Delhi District Court
State vs Rajbir And Others on 16 January, 2024
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. RAJBIR & ORS.
FIR NO: 253/2002
P. S UTTAM NAGAR
U/s 420/467/468/471/120B IPC
Crc/8718/2019
JUDGMENT
Sl. No. of the case : 8718/19
Date of its institution : 04.06.2003
Name of the complainant : Sh. Vivek Bhalla, S/o Late Sh. H.D
Bhalla, R/o H. No. 33-I, Sarabha
Nagar, Ludhiana, Punjab
Date of Commission of offence : 1989-2001
Name of the accused : (1) Rajbir Singh, S/o Sh. Rati Ram,
R/o Jakhira, Chara Mandi, Shop
No. 102, Delhi
(2) Peerdan, S/o Sh. Kesho Ram,
R/o H. No. 21, Village & Post-
Bindapur, Uttam Nagar, New Delhi
(3) Ms. Suman Chopra, W/o Sh. S
K Chopra, R/o E-96, Uttam Nagar,
New Delhi
Offence complained of : 420/467/468/471/120B IPC
Plea of accused : Not Guilty
Case reserved for orders : 06.12.2023
Final Order : Acquittal
Date of orders : 16.01.2024
Page 1 of 49
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused persons namely Rajbir Singh, Peerdan and Suman Chopra upon a charge sheet filed by the police station Uttam Nagar under section 420/467/468/471/120B Indian Penal Code (IPC) .
2. Briefly stated, as per the case of prosecution, the present FIR was registered on the basis of the complaint dated 25.04.2002 filed by the complainant namely Vivek Bhalla. The complainant had purchased one property situated at plot no. 1B, measuring 466 sq. Yards, comprised in khasra no. 594, Kesho Ram Park, Block-B, situated at Village- Bindapur, Delhi (hereinafter referred as the disputed property). The said property was purchased by the complainant from the accused Peerdan on 20.12.1989 in the consideration amount of Rs. 48,000/-. The accused Peerdan was the original bhumidhar of the disputed property. The accused had executed a registered will dated 20.12.1989, General Power of Attorney dated 20.12.1989, Agreement to Sell dated 20.12.1989 in favour of the complainant qua the transfer of the disputed property.
3. The complainant was in peaceful possession of the disputed property since 20.12.1989 and had built boundary wall and room on the said property. The peaceful possession of the complainant on the disputed property was disturbed in the year 2001 by the accused persons Page 2 of 49 namely Peerdan, Rajbir Singh and Suman Chopra when they along with their accomplices had broken down the boundary wall and room constructed by the complainant on the disputed property. In order to claim his ownership on the disputed property, the accused Rajbir Singh had produced photocopies of certain documents I.e. agreement to sell dated 24.02.1989, General Power of Attorney dated 24.02.1989 and one receipt of Rs. 30,000/- executed by the accused Peerdan in his favour. During the course of the investigation, these documents were found to be forged.
4. Further, the accused Rajbir Singh had sold the disputed property to the accused Suman Chopra in the year 1990 who in turn sold the said property to other persons namely Ramesh and Somnath on 03.04.2001. Also, one rectification deed was also executed by the accused Peerdan in favour of the accused Rajbir Singh on 12.06.2001 whereby descriptions of the disputed property were changed for enabling the said accused to claim his ownership on the disputed property. During the course of the investigation, this rectification deed was also found to be forged. Thus, as per the prosecution, all the accused persons had hatched a criminal conspiracy with intention to cheat the complainant and to dispossess him from the disputed property, prepared certain forged documents and used the same as genuine.
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5. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused persons. The charge was framed against the accused persons for the offence punishable u/s 420/467/468/471/120B IPC vide order dated 08.03.2018, to which they pleaded not guilty and claimed trial.
6. In order to substantiate its case, the prosecution has examined sixteen witnesses.
• Sh. Ran Singh (Retired Inspector) was examined as PW-1; • Sh. Jaldhari Lal Meena (Retired Additional DCP) was examined as PW-2;
• Sh. T Joshi, Assistant Director & Scientist C, Office of Central Forensic Science Laboratory, Sector-36, Chandigarh, was examined as PW-3;
• Sh. Praveen Kumar Rana, UDC, was examined as PW-4; • Sh. Vijay Kumar. Civil Defence Volunteer, Office of Sub-Registrar- II, Basai Darapur, New Delhi, was examined as PW-5; • Sh. Sanjay Batra was examined as PW-6;
• SI Rajpal was examined as PW-7;
• SI Samsher SIngh was examined as PW-8;
• ASI Suraj Prakash was examined as PW-9;
Page 4 of 49• Sh. Vivek Bhalla, the complainant, was examined as PW-10; • Inspector Ram Pal was examined as PW-11;
• Sh. Ramesh Chand was examined as PW-12;
• W/ASI Rajbala was examined as PW-13;
• Sh. Sitaram was examined as PW-14;
• Sh. Pran Nath Malhotra (Retired ACP) was examined as PW-15; and • Retired Inspector Om Prakash was examined as PW-16.
7. PW-1 was one of the investigating officers of the present case. During the examination-in-chief, he deposed that on 13.06.2002, he was posted at DIU (West) as Inspector. He along with two other police officials went to Rohtak and Bahadurgarh in search of the accused Rajbir. He had interrogated Manohar, Ramesh and Somnath regarding the whereabouts of Rajbir but did not found any clue. He was only told that the said accused might be in Haridwar. On 01.07.2002, he had handed over the file to Reader to ACP (DIU, West) and he was transferred. He further stated that he did not record the statement of any witness u/s 161 Cr.P.C. PW-1 was duly cross examined by Ld. Counsels for the accused persons.
