Delhi District Court
22. In Another Case Titled As Mousam ... vs . State Of West on 19 October, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
PRESIDED BY : SH. DEEPAK VATS
STATE V MAHINDER SINGH & OTHERS
FIR No. 58/00
Police Station: Dabri
Under Section: 420468/471/506II/34 IPC
Date of institution : 27.01.2005
Date of reserving : 11.10.2019.
Date of pronouncement : 19.10.2019
JUDGMENT
a) Serial number of the case 427624/16
b) Date of commission of offence 26.03.1999
c) Name of the complainant Sh. Radhey Shyam Verma
s/o Sh. Sumer Chand Verma
r/o WS 231A Gali no. 7 Sadh
Nagar Palam, New Delhi.
d) Name, parentage and address 1. Mahender Singh
of the accused s/o Sh. Ved Pal
r/o WZ 302 Gali no. 8 Sadh
Nagar, New Delhi.
2. Narender Singh
s/o Sh. Ved Pal
r/o WZ 302,Gali no. 8 Sadh
Nagar, New Delhi.
3. Ravinder Singh
s/o Sh. Ved Pal r/o WZ 302
Gali no. 8 Sadh Nagar, Delhi.
4 Surender Singh s/o Sh. Ved
Pal r/o WZ 302 Gali no. 8
Sadh Nagar, Delhi. (Proceed-
STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 1
ings against him stand
abated vide order dated
26.02.2014)
e) Offence complained of Section 420468/471/506II/34
IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 19.10.2019
BRIEF REASONS FOR THE JUDGMENT
1. Briefly stated, the case of the prosecution is that on 26.03.1999 all ac- cused persons Mahinder, Ravinder, Narender and Surender in furtherance of their common intention dishonestly induced Sh. Om Parkash Verma and complainant Radhey Shyam Verma to part with Rs. 7,80,000/- on the pretext of selling H. No. WZ 302 Gali no. 8 Sadh Nagar ( 80 Gaz) New Delhi a plot within the jurisdiction of PS Dabri which was already mortgaged with Delhi Finance Corporation and Rs. 7,80,000/- were given to all the accused persons by complainant and his relative Om Parkash Verma. It is further alleged that on the above-mentioned date, time and place all accused in furtherance of their common intention forged the docu- ments i.e. GPA, Affidavit etc pertaining to plot / house in question which was al- ready mortgaged with Delhi Finance Corporation. Further, all accused persons in furtherance of their common intention forged documents as genuine knowing them to be forged. Further all accused persons in furtherance of their common intention criminally intimidated the complainant by threatening him to kill. Thus, it is alleged that accused persons committed offences punishable u/s 420468/471/506II/34 IPC. STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 2
2. Charges were framed against the accused Mohinder Singh, Narender Singh, Surender and Ravinder Singh under Section 420468/471/506II/34 IPC vide order dated 23.08.2010 to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined nine witnesses.
4. PW 1 Sh. Radhey Shyam Verma was the complainant in the present case. He was examined u/s 299 Cr. PC as the accused persons were declared PO before they were apprehended in the present case. Reiterating the averments made in the complaint the PW1/ complainant stated that on 26.03.1999, he had purchased a built up house of about 80sq. Yds out of house no. WZ 302,Gali no. 8, Sadh Nagar built up on 200 sq yds. He deposed that he had purchased the said house from the accused Narender Singh for a consideration of Rs. 7,80,000/-. The document GPA, Agreement to Sell, Affidavit and receipt of Rs. 1,20,000/-, Will were executed by accused Narender Singh and the same were witnessed by the ac- cused Mahender Singh. The receipt of only Rs. 1,20,000/- was prepared and the rest of the amount was paid to all the four accused persons by his fufa/PW9 Om Parkash Verma and himself at their house i.e. WZ 302, Sadh Nagar. Later on Sh. Om Parkash Verma had executed a GPA in PW 1's favour to take care and look af- ter the property in question. He proved the receipt of documents to police vide memo, he also placed on record Ex. PW 1/B (GPA), Ex. PW 1/C ( Agreement to STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 3 Sell), PW 1/D ( Affidavit), Ex. PW 1/E ( Receipt) and PW 1 Ex. PW 1/F ( Will) all dated 26.03.1999. Further, he placed on record GPA in his favour executed by PW9 Om Parkash Verma dated 23.07.1999 as PW 1/G. The documents regarding the previous ownership were also given by the accused persons, the same were marked X colly. He stated that the vacant peaceful possession of the property in question had also been handed over to him and PW 9 by accused persons. How- ever, on 06.11.1991 he saw that the accused Surender Singh, Narender Singh and Ravinder Singh were demolishing the wall of the property in question. He asked the accused persons not to do the same however, they did not stopped and quarreled with him. When the respectable persons from the locality intervened in the matter and got the same compromised with the condition that accused persons would return all the consideration amount of Rs. 7,80,000/- to them.
