Delhi District Court
State vs Mahender Kumar Ors on 15 September, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presided over by - Ms. Medha Arya, DJS
Cr. Case No. : 2031886/2016
FIR No. : 433/2000
Police Station : Kotla Mubarakpur (EOW)
Section(s) : 419/420/467/468/471/409/120B IPC
In the matter of -
STATE
Vs.
i) Mahender Kumar
S/o Sh. Devi Dayal
R/o BG-5/75B
Paschim Vihar
New Delhi
ii) Subhash Chander Chugh
S/o Sh. Dhan Pal Rai
R/o L-1/101A, DDA Flat
Kalkaji, New Delhi
iii) Jai Prakash Gupta
S/o Late Sh. Amolak Ram
R/o A-39B, Ashok Vihar-I
Delhi
iv) Rakesh Sharma
S/o Late Sh. P.D. Sharma
R/o 234, Sector 4
Gurugram, Haryana
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 1 of 39
v) Sri Krishan Goel
S/o Sh. B.M. Goel
R/o C-60A, Gangotri Apartments
Alaknanda, New Delhi
vi) Sunita Goel
W/o Sh. Sri Kishan Goel
R/o C-60A, Gangotri Apartments
Alaknanda, New Delhi .... Accused
Sh. Amar Chatterjee, the then
1.Name of Complainant : Director (Housing-I), DDA, INA, New Delhi
2. Name of Accused : As above.
419/420/467/468/471/409/120B
3. Offence complained of or proved :
IPC
4. Plea of Accused : Not guilty
5. Date of commission of offence : In or around 1998/1999
6. Date of Filing of case : 26.02.2001
7. Date of Reserving Order : 03.09.2025
8. Date of Pronouncement : 15.09.2025
9. Final Order : Acquitted Argued by - Ld. APP for the State.
Ld. Respective Counsel for the accused.
"A cage going in search of a bird."
- Franz Kafka After 26 years of trial, what remains is not proof of guilt but the spectacle of procedure consuming itself. The record reflects endless notings, bulky files, and repeated proceedings which, instead of uncovering truth, only perpetuated formality. At the culmination of a trial initiated by a system in search of evidence never fully there, accused persons stand acquitted.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 2 of 39BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. In the year 1998, a DDA flat bearing no. 30F, Sector 7, CAT-II, Jasola, New Delhi was allotted to one Ms. Usha Suri, at an estimated cost of Rs.6,28,300/-, vide allocation letter dated 08.04.1993. All the payments for the flat were deposited by another person on behalf of allottee Ms. Usha Suri. Fifth and final demand letter dated 30.09.1998 was issued by the DDA w.r.t. the said flat at a total cost of Rs.10,59,200/-. A bank challan of Rs.5,25,490/- in this regard was submitted by one Sh. H.K. Sharma vide letter dated 28.01.1999, and on the basis of an SPA, purportedly executed in his favour by the original allottee, the possession letter of the flat was issued in his favour. Subsequently, a complaint dated 09.11.2000 came to be filed under the signatures of Sh. Amar Chatterjee, Director (Housing-I), DDA, Vikas Sadan, INA, New Delhi, with Crime Branch, Delhi complaining that the payments w.r.t. the said flat were found to be deposited by some third person on behalf of the allottee, basis her forged signatures. It was also stated in the complaint that the cost of the flat was wrongly and fraudulently reduced from Rs.10.59 lakh to Rs.7.84 lakh, after a forged application, bearing the purported signatures of the allottee, was processed by concerned DDA officials. The refund cheque of Rs.2,38,227/- was also fraudulently encashed in the joint bank account opened in the name of original allottee Ms. Usha Suri as well as Smt. Sunita Goel, wife of Sh. S.K. Goel, which account was opened through an account opening form, never actually signed by Ms. Usha Suri. It was alleged in the complaint that the file of refund was fraudulently processed by the staff of Housing Accounts State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 3 of 39Wing and Management Wing of DDA, acting in conspiracy with property dealer S.K. Goel and his wife Sunita Goel. On the basis of the said complaint, the FIR instant was registered, and investigation was undertaken.
2. On culmination of the investigation, the subject charge-sheet was filed against the accused persons. It is stated in the same that accused Mahender Kumar, working as Accountant, DDA and J.P. Gupta, Accounts Officer, DDA dishonestly recommended the reduction of cost of the aforementioned flat without the specific approval of the competent authority, and the file was also processed by S.C. Chugh, Asstt. Director, SFS, Management Wing, DDA with undue haste without doubting the fact that the address of the allottee on the file placed before him is incorrect, and it is actually the address of property dealer S.K. Goel. It is also recorded in the charge sheet that the possession letter of the flat was wrongly handed over to Sh. H.K. Sharma on the basis of an SPA and other documents, which are forged on the face of it. The charge sheet also records that accused S.K. Goel somehow procured the original allotment file of the flat from Ms. Usha Suri, kept depositing the installments the same in her name, and thereafter, unauthorizedly sold the flat to Sh. H.K. Sharma. It is also alleged against him that he opened a fake bank account jointly in the name of his wife Sunita Goel as well as the original allottee Ms. Usha Suri, by submitting a forged account opening form in the bank, and in the said bank account, collected the refund amount of Rs.2,38,227/-. Basis these allegations, aforesaid accused were chargesheeted for the offences punishable u/s 419/420/467/468/471/409/120B IPC.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 4 of 393. Subsequently, a supplementary charge sheet was also filed against accused Rakesh Sharma, with the allegation that in the capacity of Sr. Branch Manager, Union Bank of India, Anand Niketan Branch, he had permitted accused Sunita Goel and S.K. Goel to open a joint bank account, adding the name of Ms. Usha Suri therein, on the basis of a forged account opening form, in the absence of the said Ms. Usha Suri. A further supplementary chargesheet was also filed along with the FSL result.
4. Cognizance of the offences as disclosed in the charge sheet was taken, and the accused were called to face trial. Copy of charge-sheet was supplied to them in compliance of Section 207 CrPC. Thereafter, charge for the offences punishable u/s 409/120B IPC was framed against accused S.C. Chugh, J.P. Gupta and Mahender Kumar. Charge for the offence punishable u/s 120B IPC was framed against accused Rakesh Sharma. Charge for the offences punishable u/s 471/120B IPC was framed against accused Sunita Goel and S.K. Goel. All of the accused pleaded not guilty to the respective charges alleged against them, and claimed trial. Proceedings then progressed to the stage of PE.