8. PW-2 was another investigating officer of the present case who had conducted part investigation. During the examination-in-chief, he Page 5 of 49 deposed that he was posted at DIU (West) as Inspector in 2002 when he had received the present case for further investigation. He stated that he went to plot no. 2, Bindapur for the purpose of investigation. He had also called the complainant from Ludhiana who came at the spot and identified the plot which belonged to him. The boundary wall of about 6 feet was constructed on the plot pointed out by the complainant. He also stated that on one side, it was bounded by a 10 feet road and on the other side, it was bounded by 25 feet road. He had inspected the spot at the instance of the complainant. He further stated that the complainant had handed over the documents related to the plot which were seized vide seizure memo. However, the said seizure memo was not available on record. He further stated that it was not clear as to who was the actual owner of the plot. He enquired from the local people but no clue was found. After refreshing the memory from the file, he stated that the investigation of the present case was marked to him on 09.07.2002. During the course of the investigation, he gave notice to the accused Rajbir and seized three affidavits from him vide seizure memo Ex. PW-2/A. Thereafter, he also prepared the site plan (which was available on record). He also stated that he called the witnesses namely Rajbir, Ramesh, Rohtas and recorded their statements. He also sent the documents seized from the accused Rajbir to CFSL to compare with the documents furnished by the complainant. He had also taken the specimen signatures of the accused Rajbir and Page 6 of 49 of one other person. PW-2 was duly cross-examined by Ld. Counsels for the accused persons.
9. PW-3 is the expert witness. He had conducted forensic examination of certain documents seized in the present case. He had proved on record two FSL reports. FSL Report no. CX-398/2002 dated 31.12.2002 is Ex. PW-3/A and FSL Report no. CX-398/2002 dated 29.11.2010 is Ex. PW-3/B. He was also duly cross-examined by Ld. Counsels for the accused persons.
10. PW-4 is the formal witness examined by the prosecution. He was directed to bring certain records from the office of Sub-Registrar i.e. Serial No. 9587 Volume No. 2216 dated 24.02.1989, registration no. 49977. Book No. IV, Volume No. 2116, page no. 102 dated 20.12.1989 and serial no. 18242, Volume No. 2611, Book No. IV dated 10.04.1990. He stated that the above said documents were no longer available in the office of Sub-Registrar-I, Kashmiri Gate and the same were with Department of Delhi Archives. He further stated that the particulars of document no. 12445, Volume No. 539, Book No. III dated 03.04.2001 and document no. 13267, volume no. 7683, Book No. IV, dated 03.04.2001, did not match with his office record.
11. PW-5 is also formal witness examined by the prosecution. He had brought certain records from the office of Sub-Registrar-II, Basai Darapur, New Delhi i.e. Registered GPA in Volume no. 7683, in Page 7 of 49 Additional Book-IV, registered at 13621 from page 156 - 157 dated 03.04.2001 Ex. PW-5/A and registered will in volume no. 5309, in Additional Book-III, registered at 12445 from page 100 dated 03.04.2001 Ex. PW-3/B. He was duly cross-examined by Ld. Counsel for the accused Suman Chopra and was not cross-examined by the remaining accused persons even though opportunity was provided to them.
12. PW-6 was the stamp vendor who had issued some of the stamp papers on which certain property documents were executed. During the examination-in-chief, he deposed that he was a stamp vendor bearing license no. 436 having office address at UG-22, Suneja Tower-1, District Centre, Janakpuri, New Delhi-110058. He further stated that his license was cancelled as E-stamp was introduced. He also stated that he had issued stamp paper bearing serial no. 6334, 6335, 6336 and 6336A dated 04.05.2001 and he had deposited the stamp register with SDM Office, Head Quarter, Delhi. He also filed on record the certified copy of his stamp register Ex. PW-6/A. He was not cross-examined by the accused persons even though opportunity was provided to them.
13. PW-7 was the police official who had registered the present FIR. During the examination-in-chief, he deposed that on 06.05.2002, he was posted at PS Uttam Nagar as Head Constable and on that day he was on duty as duty officer from 5 AM to 1 PM. At about 08.35 AM, after Page 8 of 49 receiving the complaint vide DD No. 28A, he had registered the present case after making endorsement on the rukka. He had brought the original FIR in the Court Ex. PW-7/A. Endorsement made on the rukka is Ex. PW-7/B. He was duly cross-examined by all the accused persons.
14. PW-8 was another police official examined in the present case. He deposed that on 10.05.2002, he was posted at the East Uttam Nagar Police Post. He joined the investigation at the instance of SI Tejpal and went to Rohtak, Haryana where IO had recorded the statements of Manohar Lal and Ramesh Kumar. IO had also seized some documents from Ramesh Kumar vide seizure memo Ex. PW-8/A & Ex. PW-8/B. He further deposed that on 05.06.2002, he went to Sub-Registrar Office at Kashmiri Gate and he obtained the documents from the Sub-Registrar office and handed over the same to SI Tejpal who seized the same vide seizure memo Ex. PW-8/C. He was duly cross-examined by Ld. Counsel for the accused persons.
15. PW-9 ASI Suraj Prakash deposed that on 18.11.2002, he was posted at DIU as Constable. IO J L Meena had seized certain documents i.e. power of attorney, affidavit and agreement from the accused Rajbir, however, he had not signed on the seizure memo. He was duly cross- examined by Ld. Counsel for the accused persons.
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16. PW-10 is the complainant of the present case. He is the star witness of the prosecution. During the examination-in-chief, he deposed that on 20.12.1989, he had purchased plot no. 1-B, Keshoram Park, Village- Bindapur, New Delhi, measuring 466 sq. Yards from Sh. Pirdan for which he had executed GPA, agreement to sell, affidavit, registered receipt and registered will after receiving the full and final sale consideration on 20.12.1989. He further stated that he was the owner and in possession of the plot in question wherein he had built a boundary wall with one room since 1989. He further stated that in the year 2001, he came to know that the accused Rajbir, Suman Lata, Pirdan along with their accomplices broke down the boundary wall and the room and started constructing new boundary wall with room on the above property for which he gave a police complaint. He further came to know that the accused persons had created certain forged and fabricated documents which were antedated by mentioning the plot no. 1 A on these documents on the basis of which they tried to dispossess him from the said property. He also stated that the accused persons had also tried to take possession of the property in question on the basis of these forged and fabricated antedated documents for which he had lodged a police complaint upon which the present FIR was lodged against the accused persons. He also stated that he is in possession of the plot in question currently but a civil suit is pending. Complaint given by PW-10 to the police is Ex. PW-10/A. During the course of his Page 10 of 49 examination, he had also produced on record the original property documents executed by the accused Peerdan to him i.e. General Power of Attorney, Agreement to Sell, Affidavit, Registered Receipt, Registered Will. Copy of these documents are Ex. PW-10/B (OSR), Ex. PW-10/C (OSR), Ex. PW-10/D (OSR), Ex. PW-10/E (OSR) and Ex. PW-10/F (OSR) respectively. He correctly identified all the accused persons in the Court. He also identified the photographs of the plot in question Ex. PW-11/A. He was duly cross-examined by all the accused persons.
