Delhi District Court
State vs . Dinesh Chand Yadav Etc 1 Fir No. 456/94, ... on 30 March, 2013
State Vs. Dinesh Chand Yadav Etc 1 FIR No. 456/94, PS Dabri
IN THE COURT OF SHRI NAVEEN ARORA : CHIEF
METROPOLITAN MAGISTRATE: DWARKA COURTS, NEW
DELHI
State Vs. Dinesh Chand Date of Institution 11/08/09
Yadav etc
FIR No. 456/94 Judgment Reserved on 23/03/13
PS Dabri Date of Judgment 30/03/13
Under 420/468/471/34
Section IPC
JUDGMENT
a) Sr. No. of the case 83/2
b) Date of offence 10/11/87
c) Name of the Sh. Surjan
complainant
d) Name & address of the 1. Dinesh Chand Yadav s/o Suraj
accused Bhan Yadav r/o Plot no. 30/31 , A
2 Block , Mohan Garden, Uttam
Nagar , Delhi
2. Lakhi Ram s/o Sh Chandgi
Ram r/o Village Nasirpur, Post
Office Palam , New Delhi
e) The offence complained 420/468/471/34 IPC
of
f) Plea of accused Pleaded not guilty
State Vs. Dinesh Chand Yadav Etc 2 FIR No. 456/94, PS Dabri
a) Sr. No. of the case 83/2
g) The final order Acquittal
h) Date of order 30/03/13
BRIEF STATEMENT OF REASONS FOR DECISION:
1. In the present case, chargesheet was filed U/s 420/468/471/34 IPC against above named accused persons stating that on 22/12/94 one complaint was made by Sh. Surjan to SDM, Punjabi Bagh stating "that near P block, Sagarpur, New Delhi, there is land of village Nasirpur which belongs to Gram Sabha and some anti social elements including Anil Kumar Gupta and Lakhi Ram are taking unlawful possession of the same and are further selling the same by making forged documents and they have also removed the fencing done by the government".
2. On this SDM, Punjabi Bagh endorsed the same stating that during his visit to village Nasirpur alongwith SI A.P. S. Tomar of PS Dabri and NT(M) and H.Patwari spoked to various persons standing at Khasra No. 224, 228 and 229 who have confirmed the allegations and he himself saw the foundation half done at around Khasra No. 393 which shows that allegations are substantial and the fact of removal of fencing was also found to be correct and directions for registration of FIR was given as Khasra No. 228229 and 393 is Gram Sabha land and land comprised in Khasra No. 224 is Gram Sabha land allotted for agriculture purpose only.
State Vs. Dinesh Chand Yadav Etc 3 FIR No. 456/94, PS Dabri
3. Same was handed over to Patwari Surender Kumar Sharma and also gave one complaint separately to Naib Tehsildar Sh. M.N. Sharma mentioning that land of Khasara No. 228229, village Nasirpur which is vested in Gram Sabha as per Khatoni of the year 198182 as per section 81 of Delhi Land Reform Act. Khasara No. 224 and 393 which also falls under the ownership of Gram Sabha was given on Kastkari under twenty point programme and was recorded as Asami. The Aasami had no right to sell the property. On 22/12/94, it was found that the above named accused persons were found to be raising constructions on the said land. The papers of the adjoining properties were taken and the details are as follows: Sl. Name of seller Name of Particulars of Description & No. purchaser property/ execution of documents 1 Dinesh Channd Shanti Devi Khasara No. GPA, deed of Yadav S/o Suraj W/o Gajraj 228 229(60 agreement, receipt Bhan Yadav sqm) dt 12/11/92 2 Dinesh Channd Gajraj S/o Khasara No. GPA, deed of Yadav S/o Suraj Sadan Raj 228 229(60 agreement, receipt Bhan Yadav sqm) dt 12/11/92 3 Lakhi Ram S/o Tahsildar Khasara No. GPA, deed of Chandgi Ram S/o Nathu 228 229(29 agreement, receipt Yadav sqm) dt 10/11/87 State Vs. Dinesh Chand Yadav Etc 4 FIR No. 456/94, PS Dabri 4 Lakhi Ram S/o Savitri Devi Khasara No. GPA, deed of Chandgi Ram S/o Puran 228 229(32 agreement, receipt Chand sqm) dt 10/11/87
