Delhi District Court
Ca No. 14/16 State vs . Vikas @ Vicky 1/12 on 20 August, 2016
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI.
CA No. 14/16
State
Versus
Vikas @ Vicky
S/o Sh. Suresh
R/o H. No. 226, Gali no. 6,
E-Block, West Karawal Nagar,
Delhi
Date of assignment : 17.03.2016
Date of Arguments : 12.07.2016
Date of Pronouncement : 16.08.2016
Judgment :
1.Vide my judgment, I shall dispose of this appeal preferred by the prosecution against the acquittal dated 18.12.2015 thereby acquitting the accused u/s 420/34 IPC.
2. The main argument of the Ld. APP for the State is that the prosecution had duly proved before the Ld. Trial Court that the accused herein alongwith other co-accused who are PO misrepresented the ownership of a plot no 6A, rakba 100 Sq. yards, CA No. 14/16 State Vs. Vikas @ Vicky 1/12 Khasra No. 25, Kila no-2/3, Gali Number-1, Shiv Vihar Phase-1, Karawal Nagar, Delhi and represented that one Rajneesh Kumar was the owner of the plot and introduced him to the complainant and all accused persuaded the complainant to pay an amount of Rs. 4 Lakhs against a total consideration of plot for Rs. 26 Lakhs. It is further argued that the co-accused Rajnesh had also shown the forged documents of the plot before finalize the dealing and making the payment and all such facts have been duly proved by the prosecution with the testimonies of PW1 and PW2 before the Ld. Trial Court, but still Ld. Trial Court preferred not to give weight to their testimonies and acquitted the accused, which is bad in law. It is further argued that the Ld. Trial court has passed a wrong judgment which is bad on facts as well as law and is liable to be set aside.
3. On the other hand, Ld. Counsel for the accused has opposed all these submissions and has argued that prosecution has not pleaded any ground in the appeal which have been argued by the Ld. APP for State and the ground which has not been pleaded in the appeal could be argued before this court and this appeal is liable to be dismissed. It is further argued that Ld. Trial court has rightly acquitted the accused as the testimonies of PWs examined by the prosecution were not reliable and were even against the FSL report and appeal is also liable to be dismissed. It is further argued that none of the witness could prove that the accused ever misrepresented the facts or induced the complainant to pay any amount to anyone against any land transactions and charges under CA No. 14/16 State Vs. Vikas @ Vicky 2/12 Section 420/34 IPC could not be proved and this appeal is liable to be dismissed. It is further argued that if this court considers that the judgment is lacking on some points then it may be remanded back to the Ld. Trial Court with opportunity to accused to cross examine the PWs who could not be cross examined by the accused on account of acquittal of the accused otherwise accused should be granted an opportunity to extract truth from the PWs. It is further argued that this appeal is liable to be dismissed.
4. I have heard the arguments and perused the record. I am taking up the first plea of the defense that the grounds argued by the Ld. APP for State cannot be argued as the same have not been taken up in the appeal. The purpose of appeal is to challenge the judgment on the facts as well as law and scope of appeal cannot be limited merely to the grounds taken up in the appeal alone. Appellant court is very well vested with the powers to check the legality of the judgment in appeal even on the grounds which have been argued without taking up in writing and are also relevant. "Appellant has taken a ground in appeal that Ld. Trial Court failed to appreciate that from the statements of PW1 and PW2 established the complicity of the accused beyond doubt that he cheated the complainant of Rs. 4 Lakhs in furtherance of his common intention with other co-accused". This ground is sufficient to check the legibility of the judgment of Ld. Trial Court. In fact, the plea of the Ld. Counsel for the accused is not sustainable that this court cannot check the legality of the judgment on the basis of said plea alone.
CA No. 14/16 State Vs. Vikas @ Vicky 3/12
5. Another point of consideration is the limitation of the appeal. This appeal has been preferred against the judgment dated 18/12/2015 and filed on 16/3/2016 which is within the period of 3 months prescribed under article 114 of Schedule-1 of the Limitation Act and is within limitation.
6. Now the merit of the case is to be considered. This appeal has been preferred against the acquittal u/s 420 IPC. The definition of Cheating has been given u/s 415 IPC as under:
Section 415. Cheating :- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.-A dishonest concealment of facts is deception within the meaning of this section.
Section 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 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.
CA No. 14/16 State Vs. Vikas @ Vicky 4/12
7. A combined reading of both abovesaid sections, it is clear that fraudulent and dishonest inducement to deliver a valuable property is necessary requirement of cheating and dishonest concealment of facts amounts to deception within the meaning of cheating and amounts to cheating for the purpose of cheating.
8. As per the allegations of the prosecution, accused along with other two accused persuaded the complainant to purchase a plot which was never owned by him, but still they made to believe the complainant that it belonged to one co-accused Rajneesh and induced the complainant to pay a sum of Rs. 4 lakhs.
