Delhi District Court
Public Prosecutor vs Rajender Singh Srivastava on 7 March, 2018
IN THE COURT OF SH. ASHUTOSH KUMAR, SPECIAL
JUDGE02 (P.C.ACT), CBI, NORTHWEST DISTRICT,
ROHINI COURT, DELHI
CA No: 153/2017
State
Through
Public Prosecutor, Delhi. ..........Appellant
Vs
1. Rajender Singh Srivastava
S/o Sh. Ramchander Prasad
R/o M963, Mangol Puri, Delhi.
2. Dharmvir
S/o Sh. Mohan Lal
R/o Mohalla Adpura, Vill. Begumpur, Delhi.
3. Girdhari Lal
S/o Sh. Than Singh
R/o Village Begumpur, Delhi.
4. Randhir Singh @ Sapatu
S/o Sh. Jai Lal
R/o Village Karala, Delhi ............Respondents
Date of Institution : 22.12.2017 Date of reserving the order : 07.03.2018 Date of order : 07.03.2018 Present: Sh. Shiv Kumar, ld. Addl. PP for appellant/State.
Respondent no.1 and 2 in person with ld. Counsels Sh. D.P. Sharma and Gaurav Sharma, Advs.
CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 Fresh vakalatnama on behalf of respondent no. 2 filed.
None for respondent no.3 and 4.
Arguments on appeal as well as on condonation of delay application addressed by ld. Counsel for respondent no.2. Some further arguments on appeal as well as on condonation of delay application have also been addressed by ld. Counsel for respondent no. 1, whereas arguments on the same have already been addressed by ld. Addl. PP for the appellant/State.
None has appeared on behalf of respondent no. 3 and 4 to address arguments and accordingly their right to address arguments is closed.
Perused the record including TCR.
In the application for condonation of delay in filing the appeal it is merely mentioned that the impugned order was passed on 25.06.2016 and the certified copy of the said order was received on 19.07.2016. Admittedly the appeal was filed on 20.12.2017 i.e. with a delay of more than one year and five months. It is merely mentioned that that the delay was only because of procedural movement of file and it was neither intentional nor deliberate.
Nowhere in the application the details of the procedural movement of file i.e in which office the said file remained for what period, is mentioned. Legislature in its wisdom has not prescribed two different criteria while considering the application for condonation of delay in filing the appeal whether by convict or by the State. It was incumbent for the State to show just and sufficient cause for each and every day of delay. However CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 it is common knowledge that before filing of an appeal, the file of the State goes through many hands/offices, therefore some amount of delay is understandable, but inordinate delay of more than one year without any sufficient cause, is beyond comprehension. I find force in the arguments of ld. Counsel for the respondent no.1 and 2 that the Condonation of Delay application does not mention detailed reasons showing sufficient cause.
The Hon'ble Supreme Court of India in the case of "Office of The Chief Post Master General & Ors. Vs Living Media India Ltd.& Anr. Decided on 24.02.2012" Civil Appeal No. 2474 2475 of 2012 (arising out of SLP © Nos. 759596 of 2011), held as under:
13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 sufficient to condone such a huge delay."
Keeping in view the aforesaid discussion and judgment cited, I am of the considered opinion that no sufficient cause for condonation of delay has been shown on behalf of State and accordingly application for condonation of delay in filing the appeal is dismissed.
Let us assume for the sake of arguments that the delay in filing the appeal is condoned in order to consider the appeal of State on merits.
ORDER ON APPEAL
1. All the four respondents were acquitted vide impugned judgment of the charge for the offences u/s 120B/420/468/471 IPC. The relevant part of the impugned judgment of ld. Trial court is reproduced below: "......17. In order to prove alleged commission of offence u/s 420/468/471/120 B IPC by the accused Girdhari Lal, the prosecution is required to prove that the accused Girdhari Lal entered into the alleged sale purchase transaction regarding the above mentioned plot with the complainant and had received Rs.55,000/ from the complainant as consideration without executing transfer documents in favour of the complainant and further he handed over fake documents to the complainant. Though, in his examinationinchief, statement u/s161 Cr.P.C (Ex.PW1/J) and in his cross examination, there is consistent statement of the complainant as to the commission of the offence u/s 120B/420/468/471 IPC by accused Girdhari Lal but, the CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 same is not sufficient to prove the guilt of the accused Girdhari Lal. To prove the same, the prosecution is required to prove that the above mentioned plot belongs to the accused Girdhari Lal and during he year 1991 1992, the accused Girdhari Lal has received Rs.55,000/ from the complainant.