5. In support of its version, prosecution has examined 13 witnesses:
PW Name Nature of Testimony PW1 Ms. Nirmala S. Nayyar She testified that she had never Advocate/Notary Public signed/notarized the SPA purportedly executed by Ms. Usha Suri in favour of Sh. M.L. Sharma, and denied signing the remaining chain of documents in this State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 5 of 39regard as well.
PW2 Sh. V.D. Arora Testified qua the prescribed procedure The then Dy. Financial and practice duties of the Asstt. Director, Advisor, Housing, DDA Housing and Asstt. Accounts Officer. He testified that as per the policy dated 31.03.1999, there was no provision for reduction of cost in past cases. He testified that vide order dated 07.09.1999, the Vice Chairman, DDA had decided to revise past cases where demanded payments had been made prior to 22.04.1996 and possession letters were not issued earlier. He testified that in the instant case, the possession letter had already been issued, and undue benefit was given by accused Mahender Kumar, JP Gupta and SC Chugh by issuing the refund cheque of Rs.2,38,227/- in favour of Ms. Usha Suri.
PW3 Sh. Devendra Bhushan He testified that the refund in the name Gupta of Ms. Usha Suri was wrongly The then Commissioner, Housing, DDA processed, without any authorization from the Financial Advisor (DDA), who had been delegated the power to process the refund, and who was not authorized State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 6 of 39to delegate his powers ahead. He also proved the noting on the relevant DDA file in the name of Ms. Usha Suri for taking permission of Vice-Chairman, DDA prior to the lodging of the subject FIR, Ex PW3/A. PW4 Ms. Ila Singh She testified that as per the prevailing The then Financial policy dated 31.03.1999, the allottees Advisor, Housing, DDA who had deposited the amount of the flat prior to 22.08.1996 were to be restored at old cost, and the allottees who had deposited the amounts after the said date, were to be restored at the current cost of the flat then prevailing.
PW5 Sh. K.P. Lakshmana He testified that he had granted sanction Rao u/s 197 CrPC for prosecution of accused The then Finance Member, DDA Mahender Kumar, SC Chugh and JP Gupta, Ex PW5/A to Ex PW5/C. PW6 Inspector Manoj Kumar He testified that he had joined investigation of the case with IO SI J.S. Mishra on 12.02.2001, who arrested accused S.K. Goel and Sunita Goel in his presence. He deposed that IO discharged the codal formalities such as recording of their disclosure statements State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 7 of 39etc. in his presence.
PW7 ASI Bijender He testified that he had joined the investigation of this case on 12.02.2001 with IO SI J.S. Mishra. He also testified regarding the codal formalities discharged by the IO regarding the arrest of the accused.
PW8 Sh. Parveen Gambhir He testified that he had introduced accused S.K. Goel and Sunita Goel with the concerned bank, and had signed their bank account opening forms as an introducer. He stated that when he signed the forms, same did not bear the photographs or signatures of Ms. Usha Suri.
PW9 ACP Anil Kumar He testified that complaint of the First IO complainant was marked to him on 15.11.2000, after which he got the subject FIR registered, and commenced the investigation, which he continued until his transfer.
PW10 Sh. Pawan Kumar He proved his notings Ex PW10/A to Sharma PW10/D, and Ex PW2/E, in the the then Dealing Assistant, DDA concerned DDA file pertaining to Ms. Usha Suri.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 8 of 39PW11 Sh. Amar Chatterjee He proved his complaint, Ex PW11/A as The then Director, well as the noting on DDA file, Ex Housing-I, DDA PW11/B. PW12 Sh. D.R. Srivastava He proved his noting, Ex PW12/A on the The then Legal DDA file pertaining to Ms. Usha Suri.
Assistant, Housing, DDA PW13 ACP J.S. Mishra He testified that investigation of the case Investigation officer was marked to him on 09.01.2001. He supported the case of prosecution.
6. All accused admitted, as per Section 294 CrPC, the genuineness of the present FIR, Ex D1. In view of the above said admission, corresponding prosecution witness, formal in nature, was dropped from the list of witnesses to be examined. PE was closed thereafter.
7. After conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 313 CrPC, wherein they claimed to be innocent and denied the allegations levelled against them. Accused Mahender, S.C. Chugh, and Jai Prakash Gupta out-rightly denied the allegations that they had processed the allotment file of Ms. Usha Suri, knowing that it contains forged documents. All of them stated that when the documents were put before them, they were already notarized and they had no occasion to doubt the veracity of the documents. Accused Rakesh Sharma stated that he had permitted the opening of the joint bank accounts of accused Sunita Goel and Ms. Usha Suri, and accused S.K. Goel and Ms. Usha Suri, after they were introduced by existing customer Sh. Praveen State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 9 of 39Gambhir. He also stated that all of the aforesaid persons were present before him along with one Mohd. Jahid and 2-3 other persons, when the formalities for opening of bank account were completed. He also stated that even as per internal inquiry conducted by the concerned bank, it was found that the bank account had been opened as per proper procedure. Accused S.K. Goel and Sunita Goel also similarly submitted that their joint bank accounts were opened on the basis of account opening form duly signed by Ms. Usha Suri herself. On specific query, accused Mahender, J.P. Gupta and S.C. Chugh opted to lead to DE in the affirmative. Proceedings accordingly progressed to the stage of recording DE.
8. At the stage of DE, the following DWs were examined:
DW Name Nature of Testimony DW1 Sh. Prahlad Narayan He produced the letter of the then Meena Financial Advisor (Housing), DDA from JA/Ahlmad in the court of the judicial file in FIR No. 422/2000, Ex. undersigned DW1/1 (OSR).
DW2 Sh. Shubham Singh He produced the posting order of accused Asstt. Accounts J.P. Gupta Accounts Officer for the year Officer, DDA 1991-2000 Ex. DW2/1 (OSR) and posting order of accused Mohinder Kumar, Asst.
Accounts Officer, DDA, Ex.DW2/2 (OSR).
DW3 Sh. Nitin Kumar He produced the posting order of accused Sharma S. C. Chugh, Assisting Director from the State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 10 of 39Sr. Secretariat office of DDA, pertaining to the year Assistant, DDA 1991-2000, Ex. DW3/1 (OSR).
