Delhi District Court
State vs . Amit Kumar & Ors. on 23 October, 2019
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE03, NORTH DISTRICT ,
ROHINI COURTS, DELHI
State Vs. Amit Kumar & Ors.
FIR No. 788/2002
PS Model Town
U/s. 420/406/468 IPC
CIS No. 5289378/16
JUDGMENT
1) The date of commission : 17.09.2001
of offence
2) The name of the complainant: : Prabhat Kumar Singh
3) The name & parentage of accused : (1)Amit Kumar
S/o Shriniwas
: (2)Ramakant
S/o Sh. Shashikant
Aggarwal
: (3)Mahesh Kumar
S/o Sh. Bajrang Lal
: (4)Sriniwas Aggarwal
S/o Sh. Narain Parsad
Aggarwal
4) Offence complained of : u/s. 406/420/468/471 &
120B IPC
5) The plea of accused : Pleaded not guilty
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 1/32
6) Final order : Acquitted
7) The date of such order : 23.10.2019
Date of Institution : 14.01.2005
Judgment reserved on : 19.10.2019
Judgment announced on : 23.10.2019
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that complainant Prabhat Kumar Singh entered into a partnership and constituted a partnership firm in the name of M/s Kanishka Builders with the accused persons namely Ramakant and Mahesh Kumar; that the said partnership firm entered into a collaboration agreement with the owner of the property no. G1/5, Model TownIII, Delhi for the construction of flats upon the said property, with stipulation that after the construction of flats, 10 flats would be transferred in the name of above mentioned firm which would be at the disposal of the firm and accordingly, 10 flats were transferred in favour of partnership firm by the owner of said property after the completion of project.
2. It is further the case of prosecution that firm sold and transferred flats bearing no. 14 and 33 to accused Sriniwas and accused Amit respectively vide sale documents receipt dated 17.09.2001 against the consideration amount of Rs. 9 lakh each flat and accused Amit and Sriniwas issued six cheques for Rs. 3.00 lakhs each in the name of M/s Kanishka Builders; that those cheques were FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 2/32 entrusted by the complainant to accused Mahesh Kumar for depositing the same in the bank account of firm, however, he did not deposit the said cheques in the account of firm and all the four accused hatched a criminal conspiracy to cheat the complainant and in pursuance of their conspiracy, they substituted the name of accused Ramakant Aggarwal (in 4 such cheques) and name of accused Mahesh Kumar ( in 2 such cheques) in place of the name of firm M/s Kanishka Builders on all the cheques and also forged the two receipts dated 17.09.2001, by adding the lines thereupon that such cheques were drawn in favour of accused Ramakant and Mahesh Kumar respectively and thus, accused persons in conspiracy with each other cheated the complainant, forged the said documents and misappropriated the cheque amount by fraudulently getting the same encashed in their favour.
3. After completion of investigation, chargesheet against the accused was prepared and filed in the Court whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr. P.C, arguments on charge was heard and vide order dated 23.05.2011 passed by Ld. Predecessor of this Court, it was held that charge for offences u/s. 420/468/471/34 IPC and section 120B IPC were made out against accused Amit Kumar and Sri Niwas and charge for offences u/s. 406/420/468/471/34 IPC and section 120B IPC were made out against accused Ramakant and Mahesh Kumar. Charge for FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 3/32 the aforesaid offences was framed against the accused persons, to which they pleaded not guilty and claimed trial.
4. In prosecution evidence, the prosecution got examined 13 witnesses. PW1 Sh. Y. Surya Prasad deposed that the instant case was referred by the Deputy Commissioner of Police/NW/Delhi vide his letter dated 05.08.2003 in which certain documents were referred for examination; that the documents were marked as Q1, Q2, Q1/1 and Q2/1; that the documents were examined by him as well as by Mr. S.C. Lohia, the then Dy. G.E.Q.D. independently and arrived at a common opinion which reads as under "The examination of the enclosed parts stamped and marked Q1 and Q2 visa vis Q1/1 and Q2/1 respectively reveals that the typescripts in the portion marked Q1 and Q2 have been subsequently added"; that the opinion is dated 23.10.2003; that the documents alongwith opinion were sent back to the agency vide the office letter no. CH290/2003/5796 & 5797 dated 10/11/2003 by hand on 24.11.2003 by the special messenger and the document containing opinion is Ex. PW1/A.
5. In his crossexamination, PW1 admitted that he had not given opinion in respect of the commonness of the type scripts and he had not given the detailed reasons of the report in his report Ex.PW1/A. He further stated that no photoprints with regard to the opinion were supplied to the prosecution alongwith the report Ex.PW1/A; that he FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 4/32 cannot tell the exact time when the matter under dispute was added. He denied that the said report is prepared by the junior staff and he merely signed the same or that he had not personally examined the said documents or that he had given the report mechanically without application of mind or that he had given the present report at the instance of the IO.
