Delhi District Court
Cr No. 440396/16 "Cbi vs . Atul Khanna" on 19 June, 2020
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
IN THE COURT OF MS GEETANJLI GOEL, ASJ (SFTC)
SOUTH WEST, DWARKA, NEW DELHI
Criminal Revision No.440396/16
In the matter of:
Central Bureau of Investigation
Through
Shri Kuldeep Singh
Inspector
CBI, ACB, New Delhi
......... Revisionist
versus
Shri Atul Khanna
S/o Shri O.P. Khanna
R/o R-2/151, Raj Nagar
Ghaziabad (UP).
........... Respondent
Date of institution of revision : 02.07.2016
Date when received by transfer : 10.04.2019
Date on which order reserved : 28.01.2020
Date of order : 19.06.2020
AND
Criminal Revision No.440347/16
In the matter of:
Shri Lalit Mohan Madhan
S/o Late Shri D.D. Madhan
R/o B-26, 27 Community Center
Janakpuri
New Delhi-110058
......... Revisionist
versus
State
through APP
Criminal Revision Page 1 of 52
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Department of Prosecution
Dwarka Court.
........... Respondent
Date of institution of revision : 24.05.2016
Date when received by transfer : 10.04.2019
Date on which order reserved : 28.01.2020
Date of order : 19.06.2020
ORDER
1. Vide this common order, I shall dispose of two revision petitions filed under Section 397 Cr. P.C. against the order dated 26.02.2016 passed by the Ld. CMM (SW) Dwarka Court by which charge was directed to be framed u/s 471/474/120B/420/511 IPC in case FIR No.RC-DAL-2008-A-0012 PS CBI/ACB/ND, one filed by CBI against Shri Atul Khanna and the other filed by Shri Lalit Mohan Madhan.
2. A perusal of the Trial Court Record shows that the case was registered on 26.3.2008 on the basis of the written complaint of Shri Alok Swaroop, Director (Vigilance), DDA (Vigilance Department) Vikas Sadan addressed to SP, CBI/ ACB dated 18.03.2008 alleging that the Land Management Wing of DDA had forwarded fake allotment-cum-Demand letter in respect of the land Khasra No.64/2/1 measuring 16 bigha 4 biswa at Yakut Pur, Pitampura submitted by one Shri L.M. Madan Attorney of Shri Kamal Joshi, 906-908, Hemkunt Towers, 6, Rajendra Place, New Delhi to the Vigilance Department Criminal Revision Page 2 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
of DDA for detailed enquiry. As per the complaint, on going through the records available with DDA, it was revealed that the forged allotment-cum- demand letter dated 10.10.2007 purported to be issued by DS (IM), DDA was forwarded by Shri L.M. Madan to DDA vide his representation dated 4.12.2007 for handing over possession of the land in pursuance of his having deposited Rs.32,03,588/- on 17.10.2007 in the account of DDA maintained with Central Bank of India, Vikas Sadan, New Delhi vide DDs dated 17.10.2007 issued by the Oriental Bank of Commerce. It was stated in the complaint that Shri Madan vide his letter dated 4.12.2007 also enclosed order dated 26.6.2000 of the Court of Shri V.K. Goel, Senior Sub Judge, Delhi in respect of the land worth about Rs. 8-10 crores approximately as per which the offer of the land was to be made to the petitioner rather than allotment of land to the petitioner. It was stated that the acquisition of the said land was made for public purposes and hence there was no question of making any offer in respect of the land under Section 21(a) of the DD Act. It was alleged that it seemed that based on the aforesaid order/ judgment, Shri L.M. Madan fraudulently had drawn up or caused to be drawn up the demand letter in connivance with the DDA officials, on the basis of which he had made payment and was insisting for possession of the land.
3. After completion of investigation charge-sheet was filed in the court of Criminal Revision Page 3 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Ld. CMM on 23.09.2009 and was assigned to the court of Ld. ACMM vide order dated 25.11.2009 of the Ld. CMM. Cognizance was taken vide order dated 27.08.2011 of the Ld. ACMM-II and the accused persons namely L.M. Madan, Gurpreet Singh, Atul Khanna and Anil Wadhawan were summoned and Ms. Rewa was declared Proclaimed offender. Thereafter revision petition was filed by Atul Khanna and Gurpreet Singh and vide order dated 24.03.2012, the order dated 27.08.2011 was set aside qua Atul Khanna and Gurpreet Singh and the Ld. Trial Court was directed to specify the offences for which as per the opinion of the Ld. Trial Court, the said accused persons had been summoned. Vide detailed order dated 26.06.2013 cognizance was taken for the offences under Sections 420/471/120B IPC and all the accused persons were summoned. After hearing the arguments of the Ld. Counsels for the accused persons and Ld. APP for CBI, the impugned order was passed vide which it was held that prima facie case was made out against the accused L.M. Madan for the offences punishable under Sections 471/474/120B/420/511 IPC and the accused Atul Khanna, Gurpreet Singh and Anil Wadhawan were discharged. Against the said order two revision petitions have been filed- one by Shri. Lalit Mohan Madan challenging the framing of charge against him and the other by the State against the discharge of the accused Atul Khanna though the discharge of the accused Gurpreet Singh and Anil Wadhawan has not been challenged.
Criminal Revision Page 4 of 52
CR No. 440396/16 "CBI vs. Atul Khanna" CR No. 440347/16 "Lalit Mohan Madhan Vs. State" Criminal Revision No. 440347/16
4. The said revision petition has been filed by Shri Lalit Mohan Madan challenging the framing of charge against him. It is averred that the impugned order depicts non application of judicial mind by the Ld. CMM and there is legal infirmity in the impugned order. It is submitted that it was a matter of record that three MOUs were signed and executed between Shri Lalit Mohan Madhan, Shri. Atul Khanna and Shri Gurpreet Singh. As per the MOU dated 10.07.2007 between Shri Lalit Mohan Madhan and Shri Atul Khanna, Shri Atul Khanna was entitled to receive an amount of Rs.12 crores for the services to be rendered by him for obtaining the allotment/demand letter, registration and possession and Shri Atul Khanna had received an advance of Rs.1.50 crores and post-dated cheques for the balance amount on this account. Further Shri Atul Khanna was entitled to receive 33 % undivided share of the land/property in question in the event of delay or dishonouring of the post- dated cheques. As per the MOU dated 10.07.2007 between Shri Lalit Mohan Madhan and Shri Gurpreet Singh, Shri Gurpreet Singh had agreed to invest and contribute 16.5 % of the total cost of land demanded by DDA and he was entitled to become co-owner and have 16.5% share of the land in question. Shri Gurpreet Singh had also given an advance of Rs.2.00 lacs to Shri Lalit Mohan Madhan in this regard. Further Shri Gurpreet Singh had agreed and was authorized to pursue the matter with the concerned authority in terms of Criminal Revision Page 5 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
the MOU dated 10.10.2007 with Shri Atul Khanna.
5. It is averred that as per the MOU dated 10.07.2007 between Shri Lalit Mohan Madhan, Shri Gurpreet Singh and Shri Atul Khanna, Shri Atul Khanna was entitled to receive an amount of Rs.12 crores for the services to be rendered by him for obtaining the allotment/demand letter, registration and possession and Shri Atul Khanna had received an advance of Rs.2.50 crores (Rs.1.70 crores paid by Shri Lalit Mohan Madhan and Rs.80 lacs paid by Shri Gurpreet Singh) and post-dated cheques for the balance amount of Rs.9.50 cores on this account. PDCs in the sum of Rs.5.20 crores were issued by Shri Gurpreet Singh and PDCs in the sum of Rs.4.30 crores were issued by Shri Lalit Mohan Madhan from their respective bank accounts. Further, Shri Atul Khanna was entitled to receive 25 % undivided share of the land/property in question in the event of delay or dishonouring of the post-dated cheques. It was clarified in the MOU dated 10.07.2007 between Shri Lalit Mohan Madhan, Shri Gurpreet Singh and Shri Atul Khanna that all the agreements, MOUs etc. signed between Shri Atul Khanna and Shri Lalit Mohan Madhan prior to the said agreement were null and void and stood canceled and earlier cheques for a sum of Rs.10.50 crores issued by Shri Lalit Mohan Madhan to Shri Atul Khanna were agreed to be returned by Shri Atul Khanna. Further, Shri Gurpreet Singh had introduced Shri Atul Khanna to the Criminal Revision Page 6 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
petitioner/accused.