4. After completion of investigation, present chargesheet was filed.
5. Cognizance of the offence was taken vide order dated 12/11/94. The copies of the chargesheet was supplied to the accused persons and after hearing the arguments, charge was framed against the accused Dinesh Chand U/s 420/468/471 IPC stating "that on 10/11/87 at about village Nasirpur you cheated Tehshildar and Savitri Devi by dishonestly inducing them to deliver Rs. 4,000/ and Rs. 4,250/ as purchase money against plot in Khasara No. 228/229 belonging to Gaon Sabha, village Nasirpur measuring 29 yard and 32 yard respectively and thereafter committed an offence punishable U/s 420 IPC.
Secondly, on the abovesaid date, time and place, you forged GPA, agreement, affidavit and receipt in favour of Tehshildar and Savitri Devi intending that the same shall be used for the purpose of cheating and used the abovesaid documents as genuine knowing the same to be forged".
Similar charge U/s 420/468/471 IPC was framed against State Vs. Dinesh Chand Yadav Etc 5 FIR No. 456/94, PS Dabri accused Lakhi Ram stating "that on 12/11/91 at about village Nasirpur you dishonestly induced Smt. Shanti Devi and Gajraj and cheated them of Rs. 20,000/ each which they delivered to you as purchase money against plot in Khasara No. 228/229 belonging to Gaon Sabha, village Nasirpur measuring 60 yards and thereafter committed an offence punishable U/s 420 IPC.
Secondly, on the abovesaid date, time and place, you forged GPA, agreement, affidavit and receipt in favour of Gajraj and intending that the same shall be used for the purpose of cheating and used the abovesaid documents as genuine knowing the same to be forged".
6. In prosecution evidence, prosecution examined following witnesses.
(i)PW1 ASI Raghuvbir Singh, Duty Officer who deposed about the registration of the FIR, Ex. PW1/A
(ii) PW2 complainant Surjan deposed that in the month of December, 1994, some people were constructing a temple regarding which he gave complaint Ex. PW2/A. He further deposed that land was belonging to Gram Sabha and temple was being made and land was being grabbed by one Alil illegally. He further deposed that construction of temple had blocked his door. This witness was declared by the prosecution as 'hostile' as he was resiling from his previous statement. In the cross examination by the Ld. APP, he stated State Vs. Dinesh Chand Yadav Etc 6 FIR No. 456/94, PS Dabri that accused Lakhi Ram alongwith his persons had encroached the Gram Sambha Land. He further stated that he gave the complaint against accused Anil Kumar and Lekhi Ram. However, in the very next breath, he stated that he did not remember if the complaint was written by him regarding the fact that both accused were selling the Gram Sabha Land illegally. He also stated that he could not mention the name of accused persons mentioned in complaint Ex. PW2/A as he was illiterate person. During his cross examination by defence counsel, he stated that he had lodged the complaint with the police station about illegal construction of temple as it was creating obstruction in the ingress and outgress of his house. He stated that he never made any complaint against Sh. Lakhi Ram and Dinesh Chand Yadav . He stated that he cannot read or write English language and he can only sign.
(iii)PW3 Shanti Devi who stated that around 10 years back, she had purchased two plots of 60 yards each from one Khatri for a total sum of Rs. 1 lakh and when she started the construction of house over the said plots, police officials came and demanded the documents of ownership which was shown and handed over to them. She further deposed that documents were prepared and given by Sh. Khatri in her name. This witness was also declared hostile by the prosecution.
