) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tempered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his sense."
State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 13 of 15 Thus, the prosecution has failed to prove charges for offence punishable under Section 468 & 471 of IPC.
It is contended on behalf of the accused persons that since the accused persons have already been acquitted in connected matter which was filed under Section 138 of N.I. Act at Dwarka Court, Delhi after the compromise was entered into between the parties and therefore, the conviction of the accused persons for the offence under Section 420 of IPC would amount to double jeopardy. In this regard, it is pertinent to note that it is well-settled that Section 300, Cr.P.c. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and 138 of the Negotiable Instruments Act as the said offences are quite distinct and different offences.
It has been held by Andhra Pradesh High Court in case titled as V. Kutumb Rao Vs. M. Chandrasekhar Rao and Anr., 2003 Cri L.J 4405 that, "two offfences covered by Section 420, IPC and 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr.P.c. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact or law to be given in prosecution under Section 138 of the Negotiable Instruments Act. The issue of fact and law to be tried and decided in prosecution under Section 420, IPC are not the same issue of fact and law to be tried in a prosecution under Section 138 of the Act".
Thus, said contention regarding double jeopardy fails to inspire the confidence of this court. The fact that the accused persons avoided the complainant to accompany him for the purpose of verification of property documents and the fact that on being unable to execute sale deed in favour of the complainant, the accused Chokhe Lal had returned the money received by him by handing over a cheque pertaining to bank State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 14 of 15 account, which was later on found to be belonging to someone else clearly indicates that the accused persons have dishonest intention from the very beginning i.e. since 24.05.2005 when the accused persons took the complainant to the plot in question claiming themselves to be owner thereof.
6. All the prosecution witnesses have deposed about the incident fully in consonance with the facts mentioned in the charge sheet. Nothing material has come out in their respective cross-examination. There is no reason to disbelieve the testimony of the prosecution witnesses. The prosecution has proved the fact that on 04.10.2005 at C 76, Khajan Basti, Nangal Rai, New Delhi, accused persons namely Kulbhushan Jain & Chokhe Lal had entered in a conspiracy to commit an offence punishable with imprisonment and also after entering into the conspiracy, they cheated the complainant Ms. Neelam Jain and induced her to hand over Rs. 3,77,000/- on the pretext of sale consideration of a plot bearing no. 182, Khasra No. 427, Siras Pur, Bhagat Singh Park, which was not in the name of Chokhe Lal, thereby the accused persons caused wrongful loss to the complainant and wrongful gain to themselves. All the ingredients of section 420/120B of IPC are proved. The testimony of prosecution witnesses comes out to be clear, convincing, trust-worthy & inspires confidence of this Court. Accordingly, accused persons namely Kulbhushan Jain & Chokhe Lal are hereby convicted for the commission of offence punishable under Section 420/120B of of IPC and acquitted for commission of offence punishable under Section 468 & 471 of IPC. The convict be Digitally signed heard on the point of sentence on 12.02.2019 at 2.00 p.m. by PANKAJ PANKAJ ARORA Announced in the open Court, ARORA Date:
2020.01.17 On 25th January, 2020. 16:13:08 +0530 (Pankaj Arora) MM-03/West/THC/Delhi 25.01.2020 State Vs. Kulbhushan Jain & Ors. FIR No. 272/05, PS Maya Puri Page No. 15 of 15