17. PW-11 was the police official who was also involved in the investigation of the present case. He deposed that on 16.09.2008, he was posted at PS Uttam Nagar and received the present case for further investigation. He visited the plot in question and took the photographs of the same Ex. PW-11/A (colly-6 photographs). He had also collected the documents from the concerned Court.
18. PW-12 was another witness examined by the prosecution. The disputed property was allegedly sold by the accused Suman Chopra to the said witness. During the cross-examination, he deposed that in the year 2002, one person namely Rohtas (who was from his village) had approached him to give Rs. 2.5 lakhs in order to purchase a plot situated in Uttam Nagar, New Delhi. Thereafter, he had given Rs. 2.5 lakhs to the said person namely Rohtas. PW-12 further stated that Page 11 of 49 Rohtas had shown him some property documents which had his photographs and took back the said documents after showing to him. Thereafter, he was called to PS Uttam Nagar once where he was made to sign certain documents by the police officials. He had signed those documents without reading them as he was told by the police officials that he was made witness in the present case. He was also confronted with certain documents i.e. Ex. PW-8/A and Ex. PW-8/B and asked whether the signature appearing at point B of the said documents belonged to him. He stated that he was not sure about the said signatures. He also stated that he did not know the accused persons as he had never met them. He was not cross-examined by Ld. Counsels for the accused persons even though opportunity was provided to them.
19. PW-13 W/ASI Rajbala was also examined by the prosecution. She deposed that on 29.05.2003, she was asked by the IO to join the investigation. Thereafter, the accused Suman Chopra was arrested in her presence by the IO vide arrest memo Ex. PW-13/A. Thereafter, she conducted the personal search of the accused Suman Chopra vide personal search memo Ex. PW-13/B. Disclosure statement of the accused Suman Chopra Ex. PW-13/C was also recorded in her presence. She correctly identified the accused Suman Chopra in the Court. She was duly cross-examined by Ld. Counsel for the accused Suman Chopra and was not cross-examined by the remaining accused persons even though opportunity was granted to them. Page 12 of 49
20. PW-14 was another police official examined by the prosecution. He deposed that on 29.05.2003, he was posted as Head Constable at DIU, West, Rajouri Garden. On that day, IO had recorded the disclosure statement of the accused Suman Chopra in his presence. He correctly identified the accused Suman Chopra in the Court. He was duly cross- examined by Ld. Counsel for the accused Suman Chopra and was not cross-examined by the remaining accused persons even though opportunity was granted to them.
21. PW-15 (Retired) ACP Pran Nath Malhotra was another investigating officer of the present case. He deposed that on 08.11.2002, he had received the present case file for the investigation. On 12.12.2002, he took specimen signatures of the accused Suman Chopra and Surender Kumar Chopra. On 16.12.2002, he prepared the required documents for the FSL examination and sent those specimen signatures to FSL lab for their examination. He further stated that the case file remained with him till 23.12.2002. He could only identify the accused Suman Chopra in the Court. He was duly cross-examined by Ld. Counsels for the accused persons.
22. PW-16 (Retired) Inspector Om Prakash was another investigation officer who had conducted the investigation in the present case. He deposed that in the year 2003, the present case was marked to him for investigation. He had called the accused Suman Chopra and Rajbir to Page 13 of 49 the police station for the purpose of investigation. After interrogating the said accused persons, he had arrested the accused Suman Chopra vide memo Ex. PW-13/A and accused Rajbir vide arrest memo Ex. PW-16/A. Thereafter, he also searched the accused Rajbir vide memo Ex. PW-16/B. He had also recorded the disclosure statements of these accused persons Ex. PW-13/C and Ex. PW-16/C respectively. He correctly identified the accused Suman Chopra in the Court. He initially failed to identify the accused Rajbir in the Court, however, when Ld. APP pointed him towards the said accused, he correctly identified him and stated that he could identify him during his examination-in-chief due to passage of time. He was duly cross-examined by Ld. Counsels for the accused persons.
23. After the completion of the prosecution evidence, statement of the accused persons u/s 313 Cr.P.C was recorded. The accused Rajbir stated that he was innocent and was falsely implicated in the present case. He further stated that he had purchased the property in question from the co-accused Peerdan in the consideration of Rs. 1,00,000/- and he did not forge any property documents. He also stated that he was the bonafide purchaser of the said property.
24. The accused Suman Chopra also stated that she was innocent and was false implicated in the present case. She was not aware about any transaction which had taken place between the co-accused persons in Page 14 of 49 the present case. The accused Peerdan had stated that he was innocent and was falsely implicated in the present case. He further stated that ha had not sold the property in question to any person. He did not execute/prepare any property documents. All the accused persons did not choose to lead defence evidence, and, therefore, the same was closed.
25. During the final arguments, Ld. APP for state submitted that all the prosecution witnesses completely supported the case of prosecution and no material contradictions could be seen in their testimonies.
26. Per contra, Ld. Counsels for the accused persons submitted that the they were falsely implicated in the present case by the complainant in connivance with the police officials. The complaint in the present case was filed with substantial delay. The Investigating Agency also did not conduct investigation in a proper manner in as much as no property documents of the complainant were seized and examined. Further, since, the specimen signatures of the accused persons were not collected with the order of the Magistrate or in the presence of the Magistrate, therefore, the FSL Reports could not be relied upon by the Court in order to convict the accused persons. It was also contended on behalf of the accused persons that the complainant himself was unaware about the contents of the complaint which was drafted by his father, and, therefore, his testimony being hearsay in nature would be Page 15 of 49 inadmissible in evidence. The arguments advanced by Ld. Counsels for the accused persons would be discussed in detail at the relevant part of this judgment.