DW4 Sh. Rohit Sachdeva He produced the copy of letter dated Dy. Financial Advisor, 09.11.2006 from the file bearing no.
DDA JT.FA (H)-I/RTI05/3853/233 issued by the office of the then Deputy Financial Advisor in reply to the RTI application of accused Mohinder Kumar, Ex. DW4/1 (OSR).
DW5 Sh. Ashok Kumar He produced the letter dated 08.04.2008 Director, Housing-I, written by accused Mohinder Kumar DDA under RTI and its reply dated 13.05.2008, Ex. DW5/1(colly).
DW6 Sh. Aniraj Kumar He produced the copy of the application JA/Ahlmad filed by the prosecution in FIR NO.
483/2000 titled as State vs Jai Prakash and Ors. u/s 311 Cr.PC on 08.03.2018, Ex.
DW6/1.
DW7 Sh. Chirag Gautam He produced the closure report filed by JJA/Asstt. Ahlmad the IO in FIR No. 157/1993 titled as State vs Final Report in the court of Ld. CJM, South East District, Saket, New Delhi, Ex.
DW7/1 (Colly).
DW8 Sh. Deepak He produced the copy of the order dated JSA, SFS, Housing 17.11.1999 issued from the office of the Branch, DDA State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 11 of 39then Joint Director (SFS), DDA as provided to the accused S. C. Chugh vide reply dated 05.02.2018 under RTI, Ex.DW8/2 (Colly).
DW9 Sh. Mohinder Kumar He testified that the address of the allottee Accused himself of Ms. Usha Suri was changed on her allotment file vide her application dated 11.01.1993, mark DW9/D. He testified that on 26.11.1996, DDA had issued a letter to her to submit an affidavit for non-
sale of allocated flat vide letter Ex.DW9/2, and the said affidavit is Ex.
DW9/4 along with covering letter dated 26.09.1997 was duly filed by her. He further deposed that the demand letter was issued to the allottee Ms. Usha Suri for a sum of Rs.5,25,420/- vide letter dated 30.09.1998, Ex. PW2/B. He further deposed that on 16.09.1999, the allottee appeared in the Lok Shivir organized by DDA, with the request of refund her excess amount, and after the said request was processed, she was found to be entitled to a sum of Rs.2,38,237/-, and cheque amounting to the said sum was sent to her at her postal address at Vani State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 12 of 39Vihar, Uttam Nagar, New Delhi, Ex.
PW2/G. He testified that it was neither his duty nor his responsibility to cross check the veracity of the documents of allottee.
The witness was discharged due cross examination.
9. Proceedings then progressed to the stage of final arguments. Arguments heard. Record, including written submissions filed by accused persons, perused. Considered.
RELEVANT LEGAL POSITIONS
10. Before proceeding further, it shall be apposite to discuss the relevant legal provisions which are pertinent for the adjudication of the controversies involved in the present case:
Sections 101 and 106 Indian Evidence Act, 1872
11. It is trite that burden of proving the guilt of the accused beyond reasonable doubt is on the prosecution, and the prosecution is required to traverse the distance between "may have" and "must have". This can be surmised from Section 101 of Evidence Act. As per 106 of the aforesaid enactment, the burden of proving any specific fact which is within the knowledge of the accused is on the accused.
Reasonable Doubt State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 13 of 3912. Prosecution is required to prove its case against the accused persons beyond every reasonable doubt, and not beyond every doubt. The meaning of expression "Reasonable Doubt" has been explained by the Hon'ble Apex Court in Latesh @ Dadu Baburao Karlekar Vs. The State of Maharashtra, (2018) 3 SCC 66 thus:
"In our opinion, an ingenious mind can question anything and, on the other hand, there is nothing which it cannot convince. When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt."
Section 409 IPC
13. Section 409 IPC provides for the offence of Criminal Breach of Trust by a public servant, who has been entrusted with any property or dominion over any property in his capacity of public servant. The offence of criminal breach of trust itself is defined in Section 405 of the IPC. As per the same, whenever any person is entrusted with any property or with any dominion over any property, dishonestly misappropriates or converts the same to his own use in violation of any direction of law prescribing the mode in which such trust has been discharged, or of any express or implied legal contract, he is said to commit Criminal Breach of Trust. The scope of Section 409 IPC can be well understood from the pronouncement of the Hon'ble Apex Court in Som Narth Puri vs The State of Rajasthan, AIR 1972 SC 1490, wherein it was held as under:
State vs. Mahender Kumar & Ors.FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 14 of 39
"Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it."
Section 197 CrPC
14. Section 197 CrPC provides for the requirement of Sanction for prosecuting a public servant w.r.t. an offence alleged to have been committed by acting or purporting to act in the discharge of his official duty. In the case at hand, accused persons Mahender Kumar, S.C. Chugh and J.P. Gupta were employed with DDA, at the time of registration of subject FIR. However, as it has been alleged that they committed the offence punishable u/s 409/120B IPC, there was no requirement of Sanction u/s 197 CrPC for prosecuting them for the offences alleged. At this juncture, reliance can be placed on the pronouncement of Hon'ble Apex Court titled in Punjab State Warehousing Co. vs. Bhushan Chander and Anr., AIR 2016 SC 3014, wherein it has been held that:
"A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the State vs. Mahender Kumar & Ors.FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 15 of 39
discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha's (supra). The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."