6. PW2 HC Deen Mohd., the then Duty Officer at PS Model Town, deposed of registering present FIR on 31.12.2002, copy of which is Ex.PW2/A. In his cross examination, PW1 stated that the said FIR was registered through DD No 12A dt. 31.12.2002. He denied that the FIR was ante dated and ante timed.
7. PW3 SI Vinay Kumar deposed that on 07.01.2003, the further investigation of the present case was marked to him; that on 14.1.2003, all the four accused persons were granted interim bail and on 18.01.2003 they joined the investigation; that he collected the original receipt pertaining to cheque no.563379, 563380 & 563381 and the same were seized by him vide seizure mamo Ex.PW3/A; that the said receipt was given to him by accused Sriniwas; that on 02.02.2003 the case file was marked to the additional SHO PS Model Town for further investigation and the said original receipt is Ex.P1.
8. PW4 Parbhat Singh deposed that he was a social worker and FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 5/32 he was having a business in the name of Mahendra Developer Ltd. in the year 1997; that he entered into a partnership with accused Mahesh Aggarwal and Rama Kant Aggarwal; that the name of the said partner was Kanishka Builders; that he was having 25% in the said partnership; that the major shareholder was Mahesh Aggarwal who was having perhaps 40% shares in the said partnership; that in pursuant of the said partnership, they collaborated one agreement for the construction of the flat of G1/5, Model TownIII, Delhi09; that the collaboration was done with Harish Sachdeva and Ors; that as per the agreement total 20 flats were going to be built on the said plot and out of them 10 flats were falling in the share of Kanishka Builders. He further deposed that Kanishka Builders paid an amount of Rs.30 lakhs to Harish; that the construction was completed in the last month of 1999; that thereafter, they started selling ten flats of their shares; that initially they sold seven flats to different buyers; that accused Mahesh Aggarwal used to take care of accounts of Kanishka Builders; that he told him that remaining three flats may be transferred in the name of Rama Kant, Amit and Shashi Kant Aggarwal; that all the three buyers gave three cheques each of Rs. 3 lakh each for the payment of consideration amount of Rs. 9 lakh each flat.
9. PW4 Parbhat Singh further deposed that the cheques came into the possession of the Mahesh Aggarwal as he used to take care of FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 6/32 accounts and he used to deposit the cheque etc. in the bank; that he came to know that abovesaid nine cheques were never deposited by the accused in the account of Kanishka Builders; that thereafter, he made a complaint to the police which is Ex.PW4/A; that Harish Sachdeva and Mahesh Kapoor approached him and told that the third flat was in the share of Harish Sachdeva and Mahesh Aggarwal wrongly and fraudulently got registered the same in the name of Sashi Kant Aggarwal; that the possession of the said flat was taken by the accused persons; that Harish Sachdeva made a complaint to the police and also filed other cases before the Court; that they all three partners namely Mahesh Aggarwal, Rama Kant Aggarwal and himself Parbhat were arrested and obtained bail; that Mahesh Aggarwal, Rama Kant Aggarwal and so called buyer Shashi Kant compromised the matter with Harish Sachdeva for the said flat.
10. PW4 further deposed that during investigation, they came to know that the said cheque were deposited in the name of Rama Kant Aggarwal and Mahesh Aggrwal after making alteration on the same about the payee from Kanishka Builders to accused persons; that receipt of Rs.9 lakh each from Amit Aggarwal and Sri Niwas Aggarwal bears his signature at point A; that the line at point Q1 and Q2 on both the receipts were not there when he signed the same; that originals of purchase agreement between accused persons and Kaniska Builders are not in his possession and same will be in the FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 7/32 possession of the accused being buyers of the said flats; that the copy of the partnership deed executed between him and accused Mahesh and Ramakant dated 15.01.1998 is Ex.PW4/X1; that the copy of GPA of flat no. 33 is Ex.PW4/X2; that copy of agreement to sell dated 17.09.2001 is Ex.PW4/X3; that certified copy of the agreement to sell dated 17.09.2001, three Wills dated 17.09.2001 and GPA are Ex.PW4/X4 to PW4/X8 and certified copy of the indemnity bond is Ex.PW4/X9. He was cross examined at length by the Ld. Cousels for accused persons.
11. In his crossexamination by Ld. defence counsel, PW4 stated that the major shareholder in the company was Mahesh Aggarwal and he used to look after the affairs of the company; that when he enquired from accused Mahesh Aggarwal and accused Ramakant Aggarwal about the amount of cheques, they told him that they encashed the abovesaid cheques in their names by making cutting on the abovesaid cheques; that accused persons altered the name of Kanishka Builders and wrote their names on these cheques which were signed by accused Amit Kumar, Sri Niwas Aggarwal and Shashikant Aggarwal; that he got this information in November, 2001; that he had made the complaint Ex.PW4/A on the basis of information from the bank as well as from the accused persons. He further stated that he started one project with accused Amit Kumar Aggarwal in the year 1999 in Ashok Vihar; that they entered into an FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 8/32 collaboration with the owner of the plot whereby they had to construct four floors with their money and after the construction, they had to hand over two flats to the owner of the plot. He stated that he did not have any information whether accused Amit had filed a case of fraud against him.