27. Cardinal principle which has always to be kept in view in our system of administration of justice for criminal cases is that a person arrayed as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. Another golden thread which runs through the web of the administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case, the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Page 16 of 49
28. In the instant case, as per the case of the prosecution, the accused persons had entered into a criminal conspiracy with intention to cheat the complainant and to dispossess him from the disputed property. In furtherance of this conspiracy, the accused persons had prepared certain forged documents and used the same in order to claim ownership over the disputed property. Therefore, the accused persons were charged for the offences punishable u/s 467/468/471/420/120B IPC. For the sake of the convenience, I shall be examining the guilt of the accused persons for each offence separately. CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE U/S 467/468 IPC
29. Section 467 of the IPC deals with the offence of forgery of valuable security or will etc. It is an aggravated form of forgery. It reads as under:
"Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."Page 17 of 49
30. Similarly, section 468 of the IPC provides for an aggravated form of forgery and attracts stringent punishment. It deals with forgery for the purpose of cheating. It reads as under:
"468. Forgery for purpose of cheating. --Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.."
31. Therefore, the primary ingredient which needs to be proved by the prosecution in order to attract section 467/468 IPC is the existence of a "forgery". Forgery is defined in section 463 IPC as the making of a false document or false electronic record with any of intentions mentioned therein. Section 464 defines the making of false document or false electronic record.
"Section 463 reads as under:
"Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Section 464 reads as under:
"Making a false document- A person is said to make a false document or false electronic record- First- Who dishonestly or fraudulently- Makes, signs, seals or executes a document or part of a document;Page 18 of 49
Makes or transmits any electronic record or part of any electronic record;
Affixes any electronic signature or any electronic record;
Makes any mark denoting the execution of a document or authenticity of the electronic signature, With the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed, or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise alters a document or an electronic record in any material part thereof, after it has been made, executed pr affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
32. Therefore, a combined reading of the provisions enshrined in section 463 and 464 suggests that in addition to prove the making/existence of a false document by the accused, the prosecution is also required to establish that the said document or electronic record as the case may be, was forged to achieve any of the intentions enumerated in section 463 i.e. (i) to cause damage or injury to the public, or to any person; or
(ii) to support any claim or title; or (iii) to cause any person to part with Page 19 of 49 property; or (iv) to enter into any express or implied contract; or (e) to commit fraud or that fraud may be committed. Therefore, in order to convict an accused for the offence punishable u/s 467/468 IPC, the prosecution needs to prove/establish the making of a false document mentioned therein.
33. As discussed in the preceding paragraphs, the foremost ingredient which needs to be established by the prosecution in order to prove the culpability of an accused for the offence punishable u/s 467 IPC is the "existence of a forged specified documents i.e. valuable security, will etc.". Similarly, in order to attract an offence punishable u/s 468 IPC is the "existence of a forged document' which must be made in furtherance to cheat any other persons. In other words, the prosecution needs to establish the fact that the accused made a false document which is a valuable security or other documents as mentioned u/s 467 IPC with an intention to cheat.
34. In the instant case, as per the prosecution, the accused Rajbir Singh along with other co-accused persons Peerdan and Suman Chopra had prepared a forged documents in order to claim that the accused Peerdan had sold the disputed property to the accused Rajbir Singh which he subsequently sold to the accused Suman Chopra who also sold it further to other persons. It is the case of the prosecution that this entire chain of documents are forged and fabricated. Page 20 of 49
35. In order to establish the existence of forged documents in the present case, the prosecution had primarily relied upon the testimony of PW-3 and FSL Reports Ex. PW-3/A and Ex. PW-3/B. During the course of the final arguments, Ld. Counsels for the accused persons had argued that the said FSL Reports could could not be admitted in evidence as PW-3 was not completely cross-examined. It was also contended that the PW-3 (who had prepared the FSL Report) did not file on record any formal reasoning report. Also, the specimen signatures of the accused were not collected with the order of any Magistrate and they were not collected in the presence of any Magistrate.
36. At the outset, it should be noted that the objection of Ld. Defence Counsels qua the admissibility of FSL Reports Ex. PW-3/A and PW-3/B on the ground that PW-3 was not completely cross-examined, cannot be appreciated by this Court. Both the FSL Reports were duly tendered in evidence by PW-3. Sh. T. Joshi (who was also examined as PW-3) was working as Assistant Director & Science C, Officer of Central Forensic Science Laboratory, Sector-36, Chandigarh at the time of his examination.
37. As per section 293 Cr.P.C, reports of certain government scientific experts are per se admissible in evidence without examining the author. There are six categories of experts whose reports are admissible in evidence u/s 293 Cr.P.C. which interalia includes Director, Deputy Page 21 of 49 Director or Additional Director of a Central Forensic science Laboratory and State Forensic Science Laboratory.
38. The scope of section 293 Cr.P.C has been explained in detail by the Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Mast Ram, (2004) 8 SCC 660 wherein the Apex Court has held interalia the following:
"6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of the ballistic expert. The report of the ballistic expert (Ext. PX) was signed by one Junior Scientific Officer.
According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub- section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the forensic science laboratory report (Ext. P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a Junior Scientific Officer is not an officer enumerated under sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the court is to accept the documents issued by any of the six officers enumerated therein as valid evidence without examining the author of the documents."6. Page 22 of 49 Secondly, the ground on which the High Court has thrown out the prosecution story is the report of the ballistic expert. The report of the ballistic expert (Ext. PX) was signed by one Junior Scientific Officer.
According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub- section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the forensic science laboratory report (Ext. P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a Junior Scientific Officer is not an officer enumerated under sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the court is to accept the documents issued by any of the six officers enumerated therein as valid evidence without examining the author of the documents."
39. In the instant case, it should be noted that the FSL Reports i.e. Ex. PW-3/A Ex. PW-3/B have been prepared by PW-3 who is Assistant Director & Scientist C, Office of Central Forensic Science Laboratory, Chandigarh. Hence, PW-3, the author of the FSL Reports, being one of the officers listed under section 293 Cr.PC, the FSL Reports Ex. PW-3/A & PW-3/B would be per se admissible in evidence without the examination of its author PW-3.
