Delhi District Court
Cbi vs . Lalit Kumar & Smt. Krishna on 24 November, 2014
IN THE COURT OF SH. V. K. GAUTAM
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02
(CENTRAL) DELHI
CBI Vs. Lalit Kumar & Smt. Krishna
RC : 9/S/89
U/s : 420/467/468/471/120 B IPC
Unique Case ID No. : 02401R0005601995
Date of institution: 13/08/1991
Judgment Reserved on: 10/11/2014
Date of Judgment: 24/11/2014
JUDGMENT
1. Serial No. of the case : 1512
2. Name of the Complainant : Sh. K. N. Bhalla
3. Name of accused person :1. Lalit Kumar S/o Sh. Suraj Prakash,
R/o 30-Y, Block-F, Jahangirpuri, Delhi.
2.Krishna Rani W/o Sh. Suraj Prakash,
R/o 30-Y, Block-F, Jahangirpuri, Delhi.
4. Offence complained of
or proved :U/s 420/467/468/471/120 B IPC Act
5. Plea of accused : Pleaded not guilty
6. Final Order : Convicted
7. Date of such Order : 24/11/2014
BRIEF REASONS FOR SUCH DECISION:
1. In brief, the case of the prosecution is that both the accused persons during the year 1986 to 1989 entered into a criminal conspiracy and cheated the complainant Sh. K.N. Bhalla by inducing him to deliver the original documents i.e. demand-cum-allotment letter, RC : 9/S/89 Page 1 of 29 registration letter etc. in the garb of getting him the possession of the allotted flat from DDA expeditiously and thereafter obtained the possession of the LIG flat no. BG-5/A/35-D, Paschimpuri, New Delhi from DDA authorities on the basis of the forged sale documents which were prepared by the accused persons in the name of the accused no.2 purporting to be executed by the complainant in favour of the accused no.2 for sell of the aforesaid flat and later on the accused persons sold the aforesaid flat to Shri Deepak Malhotra without having any rights in the said flat and thus the accused persons committed the offences punishable under sections 420/467/468/471/120 B IPC.
2. After completion of the investigation, the chargesheet was filed against the accused persons in the present case. Copies were supplied to both the accused in compliance of section 207 Cr.P.C. On 12/01/1993, the charge was framed against both the accused by my learned predecessor under Sections 420/467/468/471/120B IPC, to which they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined PW-1 Sh.
Kamal Nain Bhalla, PW-2 Sh. Narinder Kumar, PW-3 Sh. Deepak RC : 9/S/89 Page 2 of 29 Malhotra, PW-4 Sh. M.K. Nagpal, PW-5 Sh. S. C. Duggal, PW-6 Sh. Tara Chand, PW-7 Sh. Sh. S.C. Gaur, PW-8 Sh. P.L. Bhatia, PW-6 Sh. Tara Chand was again examined as PW-9, PW-10 Sh. O.P. Ajamani, PW-11 Sh. R. D. Goel, PW-12 Sh. Mohan Singh, PW-13 Sh. Megh Raj Singh, PW-14 Sh. C. S. Saini, PW-15 Sh. Jeet Ram Rajan, PW-16 Sh. Satish Chandar Seth, PW-12 Sh. Mohan Singh was again examined as PW-17, PW-18 Sh. V. K. Khanna (CFSL expert), PW-19 Smt. Promila Bhatia, PW-20 Sh. S.P. Dubey, PW-13 Sh. Jeet Ram Rajan was again examined as PW-21, PW-22 Sh. Hari Singh Gurawaria DSP, CBI SCR 3 and PW-23 Inspector H.S. Rawat. Thereafter, the prosecution evidence was closed.
4. On 15.12.2006 statement of both the accused persons were recorded under section 313 Cr.P.C. wherein they denied all the allegations and stated that they are innocent. However, no defence evidence was led by the accused persons.
