Delhi District Court
Court Of Cmm (South) vs Ekta Bansal And Anr on 6 September, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CT CASE/ 5817/2018
COURT OF CMM (SOUTH)
Vs.
EKTA BANSAL AND ANR
Police Station : Saket
Under Section : 193/199/200/467/471/120B/34 IPC
Date of institution : 18.04.2018
Date of reserving : 29.08.2024
Date of pronouncement : 06.09.2024
JUDGMENT
a) Serial number of the case : 5817/2018
b) Date of commission of : Unknown
offence
c) Name of the complainant : Court of CMM (South) through Mrs.
Laxmi, Senior Judicial Assistant
d) Name, parentage and : i) Ekta Bansal W/o Sh. Yogesh Bansal address of the accused R/o Flat No. 828/S-4, BR Apartments, persons Shalimar Garden Extension, Shahibabad (UP).
ii) Yogesh Bansal S/o Sh. Jagdish
Prasad Bansal R/o Flat No. 828/S-4, BR
Apartments, Shalimar Garden
Extension, Shahibabad (UP).
CT CASE: 5817/2018
COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR
PS: SAKET Page 1 of 23
e) Offence complained of : 193/199/200/467/471/120B/34 IPC
f) Plea of the accused : Accused persons pleaded not guilty
persons
g) Final order : Accused persons convicted for the
offences u/s 193/200/120B IPC.
However, they are acquitted of the
offences u/s 199/467/471/34 IPC.
h) Date of final order : 06.09.2024
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. The present case has arisen out of a complaint made under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") by the Court of Ld. CMM, South, upon an application by Ms. Poonam Agarwal against the accused persons (i.e. applicant's sister-in-law Ms. Ekta Bansal and applicant's co-brother Yogesh Bansal) on the ground that the two accused persons have allegedly filed false documents during proceedings in FIR Nos. 55/10 and 187/10 in the Court of Ld. CMM and thereby committed offences under Sections 193, 199, 200, 467 and 471 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC").
CHARGE
2. Vide order dated 10.10.2018, charge for the offences punishable under Sections 193/199/200/467/471/120B/34 IPC was framed against both the accused persons, who pleaded not guilty and claimed trial.
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 2 of 23 EVIDENCE OF THE PROSECUTION
3. Prosecution has examined five witnesses i.e. PW1 Sh. Shiv Kumar Yadav, PW2 Ms. Laxmi, PW3 Sh. Ravinder Kumar, PW4 SI Saurabh Kumar and PW5 Sh. Ajay Kumar.
4. PW1 Sh. Shiv Kumar Yadav, JA/Ahlmad in the Court of Ld. CMM (South), Saket, New Delhi had brought the original record of case FIR No. 187/10, PS Crime Branch, titled 'State vs. Manmohan Singh' pending in the Court of Ld. CMM (South), Saket, New Delhi. The photocopy of the application under Section 320 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") seeking permission for compounding the offence in case FIR No. 55/2010 & FIR No. 187/2010, PS EOW (South) dated 25.02.2013 filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/A (OSR). The photocopy of affidavit in support of application under Section 320 of the Code seeking permission for compounding the offence in case FIR No. 55/2010 & FIR No. 187/2010, PS EOW (South) dated 25.02.2013 filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/B (OSR). The photocopy of compromise deed filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/C (OSR). The photocopy of another application under Section 320 of the Code seeking permission for compounding the offence in case FIR No. 55/2010 & FIR No. 187/2010, PS EOW (South) dated 25.02.2013 filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/D (OSR). The photocopy of affidavit in support of the application under Section 320 of the Code seeking permission for compounding the offence in case FIR No. 55/2010 & FIR CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 3 of 23 No. 187/2010, PS EOW (South) dated 25.02.2013 filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/E (OSR). The photocopy of compromise deed filed on behalf of Sh. Anudeep Agrawal was exhibited as Ex PW1/F (OSR). The photocopy of another set of application under Section 320 of the Code, affidavit and compromise deed were exhibited as Ex PW1/G to Ex PW1/I (OSR). The photocopy of another set of application under Section 320 of the Code, affidavit and compromise deed were exhibited as Ex PW1/J to Ex PW1/L (OSR). The photocopy of another set of application under Section 320 of the Code, affidavit and compromise deed were exhibited as Ex PW1/M to Ex PW1/O (OSR). The copy of statement of amount released to Anudeep Agrawal with receiving of 02.03.2013 was exhibited as Ex PW1/P with signatures of the receiver at point A.