Page 23 of 49
40. Even otherwise, the author of these reports I.e. PW-3 has been examined and cross-examined by Ld. Counsels for the accused persons. He has also duly tendered both the reports on record. During the course of the final argument, it was argued by Ld. Defence Counsels that since his cross-examination could not be completed in the want of his qualification document, his testimony could not be read into evidence.
41. It should be noted that PW-3 was cross-examined at length by Ld. Counsels for the accused persons namely Suman Chopra and Rajbir. His cross-examination by these accused persons were also completed. However, when he was being cross-examined on behalf of the accused Peerdan, his cross-examination was deferred for the want of certificate of examiner issued by UPSC. Perusal of the case file would further show that further cross-examination of PW-3 on behalf of the accused Peerdan was closed by this Court on 04.10.2023 on the submission made by Ld. Counsel for the accused Peerdan that he was adopting the cross-examination conducted by other accused persons. Hence, I find that PW-3 was both examined-in-chief and duly cross-examined by all the accused persons, and therefore, his testimony would be relevant.
42. Therefore, in view of the above discussions, I find that the FSL Reports Ex. PW-3/A and PW-3/B have been duly tendered in evidence by the prosecution, and, therefore, are relevant subject to the fact that Page 24 of 49 necessary safeguards for collecting specimen signatures of the accused persons along with other procedural requirements have been fulfilled by the Investigating Agency.
43. An analysis of FSL Report Ex. PW-3/A would reveal the following facts:
• Three sets of original property documents showing transfer of the disputed property from the accused Peerdan to Rajbir, from accused Rajbir to Suman Chopra and from accused Suman Chopra to Ramesh and Somnath were sent for forensic examination;
• Property documents allegedly executed by the accused Rajbir to the accused Suman Chopra (transferring the disputed property to the accused Suman Chopra) were not executed by the accused Rajbir as his specimen signatures did not match with the signatures available on the said property papers.
• Property documents were executed by the accused Suman Chopra to Ramesh and Somnath.
• No opinion was provided on rest of the documents.
44. Similarly, an analysis of FSL Report Ex. PW-3/B would reveal the following facts:
• Original property documents dated 24.02.1989 allegedly executed by the accused Peerdan in favour of the accused Rajbir qua the transfer of the disputed property to the accused Rajbir and original rectification Page 25 of 49 deed/agreement allegedly executed by the accused Peerdan in favour of the accused Rajbir qua the disputed property, were sent for forensic examination.
• Admitted signatures of the accused Peerdan did not match with his alleged signatures available on the above alleged property documents executed in favour of the accused Rajbir. It would mean that the property documents which were relied upon by the accused Rajbir to claim his ownership over the disputed property were found to be forged.
• No opinion was provided on rest of the documents.
45. These FSL Reports would show that at least some of the property documents allegedly produced by the accused Rajbir to claim his ownership on the disputed property were forged. However, during the final arguments, Ld. Counsel for the accused persons had raised questions over the admissibility of these FSL Reports. It was interalia argued that these FSL Reports could not be relied upon in order to convict the accused persons as the investigating agency did not follow the established rules and did not take sufficient safeguards while collecting the specimen signatures of the accused persons and while seizing the said documents (which were subsequently sent to FSL) from the accused persons. It was contended that the specimen signatures were not neither collected with the permission of the Magistrate nor Page 26 of 49 were they collected in the presence of the Magistrate. Also, seizure memo by which the property documents were seized by the accused Rajbir was also not properly prepared. Therefore, possibility of tampering with these documents could not be ruled out.
46. First and foremost, it should be noted that while FSL Reports Ex. PW-3/ A & Ex. PW-3/B per se may be admissible in evidence provided the specimen signatures of the accused persons have been collected in a proper manner by the investigating agency by following all the established norms and safeguards which would rule out all the possibilities of tampering.
47. In the instant case, as per the testimonies of the PWs, the specimen signatures of the accused persons were not collected with the permission of the Magistrate. They were not even collected in the presence of the Magistrate. Dealing with similar set of facts, the Hon'ble Supreme Court in the case of Mohd. Aman v. State of Rajasthan, 1997 SCC (Crl) 777, has held the following:
"8.....Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate...."Page 27 of 49
48. Similarly, in the case of K. Dhanasekaran vs. State 2003 (1) CTC 223, the Hon'ble Madras High Court had reiterated that it would not be safe to rely upon the report/testimony of the handwriting expert if specimen signatures were not obtained as per the procedure laid down under Section 5 of the Identification of Prisoners Act. Relevant extract of the judgment is reproduced below:
8. It is clear that in the light of the observation made in order to dispel suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is desirable to get the specimen signatures from the accused before or under the order of a Magistrate.
Admittedly, in our case, the Inspector has not obtained permission or any order from the Magistrate concerned to get the signatures from the accused as well as P.W.1 for sending the same to expert's opinion.
49. In the instant case, it should be noted that it was PW-15 who had collected the specimen signatures of the accused Suman Chopra during the course of the investigation and had sent the same for forensic examination. In his cross-examination, he had stated that he did not remember as to whether had had obtained the permission of the concerned Magistrate for obtaining the specimen signatures of the accused persons. He also stated that he did not remember as to whether he had prepared any memo of the specimen signatures of the accused persons. He further stated that he did not remember as to whether the specimen signatures of the accused persons were collected in the presence of any public person. He did not even remember as to whether he had sent the documents in sealed condition Page 28 of 49 to the forensic department for examination. Similar statement was made by PW-2 who had collected the specimen signatures of the other accused persons.
50. Perusal of the record would show that no permission of any Magistrate was taken by the IOs PW-2 & PW-15 before taking the specimen signatures of the accused persons. Also, the specimen signatures were not collected in the presence of the Magistrate or any public persons. IOs themselves were not sure as to whether the documents seized from the accused persons were sent to the FSL Department in sealed condition or not. Hence, it would clearly appear that the specimen signatures of the accused persons were not collected in accordance with the established procedures.