5. I have heard the final arguments advanced by Sh. Tejvinder Singh, learned Public Prosecutor for CBI as well as by Sh. G. S. Ahuja, learned counsel for the accused persons and have gone through the RC : 9/S/89 Page 3 of 29 records of the case and the written arguments filed by the parties.
6. PW-1 is the complainant in the present case who has deposed that he was alloted a flat no. BG-5-A-35/D, Paschim Puri, Delhi (herein after referred as 'flat') from the DDA. He has proved the receipt of payment of Rs.15241.54 P by him to the DDA. He has further deposed that both the accused are his relatives and the accused no.1 was engaged in the business of property dealing. He has further deposed that accused persons assured him to expedite the taking of the possession of his flat from the DDA and he gave them the relevant documents i.e. the demand letter, Ex.PW1/4 and the receipt of payment Ex.PW1/5 for the said purpose. PW-1 has further deposed that he had never executed any documents in favour of the accused persons with respect to the sell of the flat. He has further deposed that he never signed or received Rs.38,000/- as mentioned in the receipt dated 1/4/1989, Ex.PW-18/1. PW-1 has further deposed that he had neither given any request letter to the post office regarding change of his residential address nor he had applied for electricity or water connection. He has further deposed that he had never applied nor received any water testing report from the MCD or from any other RC : 9/S/89 Page 4 of 29 authority. He has further deposed that he did not get the possession of the flat. He has further deposed that the possession letter or any other documents regarding taking possession of the flat does not bear his signatures. He has further deposed that he had made a complaint to the DDA vide application dated 11.11.87, Ex.PW1/51. He has further deposed that he received the reply from the DDA. He has further deposed that he got his photographs and signatures attested by a Magistrate. He has further deposed that he has been cheated by the accused persons who had prepared forged documents with regard to sale of his flat and dishonestly and fraudulently and by corrupt means had taken the possession of the flat from DDA. PW-1 has proved his application, Ex. PW1/1 given by him alongwith his Income-tax certificate, Ex.PW-1/2 to the DDA for registration of allotment of a flat. He has denied his signatures on the receipt Ex.PW18/1. He has further denied the Will dated 11/04/1989, Ex.PW18/2. He has denied the execution of the agreement to sale Ex.PW1/9 and the SPA Ex.PW1/10. He has denied his signatures on the rent agreement Ex.PW1/11, agreement to appoint arbitrator Ex.PW1/12 and three affidavits Ex.PW1/13 to Ex.PW1/15. He has further denied his signatures on the documents Ex.PW1/16 to Ex.PW1/36. He has proved his complaint, RC : 9/S/89 Page 5 of 29 Ex.PW1/37 which was given by him to the Hon'ble Lieutenant Governor when he did not get the possession of the flat. He has proved the photocopy of his ration card, Ex.PW1/14. He has further proved the photographs and signatures attested by Magistrate on a sheet containing his specimen signatures Ex.PW1/38. He has further proved his complaint Ex.PW1/43 dated 14/11/1987 and the complaint Ex.PW1/45 given by him to the DDA. He has further proved his letter dated 15/05/1988 Ex.PW1/46 sent by him to the DDA. He has denied his signatures on the documents which were with regard to handing over the possession of the flat which are Ex.PW1/48 to Ex.PW1/50. He was cross-examined by the accused persons but nothing material came out from it in favour of the accused persons.
