Delhi District Court
State vs Ajay Sharma on 30 November, 2024
FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 38956/2016
Unique Case ID No. -: DLND020000292005
FIR No. -: 409/2004
Police Station -: Connaught Place
Section(s) -: 380/420/448 IPC
In the matter of -
STATE
VS.
AJAY SHARMA
S/o Sh. Vishwa Bandhu Sharma,
R/o B1/43, Malviya Nagar, New Delhi.
.... Accused
1. Name of Complainant : Gandharv Saini
2. Name of Accused : Ajay Sharma
Offence complained of or
3. : 380/420/448 IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 20.02.2004
6. Date of Filing of chargesheet : 10.08.2005
7. Date of Reserving Order : 25.11.2024
8. Date of Pronouncement : 30.11.2024
9. Final Order : ACQUITTAL
Page no. 1 / 29
FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Mukesh Sinha, Ld. Counsel for accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
1. Briefly put, the case of the prosecution is that on 20.02.2004, at time unknown, at P-4, Connaught Place within the jurisidiction of PS Connaught Place, accused committed tresspass by entering into the shop which was in possession of complainant Gandharv Saini and also put locks on the shop of complainant with intent to annoy or insult the complainant, and he committed theft of articles i.e. readymade garments belonging to the complainant and also cheated the complainant by way of taking of Rs. 5 lakhs as security amount of the said shop of which accused was not the owner and sublet the same to the complainant for the amount of Rs. 26,500/- as rent per month and accused also failed to give the copy of rent agreement, receipt of security amount as well as of rent receipt and thus accused committed the offences u/s 380/420/448 IPC of the Indian Penal Code. (hereinafter "IPC").
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused person Ajay Sharma was filed u/s 380/420/448 IPC IPC. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, copy of charge-sheet were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under sections 454/380/411 IPC was framed against accused Ajay Sharma.
PROSECUTION EVIDENCE
4. In order to prove its case against the accused, the prosecution examined Page no. 2 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place 15 witnesses. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
4.1. PW1/Hari Kishan, was the neighbouring shopkeeper, who deposed that one day in the year 2004, in the night hours, he saw accused Ajay Sharma taking out the garments from his neighbouring shop and an altercation ensued between the accused and the complainant. He failed to depose further in favour of the prosecution. Since the witness was resiling from his previous statement on record, Ld. APP for the State sought permission to cross-examine the witness. During his cross-examination by the Ld. APP for the State, he denied the suggestion that Gandharv Saini was having separate portion for selling the garments in the shop. No cross-examination of PW1/Hari Kishan was conducted, despite opportunity given to the accused.
4.2. PW2/SI Sarvesh, deposed that on 20.07.2004, upon receiving a complaint of one Gandharv Saini, he got registered the FIR. No cross-examination of PW2/SI Sarvesh was conducted, despite opportunity given to the accused.
4.3. PW3/Sh. Pradeep Gupta, was the neighbouring shopkeeper, who deposed that one morning, few years back, when he came to open his shop, he found that the garments were lying outside shop no. P-4 and the shop was locked. He failed to depose any further in favour of the prosecution. Since the witness was resiling from his previous statement on record, Ld. APP for the State sought permission to cross-examine the witness. During his cross-examination by the Ld. APP for the State, he admitted that on the date of the incident, he saw the accused and the complainant in altercation with each other. No cross-examination of PW3/Pradeep Gupta was conducted, despite opportunity given to the accused.
4.4. PW4/Shailender Gupta deposed that Gandharv Saini is the friend of his Page no. 3 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place father and is known to him since long. He stated that on 22.9.03, he accompanied Gandharv Saini and Shakuntala Saini and some of their relatives to shop no. P4, con.
Place, New Delhi where the accused met them. He stated that since Gandharv Saini wanted to take the said shop on rent, therefore an oral agreement of tenancy was arrived between the accused and Gandharv Saini, whereby the accused agreed to give the said shop on rent on the monthly rent of Rs.26,500/- and Gandharv Saini handed over Rs. 5 lacs to the accused in his presence. He stated that upon being asked for execution of rent agreement in writing, the accused assured Gandharv that he will execute the same later on. He was duly cross-examined by the Ld. Counsel for the accused.
4.5. PW5/Ms. Shakuntala Saini deposed that Gandharv Saini is her real brother. She deposed that on 22.9.03, she accompanied Gandharv Saini and Shailender Gupta and some other persons to shop no. P4, con. Place, New Delhi where the accused met them. She stated that her brother wanted to take the said shop on rent, therefore an oral agreement of tenancy was arrived between the accused and Gandharv Saini, whereby the accused agreed to lease out the said shop on monthly rent of Rs.26,500/- and Gandharv Saini handed over Rs. 5 lacs to the accused in her presence. She stated that Gandharv Saini asked for execution of rent agreement in writing, the accused assured him that he will execute the same later on. She was duly cross-examined by the Ld. Counsel for the accused.
4.6. PW6/Aman Gupta was examined, who deposed that he joined the business run by Gandharv Saini, pertaining to sale of ready made garments situated at P-4, Con. Place, New Delhi as salesman. He stated that he was told that the shop was rented out to the complainant by the accused. He stated that on 06.02.2004, the locks of the shop were changed and some of the articles of the shop were scattered outside the shop. He deposed that with the intervention of police, the articles were again kept inside the shop after opening the locks and the possession was restored to Page no. 4 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Gandharv Saini. He stated that again on 20.02.2004, the locks of the shop were changed and some of the articles of the shop were scattered outside the shop. He failed to remember if accused was present outside the shop in the morning of 20.02.2004. Since the witness was resiling from his previous statement on record, Ld. APP for the State sought permission to cross-examine the witness, which was allowed. During cross-examination by Ld. APP for the State, the witness admitted that he saw the accused standing outside the shop on the date of the incident. However, at the stage of cross-examination by the Ld. Counsel for the accused, the witness could not be traced despite sufficient efforts by the office of DCP and was resultantly dropped from the list of witnesses by the Ld. APP for the State on 11.11.2022.