5. PW2 Ms. Laxmi, Senior Judicial Assistant, the then Reader in the Court of Ld. CMM (South) deposed that since 2014, she was working as Reader in the Court of Ld. CMM, South. Through the order sheet dated 22.02.2018, she was authorized and directed to file the formal complaint under Section 340 of the Code against accused Ekta Bansal and Yogesh Bansal. The certified copy of the order dated 22.02.2018 was exhibited as Ex PW2/A. Two FIRs bearing No. 55/2010 and 187/2010, PS EOW were pending before the Ld. CMM, in which settlement was arrived between the accused company and all the investors and accused company was to return back the money to its investors. The aforesaid accused persons filed application in the Court of Ld. CMM with false signature of Anudeep Aggarwal to receive the claim from the accused company. Anudeep Aggarwal never came to India since 01.03.2010. The accused persons had CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 4 of 23 collected the draft in the name of Anudeep Aggarwal and deposited the same in the bank account of Anudeep Aggarwal by forging the signature. By doing so, they caused wrongful loss to Ms. Poonam Aggarwal and wrongful gain to themselves. When the Court of Ld. CMM, South had summoned the aforesaid accused persons, accused Yogesh Bansal admitted that he had received the draft for settlement in FIR No. 187/10 and FIR No. 55/10, PS EOW on behalf of his wife Ekta Bansal as well as on behalf of his brother-in-law Anudeep Aggarwal. Accused Ekta Bansal admitted that she deposited all the drafts in the account of Anudeep Aggarwal. Upon admission of the accused persons, as per the Court, prima facie case was made out against both the accused persons and the same was recorded by the Ld. CMM in the order sheet dated 17.05.2016. The certified copy of the order sheet dated 17.05.2016 was exhibited as Ex PW2/B. Thereafter, PW2 had given the complaint (Ex PW2/C) as per the authorization and direction of the Ld. CMM, South. PW2 correctly identified the accused persons. The witness was duly cross-examined by the Ld. Defence Counsel.
6. PW3 Sh. Ravinder Kumar, the then Ahlmad in the Court of Ms. Surbhi, Ld. MM (Mahila Court-02), Dwarka Courts, New Delhi had brought the original case file of FIR No. 88/2010, PS Crime (Women) Cell, CAW Cell, Nanakpura dated 31.05.2010 titled 'State vs. Anudeep Agarwal & Ors'. The photocopy of the above mentioned file, which was affixed with the judicial file from Page No. 17 to 113, was exhibited as Ex PW3/A (OSR) (colly).
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 5 of 23
7. PW4 SI Saurabh Kumar, No. D/4750, Delhi Police Academy, Dwarka, New Delhi deposed that in the year 2014, he was posted at PS CWC, Nankpura, New Delhi. In FIR No. 88/2010, the charge sheet was filed by SI Rajni Chopra. PW4 further deposed that during his posting, he had received the supplementary investigation of FIR No. 88/2010, PS CWC, Nankpura, New Delhi. During investigation, as per the directions of the Court, PW4 had visited the passport office, Ghaziabad regarding cancellation of passport of accused Anudeep Agarwal. PW4 had also approached MEA w.r.t. cancellation of Visa of accused Anudeep Agarwal. PW4 had also obtained the details of LOC and any tenure of visit to India w.r.t. accused Anudeep Agarwal. As per investigation, PW4 had collected a letter from FRRO and got the information that accused Anudeep Agarwal left India on 01.03.2010 and he did not come back to India till 03.08.2014. The report of the FRRO w.r.t. the same was exhibited as Ex PW4/A. Thereafter, PW4 had obtained the bank details of accused Anudeep Agarwal from Axis Bank, SBI and ICICI Bank. When PW4 had obtained the record of ICICI Bank, he came to know that 11 DDs and cash (three times) were deposited in the said account of Anudeep Agarwal. The papers obtained from the bank w.r.t. accused Anudeep in which DDs could be seen deposited in the account was exhibited as Ex PW4/B (Colly). When PW4 had checked as to from where these DDs had come, the same were came from Oriental Bank of Commerce. PW4 had interrogated the bank officials of OBC and came to know that the said DDs had come from one Rajni Singh in the account of accused and the report of the OBC w.r.t. same was exhibited as Ex PW4/C. During investigation, PW4 came to know that the said DDs were deposited in the Court of Ld. CMM by the accused (in the Court of Ld. CMM) to hand over the same to the CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 6 of 23 investors/aggrieved party, namely, alleged Anudeep Agarwal. Thereafter, PW4 had inquired from advocate of accused Anudeep Agarwal, namely, Ajay Khanna. During inquiry from Ajay Khanna, PW4 came to know that Anudeep Agarwal and Ekta Bansal (sister of Anudeep) were the investor and he disclosed that might be Ekta Bansal or her husband Yogesh Bansal had obtained the DDs from the court of Ld. CMM. PW4 prepared his report (Ex PW4/D) w.r.t. the same and filed it in the Court of Ms. Tyagita Singh, Ld. MM, Dwarka Court, New Delhi in FIR No. 88/2010. The witness was duly cross-examined by the Ld. Defence Counsel.