7. PW-2 Sh. Narender Kumar during the year 1986-87 was working as Assistant Engineer in Circle-VI, Rohini, Delhi in DDA and was incharge of allotment of flats to the allottee. He has proved the allotment of the flat and issuance of the possession letter in the name of the complainant and marking of the same by him to Sh. S.P. Dube, Junior Engineer for giving possession of the flat to the named allottee. RC : 9/S/89 Page 6 of 29
8. PW-3 Sh. Deepak Malhotra, is the person to whom the accused persons have sold the flat which was originally allotted to the complainant. PW-3 has deposed that he purchased the flat from the accused no.2 through accused no.1 for a sum of Rs.1,65,000/- and on the execution of the documents i.e. Will, Power of Attorney, Receipt etc. executed by the accused. He has further deposed that the accused no. 2 at the time of purchase of the flat also handed over the original documents purportedly executed by the complainant in her favour pertaining to the sell of the flat. PW-3 has further deposed that through seizure memo dated 05.03.91 prepared by the CBI Inspector he handed over to him the photocopies of the documents of the purchase of the flat by him form the accused no.2. PW-3 has further deposed that the seizure list dated 10.11.1989 was prepared by the CBI in his presence at the house of the accused persons at D-38, Paschim Vihar, Delhi. He has further proved that the accused had also handed over to him the documents purportedly executed by the complainant in favour of the accused no.2 and which also included the original demand letter of the flat issued by the DDA. PW-3 has further proved the seizure memo, Ex.PW-3/1 vide which he had handed over all the documents to the investigating officer. PW-3 has further deposed that at the time of RC : 9/S/89 Page 7 of 29 the purchase of the flat, the accused persons represented to him that the accused no.2 had purchased the flat from the complainant and he only came to know later on through CBI officers about playing fraud by the accused persons with the DDA by forging the signatures of the complainant. PW-3 has further proved his complaint, Ex.PW-3/12 given by him to the D.C.P. of the Police Station Rajouri Garden on 21.03.1990 in this regard. PW-3 has further deposed that after the raid by the CBI at the residence of the accused persons, the accused no.2 executed a receipt Ex.PW3/13 in his favour and in consequent to which she had handed over a cheque of Rs.40,000/- as a part payment for returning the money with regard to the sale of the flat which was dishonoured on presentation with the bank due to stop payment instruction by the accused to her bank. PW-3 has further deposed that both the accused persons had told him that they will make the repayment of the consideration amount of the flat, if he did not give evidence against them in the CBI case. PW-3 was not cross examined by the accused persons.
9. PW-4 Sh. M.K. Nagpal was posted as Branch Manager in SBI Lodhi Road branch who has deposed that he was called in the CBI RC : 9/S/89 Page 8 of 29 office on 12.12.1998, 08.01.90 and 14.02.90. He has proved the taking by the CBI officials of the specimen writings and the signatures of the accused in 60 sheets Ex. PW-4/1 to PW-4/60 who has witnessed the same.
10. PW-5 Sh. S.C. Duggal who was working as Junior Telecom Officer in Vigilance Branch of MTNL has deposed about the procedure regarding obtaining telephone connection and about the file pertaining to telephone no.505078, new no.5585708 of the accused no.1. He has further deposed that the aforesaid telephone number was initially booked for the premises no.829A, Paschim Puri, Pocket-N-II, before shifting of the same to the flat in question.
11. PW-6 Sh.Tara Chand was working as UDC in the year 1989 in the Department of Food and Supply. He has proved the issuance of the ration card from his department in the name of Shri Rakesh Kumar as head of the family as mentioned in their register maintained in due course of business and later on the address was shifted to 829A, Paschim Puri, Pocket-2. PW-6 has further deposed that the ration card bearing no.192235, Ex.PW7/1 shows that the first page of the ration RC : 9/S/89 Page 9 of 29 card is pasted with the front thick cover and on the back side of the said page name of new head of the family is shown as Smt. Krishna Rani which is not according to their record and at the time of issuance of ration card this page was left blank and as per rules is filled only in case of change of head of family and he do not identify the handwriting on the back page of the ration card showing head of the family as Smt. Krishna Rani. He has further deposed that there is no entry in the master register regarding change of head of family.
12. PW-7 Sh. S.C. Gaur in September 1987 to February 1988 was posted as Inspector in Food and Supply, Delhi administration in circle no.16 Sakurpur, Delhi and was dealing with the preparation as well as renewal of ration cards. He has proved the renewed ration card, Ex. PW-7/1 issued in the name of Sh. Rakesh Kumar as head of the family.