5. He further stated that on 09.11.1999 when a Panchayat was held at the house of accused persons, it was revealed that they had taken a loan of Rs. 16,40,000/- from Delhi Finance Corporation on the property in question. The accused persons assured him that they would return all the money within 15 days, however, they had not adhered to the promise and when he demanded the money they threatened to kill him.
6. He further stated that the property in question was mortgaged by the accused persons to DFC and the same was not disclosed to him by them. He also stated that the accused persons were trying to take loan from Rajasthan Finance STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 4 Corporation Bharatpur for amount of Rs. 14,10,000/- keeping the property in question as security, the said amount was already sanctioned by the said corporation however, he got it withheld by sending two telegrams to the said corporation dated 07.11.1999. He stated that accused persons forged two sets of documents in respect of the same property and cheated him and PW 9 the said amount as they had used the documents for taking loan from DFC and RFC. He further alleged that since he was authorized by his fufa PW 9 , Sh. Om Parkash Verma, to take care and look after the affair of the property, he made a complaint in this regard to the police vide complaint Ex. PW 1/H.
7. PW2 HC Bhoop Singh is the duty officer, who proved copy of FIR and endorsement vide Ex. PW 2/A and Ex. PW 2/B.
8. PW 4 Ct. Kirori Mal has proved the seizure memo of property documents vide Ex. PW 4/A.
9. PW 5 Inspt. Avtar Singh was the IO in the present case. He deposed regarding the investigation conducted by him. He placed on record the documents related to the loan taken by M/s Arya Plastic Supply ( Business concern being run by the accused persons) from DFC i.e. notice regarding deposit of dues as Mark A. Notice for recovery of loan dated 18.11.1998 as Mark B, mortgage Deed Mark C, indenture dated 30.09.1997 mark D, agreement related to deposit of title of mort- gage deed as mark E, letter dated 20.07.1999 of Manager Rajasthan Finance Cor- STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 5 poration as mark F, telegram to stop the loan payment dated 07.11.1999 as mark G.
10. In his cross-examination he admitted that he did not prepare any seizure memo regarding the seizure of documents placed on record by him. He further admitted that there is no document available on file which could show that he has done any investigation in the present case.
11. PW 7 Sh. S. C. Aggarwal, Deputy General Manager, has placed on record notice for recovery dated 02.07.2011 as mark A.
12. PW 9 Sh. Om Parkash Verma, the person in whose favour the accused persons transferred the property in question vide the alleged forged documents, did not support the case of the prosecution. He deposed that he did not know any- thing about the case.
13. In his cross examination also he did not support the case of the prose- cution and deposed that he did not have any knowledge of the alleged transaction.
14. Rest of the witnesses are formal in nature and they need not to be dis- cussed for the purpose of the judgment.
15. Thereafter PE was closed. Statement of accused persons u/s 313 Cr. PC was recorded in which they denied the allegations made against them and claimed that they have been falsely implicated. Accused persons opted not to lead defence evidence and thereafter matter was listed for final arguments. STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 6
16. At this stage it is relevant to note that accused Surender Singh expired during trial and proceedings against him stood abated vide order dated 26.02.2014.
17. Final arguments were advanced by the parties. I have heard the submissions of Dr Yadvendra Singh, learned Assistant Public Prosecutor for the State and Ld counsel for accused persons and perused the record carefully.
18. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused beyond reasonable doubts. He further submitted the prosecution has proved by cogent and reliable evidence that the accused persons forged the transfer documents Ex. PW 1/B to Ex. PW 1/F and cheated the complainant Sh. Radhey Shyam and PW 9 Om Parkash Verma Therefore, accused persons be convicted as per law.