12. PW4 stated in his cross examination that Kanishka Builders was having a partnership bank account in the Bank of India; that the partnership deed was executed by all partners; that he did not remember whether he had filed copy of partnership deed alongwith his complaint. He admitted that in partnership deed Ex.PW4/X1 in para no.8, it is mentioned that the bank account shall be opened in any nationalized or scheduled back which shall be operated upon under the joint signature of any of two partners out of three. He admitted that he had lodged the complaint with their firm bank i.e. Bank of India, Ashok Vihar, Delhi for stopping the operation of the said bank account in August. 2001 and upon his request, the operation of bank account was stopped by the abovesaid bank. He also admitted that the documents of the flat No.14 & 33 in question were executed after stopping the operation of the bank account. He further stated that the entire work of banking and construction was done by Mahesh Kumar that is why, the said cheques were received by Mahesh Kumar; that the said cheque was given to Mahesh in August and September 2001 by the purchaser in his presence; that he had signed the receipt FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 9/32 Ex.PW4/B & PW4/C after going through the same. He stated that encircled portions Q1 and Q2 were added later on after his signatures. He denied that the entire receipt was typed in his presence and nothing was added later on. He denied the details the cheques were typed in a same typewriter.
13. PW4 admitted that the flat No. G4 and F12 were also sold to one Mr. Aditya Mohan and Satish Wahi; that the said documents were executed by him in favour of abovesaid persons on the basis of GPA given by Mr. Mahesh Kumar; that he did not know if Mr. Mahesh Kumar had gone to abroad or was within India. He denied that no GPA was given by Mr. Mahesh Kumar ever to him or that he had forged the aforesaid GPA and grabbed the entire amount of the said flats. He admitted that flat no. G4 and F12 was sold by him prior to 17.09.2001. He denied that when it was revealed to accused Mahesh Kumar that he had forged the GPA of abvoe said two flats for selling flat no G4 and F12 to Aditya Mohan and Satish Wahi, then he agreed the above mentioned cheques mentioned in Ex. PW 4/B and PW 4/C may be encashed in favour of Mahesh Kumar and Ramakant. He admitted that flat bearing no. G5 was purchased by his wife Smt. Urvashi Singh from Kanishka Builders. He stated that he cannot say as to how payment was made, however, it was made some in cash and some by cheques. He denied that cheques mentioned in the same documents were never encashed and payment FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 10/32 was still due. He denied that due to the above said act, he agreed to get the above cheques mentioned in Ex. PW 4/B and Ex. PW 4/C in favour of Mahesh Kumar and Ramakant. He denied that he had lodged a false complaint to usurp the amount of M/s Kanishka Builders or that documents Ex PW 4/B and Ex PW 4/C were completely typed and signed by him after understanding the same or that he filed the false complaint with intention to extort money from the accused persons or that noting was added in Ex. PW 4/B and Ex. PW 4/C later on or that he was deposing falsely.
14. In his further cross examination, PW 4 admitted that Kanishka Builder executed sale deed of flat no. 5 in favour of his wife. He stated that he and accused Mahesh had signed the said sale deed as partner of Kanishka builders and the said flat was sold to his wife for consideration amount of Rs. 9 lakh, copy of sale deed are Ex. PW 4/D1 and Ex. PW 4/D2. He further stated that he cannot tell how the payment was made by his wife; that payment of Rs. 1,85,000/ was made vide cheque no. 676679 dated 18.12.2000 drawn at Indian Overseas Bank, Model Town; that he did not have knowledge whether the above said cheque was honoured/encashed or not; that he did not remember whether income tax was used to be paid by Kanishka builders or not; that he did not remember CA of Kanishka Builders; that he did not receive 25 percent of sale consideration of the flat sold to his wife; that he did not know whether the said FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 11/32 cheques were encashed by Kanishka Builders or not. He denied that he and his wife had played fraud on Kanishka Builders and become owners without paying any consideration. He admitted that he executed sale deed dated 20.10.2000 Ex. PW 4/D3 in favour of Smt. Kanchan Wahi and he alone had signed the sale deed as partner of Kanishka Builders as GPA holder on behalf of accused Mahesh Kumar, who was also one of the partners of Kanishka Builders. He further stated that he had not given the copy of GPA in sub registrar office but had given the original GPA to purchaser Smt. Kanchan Wahi and he cannot tell the reason for which GPA was executed by Mahesh in his favour. He denied that he forged the document dated 26.07.2000 and then enter into settlement with accused Mahesh and on the same day on which subsequent affidavit dated 21.09.2001 was signed and accordingly receipt dated 17.09.2001 and notarized on 21.09.2001 was signed and with his knowledge and consent of all the partners of Kanishka Builders, cheque dated 17.09.2001 was changed to Ramakant Aggarwal and Mahesh Kumar. He denied that names on the said cheques dated 17.09.2001 (6 in numbers), were changed with his approval and receipt dated 17.09.2001 was signed by him or that and there was no forgery whatsoever on it or that he was deposing falsely.