13. PW-8 Sh. P.L. Bhatia was posted as L.D.C. in Sub-Registrar, Kashmiri Gate and was looking after the records who has produced the Will dated 11.04.1989, Ex.PW-8/1 executed in favour of the accused no.2 and has identified the signature of the Sub-Registrar on the same RC : 9/S/89 Page 10 of 29 and has proved the registration of Will in the Sub-Registrar office.
14. PW-10 Sh. O. P. Ajamani was working as Commercial Officer, Rajouri Garden Telephone Exchange and was doing the commercial matter of shifting of telephone of Rajouri Gardern Exchange Area. He has proved that the accused no.1 has applied for the telephone connection at his address at 829A, Paschim Puri, Pocket No.2, Double Storey, New Delhi and the same was installed at the above address through file, Ex.PW10/1. He has further proved that the said telephone connection was shifted to the flat no. BG5A, Paschim Vihar, LIG Flat, New Delhi address on the application moved by the accused no. 1 in this regard.
15. PW-11 Sh. R. D. Goel Retd. Asstt. Director has deposed about the information which is to be furnished by the allottee and the procedure of issuance of the possession letter to the concerned allottee by registered post. He has proved the file, Ex.PW1/1 and the demand letter, Ex.PW1/4 with regard to the allotment of the flat in the name of the complainant. He has further proved the letter dated 26.10.87, Ex.PW-11/2 addressed to the complainant by the Deputy Director Sh. RC : 9/S/89 Page 11 of 29 R. D. Sharma and the letters dated 16.11.1987, Ex.PW-11/3 and 11.12.1987, Ex.PW-11/4 addressed to the complainant by the Director Housing Vigilance.
16. PW-13 Sh. Meghraj Singh was posted as Superintendent Taxes in A & C Department West Zone, Rajouri Garden, since 1987 has deposed about seeing the file of MCD Delhi regarding the flat and the assessment file Ex. PW-13/3 and the decision form, Ex.PW-13/4 and has proved the seizure memo dated 22.05.1990, Ex. PW-13/2.
17. PW-14 Sh. C. S. Saini in October 1989 was working as Assistant, LIG Housing Scheme, DDA and was dealing with the cases of registration and the work of allotment. He has deposed about the procedure regarding the allotment and issuance of the possession letter to the allottees. He has further deposed that after completing the formalities the possession letter are issued to the applicants by post and one copy of the same is also issued to the Executive Engineer of the concerned area who forward the copy of the same to the Assistant Engineer and the Junior Engineer who hands over the possession of the flats to the allottees.
RC : 9/S/89 Page 12 of 29
18. PW-15 Sh. Jeet Ram Rajan at the relevant period of time was posted as Deputy Director Housing New Pattern Vikas Sadan, New Delhi. He has proved the show cause notice dated 17.11.1988, Ex.PW-15/1 issued to the complainant at his house No.116, Sector-7, D-12, Rohini, Delhi regarding unauthorized sale of the flat which was returned back undelivered. He has further proved the letter dated 16.05.1989, Ex.PW-15/2 regarding eviction proceedings in respect of the flat.
19. PW-16, Sh. Satish Chander Seth who is brother-in-law of the complainant and was working as L.I.C. Agent in 1986 has deposed that the complainant has told him that all the documents regarding the flat was handed over by him to the accused no.1. He has witnessed the search conducted by the CBI and has proved the search list dated 16.11.1989, Ex.PW-3/1. He has correctly identified the accused no.1. He was not cross-examined by the accused persons.
20. PW-17 Sh. Mohan Singh who was working as Assistant Director Vigilance, DDA during the period from November 1996 to July RC : 9/S/89 Page 13 of 29 1998 has deposed that he had conducted the inquiry on the complaint given by the complainant against the accused no.1 and during the said inquiry he recorded the statement of the complainant, Ex.PW-17/3. He has further proved the issuance of the notice to the accused no.1 and recording of his statement, Ex.PW-17/4. He has further proved the inquiry report, Ex.PW-17/5 and the inquiry file, Ex.PW-17/PA (colly.). He has correctly identified the signature of Sh. N. P. Soni, the then A.D.Vigilance, DDA on the seizure memo dated 18.04.90, Ex.PW17/1.
