Delhi District Court
State vs . Tajuddin Khan 14:45:50 on 24 July, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 227/02 Digitally signed
by MANISH
PS : Lajpat Nagar (Crime Branch) KHURANA
U/s : 120B/406/420 IPC
MANISH Date:
KHURANA 2018.07.26
State Vs. Tajuddin Khan 14:45:50
Unique ID No. 86449/2016 +0530
Date of institution of case : 27.06.2002
Date of reserving the judgment : 19.07.2018
Date of pronouncement of judgment : 24.07.2018
J U D G M E N T
1. S. No. of the Case : 89/02/02
2. Date of Commission of Offence : October 2000
3. Name of the complainant : Nikhilesh Yadav
S/o Sh. Bal Kishan Yadav,
R/o H. No. 156/1, Jogabai,
Jamia Nagar, Okhla Village,
New Delhi110025
4. Name, parentage & address of accused : (i) Tajuddin Khan
S/o Sh. Jamaluddin
R/o A180, Jasola Vihar,
Delhi. (Presently at C1/38,
Old Jasola Village, Delhi25)
(ii) Khurshida Bano
W/o Sh. Tajuddin Khan
R/o A180, Jasola Vihar,
Delhi (since expired and
proceedings qua her
abated vide order dated
15.10.2013).
5. Offence complained of : u/s 120B/406/420 IPC
6. Plea of Accused : Pleaded not guilty
FIR No. 227/02 State Vs. Tajuddin Khan Page 1 of 24
7. Final Order : Convicted u/s 120B/420 IPC
Case of the Prosecution
1. The prosecution case is that on or about October 2000 and thereafter at Delhi and Noida accused Tajuddin alongwith coaccused Khurshida Bano (since died) entered into a criminal conspiracy with an object to cheat innocent public persons by taking money from them on the pretext of investment without any intention to repay the invested amount to the said persons and pursuant to the aforesaid criminal conspiracy both the accused persons fraudulently induced Nikhilesh Yadav, Kazi Afzal Ahmed, Aftab Alam, Mohd. AtaUllah Qashmi, Sabia Anwari, Shahida Khatoon and Sureia Begum to invest huge amount of money with them and promised all of them to pay the interest @ 2% per month without having any intention to pay the same and the accused persons did not pay the interest @ 2% per month as promised on the amount taken by them nor the money was returned and thereby accused persons committed an offence punishable u/s 120B/406/420 IPC. FIR was registered and after investigation, chargesheet was filed against the accused Tajuddin Khan and Khurshida Bano for the offence u/s 120B/406/420 IPC.
2. Cognizance of the offence was taken and the accused Tajuddin and Khurshida Bano were summoned, copies of chargesheet were supplied and thereafter, charge was framed against both the accused persons for the offence punishable u/s 120B/420 IPC. An alternate charge u/s 406 r/w s. 120B IPC was also framed against the accused persons regarding the abovesaid allegations. The accused persons pleaded not guilty and claimed trial. During trial of the case, accused Khurshida Bano expired and proceedings qua her abated vide order dated 15.10.2013.
3. During admission/denial of the documents, accused Tajuddin admitted FIR No. 227/02 State Vs. Tajuddin Khan Page 2 of 24 the copy of account opening form and bank account statement of account no. 1508 in the name of R N Enterprises as Ex.A1, GEQD Report bearing No. CX195/2002/487 dated 23.08.2002 as Ex.A2 and the report of office of Director, Fingerprint Bureau, Crime Branch Delhi no. 130/FPB, New Delhi dated 03.03.2003 as Ex.A3 vide his statement recorded u/s 294 Cr.PC dated 25.01.2018.
4. In order to prove its case, prosecution examined 21 witnesses.
5. PW1 Afzal Ahmed, PW2 Nikhilesh Yadav, PW3 Mohd. AtaUllah Qashmi, PW4 Sabia Anwari, PW5 Ehsan Ahmed, PW11 Salma, PW15 Razia Begum and PW20 Mohd. Shahid Ali are the alleged victims who deposed regarding the manner in which they were induced by the accused persons on the pretext of assurance of high returns on investment and they also stated that they paid money to the accused persons in consequence of the inducement. They were cross examined at length by Ld defence counsels.