51. Moreover, there are some other factors which would show that it would not be safe to solely rely upon the FSL Reports in order to convict the accused persons in the present case. It should be noted that as per the record, the specimen signatures of the accused Suman Chopra and another person namely Surender Kumar Chopra were initially collected by the IO PW-15 on 12.12.2002. Specimen signatures of the accused Peerdan were collected by the IO on 03.09.2002 and specimen signatures of the accused Rajbir Singh were collected by PW-2 on 21.08.2002. Further, as per the testimony of PW-15, the specimen signatures of the accused persons along with the documents seized Page 29 of 49 from the accused persons were sent to the Office of Government examiner of Questioned Documents, Government of India on 16.12.2002.
52. Therefore, there is clearly a significant gap between the dates on which the specimen signatures of the accused persons were collected and date on which they were sent for forensic examination. No explanation could be provided by the prosecution or any of the PWs to explain the said delay in sending the documents and specimen signatures of the accused persons for forensic examination. Also, even the IO PW-15 (who had sent the documents to FSL) was not sure as to whether the documents were sent in sealed condition or not. Therefore, the prosecution has miserably failed to establish that the seized articles were not - or could not be - tampered with before it reached the FSL for examination.
53. Further, the factum of seizure of the documents (which were sent for forensic examination) from the accused Rajbir Singh could also not be properly established by the prosecution. It was PW-2 who had allegedly seized the said documents from the possession of the accused Rajbir Singh vide Ex. PW-2/A. However, perusal of the said seizure memo would show that signature of the accused Rajbir Singh appearing therein was in an ink which was different from the remaining contents. There is no other witness of the preparation of seizure memo apart from Page 30 of 49 PW-2. Although, Ct. Suraj was apparently present at the spot at the time of preparation of seizure memo, however, his signature was not taken therein. In fact, the date mentioned on the said seizure memo bears a different ink. During the final arguments, Ld. Counsel for the accused Rajbir had argued that the IO had taken the signature of the said accused Rajbir Singh on a blank paper and manipulated the same to create a fake seizure memo. It would appear that the IO had not followed the established procedures or taken due safeguards while seizing the original documents from the accused Rajbir and while preparing the seizure memo. IO PW-2 was not even sure as to whether he had sealed the documents mentioned in the said seizure memo. No evidence was led by the prosecution to prove that after seizure, the documents were packaged and then sealed. Similarly, no evidence was led to indicate what was the mark given in the seals and whether the FSL had received the packages with the marked seals intact.
54. As per the seizure memo, the property documents (allegedly executed by the accused Peerdan in favour of the accused Rajbir) were seized on 18.10.2002. Interestingly, the specimen signatures of the said accused were collected on 21.08.2002 i.e. before the seizure of the documents. However, the said documents were not sent to FSL immediately by PW-2 and no explanation was provided on him on this aspect.
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55. The above discussed circumstances would further make the case of the prosecution doubtful. Documents seized from the accused persons along with specimen signatures of accused persons were kept in the police station for several days without any justifiable reasons before they were sent to the FSL. IOs are not sure as to whether the documents seized from the accused persons and their specimen signatures were sent to FSL in sealed condition. The specimen signatures of the accused persons were not collected with the permission of the Magistrate or in the presence of the Magistrate or any independent person. These are some of the glaring missing links of the prosecution which would raise doubts over the reliability of the FSL Reports and testimony of expert witness PW-3.
56. Even if I ignore the missing links of the prosecution, then also, I find that the FSL Reports Ex. PW-3/A & Ex. PW-3/B could not be relied upon in order to convict the accused persons for the offence of forgery in the absence of any other corroborative materials. It is settled proposition of law that before acting upon the opinion of the hand-writing expert, prudence requires that the Court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. The evidence of an expert is rather a weak piece of evidence, and, therefore, should not be considered as "conclusive" proof in the absence of any independent and reliable corroboration. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court Page 32 of 49 in the case of Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210, wherein while dealing with the evidence of a handwriting expert, the Apex Court Court opined that "... We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
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57. This ratio was reiterated by the Hon'ble Supreme Court in the case of Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, wherein while discussing reliability of evidence of hand writing expert, the Apex Court held as under:
"4. .......True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -- the quality of credibility or incredibility being one which an expert shares with all other witnesses -- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty "is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edindurgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence).Page 34 of 49
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact......... So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
58. Recently, in the case of Padum Kumar vs. State of Uttar Pradesh (2020) 3 SCC 35, the Hon'ble Supreme Court examined in detail the relevancy and reliability of the evidence of hand writing expert and reiterated that such evidences are relatively weak piece of evidences which need to be corroborated from other evidences available on record.
59. In the instant case, the prosecution has produced nothing on record to prove that it is the accused Rajbir Singh who has forged the property documents which show that the accused Peerdan has transferred the disputed property in his favour in February, 1989. Even if it is believed that the said property documents are indeed forged then also it would not automatically prove that the accused Rajbir Singh has forged those documents. There is nothing on record against the remaining accused Page 35 of 49 persons to show that they have forged the property documents. In fact, one of the glaring loophole in the case of the prosecution is that the property documents of the complainant were never seized or sent for forensic examination. No investigation was conducted on the said property documents in order to examine their authenticity.
60. Therefore, in view of the above discussions, I find that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts for the offences punishable u/s 467/468 IPC. CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE u/s 471 IPC
61. As per the case of prosecution, the accused persons had used the forged property documents including GPA, will, receipt, agreement to sell etc. as the genuine documents in order to cheat the complainant and the PWs despite knowing that the said documents were false and fabricated.
62. Section 471 IPC provides for the offence of using as genuine a forged document. It reads as under:
"471. Using as genuine a forged [document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."Page 36 of 49
63. The essential ingredients of section 471 IPC are: (i) fraudulent or dishonest use of document as genuine, and (ii) knowledge or reasonable belief on the part of person using the document that it is forged one. The act need not be both dishonest and fraudulent. The use of document contemplated by this provision must be a voluntary one.
64. It should be noted that section 471 is intended to apply to persons other than the forger himself, but the forger himself is not excluded from the operation of this provision. In order to attract this provision, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted before the person using the forged document, knowing it to be forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of A.S. Krishnan and Others vs. State of Kerala (2004) 11 Supreme Court Cases 576.