21. PW-18 is the Principal Scientific Officer, CFSL, New Delhi who has deposed that he had examined certain documents with scientific aid which were submitted for examination by the CBI in the present case and has arrived at his opinion as given by him in his reports Ex.PW18/D and Ex.PW18/A. He has deposed that as per the result of his examination the questioned signatures marked W5 to W12 Ex. PW18/1 and Q.6 and Q.7 on the back of Ex.PW18/1 and Q.8 on Ex.PW18/2 and Q.9 and Q.10 on both of Ex.PW18/2 could not be connected with the specimen signatures marked S46 to S53 due the reasons given in detail in his report Ex.PW18/A. He has further deposed that the questioned English signatures marked Q12 to Q36, RC : 9/S/89 Page 14 of 29 Ex.PW18/3 to PW18/24 could not be connected with the standard English signatures marked S46 to S53, Ex. PW18/A1 to A8 and Ex.PW18/C for the reasons given in the report. He has further deposed that it was not possible to express any opinion regarding the authorship of the rest of the questioned items on the basis of the material at hand. He has further deposed that the questioned English signatures marked Q5 to Q10 on Ex.PW18/1 and Q6 and Q7 on the back of the Ex.PW18/1 and Q8 to Q10 on the front and back of the Ex.PW18/2 could not be connected with the specimen English signatures marked S46 to S53 on Ex.PW18/A1 to AB due the reasons given in detail in his report Ex. PW18/D. He has further deposed that the writer of the specimen English writing mark S10 to S45 Ex.PW4/1 to PW4/36 and S54 to S77 Ex.PW4/37 to PW4/60 is of the person responsible for writing the questioned English signatures marked Q1 to Q4. Q1 and Q2 both on front and back of Ex.PW18/1 and Q3 and Q4 on the front and back of Ex.PW18/2 due to the reasons given in details in his report Ex.PW18/D. He has further deposed that the questioned English signatures marked Q5 to Q10 on Ex.PW18/1 and PW18/2 when compared with the specimen English writing mark S10 to S45 on Ex.PW4/1 to PW4/36 and S54 to S77 on Ex.PW4/37 to PW4/60 RC : 9/S/89 Page 15 of 29 revealed that the author of specimen writings could be the writer of the questioned English signatures due to the reasons given in detail in his report. He was cross-examined by the accused persons but nothing material came out from it.
22. PW-19, Smt. Promila Bhatia, who during 1987-1981 was working as L.D.C. in the Library, DDA, Vikas Sadan, INA, has proved the fact of inquiry been done by the CBI officers from her. However, she was partly examined and her remaining examination-in-chief was deferred.
23. PW-20 Sh. S. P. Dubey, who during 1983-89 was posted as Junior Engineer in B.G.-FA 208, LIG Paschim Vihar has deposed that the possession was given on the basis of the allotment letter and after verification of signature of allotment as affixed on allotment letter. He has proved that he has given the possession of the flat vide letter dated 16.01.1987, Ex.PW-20/1 to the allottee on the basis of the letter dated 23.12.1986, Ex.PW-20/2 issued by Assistant Director, Housing, DDA. He has proved the document Ex.PW-18/3 which bears the signature of the allottee. PW-20 in his cross examination has stated that they do not RC : 9/S/89 Page 16 of 29 confirm the identity except by means of sign of the allottee.
24. PW-21 Sh. Jeet Ram Ranjan was posted as Dy. Director Housing (NP) has deposed that a show cause notice was issued to Sh. K.N.Bhalla regarding cancellation of allotment of the flat which was addressed to him at his address at Rohini, Delhi and the same was received back undelivered. He was not cross-examined by the accused persons.