6. It is averred that vide order dated 06.04.2011 passed by the Hon'ble High Court in Writ Petition titled 'Kewal Joshi Vs. DDA) WP (C ) No.9087/2009 it was directed to DDA that the money deposited by the petitioner with the DDA i.e. the amount of Rs.32,66,042.66 which had been kept in a fixed deposit by DDA pursuant to the orders of the Hon'ble High Court should be returned by the DDA to the petitioner along with interest accrued thereon within a period of 4 weeks after observing that there was no legal basis as the criminal investigation was concerned and the CBI had made it clear that it had neither seized the amount nor was it part of the case property. It is averred that the petitioner was still pursuing the matter before the appropriate civil courts in respect of the land in question in his capacity as Attorney of Kamal Joshi who had filed an execution petition before the Ld. Civil Judge, Delhi which was dismissed. Thereafter another execution petition was also dismissed. An Execution Petition was preferred by the petitioner as Attorney of Shri Kamal Joshi before the Hon'ble High Court which was admitted and notice was issued. Reference was made to the impugned order.
7. It is averred that the accused Rewa Kumar had been absconding and had been declared Proclaimed Offender and the Ld. CMM was pleased to Criminal Revision Page 7 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
discharge the remaining accused persons. It is averred that there are infirmities in the impugned order and the Ld. CMM had ignored various relevant and material aspects; that the Ld. CMM had wrongly observed that as of now there was no substantial material on record to show that those public servants had given the forged allotment letter to the accused Rewa Kumar and she had further handed over the same to the petitioner/ accused Lalit Mohan Madhan and it would be open for the petitioner during trial to show that he got the forged letter from co-accused without being aware of its authenticity. It is submitted that there was neither any allegation in the charge-sheet nor any material on record to show that the alleged forged letter of allotment was handed over to the petitioner Lalit Mohan Madhan by Rewa Kumar and infact the alleged forged letter of allotment was handed over to the petitioner Lalit Mohan Madhan personally by the concerned DDA official(s) in the office of DDA at Vikas Sadan on 15.10.2007 in the presence of Shri Atul Khanna, Shri Gurpreet Singh, Ms. Rewa Kumar and Shri Anil Wadhawan and the concerned DDA official had also taken copy of identity proof of the petitioner Lalit Mohan Madhan after verification of the same with the original. The concerned DDA official had also obtained signatures of the petitioner Lalit Mohan Madhan in the register in confirmation of his having received the letter of allotment. It is averred that it had been clearly stated in the charge-sheet that from analysis of call details it had been revealed that Lalit Mohan Madhan, Criminal Revision Page 8 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Atul Khanna, Anil Wadhawan and Rewa Kumar were around DDA office, INA, New Delhi on 15.10.2007 and CCTVs were installed in the DDA office and the IO could have easily established as to whether the alleged forged letter of allotment was handed over to the petitioner Lalit Mohan Madhan personally by the concerned DDA official(s) in the office of DDA, Vikas Sadan, INA, New Delhi if the IO had conducted thorough and proper investigation.
8. It is submitted that there was absolutely no material on record nor any allegation in the charge-sheet either from analysis of call details or otherwise to show that the petitioner ever had any prior contact with Rewa Kumar at any point of time and he had met Rewa Kumar for the first time when he had gone to DDA office on 15.10.2007 to collect the letter of allotment. It is submitted that the facts and circumstances clearly established that the petitioner had received the alleged forged allotment letter from the concerned DDA official in the office of DDA under the bonafide impression that it was a genuine document, without being aware of its authenticity and the petitioner would not have deposited the money in the account of DDA and would not have submitted the said letter to DDA, if he had any doubt about the authenticity of the said letter and that the said allotment letter was not a genuine letter. It is averred that the Ld. CMM had ignored the fact that nowhere the prosecution had alleged that Rewa Kumar was known to the petitioner earlier or that the Criminal Revision Page 9 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
petitioner had ever met and/or entered into any understanding with Rewa Kumar. It is submitted that Rewa Kumar is a habitual offender and as many as 18 FIRs were registered against her for the offences of cheating, criminal breach of trust etc. in various police stations in Delhi to the knowledge of the petitioner.
9. It is stated that the petitioner is entitled to be discharged on the same ground on which the other accused persons were discharged. It is submitted that there were clear allegations and findings of the IO in the charge-sheet that the accused Anil Wadhawan got issued three pay orders, one for Atul Khanna on 9.10.2007 and two in favour of DDA from his bank account and it could not be construed that the accused Anil Wadhawan used his bank account for making payments in connection with the property transaction without material benefits and without being a party to the alleged conspiracy. It is averred that there was an understanding between Shri Lalit Mohan Madhan and Shri Anil Wadhawan that all the amounts to be deposited with DDA on account of allotment/possession of the land in question shall be paid/deposited by Shri Anil Wadhawan and Shri Anil Wadhawan would be entitled to take proportionate share in the land in question after the allotment/possession of the same and as such he actively participated and financed and arranged pay orders for Rs.25 lacs in the name of Shri Atul Khanna and Rs.32,03,528/- and Criminal Revision Page 10 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Rs.62,554/- in favour of DDA from his bank account. There were allegations and findings of active role of the accused persons Shri Atul Khanna, Shri Gurpreet Singh and Shri Anil Wadhawan and role of the said persons had been described in detail in the charge-sheet and they were also party to various financial transactions in connection with the property in question and after perusal of the said allegations and findings, the Ld. CMM had come to the conclusion that no offence was made out against the said accused persons.
10. It is averred that the job of obtaining the allotment/demand letter, registration and possession had been entrusted to Shri Atul Khanna for consideration and as such it was evident from a perusal of the MOUs that Shri Atul Khanna was a beneficiary of the transaction in question and therefore he was doing the necessary follow up and liasoning with the concerned persons through his own contacts. It is averred that there were clear allegations and findings of the IO in the charge-sheet that the accused/ petitioner Lalit Mohan Madhan entered into a criminal conspiracy with co-accused Shri Atul Khanna, Shri Gurpreet Singh, Shri Anil Wadhawan and Ms. Rewa Kumar and in pursuance of the said criminal conspiracy, he executed 3 MOUs dated 10.10.2007 in connection with the property in question and the accused/petitioner Lalit Mohan Madhan paid Rs.1.70 crores to the accused Atul Khanna for getting the letter of allotment and demand letter along with Criminal Revision Page 11 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
possession and registration of title document and Atul Khanna issued a receipt for the same on 10.10.2007. It is stated that Shri Atul Khanna was pursuing the matter regarding the allotment/demand letter, registration and possession.
11. It is submitted that the petitioner being the rightful and lawful owner by virtue of having title documents in his favour, the alleged letter of allotment was issued in his name, moreover the fact that he was keeping the original of the alleged forged allotment letter with him under his possession and that the same was recovered from the house of the petitioner established that the petitioner had received the alleged forged allotment letter from the concerned DDA officials under the impression that it was a genuine document and he had absolutely no doubt about its authenticity and there was no material on record to show that the petitioner had any doubt regarding the authenticity and genuineness of the alleged forged allotment letter. It is submitted that no investigation had been conducted qua the role of DDA officials/public servants connected with the LG house related to the representation of the accused/petitioner for getting allotment of land and the investigating agency deliberately did not collect any material apart from the fact that the said officials were in touch with accused Rewa Kumar in connection with the said representation. It is submitted that if the petitioner had the intention to use the forged allotment letter, there was no need for the petitioner to send the Criminal Revision Page 12 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
representation through the accused Rewa Kumar and it was clearly mentioned in the charge that she had visited the LG house along with the representation of the petitioner Lalit Mohan Madhan for getting allotment of land and her presence in and around the areas of INA, South Ex area where the office of DDA was located had also been established and even her visit to the LG house for pursuing the matter. Moreover, it was clearly stated in the charge sheet that few public servants connected with LG House were also in contact with the accused Rewa Kumar.