Section 471 IPC
15. Section 471 IPC provides that any person who uses as genuine a forged document shall be punished in the same manner as if they had forged the document themselves. What is a forged document is itself defined in State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 16 of 39Section 464 IPC. For the purposes of the case incident, a person can be said to forged a document if he dishonestly or fraudulently makes, signs, seals, or executes a document or part of document with the intention of causing it to be believed that such document or part of document was made, signed, sealed, executed, transmitted, or affixed by or by the authority of a person by whom or by whose authority he knows it was not made, signed, sealed, executed or affixed. In the case Md. Ibrahim and Ors. Vs. State of Bihar and Anr., (2009) 8 SCC 751, it was held that:
"a person is said to have made a 'false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
Section 120B IPC
16. Section 120A IPC defines the offence of conspiracy, and punishment for the same is provided u/s 120B IPC. In Pratapbhai Hamirbhai Solanki vs. State of Gujarat, (2013) 1 SCC 613, the scope of offence punishable u/s 120B IPC was explained thus:
"23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 17 of 39Section 313 CrPC
17. Statement of the accused u/s 313 CrPC is also relevant for the Court while deciding a case, and the opportunity accorded to accused to explain the incriminatory material brought on record by prosecution, is an opportunity to cast incredulity upon such material. Where the statement of the accused provides links or aids the case of prosecution, the same can also be considered by the Court while finally adjudicating the case. Reliance at this juncture can be placed on Md. Aslam vs State, CRL. A. No. 214/2016, Hon'ble High Court of Delhi (DOD 25.04.2016), wherein it was held as under:
"6.47 Answers given in statement recorded u/s 313 Cr.P.C. have also some relevance. Though, such statement u/s 313 Cr.P.C. is not a substantive piece of evidence since it is not recorded on oath nor it is subjected to any cross examination, yet such statement can, be taken into consideration, at the trial, against the accused for the purpose of arriving at the guilt or otherwise of the accused. Since no oath is administered to the accused, the statements made by the accused will not be, strictly speaking, evidence. Sub-section (3) also says that the accused shall not render himself liable to punishment if he give false answer. But, then comes sub-section (4), which provides that answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Thus, the answers given by the accused, in response to his examination, under Section 313, can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly construed as evidence, sub- section (4) permits that it may be taken into consideration in the said inquiry or trial. However, such self- incriminating statement indicting co-accused cannot be said to be sufficient in itself. The court can rely on a portion of the statement of the accused and find him guilty but such statement should not be considered in isolation but always in conjunction with evidence adduced by the prosecution. Reference be made to SANATAN NASKER VS. STATE OF BENGAL AIR 2010 SC 3570."
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 18 of 39ANALYSIS AND FINDINGS
18. The facts of the case shall be analysied through the prism of the legal position enunciated above.
19. The allegations against accused Mahinder Kumar, S.C. Chugh and J.P. Gupta shall be dealt with together. It is alleged against accused Mahinder Kumar and JP Gupta:
i) On a fake request dated 16.09.1999, they recommended for the reduction of cost without the specific approval of competent authority, i.e. Commissioner (Housing) Vice Chairman, DDA to 7.85 Lacs from Rs.10.16 Lacs by giving the undue benefit to S.K. Goel the Property Dealer.
ii) They refunded a sum of Rs.2,11,305/- vide cheque No. 45291 dated 23.09.1999 without seeking approval of the competent authority.
iii) There are nine signatures of various officials/officers of housing accounts wing on the file on the same date i.e. 22.09.1999 regarding reduction in cost and refund of amount and all the formalities of approval of refund, preparation of cheque were completed on the same day at the instance of a accused persons viz Mahender Kumar, J.P. Gupta and S.C. Chugh which shows the connivance of these accused persons with each other, and property dealer, resulting in a loss of Rs.2,11,305/- to DDA.
iv) They did not tally the signatures of original allotee Smt. Ms. State vs. Mahender Kumar & Ors.FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 19 of 39
Usha Suri with her genuine signatures already available in the file. They also did not doubt in their notings the different address given by the property dealer in the refund application, on behalf of original allottee Ms. Usha Suri, whose signatures were forged in the same.
v) They directed the cheque of refund at the address of S.K. Geol Property dealer in connivance with S.C. Chugh without verifying the genuineness of the said address, which was not available anywhere in the DDA files
20. It is alleged against accused S.C. Chugh, Assistant Director (SFS), Management Wing:
i) He entertained the fake request dated 16.09.1999 for the reduction of cost without verifying the signatures of original allottee with the genuine signatures of the original allottee already available on DDA file. Also, he did not doubt the address of original allottee, which was different and never came in the DDA file, and actually is the address of accused S.K. Goel the property dealer which shows his connivance with the property dealers. He did not tally/examine the contents of the affidavit filed by the SPA Holder whereas these documents were typed on different typewriters in different ink.
ii) He handed over the possession letter of the flat to Sh. H.K. Sharma SPA Holder on the basis of forged SPA, affidavit, undertaking etc. which was apparently visible from the first look of the documents.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 20 of 39iii) He deliberately did not call the original allottee at the time of handing over the possession letter to SPA Holder as there were many discrepancies in the documents such as additions of flat number, name and address in different ink and typewriter on all the affidavits, undertaking, SPA etc. Also, age of documents filed for the physical possession was deliberately ignored.
iv) He did not verify the genuineness of the documents file for the possession letter, as the proper notarization by Advocate Notary and the stamp of stamp vendor were not visible, and he accepted the same without any objection, and issued the possession letter as well as physical possession to SPA Holder on these fake documents which shows his malafide intentions and connivance with property dealer.
21. Having noted the allegations against the accused persons, a preliminary objection relating to the sanction under Section 197 CrPC, which was obtained by the prosecution before prosecuting the aforesaid accused, shall be dealt with. To prove that a valid sanction had been obtained to prosecute the accused persons, prosecution examined PW5 Sh. K.P. Lakshmana Rao. He testified that on the relevant day he was posted as Finance Member of DDA and had granted these sanctions under Section 197 CrPC for prosecution of accused Mahinder Kumar, S.C. Chugh, J.P. Gupta, after carefully examining the material placed before him in regard to their illegal activities in the capacity of their being public officers by the Crime Branch, Delhi Police. He testified that the sanctions granted by him are Ex PW5/A, Ex PW/B and Ex PW/C. State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 21 of 3922. In his cross-examination, he testified that he does not recall who was the appointing authority of the accused persons when they were recruited. He deposed that he had accorded the prosecution sanction against the accused persons on the basis of report furnished to him by Crime Branch, which included the FIR and the initial complaint of Director Housing, DDA, but had not seen any other document at the time of according sanction for prosecution against the accused persons. He testified that he cannot recall who was the competent authority at the relevant time for processing a reduction of cost and refund of the cost of flat, and accepted as correct the suggestion that at the time of according sanction, he would have been aware of the same. From this suggestion of the accused, it can be inferred that the sanction was not based on complete non-application of mind. While there are some gaps noticeable in the testimony of the witness, inasmuch as he admitted as correct the suggestion that the vigilance note on the basis of which he had accorded the sanction is not on the file, given the position of law discussed in the foregoing portions of this judgment, that where an offence such as 409 IPC has been alleged against public servants, which offence cannot be said to have been committed by them in discharge of their official duties, there is no requirement for a prior sanction under Section 197 CrPC for prosecuting such public servants, the existence of some loopholes in the testimony of the witness does not adversely effect the prosecution case. The objection taken by the aforesaid accused that the prosecution against them is bad in law for want of a proper sanction can thus, be set at naught.