4.7. PW7/Ct. Vikas proved the photographs captured by him on the date of the incident Ex.P7A to Ex.P7D and their negatives Ex. P7E (colly). No cross- examination of PW7/Ct. Vikas was conducted, despite opportunity given to the accused.
4.8. PW8/Prabhal Dhingra proved the invoice Mark PW8/A belonging to Jagdish General Store at shop no. 19-20, Nehru Bazar, Pahar Ganj, bearing no. 16412, issued by him in favour of Gandharv Saini. He was duly cross-examined by the Ld. Counsel for the accused.
4.9. PW9/ Complainant Gandharv Saini was examined, who deposed that he was introduced to the accused in the year 2003 as he was in search of a rented shop in Connaught Place. He stated that the accused represented to him that he is having one shop bearing no. P4 at Connaught Place and agreed to give the whole portion of the shop to him on monthly rent of Rs. 26,500/-. He stated that he paid Rs. 5 Lacs to the accused as security/ pagdi in the presence of Mr. O.P. Sharma and his sister, Shakuntala Saini at the shop and thereafter, he started running his business Page no. 5 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place therefrom. He stated that he got clothings from different vendors to be sold at his shop. He deposed that upon asking, the accused assured that he shall execute a written agreement with respect to tenancy of the shop within 2-3 days, however the accused failed to do so. He deposed that later on, he came to know that accused was not the owner of the shop and in fact his father (who was since expired) was also a tenant in the said shop. He stated that on 06.02.2004, the accused committed trespass in his shop and kept his articles outside the shop and took illegal possession of the said shop in respect of which he made a complaint to the police and case FIR по. 62/2004 registered at PS Connaught Place. He stated that with the intervention of police, the possession of the said shop was restored to him. He stated that on 20.2.2004, he found the accused standing outside his shop and found that the locks of his shop have been changed. Upon asking the accused, he told him to run away, pursuant to which, he called his sister, Shakuntla Saini, who reached at the spot. He also discovered that some of the articles were also stolen/removed by the accused. He stated that he made a complaint Ex.PW 9/A to the DCP, Parliament Street, New Delhi upon which the present case was registered. He stated that he had filed a civil suit for injunction against the accused which was decreed in his favour, however during the execution proceedings, mother of the accused had filed objections which were allowed by the execution court. He stated that he had preferred an execution first appeal before Hon'ble High Court of Delhi which was still pending. He stated that the original bills regarding his purchase of garments for selling at the shop were filed alongwith civil suit. Therefore, he produced certified copies of bills, which were filed and exhibited in his testimony recorded in case FIR no. 62/2004, PS Connaught Place Ex.PW 9/X1 (OSR) to Ex.PW 9/X27 (OSR) towards the purchase of articles kept inside the shop during the relevant period. He was duly cross- examined by the Ld. Counsel for the accused.
4.10. PW10/Raj Kumar Chawla was examined, who proved the bill Ex.PW9/X2 issued by his shop in the name and style of Chawla Store at 2/21, Nehru Page no. 6 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Bazaar, Pahar Ganj, New Delhi, in his handwriting, for the sale of nine locks to the complainant. No cross-examination of PW10/Raj Kumar Chawla was conducted, despite opportunity given to the accused.
4.11. PW11/HC Badan Singh deposed that during the course of investigation, he served notice u/s. 91 Cr.P.C. to different shopkeepers at Gandhi Nagar and Paharganj. He stated that Ct. Vikas took the photographs of the shop No. P-4, Connaught Place, New Delhi in his presence and the presence of the IO. No cross-examination of PW11/HC Badan Singh was conducted, despite opportunity given to the accused.
4.12. PW12/Surender Pal Singh proved the execution of bills Ex.PW9/X4 to Ex.PW9/X14, issued by his shop in the name and style of Rajan Brothers, bearing no. 7008, Sahni Market, Ashok Gali, Gandhi Nagar, Delhi, bearing his signatures, for sale of garments to the complainant. No cross-examination of PW12/Surender Pal Singh was conducted, despite opportunity given to the accused.
4.13. PW13/HC Sanjay identified the accused and proved the arrest memo Ex.PW13/A and personal search memo Ex.PW13/B. No cross-examination of PW13/HC Sanjay was conducted, despite opportunity given to the accused.
4.14. PW14/Sl Dalbir Singh was examined who proved the fact of registration of FIR Ex.PW14/A (OSR) and his endorsement Ex.PW14/B on the rukka. No cross-examination of PW14/Sl Dalbir Singh was conducted, despite opportunity given to the accused.
4.15. PW15/Inspector Satyabir Singh was examined who deposed that the present case file was marked to him for further investigation. During the course of investigation, he verified the invoices/bills of different shops submitted by the Page no. 7 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place complainant and recorded the statement of the witnesses pertaining to the aforesaid invoices u/s 161 Cr.PC. He stated that he went to the place of incident situated at Shop no.4, P-Block, Connaught Place, New Delhi and recorded statements of the neighbouring shopkeeprs u/s 161 Cr.PC. He formally arrested the accused vide arrested memo Ex.PW13/A. He also conducted personal search of the accused vide personal search memo Ex.PW13/B. He stated that the accused was released on bail as he had secured anticipatory bail from the Court. He stated that despite sincere efforts, case property could not be recovered. He stated that after completion of the investigation, he prepared the charge-sheet and submitted the same before the concerned Court. He correctly identified the accused. He was duly cross-examined by the Ld. Counsel for the accused.
STATEMENT OF ACCUSED
5. At request of Ld. APP for the State, prosecution evidence was closed on 11.11.2022, after witnesses Raju and Aman were dropped from the list of witnesses as they could not traced despite sustained efforts from the DCP. Thereafter, statement of the accused Ajay Sharma was recorded u/s 313 Cr.PC on 08.08.2023, wherein he denied the case of the prosecution and stated that he has been falsely implicated in the present case. He stated that the shop in question was rented out by the original owner VV Gujral and his heirs to his family in the year 1949 and the same was rented out to his mother, Pushpa Sharma. He stated that the complainant was only working as a salesman on commission basis, who was engaged by his maternal uncle, O P Sharma. He stated that the complainant had some grievance relating to commission with his late mother and therefore, he filed this false case against him to seek revenge upon his late mother. Since the accused chose to lead evidence in his defence, therefore, matter was listed for defence evidence.