15. Perusal of record shows that at the same serial no. i.e. PW4, two witnesses Prabhat Singh and ASI Sarvdman were examined. In FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 12/32 order to avoid the confusion, PW Prabhat Singh be read at serial no. PW4 and PW ASI Sarvdman be read at serial no. PW4A.
16. PW4A ASI Sarvdman deposed that on 09.08.2003, IO Inspector P.S. Patwal handed over to him one sealed envelope for deposing the same to CFSL Hyderabad; that he deposited the same at CFSL Hyderabad on 11.08.03 and no tempering in the said pullanda took place while the same was in his possession. In his cross examination by defence counsel, he denied that he received the envelop without seal and was tempered.
17. PW5 HC Ballu Ram deposed that he joined the investigation in this case with IO Inspector A.S. Dhaka and IO arrested accused Ramakant, Shri Niwas, Mahesh Kumar and Amit Kumar in this case and prepared arrest memo Ex.PW5/A to Ex.PW5/D respectively.
18. PW6 Surender Saraswat deposed that he had signed agreement to sell already Ex.PW4/X3 as a witness at point A; that he did not know complainant Prabhat Kumar personally but one of the party to the agreement was said Prabhat Kumar; that the property regarding which agreement to sell was executed already Ex.PW4/X3 was situated in Model Town but he cannot tell the exact number of property and the name of other party; that he also signed the receipts already Ex.PW4/B and Ex.PW4/C at point B respectively as witness.
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 13/32
19. In his crossexamination by Ld. APP, PW6 admitted that other party was Mahesh Kumar Aggarwal, Ramakant Aggarwal and all the person signed abovesaid documents in his presence but payment was not made in his presence.
20. In his crossexamination by Ld. defence counsel, PW6 admitted that when he signed receipts Ex.PW4/B and Ex.PW4/C, it were typed completely including portion Q1 and Q2 but he did not go through its contents. He stated that he signed receipts in the presence of all the executants.
21. PW7 Shashi Kant deposed that on that day he had gone to the office of Kanhaiya Aggarwal where he signed the agreement as a witness which was entered into between Prabhat Kumar, Mahesh and Ramakant; that agreement already Ex.PW4/X3 bearing his signature at point B and the receipts Ex.PW4/B and Ex.PW4/C are bearing his signatures at point B.
22. In his crossexamination by ld. defence counsel, PW7 stated that when he visited to the office of Sh. Kanhaiya Aggarwal, at that time, Prabhat Singh, Mahesh, Ramakant and Sriniwas and one Amit Kumar and one Surender Saraswat were present; that before he signed the documents, Prabhat Kumar, Mahesh Kumar and Ramakant already signed the same; that the portion mark as Q1 and Q2 in FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 14/32 receipts Ex.PW4/B and C were already in the receipts before he signed. He further deposed that in his presence, Prabhat Kumar stated that account of Krishna Builder has already been freezed hence the cheques can be encashed in favour of Ramakant Aggarwal and Mahesh Kumar; that Prabhat Kumar has proposed cheques mentioned in the receipt be encashed in the account of Ramakant Aggarwal and Mahesh Kumar in lieu of settlement arrived between Prabhat Kumar Ramakant and Mahesh Kumar as Mr. Prabhat Kumar already got transferred in the name of his wife Smt. Urvashi and sold two flats without the consent of Mahesh Kumar and Ramakant. In his re examination by Ld. APP for State, he denied that Prabhat Kumar did not propose to get the cheques encashed in favour of Ramakant in lieu of settlement arrived between Prabhat Kumar and Mahesh Kumar.
23. PW8 ACP(Retd.) B.P Yadav deposed that on 12.03.2003, investigation of the present case was marked to him and on 20.03.2003, he seized one receipt from Amit Kumar vide seizure memo Ex.PW8/A and the said receipt is already Ex.PW4/B. In his crossexamination by ld. defence counsel, PW7 stated that during his investigation, it did not come to his knowledge that the account of Kanishka Builder were already freezed and he did not make any investigation regarding account of Kanishka Builder. He denied that he was intentionally concealing the facts that during investigation, he had come to know that the account of Kanishka Builder had already FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 15/32 been freezed upon the request of Prabhat Kumar and the cheques were deposited with the consent of Prabhat Kumar. He denied of deposing falsely.