12. It is averred that despite there being clear allegations in the complaint and also in the charge sheet, DDA officials/public servants/government officials had deliberately not been made accused and the alleged offences could not have been committed without the involvement and connivance of the DDA officials/public servants/government officials. The involvement of the officers of LG house, DDA office and the persons accompanying Rewa Kumar could have been identified by analysis of CCTV records and thorough investigation in the present matter. Even no investigation had been conducted in respect of the stamp of 'DS(LM)DDA' that was found affixed on the alleged fake demand-cum-allotment letter submitted by the petitioner. It is averred that the Ld. CMM had ignored the fact that there was no need for the accused/ petitioner to go to the INA market near DDA office with other accused Criminal Revision Page 13 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
persons, if he had to submit a forged letter as alleged and he would rather have gone alone which showed that he went there to get genuine and authentic document. Moreover the Ld. CMM had ignored the fact as to why would the petitioner enter into an Agreement to Sell, Supplementary Agreement to Sell etc. with Shri Kewal Joshi the owner and pay Rs.1.20 crores if he was not sure of obtaining the title documents of the land in question in his favour. It is submitted that the petitioner was in fact the victim and he had been cheated in the present transaction and he should have been joined as a witness. It is submitted that the facts and circumstances revealed that fair and proper investigation had not been conducted and reliance was placed on the judgment of the Hon'ble High Court of Delhi in Ashok Kumar Aggarwal Vs. CBI decided on 13.01.2016 in WP (Crl) 1401/2002 and Crl. Rev. P. No. 338/2014.
13. It is further averred that the facts and circumstances of the present matter revealed that the mandate and provisions of CBI Manual had not been complied with and CBI did not register any Preliminary Enquiry in the present case and thus violated the established procedure. Reliance was placed on the judgment of the Hon'ble Supreme Court in Shashikant Vs. CBI (2006) Legal Eagle (SC) 949. It is averred that the basic ingredients of the offence of cheating i.e. inducement, dishonest intention at the very beginning etc. were Criminal Revision Page 14 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
missing and thus the offence of attempt to commit the alleged offence of cheating was not made out as the petitioner being the rightful and lawful owner by virtue of having title documents in his favour had been pursuing the matter for his genuine claims and also pursuing alternate civil remedies seeking possession of the land in question before the courts of appropriate jurisdiction. It is averred that there was no allegation of any inducement or allegation of delivery of any property by the complainant or anyone else as a result of any inducement and there was no material on record to show any dishonest intention or inducement to any person in the present matter nor had wrongful loss been caused to any one nor had the petitioner made any wrongful gain in the present transaction. Reliance was placed on several authorities.
14. It is further submitted that the offences under Sections 471 and 474 IPC were also not made out as even if it was presumed that the alleged demand- cum-allotment letter was a fake/forged document, the author of the alleged forgery had not been identified and it was not the case of the prosecution that the petitioner was the author of the alleged forgery. It was alleged that the fake demand-cum-allotment letter submitted by the petitioner bore the stamp of 'DS (LM) DDA' but it was established that there was no such post in DDA and even the said stamp had not been recovered. It is averred that when the Criminal Revision Page 15 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
petitioner had no knowledge that the demand-cum-allotment letter was a forged document, Section 471 IPC was not attracted nor Section 474 IPC was attracted. It is also submitted that if the offence under section 471 IPC is not made out, the offence under Section 474 IPC is also not attracted being a sub- set of the same as per Section 218 Cr.P.C. and Section 71 IPC. It is averred that in the absence of any prima facie evidence against the petitioner to the effect that the said document was forged to the knowledge of the petitioner, it could not be concluded that the offence of forgery had been committed by the petitioner. It is averred that mere vague and wild averments/allegations of forgery against the petitioner could not constitute the offence of forgery. Reliance was placed upon several authorities.
15. It is submitted that the offence of conspiracy was also not made out. Reliance was also placed on several judgments. It is further submitted that public servants were not made accused to circumvent the provisions of sanction under Section 197 Cr. P.C. Despite there being clear allegations in the complaint as also in the charge-sheet, DDA officials/public servants/government officials had deliberately not been made accused in order to shield such officials and to circumvent the provisions of section 197 Cr. P.C. It is averred that the Ld. CMM had failed to appreciate that before proceeding with the trial it was necessary for the prosecution to obtain sanction under Criminal Revision Page 16 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Section 197 Cr. P.C. without which the Ld. Trial Court could not proceed with the framing of charges. Moreover there was no exception to the provisions of Section 197 Cr.P.C. and as such the order was void and illegal and against the settled principles of law. Reliance was placed upon the judgment of the Hon'ble Supreme Court in A.K. Roy v. State of Punjab AIR 1986 SC 2160. Reference was also made to the judgments regarding the considerations to be kept in mind while framing charge.
16. It is averred that the judicial process should not be an instrument of oppression or needless harassment and the court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration. It is stated that it is the settled principle of law that the provisions of criminal law require strict interpretation and the liberty of a person could not be jeopardized on mere surmises or by traveling beyond the specific provisions of the law. It is averred that it had been held in various judicial pronouncements that summoning of accused in a criminal case was a serious matter and criminal law could not be set into motion as a matter of course. Reliance was placed on several authorities. It is thus prayed that the impugned order be set aside and the petitioner be discharged.
17. Reply to the revision petition was filed on behalf of the CBI denying Criminal Revision Page 17 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
the averments made in the revision petition. It was averred that as per the prosecution case, as the petitioner failed to get the possession of the land through legal means he entered into a criminal conspiracy with other accused persons and in pursuance of the criminal conspiracy 3 MOUs were executed and as per the MOU, the petitioner paid Rs.1.70 crores to Shri Atul Khanna for getting the letter of allotment and demand along with possession and registration of the title document of the land and Shri Atul Khanna even issued a receipt for the same on 10.10.2007. As per the demand-cum-allotment letter, the petitioner was allotted the said land and the petitioner deposited two challans along with his application addressed to the Director, Land Management, DDA Vikas Sadan INA Delhi and a photocopy of the demand- cum-allotment letter and got issued a receipt for the same by Shri Sunil Kumar Sinha UDC who was working at the reception of DDA on 17.10.2007. DDA examined the copy of demand-cum-allotment letter and it was found to be a fake letter. The letter was bearing the stamp of DS (LM), DDA but it was established that there was no such post in DDA. During investigation, search was conducted at the premises of the petitioner Lalit Mohan Madhan and the original forged demand-cum-allotment letter was seized from the house of the petitioner. It was averred that in the revision petition it was stated that the forged demand-cum-allotment letter was handed over to the petitioner personally by concerned DDA officials in the office of DDA whereas it was Criminal Revision Page 18 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
submitted by the counsel for the petitioner before the Ld. Trial Court at the time of argument on charge that he received the said letter from the accused Rewa Kumar which was also mentioned in the impugned order and as such the petitioner had taken two different stands which were contradictory and the conduct of the petitioner showed that he was concealing the truth and did not approach the court with clean hands.
18. It was submitted that the original allotment letter was recovered from the house of the petitioner and even the copy of the forged letter was submitted to the DDA by the petitioner and the said fact was not disputed by the petitioner. It was observed in the impugned order that the petitioner had submitted copy of said letter allotment with his letter to DDA and had subsequently deposited the money which showed that the petitioner had used forged document in an attempt to cheat DDA and was in possession of its original letter for purpose of cheating. It was averred that the order on charge passed by the Ld. CMM was absolutely correct, just, proper, legal and the same did not suffer from any infirmity and was a detailed and well-reasoned order. It was submitted that at the stage of charge only a prima facie view is to be taken by the court.