25. PW-22 Sh. Hari Singh Gurawaria is the investigating officer of this case who has deposed that during investigation and after registration of F.I.R. No.9/89, Ex.PW-22/1 he collected the documents and examined the witnesses and done the necessary relevant to this case and sent the documents to CFSL for the opinion and the positive opinion against the accused Lalit Kumar was received from the CFSL. He has further deposed that he seized the documents in the present case. He has proved the seizure memo dated 20.11.89 Ex.PW-1/42, seizure memo dated 17.11.89 Ex.PW-22/2, seizure memo dated 16.11.89 Ex.PW-3/1, seizure memo dated 22.05.90 Ex.PW-13/2, seizure memo dated 18.04.90 Ex.PW-17/1, receipt memo dated RC : 9/S/89 Page 17 of 29 06.12.89 Ex.PW-13/2 and receipt memo dated 24.05.90 Ex.PW-5/1. He has further deposed that he has also taken the specimen signatures/writings as S46 to S53 Ex.PW18/A1 to A8 of the complainant Sh. K. N. Bhalla in the presence of independent witness. He has further deposed that he has also taken the specimen signatures/writings as S1 to S45, S54 to S77 Ex.PW4/1 to Ex.PW4/60 of the accused no.1 Lalit Kumar in the presence of independent witnesses. He has further deposed that thereafter on his promotion the investigation was entrusted to Inspector H. S. Rawat.
26. PW-23 Inspector H. S. Rawat has deposed in his examination-in-chief that on 26.11.90 he took over the further investigation of the present case from Inspector Satyavir Singh and during investigation he had collected certain documents vide seizure memo, Ex.PW22/4 and seizure memo, Ex.PW3/3 and also collected GEQD opinion from CFSL and recorded the statement of witness and filed the chargesheet after due examination of all documents. He was not cross-examined by the accused persons.
27. It is an admitted case of the accused persons that they are RC : 9/S/89 Page 18 of 29 relatives of the complainant and the flat was allotted in the name of the complainant by the DDA and the accused no.1 is engaged in the profession of property dealer. It is also an admitted case of the accused persons that the demand letter, Ex.PW1/4 of the flat was handed over by the complainant to the accused no.1. It is also an admitted case of the accused persons that the flat was sold by the accused persons to the PW-3 Sh. Deepak Malhotra and necessary sale documents in this regard were executed by the accused no.2 in favour of the PW-3. It is also an admitted case that the raid was conducted by the CBI at the residence of the accused persons and the accused no.2 executed a receipt Ex.PW3/13 in his favour and also issued a cheque of Rs. 40,000/- issued a cheque of Rs.40,000/- in favour of the PW-3 towards return of the part payment of the sale consideration amount of the flat which was later on dishonoured on presentation by the accused no.2 with his banker.
28. The case of the prosecution is that the complainant has not taken the possession of the flat and the complainant has never executed any documents for sell of the flat in favour of the accused and the certificate regarding taking over the possession of the flat does not RC : 9/S/89 Page 19 of 29 bear his signatures and in the year 1986 the complainant was induced by the accused persons to hand over all the necessary documents including the demand letter Ex.PW1/4 and the receipt Ex.PW1/5 regarding making of payment of Rs.15,241.54 to the accused no.1 on the pretext of helping him in expediting the necessary formalities on his behalf for taking the possession of the flat from the DDA but instead the accused persons by entering in to conspiracy with each other has cheated the complainant by taking the possession of the flat and by preparing forged documents Ex.PW18/1 to Ex.PW18/24 purporting to be executed by the complainant for sell of the flat in favour of the accused and thereafter selling the same to PW-3 Sh.Deepak Malhotra and the accused no.2 executed necessary sale documents in this regard in favour of the PW-3.
29. On the other hand, the defence taken by the accused persons is that the complainant has himself sold the flat to the accused no.2 on the consideration amount which he already owed to the accused no.1 as the complainant was not having the money for making the payment for the purchase of the flat. It is further case of the accused persons that the complainant had borrowed Rs.15,241.54 from RC : 9/S/89 Page 20 of 29 the accused no.1 for making the initial payment of the flat to the DDA. It is further case of the accused persons that the complainant has himself taken the possession of the flat and delivered to the accused no.1 for the consideration amount which he owed to him.