24. PW9 ACP (Retd.) A.S.Dhaka deposed that on 20.10.2003, further investigation of case was marked to him; that he obtained the CFSL report Ex.PW9/A from the CFSL and placed the same on record; that during investigation, he formally arrested all the four accused person; that accused persons were released on bail; that he went to PNB Bank, Chandni Chowk Branch and met Mr. A.K. Kathuria, the Manager and recorded his statement; that he received one letter Ex.PW9/B written by A.K. Kathuria; that he concluded the investigation and submitted the chargesheet.
25. In his crossexamination by ld. defence counsel, PW9 stated that during investigation, he had not verified as to when the account of Kanishka Builder was closed; that he had not recorded any statement of the witness to the effect that the account of Kanishka Builder was inoperational. He denied that he was intentionally giving this reply to make out a false case against the accused persons. He further stated that he had examined Shashikant Aggarwal as he was witness to the receipt of the agreement. He denied that during investigation, he had come to know that the receipt Ex.PW4/B and Ex.PW4/C were signed by all the accused persons and the complainant when it was completely typed including the encircled Q1 FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 16/32 and Q2. He further denied that he had also come to know the complainant had already settled the matter with the accused persons and the cheques were issued in favour of Sh. Ramakant and Mahesh Kumar Aggarwal. He denied that the complainant lodged a false complaint to hide his misdeeds or that the accused persons were falsely implicated in this case. He further stated that he did not ask the CFSL lab to verify the age of the encircled portion on Ex.PW4/B and C. He denied that he filed a false chargesheet against the accused persons.
26. PW10 Avdhesh Kumar produced the original office record of GPA dated 19.09.2001 executed by Parbhat Kumar Singh, Mahesh Kumar as partner of Kanishka Builder in favour of Sri Niwas Aggarwal which is Ex.PW4/X8.
27. PW11 ASI Rajbir deposed that on 20.03.2003, he joined the investigation alongwith IO B.P. Yadav; that on that day, IO seized two documents from one Amit Aggarwal vide memo Ex.PW8/A; that he did not remember what was those documents and he also cannot identify Amit Aggarwal due to passage of such a long time. In his crossexamination by ld. defence counsel, PW11 denied that he did not join the investigation or that nothing was seized by IO in his presence that is why he was not able to identify the accused Amit.
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 17/32
28. PW12 Om Parkash, official from PNB bank, Chandni Chowk branch filed on record a letter under signature of Chief Manager of the said branch regarding the non availability of record, which is more than 8 years old, letter is Ex. PW12/A.
29. Statement of accused persons u/s 313 Cr.P.C. was recorded. Accused persons pleaded innocence and their false implication in the present case. Accused persons opted to lead defence evidence.
30. In defence evidence, DW1 Mr. Kanhiya Aggarwal deposed that documents of flat no. 33 and 14, Mahindru Enclave, again said Model Town, Delhi09 was prepared by him; that Mr. Prabhat Kumar, Mr. Ramakant, Mr. Mahesh Kumar and two other witnesses namely Shashikant and someone Saraswat perhaps Surender were present at the time of signing of documents i.e. already Ex. PW 4/X3, PW 4/X2, PW 4/B and PW 4/C. When he was asked by the Ld. Counsel for accused as to if he had typed receipts dated 17.09.2001 in respect of flats bearing no. 14 and 33, building no. G1/5, Model Town, New Delhi, agreement to sell dated 17.09.2001 and GPA dated 16.09.2001, he answered in affirmative. When he was asked by the Ld. Counsel for accused as to if the said documents were complete in all respects, when the said documents were signed by the concerned parties, he again answered in affirmative.
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 18/32
31. In his cross examination by Ld. APP for State, he stated that he prepared the documents Ex. PW 4/B at once except the portion from point A to A1, which was added subsequently at the request of Mr. Prabhat Kumar, Ramakant and Mr. Mahesh Aggarwal. He also stated that Ex. PW 4/C was prepared at once except the portion from point B to B1, which was added subsequently at the request of Prabhat Kumar, Ramakant and Mr. Mahesh Aggarwal. He further stated that he used not to maintain the record of document which were prepared by him; that he prepared the documents at the instance of Prabhat Kumar firstly; that whatever said by the Prahbat kumar, he typed the same; that he had not checked the identity card of the person at whose instance he prepared the documents; that he did not remember the date when he prepared the documents; that it was in the year September, 2001; that he did not remember the date when the portion A to A1 and B to B1 of document Ex. PW 4/B and Ex. PW 4/C were added. He further stated that seller and purchaser were present along with two witnesses when he added portion A to A1 and B to B1; that when he added the above mentioned portion in the document, seller and witness had signed; that he did not remember the date month and year when the above mentioned portion was added in the said document; again said that it was added after 23 days; that when he added the portion, it was unattested, not attested by the notary. He further stated that receipt was firstly signed by the seller and he cannot tell who signed later on. He denied that he had not prepared FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 19/32 the documents of properties in question including receipt. He also denied that he along with accused Ramakant, Mahesh Kumar, Amit, Ram Niwas made a fabricated receipts Ex.PW 4/B and Ex. PW 4/C by making an addition thereto. He also denied that he was deposing in favour of accused at their instance or that he was in conspiracy with them.