8. PW5 Sh. Ajay Kumar, the then Ahlmad in the Court of Ld. CMM, South, Saket Courts, New Delhi had brought the case file of FIR No. 187/2010, PS Crime Branch and the copy of the statement of amount released to the investors. PW5 deposed that the amount released in the name of Sh. Anudeep Agarwal through DD was mentioned at Sl. No. 92 to 99 and the amount released in the name of Ms. Ekta Bansal through DD was mentioned at Sl. No. 102 to 105. The copies reflecting the amount released to the investors were exhibited as Ex PW1/P (OSR) (running into 05 pages) and the amount released in the name of Sh. Anudeep Agarwal and Ekta Bansal was reflected at Point A of Page No. 4. The witness was cross-examined by the Ld. Defence Counsel.
STATEMENT OF THE ACCUSED PERSONS
9. In their respective statement recorded under Section 313 of the Code, both the accused persons denied the entire evidence against them.
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 7 of 23 They stated that they are innocent and have been falsely implicated in this case. They led evidence in their defence.
DEFENCE EVIDENCE
10. DW1 Ekta Bansal (one of the accused persons) deposed that Anudeep Agarwal is her brother. Around 2008-2009, DW1 had invested in MCL (Metro Cruise Limited). In the year 2009, her (DW1) brother Anudeep came to India from USA and DW1 informed him of the said investment. Thereafter, he also invested in said MCL in 2009. In the year 2009, said company MCL became defaulter. In the year 2010, they came to know that the Director of the said MCL company, namely, Sh. Manmohan Singh was settling the matters with the investors in the Court and regarding the same, they filed an application in Saket Court. The brother of DW1 had given DW1 an authority letter (Mark D) w.r.t. the said settlement arrived, if any, on his behalf, as he was travelling to different places in search of job. They showed their files to Sh. Manmohan Singh in the Court and he said that whoever investor would come to the Court, would get the DD and DW1 signed her own application and wrote the name of her brother Anudeep on the application wherever she was asked to do the same in the Court. Thereafter, they were given a date and on the said date, the husband of DW1 went to the Court and collected the DD of DW1 and her brother. Thereafter, DW1 deposited Anudeep's DD in his bank account. Thereafter, in year 2015-16, DW1 received a notice from EOW Cell inquiring about the DDs of Anudeep. Thereafter, DW1 received notice from the Court. DW1 was duly cross-examined by the Ld. APP for State.
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 8 of 23 ANALYSIS AND FINDINGS
11. The record has been thoroughly and carefully perused. The respective submissions of Sh. Naresh Choudhary, Ld. APP for State, Sh. V.K. Pandey, Ld. Counsel for the complainant and Sh. Narendra Singh, Ld. Counsel for the accused persons have been considered.
12. It is reiterated that the present case has arisen out of a complaint made under Section 340 of the Code by the Court of Ld. CMM, South, upon an application by Ms. Poonam Agarwal against the accused persons (i.e. applicant's sister-in-law Ms. Ekta Bansal and applicant's co-brother Yogesh Bansal) on the ground that the two accused persons have allegedly filed false documents during proceedings in FIR Nos. 55/10 and 187/10 in the Court of Ld. CMM and thereby committed offences under Sections 193, 199, 20, 467 and 471 read with Section 120B IPC.