23. At this stage, it is to be noted that the initiation of the subject proceedings was not on the complaint of Ms. Usha Suri, the original allottee State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 22 of 39of the flat. She never made any complaint to any police authority or other authority regarding the fact that the possession letter with respect to a flat, which was allotted to her, was issued in the name of some unknown person, and that the refund amount was also given to some other person not authorised by her. Not only that, her presence could never be secured by the prosecution during trial. This is a major loophole in the case of prosecution inasmuch as the victim of the alleged fraud committed by the accused persons in conspiracy with each other never proved that she had been defrauded in any manner.
24. As per the record, the subject proceedings commenced on the complaint of complainant Sh. Amar Chatterjee, the then Director, DDA. He stepped into the witness box as PW11 and proved his complaint Ex PW11/A. He testified that the complaint was made on the instructions of the then Commissioner Housing, which is already Ex PW3/A, and his noting on the same is Ex PW11/B. As per this complaint, Ex PW11/A, the same pertains to fraudulent allotment to Ms. Usha Suri of flat number 30F, Sector 7, Category 2, SFS, Janakpuri and encashment of cheque amounting to Rs.2,38,227/- by an impostor. While the subject of the complaint indicates that it pertains to fraudulent allotment of a flat itself, the contents make it clear that what has been alleged in the complaint is not that a flat was fraudulently allotted to Ms. Usha Suri, but that the possession letter of the same was handed over to one H.K. Sharma on the basis of a forged and fabricated SPA, and on a fake request letter on her behalf, the cost of the allotted flat was reduced from Rs.10.59 lakh to Rs.7.84 lakh vide revised demand letter dated 22.09.1999, which amount was then withdrawn by accused Sunita Goel and S.K. Goel acting in conspiracy with accused State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 23 of 39Rakesh Sharma, fraudulently. There is no evidence led on record by the prosecution to suggest that the allotment of the flat itself in the name of Ms. Usha Suri was fraudulent. In fact, PW11 categorically stated that he had never conducted an inquiry regarding fraudulent allotment of the flat. He also admitted that he never verified if the flat in question was fraudulently allotted to Ms. Usha Suri. The entire tenor of the evidence led on record by the prosecution, and the charge framed against the accused, is also that the accused persons had committed breach of trust by wrongfully processing the fake request letter purportedly written to the DDA by Ms. Usha Suri, and issued her a refund cheque, knowing that the same would be fraudulently encashed by accused S.K. Goel and Sunita Goel, acting in conspiracy with accused Rakesh Sharma.
25. To establish that the request letter dated 16.09.1999 was fake, prosecution examined PW1 Ms. Nirmala S. Nayyar. PW1 Ms. Nirmala S. Nayyar testified in her examination-in-chief that she had never signed the documents present in the DDA file of the allottee Ms. Usha Suri, such as the SPA in favour of M.L. Sharma, affidavit undertaking SPA for taking possession, affidavit, and signature attestation of Ms. Usha Suri, etc. In her cross-examination, the witness also testified that she used to maintain a register for attestation in the year 1998. However, no such register was produced on record to show that the aforesaid documents were not notarised by the witness at any time. Further, in her cross-examination, the witness also admitted that her registration number is not mentioned either in the samples being given to the IO or on the seals appearing on the questioned documents. In view of the same, merely her bald denial that the seals and stamps on the various documents do not belong to her cannot be believed to State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 24 of 39be the gospel truth. It cannot be held to be established, beyond doubt, that her sign and seal on the documents is fake.
26. Next, the very question of refund pertains to the policy of DDA dated 31.03.1999. It merits to be ascertained if, as per the aforesaid policy, Ms. Usha Suri was entitled to any refund in the first place or not. In this regard, PW2 V.D. Arora testified that as per the policy dated 31.03.1999, which came into force with immediate effect, there was no provision to reduce the cost in past cases. He testified that the Vice Chairman of DDA, vide order dated 07.09.1999, had decided to revise the past cases where demand payments were made before 22.08.1996 and possession letters were not issued earlier. He testified that in the case at hand, the possession letter had already been issued, being Ex PW2/C, and therefore, an undue benefit of Rs.2,38,227/- was given. In his cross-examination, the witness accepted as correct the suggestion that in the policy dated 31.03.1999, no such differentiation has been mentioned, but still testified that since the policy came into effect immediately, the past cases were not to be reopened under the same. He was specifically asked if the order of the Vice Chairman, DDA dated 07.09.1999 had been provided by him to the IO, to which he stated that he was never asked for a copy of the same. Bereft of any documentary evidence, solely from the oral testimony of the witness, it cannot be concluded that no refund in the first place ought to have been processed with respect to the flat allotted to Ms. Usha Suri.
27. Moreover, running contrary to the prosecution case, PW3 Sh. Devendra Bhushan Gupta testified in his cross-examination that the case of the allottee Ms. Usha Suri was in the category of cases where the demanded State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 25 of 39amount had been paid till 22.08.1996, and accepted as correct the suggestion that in her case, old cost plus interest or current cost, whichever is lower, was to be charged. From testimony of this witness, it becomes clear that allottee Ms. Usha Suri was entitled to refund of the excess amount deposited by her.
28. PW4 Ila Singh testified that the aforesaid policy was in supersession of all the previous policies issued by the DDA, and as per the same, the allottees who had deposited the demanded amount prior to 22.08.1996 were to be restored at old cost plus interest therein, and the allottees who had deposited the demanded amount after the said date of 22.08.1996 were to be restored at the current cost of that time. In her testimony, the witness did not say that there was any difference of policy as regards the flats where the possession letter had been issued and where the possession letter was yet to be issued when the policy dated 31.03.1999 was notified, and stated that the determining factor was the payment of the demanded amount prior to 22.08.1996 for an allottee to become entitled to a refund.