19. Ld. Defence counsel for accused persons has submitted that the main witness of the prosecution PW 9 has not supported its case. He further stated that there is no conclusive evidence against the accused persons. He also stated that property in question was not mortgaged to DFC. He has also argued that the prosecution has not proved the documents as per the Indian Evidence Act and thus accused persons are entitled to be acquitted.
20. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convinc- ing evidence. Since, there is a strong presumption of innocence in favour of the ac- cused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 7 accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Ac- cused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
21. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
22. In another case titled as Mousam Singh Roy & ors. vs. State of West Bengal (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
23. The most important witness of the prosecution were PW 1 and PW 9. The alleged forged document Ex. PW 1/B (GPA), Ex. PW 1/C ( Agreement to Sell), PW 1/D ( Affidavit), Ex. PW 1/E ( Receipt) and PW 1 Ex. PW 1/F ( Will) all dated 26.03.1999 were executed by the accused Narender Singh in favour of the PW 9 Sh. Om Parkash Verma, whereby the property in question i.e. House no. WZ-302, Gali no. 8 Sadh, Nagar ( 80 Gaz.) (referred to as property in question in the present case) was transferred. Thereafter the interest in the said property was transferred by the PW 9 in favour of the complainant / PW 1 vide GPA Ex. PW 1/G dated 23.07.1999. Thus in the opinion of this court, the most important witness of the prosecution was PW 9 in favour of whom the alleged forged documents were STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 8 executed. PW 1 came into the picture only after the said transaction dated 26.03.1999, thus, if at all the alleged cheating and forgery was first committed against the PW 9 by the accused persons.
24. In this background the testimony of PW 9 bears huge significance. Looking at the deposition of the PW 9, the court finds that he has not at all supported the case of the prosecution and his testimony is sufficient to raise grave and strong doubt about the case of the prosecution. He first of all stated that he does not know anything about the case and he sought permission to refresh his memory by looking at the documents placed on record. His request was allowed by the court in his examination dated 18.12.2017. Thereafter he stated that he could not identify the accused Narender who allegedly executed the forged documents in favour of PW 9. He also stated that he does not remember whether any persons illegally possesses the property in question. His cross examination is also very important. The relevant extract of his cross examination is as follows :-
"Witness failed to identify him as person namely Mohinder who signed the said documents. I do not have knowledge of the fact that accused Surender Singh and Narender Singh and Ravinder Singh had illegally possessed the property in question on 06.11.1999. I also have no knowledge of the fact that there was loan of amount of Rs. 14,40,000/- from DFC and loan of amount of Rs. 14,10,000/- from Rajasthan Finance Cooperation Bharat Pur, Rajasthan. I also have no knowledge of the fact that these amount has been taken by the accused persons fraudulently. I also have no knowledge of the fact that accused persons had also executed a registered sale deed in favour of Mozi Devi."
STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 9
25. Bare perusal of the above abstract clearly shows that nothing in his testimony reveals any culpability on the part of the accused persons or that they executed forged documents in favour of the PW 9 or that they cheated the complainant and PW 9 or that they dispossessed the complainant from the property in question and threatened him. In his cross examination dated 05.02.2018, PW 9 failed to identify the accused persons as stated above. This clearly shows that the testimony of most important witness of prosecution has not been of any help to its case.
26. Another important witness of prosecution was PW 1 i.e. complainant Radhey Shyam. It is noteworthy that he was only examined in chief under section 299 Cr. PC. and could not be cross examined as after apprehension of the accused persons when the matter was fixed for his cross examination, it came on record that he had already expired.
27. Ld. Counsel for accused persons argued that since the accused persons have not got any opportunity to cross examine the PW 1, testimony of PW 1 cannot be read in evidence against accused persons. However, Section 299 Cr. PC clearly provides that where the witness is examined under Section 299 Cr. PC, in the absence of the absconded accused, then after the apprehension of the accused persons, if it is found that the witness has expired then the testimony of witness can be read in evidence. Thus, there is no weight in the contention of the Ld. Counsel for accused persons that the testimony of PW 1 cannot be read in STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 10 evidence. PW 1 in his examination under Section 299 Cr. PC, reiterated the averments made in the complaint, and thus, supported the case of the prosecution. However, as stated earlier, it must be borne in mind that the most important witness of the prosecution was PW 9, with whom the alleged transaction vide alleged forged documents was entered into by the accused persons on 26.03.1999 and complainant/ PW 1 came into picture only on 23.07.1999 i.e. after execution of GPA in his favour by PW 9 qua the property in question. In the considered opinion of this court, keeping in the mind the deposition of the PW 9 (who has not supported the case of the prosecution) holding accused persons guilty solely on the basis of the statement of the PW 1 under Section 299 Cr. PC when he was not cross examined would not be safe.