32. DW2 Kanchan Wahi deposed that she did not have document i.e. general power of attorney pertaining to property i.e. flat no 12, G 1/5, Model Town03 and complainant Prabhat Kumar did not hand over GPA of Mr. Mahesh Kumar to her. In her cross examination by Ld. APP for the State, she denied that complainant handed over GPA to her.
33. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
34. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 20/32 unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
35. Coming back to the facts of the present case, as per the case of prosecution, partnership firm M/s Kanishka Builders, which consist of partners i.e. Prabhat Kumar (complainant), Mahesh Kumar and Ramakant (both accused), sold and transferred flats bearing no. 14 and 33 to accused Sriniwas and accused Amit respectively vide sale documents and receipt dated 17.09.2001 against the consideration amount of Rs. 9 lakh each flat and accused Amit and Sriniwas issued six cheques for Rs. 3.00 lakhs each in the name of M/s Kanishka Builders and those cheques were entrusted by the complainant to accused Mahesh Kumar for depositing the same in the bank account of firm, however, he did not deposit the said cheques in the account of firm and all the four accused persons in pursuance of their criminal conspiracy, substituted the name of accused Ramakant Aggarwal (in 4 such cheques) and name of accused Mahesh Kumar (in 2 such cheques) after cutting the name of M/S Kanishka Builders on all the cheques and also forged the two receipts dated 17.09.2001, by adding the lines thereupon that such cheques were drawn in favour of accused Ramakant and Mahesh Kumar respectively.
36. During the course of investigation, both the abovementioned FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 21/32 documents i.e. receipts dated 17.09.2001 were sent to CFSL for expert opinion, which was obtained and the expert opinion is Ex. PW1/A. As per expert opinion, the typescripts in the portions marked Q1 and Q2 in the said documents have been subsequently added. However, PW1 Mr. Y. Surya Prasad, the expert who examined the said documents, admitted in his cross examination that he had not given opinion in respect of the commonness of the typescripts and he had not given the detailed reasons of the report in his report Ex.PW1/A. He also stated that he cannot tell the exact time when the matter under dispute was added.
37. The main thrust of the prosecution is that accused persons in conspiracy with each other subsequently made addition of the lines i.e. marked and encircled as Q1 in document Ex. PW 4/B and line marked and encircled as Q2 in document Ex. PW 4/C, which are regarding that cheques in question are drawn in favour of Mahesh Kumar and Ramakant Aggarwal (accused persons) respectively, without the knowledge and consent of complainant, while those lines were not there, when complainant signed those documents and accused persons by making additions of those lines in the said documents and also by substituting the name of Ramakant Aggarwal in four cheques dated 17.09.2001 and name of Mahesh Kumar in two cheques dated 17.09.2001, forged the said documents, cheated the complainant and dishonestly misappropriated the sale consideration FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 22/32 amount.
38. However, the accused Mahesh and Ramakant ( both partners in firm M/s Kanishka Builder alongwith complainant) stated in their statement u/s 313 Cr.P.C. that account of the firm M/s Kanishka Builder in Bank of India, Ashok Vihar branch was already freezed on the complaint of complainant in the month of August 2001 and the operation of the bank account was already stopped by the above said bank. They also stated that the documents related to flat no. 14 and 33 in question were executed after stopping the operation of bank account and the receipts Ex. PW 4/B and Ex. PW 4/C and agreement to sell were prepared and signed by the complainant and the encircled portion mark Q1 and Q2 were already typed when the complainant signed the receipts. They also stated that the complainant forged GPA by selling the flat no. G4 and F12 and grabbed the entire amount, which were sold by him prior to 17.09.2001 and then complainant, agreed the cheques in question to get encashed in their favour. Drawers of these impugned cheques in question namely accused Sriniwas and Amit (three cheques each) stated that receipts were prepared and signed in the presence of complainant and cheques were also prepared at the instance of partners M/s Kanishka Builders including the complainant who specifically asked them to prepare the cheques in question in the name of Mr. Ramakant Aggarwal and Mahesh Kumar, which is duly recorded in the receipts as the bank FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 23/32 account of the firm was freezed earlier and the partners had mutual understanding in respect of the payment.
39. Out of the thirteen witnesses examined by the prosecution in this case, PW4 is complainant Prabhat Kumar, while PW6 Surender Saraswat and PW7 Shashi Kant are the witnesses to both the impugned documents i.e receipts Ex. PW 4/B and Ex. PW 4/C, who are the most material witnesses in this case. Whereas, the complainant/PW4 deposed that the line at point Q1 and Q2 on both the receipts Ex. PW 4/B and Ex. PW 4/C respectively were not there, when he signed the same. However, both the abovementioned independent witnesses i.e. PW6 and PW7 have not supported the version of complainant. They deposed that the portion Q1 and Q2 in the receipts Ex. PW4/B and Ex. PW 4/C were already there when they signed the same. The testimony of these two witnesses, who indisputably were the witnesses to both the impugned documents, caused serious damage to the prosecution case, which strikes at the root of the matter and make the entire prosecution case doubtful.