30. The complainant has in his examination-in-chief has fully supported the case of the prosecution. In his cross examination there is no question or suggestion being put to him with regard to the execution of the sale documents by him in favour of the accused no.1. The testimony of the complainant has been corroborated by the testimony of the PW-18 Sh. V.K. Khanna, the expert witness, who has supported the case of the prosecution who in his reports has given his opinion in favour of the prosecution case with respect to the documents submitted to him for examination. He was not cross-examined by the accused. PW-3 who is the other material witness in the present case has also supported the case of the prosecution. He was also not cross examined by the accused. The fact that the flat was sold by the accused persons to PW-3 and the accused persons also handed over the documents purported to be executed by the complainant in favour of the accused are deemed to be admitted by the accused persons. It RC : 9/S/89 Page 21 of 29 is also not the case of the accused persons that they have not sold the flat to the PW-3 or have not handed over the documents purportedly executed by the complainant in favour of the accused no.2. The testimony of the PW-3 that later on he was informed by the CBI officers about the fraud played by the accused persons of procuring the flat by the accused persons by playing fraud with the DDA and making the forged signature of the complainant has not been controverted by the accused persons rather the same is deemed to be admitted by them as no cross examination of the PW-3 was done by the accused. The testimony of the PW-3 that the accused persons executed a receipt, Ex.PW3/13 in his favour and consequent to which a cheque of Rs. 40,000/- was handed over to the PW-3 as part payment has also not been controverted by the accused persons. In the normal course of circumstances, if the flat were rightfully sold by the accused persons to the PW-3 then they would not have offered the sale consideration amount back to the PW-3. Therefore, the handing over the cheque as part payment of the consideration amount by the accused persons further substantiate the case of the prosecution that the accused persons had not purchased the flat legally from the complainant. Even the testimony of the PW-3 that both the accused persons have told him RC : 9/S/89 Page 22 of 29 that they will reimburse the amount back to him if he did not give evidence against them in the present case has not been controverted by the accused persons which further substantiate the case of the prosecution.
31. The fact of executing a receipt, Ex.PW3/13 and a cheque by the accused no.2 in favour of the PW-3 further proves the fact that there was no such agreement between the complainant and the accused persons with respect to the sell of the flat. If it were so, then there was no occasion for the accused no.2 to execute a receipt Ex.PW3/13 and to issue a cheque for return of the part sale consideration amount back to Sh. Deepak Malhotra. The contention of the learned counsel for the accused that the accused no.2 has given the instructions for stopping the payment as the same was issued on the insistence and pressure put up by the CBI has no merits as no such defence was taken by the accused persons at the time of examination of the PW-3. Therefore, the testimony of the PW-3 that the cheque was issued for return of the part payment of the sell consideration amount of the flat is deemed to be admitted by the accused persons. Even there is no evidence being led by the accused persons to prove that they had RC : 9/S/89 Page 23 of 29 given any instructions to the bank for not releasing the cheque amount as the same was issued under pressure from the CBI Officials. There is nothing on the record to disbelieve the testimony of the PW-3.
32. The contention of the learned APP for CBI is that the accused no.1 took the possession of the flat by forging the signature of the complainant at the time of taking the possession of the flat as at that time there was no practice of taking photographs of the allottees and the possession of the flat was given only on the basis of the possession letter and on verification of signature of allottee as affixed on allotment letter. There is a merit in the aforesaid contention of the learned APP for CBI as PW-20 has also stated in his cross examination that they do not confirm the identity of the allottee by any other documents except by means of signature of the allottee. He has further stated that he was unable to remember the face of the allottee to whom he had given the possession of the flat. He has further stated that except verifying the signature of the allottee in his presence there was no other way for verification of the allottee. Therefore, in view of the testimony of the PW-20 there is a possibility of taking possession of the flat by some other person who is able to forged the signature of the RC : 9/S/89 Page 24 of 29 original allottee which supports the case of the prosecution that the accused no.1 has taken the possession of the flat by forging the signature of the complainant. The testimony of the PW1 that the accused no.1 in the garb of helping him in taking the possession of the flat has obtained from him the original demand letter and the receipt of the flat further proves that the complainant could not have taken the possession of the flat as he was not having the demand letter and the receipt. The fact that the demand letter and the receipt was obtained by the accused persons from the complainant is further being corroborated by the testimony of the PW-3 who has deposed that the original demand letter was also given by the accused no.2 at the time of sale of the flat to the PW-3 by the accused no.2. The testimony of the PW-1 that he has not taken the possession of the flat and has not executed any documents with regard to the sale of the flat to the accused is further being corroborated by the testimony of the PW-18 who has proved his reports Ex.PW18/A and Ex.PW18/D wherein he has given his opinion in favour of the prosecution case.