Page no. 8 / 29FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place DEFENCE EVIDENCE
6. In his defence, accused examined a total of eight witnesses, which are discussed herein below.
6.1 DW1/Mohd. Faisal, Assistant Section Officer, Commercial Department, NDMC, New Delhi brought the record (demand collection register) pertaining to M/S New Man & Co. Shop No. 4/90, Connaught Place, New Delhi against consumer No. 1000523 for the period Jan 2003 to Jan 2005 (Ex. DW1/A). From the record, he deposed that during the aforesaid period, two payments were reflected - first payment was made on 23.10.2003 and the second payment was made on 27.12.2004. He was duly cross-examined by the Ld. APP for the State.
6.2 DW2/Sh. Karan Malik, Deputy Branch Manager, ICICI Bank, Connaught Place, New Delhi brought the record (Statement Account No. 000705012451 in the name of M/s New Man & Co. from 01.04.2005 to 21.10.2015) Ex. DW2/A (running pages 1 to 9). He also brought the record (copy of Account opening form and KYC documents of account No. 000705012451 in the name of M/s New Man & Co.) Ex. DW2/B (running pages 1 to 16), reflecting Ms Pushpa Sharma as its proprietor as well as authorised signatory. He was also duly cross- examined by the Ld. APP for the State.
6.3. DW3/Sh. Krishan Kumar, GSTO, ward-3, GST, Department, Vyapar Bhawan, ITO, New Delhi was examined, who also brought the record pertaining to M/s New Man & Co. (registration No. 07480025331), 90 Block, Cannaught Place, New Delhi i.e. certified copies of dealer profile, certified copy of returns available on DVAT portal, Certified copy of cancellation order and lifting of weeded out records/waste paper from the department of trade and taxes dated 08.08.2022 Ex. DW3/A (Colly) (running pages 1 to 24). He despond that as per the aforesaid record, the proprietor/owner of Ms/ New Man & Co. was Pushpa Sharma. He could not Page no. 9 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place produce any record prior to 2005 because such record being manual record, had been weeded out. He was also duly cross-examined by the Ld. APP for the State.
6.4. DW-4/Ms. Ritika Bhandari, Deputy Manager, State Bank of India, P Block, Cannaught Place, New Delhi brought the record pertaining to M/s New Man & Co. 4/90, Connaught Circus, New Delhi i.e. certified copy of account account statement for account bearing no. 01050020020 pertaining to State Bank of Bikaner and Jaipur (10016), from dated 13.02.1999 to 16.02.2005 Ex.DW4/A (running page 1 to 3). She deposed that account opening form was not traceable in the system, and that the account belonged to State Bank of Bikaner and Jaipur. She was also duly cross-examined by the Ld. APP for the State.
6.5. DW5/Sh. Subhash Chander Singh @ Subhash Chander, entered the witness box supported by authorisation by the GM Central MTNL (Ex. DW5/A). He brought the original summoned record i.e., certified copy of customer account form Ex. DW5/B (colly running from pages 01 to 16). As per the record, he deposed that the subscriber of telephone No. 23745608, which was installed in the year 1986, was M/s New Man & Company, 4/90, Connaught Circus, New Delhi-110001. As per the record, he deposed that Pushpa Sharma preferred an application dated 16.07.2007 for transfer of telephone 23745608, CA No. 2021735608, on account of death of Sh Vishwbandhu Sharma in the year 1998. As per record, he deposed that the connection was transferred and renamed in the name of New Man & Company (Prop. of M/s New Man & Company Pushpa Sharma) in the year 2007. He also brought certified copy of the intimation letter, OB letter dated 15.01.1986, application dated 09.06.1983, demand note dated 09.06.1983, specimen signature sheet, file cover and FRS Register (Ex. DW5/C) (colly running from pages 01 to
08). He deposed that as per the record, in the year 1983, an application for connection of telephone number was applied on behalf of M/S New Man & Company (prop. Vishwa Bandhu Sharma) 4 P Connaught Circus New Delhi-
Page no. 10 / 29FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place 110001, and on the basis of said application, telephone connection was sanctioned in the name of M/S New Man & Company (prop. Vishwa Bandhu Sharma) and the aforesaid subscriber/consumer was intimated vide letter dated 15.01.1986. He deposed that the connection was initially installed in the year 1986 vide connection No. 326408, which was again cut over and replaced to 353608 in the year 1987. He deposed that the said connection was again changed to 3735608 in the year 1994, and thereafter to 3745608 in the year 2001. He deposed that the said connection was prefixed with '2' as 23745608 in the year 2002. He was also duly cross-examined by the Ld. APP for the State.
6.6. DW6/Vijay Pandey, account officer, MTNL, at DGM(TR), HQ, 4th Floor, Kidwai Bhawan, Janpath, New Delhi brought the system generated payment report in respect of telephone no. 23745608, (Ex.DW6/1) (colly running into two pages). He deposed that payment for the bills of the aforesaid number was paid in cash as well as through cheques, the details for which can be traced out in the Ex.DW6/1 itself. He was also duly cross-examined by the Ld. APP for the State.