40. PW6 deposed of signing the receipts Ex. PW4/B and Ex. PW 4/C as a witness. In his cross examination by Ld. APP for the State, PW6 admitted that all the persons signed the above said documents in his presence. In his cross examination by Ld. defence counsel, he categorically stated that when he signed receipts Ex. PW 4/B and Ex.
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 24/32 PW 4/C, it was typed completely including portion Q1 and Q2 but he did not go through its contents and he signed receipts in the presence of all the executants. Similarly, PW7 Shashi Kant, another witness to the said documents stated that when he visited the office of Mr. Kanhiya Aggarwal, Mr. Prabhat Singh, Mahesh, Ramakant and Shrinivas and one Mr. Amit Kumar and one Mr. Surender Saraswat were present; that before he signed the documents, Prabhat Kumar, Mahesh Kumar and Ramakant had already signed the same and the portion mark as Q1 and Q2 in receipts Ex. PW 4/B and Ex. PW 4/C were already in the receipts before he signed the same. Hence, both the said witnesses failed to support prosecution case qua the alleged subsequent addition of lines marked Q1 and Q2 respectively in the impugned documents, which is bone of contention in the present case.
41. PW7 Shashi Kant causing further dent to the prosecution case, even deposed that in his presence, Prabhat Kumar (complainant) stated that account of Krishna Builder had already been freezed, hence cheques can be encashed in favour of Ramakant Aggarwal and Mahesh Kumar. He further deposed that Mr. Prabhat Kumar had proposed the cheques mentioned in the receipts be encashed in the account of Ramakant Aggarwal and Mahesh Kumar in lieu of settlement arrived between Prabhat Kumar, Ramakant and Mahesh Kumar as Mr. Prabhat Kumar already got transferred two flats in the name of his wife without the consent of Mr. Mahesh Kumar and Mr. FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 25/32 Ramakant. Hence, PW7 Shashi Kant, a very material witness in this case, being the witness to the impugned documents, not only failed to support prosecution case qua the alleged addition of lines in impugned receipts but also further damaged the prosecution case by stating the reasons for drawing of impugned cheques in favour of accused Mahesh Kumar and Ramakant respectively and thereby, made the defence of the accused persons that the impugned cheques were encashed in favour of accused only after a mutual settlement arrived with the complainant, more probable.
42. Moreover, DW1 Mr. Kanhiya Aggarwal, who prepared the said documents including impugned documents i.e receipts Ex. PW 4/B and PW 4/C, admitted that the said documents were complete in all respects, when the said documents were signed by the concerned parties. In his cross examination by Ld. APP for State, he stated that he prepared the documents Ex. PW 4/B and Ex. PW4/C at once except the portion from point A to A1 and B to B1 in the said documents, which was subsequently added by him at the request of Mr. Prabhat Kumar (Complainant), Ramakant and Mr. Mahesh Aggarwal (accused persons). He also stated that seller and purchaser were present along with two witnesses when he added portion A to A1 and B to B1 and when he added the abovementioned portion in the document, seller and witness had signed. He was cross examined at length by Ld. APP for State, however, nothing material elicited FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 26/32 from his cross examination which would impeach his credibility or affect his trustworthiness. Testimony of this witness is further strengthened by the testimony of PW6 and PW7, as discussed hereinbefore, who both were the witnesses to the disputed documents and all of them made the defence version more probable, while causing dent to the prosecution case. Hence, testimonies of witnesses i.e. PW6 and PW7 and that of DW1 Kanhiya Aggarwal, who prepared the said documents, clearly points that the disputed portions on the said receipts i.e. mark Q1 and Q2 were already mentioned in the said receipts, when it were signed by the complainant and it was very much in his knowledge at that time. If so, such facts and circumstances clearly rule out the commission of alleged offences by the accused persons and they deserve acquittal in this case.
43. Moreover, there is also discrepancies in the version of complainant regarding acquiring the possession of impugned cheques by accused Harish Kumar. Whereas, complainant stated in his complaint Ex. PW 4/A that all the 6 cheques amounting Rs. 18 lakhs were received by the firm from Shrinivas Aggarwal and Amit Aggarwal and all the aforesaid 6 cheques were entrusted by him to Mr. Mahesh Kumar, another partner of firm on 17.09.2001 itself for depositing the same in the bank account of the firm. However, contradictorily, he stated in his cross examination that the said cheques were given to Mahesh Kumar in the month of August and FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 27/32 September, 2001 by the purchaser in his presence. So, at one place, he stated in his complaint Ex. PW4/A that he entrusted those cheques to the accused Mahesh Kumar to deposit the same in the bank account of firm, whereas, taking a altogether different stand, he stated in his cross examination that those cheques were given to Mahesh Kumar by the purchaser in his presence. It is well settled that a witness making inconsistent statements as to the material facts and circumstances, is unworthy of credence.