33. The contention of the learned counsel for the accused is that the accused has been absolved in the departmental enquiry conducted RC : 9/S/89 Page 25 of 29 by the DDA which were initiated on the complaint of the complainant and the DDA has informed the complainant that his case was found to be baseless. There is no merits in the said contention of the learned counsel for the accused as the departmental inquiry carried out by the DDA can not be equated with the investigation carried out by the CBI. The departmental enquiry and the investigation by the police operates on a different sphere and footing. The departmental enquiry has its own limitation whereas there is no such limitation in the investigation carried out by the police as the police during investigation also can examine the documents through an expert and take his opinion as was done in the present case.
34. The other contention of the learned counsel for the accused that there was no test identification parade done in the present case and the accused have been identified for the first time in the court has no merits. It is an admitted case of the accused persons that the complainant was their relative. Therefore, there was no question of identification of the accused in the present case as the identity of the accused persons were never in dispute in the present case. RC : 9/S/89 Page 26 of 29
35. PW-1 has deposed in his examination-in-chief that the will and the receipt both dated 11.4.1989 was not executed by him in the presence of any Om Parkash. There is no question or suggestion being put in his cross examination to suggest that the aforesaid documents were executed by the complainant in the presence of any Om Prakash. The accused persons have also not examined any person by the name of Om Prakash who was alleged to be the witness to the aforesaid documents. If the documents were executed in the presence of Om Prakash then his examination by the accused persons in their defence would have been a natural course of action for them but in the present case no such witness has been examined by the accused persons which also suggest that the case put forth by the accused persons can not be relied upon.
36. The contention of the learned counsel for the accused persons is that the complainant has admitted to have taken money from the accused no.1 in the statement given to the police which shows that the complainant has sold the said flat to the accused persons. There is no merits in the said contention of the learned counsel for the accused as the accused persons have not proved that they have lent any money RC : 9/S/89 Page 27 of 29 to the complainant. Moreover, even if the contention that the complainant had borrowed money from the accused persons is to be believed then in that case also it would itself not be sufficient to suggest that the complainant might have sold the flat to the accused persons in lieu of the borrowed money. The accused persons have not led any such evidence. On the contrary, the complainant has categorically deposed that the accused persons have cheated him and he has not executed any documents for sale of the property in favour of the accused which is further being corroborated by the expert opinion given the PW18 in his reports in this regard. If the contention of the accused persons is to be believed to be true, then in that case the accused persons would have obtained the original signatures of the complainant on the documents which is not the case in the present case.
37. In view of my above discussions, the prosecution / CBI has been able to prove that both the accused persons in conspiracy with each other have cheated the complainant by taking the possession of the flat by inducing him to deliver the demand letter etc. and has further been able to prove that the accused persons have prepared forged RC : 9/S/89 Page 28 of 29 documents which are valuable security for the said purpose and used the same for further selling the flat to third person. Therefore, I hold that the prosecution / CBI has proved its case against the accused persons beyond reasonable doubt. Hence, both the accused persons are convicted for the charged offences. Let they be heard on the point of sentence.
Announced in Open Court (V. K. GAUTAM)
today on 24/11/2014 Additional Chief Metropolitan
Magistrate-02/Central/Delhi
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