65. In the instant case, as discussed in the preceding part of this judgment, as per the FSL Report Ex. PW-3/A & PW-3/B, there is a strong suspicion that the property documents allegedly executed by the accused Peerdan in favour of the accused Rajbir are forged, however, the prosecution has failed to establish the same beyond reasonable doubt. Established procedures and safeguards were not followed by the Page 37 of 49 IOs while collecting the specimen signatures of the accused persons and at the time of seizing the said property documents from the accused Rajbir Singh. Also, no other witness was examined by the prosecution in order to corroborate the findings of the FSL Reports.
66. Hence, I find that it will not be safe to solely rely upon the FSL Reports in order to convict the accused Rajbir Singh for the offence punishable u/s 471 IPC. Further, there is nothing on record to show that the remaining accused persons have used any forged documents as genuine in the present case. Even it could not be proved beyond reasonable doubt as to whether the accused Rajbir Singh had used forged property documents as genuine despite knowing that the same was forged. The fact that the forged documents were seized from the possession of the accused Rajbir could not proved beyond reasonable doubt by the prosecution as the seizure memo was also not properly prepared. The factum of knowledge on the part of the accused Rajbir Singh could not be established by the prosecution beyond reasonable doubt.
CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE U/S 120B IPC
67. Section 120B makes the offence of criminal conspiracy punishable. It is an independent offence. "Criminal conspiracy" is defined u/s 120A IPC in the following manner:
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"Definition of criminal conspiracy- When two or more persons agree to do, or cause to be done,- An illegal act, or An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy"
68. The essential ingredients to attract section 120A is as follows:
• There should be two or more persons.
• There should be an agreement between themselves.
• The agreement must be to do or cause to be done: an illegal act;
or a legal act by illegal means.
69. Section 120A is a substantive offence. It is a settled proposition of law that in case of a conspiracy to commit an offence, the mere agreement is sufficient to impose liability without the requirement that some overt act in furtherance of the conspiracy should have been committed.
70. Where their common object or design is itself to do an unlawful act, the specification of such act itself which formed their common design would suffice and it would even be unnecessary or superfluous to further substantiate the means adopted by all or any of them to achieve such object. Further, where the agreement is one to do or cause to be done an act which is itself an offence, no over act, i.e., any act by one of the parties to the agreement in pursuance of it, need to be proved. Proof of overt acts committed by the accused or any of them is not strictly necessary for this offence, but proof that the accused or some of them Page 39 of 49 were concerned in the overt acts alleged would go far to establish that the agreement alleged was in fact made by them. Though, proof of overt acts is not necessary in a case, yet it may well be that if such acts are proved, the Court will be bound to infer that they are not unconnected and isolated acts, but acts which must have been committed in pursuance of an agreement made between the accused.
71. Hence, in order to prove the guilt of the accused persons for the offence punishable u/s 120B IPC, the prosecution is required to establish the existence of a common object or design to do an unlawful act. In the instant case, as per the prosecution, the accused persons namely Peerdan, Rajbir Singh and Suman Chopra were involved in a criminal conspiracy to cheat the complainant and to dispossess him from his property. In furtherance of this criminal conspiracy/common object, the accused Peerdan sold the disputed property (which he had already sold the complainant) to the accused Rajbir Singh who in turn sold the same to the accused Suman Chopra who in turn sold it to some other persons namely Ramesh and Somnath. False property documents were executed by these accused persons in order to establish their claims over the disputed property.
72. During the final arguments, Ld. Counsels for the accused persons have submitted that the prosecution has miserably failed to prove the existence of a criminal conspiracy in the present case in furtherance of Page 40 of 49 which the accused persons have made forged documents. It was argued on behalf of the accused Peerdan that he was not involved in any kind of criminal conspiracy and no specific act could be attributed to him in the present case. It was also contended that he did not sell the disputed property to the co-accused Rajbir. Further, it was argued by Ld. Counsel for the accused Suman Chopra that she was not even named in the complaint by the complainant and she was the bonafide purchaser of the property from the accused Rajbir Singh and she was not involved in any conspiracy in any manner whatsoever.
73. After perusing the materials available on record including the testimonies of the prosecution witnesses, I find that the prosecution has failed to prove the existence of a criminal conspiracy amongst the accused persons beyond reasonable doubts in the present case, for the reasons discussed in the subsequent paragraphs.
74. Firstly, there is nothing on record to show the involvement of accused Peerdan in the whole conspiracy. In his statement recorded u/s 313 Cr.P.C, he took the defence that he did not sell the disputed property to any person. Interestingly, no investigation was conducted by the investigating agency on the claims of the complainant that he was the owner of the disputed property. The property documents which were being relied upon by the complainant to claim the ownership (which were allegedly executed by the accused Peerdan in favour of the Page 41 of 49 complainant) were never seized by the investigating agency and were not sent for forensic examination. No efforts were taken by the IO to examine the authenticity of the property documents of the complainant. Since, this case involved cross claims of ownership over disputed property, IO should have seized property documents of both the parties and should have sent for forensic examination. This would have made the supported the case of the prosecution.
75. Further, as per the FSL Report Ex. PW-3/B, the admitted signature of the accused Peerdan did not match with his signatures on the property documents which were allegedly seized from the accused Rajbir Singh (on the basis of which he was claiming his ownership to the disputed property). This fact would in fact weaken the case of the prosecution. This would show that the accused Peerdan did not execute any property documents in favour of the accused Rajbir Singh, and, therefore, was not involved in any conspiracy with him.
76. Secondly, there is nothing on record apart from the FSL Reports (which are inconclusive to a larger extent) which would indicate the existence of any conspiracy to cheat and disposes the complainant from the disputed property. Even the testimony of the complainant PW-10 would be insufficient to draw any inference of the existence of a criminal conspiracy. During his examination-in-chief, he stated that the accused persons in the year 2001, he came to know that the accused persons Page 42 of 49 along with their accomplices had broken down the boundary wall and room of his property and started constructing their own boundary wall and room. However, he did not disclose the source of this information. It would appear that he came to know about the said fact from some other person, and, therefore, this statement of the complainant would be inadmissible being hearsay. In fact, the cross-examination of the complainant would show that he was not even completely aware of the present case. He even admitted in his cross-examination that he had no personal knowledge about the contents of the present complaint as the same was given to the police by his father.