29. Further, in her cross-examination, Ex PW4/X1, being the certified copy of the file noting dated 02.09.1999 pertaining to the allottees Himat Ram, Harmet Kaur and Gulshan Lal, was shown to her and after perusing the said noting, the witness deposed that as per the policy dated 31.03.1999, all such allottees who had paid their demanded amounts prior to 22.08.1996 were to be charged old cost of the flat plus interest as per para 2 of policy dated 31.03.1999. The witness also perused the policy Ex PW4/A and categorically deposed that the same does not mention the word "possession." She reiterated that the said policy was in supersession of the State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 26 of 39previous order on the subject, was enforceable with immediate effect and was applicable to all the allottees where the demanded amounts had been received prior to 22.08.1996 irrespective of the fact whether any possession letter had been issued in their favour or not. She identified her signatures on the various file notings, and perusal of the document Ex PW4/X which contains the noting of the Commissioner, DDA to the effect that all allottees are entitled to refund under the policy dated 31.03.1999 even if possession letters has been issued to them, leaves no iota of doubt regarding the entitlement of Ms. Usha Suri to a refund. Thus, from the testimony of this witness and the documents referred above, it concretely stands established that under the policy of DDA dated 31.03.1999, the allottee Ms. Usha Suri was also entitled to refund of excess amount deposited by her, irrespective of the fact that a possession letter had already been issued in favour of her SPA prior to the date the said policy came in force.
30. In this context, the testimony of the IO is also important. In his examination, the IO categorically admitted that as per the investigation conducted by him, Ms. Usha Suri being the original allottee was entitled for refund. Asked if, as per the policy dated 31.03.1999, there was any differentiation with respect to allottees who had been given possession letters of their flats and those who had not, the IO testified that he cannot say if such differentiation was contemplated in the policy. Then the file notings of the then Financial Advisor Housing dated 02.09.1999, which were approved by the Commissioner of Housing vide order dated 13.10.1999, which were filed by the IO in case file pertaining to FIR no 165/2003, being Ex PW13/DX1 were put to him, and he was asked whether it was decided that the refund would be made as per the policy dated State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 27 of 3931.03.1999 without any differentiation in the cases of people who had been allotted possession letters of their flats prior thereto. The witness again denied any knowledge qua the same. The witness did not controvert the authenticity of the document, which is an official document pertaining to DDA itself. Perusal of this file noting Ex PW13/DX1 further crystallises the conclusion reached by the Court that as per the aforesaid policy dated 31.03.1999, allottee Ms. Usha Suri was indeed entitled to a refund.
31. Another cavil was raised by the IO in his cross examination, when he answered that the refund made in the name of the allottee was itself not proper, as the allottee had not concluded payments w.r.t. the flat by 22.08.1996. Pertinently, no witnesses of DDA examined by the prosecution ever testified to this effect, and up until the cross examination of PW13/IO , the case of prosecution was only that the refund was not made out as a possession letter had already been issued in the name of SPA of the allottee. The IO/PW13 gave no basis for his testimony to the effect that allottee was not entitled to refund since she failed to complete her payments by 22.08.1996.
32. As already discussed above, from the testimonies of PW2, PW3 and PW4, the consistent case that emerges is that even allottees who had not paid the entire cost by 22.08.1996 were entitled to some refund as per policy. As such, the testimony of the IO/PW13 that no refund was to be made to the allottee Ms. Usha Suri is not believable. All in all, it stands established that per the policy dated 31.03.1999, the allottee was indeed entitled to refund.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 28 of 3933. It is next alleged against the accused persons that they processed the refund file of allottee Ms. Usha Suri without seeking due sanction from the competent authority in this regard. PW2 V.D. Arora testified that it was part of the duties of the Assistant Director (Housing) to see that the original allottee submitted the required documents and to satisfy himself regarding the genuineness of the documents of the original allottee as well. He testified that prior to 13.03.2001, the Accounts Officer was not delegated any power to refund the excess amount, and even after 13.03.2001 the power only extended for a sum of Rs.15,000/-. He testified that in all other cases, Assistant Accounts Officers were required to obtain the approval of the competent authority before signing the refund bill. He testified that in the case at hand, no sanction of the competent authority was obtained by the accused persons before processing the refund request of allottee Ms. Usha Suri.
34. In his cross-examination as well, the witness testified that the aforesaid duties described by him were not in place in writing, but the duties described by him were as per the prescribed procedure and policy. Further, in his cross-examination, he testified that the delegation of financial powers was separately issued vide office letter dated 13.03.2001. However, he admitted that no such office letter was ever handed over by him to the IO. In his testimony, he also adverted to Resolution no. 200 passed by the DDA in the year 1968 to the effect that the Vice Chairman is the competent authority to fix the disposal cost of the flats, but admitted that even this document was never given by him to the IO. The said documents were not produced by the prosecution during recording of the testimony of the witness either. This is a dent in the case of prosecution. State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 29 of 39Further, in his testimony, PW13/IO ACP J.S. Mishra categorically testified that he had also not seized any document during investigation which would show that the accused persons lacked the competence to process the refund of the allottee. In his cross-examination, the letter of the then Commissioner, DDA to the DCP, Crime vide diary no. 2494, being Ex PW13/DX2 was relied upon by him to testify that there were no clearcut orders defining the competence of the accused persons for processing the refunds. This document is also contrary to the case alleged by the prosecution against the accused, and creates a doubt in the prosecution version regarding the accused lacking competence of process and refund in favour of the allottee.
35. When the above facts are considered in light of the categorical testimony of PW3 Sh. Devendra Bhushan Gupta to the effect that no departmental action was undertaken separately against the erring officials of DDA, as well as his testimony that there was no proposal of initiation of action for cancellation of the flat allotted to Ms. Usha Suri, the case of the prosecution that the accused persons lacked the competence to process the refund of the allottee becomes even more doubtful. On this count, it cannot be alleged that the accused persons committed any criminal breach of trust.
36. That the application for the issuance of corrected demand letter after adjusting the price of the flat as per the policy dated 31.03.1999 was filed by the allottee with the DDA in the Lok Shivir, is apparent from the DDA file of the allottee, which has been placed on record by the prosecution itself. Perusal of the said file reveals that the same was put before the accused persons as per proper file notings, and it does not appear that they State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 30 of 39acted in dereliction of their duties by not matching the signatures of the applicant/allottee Ms. Usha Suri on the aforesaid application with the prior signatures of the allottee available on the file of the allottee.