Criminal Revision Page 19 of 52
CR No. 440396/16 "CBI vs. Atul Khanna" CR No. 440347/16 "Lalit Mohan Madhan Vs. State" Criminal Revision No.440396/16
19. The present revision petition has been filed under section 397 Cr.P.C. by the State/ CBI against the order dated 26.02.2016 passed by the Ld. CMM by which the respondent Atul Khanna was discharged. It is averred that the impugned order was contrary to the facts, material evidence, statements and also against the well settled law. It is submitted that as per the case of prosecution Shri Lalit Mohan Madhan had entered into an agreement to purchase the property from Shri Kewal Joshi. There was a dispute about the acquisition of the property by DDA with Shri Kewal Joshi and the Ld. Civil Judge, Tis Hazari had directed the DDA to offer the land to Shri Kewal Joshi in the first instance and restrained DDA from disposing of the land by way of sale without offering the same to Shri Kewal Joshi. The appeal filed by DDA was also dismissed by the Ld. District Judge. A petition filed for execution of the decree by Shri Lalit Mohan Madhan was dismissed as premature. The other facts as stated in the reply to the revision petition filed by Shri Lalit Mohan Madhan were stated. It is averred that the Ld. Trial Court erred in holding that the signing of MOU with Shri Lalit Mohan Madhan was not a wrong act in itself as the MOU stated that only the respondent Atul Khanna would deal or negotiate with DDA on behalf of Shri Lalit Mohan Madhan. It is averred that the Ld. Trial Court failed to take into consideration the narration in the MOU wherein it was mentioned that the second party had approached Criminal Revision Page 20 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
the first party that he was a consultant and did consultancy for such type of projects and was confident that he would be able to get allotment/demand letter issued in favour of the first party and also get possession of the land delivered to the first party. It is submitted that the Ld. Trial Court ought to have seen that Shri Lalit Mohan Madhan and the respondent Atul Khanna had entered into a written agreement to cheat DDA.
20. It is averred that the impugned order was absolutely contrary to the facts and evidence produced on record by the prosecution and was not sustainable in the eyes of law as the same had been passed ignoring the prima facie evidence and the material placed on record by the prosecution had not been discussed by the Ld. CMM in the said order. It is averred that at the stage of framing of charge only prima facie evidence is to be considered and charge could be framed even on the basis of suspicion. It is averred that the findings of the Ld. Trial Court recorded for discharge of the respondent/ Atul Khanna were erroneous, wrong and bad in law and contrary to the material and evidence placed on record. It is averred that the Ld. Trial Court ignored the material facts and erred in law in holding that signing the MOU was not a wrongful act in itself and committed grave illegality by not considering the language/ contents of the MOU. It is submitted that the Ld. Trial Court failed to take into note the fact that Shri Lalit Mohan Madan and the respondent Atul Criminal Revision Page 21 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Khanna had entered into an agreement to cheat DDA and their signatures on the said documents had been proved by CFSL which clearly established the offence under section 120B IPC and further failed to appreciate that a conspiracy was hatched in secrecy and documents were executed and both had entered into a conspiracy which was established during the investigation on the basis of the MOU and other evidence. But despite the presence of such overwhelming prima facie evidence, the Ld. Trial Court had discharged the respondent Atul Khanna which was not warranted by the facts and circumstances of the case. It is thus prayed that the impugned order dated 26.02.2016 be set aside qua the respondent Atul Khanna and charge be framed against him.
21. An application under section 5 of the Limitation Act was also filed on behalf of the revisionist/ petitioner for condonation of delay in filing the revision petition averring that the certified copy of the order was received by the prosecution on 03.03.2016. It is averred that after obtaining the certified copy of the impugned order it was examined at different levels of hierarchy in the CBI and it was found that the impugned order was erroneous, contrary to the facts and evidence on record and suffered from legal infirmities so it was decided to file a criminal revision petition against the impugned order. It is averred that the delay in filing the revision petition had been caused due to the Criminal Revision Page 22 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
procedural formalities as the permission to file the revision petition against the order of discharge had to be routed through various channels in the CBI hierarchy and after taking necessary approval from the competent authority in the department, the present revision petition had been preferred. Reliance was placed on several judgments. It is submitted that the delay in filing the revision petition was neither intentional nor deliberate but due to the reasons mentioned and it is thus prayed that the delay in filing the revision petition be condoned.
22. Reply was filed on behalf of the respondent/ Atul Khanna to the application for condonation of delay averring that the grounds mentioned in the application were vague and omnibus. Reliance was placed on several authorities. It is averred that the explanation for the delay has to be specific explaining each day's delay and the delay had caused prejudice to the respondent who upon discharge from the court bonafidely believed that after the limitation period for filing the revision had lapsed, the order dated 26.02.2016 had become absolute. It is averred that the application for condonation of delay was conspicuously silent as to the names of the persons/ officers who had applied their minds to the judgment dated 26.02.2016 and the dates on which the papers for filing the revision petition were placed before them and the dates on which a decision was taken to file the revision petition. Criminal Revision Page 23 of 52
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
It is averred that the delay in filing the revision petition was the result of negligence, lack of diligence and laches and no sufficient cause had been shown for condoning the same and therefore the revision petition ought to be dismissed. However, a perusal of the record shows that the application for condonation of delay was allowed vide order dated 16.2.2019 of my Ld. Predecessor.
23. I have heard the Ld. Special P.P for CBI, Ld. Counsel for Shri Lalit Mohan Madhan and Ld. Counsel for Shri Atul Khanna and perused the record including the Trial Court Record. Written submissions were also filed on behalf of Shri Atul Khanna which I have perused.
24. The Ld. Special PP for CBI had reiterated the averments made in the reply to the revision petition filed on behalf of Shri Lalit Mohan Madhan and in the revision petition filed by CBI against Shri Atul Khanna. It was argued that as Shri Lalit Mohan Madhan was not able to get possession of the land through legal means, he entered into a conspiracy with Shri Atul Khanna, Shri Gurpreet Singh, Shri Anil Wadhawan and Ms. Rewa Kumar and 3 MOUs were executed. As per the MOU, Shri Atul Khanna had stated that he was a consultant and he was confident that he would be able to get allotment/ demand letter issued in favour of Shri Lalit Mohan Madhan and also get Criminal Revision Page 24 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
possession of the land delivered to him and Shri Lalit Mohan Madhan had also paid money to him for getting the letter of allotment and demand along with possession and registration of the title document of the land for which Shri Atul Khanna had even issued a receipt. It was argued that this showed that the two had entered into a written agreement to cheat DDA and had entered into a conspiracy which was established during investigation and as such Shri Atul Khanna ought not to have been discharged. It was also submitted that Shri Atul Khanna was present when the fake demand cum allotment letter was delivered and he had a major and active role in the present case. Shri Lalit Mohan Madhan could not get the possession of the land through proper channel so Shri Atul Khanna was involved and the letter was prepared on the computer of Shri Atul Khanna.
25. It was further argued that Shri Lalit Mohan Madhan had presented a forged demand cum allotment letter to the officials of DDA to get the possession of the land and had also deposited two challans along with his application and got issued a receipt and when search was conducted on the premises of Shri Lalit Mohan Madhan, the original forged demand cum allotment letter was seized from the house of Shri Lalit Mohan Madhan which showed that he had used a forged document in an attempt to cheat DDA. It was argued that there was a conflict in the stand taken by him as to whether he Criminal Revision Page 25 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
had got the letter from Ms. Rewa or from DDA officials. Moreover, there was no need for him to involve others in getting the allotment letter. It was argued that no person had been identified who had allegedly given the letter to Shri Lalit Mohan Madhan. It was submitted that a reasoned order had been passed charging the accused Lalit Mohan Madhan.