77. Thirdly, there is nothing on record to show that the accused Suman Lata was involved in any conspiracy along with the co-accused Rajbir Singh. Although, she had purchased the disputed property from the co- accused Rajbir and further sold the same to other persons, however, that would not be sufficient enough to show her involvement in any conspiracy to cheat the complainant. In fact, she was not even named in the original complaint given to the police by the complainant.
78. Fourthly, the testimonies of the police witnesses examined by the prosecution would be insufficient to prove the existence of any criminal conspiracy. In fact, their testimonies would show some glaring infirmities in the investigation conducted by the investigating agency in the present case. Established procedures and safeguards for collecting the Page 43 of 49 specimen signatures were not taken by the IOs. Documents were not properly seized by the accused persons. Documents of the complainant were never seized and his specimen signatures were never collected.
79. Therefore, in view of the above, I find that the prosecution has miserably failed to prove (beyond reasonable doubt) that the accused persons were involved in a criminal conspiracy to cheat and dispossess the complainant from the disputed property.
CULPABILITY OF THE ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE U/S 420 IPC
80. As per the case of the prosecution, the accused persons have cheated the complainant by forging the documents related to the disputed property owned by the complainant and claiming ownership on the said property on the basis of the forged documents. The accused Peerdan had fraudulently sold the disputed property to the accused Rajbir Singh by preparing false antedated documents in order to enable the said accused to claim ownership on the said property.
81. Section 420 IPC provides for the offence of cheating and dishonestly inducing delivery of property. Simple cheating is punishable u/s 417 IPC. But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of person deceiving, the same falls under the ambit of section 420. It reads as under:
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"S.420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"
82. The essential ingredients to attract section 420 IPC are:
• Cheating;
• Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security; and • Mens rea of the accused at the time of making the inducement
83. In order to apply section 420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of section 415 of the IPC have to be satisfied. To constitute an offence of cheating under section 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of section 415 the IPC is "fraudulent", "dishonesty", or "intentional inducement", Page 45 of 49 and the absence of these elements would not constitute the offence of cheating. Reference can be taken from the recent judgment of the Hon'ble Supreme Court in the case of Deepak Gaba & Ors. vs. State of Uttar Pradesh & Ors. 2023 SCC OnLine SC 3 decided on 02.01.2023.
84. It should also be noted that accused should have dishonest intention to cheat right at the time of making the promise or representation. If he does not have any such intention at the very outset and if he subsequently fails to fulfil the said promise, then he cannot be convicted for the offence punishable u/s 420 IPC. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Hira Lal Hari Lal vs. CBI (2003) 5 SCC 257.
85. In the instant case, in order to convict the accused persons for the offence of cheating, the prosecution has primarily relied upon the testimony of the complainant PW-10. As I have already discussed in the preceding part of this judgment, the testimony of PW-10 is not safe to be relied upon in the absence of any other corroboratory materials in order to convict the accused persons in the present case. He had himself admitted in his cross-examination that he did not have personal knowledge of the contents of the complaint Ex. PW-10/A filed with the police. In fact, his knowledge about the facts involved in the present case is also hearsay in nature.
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86. Even if it is assumed that the testimony of PW-10 can be relied upon, perusal of his testimony would show that he has not supported the case of the prosecution qua the culpability of the accused persons for the offence of cheating. He did not state anything about any fraudulent / dishonest inducement made by any of the accused persons. No promise was made by any of the accused persons to him which induced him to delivery any property. The disputed property in question is still in the possession of the complainant PW-10. He was never dispossessed from the said property. He did not deliver or transfer the said property to any of the accused persons pursuant to any inducement made by them. He is in possession of the disputed property since the time he allegedly purchased the same from the accused Peerdan.
87. Further, the testimonies of the remaining prosecution witnesses who are mostly police officials or other official witnesses do not support the case of the prosecution qua the culpability of the accused persons for the offence of cheating. Their testimonies would only be relevant to the extent of forgery. Even if it is believed that the accused persons have prepared some forged documents in order claim ownership on the property of the complainant, that will not mean automatically mean that that they have cheated the complainant as no inducement or subsequent delivery of property is involved in the present case. Page 47 of 49
88. Therefore, in view of the above, I find that the essential ingredients of the offence of cheating punishable u/s 420 IPC i.e. fraudulent/dishonest inducement and delivery of the property pursuant to said inducement could not be established by the prosecution in the present case.
89. Before concluding this judgment, I find it apposite to highlight the fact that shoddy investigation was conducted by the investigating agency in the present case. It was conducted in a very casual manner without following the established norms and procedures. The testimonies of both PW-1 and PW-2 would show that they did not even record the statements of some of important witnesses who were conversant with facts and circumstances of the present case. The specimen signatures of the accused persons were neither collected by the order of Magistrate nor were they collected in the presence of the Magistrate. Seizure memo was not property prepared. There is a significant gap between the collection of specimen signatures of the accused persons / seizure of documents from the accused persons and the date on which they were sent for forensic examination. None of the IOs were aware as to whether the documents which were sent for forensic examination were duly sealed. Moreover, for some unknown reasons, none of the IOs took any steps to examine the authenticity of the property documents of the complainant. These documents were not even seized by the investigating agency during the course of the investigation. Page 48 of 49
90. Also, there is delay in the registration of the present FIR which could not be explained by the prosecution. As per the testimony of the complainant PW-10, he came to know about the fact that the accused persons had broken the boundary wall and room of the disputed property in the year 2001. However, surprisingly, the complaint Ex. Pw-10/A was given by the complainant to the police on 25.04.2002. No explanation was provided by the prosecution on the aspect of delay.
91. Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused persons in the present case beyond reasonable doubt for any of the offences for which they were charged.
92. Thus, the accused persons namely Peerdan, Rajbir and Suman Chopra stand acquitted for the offences punishable u/s 467/468/471/120B IPC.
Announced in the open court. (ANIMESH KUMAR)
MM-08, South West
New Delhi/16.01.2024
on 16.01.2024
It is certified that this judgment contains 49
pages and each page bears my signatures.
(ANIMESH KUMAR)
MM-08, South West
New Delhi/16.01.2024
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