37. The dealing assistant PW10 Sh. Pawan Kumar Sharma also testified that he had made the notings Ex PW10/E to Ex PW10/D, all bearing his signatures at point A thereof, and Ex PW2/E. He testified that it was his duty to put the documents in the file and put up the file before the senior officers. He testified that he did not have any decision-making power on the file, which vested with the Assistant Director and his senior officers. In his cross-examination, he testified that only after checking the entire documents and finding everything in order, did he put up the file for scrutiny of his immediate superior officer Sh. Ved Prakash, Superintendent, along with a noting, who had then signed at point C of the second notings. The file being put before the accused persons with due notings and as per procedure, there was no reason for them to believe that the said file contained forged documents. Also, the said forged document Ex PW4/X (Colly) have been perused. When compared with the specimen signatures of the allottee Ms. Usha Suri available on record, there does not appear to be much difference between the two, as would have made the alleged forgery apparent to the accused processing the file, which is also a circumstance in their favour.
38. There is another aspect to the matter. The refund was to be made to the allottee Ms. Usha Suri as per the beneficial policy of DDA dated 31.03.1999, whether or not any application was received from her in this regard, as is clear from the file notings on Ex PW4/X discussed above.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 31 of 39Given the same, the case of the prosecution that the accused persons had wrongfully processed the fake application, making them liable for the offences alleged against them, does not appear to carry much weight, since the refund amount is seen to have been sent to the allottee at her correct address, which shall be discussed in the succeeding portions of this judgment.
39. It is also alleged against the accused persons that they processed the file of allottee Ms. Usha Suri with undue haste. In this regard, PW11 Sh. Amar Chatterjee also admitted in his cross-examination that the application was received from allottee Ms. Usha Suri by diary number 494 in the Lok Shivir held on 16.09.1999, being Mark PW11/D1. He accepted as correct the suggestion and also testified that as per the policy of DDA, the cases of Lok Shivir were to be decided on the same day. Given such unambiguous testimony on this point, the accused persons cannot be attributed any malafide for processing the refund in favour of the allottee Ms. Usha Suri in a timely manner.
40. Even otherwise, it is seen that as per Ex PW2/G, the refund cheque was issued to the allottee Ms. Usha Suri at her correct address i.e. R-74, Vani Vihar, Uttam Nagar, New Delhi. Pertinently, Ms. Usha Suri had first applied for change of her address from Tilak Nagar to Vikaspuri vide letter dated 23.02.1989, Mark DW9/D. Even the address of Ms. Usha Suri pertaining to Vani Vihar came on record in the year 1993.
41. In his cross-examination, PW11 Sh. Amar Chatterjee admitted that Ms. Usha Suri had changed her address to Vani Vihar in the year 1993. In State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 32 of 39his cross-examination, IO/PW13 ACP J.S. Mishra also admitted that the allocation-cum-demand letter dated 08.04.1993 was sent to the allottee Ms. Usha Suri at her address at Vani Vihar, Uttam Nagar, New Delhi. From the aforesaid documents, it becomes clear that the address of Ms. Usha Suri of Vani Vihar, Uttam Nagar, New Delhi came on her official allotment file in the year 1993 itself.
42. As per the posting orders Ex DW2/1, DW2/2 and DW3/1, accused S.C. Chugh joined the Housing Management Wing of DDA on 22.05.1998, and accused Mahender Kumar and J.P. Gupta also joined the Housing Management Wing in the year 1998. These documents, being part of the official records of the DDA itself, were not controverted in any manner by the prosecution. They categorically proved that the aforesaid accused had no role to play in getting incorporated on record the address of allottee Ms. Usha Suri of Vani Vihar, Uttam Nagar, New Delhi. In any event, it is not the case of prosecution that the accused persons, way back in the year 1993, had anticipated that a policy for refunds would be issued by the DDA on 31.03.1999. They could not have been acting in conspiracy since the year 1993, to bring on record the changed address of allottee Ms. Usha Suri dishonestly. While as testified by IO/ACP J.S. Mishra as PW13, an application was indeed received purportedly under the signatures of allottee Ms. Usha Suri for issuance of refund cheques at C-60, Gangotri Enclave, Alaknanda, which application is part of the DDA file of the allottee, the fact remains that the cheque was issued to the allottee at her address of Vani Vihar, Uttam Nagar, New Delhi. No evidence has been led on record by the prosecution to show that the said address was in any manner connected with any of the accused persons. In such a circumstance, the Court is impelled to State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 33 of 39raise an inference that the accused persons sent the refund cheque of the allottee to her correct address. As they did not make any wrongful gain out of the refund issued in the name of allottee Ms. Usha Suri, no dishonest intention for the offence punishable u/s 409 IPC can be imputed upon them.
43. The prosecution has also alleged that acting in conspiracy with property dealer/accused S.K. Goel, the accused persons not only wrongfully issued a refund cheque in favour of the allottee, but also fraudulently handed over the possession letter of the flat in favour of an impostor, who appeared as her SPA before them. As per the record, the possession slip of the flat in question was issued in favour of one Harish Kumar Sharma, the SPA of allottee Ms. Usha Suri. If the SPA basis which he obtained the possession letter was a forged and fabricated document, he ought to have been arrayed as an accused, but the same has not been done. Further, as per the prevalent rules of the DDA, the allottee Ms. Usha Suri was not supposed to transfer ahead the flat until the possession slip was issued in her favour. It is for this reason that she was required to file an affidavit to the effect that she had not transferred ahead the property. PW11 Sh. Amar Chatterjee testified that as per the conditions of allocation-cum-demand letter, the allottee was not supposed to transfer the property ahead. Yet, it is a matter of record that the property was sold ahead by her. PW13/IO ACP J.S. Mishra admitted in his testimony that during the investigation he had come to know that allottee Ms. Usha Suri had sold ahead the property. Now, PW11 Sh. Amar Chatterjee admitted that there was no embargo on the instalment w.r.t. a flat being paid by someone else on behalf of the allottee. PW3 Sh. Devendra Bhushan Gupta also testified that there existed no rules/regulations/by-laws/standing order prohibiting other person to deposit State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 34 of 39money on behalf of the allottee. In this light, when the record of the case is perused, it is seen that payments on behalf of the allottee were also made by some other person. After completion of the payment, the possession slip was handed over to SPA of the allottee. Since the payments were also not made by the allottee directly, the fact that the possession slip was issued in favour of her SPA is not sufficient to affix criminal liability upon the accused persons. This is more so in view of the factual trajectory of the present case, as per which neither the allotment of the flat was ever cancelled, nor any complaint was received from allottee Ms. Usha Suri regarding the fraudulent allotment of the flat in favour of some other person.