13. Vide order dated 18.04.2018, cognizance of offences under Sections 193/199/200/467/471 IPC was taken by the Ld. Predecessor Judge. Subsequently, charge was framed against the accused persons under Sections 193/199/200/467/471/120B/34 IPC on 10.10.2018.
14. It is the case of the Ld. APP for the State that the order sheets of file pertaining to FIR No. 55/10 and 187/10 do not reflect that any authorization letter in favor of the accused persons was purportedly issued by Mr. Anudeep Agarwal and was filed by the accused persons during the compounding proceedings. It is averred that after filing of application under Section 340 of the Code by Ms. Poonam Agarwal, preliminary CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 9 of 23 inquiry was conducted by the Court of Ld. CMM and only after satisfying itself that it was expedient in the interest of justice that an inquiry into the alleged offence should be made, the said Court had lodged complaint under Section 195 read with Section 340 of the Code.
15. Per contra, it is argued on behalf of the accused persons that Mr. Anudeep Agarwal had issued an authorization letter in favour of the accused persons, whereby they were authorized to collect the amount from Metro Cruise Limited and the said authorization letter was supplied to the Court of Ld. CMM at the time of release of demand draft. It is not disputed by the accused persons that the demand draft was collected by accused Yogesh Bansal and deposited into the bank account of Mr. Anudeep Agarwal. It is also admitted that the accused had filed a compromise deed wherein accused Ekta Bansal had written the name of Mr. Anudeep Agarwal. However, it is stated that as signatures of Mr. Anudeep Agarwal were not forged by her, therefore, no offence whatsoever was committed by the accused persons.
Re: Offence of forgery
16. For ease of reference, Sections 467 and 471 of IPC are reproduced below:
"Section 467 - Forgery of valuable security, will, etc. - 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 CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 10 of 23 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.
Section 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."
17. Section 470 of IPC defines a forged document as a false document or made wholly or in part by forgery. In this context, it is pertinent to understand the definition of 'forgery' and 'making of false document' in IPC. Section 463 of IPC defines forgery in the following manner:
"Whoever makes any false document 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."
18. Further, 'making of false document' is defined under Section 464 IPC in the following manner:
"464. Making a false document - A person is said to make a false document or false electronic record -
First. - Who dishonestly or fraudulently - (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the 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 that it was not made, singed, 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 CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 11 of 23 any material part thereof, after it has been made, executed or 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 to 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 practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
19. A close scrutiny of the aforesaid provisions makes it clear that Section 463 IPC defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document can be said to have been made for the purpose of committing the offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of false document. Further, Section 467 IPC provides punishment for the commission of the offence of Forgery of Valuable Security, Will, etc. Thus, in order to sustain a conviction under Section 467 IPC, first it has to be proved that the offence of forgery was committed under Section 463 IPC, implying that the ingredients under Section 464 IPC are also satisfied.
20. In the present case, what needs to be determined is whether the accused persons; firstly, created a false document (as defined under Section 464 IPC), secondly, whether the accused persons created such false document for any of the purposes as provided under Section 463 IPC so as to constitute the offence of forgery and thirdly, whether the said document falls within the ambit of Section 467 of the IPC.
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 12 of 23
21. In Mohd. Ibrahim vs. State [(2009) 8 SCC 751], the Hon'ble Supreme Court has observed that:
"An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or
(c) deception practised upon him, know the contents of the document or the nature of the alteration."
22. In Mohd. Ibrahim (Supra), the Hon'ble Supreme Court also examined forgery under Section 467 and using of forged document as genuine under Section 471 IPC. While considering the basic ingredients of both the offences, the Supreme Court observed that the condition precedent for an offence under Section 467 and 471 is forgery and the condition precedent for forgery is making of false document.
23. In the present case, accused Ekta Bansal has admitted that as directed by her husband, accused Yogesh Bansal, she wrote the name of her brother Anudeep Agarwal in her own handwriting in Ex. PW1/A (which is the application filed under Section 320 of the Code for permission to compound the offence) and in Affidavit which is Ex. PW1/B. The said act of writing the name of Anudeep Agarwal by the accused persons clearly falls under clause (a) of first paragraph of Section 464 IPC CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 13 of 23 i.e. "dishonestly or fraudulently making, signing, placing seal or executing a document or part of the document". This act of making of false document must be done either dishonestly or fraudulently. The term 'fraudulently' as defined under Section 25 of IPC states that "a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise'. The very act of the accused persons to write the name of Anudeep Agarwal, which was also later admitted by accused Ekta Bansal, clearly manifests that the said act was not done in ignorance but with an intention to commit a fraud upon the Court. Hence, it can be said that the act of making of false document was fraudulently committed by the accused persons.