6. PW6 Lajpat Anand deposed that he was running a jewellery shop and on 13.05.2002 SI Neeraj came to his shop and recorded his statement. The statement of this witness was recorded before the Court on 22.09.2009 wherein he stated that the accused Khurshida Bano came at his shop for 23 times about ½ to 2 years ago with some customers and she purchased the jewellery from his shop and some payments was due against her. During his cross examination he stated that he was having the bill of jewellery sold to Khurshida but he did not issue any legal notice to her for recovery of amount due. He denied that Khurshida Bano never visited his shop or that she never purchased any gold jewellery from his shop.
7. PW7 Sultan Iqbal Chaudhary deposed that on 15.06.2002 he was residing at B16, Nizamuddin East, Delhi and was doing the business of FIR No. 227/02 State Vs. Tajuddin Khan Page 3 of 24 transport and that one old lady used to come to his house to meet his mother Sarvari Begum. He stated that after some time another lady Khurshida Begum also started coming with her to his house and one day he received a complaint from EOW asking him to appear before the IO of some case and till then he was not aware about the present case. He stated that he was informed by the IO that there was some fraud case against Khurshida Begum. He stated that he was told by the IO that Khurshida Begum had been showing his house to the people to take money from them. He stated that till then he did not know Tajuddin. During his cross examination by Ld defence counsel he stated that nobody from EOW came to his house though Tajuddin came to his house on being called by his father for clarification. He denied that Khurshida Begum never came to his house or that he was deposing at the instance of Ld APP for the State.
8. PW8 Shiraj deposed that in the year 2001 he was a government contractor in PWD, Hauz Khas, Delhi and Nikhilesh Yadav was his friend and on 20.07.2001 he gave Rs. 1 Lac in cash to his friend Nikhilesh Yadav as a loan but he did not return the same. During his cross examination by Ld defence counsel he stated that no document was prepared for the said loan and he stated that he did not know about the accused persons.
9. PW9 HC Suresh Kumar was the Duty Officer who registered the present FIR Ex.PW9/B and made endorsement on rukka Ex.PW9/A.
10. PW10 Ct. Gauri Shankar deposed that on 29.04.2002 he was associated with the investigation of the present case alongwith IO SI Neeraj Kumar and on that day accused Tajuddin was arrested vide memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B and certain documents produced by accused Tajuddin were seized vide seizure FIR No. 227/02 State Vs. Tajuddin Khan Page 4 of 24 memo Ex.PW10/C. He could not tell the particulars of the documents produced by accused Tajuddin due to lapse of time. Ld APP for the State sought permission to cross examine this witness as he was resiling from his earlier statement u/s 161 Cr.PC recorded by the IO during investigation. During his cross examination he admitted that the photocopy of the documents relating to the property purchased by accused Tajuddin at Khasra No. 3488, Sarita Vihar, Loni District, Ghaziabad, UP were handed over by accused Tajuddin to the IO. During his cross examination by Ld defence counsel he admitted that the place of arrest of accused was a residential area and he could not tell as to whether IO requested any public person to join the investigation. He denied that he did not join the investigation with the IO or that no document was prepared in his presence or that no document was seized from the accused.
11. PW12 Abdul Aleem deposed that in the year 2000 he was working as a Teacher in Madarsa and he gave the sum of Rs. 85,000/ to his Bhabhi Shahida Khatoon in the month of February 2001 who further gave the money to accused Tajuddin Khan through his wife Khurshida Bano as Shahida Khatoon was assured profit @ 2% on the said amount by accused Khurshida Bano. During his cross examination by Ld defence counsel he stated that he did not know Khurshida Bano personally and he also stated that he did not have any receipt regarding payment of Rs. 85,000/ allegedly made to his Bhabhi Shahida Khatoon and that no receipt was executed in his presence between accused and his Bhabhi.