6.7. DW7/Ajay Sharma examined himself as defence witness pursuant to moving application under Sec. 315 CrPC, which was allowed by the Court. He deposed that the premises of New Man & Company located at 4/90 (also called P-4) Cannaught Circus New Delhi-110001 were taken by Sh. Bhawani Sahai Sharma (his grand father) in Oct 1939 on Pagri and he produced rent receipt dated 3rd October 1939 Ex. DW7/2(OSR) issued by New Friend & Co. Ltd. in favour of Sh. Bhawani Sahai Sharma. He stated that later on, tenancy was transferred in the name of M/S New Man & Company with Sh Bhawani Sahai Sharma as the proprietor and thus, he produced rent receipt dated 26 May 1942 Ex. DW7/1(OSR) issued by New Friend & Co. Ltd. in favour of M/S New Man & Company. He stated that although subsequently, the landlordship of the premises passed into the hands of Gyan Chand Vidhyadhar, Vijay Kumar, Visheshvar Devi Gujral and Vimla Vijaya Gujral and Page no. 11 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place their daughters, however, Sh. Bhawani Sahai Sharma continued to pay rent as the proprietor of M/s New Man & Company till 1977. To prove the same, he produced rent receipts dated 06 Apr 1944, 12 Oct 1960 and 01 Sep 1969 exhibited as Ex. DW7/3 (OSR). He stated that in the year 1977, Late Sh. V.B. Sharma (father of the accused) became the sole proprietor of M/s New Man & Company and continued to pay rent through the current account of M/s New Man & Company at State Bank of Bikaner & Jaipur located at P-5, Cannaught Circus, New Delhi to Vimla Vijaya Gujral and daughters. To prove the same, he produced copy of bank statement showing clearance of cheque No. 558402 drawn on account No. 20020 for rent in favour of landlord (as per the cheque book entry dated 11 Oct 1994) exhibited as Ex. DW7/4 (OSR). He stated that after the death of his father, Late Sh VB Sharma, his mother, Mrs Pushpa Sharma became the sole proprietor of M/s New Man & Company. To prove the same, he produced receipt No. 851215 dated 29 Jan 1999 issued by Sales Tax Officer Ward No-3 accepting the letter from Pushpa Sharma in her capacity the sole proprietor of M/s New Man & Company, which was admitted as legitimate by office of Value Tax Officer ward No-3 vide a signed submission dated 20.12.2007 in execution petition No. 207/2008 titled as Gandharva Saini Vs Ajay Sharma between the complaint and accused, which are exhibited as Ex.DW7/5 (colly) (OSR). He stated that in the year 2023, his mother went to Canada to meet his elder brother Mr. Mukesh Sharma, handing over the possession of the said shop to his maternal uncle Late Sh. OP Sharma, who kept complainant (Gandharva Saini) as sales person on commission basis in the month of Oct 2003. He stated that upon return from Canada, his mother allowed the complainant to continue in the same capacity, however, in the month of Feb, 2004, the complainant left the premises on his own due to some dispute pertaining to commission and filed present the FIR. He stated that his mother singularly operated the current bank account bearing no. 20020 in the name of M/s New Man & Company maintained at State Bank of Bikaner & Jaipur, Connauught Circus (between 29 Jan 1999 till closure in Oct 2005) and the current account bearing No. 000705012451 in the name of M/s New Man & Page no. 12 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Company maintained at ICICI Bank Cannaught Place, New Delhi (between Nov 2005 till closure in May 2017). He produced copy of cheque no. 591322 dated 22.03.2003 (drawn on State Bank of Bikaner and Jaipur) issued by his mother Ms. Pushpa Sharma in favour of landlord (V.V. Gujral) for payment of rent alongwith original copy of bank statement showing clearance of the said cheque on 07.04.2003 and showing other similar periodic rental payments (every six months in advance) including on 08.04.2002, 12.10.2002 and 12.09.2003 are exhibited as Ex.DW7/6 (Colly.). He produced copy of cheque bearing no. 591345 dated 22.10.2003 drawn on State Bank of Bikaner and Jaipur, issued by his mother Ms. Pushpa Sharma in favour of NDMC in the sum of Rs. 10259/- towards payment of electricity bill, alongwith receipt no. 3605962 issued by the New Delhi Municipal Council (NDMC) and original bank statement for account bearing no. 20020 maintained at State Bank of Bikaner & Jaipur, exhibited as Ex.DW7/7 (Colly.). He produced copy of statement of account of M/s New Man Company maintained at ICICI Bank dated as on 30.11.2005, reflecting payment made to NDMC on 16.11.2005 Ex.DW7/8. He stated that his mother also operated the sales tax account of M/s New Man Company from 29.01.1999 till May 2017 as the sole proprietor and that the sale tax department, in the civil proceedings between the complainant and accused, bearing execution petition no. 207/2008 had admitted that as per their record i.e. with effect from 2002-2003, Ms. Pushpa Sharma was the proprietor of M/s New Man Company. He produced copy of assessment order for New Man Company for the year 1999-2000/2000-2001/2002-2003/2003-2004/2004-2005 exhibited as Ex.DW7/9 (OSR). He deposed that a telephone connection was installed at M/s New Man & Company in 1979 with Sh. Vishwabandhu Sharma as the proprietor. He produced copy of duly paid telephone bill showing Sh. Vishwabandhu Sharma as the proprietor of M/s New Man & Company for billing period i.e. 21.08.1979 to 20.09.1979 exhibited as Ex. DW- 7/10 (OSR). He produced original copies of duly paid telephone bills showing Sh. Vishwabandhu Sharma as the proprietor of M/s New Man & Company for various number changed periodically by MTNL since Page no. 13 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place 1979 (from 322688 to 353608 to 3735608 to 23745608) exhibited as Ex.DW7/11(OSR). He produced copy of electricity bill for New Man & Company, 4/90 Connaught Circus, New Delhi for 13.08.1984 and copy of electricity bill for New Man & Company payable for the month of January 1998, in the sum of Rs. 516/- and payment receipt issued by NDMC on 19.02.1998 exhibited as Ex.DW7/12(OSR). He produced copy of electricity bills for New Man & Company, 4/90 Connaught Circus, New Delhi for the relevant period i.e. September 2003, November 2003, January 2004 and March 2004 (issued every after two months) exhibited as Ex.DW7/13(OSR). He also produced telephone bills for telephone number 23745608 C/o proprietor M/s New Man & Company, 4/90, Connaught Circus, New Delhi, with payment duly stamped by MTNL for the relevant period namely 08.09.2003, 08.11.2003, 08.01.2004, 08.03.2003 (issued every two months) exhibited as Ex.DW7/14(OSR). He deposed that all the rent receipts, telephone bills, electricity bills and sales tax documents either bear the name of Late Bhawani Sahai Sharma (his grandfather), Late V.B. Sharma (his father) and Late Ms. Pushpa Sharma (his mother) as the proprietor of New Man Company and the aforesaid rent and bills were paid by them at different point in time between 1939 and 2017 including the relevant period. He stated that his mother continued to manage all day to day affair of M/s New Man & Company during the relevant period and that the complainant was never in exclusive possession of the premises as he never entered into any rent agreement with him. He produced certified copy of judgement Ex.DW7/15(OSR) dated 03.12.2014 (appeal emanating out of objections of Pushpa Sharma in execution 207/2008 titled as Gandharv Saini vs. Ajay Sharma) passed by the Hon'ble High Court of Delhi in execution FA-14/2009 titled as 'Gandharv Saini vs. Pushpa Sharma and Anr.', wherein the Hon'ble High Court of Delhi had observed that Ajay Sharma never had any right qua the premises M/s New Man & Company, and therefore, he could not have given any right to any third person and thus, possession was restored to Mrs. Pushpa Sharma. He also produced medical documents Ex.DW7/16(OSR) to prove his illness. He filed certificate u/s 65(B) of Page no. 14 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Indian Evidence Act regarding electronic documents (i.e. electricity / water bills dated 29th Nov 2003 and 31ª January 2004), which was exhibited Ex.DW7/17. He was duly cross-examined by the Ld. APP for the State.