18. In the present matter, there is nothing on record to prove that the above mentioned plot was owned by the accused Girdhari lal at the relevant time. Further, none of the receipts allegedly relied by the complainant to prove the factum of alleged payment of consideration amount by the complainant to the accused Girdhari Lal through the accused Rajender Singh Srivastava, i.e. Ex.PW1/A to Ex.PW1/E and Ex.PW1/I bears the signatures of the accused Girdhari Lal. Though, perusal of Ex.Pw1/I prima facie reveals that the same bears the thumb impression of the accused Girdhari Lal but, when the admitted signatures of the accused Girdhari Lal was compared with the disputed signatures on receipt Ex.PW1/I i.e. at point Q3, it was opined by PW7/finger print expert that the same is not identical with the specimen thumb impression of the accused Girdhari Lal as mentioned in his detailed report Ex.PW7/A. Further, it was also opined by PW7 that none of the alleged fake documents (Ex.PW1/F to Ex.PW1/H) bears the thumb impression of the accused Girdhari Lal. Thus, the CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 prosecution failed to connect the accused Girdhari Lal with the alleged commission of offence u/s 120B/420/468/471 IPC.
19. Now, this court will proceed further to appreciate the evidence as brought on record against the accused Rajender Singh Srivastava, Dharamveer and Randhir.
20. In the present matter, it is worthwhile to mention here that the complainant neither mentioned the name of the accused Dharamveer nor of the accused Randhir in its statement u/s 161 Cr.P.C (Ex.PW1/J), on the basis of which the present FIR has been registered. The accused Dharamveer was implicated on the basis of his allege signatures as witness on documents Ex.PW1/F to Ex.PW1/I and the accused Randhir was implicated on the basis of his photographs on GPA Ex.PW1/F and thumb impressions on Ex.PW1/F to Ex.Pw1/I. To prove the guilt of the accused Dharamveer and Randhir, the prosecution was required to prove that the said documents bears the signatures/thumb impression of the accused Dharamveer as witness and Randhir as executant.
21. In the present matter, though, as proved by PW7 vide this report Ex.PW7/A, that Ex.PW1/F to Ex.PW1/I bears the signatures of the accused Dharamveer as witness and thumb impression of the accused Randhir as CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 executant however, during the course of arguments, ld. Counsel for the accused persons had placed reliance on the decision of Hon'ble Apex Court in Sukhvinder Singh & Ors. Vs. State of Punjab (1994) 5 SCC 152 which was further relied by Hon'ble High Court of Delhi in Rakesh Singh Vs. State 2004 (1) JCC 110. In the above mentioned cases, it was observed that when the specimen signatures/thumb impression were taken/obtained during investigation by the IO without prior impression from the court then, the same could not be made use of during the trial thus, the report of handwriting expert is rendered of no consequence and could not be used against the accused to connect him with the crime.
22. In the present matter also, the signatures/thumb impression of all the accused persons were obtained by the IO without the permission of the court, therefore, even if the FSL report u/s 293 Cr.P.C supports the case of the prosecution, but the same cannot be used against the accused persons so as hold them guilty for the offence u/s 420/468/471/120B IPC.