44. Complainant also stated in his cross examination that he executed a sale deed dated 20.10.2000 Ex. PW4/D3 in favour of Smt. Kanchan Wahi and he alone signed the sale deed as partner of Kanishka builder as GPA holder on behalf of accused Mahesh Kumar, who was one of the partners of the Kanishka Builders. He stated that he had not given the copy of GPA in Sub Registrar office but he had given the original GPA to purchaser Kanchan Wahi. However, when the said purchaser Ms. Kanchan Wahi was examined by accused in defence evidence as DW2, she deposed that the complainant Prabhat Kumar did not hand over GPA of Mr. Mahesh Kumar to her. Thereby, she clearly disputed the version of complainant regarding handing over GPA by complainant to her.
45. At this stage, it is pertinent to mention here that accused Mahesh Kumar had disputed the genuineness of the aforesaid GPA FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 28/32 and alleged that it was forged by the complainant to grab the entire amount of the sale of flats no. G4 and F12. In his cross examination, complainant denied the suggestion that no such GPA was given by Mahesh Kumar or that he forged GPA of Mahesh Kumar and grabbed the entire amount of the said flats. He also denied that when it was revealed to accused Mahesh Kumar that he had forged the GPA, he agreed that the aforesaid cheques mentioned in Ex. PW4/B and Ex. PW4/C be encashed in favour of Mahesh Kumar and Ramakant. However, surprisingly, complainant stated that he cannot tell the reason for which GPA was executed by Mahesh Kumar in his favour. He stated that he did not know if Mahesh Kumar was in India or had gone to abroad at that time. As a partner of the firm and attorney holder of another partner, which he was claiming, complainant should have disclosed the reason for which the said GPA was executed by the another partner Mahesh Kumar in his favour to sell the said flats, especially when it was disputed by its executant/accused Mahesh Kumar. However, the failure of complainant to disclose about such facts, also makes version of defence that the complainant had agreed for crediting the amount of disputed cheques in favour of accused Mahesh and Ramakant, in settlement of ongoing disputes with them, more probable.
46. Moreover, evasiveness on the part of complainant/PW4 also demonstrated when he stated in his cross examination that he cannot FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 29/32 say as to how the payment was made by his wife for the purchase of one of the flat no. G5 or that he had no knowledge whether the cheques given by his wife for payment of consideration were encashed or not or that he did not remember the CA of the firm or whether income tax was paid by the firm or not or that he did no know whether accused Amit had filed a case of fraud against him or the reason for which GPA was executed in his favour by accused Mahesh Kumar. Complainant, who was a partner of the firm, is expected to know and disclose such facts and evasiveness on his part to disclose such facts also gives rise to an inference that there existed some disputes in the partnership and complainant does not want to disclose the complete facts, who avoided disclosing those facts which are not favourable to him.
47. Admittedly, accused Mahesh Kumar was the major shareholder in the partnership firm. In his cross examination, complainant stated that he lodged complaint with their firm bank i.e. bank of India, Ashok Vihar, Delhi for stopping the operation of said bank account in August 2001 and upon his request, operation of bank account was stopped by the abovesaid bank. Admittedly, the documents of flat no. 14 and 33 in question were executed on 17.09.2001 after stopping the operation of bank account. In such circumstances, it remained unexplained on the part of complainant that when admittedly, bank account of the firm was inoperative at the time of sale and execution FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 30/32 of sale documents of the said flats, then how the cheques in favour of firm can be obtained and encashed and this also sufficiently give rise to an occasion to obtain the cheques in favour of other partners of the firm and makes the defence version that impugned lines were added in the said receipts and cheques were encashed in favour of accused only upon a mutual settlement arrived with the complainant, more probable. Herein, the onus rested heavily upon the prosecution to bring on record the circumstances under which the complainant had accepted the disputed cheques in the name of firm on 17.09.2001, when he himself had stopped the operation of firm's bank account in the month of August. However, prosecution has also failed to establish the same.
48. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
49. In the backdrop of aforesaid discussion, facts and circumstances and material available on record, it is clear that FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 31/32 prosecution has failed to establish the charges against the accused persons beyond reasonable doubts and accordingly, accused persons namely Ramakant, Mahesh Kumar, Amit and Sriniwas Aggarwal are Digitally signed acquitted in this case. by SACHIN SACHIN GUPTA Date:
GUPTA 2019.10.23
16:06:37
+0530
Announced in open court (SACHIN GUPTA)
on 23rd Day of October, 2019 MM3/North District
Rohini Courts/Delhi,
23.10.2019
FIR No.788/02, PS. Model Town, State Vs. Amit Kumar @ Ors. CIS No. 5289378/16 32/32