6.8. Pursuant to application under Sec. 311 CrPC, the accused was allowed to examine DW8/ASI Inderpal, who was a witness to the investigation carried out in FIR bearing No. 62/2004, PS Connaught Place, which was registered prior in time to the instant FIR. He stated on oath that once it was discovered that locks of the shop had been changed on 06.02.2004, a locksmith was called by the IO/ASI Nar Singh and the locks were replaced. He stated that the keys of the new locks were handed over to Ajay Sharma by ASI Nar Singh on 07.02.2004. He proved the lock handing over memo "Rashid Hawalgi" dated 07.02.2004 Ex. DW8/A (OSR), prepared by the then IO/ASI Nar Singh, to which he stood as a witness. He also identified the signatures of the then IO/ASI Nar Singh. He was duly cross-examined by the Ld. APP for the State.
ARGUMENTS
7. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
8. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the witnesses have supported the case of the prosecution and the offence is proved by the State at the requisite threshold. He has argued that despite putting the complainant in possession of the shop, the accused trespassed into the same and committed theft of the belongings of the complainant on 20.02.2007. Ld. APP has argued that the accused, fraudulently represented to the complainant that he was the owner of the shop in question and induced him to part with the security amount of Rs. 5 Lakhs, and Page no. 15 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place caused him wrongful loss. Ld. APP has argued that the basis of the case of prosecution is despite having taken security/pagri in the sum of Rs. 5 Lakhs, the accused did not execute rent agreement in favour of the complainant, and resultantly, the complainant could not get electricity/water connection transferred in his name. As such, it is prayed that the accused be punished for the said offences.
9. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. He has argued that no documentary proof has been brought on record by the prosecution to prove that the complainant enjoyed possession of the shop being its tenant. He has argued that no receipt of monthly rent paid by the complainant or receipt of the security/ pagri amount in the sum of Rs. 5 lakhs paid to the complainant, has been brought on record on prosecution. He has further argued that the version of the prosecution suffers from inherent contradictions, which makes it unreliable. He has argued that even if some witnesses were not cross examined, the Court is to adjudge whether the case of the prosecution holds ground on its own legs. It is argued that the deposition of prosecution witnesses does not inspire any confidence. He has asserted that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence. To buttress his submissions, Ld. Counsel for the accused has placed reliance on judgments titled as Jagdish Kapila Vs. Rajkumar & Anr. (Crl. Rev. No. 536/2015) passed by Hon'ble High Court of Delhi; Sri Shivaswamy & Ors Vs. State of Karnataka (Criminal Petition No. 27776/2022) passed by the Hon'ble High Court of Karnataka and Anil Kumar Vs. State of Kerala (Crl. Appeal No. 1129 of 2018 decided in 2024) passed by Hon'ble High Court of Kerala.
Page no. 16 / 29FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place ANALYSIS AND REASONS FOR THE DECISION OFFENCE OF CRIMINAL TRESPASS
10. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 448 IPC, the prosecution must fulfil all the essential ingredients of the offence. Section 448 of the Indian Penal Code prescribes punishment for the offence of house trespass, whereas Section 442 of the Indian Penal Code defines the offence of house trespass, which is reproduced herein for ready reference:
"442. House Trespass- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit house-trespass.
Explanation.-- The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass."
11. The genus of Section 442 IPC can be found in S. 441 IPC which defines the term criminal trespass and reads as under:
"441. Criminal Trespass- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass."
12. Thus, from the aforesaid provisions, it can be summarised that the essential ingredients to be proved to bring the act of the accused within the purview of Section 448 IPC are that:
(i) The complainant was in possession of the property i.e, a building, tent or vessel used as a human dwelling or a building used as a place of worship or for Page no. 17 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place custody of property ;
(ii) The accused entered into or upon such building, tent or vessel or having entered lawfully into such building, tent or vessel, the accused remains there unlawfully
(iii) His intention was to commit an offence, or intimidate, insult or annoy the person in possession;
13. Hence, the first ingredient which needs to be proved that complainant was in actual physical possession of the house at the time of trespass, or in other words, entry was made by accused in the property which was in actual possession of the complainant, to the exclusion of others.