26. The Ld. Counsel for the petitioner/ accused Lalit Mohan Madhan had argued that the petitioner wanted to get land transferred in his name. The land had been acquired by DDA and he kept pursuing the matter with DDA to release the land. The Ld. Civil Judge had also directed that the land should first be offered to the petitioner and the appeal of DDA against the said order was dismissed. The petitioner was pursuing the litigation as attorney holder of Shri Kewal Joshi. It was argued that as per the case of prosecution, the petitioner had entered into conspiracy with others but the accused Rewa Kumar was absconding and the government/ DDA officials involved had not been arrested. It was submitted that amount was to be paid by Shri Lalit Mohan Madhan to Shri Atul Khanna who was to facilitate getting the possession of the land and Shri Gurpreet Singh and Shri Anil Wadhawan had become co-financiers. DDA had raised a demand cum allotment letter and when the same was submitted, it was found by DDA to be fake. It was submitted that clearly DDA officials were involved as the letter bore stamp of Criminal Revision Page 26 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
an office which did not exist in DDA. Initially Prevention of Corruption Act was also taken recourse to but as no official was caught so it was removed. The letter was the sine qua non of the dispute and the original of the letter was found from the house of Shri Lalit Mohan Madhan from his custody. It was argued that the contents and words of the letter matched with the CPU of office of Shri Atul Khanna which he shared with Shri Gurpreet Singh but they had been discharged in the instant case. It was argued that no signatures on the letter could be attributed to Shri Lalit Mohan Madhan and in fact he was a victim and had been duped by Shri Atul Khanna. There was no reason for Shri Lalit Mohan Madhan to pursue an illegal remedy and if he had forged the letter, there would have been no reason for him to give the money and enter into an illegal transaction. It was submitted that Shri Lalit Mohan Madhan had been handed over the letter and he deposited the challans for the amount and he was not even a beneficiary of the forgery.
27. The Ld. Counsel had further argued that if Section 120 B IPC was attracted, none of the other accused persons could have been discharged but though Shri Lalit Mohan Madhan was a victim, he had been made the sole accused. It was argued that the forgery could not be attributed to Shri Lalit Mohan Madhan nor any knowledge of forgery. The money paid by him had also been duly returned. It was submitted that Shri Lalit Mohan Madhan had Criminal Revision Page 27 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
used the document bonafidely. Moreover the record showed that he had been pursuing the legal remedies diligently since 1998 so there would be no need for him to use any forged document. In fact he was allured by the other accused persons that they would get him the necessary clearance from DDA to develop the land. It was submitted that from 1995 to 2008, Shri Lalit Mohan Madhan did not come across anyone who could clear the case. Thereafter MOUs were entered into on 10.07.2007 and within a few days, he was called by Shri Atul Khanna and Ms. Rewa to the DDA office and the letter was handed over to him and within 3 days he got issued demand drafts to pay the charges, thereafter the letter was found to be forged. He had been defrauded by others and Shri Atul Khanna and Ms. Rewa had fraudulently caused the letter to be drawn up but there was nothing to show who had created the letter. It was argued that there was no evidence that the letter had been forged by him and there was even no allegation that the letter was made from his CPU and no intention could be attributed to him. It was also submitted that Shri Lalit Mohan Madhan had only transacted with Shri Atul Khanna and not with Ms. Rewa. The letter was in an envelope bearing the address of Shri Lalit Mohan Madhan from the Director, DDA and the original letter was bound to be in his possession and in fact he had annexed a copy of the letter to the demand drafts which opened up the case.
Criminal Revision Page 28 of 52
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
28. The Ld. Counsel for Shri Atul Khanna had argued that at the stage of framing of charge only prima facie evidence was required to be considered. It was submitted that the Ld. CMM rightly held that merely because certain letters/ representations were prepared in the office of Shri Atul Khanna, it did not give rise to any inference that he was in a criminal conspiracy with Shri Lalit Mohan Madhan and there was nothing to suggest that Shri Atul Khanna was aware about the false allotment letter accompanying the letters/ representations which were genuine documents so his role could not be doubted. It was also rightly held that the signing of the MOU with Shri Lalit Mohan Madhan was not a wrong act in itself as the MOU only spoke that he would deal or negotiate with DDA on behalf of Shri Lalit Mohan Madhan. Moreover, it was observed in the impugned order that frequent exchange of calls between the accused persons was not sufficient to infer criminal conspiracy against them and hence the Ld. CMM rightly reached the conclusion that no prima facie case was made out against Shri Atul Khanna. It was submitted that as per the charge sheet, the CFSL expert had opined that the CPU collected from the office of Shri Atul Khanna contained certain words but no allegations had been made qua the documents retrieved from the CPU which may contain the said words, hence there were no clear allegations against him. It was argued that the powers under Section 397 Cr.P.C. are very limited and could be exercised only to an order which was grossly erroneous Criminal Revision Page 29 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
on the face of it while in the impugned order, the Ld. CMM had considered all the allegations made in the charge sheet and had also referred to the documents filed in the charge sheet before reaching the conclusion. It was argued that the role of Shri Atul Khanna was no better than that of the other accused persons who had been discharged and were on the same footing with respect to the facts and the allegations and against whose discharge no revision petition had been preferred. It was submitted that the fact that the revision had been filed only against the discharge of the respondent Atul Khanna showed that the petitioner/ CBI had accepted the reasoning in the impugned order so the revision petition was not maintainable. It was argued that there was no benefit to Shri Atul Khanna and the amount paid to him was reversed before the FIR was registered.
29. At the outset, the Ld. Counsel for the petitioner Lalit Mohan Madhan had submitted that the judicial process should not be an instrument of oppression or needless harassment and summoning of accused persons in a criminal case is a serious matter and the Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration. Reliance was placed upon the judgments of the Hon'ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate 1998 SCC (Cri) 1400; GHCL Employees Stock Option Trust v. Criminal Revision Page 30 of 52
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
India Infoline Ltd. (2013) 4 Supreme Court Cases 505; M.P. Singh Sahni v. State 2013 (3) JCC1816 and G. Sagar Suri v. State of UP (2000) 2 SCC 636. The law in this regard is well settled.
30. The Ld. Counsel for Shri Atul Khanna had argued regarding the scope of Section 397 Cr.P.C. that the powers under Section 397 Cr.P.C. are very limited and could be exercised only to an order which was grossly erroneous on the face of it. Reliance was placed on the judgment of the Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander and Anr. (2012) 9 SCC 460 wherein it was observed that the powers vested in the court under Section 397 Cr.P.C. were for satisfying itself as to the legality and regularity of any proceedings or order made in a case and the jurisdiction should be exercised when there is palpable error, non-compliance with provisions of law, decision is completely erroneous or where judicial discretion is exercised arbitrarily. The said proposition of law is also well settled. The Ld. Counsel had further argued that the revision petition had been filed by CBI only against the discharge of Shri Atul Khanna and not for the discharge of accused Anil Wadhawan and Gurpreet Singh and evidence could not be split to grant benefit to some co-accused when all the accused were on the same footing and deserved parity. Reliance in this regard was placed on the judgments of the Hon'ble Supreme Court in Ram Laxman and Ors. v. State of Rajasthan Criminal Revision Page 31 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
(2016) 3 SCALE 225 and in Joginder Singh v. State of Punjab 1994 SCC (Cri.) 46. However, the court at the stage of framing of charge can still see if on the basis of the evidence, a prima facie case is made out against one accused while it may not be so made out against the other accused and role of each accused may be different.
31. It was then argued that at the stage of framing of charge only prima facie evidence was to be seen and the Ld. Counsel for Shri Atul Khanna had relied on the judgments of the Hon'ble Supreme Court in Soma Chakravarthy v. State through CBI AIR 2007 SC 2149 and in P. Vijayan v. State of Kerala and Ors. Crl.Appeal No.192 of 2010 decided on 27.1.2010 and of the Hon'ble High Court of Delhi in D. Malik v. State and Others Crl. Rev. Pet. No.159 of 2000 decided on 3.8.2007. The Ld. Counsel for Shri Lalit Mohan Madhan in this regard had relied upon the judgments of the Hon'ble Supreme Court in Satish Mehra v. State of NCT of Delhi 2013 Cri.L.J. 411 and State of Karnataka v. L. Muniswamy & Ors. (1977) 2 Supreme Court Cases 699. The considerations to be kept in mind while framing charge had been laid down by the Hon'ble Supreme Court in UOI v. Prafulla Kumar AIR 1979 SC 366 as under:
"(1). That the Judge while considering the question of framing the charges under Section 228 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out Criminal Revision Page 32 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
whether or not a prima facie case against the accused has been made out;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused;
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
32. It was then argued on behalf of Shri Lalit Mohan Madhan that public servants had not been made accused in the present case in order to circumvent provisions of sanction under Section 197 Cr.P.C. It was submitted that despite clear allegations in the complaint as also in the charge-sheet, DDA officials/ public servants/ government servants had deliberately not been made accused in order to shield such officials and to circumvent provisions of Section 197 Criminal Revision Page 33 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Cr.P.C. and it could not even be imagined that the alleged offences could have been committed without the involvement and connivance of DDA officials/ public servants/ government officials. It was submitted that the Ld. CMM had failed to appreciate that before proceeding with the trial, it was necessary for the prosecution to obtain sanction under Section 197 Cr.P.C. and the said provision could not be circumvented or brushed aside and reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in A.K. Roy v. State of Punjab AIR 1986 SC 2160.