28. Another important fact that may be noted is that vide order dated 21.07.2006, it has come on record that the matter was compromised / settled between the complainant /PW 1 and the accused persons and compromise deed was also filed by the parties. Thus the testimony of PW 1 being read with that of PW 9 is insufficient to prove the case of the prosecution.
29. Taking it further, in the opinion of this court, the prosecution has neither proved that the property in question was mortgaged to DFC by the accused persons before the said property was transferred to PW 9 by them vide document dated 26.03.1999.
STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 11
30. The prosecution has examined witness PW 7 and PW 8 from DFC to prove the alleged mortgaged deed. None of the said witness placed the record the said mortgaged deed between the accused persons and DFC. PW 7 placed on record notice dated 02.07.2001 which was marked as Mark A, issued upon M/s Arya Plastic Company claiming a sum of Rs. 10,52,912. The said document marked as Mark A nowhere shows that the property in question was mortgaged by the accused persons. PW 8 has also not placed on record any document showing the mortgage.
31. Copy of the mortgage deed has been placed on record by the PW 5 Inspt. Avtar Singh which was marked as Mark C. However, he admitted in his cross examination that he did not prepare seizure memo regarding any documents seized by him. He also admitted in his cross examination that there was not even a single document in the judicial file which could show that he had done investigation in the present case. This raises grave doubt about the custody and production of mortgage deed marked as Mark C by PW 5. Further, the document mark C is only a copy of the original mortgaged deed. Thus, the same is secondary evidence. The prosecution has not led any foundation regarding the non production of original mortgage deed in terms of Section 64 and 65 of Indian Evidence Act. Section 64 of Indian Evidence Act provides the documents must be proved by the primary evidence. Section 65 of Indian Evidence Act further provides that secondary evidence of any documents may be produced in the court only when the condition mentioned in Section 65 of Indian Evidence are met and not otherwise. Thus the STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 12 prosecution should have proved that document i.e. original mortgage deed has been lost or destroyed or same could not be produced for any reason not arising because of default on the part of the prosecution. The above condition mentioned in Section 65 of Indian Evidence Act has not been met by the prosecution and thus in the opinion of this court the document mark C which is only a copy of the original mortgage deed cannot be read in evidence. This view seems to be reasonable more so because there are doubts regarding the custody of document mark C and other documents placed on record by PW 5 Inspt Avtar Singh as he has himself admitted that he has not prepared any seizure memo regarding the said document.
32. Thus, the only conclusion that may be drawn from the above discussion that the prosecution has completely failed to prove that the property in question was mortgaged by the accused persons before the same was transferred to PW 9 vide document dated 26.03.1999.
33. The sum and substance of the above discussion is that the prosecution has not proved that accused persons committed in cheating upon PW 9 or PW 1 , that document Ex. PW 1/B to Ex. PW 1/F were forged by the accused persons, that the property in question was mortgaged to DFC before the same was transferred to PW 9 by the accused persons and that accused persons criminally intimidate the complainant. Therefore, I do not have any option but to pronounce the accused Mohinder Singh, Narender Singh and Ravinder Singh not guilty. Accordingly, they are acquitted of all the charges punishable under section STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 13 420468/471/506II/34 IPC.
34. Bail bonds under section 437A Cr. PC of accused persons already furnished.
35. Documents, if any be returned to the rightful person. Endorsement, if any be cancelled. Bail bonds stand canceled. Superdignama if any, be cancelled.
36. File be consigned to record room.
Digitally signed byAnnounced in open Court on 19.10.2019.
DEEPAK DEEPAK VATS
VATS Date: 2019.10.19
01:27:40 -0400
(DEEPAK VATS)
Metropolitan Magistrate-05 (South-West)
19.10.2019
STATE V Mahender Singh and Others PS : Dabri FIR no. 58/00 14