9. To prove the allegations, PW1 has deposed that he needed a plot for his family and told about it to his brother-in-law / PW2 who introduced accused Mohit and Vikas @ Vicky who used to work as property dealers and they show him a plot and introduced one Rajneesh to be the owner of that plot. It is further deposed that accused persons induced him to negotiate the deal for Rs. 26 Lakhs and he paid Rs. 4 lakhs as an advance to Rajneesh and agreement to sell was also executed which was signed by accused as witness.
It is further deposed that accused Rajneesh had also shown the documents of the property and assured him to deliver the originals at the time of full and final payment. It is further deposed that after some time he visited the plot and came to know that plot belonged to one Vikas Rana and, on contact to the accused persons, they assured him to get constructed the plot and tackle the matter. It is CA No. 14/16 State Vs. Vikas @ Vicky 5/12 further deposed that on 02/09/2012, he again reached to that plot but said Rana stopped him from construction and accused persons did not reach there. Police was informed and reached the spot and he had to leave his building material worth Rs. 25,000/- there. Accused Vikas @ Vicky has been identified as one of the accused. He has proved agreement to sell Ex.PW1/A, complaint Ex.PW1/B, Statement Ex.PW1/C and entry lodged with Sub Registrar as Ex.PW1/D.
10. During cross examination, he has re-asserted that PW Rambir was acquainted with Mohit who used to reside nearby to him. It is further admitted that accused Vikas also used to reside near to the house of his brother-in-law /PW2 but he was not acquainted with Vikas @ Vicky prior to dealing of this property. It is further deposed that neither the ID of Mohit nor photograph of Rajneesh was sought by him at the time of agreement to sell but stamp paper of agreement to sell was purchased by accused Vikas and Rajneesh and, it is denied that it was purchased by him. He did not verify the ownership of plot from the SDM office. It is further denied that the payment was made to accused Rajneesh at the instance of his brother-in-law / PW2 and it is reiterated that payment was made on the inducement of the accused persons. It is further deposed that he was present at the time of execution of agreement to sell Ex.PW1/A and accused Vicky signed the same in his presence. It is further deposed that he did not verify personally that Mohit and Vicky had been working a property dealers but his brother-in-law / PW2 knew CA No. 14/16 State Vs. Vikas @ Vicky 6/12 them. It is further deposed that he alongwith his brother-in-law / PW2 made efforts to trace out accused Rajneesh and in the month of October, 2012, accused Mohit was ready to take him to the house of Rajnesh but Vicky was not with them. It is admitted that the agreement to sell does not bear the parentage and address of the accused Vicky but it is denied that accused Vicky did not sign the agreement to sell. It is further deposed that money was counted by Mohit and Vikas @ Vicky.
11. PW2 Rambir has corroborated that in the year 2012, complainant Hari Ram was in the need of a plot and he introduced him to Mohit who used to work as property dealer in association of accused Vikas @ Vicky. It is further deposed that accused show them a plot and introduced Rajneesh to be the owner of that plot and on 14/08/2012, negotiation of the plot were finalized for Rs. 26 Lakhs, out of which, Rs. 4 Lakhs were paid in cash as advance to Rajneesh in the presence of accused Mohit and Vicky against agreement to sell Ex.PW1/A. Later on, he came to know that one Vikas Rana was the owner of that plot. His testimony is unrebutted in the absence of cross examination by accused.
12. PW3 Vikas Rana has deposed that he came to know from the public persons that someone had been obtaining the possession on his plot and at the spot he met complainant who told him that he had purchased the plot from one Rajneesh. He made a call to police and handed over the documents Ex.PW3/A to police which were CA No. 14/16 State Vs. Vikas @ Vicky 7/12 seized vide memo Ex.PW3/B. He did not know accused persons.
13. PW4 has proved FIR Ex.PW4/A and endorsement on rukka as Ex.PW4/B.
14. PW5 has proved that he deposited the specimen signature of the accused Vikas @ Vicky with FSL, Rohini.
15. PW6 has proved the arrest of the accused vide arrest and disclosure statement Ex.PW6/A and Ex.PW6/B.
16. PW7 has proved the investigation carried out by him and has proved a rukka Ex.PW7/A and seizure of the original agreement Ex.PW1/A vide seizure memo Ex.PW7/B. He seized the original documents of the plot from Vikas Rana and arrested the accused. He also obtained the specimen signatures of the accused to send FSL vide Ex.PW7/C and sent them for analysis.