44. The case of prosecution against accused S.C. Chugh, J.P. Gupta and Mahender Kumar is replete with multiple crevices, and it cannot be held that their guilt has been proven beyond reasonable doubt
45. The allegation against accused Rakesh Sharma is that he was Senior Branch Manager of concerned the Branch of Union Bank of India at the relevant time, and he permitted the accused S.K. Goel and Sunita Goel to open two joint bank accounts, with the name of Ms. Usha Suri in each of two bank accounts, although Ms. Usha Suri never appeared before him, acting conspiracy with the aforesaid two accused. It has further been alleged that the said bank account was thereafter used by co-accused Sunita Goel and S.K. Goel to encash the cheque of excess amount issued in favour of Ms. Usha Suri by the DDA official/co-accused in contravention of the relevant policy.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 35 of 3946. The most gaping gap in the case of the prosecution, at the cost of reiteration, is that the allottee Ms. Usha Suri was never examined as prosecution witness. She would have been the best person to testify that she had never gone to the concerned bank for getting any joint bank opened with either accused S.K. Goel, and Sunita Goel, but not to be.
47. PW8 Praveen Gambhir testified that two decades removed from the day on which his testimony was recorded in the Court, he used to acquainted with accused S.K. Goel, who used to work as property dealer in the area. He testified that he accompanied accused S.K. Goel and his wife accused Sunita Goel to Union Bank of India, Anand Niketan Branch for the purpose of helping them for open of bank account, as an introducer. He testified that when he had signed the account opening form, the name of only one account holder, Sunita Goel had been filled in it, and neither the name nor the photograph of Ms. Usha Suri was present on the form when he had signed the same as an introducer. In his cross examination, he testified that when he had visited the branch, there were few other persons along with S.K. Goel and Sunita Goel. He testified that he had signed the form inside the bank, cannot recollect that if there were any blank spaces in the form. He also testified that he cannot say if Ms. Usha Suri was present in the bank when he had signed the same as an introducer. When his testimony is considered as whole, it is clear that it cannot be relied upon to hold beyond reasonable doubt that the account opening form contains forged signature of Ms. Usha Suri, and that the latter was not even present in the bank at the time when the joint bank account was opened. While he stated that when he had signed the form, the same did not contain the signature of Ms. Usha Suri or her photograph, during his cross-examination, State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 36 of 39he rendered his own testimony doubtful by testifying that he cannot even say with certainty that Ms. Usha Suri was not present in the bank at the time when the joint bank account in her name and in the name of accused Sunita Goel.
48. It is pertinent to mention that, as discussed in the foregoing portions of this judgment, the refund cheque was sent to allottee Ms. Usha Suri at her correct address. Bereft of any evidence to the effect how it landed in the hands of accused S.K. Goel and Sunita Goel, the prosecution case that the same was fraudulently presented by the aforesaid accused in the bank account opened basis a forged account opening form, cannot be believed.
49. Prosecution case is rendered further doubtful in view of the testimony of PW13 ACP J.S. Mishra to the effect that as per the reply dated 10.05.2001 Ex PW13/G, under the signatures of Bank Manager, Anand Niketan Branch, Union Bank of India, no irregularity was found in the opening of the aforesaid bank account.
50. The prosecution also relied upon report of the FSL to prove that the said account opening form contains forged signature of Ms. Usha Suri. In this regard, it is pertinent to mention that as per admission of PW13/IO ACP J.S. Mishra himself, the original account opening form is not available on the judicial file. He testified that to his memory, the form was sent to FSL, but stated that while all other documents sent to FSL are available on the Court file, the said account opening form is missing from the record. In the absence of the account opening form itself, it is not clear if the FSL result, as per which the said form has been forged signed by accused, is based on State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 37 of 39which document. In any event, without any other evidence on record to the effect that the account opening form was never signed by allottee Ms. Usha Suri, it cannot be held that the same bears her forged signatures only basis the FSL results.
51. Accused Sunita Goel and S.K. Goel explained in their statements u/s 313 CrPC that they had helped allottee Ms. Usha Suri sell the flat in question ahead, and in the course of the transaction with her, had opened a joint bank account with her. The said explanation can be considered to be valid explanation of the circumstance in which they came in possession of the refund cheque, deposited in the joint bank account of the allottee Ms. Usha Suri, and accused Sunita Goel. The legal position that the statement of the accused recorded u/s 313 CrPC can be considered at the stage of judgment is well settled [Ref: Md. Aslam vs State (Supra)].
52. The prosecution has miserably failed to prove its case against the aforesaid accused pertaining to the offence punishable u/s 471 IPC.
53. It is pertinent to mention at this stage that the accused persons have also been charged with the offence of conspiracy. However, no evidence, documentary or oral, has been brought on record by the prosecution to show any such connivance between the accused persons. Prosecution has not brought on record any evidence to even show that the said accused were acquainted with each other, much less to show that they had illegally gain anything out of the transaction pertaining to the flat in question, and had then distributed the gains. Accordingly, they are acquitted of the offences punishable u/s 120B IPC.
State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 38 of 3954. All in all, for want of sufficient evidence against them, accused persons namely, Mahender Kumar, Subhash Chander Chugh, Jai Prakash Gupta, Rakesh Sharma, Sri Krishan Goel and Sunita Goel stand acquitted of all charges levelled against them.
55. File be consigned to Record Room after due compliance of Section 437A CrPC.
Pronounced in open Court on 15.09.2025 in the presence of accused.
(Medha Arya) Additional Chief Judicial Magistrate South District, Saket Courts, New Delhi 15.09.2025 State vs. Mahender Kumar & Ors.
FIR No. 433/2000, PS: Kotla Mubarakpur (EOW) Page 39 of 39