33. A perusal of the charge sheet shows that it was noted therein that during investigation, efforts were made to trace the role of DDA officials but despite best efforts, involvement of DDA officials could not be ascertained, hence the provisions of Prevention of Corruption Act, 1988 were not attracted. It may be mentioned that Shri Lalit Mohan Madhan had stated in the revision petition that the forged letter of allotment was handed over to him personally by the concerned DDA officials in the office of DDA at Vikas Sadan, INA on 15.10.2007 in the presence of Atul Khanna, Gurpreet Singh, Rewa Kumar and Anil Wadhawan and the concerned DDA official had also taken the copy of identity proof of Shri Lalit Mohan Madhan after verification of the same with the original. However, it is pertinent that Shri Lalit Mohan Madhan himself had not mentioned anywhere in the revision petition the name or designation Criminal Revision Page 34 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
of any official of DDA who had handed over the said letter to him. Moreover, it was stated in the charge-sheet that the involvement of DDA officials could not be ascertained and at this stage, it could not be said that DDA officials had deliberately not been made accused in order to shield them and to circumvent the provisions of Section 197 Cr.P.C. When the involvement of Government officials was not ascertained and as per his own admission by the petitioner that no public servant/government servant/ DDA official had been shown as an accused in the instant case, merely on the basis of allegations against DDA public servants or government servants who have not been named, question of obtaining sanction under Section 197 Cr.P.C. would not arise. Hence there is no merit in this contention.
34. It was also argued on behalf of Shri Lalit Mohan Madhan that the facts and circumstances revealed that fair and proper investigation had not been conducted in the present case. The Ld. Counsel had argued that there was ineffective, improper and poor investigation and the role of DDA officials/ public servants connected with the LG house or with DDA office had not been established and the CCTV footage was not investigated and even the stamp of 'DS(LM)DDA' was not found. Reliance was placed on the judgment of the Hon'ble High Court of Delhi in Ashok Kumar Aggarwal v. CBI WP (Crl.)1401/2002 Crl. Rev.P. No.338/2014 decided on 13.1.2016 wherein the Criminal Revision Page 35 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Hon'ble High Court had held that fair and proper investigation had not been conducted in that case. However, at this stage, the Court is to see if on the basis of the material on record, there is prima facie evidence to frame charge against the accused and if there are specific allegations against the petitioner, he cannot be discharged merely on the basis of alleged defects in the investigation. It was also submitted that the IO had not adhered to the CBI Manual in that the CBI did not register any Preliminary Enquiry and reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in Shashikant v. CBI (2006) Legal Eagle (SC) 949. However, that by itself cannot be the basis of discharge of an accused at the stage of framing of charge.
35. Coming to the merits of the case, the case of the prosecution is that land bearing Khasra No.64/2/1 at Village Yakut Pur, Pitampura measuring 16 bigha 4 biswa was purchased by one Haveli Ram Joshi along with three other share holders from Ministry of Rehabilitation. The said land was acquired by DDA in the year 1967 which was challenged by the original owner and the said acquisition was quashed by the Hon'ble High Court of Delhi. The said land was again acquired in the year 1974 u/s 4 of Land Acquisition Act by the DDA which was contested by Shri Kewal Joshi son of the original owner Shri Haveli Ram Joshi by way of civil suit. During the pendency of the suit, Shri Criminal Revision Page 36 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
Lalit Mohan Madhan entered into an agreement to sell with Shri Kewal Joshi dated 31.8.1995 for a consideration of Rs.1.20 crores and paid certain amounts. He further entered into a supplementary agreement to sell with Shri Kewal Joshi on 10.1.2007 and paid further amounts. The civil suit was decided on 24.2.2000 with a direction to the DDA that in case DDA was offering the land by sale then according to section 21 (2) proviso of DDA Act the same shall, firstly be offered to the plaintiff (Kewal Joshi). The DDA challenged the said finding before the Ld. ADJ but their appeal was dismissed. Shri Lalit Mohan Madhan attorney holder of Shri Kewal Joshi filed execution petition but it was dismissed as pre-mature.
36. It is alleged that when the accused Shri Lalit Mohan Madhan failed to get the possession of the land through legal channels, he entered into a criminal conspiracy with Shri Atul Khanna, Shri Gurpeet Singh, Shri Anil Wadhawan and Ms. Rewa Kumar and in pursuance of the said criminal conspiracy 3 MOUs were executed i.e. one between Shri Lalit Mohan Madhan and Shri Atul Khanna, second among Shri Lalit Mohan Madhan, Shri Atul Khanna and Shri Gurpreet Singh and third between Shri Lalit Mohan Madhan and Shri Gurpreet Singh. The said agreements were executed on 10.10.2007. It is further alleged that in furtherance of the said criminal conspiracy Shri Lalit Mohan Madhan paid Rs.1.70 crores to Shri Atul Khanna for getting the letter Criminal Revision Page 37 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
of allotment and demand along with possession and registration of title document of the land and Shri Atul Khanna issued receipt for the same on 10.10.2007 and other amounts were also paid by Shri Gurpreet Singh and Shri Anil Wadhawan. It is alleged that the accused persons were actively connected with each other as established through call details of mobile phones and they were around the DDA office on 15.10.2007 when the false/fake Demand Cum Allotment letter dated 10.10.2007 was managed through some unknown persons. As per the demand cum allotment letter, Shri Lalit Mohan Madhan was allotted the land and with financial help from Shri Anil Wadhawan, he deposited two pay orders in account of DDA and got issued challans which he deposited along with his application addressed to the Director, Land Management, DDA and photocopy of the demand-cum-allotment letter and got issued receipt by Shri Sunil Kumar Sinha, UDC who was working at reception of DDA on 17.10.2007. After receiving the application of Shri Lalit Mohan Madhan, DDA examined the said letter and it was found that it was a fake letter and was not entertained. The fake Demand cum Allotment letter bore stamp of DS(LM)DDA but it was established that there was no such post in DDA. During investigation, original demand cum allotment letter was seized from the house of Shri Lalit Mohan Madhan.
37. It is stated that the opinion of GEQD Expert was also taken regarding Criminal Revision Page 38 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
the signatures. Further CPU installed in the office of Shri Atul Khanna was sent for expert examination and CFSL expert had opined that it contained several words connected with the case and that it was established that the representation/ letter of Shri Lalit Mohan Madhan was prepared on the computer of Shri Atul Khanna and all MOUs and representation of Shri Lalit Mohan Madhan had been typed on the computer of Shri Atul Khanna installed at his office. As per the investigation, the land in question was DDA land and could not be allotted. Further it was revealed that Ms. Rewa Kumar had actively participated in the matter from July, 2007 and had visited the LG House along with representation of Shri Lalit Mohan Madhan for getting allotment of the land and further that Shri Lalit Mohan Madhan, Atul Khanna, Anil Wadhawan and Rewa Kumar had visited around INA Market on 15.10.2007.