24. Moving further, it is imperative to understand that mere making of false document is not sufficient to convict the accused persons, rather, it must be proved that the act of forgery was also committed by them. To attract the offence of forgery it is essential that the act of making of false document was done with an intent to either 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. Thus, the actus reus of the making of the false document when coupled with either of the mens rea as enshrined above shall result into an offence of forgery.
25. With respect to the aspect of mens rea, the following points are to be noted:
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a) Firstly, the accused persons were handed over the DDs of Anudeep Agarwal, which were later deposited by them into the bank account of Anudeep Agarwal, the said fact is also shown in the bank transaction details of Anudeep Agarwal. There is nothing on record to show that the DDs were either fraudulently misappropriated by the accused persons to their own advantage or were misused by them on behalf of Anudeep Agarwal. Although, the accused persons can be said to have made a false document, the said act cannot be said to have been done to cause any damage or injury to the public or any person. The term "injury" is defined under Section 44 IPC as "any harm whatever illegally caused to any person in body, mind, reputation or property". It is clear that the company that entered into compromise with accused persons and specifically, Anudeep Agarwal, while handing over the DDs to the accused persons did not suffer any kind of harm, even though, the DDs of Anudeep Agarwal were not handed to him rather to the accused persons.
b) Secondly, the company (accused in the parent FIRs in the Court of Ld. CMM) had no legal right over the said amount mentioned in the DDs and the amount was actually parted by it to be given to its rightful owner. The very fact that the accused persons had deposited the DDs in the account of Anudeep Agarwal shows that the amount was given to its rightful owner.
c) Thirdly, the said act of the accused persons also cannot be said to have been done to support any claim or title. No right or any title had accrued in favour of any person in whose favour it would not have been accrued had the such act of making of false documents would not have been done.
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d) Fourthly, the third mens rea i.e. parting with any property or to enter into express or implied contract, it also cannot be said to have been made as the company though had parted with the amount mentioned in their DDs, but it was no more entitled to continue to hold over such amount, rather it was handed over to the legally entitled investor. There cannot be said to have been any wrongful loss to the company neither any wrongful gain to the accused persons, as the DDs were deposited in the bank account of Anudeep Agarwal.
e) Lastly, the said act of the accused persons also cannot be said to have been committed with an intention to commit fraud on the company or upon applicant Ms. Poonam Agarwal. The matrimonial dispute between Anudeep Agarwal and Ms. Poonam Agarwal is an entirely separate dispute and the fact that the accused person received the DDs from the alleged company on behalf of Anudeep Agarwal which were issued in his favour can in no possible stretch of imagination be considered to be done only to defraud Ms. Poonam Agarwal.
26. On the basis of the above discussion, it is the considered opinion of this Court that whilst the accused persons in criminal conspiracy have created a false document, it has not been established that the said false document was prepared with an 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. As the offence of forgery cannot be said to be made out, the offences under Sections 467 and 471 are not proven beyond reasonable doubt. Hence, the accused persons are acquitted of the offences under Sections 467/471 read with Section 120B of IPC.
CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 16 of 23 Re: Offence of giving false evidence
27. The relevant Sections are reproduced below:
"Section 193 - Punishment for false evidence - Whoever intentionally gives false evidence in any judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Section 191 - Giving false evidence - Whoever, being legally bound by an oath or by an express provision of law to state the truth or being bound by law to make a declaration upon any subject, makes any statement, which is false, and which he either knows or believes to be false or does not believe it to be true, is said to give false evidence.
Section 199 - False statement made in declaration which is by law receivable as evidence. - Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
Section 200 - Using as true such declaration knowing it to be false. - Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence."