14. Now adverting to the facts and circumstances of the present case, it is the case of the prosecution that the complainant was put in possession of the premises by the accused in September 2003, against a monthly rent of Rs. 26,500/- and payment of security/pagri in the sum of Rs. 5 Lakhs, however the accused allegedly trespassed for the first time on 06.02.2004, which formed the basis of the registration of FIR no. 62/2004 PS Connaught Place u/s. 448 IPC and thereafter, the accused trespassed again on 20.02.2004, leading to the registration of the present FIR. The complainant has deposed that after the accused allegedly trespassed on 06.02.2004, possession of the shop was restored to him by way of police intervention. However, in this regard, apart from the bare averment, the prosecution has not proved how and when the possession was restored to the complainant.
15. In fact, the prosecution has failed to produce any documentary proof to establish the fact that tenancy was created in favour of the accused. Though it is the case of the prosecution that the complainant was inducted as a tenant with effect from September 2003 by the accused, however no payment of monthly rent in the sum of Rs. 26500/- appears to have been made by the complainant to the accused, Page no. 18 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place from September 2003 to February 2004, as the prosecution has failed to bring on record any such payment receipt. Though it is also the case of the complainant that he had paid a security/ pagri amount of Rs. 5 lakhs to the accused on 22.09.2003, however the prosecution has failed to produce any such receipt issued in favour of the complainant. In fact, the complainant, in his cross-examination, has himself admitted that no receipt was issued by the accused at the time of receiving the sum of Rs. 5 Lakhs.
16. Instead, in order to prove the possession of the shop in question, the complainant has placed certified copies of cash memos/bills i.e, Ex.PW 9/X1 (OSR) to Ex.PW 9/X27 (OSR) regarding the articles purchased by him for selling at the shop. Although the prosecution did examine PW8/Prabhal Dhingra, PW10/Raj Kumar Chawla and PW12/Surender Pal Singh to prove the issuance of bills in favour of the complainant, however, proof of execution of such bills may well prove the ownership of the complainant over those articles however, such bills shall not go on to prove the possession of the complainant over the shop in question. This is because, those bills were drawn towards the purchase of goods/articles by the complainant and that may not necessarily mean that the complainant was also in possession of the premises from where such goods were proposed to be sold.
17. Further, the prosecution has examined the neighbouring shopkeepers PW1/Hari Kishan and PW3/Pradeep Gupta to prove the fact of possession of the shop by the complainant and the alleged trespass by the accused. However, PW1/Hari Kishan and PW3/Pradeep Gupta have resiled from their previous statement on record and have failed to depose the entire facts before the Court at trial. PW1/Hari Kishan has even denied the suggestion of the prosecution that the complainant Gandharv Saini was having a separate portion for selling the garments in the shop.
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18. Interestingly, although accused is prosecuted for alleged trespass into the property of the complainant, however the prosecution has not been able to set up a case of exclusive possession of the complainant over the shop. This is because Ld. APP for the State has, in his cross-examination, put suggestion to hostile witnesses PW1/Hari Kishan and PW3/Pradeep Gupta, that the complainant and the accused used to open and close the shop together, which is lethal to the case of the prosecution itself. For if such is the case of the prosecution, then it is rather incomprehensible that under what circumstances did the complainant allege trespass, when he himself opened and closed the shop together with him.
19. On the other hand, the accused has examined in his defence, PW8/ASI Inder Pal, who has deposed that he was witness to the investigation carried out by the IO/ASI Nar Singh in case FIR no. 62/2004, PS Connaught Place. He stated that pursuant to the complaint of the complainant on 06.02.2004, once it was discovered that locks of the shop had been changed on 06.02.2004, a locksmith was called by the IO/ASI Nar Singh and the locks were replaced. He stated that the keys of the new locks were handed over to Ajay Sharma by ASI Nar Singh on 07.02.2004. He proved the lock handing over memo "Rashid Hawalgi" dated 07.02.2004 Ex. DW8/A (OSR), prepared by the then IO/ASI Nar Singh, to which he stood as a witness.
20. The testimony of PW8/ASI Inder Pal has not been sufficiently rebutted in cross-examination. Having proved the execution of lock handing over memo "Rashid Hawalgi" dated 07.02.2004 Ex. DW8/A (OSR), the defence has been successful in establishing the fact that keys of the locks of the shop at P-4, Connaught Place were handed over to accused Ajay Sharma on 07.02.2004 by ASI Nar Singh (IO in case FIR no. 62/2004, PS Connaught Place). Alternatively, the prosecution has failed to prove the circumstances whereby the possession of the shop at P-4, Connaught Place was restored to the complainant, after the alleged Page no. 20 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place incident of 06.02.2007. Apart from bare averments, no proof has come on record. Thus, in the aforesaid circumstances, the possession of the complainant over the shop at P-4, Connaught Place after 07.02.2004 on the date of the incident, i.e., 20.02.2004 itself becomes doubtful and creates a dent in the version of the prosecution.
21. Moving further, it is the defence of the accused that the premises of New Man & Company located at 4/90 (also called P-4) Connaught Circus New Delhi-110001 were leased out by the landlord in favour of Sh. Bhawani Sahai Sharma (his grand father) in Oct 1939 on Pagri, and later on the tenancy was transferred in the name of M/S New Man & Company with Sh Bhawani Sahai Sharma as its proprietor. The accused examined himself as DW7 and deposed that in the year 1977, Late Sh. V.B. Sharma (father of the accused) became the sole proprietor of M/s New Man & Company, and after his death, Mrs. Pushpa Sharma, the mother of the accused, became the sole proprietor of M/s New Man & Company. It is the case of the accused that shop no. P-4, Connaught Circus New Delhi-110001 was in the possession of the proprietorship 'M/s New Man & Company' for the relevant period of time, for which the sole proprietor was his mother, Mrs. Pushpa Sharma.