12. PW13 Mohd. Aabid stated that he was Imam in Masjid AbuBakar during the year 2001 and Shahida Khatoon was the wife of his master Abdul Rashid and on 13.02.2001 he gave Rs. 50,000/ to Shahida Khatoon on profit but he neither received the principal amount nor the profit FIR No. 227/02 State Vs. Tajuddin Khan Page 5 of 24 amount. During his cross examination by Ld defence counsel he stated that he did not know accused Khurshida Bano or Tajuddin.
13. PW14 Gaurav Sarki brought the current account opening form of M/s Friends Fibro Glass bearing account no. 1499/34, copy of which is Ex.PW14/A and its statement of account w.e.f 01.01.2001 to 07.03.2002 which is Ex.PW14/B. During his cross examination by Ld defence counsel he stated that he did not have any personal knowledge about the present case.
14. PW16 Umesh did not support the case of the prosecution and he was cross examined by Ld APP for the State during which he denied that the police inquired him regarding the present case or that he knew Nikhilesh Yadav. He also denied that he handed over the sum of Rs. 1,30,000/ on 25.07.2001 to Nikhilesh Yadav as a loan on his request. He denied that Nikhilesh Yadav did not return his money or that he was deposing falsely.
15. PW17 Retd. ACP B. M. Sharma deposed that on 13.05.2002 he was posted as Inspector at Crime Branch (EOW), Amar Colony and during investigation of this case on 02.06.2002 Mohd. AtaUllah produced cheque no. 124250 dated 14.12.2001 issued in his favour by accused Khurshida Bano alongwith bank slip dated 18.12.2001 vide which the said cheque was returned dishonoured. He stated that he seized the same vide memo Ex.PW3/B and Ex.PW3/C. He further stated that Mohd. AtaUllah also produced one pronote with receipt issued by accused Khurshida Bano for the sum of Rs. 33,70,000/ payable to Aftab Alam and AtaUllah which was seized vide seizure memo Ex.PW3/D. He further stated that on 04.06.2002 Nikhilesh Yadav produced him one photocopy of cheque no. 124239 dated 14.12.2001 and photocopy of cheque no. 124238 dated 13.12.2001 of Rs. 5 Lacs each alongwith respective bank slips regarding FIR No. 227/02 State Vs. Tajuddin Khan Page 6 of 24 dishonouring the cheques which were seized vide seizure memo Ex.PW17/A. He further stated that during investigation he obtained specimen signatures and thumb impression of accused Khurshida Bano and Tajuddin and sent those alongwith original questioned documents to GEQD, Government of India for comparison and report. He stated that he inquired the witnesses of this case and recorded their statements u/s 161 Cr.PC and after completion of investigation he prepared the chargesheet and submitted in the Court. He also stated that accused Afroz could not be traced and he was declared PO during the investigation. During his cross examination by Ld defence counsel he denied that no investigation was done by him or that he did not receive any cheques from the witnesses. He denied that he was deposing falsely.
16. PW18 Neeraj Arora deposed that in the year 2002 he was posted at CBT Section, EOW, Amar Colony as a SubInspector. In the month of February 2002 he was handed over preliminary inquiry on the complaint Ex.PW1/A and after conducting the same he prepared the rukka and got the present FIR registered. He stated that during the investigation he met the complainant and other victims and recorded their statements u/s 161 Cr.PC. He stated that he also seized one original promissory note executed by accused Khurshida Bano from Nikhilesh Yadav which is Ex.PW2/1 and another original promissory note issued by accused Khurshida Bano from Qazi Afzal Ahmed which is Ex.P1. He stated that Qazi Afzal Ahmed also handed over him two original stamp papers Ex.P2 one signed by accused Khurshida Bano and another signed by accused Tajuddin which were seized vide seizure memo Ex.PW1/C. He further stated that he also seized promissory notes issued by accused Khurshida Bano from Sabia Anwari and Shahida Khatoon which are Ex.PW4/B and Ex.PW5/A respectively. He stated that on 29.04.2002 he FIR No. 227/02 State Vs. Tajuddin Khan Page 7 of 24 arrested both the accused persons vide arrest memo already Ex.PW10/A and Ex.PW10/B and recorded their disclosure statement. He stated that thereafter he seized the property documents P1 to P4 and MarkX of accused Tajuddin vide seizure memo already Ex.PW10/C. He stated that he recorded further disclosure statement of accused Tajuddin Ex.PW18/D and thereafter on 15.05.2002 investigation of the present case was handed over by him to Inspector B M Sharma as per directions of the senior officers. During his cross examination by Ld defence counsel he admitted that the property documents Ex.P1 to Ex.P4 are dated 13.03.2000. He admitted that Ex.P4 is the receipt of Rs. 45,000/ and document MarkX dated 24.07.2000 is an agreement for total consideration of Rs. 31,000/. He could not tell as to whether the same amount was given by the victims to the accused as mentioned in the documents submitted by them. He stated that he had not verified the source of amount/payment made by various victims and their financial capacities who complained against the accused persons. He admitted that he had not obtained any document from the victims about their source of income. He denied that no amount was ever given by the victims to the accused persons. He admitted that the stamp paper for the document Ex.P2 was purchased in the name of Sabia. He denied that he never joined the victims in the investigation or that he was deposing falsely.