38. It is thus the case of CBI that the respondent Atul Khanna had entered into a criminal conspiracy with Shri Lalit Mohan Madan in that he had entered into an MOU with Shri Lalit Mohan Madhan which stated "whereas the second party has approached the first party that he is a consultant and does consultancy for such type of projects and is confident that he will be able to get allotment/ demand letter issued in favour of first party and also get possession of the land delivered to the first party" and that it was a written Criminal Revision Page 39 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
agreement to cheat DDA and the signatures on the documents had been proved by CFSL; he had received payments in pursuance of the same; he was present in the area of office of DDA on 15.10.2007; the MOUs and representation of Shri Lalit Mohan Madhan was typed on his CPU and the letter which was submitted by Shri Lalit Mohan Madhan with the representation in the DDA was a forged demand cum allotment letter. The said aspects were duly considered by the Ld. CMM in the impugned order and it was observed as under:-
"It was argued on behalf of accused Atul Khanna that the documents allegedly prepared in his office do not suggest that he was in criminal conspiracy with co-
accused persons. The submission of representation/letter by accused Lalit Mohan Madan in DDA office is not disputed. In view of this Court, merely the fact that the aforesaid letter/representation was prepared in the office of accused Atul Khanna does not give rise to any inference that he was in criminal conspiracy with accused Lalit Mohan Madan. Since these were genuine documents and there is no material to suggest that accused Atul Khanna was aware about accompanying false allotment letter, his role cannot be doubted. Similarly, signing of MOU with accused Lalit Mohan Madan was not a wrong act in itself as the MOU only speaks that accused Atul Khanna would deal or negotiate with DDA on behalf of accused Lalit Mohan Madan."
It was also observed:
"Similarly, making payment by accused persons Gurpreet Singh and Anil Wadhawan to accused Lalit Mohan Madhan are not sufficient to show that they were in criminal conspiracy with accused Lalit Mohan Madhan since there is no material on record to show that they were aware that that money is being used for some illegal purpose. Further, a frequent Criminal Revision Page 40 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
exchange of calls between accused Lalit Mohan Madhan and co-accused persons do not indicate more than that they were known to each other and that itself is not sufficient to infer criminal conspiracy between them."
39. Thus the Ld. CMM had duly considered the allegations that were there against the respondent Atul Khanna in the charge sheet and had rightly observed that merely the fact that the letter/ representation was prepared in the office of the respondent Atul Khanna would not give rise to any inference that he was in criminal conspiracy with Shri Lalit Mohan Madhan. Contrary to what is stated in the revision petition that it was a false letter/ representation, it is nowhere the case of CBI that the said letter/ representation was not a genuine document and it was also not disputed that the said representation/ letter was submitted in the office of DDA. There was no specific allegation that the respondent Atul Khanna was aware about the submission of the accompanying false demand cum allotment letter.
40. Similarly the signing of MOU with Lalit Mohan Madhan could not be construed as entering into conspiracy with Lalit Mohan Madhan or as a wrong act and as observed by the Ld. CMM, it only spoke of the respondent Atul Khanna dealing or negotiating with DDA on behalf of Lalit Mohan Madhan and did not speak of committing any illegal act. Admittedly payments were made by Shri Gurpreet Singh and Shri Anil Wadhawan but the prosecution Criminal Revision Page 41 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
itself had not challenged the discharge of Gurpreet Singh and Anil Wadhawan who had made the payment to Lalit Mohan Madhan. Further frequent exchange of calls between the accused persons could not be enough to infer criminal conspiracy between them as observed by the Ld. CMM moreso in absence of any other cogent evidence on record. In the revision petition, the MOU signed between Shri Lalit Mohan Madhan and Shri Atul Khanna was heavily relied upon to contend that it showed the criminal conspiracy but merely the said MOU or its language would not give rise to any such presumption of a criminal conspiracy. Likewise the presence of Shri Atul Khanna in or around the office of DDA on 15.10.2007 would not by itself be sufficient to show his connivance in the present case. While it is true that at the stage of framing of charge, only prima facie evidence is to be seen, but it is also trite that if "the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused". Thus in the absence of anything on record to even prima facie make out the case against the respondent Atul Khanna, the Ld. CMM had rightly discharged the respondent Atul Khanna in the instant case.
Criminal Revision No.440347/16
41. It was contended on behalf of the petitioner Shri Lalit Mohan Madhan that the Ld. CMM after perusal of the allegations/ findings of the IO against Criminal Revision Page 42 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
the accused persons had come to the conclusion that there was no sufficient material to show that the accused Atul Khanna, Gurpreet Singh and Anil Wadhawan were in conspiracy with him and they had been discharged and the petitioner was also entitled to be discharged on the same grounds. The allegations against the said persons were referred to but if there are specific allegations against the petitioner, he cannot be discharged merely on the ground that the other accused persons had been discharged in the instant case and the Court has to look at the role of each accused individually.
42. The case of the prosecution against Shri Lalit Mohan Madhan broadly is that having failed to get the possession of the land through legal channels, he entered into a criminal conspiracy with the other accused persons and in pursuance of the said criminal conspiracy 3 MOUs were executed on 10.10.2007. Shri Lalit Mohan Madhan had deposited challans along with his application addressed to the Director, Land Management, DDA and photocopy of the demand-cum-allotment letter on 17.10.2007. After receiving the application of Shri Lalit Mohan Madhan, DDA examined the said letter and it was found that it was a fake letter and was not entertained. The fake Demand cum Allotment letter bore stamp of DS(LM)DDA but it was established that there was no such post in DDA. During investigation, original demand cum allotment letter was seized from the house of Shri Lalit Mohan Madhan. It was Criminal Revision Page 43 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
argued that the Ld. CMM had wrongly observed that there was no substantial material on record to show that the public servants had given the forged allotment letter to the accused Ms. Rewa Kumar and she had further handed over the same to Shri Lalit Mohan Madhan and that it would be open for him to show during trial that he got the forged letter from co-accused without being aware of its authenticity. It was submitted that there was neither any allegation in the charge sheet nor any material on record to show that the alleged forged letter of allotment was handed over to Shri Lalit Mohan Madhan by Ms. Rewa Kumar and it was handed over to him personally by the concerned DDA official(s) in the office of DDA, Vikas Sadan on 15.10.2007 in the presence of Atul Khanna, Gurpreet Singh, Rewa Kumar and Anil Wadhawan and the concerned DDA official had also taken copy of identity proof of the petitioner after verification of the same with the original and obtained his signatures in the register in confirmation of his having received the letter of allotment. It was also submitted that the IO could easily have established as to whether the alleged forged letter of allotment was handed over to the petitioner personally by the concerned DDA official(s) in the office of DDA on 15.10.2007. It was also stated that there was nothing to show that the petitioner ever had any prior contact with Ms. Rewa Kumar at any point of time and he had met her for the first time when he had gone to the DDA office on 15.10.2007. In this regard, the Ld. CMM had observed as under:
Criminal Revision Page 44 of 52
CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
"As far as the role of accused Lalit Mohan Madhan is concerned, ld. defence counsel argued that he had received the said forged allotment letter from accused Ms. Reva Kumar, who is proclaimed offender, under bonafide impression that it is the genuine document and that is why he submitted it in DDA for allotment of land and further, deposited the money for this purpose. It was argued that had the fact of forgery of the allotment letter been in the knowledge of accused Lalit Mohan Madhan, he would not have submitted the same. It was emphasized that few public servants connected with LG House were in contact with accused Ms. Reva Kumar, who was following up the representation of accused Lalit Mohan Madhan for getting allotment of the land.
It is seen that the original forged allotment letter was recovered from accused Lalit Mohan Madhan.
Evidence is also there that he had submitted the copy of said allotment letter with his letter to DDA and had subsequently deposited the money. Thus, prima facie it emerges that accused Lalit Mohan Madhan used the forged document in an attempt to cheat DDA and was in possession of its original letter for the purpose of cheating. Though, ld. defence counsel had also argued that investigation is sham as far as role of public servants connected with LG House related to the representation of accused Lalit Mohan Madhan is concerned, but during investigation, it was found that no material could be collected apart from the fact that those officials were in touch with accused Ms. Reva Kumar in connection with said representation.
Though it cannot be overruled at this stage that he got it with connivance of accused Ms. Reva Kumar, who was actively pursuing the representation of accused Lalit Mohan Madhan with LG House for allotment of letter but as of now there is no substantive material on record to show that those public servants had given the said forged allotment letter to accused Ms. Reva Kumar and she had further handed over the same to accused Lalit Mohan Madhan. It would be open for accused Lalit Mohan Madhan during trial to show that he got this forged Criminal Revision Page 45 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
letter from co-accused without being aware of its
authenticity."