23. Even otherwise, in the present matter, so as to prove the alleged commission of offence by the accused persons, the prosecution was required to prove the factum of alleged payment of Rs.55,000/ by the complainant to the accused persons vide receipt Ex.PW1/A to Ex.PW1/E CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 and Ex.PW1/I but, the prosecution failed to prove Ex.PW1/A to Ex.PW1/E as per law. In the present matter, as per prosecution's case, the complainant handed over the alleged receipts of the year 1992 to the IO in the year 1998 which were seized vide seizure memo Ex.PW1/K, but there is nothing on record to prove deposition of the said receipts by the IO with MHC(M) and filing of the same in the court record with the charge sheet, as along with the charge sheet which was filed in the year 1999, only the photocopies of the said receipts were filed. Thus, the possibility of tampering of the said receipts cannot be ruled out. Further, the prosecution also failed to prove on record the order by virtue of which the said receipts were allegedly deposited by the IO with FSL for comparison. Thus, the alleged factum of payment of consideration amount by the complainant has not been proved by the prosecution.
24. Further, the case of the prosecution is surrounded by suspicious circumstances as there is no explanation put forth by the complainant as to why there was delay in lodging the FIR which was of the year 1995 when he was allegedly cheated by the accused persons in the year 19911992 and the prosecution further failed to explain the reason as to why the alleged receipts were retained by the IO in his possession from the year 1998 till the year 2000 when the same was allegedly sent to FSL, without CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 depositing the same with MHCM or without filing the same in court record with charge sheet.
25. Thus, the prosecution failed to connect the accused persons with the alleged commission of offence u/s 120B/420/468/471 IPC beyond reasonable doubt. Accordingly, the accused Rajender Singh Srivastava, Dharamveer, Girdhari La, Randhir are acquitted of the charges leveled against them Case be revived as and when accused Ved Prakash be apprehended or arrested......"
2. The facts of the case are that four of the accused persons namely Rajender Singh Srivastava, Dharamveer, Girdhari Lal and Randhir were put to trial (as one accused Ved Prakash was P.O.) for the alleged commission of offences u/s 420/468/471/120B IPC on the allegation that during the year 19911992, at village Begumpur, all the accused persons alongwith the accused Ved Prakash (absconder) entered into criminal conspiracy and deceived the complainant of an amount of Rs.55,000/ by fraudulently inducing him that they will sell to the complainant plot bearing no. 11, area admeasuring 100 Sq. Yards out of Khasra no. 14/2, situated at Village Begumpur, Delhi, colony known as Begumpur Extension (herein after wards referred as above mentioned plot), belonging to the accused Girdhari Lal but even after receiving the said amount from the complainant, the accused persons failed to execute the transfer documents in favour of the complainant. It is further alleged that the accused CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 persons had also conspired together in preparing fake documents of the above mentioned plot and then fraudulently using the said fake transfer documents as genuine to deceive the complainant. It is alleged by the complainant in his statement u/s 161 Cr.P.C dated 05.08.1995 that at the instance of the accused Rajender Singh Srivastava, he agreed to purchase the above mentioned plot belonging to the accused Girdhari Lal @ Rs. 450/ Sq. Yards and had made payment of the entire consideration amount of Rs.45,000/ by the year 1992 to the accused Girdhari Lal through the accused Rajender Singh Srivastava but, the accused Girdhari Lal had handed over to him GPA of the above mentioned plot bearing photograph of some other person and when the complainant asked him the reason for the same, the accused Girdhari Lal demanded further payment of Rs.10,000/ from the complainant. It is alleged that even after payment of the said amount of Rs.10,000/, the accused Girdhari Lal failed to execute the transfer documents in his favour. In his supplementary statement as recorded on 10.09.1995, the complainant also alleged that the fake documents as handed over to him also bears the signatures of the accused Dharamveer thus, he had also deceived the complainant.
3. The only material ground taken by the State in the appeal is that ld. MM did not appreciate the testimony of PW1/complainant although he has fully supported the case of the prosecution and explained the role of each of accused person in his testimony and his evidence was also corroborated by scientific evidence i.e. FSL reports by PW7 and PW8.
CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14
4. For proving the charges of the offences, the prosecution had to prove that Girdhari Lal was the owner of the plot in question and during the year 199192 had received a sum of Rs.55,000/ from the complainant for sale of the same. Merely bald statement in this regard by the complainant/PW1 was not sufficient. Ld. Trial court has rightly observed that there is nothing on record to prove that the said plot was owned by Girdhari Lal. Further the purported payment receipts Ex.PW1/A to Ex.PW1/E and Ex.PW1/I do not bear the signatures of Girdhari Lal. The purported thumb impression of Girdhari Lal on receipt Ex.PW1/I at point Q3 has not been proved to be belonging to him in the report of the FSL expert Ex.PW7/A. Also it has been rightly observed by ld. Trial court on the basis of opinion of FSL expert/ PW7 that none of the alleged fake document i.e. Ex.PW1/F to Ex.PW1/H relating to transfer of the said property bear the thumb impression of accused Girdhari Lal and thus the prosecution has failed to connect the accused Girdhari Lal with the commission of the said offences.
5. As regards the remaining three accused persons it has been rightly pointed out by ld. Trial court that the complainant had not mentioned the name of Dharamveer and Randhir as accused in his statement Ex.PW1/J on the basis of which the present case FIR was registered. Dharamveer was roped in on the basis of his alleged signatures on documents Ex.PW1/F to Ex.PW1/I and Randhir was roped in on the basis of his photographs on GPA Ex.PW1/F and purported thumb impression on Ex.PW1/F to CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 Ex.PW1/I.
6. FSL expert/ PW7 in his report Ex.PW7/A has opined that Ex.PW1/F to Ex.PW1/I bear the signatures of Dharamveer as witness and thumb impression of Randhir as executant. However the ld. Trial court on the basis of judgments in the case of Hon'ble Apex Court in Sukhvinder Singh & Ors. Vs. State of Punjab (1994) 5 SCC 152 which was further relied by Hon'ble High Court of Delhi in Rakesh Singh Vs. State 2004(1) JCC 110 by Hon'ble Delhi High Court has rightly discarded the said FSL expert opinion report on the ground that their specimen signatures/thumb impression were taken by the IO without permission of the court. The contrary argument of ld. Additional P.P. for appellant that amendment in the said regard came into force w.e.f 23.06.2006 and therefore it had no application in the present case filed in 1995, has no force as nowhere in the aforesaid judgments cited it is mentioned that they will only have prospective effect.
7. As per the case of the prosecution the said purported receipts of the year 1992 were handed over by the complainant to IO in the year 1998 and were seized by IO vide memo Ex.PW1/K, but there is nothing on record to prove depositing of the said receipts with MHC(M) and filing of the same on the court record with the chargesheet. Admittedly said receipts were taken in possession in the year 1998, chargesheet was filed in the year 1999 and the said questioned receipts were sent to FSL in the year 2000. Thus the said receipts remained with the IO for about CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14 two years and were not deposited in Malkhana. In such circumstances it was rightly observed by ld, trial court that tampering of the same cannot be ruled out. It was further rightly opined by ld. Trial court that the prosecution had failed to prove the record by which the said receipts were deposited by the IO for comparison.
8. On the ground of delay in lodging the complaint, ld. Trial court was right in raising the suspicion. No explanation is there as to when the alleged offences were committed in the year 1991 1992, why FIR was lodged after inordinate delay in the year 1995.
9 Even if for arguments sake it is assumed that two views were possible still it is also well settled that if two views are possible one favouring the accused is to be taken and appellate court should not interfere with the one taken by ld. Trial court.
10. In view of the aforesaid discussion, I am of the considered opinion that that ld. Trial court rightly did not rely upon the bald testimony of complainant/PW1 and correctly observed that the prosecution has failed to connect the accused persons with the alleged commission of offences u/s 120B/420/468/471 IPC. There is no infirmity or illegality in the impugned judgment of ld. Trial court. Accordingly the appeal is dismissed on merits also .
11. Copy of this order alongwith TCR be sent back to Ld. Trial Court.
CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14
12. Appeal file be consigned to Record Room.
Announced in the Open Court (Ashutosh Kumar) on 07.03.2018 Special Judge02 (P.C. ACT), CBI Distt. N/W, Rohini Courts, Delhi/R CA No: 153/2017 State Vs Rajender Singh Srivastava & Ors. 14 of 14