17. PW19 Balkishan Yadav deposed that in the year 2001 his son Nikhilesh Yadav was operating a shop of General Store Merchandise and Mobile Accessories at his house and on 25.05.2001 his son Nikhilesh told him that two persons Khurshida Bano and Tajuddin were asking for loan from him and were ready to pay the interest @ 2% per month. He stated that upon the asking of his son, he gave Rs. 1 Lac to his son to lend it to Khurshida Bano and Tajuddin. He stated that he used to sit at the shop FIR No. 227/02 State Vs. Tajuddin Khan Page 8 of 24 of his son where accused Tajuddin used to visit. During his cross examination by Ld defence counsel he denied that no amount was given by him to his son. He admitted that no written document was executed regarding extending the loan. He denied that no such document was executed because no loan was ever given by his son Nikhilesh to the accused persons. He was not aware as to whether any legal notice qua the refund of amount was ever given by his son. He admitted that he used to maintain the account of the supplier of the crockery item. He denied that he was deposing falsely.
18. PW21 Irshad Ahmed did not support the case of the prosecution and during his cross examination by Ld APP for the State he denied that police inquired him and recorded his statement. He denied that on 15.01.2001 and on 05.04.2001 he lent Rs. 50,000/ to AtaUllah Qashmi. He denied that he knew AtaUllah Qashmi or that he was deposing falsely.
19. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused Tajuddin to which he denied in its entirety and claimed innocence. He further stated that he was innocent and that he was falsely implicated by the complainants and that he was being dragged in the present case since its registration due to the reason that he was husband of accused Khurshida Bano. He stated that he did not receive a single penny nor his wife had received any money from the complainants at any point of time. He stated that the prosecution has not placed any document on record to prove his involvement in the present case nor any document has been placed on record to prove that any amount as alleged by the complainants was received by him at any point of time. No evidence was led by the accused in his defence.
FIR No. 227/02 State Vs. Tajuddin Khan Page 9 of 2420. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
21. Allegations against the accused are that on or about October 2000 and thereafter at Delhi and Noida accused Tajuddin alongwith coaccused Khurshida Bano (since died) entered into a criminal conspiracy with an object to cheat innocent public persons by taking money from them on the pretext of investment without any intention to repay the invested amount to the said persons and pursuant to the aforesaid criminal conspiracy both the accused persons fraudulently induced Nikhilesh Yadav, Kazi Afzal Ahmed, Aftab Alam, Mohd. AtaUllah Qashmi, Sabia Anwari, Shahida Khatoon and Sureia Begum to invest huge amount of money with them and promised all of them to pay the interest @ 2% per month without having any intention to pay the same and the accused persons did not pay the interest @ 2% per month as promised on the amount taken by them nor the money was returned and thereby accused persons committed an offence punishable u/s 120B/420 IPC and alternate charge u/s 406 r/w s. 120B IPC was also framed against the accused persons.
22. Section 415 IPC defines the term cheating as whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, reputation or property, is said to "cheat".