22. In order to prove that the premises in question were occupied by Ms. Pushpa Sharma, proprietor of M/S New Man & Co., the accused has examined DW1/Mohd. Faisal, Assistant Section Officer, Commercial Department, NDMC, New Delhi who has brought the record (demand collection register) pertaining to M/S New Man & Co. Shop No. 4/90, Connaught Place, New Delhi against consumer No. 1000523 for the period Jan 2003 to Jan 2005 (Ex. DW1/A) and from the record, it can be seen that a payment in the sum of Rs. 10259/- was made on 23.10.2003. In order to prove that the said payment was made by Ms. Pushpa Sharma, proprietorship 'M/s New Man & Company', the accused has brought on Page no. 21 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place record copy of cheque bearing no. 591345 dated 22.10.2003 drawn on State Bank of Bikaner and Jaipur, issued by his mother Ms. Pushpa Sharma in favour of NDMC in the sum of Rs. 10259/- towards payment of electricity bill, alongwith receipt no. 3605962 dated 23.10.2003 issued by the New Delhi Municipal Council (NDMC), exhibited as Ex.DW7/7 (Colly.). Thus, from the material on record as above, the payment made by Ms. Pushpa Sharma, proprietorship 'M/s New Man & Company' in the sum of Rs. 10259/- vide cheque bearing no. 591345 dated 22.10.2003 stands corroborated from the receipt no. 3605962 dated 23.10.2003 issued by NDMC (Ex.DW7/7) and the demand collection register for consumer No. 1000523 for the period Jan 2003 to Jan 2005 (Ex. DW1/A) brought by DW1/witness on behalf of NDMC.
23. Having examined himself as DW7, accused has also brought on record the findings of Hon'ble High Court of Delhi in execution FA-14/2009 titled as 'Gandharv Saini vs. Pushpa Sharma and Anr.' Ex.DW7/15(OSR) dated 03.12.2014 (appeal emanating out of objections of Pushpa Sharma in execution 207/2008 titled as Gandharv Saini vs. Ajay Sharma), wherein the Hon'ble High Court of Delhi held that the shop was in the possession of 'M/s New Man & Company', whose proprietor was recorded as Ms. Pushpa Sharma, in records of the sales tax department and also noted that the complainant was never a lessee or licensee but only a salesman on commission basis.
24. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
25. At this point, it is pertinent to note that the counsel for the accused has Page no. 22 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place correctly relied upon the judgement of Sri Shivaswamy & Ors. v. State of Karnataka (Criminal Petition No. 2776/2022) passed by the Hon'ble High Court of Karnataka, wherein the Hon'ble Court had observed that the offence of Criminal trespass under Section 447 of the IPC and defined under Section 441 of the IPC can be committed only when a person enters into or upon any property, which is in possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property. The Hon'ble Court had clarified that " if possession itself is not with the complainant, there can be no offence of criminal trespass into the property not belonging to the complainant."
26. From the discussion herein above, it is noted that the offence of criminal trespass / house trespass requires the complainant to be in the possession of the property in which alleged trespass has taken place. However, in the present case, no evidence, oral or documentary, has come on record to prove that the complainant enjoyed possession over the shop in the capacity of a tenant. Since the prosecution has dismally failed to prove the possession of the complainant over the shop in question, which constitutes the basic ingredient for the offence of house trespass, therefore the charge of house trespass cannot sustain and the accused is entitled to be acquitted for the offence under Sec. 448 IPC.
OFFENCE OF THEFT IN DWELLING HOUSE
27. Further, it is the case of the prosecution that on 20.02.2004, the accused committed theft of the garments belonging to the complainant and threw those garments outside the shop. For the offence of theft under Section 380 IPC, it has to be proved that the accused moved the moveable property (garments) of the complainant, without the consent of the complainant, with intention to dishonestly take it out of the possession of complainant.
28. Careful perusal of the ingredients of the offence under Sec. 380 IPC Page no. 23 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place reveals that the offence of theft essentially means the act of 'moving' of the case property out of the possession of the other, which can either be proved by an eye- witness who may have witnessed the act of moving of such property or by way of a CCTV footage that may have captured the act of 'moving' of the case property by the accused, from the lawful possession of the other.
29. Although neighbouring shopkeepers PW1/Hari Kishan and PW3/Pradeep Gupta have been examined by the prosecution but none of them is an eye-witness to the act of alleged moving of garments of the complainant by the accused on 20.02.2004, without the consent of the complainant. This is because, although PW1/Hari Kishan may have deposed that one day, he saw the accused taking out garments from the shop at P-4, Connaught Place, New Delhi, however he failed to mention the date of the incident. Further, PW3/Pradeep Gupta is not an eye-witness to the offence of theft as he merely deposed that one day, he saw garments lying outside the shop and even he failed to remember the date of the incident. Even upon cross-examination by the Ld. APP for the State, no suggestion was put to either PW1/Hari Kishan or PW3/Pradeep Gupta that the incident of trespass and alleged theft occurred on 20.02.2004.
30. The prosecution has also not brought any CCTV footage, to prove the fact that accused moved the garments of the complainant out of his possession. The identification of accused by PW1/Hari Kishan and PW3/Pradeep Gupta is of no meaning as PW1/Hari Kishan and PW3/Pradeep Gupta are not eye-witnesses to the alleged act of theft. Therefore, even the ingredients of the offence under Sec. 380 IPC are not fulfilled from the material on record and thus, the accused is acquitted for the offence under Sec. 380 IPC.
OFFENCE OF CHEATING
31. For the offence of cheating, the prosecution is required to fulfil the Page no. 24 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place ingredients which are as follows:
(i) Deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission
(ii) Fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) Such act or omission is causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
32. However, to constitute an offence of cheating under Section 420 IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived:
(i) To either deliver a property to that person
(ii) or to make, alter, destroy, wholly/in part, a valuable security.
33. It is the case of the prosecution that the accused represented himself out to be the owner of the shop at P-4, Connaught Place, New Delhi and induced the complainant to become his tenant at a monthly rent of Rs.26,500/-. It is further the case of the prosecution that the accused demanded a pagri/security amount of Rs. 5 lacs from the complainant, which was paid by him in cash, in the presence of witnesses, Mr. OP Sharma (maternal uncle of the accused) and Ms. Shakuntala Saini (sister of the complainant). Although the complainant was given the possession of the property, however, the accused did not execute any rent agreement despite repeated persuasion and ultimately, it was discovered that the accused was not the owner of the shop, and in fact, his father was also tenant in the said shop. It is thus, the case of the prosecution that the accused by way of a fraudulent representation, induced the complainant to part with his money, and caused wrongful loss to him.