28. The present case falls within the purview of "fabrication of false evidence" by the accused persons in pursuance of criminal conspiracy. The prosecution must prove the following points for 'fabricating false evidence':
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a) The accused caused a certain circumstance to exist, or made a false entry or made the document to contain a false document;
b) The accused did so intending that such circumstance, entry or statement should appear in evidence in a judicial proceeding or in a proceeding taken by law before a public servant or in a proceeding before an arbitrator;
c) The person conducting the judicial or other proceeding had to form an opinion upon the evidence in which such false evidence appeared;
d) The accused intended that person to entertain an erroneous opinion upon the evidence; and
e) That erroneous opinion touched a point material to the result of such proceedings.
29. PW1 Mr. Shiv Kumar Yadav, JA/Ahlmad has proved the following documents:
a) Compounding application filed on behalf of Mr. Anudeep Agarwal in FIR No. 55/2010 and FIR No. 187/2010, PS EOW (South) which is Ex. PW1/A (OSR).
b) The affidavit in support of the application under Section 320 of the Code seeking permission for compounding the offence in FIR No. 55/2010 and FIR No. 187/2010, PS EOW which is Ex. PW1/B (OSR).
c) The compromise deed filed on behalf of Mr. Anudeep Agarwal which is Ex. PW1/C (OSR).
d) Another compounding application seeking permission for compounding the offence in FIR No. 55/2010 and FIR No. 187/2010, PS CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 18 of 23 EOW (South) dated 25.02.2013 filed on behalf of Mr. Anudeep Agarwal which is Ex. PW1/D (OSR).
e) The affidavit in support of compounding application seeking permission for compounding the offence in FIR No. 55/2010 and FIR No. 187/2010, PS EOW (South) dated 25.02.2013 filed on behalf of Mr. Anudeep Agarwal which is Ex. PW1/E (OSR).
f) Another compromise deed filed on behalf of Mr. Anudeep Agarwal which is Ex. PW1/F (OSR).
g) Another set of application under Section 320 of the Code, affidavit and compromise deed which are Ex. PW1/G to Ex. PW1/I (OSR).
h) Another set of application under Section 320 of the Code, affidavit and compromise deed which are Ex. PW1/J to Ex. PW1/L (OSR).
i) Another set of application under Section 320 of the Code, affidavit and compromise deed which are Ex. PW1/M to Ex. PW1/O (OSR).
j) Copy of statement of amount released to Mr. Anudeep Agarwal with receiving dated 02.03.2024 which is Ex. PW1/P.
30. PW4 SI Saurabh Kumar has deposed that as per his investigation in FIR No. 88/2010, Mr. Anudeep Agarwal left India on 01.03.2010 and did not come back till 03.08.2014. The report of FRRO in this regard is Ex. PW4/A. He has also deposed that as per the bank statement of Mr. Anudeep Agarwal, 11 demand drafts were deposited in the said account and the said DDs pertained to the amounts paid to investors in the aforesaid FIRs. It is an admitted fact that the DDs were collected by accused Yogesh Bansal on behalf of Mr. Anudeep Agarwal in the Court of Ld. CMM.
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31. In Re: Suo Motu Proceedings against R. Karuppan, Advocate [(2001) 5 SCC 289], the Hon'ble Supreme Court has held that affidavit is evidence within the meaning of Section 191 of IPC and where the respondent in his affidavit made a false statement which he believed to be false or did not believe to be true, he is liable under Section 193 of the Code.
32. At the outset, it is pertinent to note that Section 199 IPC is not applicable in the present case as the said Section will be applicable where false statement is made in declaration which is by law receivable as evidence. The person culpable under Section 199 IPC is the person who is the declarant/deponent. In the present matter, the deponent is not the accused persons. The deponent is Mr. Anudeep Agarwal who is not the accused and hence, Section 199 IPC is not applicable.