During her cross examination by the prosecution, she denied that she had purchased the plot in question from Dinesh Chand Yadav. She also denied that she had made any statement to the police. She stated that she is not aware whether the document, agreement to sale, affidavit, receipt were executed by Dinesh or not. She stated that same were handed over to her by Mr. Khatri. During her cross examination by the defence counsel, she stated that she has no State Vs. Dinesh Chand Yadav Etc 7 FIR No. 456/94, PS Dabri grievance against accused Dinesh Chand Yadav and at present, she is living in the same house.
(iv)PW4Rajinder Ram, Patwari Nasirpur (it is pertinent to mention here that this witness had no personal knowledge about the incident and his statement was based on the basis of record) and he proved the report Ex. PW4/A prepared by Patwari Surender Kumar Sharma. As per the said report, the land situated in Khasara No. 228 and 229 of village Nasirpur was vested in Gram Sabha in the year 197781. The copy of relevant record was proved by this witness as ex. PW4/B(colly). He also stated that as per record as on 12/11/91 and 10/11/87, the land was vested in Gram Sabha and was not possessed by anyone.
(v)PW5Surender Kumar Sharma, Girdawar deposed that land situated in Khasara No. 228 and 229 of village Nasirpur was vested in Gram Sabha w.e.f 197778. During his cross examination, he stated that he cannot say as to when the land in Khasra mentioned in the complaint were take in possession by their department and he is not aware as to whether any notice was issued to Bhumidar or not. However, it is not on record. He admitted that there is no Sijara map or any other site plan or identification record or Nishandehi of any land allegedly vested in Gram Sabha and hence it is not possible to suggest as to whether land in question belong to Gram Sabha or not.
(vi)PW6 Gajraj This witness did not support the prosecution's case and completely turned hostile. In the cross examination by the Ld. APP, he stated that he purchased the land from one Sh. C.B. Khatri but he is not aware that from whom purchased the property. He also stated that he was not known to Dinesh Chand Yadav. State Vs. Dinesh Chand Yadav Etc 8 FIR No. 456/94, PS Dabri
(vii)PW7 Savitri Devi stated that she purchased the land in Khasra No. 228229 from accused Lakhi Ram and also handed over the payment/sale consideration to him and she is still residing on the same land and the plot in her possession is presently located in a residential colony.
(viii)PW8 Inspector Ajay Pal Singh, This witness is investigating officer of the case. He stated that he was told by SDM that property in question falls in Khasra No. 228229 which belongs to Gram Sabha ad the same was allotted to individuals under 20 point programme for agriculture and that land cannot be sold. He has deposed that on 22/12/94, complaint Ex. PW2/A was handed over to him for registration of case. He made endrosement Ex. PW8/A. He further deposed that documents of property given by accused Lakhi Ram and Dinesh to victims Savitri Devi, Tehsildar, Shanti Devi and Garjaj(Ex. P1 to P14) were also handed over to him. Thereafter, he got the FIR registered and collected Khatoni Ex. PW5/B. He further deposed that both accused persons were formally arrested and their specimen handwriting/signatures(Ex. P15 to P28) were taken which were sent to CFSL. Result from the CFSL was obtained, he recorded statement of witnesses and completed the investigation. In the cross examination by the defence counsel, this witness failed to state as to whom the land comprising in Khasra No. 228229 was initially alloted under 20 point programme. He further stated that he did not make investigation as to whether complainant Surjan Singh was allotee under above scheme. He stated that though no demarcation was got done by him from the revenue department to pinpoint and identify the Khasara number of State Vs. Dinesh Chand Yadav Etc 9 FIR No. 456/94, PS Dabri the disputed land. Though, he volutneered that the patwari who was accompanied him identified the lad. He stated that no allotee under 20 point programme ever reported the matter to the police regarding sale of their allotted land. He again stated that he does not know as to whether the Khasra No. 228229 was under the 20 point programme and it was only told to him by the SDM, NT and Patwari M.N. Sharma.