23. In the case in hand, as per the prosecution case the accused persons pursuant to the criminal conspiracy amongst them approached various persons and induced them to give them money on the pretext of FIR No. 227/02 State Vs. Tajuddin Khan Page 10 of 24 investment in their business on interest @ 2% per month whereas the accused persons did not have any intention to pay the interest or the principal amount taken by them. To prove the allegations, prosecution has examined PW1 Afzal Ahmed, PW2 Nikhilesh Yadav, PW3 Mohd. Ata Ullah Qashmi, PW4 Sabia Anwari, PW5 Ehsan Ahmed, PW11 Salma, PW15 Razia Begum and PW20 Mohd. Shahid Ali who are stated to be the victims in the present case and who were allegedly cheated by the accused persons pursuant to the criminal conspiracy.
24. PW1 Afzal Ahmed categorically deposed that his wife was working as teacher in KKP School, Zakir Nagar where the daughters of accused Khurshida Bano were studying and that accused Khurshida Bano used to visit said school where she acquainted with his wife. He also stated that accused Khurshida Bano used to visit his tenanted house at Zakir Nagar and that in the month of May 2001 accused Khurshida Bano and her husband accused Tajuddin alongwith their soninlaw visited his residence and the accused Khurshida Bano and Tajuddin allured him by saying that they were having one factory at Sector59 and that they had an export business of goods and readymade cloths with zari and it was also stated that their business was having a very good margin and if he would invest then he would be paid 2% interest on the invested amount. He also stated that both the accused persons took him to H. No. J16, Jungpura and showed him a big house and they claimed that the said house belonged to them. He also stated that on 20.05.2001 the accused persons again came at his residence at Zakir Nagar and on demand of the accused persons he handed over sum of Rs. 1,25,000/ in cash to the accused persons and the accused persons took the money on the plea that they would pay him 2% interest. He further stated that the accused persons further allured him to give the amount of Rs. 1,70,000/ in order FIR No. 227/02 State Vs. Tajuddin Khan Page 11 of 24 to meet their export order and the aforesaid amount was paid to the accused persons at his residence on 19.06.2001 and he further paid the amount of Rs. 1,25,000/ to them. He stated that later on he came to know that accused persons have cheated various persons and he alongwith other persons reached at the house of accused persons where accused Khurshida Bano executed pronotes Ex.P1 and Ex.P2 accepting her liabilities and accused Tajuddin promised to return the money latest by 30.11.2001 and the aforesaid fact was duly recorded in the affidavit signed and delivered by the accused persons.
25. Similarly PW2 Nikhilesh deposed that accused Khurshida Bano who used to come to his shop for getting his mobile phone recharged allured him on the pretext of her export business and she alongwith her husband accused Tajuddin showed him Rosy Picture about their business and on 25.05.2001 both the accused persons came to his shop and stated that they require money for investment in their business and that they would pay him 2% interest on the invested amount and accordingly he paid Rs. 3,50,000/ to accused Khurshida Bano and Tajuddin. He further stated that on 30.05.2001 the accused persons paid him the amount of Rs. 7,500/ as interest @ 2 % and on the same day both the accused persons stated that they require further amount of Rs. 10 Lacs as they had received a big order and on the assurance and allurance of both the accused persons he further gave the amount of Rs. 8,90,000/ to accused Khurshida Bano and Tajuddin on 30.07.2001. PW2 also stated that both accused again visited his house and assured to return his money within one month whereas after the expiry of one month when he visited the house of the accused he came to know that various other persons had also been visiting the house of accused persons and they had also been duped and cheated by the accused persons. He also stated that the accused FIR No. 227/02 State Vs. Tajuddin Khan Page 12 of 24 persons handed over him the promissory note and typed stamp paper in the month of November 2001 at their residence and assured to make the payment. He further stated that the accused persons in the month of December 2001 handed over two cheques of Rs. 5 Lacs each to make the payment to him, however, the aforesaid cheques dishonoured for the reason 'funds insufficient'. He also stated that during investigation of this case the police seized promissory note Ex.PW2/1 and the stamp paper Ex.P2 signed by the accused persons. This witness brought the original cheques issued by accused Khurshida Bano and the cheque returning memo regarding dishonoure thereof which are Ex.PW2/2 to Ex.PW2/7.