17. After going through the testimonies of PW1 and PW2, it is clear that they have duly proved that the accused Vikas @ Vicky was working as property dealer alongwith co-accused Mohit and they introduced co-accused Rajneesh to be the owner of the plot despite knowing that he was not the owner of the plot. Both the witnesses have categorically deposed that accused Vikas @ Vicky was also one of the accused persons who instigated and persuaded the complainant to fix the deal of the plot and to pay an amount of Rs. 4 CA No. 14/16 State Vs. Vikas @ Vicky 8/12 lakhs and, even the accused Vikas @ Vicky counted the amount which was paid by the complainant. PW2 has duly corroborated the testimony of PW1 and his testimony of PW2 is un-rebutted. An agreement to sell Ex.PW1/A was executed between the parties at the time of payment of advance of Rs. 4 Lakhs and bears the signature of PW2 as well as accused Vikas @ Vicky besides PW2. PW1 and PW2 have duly proved that they signed the agreement to sell on 14/08/2012 and accused Vicky also put his signature on this agreement in their presence.
18. Ld. Counsel for the accused has argued that the FSL report has failed to establish that the documents Ex.PW1/A bears the signature of the accused and in the absence of authenticity of the document, it could not be proved that the same document was executed between the parties or that the same bears the signature of the accused. However, the arguments of Ld. Counsel for the accused have no force as the PW1 and PW2 have duly proved that the accused put his signature on the agreement to sell in their presence and even counted the amount and this testimony has duly proved that the document was duly executed between the accused Rajneesh and PW1 in the presence of PW2 and accused.
19. So far the FSL report is concerned, FSL report is in conclusive but has not ruled out that the same does not bear the signature of the accused. Rather it is inconclusive on the ground that the signature of accused for relevant period were not provided for CA No. 14/16 State Vs. Vikas @ Vicky 9/12 comparison. In such circumstances, it cannot be said that the FSL report is in favour of accused and against the prosecution. In fact, in such circumstances, the oral testimonies of witnesses have to be given preference to prove as to when document Ex. PW1/A was executed or not or accused put his signature on the document or not. PW1 and PW2 have duly proved that the accused signed the document in their presence and this ocular testimony of both witnesses has to be considered as correct because inconclusive report does not mean in favor of one party and against another. Even otherwise, FSL report is not mandatory when crime has been proved by reliable evidence as held in Hema v. State Through Inspector of Police, Madras (2013) 10 SCC 192 that failure to exhibit FSL report was not fatal to the case when crime was proved by reliable evidence.
20. PW3 has duly proved that the property in dispute belonged to him and he did not know the accused persons. He has proved the documents of the property as Ex.PW3/A. Complainant contacted the accused Mohit and Vikas @ Vicky and they introduced him to co-accused Rajneesh as owner of the property which belonged to PW3 and persuaded complainant to fix the deal and to pay the amount of Rs. 4 Lakhs as earnest money out of sale amount of Rs. 26 Lakhs. Accused Rajneesh had also shown him the original documents of the property and assured to give originals at the time of full and final payment. This conduct of the accused amounts to dishonest concealment of the true facts which amounts to deception CA No. 14/16 State Vs. Vikas @ Vicky 10/12 in terms of explanation to section 415 IPC and also inducement to complainant to believe a false fact to be true and to deliver the valuable property / money to pay them. As such, accused in furtherance his common intention with other co-accused made believe the complainant to believe that the plot belonging to Vikas Rana was of accused Rajneesh and they induced complainant to deliver Rs. 4 Lakhs on the strength of the forged documents and it amounts to cheating in terms of section 420 IPC.
21. So far the submission of the Ld. Counsel for accused that accused should be given an opportunity to cross examine the PWs or remanding back of this case to Ld. Trial Court is concerned, accused moved an application u/s 311 Cr.P.C. but it was dismissed as withdrawn vide order sheet dated 11/12/2015 and after withdrawal of this application, there is no reason to allow this prayer again especially when repeated opportunity were given to cross examine the PWs in the presence of advocate but he failed to avail those opportunities. Accused was being represented by same lawyer who has represented him before this court and NIL opportunity for cross examination was given in the presence of Ld. Counsel for accused and this prayer cannot be allowed at this belated stage.
22. As such, prosecution with the testimonies of PW1 to PW3 have duly proved that the accused has committed the offence u/s 420/34 IPC, but Ld. Trial court failed to appreciate the evidence properly and wrongly relied upon the FSL report in favour of the CA No. 14/16 State Vs. Vikas @ Vicky 11/12 accused and to come to the conclusion that the prosecution has failed to prove the offence against the accused. In fact, the judgment of acquittal of the accused passed by the Ld. Trial court bears illegality and is liable to be set aside. I hereby set aside the judgment dated 18/12/2015 passed by the Ld. Trial court and allowed this appeal. Accused namely Vikas @ Vicky is hereby convicted under Section 420/34 IPC and is taken into custody.
Announced in open court (Devender Kumar)
today on 16.08.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
CA No. 14/16 State Vs. Vikas @ Vicky 12/12