(ix) PW9 M.N. Sharma, has deposed that on 22/12/94, he was posted as Naib Tehsildar and on that day, he alongwith concerned SDM and Halka patwari went to village Nasirpur where a complaint for unauthorized construction and selling of Gram Sabha land was made by Surjan Singh. He further deposed that at the spot, it was observed that some unauthorized construction was going on to develop an unauthorized colony. In respect of Khasra No. 228, 229, 224 and 393, a report was given by the Halka Patwari(Ex. PW4/A) which was also endorsed by him. The documents were seized by Halka Patwari and were handed over to police official by him. During his cross examination, he admitted that there were built up houses also and no formal demarcation was carried out in his presence. He further stated that private person was the Bhumidar of land in question prior to the vesting of land in Gram Sabha. He stated that he cannot say whether the possession of the land in question was taken over under the DLR Act by the revenue authorities. He stated that he does not recall if any construction of temple was going on there at the spot.
(x) PW10 Virender Kumar, the then SDM of Punjabi Bagh has also deposed on the similar lines as that of PW9.
State Vs. Dinesh Chand Yadav Etc 10 FIR No. 456/94, PS Dabri
7. Statement of the accused persons was recorded U/s 313 Cr. P.C. Accused persons also lead defence evidence and examined two witnesses in their defence. DW1 Bimal Rai, Office Kanoongo, Nazafgarh and DW2 Vidya Sagar, UDC, Urban Development Department.
8. In their statement recorded U/s 313 Cr. P.C, both accused stated that they have been falsely implicated in this case. Further, accused Lakhi Ram claimed that he is the bhumidar of land in question and he sold the land to Tehsildar and Savitri Devi. He also admitted his signature on GPA, Affidavit, Deed of Agreement(Ex. P9 to P11 and Ex. P12 to Ex P14). On the other hand, accused Dinesh Chand Yadav stated that land in question was belonging to one C.B. Khatri and he was merely working with him. He further stated that documents Ex. P1 to P8 vide which sale of land was effected to Shanti Devi and Gajraj were bearing his signatures. However, he claimed that he had signed the documents on the instruction of C.B. Khatri who had also received the entire sale consideration.
9. The defece examined two witnesses, namely, Bimal Rai, Office Kanoongo, Nazafgarh and Vidya Sagar, UDC, Urban Development Department.
10. DW1 Bimal Roy deposed that as per the record i.e certified copy of the Khatoni of the year 197778, Ex. DW1/A, pertaining to land bearing Khasara No. 228/229, revenue estate of village Nasirpur, State Vs. Dinesh Chand Yadav Etc 11 FIR No. 456/94, PS Dabri Tehsil Mehroli, it was Chandgi S/o Trikha was the recorded Bhumidar of the land. He also brought Khasara Girdawari of Khasara No. 228229, revenue estate of village Nasirpur, Tehsil Mehroli of the year 197879 as per which, the same Chandagi was in possession and the certified copy of the same was proved as Ex. DW1/B. During his cross examination, he stated that he cannot say that after 1978 whether the land in question was vested in Gram Sabha or not.
11. DW2 Vidya Sagar, UDC, Urban Development Department deposed that he has brought the summoned record pertaining to the regularisation of P&T block, West Sagarpur Colony. The originals i.e undertaking dated 12/08/08, indemnity bond dated 28/12/07 and affidavit of Ram Kishore dated 28/12/07, same is Ex. DW2/1 collectively. During his cross examination, he submitted that the file produced by him does not bear any official seal to prove that this file pertains to the office. He also admitted that there is no Khasara number mentioned in these documents.