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34. In order to prove the dishonest inducement by the accused and the delivery of property i.e, payment of pagri/security amount of Rs. 5 lacs to the accused, the prosecution has examined PW4/Shailender Gupta and PW5/Shakuntala Saini, who are cited as witnesses to the transaction of payment of money, upon the alleged fradulent representation by the accused.
35. Although, PW4/Shailender Gupta, claims to be a witness to the transaction of payment of pagri/security amount of Rs. 5 lacs to the accused by the complainant, however, it is surprising to note that PW9/Gandharv Saini nowhere mentions about the presence of PW4/Shailender Gupta during the time of payment of the pagri amount of Rs. 5 lacs to the accused. In other words, the statement of PW4/Shailender Gupta is not corroborated by the complainant/PW9 Gandharv Saini and becomes doubtful. The other witness examined by the prosecution to prove to the payment of pagri/security by the complainant is PW5/Shakuntala Saini, who also has deposed that on 22.09.2003, she was accompanied by her brother and PW4/Shailender Gupta to shop no. P-4, Connaught Place, New Delhi where the accused met them, and agreed to rent out the aforesaid shop to the complainant Gandharv Saini at a monthly rent of Rs. 26,500/- and against a pagdi/security amount of Rs. 5 lacs. Again, the testimony of PW5/Shakuntala Saini in so far as it mentions about the presence of Shailender Gupta on 22.09.2003, is not corroborated by complainant/PW9 Gandharv Saini, as the complainant has deposed that he was only accompanied by Shakuntala Saini and OP Sharma (maternal uncle of the accused) on 22.09.2003. Additionally, PW5/Shakuntala Saini is the sister of the complainant and PW4/Shailender Gupta has admitted in his cross-examination about having known the complainant for the last many years, therefore their depositions, which have already come under a shadow of doubt, cannot form the sole basis of conviction and require some independent corroboration.
36. However, in the present case, the prosecution has failed to bring on Page no. 26 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place record any corroborative documentary evidence/rent agreement prepared between the parties to establish the fact of tenancy created in favour of the complainant or any receipt executed between the complainant and the accused to corroborate the fact that the complainant was induced to pay a sum of Rs. 5 lacs to the accused, as pagri/security amount. No documentary proof has been brought on record either by the IO or the complainant. It even stands admitted by the IO, in his cross- examination, that the complainant neither provided any documentary proof pertaining to the fact that he had handed over Rs. 5,00,000/- in cash to accused, nor did he provide any proof of rent paid by him to the accused. No witnesses have been examined by the prosecution to prove the fact how the complainant arranged Rs. 5 lacs to be paid to the accused. Though IO, in his cross-examination has revealed that the complainant had arranged that money from his relatives, however such relatives have not been named by the prosecution in the chargesheet so filed.
37. Although, it is the case of the prosecution that the complainant was induced to pay a sum of Rs. 5 lacs as pagri/security to the accused and that he also paid a monthly rent of Rs. 26,500/- to the accused from September 2003 till February 2004, however, no such receipt of monthly rent has been brought on record either. It is rather implausible that despite the alleged failure of the accused to issue a receipt against the payment of Rs. 5 lacs as pagri/security, the complainant continued to pay monthly rent to the accused, without keeping proof of the subsequent rental transactions or without requiring the accused to issue a receipt for the same.The conduct of the complainant does not inspire confidence of the court and his version appears to be nothing more than a bald assertion, unsubstantiated by any cogent and reliable evidence in support of those assertions.
38. The conduct of the complainant does not appear to be prudent to the court, also for the reason that if the complainant really paid a security amount of Rs. 5 lacs as pagri/security amount to the accused, who failed to execute a rent Page no. 27 / 29 FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place agreement in his favour, then it is rather surprising that the complainant did not even send any legal notice/correspondence/reminder to the accused during the relevant period.
39. This Court is mindful of the law laid down by the Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam AIR 2013 SC (CRIMINAL) 1487, wherein it was observed:
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof."
40. Having said that, it is well settled that the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. Reliance in this regard may also be placed upon the judgement in the case of S.L.Goswami v. State of M.P 1972 AIR 716 , wherein the Hon'ble Supreme Court made the following observations:
"Even in cases where the defence of the accused does not appear to be credible or is palpably false, that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests. upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt."Page no. 28 / 29
FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place
41. In the present case, the accused has been successful in pointing out inherent contradictions in the testimonies of PW4 Shailender Gupta and PW5 Shakuntala Saini, which were cited by the prosecution to prove the offence of cheating. Further, the prosecution has failed to produce any documentary evidence to corroborate the version of PW9/Complainant Gandharv Saini. In the absence of cogent evidence, the case of the prosecution cannot be said to be proved on the requisite threshold, as the prosecution has failed to prove dishonest inducement and delivery of property by the complainant to the accused, which constitute the basic ingredients for the offence of cheating. Therefore, considering the above discussion, the inevitable conclusion is that the case of the prosecution suffers from infirmities and the accused is entitled to benefit of doubt. Since the ingredients of the offence of cheating are not fulfilled from the material on record, therefore, the accused is acquitted for the offence of cheating u/s. 420 IPC.
CONCLUSION
42. In view of the discussion hereinabove, the accused namely Ajay Sharma S/o Sh. Vishwa Bandhu Sharma is hereby found not guilty and is ACQUIT- TED of the offences under Sec. 448/380/420 IPC. Digitally signed ISHA by ISHA SINGH Date:
Announced in open court SINGH 2024.11.30
18:30:16 +0530
in the presence of the accused (Isha Singh)
JMFC-03/PHC/NDD/30.11.2024
Certified that this judgment contains 29 pages and each page bears my signa-
ISHA Digitally signed
ture. by ISHA SINGH
Date: 2024.11.30
SINGH 18:30:23 +0530
(Isha Singh)
JMFC-03/PHC/NDD/30.11.2024
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