33. On the basis of the testimony of various witnesses and perusal of the various documents being relied upon by them, it is apparently clear that the accused persons, namely, Ekta Bansal and Yogesh Banal while submitting various documents relating to the compounding of offence in the court of Ld. CMM on behalf of Mr. Anudeep Agarwal were legally bound on oath to state the truth as the said documents were supported by affidavits. The documents submitted in the Court bear the name of Mr. Anudeep Agarwal at various places at Points A1 to A18 on Ex. PW1/A to Ex. PW1/O (Colly). Both the accused persons in their examination have stated that they have not forged the signature of Mr. Anudeep Agarwal and were authorized by an authorization letter (Mark D) to collect the Demand Drafts from the CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 20 of 23 company on his behalf. However, both the accused persons have clearly failed to explain as to how the name of Mr. Anudeep Agarwal appeared on Ex. PW1/A to PW1/O (Colly), when he was proved to be out of India on the said dates. In her, cross examination, accused Ekta Bansal also admitted the fact that she wrote the name of her brother Mr. Anudeep Agarwal in her own handwriting on the points of applicant, respondent and second party at Points A1 to A18 on Ex. PW1/A to Ex. PW1/O (Colly). This clearly proves that the said affidavit was filed by the accused persons in the Court knowing that the said declaration/statement was false as it did not bear the signatures of the person shown to be making it, namely, Mr. Anudeep Agarwal. Further she has also admitted the fact that the said documents were prepared on 25.02.2013 and that she had not met her brother between 2010 to 25.02.2013. Both the accused persons were quite aware of the fact that the said documents, when produced by them in the Court, will bear the impression that the same are true being produced by the person who is legally authorized to do the same.
34. In the present case, the accused persons in their defence have produced the authority letter (Mark D) allegedly made and signed by Mr. Anudeep Agarwal, however, the original of the said authority letter was also not produced by the accused persons and when questioned about the same, accused Ekta Bansal in her cross-examination admitted the fact that she does not have the original of the document (Mark D). She also admitted the fact that no date was mentioned on the document (Mark D). Further, bare perusal of the said document clearly shows that the accused persons had limited authority, which was to collect DDs on behalf of Mr. Anudeep Agarwal. Relying on the cardinal principle of Indian Evidence CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 21 of 23 Act, primary evidence is to be preferred over secondary evidence and secondary evidence i.e. the copy of the original shall be allowed only when the party is sufficiently able to prove any of the situations enshrined under Section 65 of the Indian Evidence Act, 1872. In the present case, neither the party was able to produce the original of the alleged authorization letter, nor was it able to sufficiently justify as to who had the possession of the original of the said document. Due to the said reasons, the alleged authorization letter (Mark D) cannot be read into evidence. Hence, no reliance can be placed on it.
35. It is the considered opinion of this Court that commission of offences under Sections 193/200/120B IPC is proven beyond reasonable doubt in the present case. The impugned documents related to compounding of the offences were made in the Court of Ld. CMM which was authorized to receive the documents as evidence of the fact that the parties i.e. Ekta Bansal, Yogesh Bansal and Anudeep Agarwal were interested in compounding the offence and that Mr. Anudeep Agarwal had authorized the accused persons to receive the compounded amount on his behalf. The accused persons were very well aware of the fact that the said declaration/statement made by them was not true as the documents were shown to have been signed by Mr. Anudeep Agarwal, however, the said signatures were in fact done by accused Ekta Bansal. The accused persons in the given case played a fraud upon the Court by submitting the alleged documents in the name of Mr. Anudeep Agarwal. The said documents were produced before the Court at the stage of compounding of the offence which is a very well a part of judicial proceedings. Hence, all the ingredients of Section 193 IPC are being made out. Further, as the affidavit CT CASE: 5817/2018 COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR PS: SAKET Page 22 of 23 as well as compounding applications were used as true by the accused persons knowing the same to be false, offence under Section 200 IPC is also made out. The very fact that both the accused persons were aware about the said act and that they had complete knowledge as to what could be the consequences for the same, it is sufficient to deduce that the offence was committed by them in connivance and criminal conspiracy of each other. It is crystal clear from the record that the accused persons in pursuance of criminal conspiracy fabricated the compounding applications as well as affidavit in support of the said applications by writing the name of Anudeep Agarwal and filed the said documents in judicial proceedings while being aware that the said documents had not been executed by him.
36. On the basis of the above discussion, both the accused persons are convicted for the offences punishable under Sections 193/200/120B IPC. However, they are acquitted of the charges under Sections 199/467/471/34 IPC.
Dictated and announced in open Court on 06.09.2024.
Digitally signed by T T PRIYADARSHINI
PRIYADARSHINI Date:
(T. Priyadarshini)
2024.09.11
15:05:30 +0530
Additional Chief Judicial Magistrate
South District, Saket Courts, New Delhi
06.09.2024
CT CASE: 5817/2018
COURT OF CMM (SOUTH) Vs. EKTA BANSAL AND ANR
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