12. I have heard the arguments and have perused the record.
13. In the present case, charges U/s 420 IPC and 468/471 IPC were framed against the accused persons making the allegations against the accused persons that they forged the title documents and executed in favour of Tehsildar, Savitri and one Gajraj and they cheated them by falsely inducing them. There is no charge framed against the accused persons that they cheated Gram Sabha. It is pertinent to mention here that the expert opinion was obtained from the CFSL regarding the execution of the documents in question by comparing it with the State Vs. Dinesh Chand Yadav Etc 12 FIR No. 456/94, PS Dabri specimen signatures of the accused persons and as per expert opinion those documents were executed by the accused persons only but the said CFSL report was not proved on record by examining the expert . Even otherwise, the accused persons have not disputed that they had not executed those documents in the entire evidence.
14. For deciding the fact as to whether the offence of forgery was committed or not, it is necessary to see the provisions of section 463 and 464 of IPC which are reproduced as follows: Section 463(definition of forgery) "whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery".
The essential ingredients of the offence of forgery are:
(i) that a forged document should be prepared
(ii) there should be an intention to cause damage or injury
(iii)the document should be prepared to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or to play fraud.
15. So, the first requirement of the offence of forgery is the making of false document which has been defined in section 464 IPC which is reproduced as follows: 464 Making a false document.A person is said to make a false document First.Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a State Vs. Dinesh Chand Yadav Etc 13 FIR No. 456/94, PS Dabri document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly.Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.
16. The perusal of the abovementioned provision i.e section 464 clearly prescribes that making/executing of any document should be with intention of causing it to be believed that such document was executed by or by the authority of a person by whom or by whose authority, he knows that it was not made/executed. State Vs. Dinesh Chand Yadav Etc 14 FIR No. 456/94, PS Dabri
17. In the present case, there is no such allegation. Whatever document was made by the accused persons was made by them under their own name and there was no intention to make the purchaser believe that such document has been executed by some other person or under the authority of some other person so the very first requirement of forgery of making a false document is not fulfilled in the present case. Hence, the offence U/s 468 and 471 could not be made out against the accused persons.
18. In the present case, at the most a case U/s 420 IPC can be made out against the accused persons if the purchasers of the property makes an allegation against them that they were falsely induced and were made to make the payment of the plot to the seller under the said inducement but unfortunately in the present case, none of the purchasers i.e PW3 Shanti Devi, PW6 Gajraj or PW7 Savitri Devi raised any grievance against the accused persons. The plots which were sold were allegedly sold by one Mr. C.B. Khatri to them. So the question of false inducement from the accused persons does not arise. The purchasers are still residing in those plots which is as per them now a residential colony. So, technically, the offence of cheating is also not made out against the accused persons.
19. Further, location of the land in question has not been established through the evidence led by the prosecution as no demarcation was carried out by the revenue authorities to show that encroachment was made on the Gram Sabha land and till date no steps were taken by the revenue authorities to take back the possession of the land even if it State Vs. Dinesh Chand Yadav Etc 15 FIR No. 456/94, PS Dabri belongs to Gram Sabha. Even, there is no complaint from the Gram Sabha with respect to alleged encroachment. Moreover, if the Gram Sabha land was allotted to the poor people, why they did not file any complaint has not been explained and it seems that the complaint is being filed by one Surjan Singh who is resisting the construction of temple on the land in front of his house which was creating obstruction in the ingress and outgress of his house. However, as per the prosecution witnesses, they did not find any temple being constructed over the land. Till date no steps have been taken to remove the encroachment, the so called purchasers are residing on the said plot without any interference of any kind and they have no grievance against accused persons and the present complaint was filed by the revenue authorities on behalf of alleged victims without their authority.
20. In view of aforesaid discussed facts and circumstances, I am of the considered opinion that prosecution has failed to prove its case against the accused persons. Both accused persons are acquitted of the offences. File be consigned to Record Room.
Announced in open Court NAVEEN ARORA
on 30/03/13 Chief Metropolitan Magistrate
South West District/Dwarka Courts
New Delhi