43. It is thus seen, as submitted on behalf of CBI that the petitioner had taken contrary stands as before the Ld. CMM it had been contended that he had received the forged allotment letter from the accused Ms. Rewa Kumar whereas in the present revision petition it was submitted that the same had been handed over to the petitioner by DDA official(s) themselves. However, apart from the contradiction in the stand, it is pertinent as observed above, that if the letter had been indeed handed over to the petitioner by the officials of DDA, the petitioner would have been able to tell the name or designation of the concerned official but it has not been so stated. Moreover the petitioner has not even clearly stated whether it was one official or several officials who had allegedly handed over the letter to the petitioner. As such it would be a matter of trial and as observed by the Ld. CMM it would be open for the petitioner during trial to show that he got the forged letter from co-accused as was contended before the Ld. CMM or from the DDA officials as is now contended, without being aware of its authenticity.
44. It was then argued that the petitioner would not have deposited the money in the account of DDA and would not have submitted the letter to DDA if he had any doubt about the authenticity of the letter but that is neither here nor there as the very basis of the case of the prosecution is that the petitioner, Criminal Revision Page 46 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
having failed to get possession of the land through legal channels had entered into a criminal conspiracy and submitted a representation along with the challans for the payment and copy of a forged demand cum allotment letter and even otherwise the same would constitute the defence of the petitioner. It was also argued that it was just and natural and logical that the petitioner being the rightful and lawful owner by virtue of having title documents in his favour, the letter was issued in his name and the fact that the petitioner was keeping the original of the alleged forged allotment letter with him under his possession and the same was recovered from his house established that the same was received by him from the concerned DDA officials but no such presumption can be drawn at this stage. It was argued that there was also no material to show that the petitioner had any doubt regarding the authenticity and genuineness of the alleged forged allotment letter but that would also be a matter of trial. It was then contended that the Ld. CMM had ignored that there was no need for the petitioner to go to the INA Market near office of DDA with other accused persons if he had to submit a forged letter as alleged and he would rather have gone alone and the fact that he went with others showed that he went to get genuine and authentic document but that would again constitute the defence of the petitioner. It was also submitted that the Ld. CMM had ignored the fact that the petitioner would not have entered into Agreement to Sell, Supplementary Agreement to Sell with Kewal Joshi and Criminal Revision Page 47 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
paid Rs.1.2 crores if he was not sure of obtaining the title documents of the land in question in his favour but the same was prior to the present case. It was also argued that the petitioner was infact the victim and had been cheated in the present but there is nothing to show that the petitioner had lodged any complaint in this respect and the same would also constitute the defence of the petitioner and cannot be gone into at this stage.
45. As per the case of the prosecution, the copy of the forged demand cum allotment letter was submitted by the petitioner along with representation and challans before the office of DDA and further he was found in possession of the original of the said letter. As such no fault can be found with the observation of the Ld. CMM that prima facie it emerged that the petitioner used the forged document in an attempt to cheat DDA and was in possession of its original letter for the purpose of cheating. It was contended on behalf of the petitioner that even if it was presumed that the alleged demand cum allotment letter was a fake/ forged document, the author of the forgery had not been identified and it was not the case of the prosecution that the petitioner was the author of the alleged forgery and the stamp stated to have been affixed on the alleged fake demand cum allotment letter had not been recovered. It was submitted that if the offence punishable under Section 471 was not made out, the offence punishable under Section 474 IPC was also not attracted being a sub-set of the same. It was argued that in the absence of any prima facie Criminal Revision Page 48 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
evidence against the accused to the effect that the said document was forged to the knowledge of the petitioner, it could not be concluded that the offence of forgery had been committed by the petitioner. In this regard, reliance was placed on the judgments in Panchanan v. State 1953 Crl.L.J.1826 (Calcutta); P.M. Krishnan v. Neelkanth Mahadeo Kamble 1999 (1) MLJ 957 and Luchmi Singh v. Emperor 1918 (19) Cri.L.J. 344. However, the petitioner has only been charged for the offences under Sections 471 and 474 IPC which refer to using as genuine a forged document and having possession of a document knowing it to be forged and intending to use it as genuine respectively and not in respect of offences for committing forgery. Further the argument that the petitioner had no knowledge that the document was forged would constitute his defence and on that averment, he cannot be discharged in the instant case. In these circumstances, offences u/s 471 and 474 IPC would prima facie be attracted against the petitioner.
46. It was next argued on behalf of the petitioner that even the offence under Sections 420/511 IPC was not made out as the basic ingredients of the offence of cheating i.e. inducement, dishonest intention at the very beginning were missing altogether and thus the offence of attempt to commit the alleged offence of cheating was not made out. It was argued that the petitioner was the rightful and lawful owner by virtue of title documents in his favour and had been pursuing the matter for his genuine claims and was also pursuing Criminal Revision Page 49 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
alternate civil remedies seeking possession of the land in question before the courts of appropriate jurisdiction and also preferred Execution Petition before the Hon'ble High Court in respect of the land/ property in question. Moreover the Hon'ble High Court had directed the DDA to return the money deposited by the petitioner with the DDA along with interest accrued thereon. It was submitted that there was no allegation of any inducement or delivery of property by the complainant or anyone else as a result of any inducement and there was no material on record to show dishonest intention or that wrongful loss had been caused to any one or that the petitioner had made any wrongful gain in the present transaction. Reliance in this regard was placed on the judgments in Devender Kumar Singla v. Baldev Krishan Singh AIR 2004 SC 3084 and Hridaya Ranjan Prasad Verma v. State of Bihar 2000 Crl. L.J. 2983. However, again in the instant case, the case of the prosecution is that the petitioner on the basis of a forged demand cum allotment letter attempted to get possession and thereby attempted to cheat DDA and was also in possession of the original letter which would also prima facie show the dishonest intention. If there was delivery of property, then the offence of cheating would have been complete whereas the petitioner has been charged only for the offence of attempt to cheat. As such prima facie, even the offence under Sections 420/511 IPC would be attracted against the petitioner.
47. It was then contended that the offence of conspiracy was also not made Criminal Revision Page 50 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
out and reliance in this regard was placed on the judgment of the Hon'ble High Court in State (Through) CBI v. Someshwar and Ors. 120 (2005) LT 324; Subramanian Swamy v. A. Raja (2012) 9 SCC 257 and Yogesh v. State of Maharashtra (2008) 10 SCC 394 wherein it was observed:
"23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
48. In the instant case it is seen that the accused Shri Anil Wadhawan and Shri Gurpreet Singh were discharged vide the impugned order and the order discharging them has not been challenged. Further Shri Atul Khanna was also discharged and though his discharge was challenged, it has been held hereinabove that he had been rightly discharged. However, there are allegations against Ms. Rewa Kumar who was declared a proclaimed offender and that she actively participated in the matter from July, 2007 and visited the LG House along with the representation of Shri Lalit Mohan Madhan to get allotment of the land and she was also present around the INA market where Criminal Revision Page 51 of 52 CR No. 440396/16 "CBI vs. Atul Khanna"
CR No. 440347/16 "Lalit Mohan Madhan Vs. State"
DDA office is located on 15.10.2007. As such, there is enough material on record to prima facie make out the offence of criminal conspiracy against the petitioner as well.
49. In view of the above observations, no infirmity, illegality or impropriety can be found in the impugned order dated 26.2.2016 by which Shri Atul Khanna was discharged and it was held that prima facie a case u/s 471/471/120B/420/511 IPC was made out against the accused Lalit Mohan Madhan and a well-reasoned order had been passed by the Ld. CMM after due application of judicial mind. Accordingly both the revision petitions- one filed by CBI against Shri Atul Khanna and the other filed by Shri Lalit Mohan Madhan are without merits and are dismissed.
Copy of the order be placed in both the files.
Trial Court Record be sent back along with copy of this order. File be consigned to record room.
Announced in the open court on 19th day of June, 2020.
(GEETANJLI GOEL) ADDL. SESSIONS JUDGE (SFTC) SOUTH WEST: DWARKA COURTS NEW DELHI Criminal Revision Page 52 of 52