26. PW3 Mohd. AtaUllah Qashmi deposed that he was running an iter (fragrance shop) at his house no. 163, Basti Hazrat Nizamuddin and accused Khurshida Bano, her husband Tajuddin and their soninlaw Afroz used to visit shrine of Hazrat Nizamuddin and they used to buy iter from him and one day the accused persons told him that some delegation from Arab had come to Delhi and they needed iter. He further stated that accused persons also stated that he should expand his business and after two days the accused persons came to him and they took him to house no. D16 and stated that the aforesaid Kothi belonged to their business partner and they also took him to one showroom at Lajpat Nagar and stated that the said showroom belonged to him. The accused persons also took him to a house at Jangpura and Jasola Village and they also took him to Loni and showed him a plot of 500 sq. Yards and stated that the aforesaid plot belonged to them. He further stated that accused persons also told him that they were dealing in garment business and they induced him to invest Rs. 10 Lacs with them and they assured to give the lucrative profit of 2% on the said investment. He further stated that he told the accused persons that he did not have such amount of money upon FIR No. 227/02 State Vs. Tajuddin Khan Page 13 of 24 which the accused persons asked him to arrange the money from his relatives and friends and accordingly PW3 arranged the amount of Rs. 10 Lacs from his friends and relatives and paid the sum of Rs. 10 Lacs to accused person in two installments of Rs. 5 Lacs each in the month of January 2001. He stated that in the month of February 2001 both the accused persons came to him and paid the amount of Rs. 20,000/ and told that it was his profit and after some days accused persons again asked him to arrange some more money as they needed money for completing the consignment in their business. He also stated that accused persons also made him meet one Sheikh from Arab in Surya Hotel and said that they were exporting the goods to the said Sheikh and the accused persons further asked for amount of Rs. 10 Lacs from him and he somehow arranged the amount of Rs. 9,70,000/ from his friends and relatives in the beginning of April 2001. He stated that thereafter the accused persons kept on visiting the shrine but did not meet him and after about 1 ½ months he went to accused persons who told that their payment was about to be received and on the said pretext they kept on lingering on for about 06 months. He stated that when he visited the house of accused persons he found a number of investors who had come to demand their amount from them and at that time one Nikhil, Afzal, Aftab, Shahida w/o Abdul Rashid were present and he came to know about the conspiracy of the accused person. He stated that when he insisted for repayment of his amount, the accused persons gave him a cheque of Rs. 2 Lacs Ex.PW3/B which was dishonoured on presentation vide cheque returning memo Ex.PW3/C. Thereafter, when all the investors sat with the accused persons they handed over pronotes to every investor and he stated that joint pronote of Rs. 33.70 Lacs Ex.PW3/E was handed over by the accused persons. He stated that the aforesaid cheque and cheque returning memo FIR No. 227/02 State Vs. Tajuddin Khan Page 14 of 24 were seized vide seizure memo Ex.PW3/A and the pronote was seized vide seizure memo Ex.PW3/D. He further stated that he did not receive any money from the accused persons till date and the investors moved the joint complaint to the DCP EOW which is Ex.PW1/A.
27. PW4 Sabia Anwari deposed that the accused Khurshida Bano and Tajuddin were having relations with her mother who was staying in Loni, Ghaziabad, UP as the motherinlaw of accused Khurshida Bano was also resident of Loni, Ghaziabad, UP. She further stated that her mother once saved accused Khurshida Bano while she was beaten up by her mother inlaw and sisterinlaw and the accused Khurshida Bano, her husband Tajuddin and their soninlaw developed relations with her mother and after that accused persons started visiting her house and the house of her sisters and brothers and used to offer gifts to kids. She stated that when she objected to the lavish offering of gifts, the accused persons used to say that they were having prosperous business of exporting ladies suits having gold and silver embroidery and handicraft etc to Gulf Countries. She stated that accused Khurshida Bano induced her to become a partner in the said business. He stated that when she asked about the persons with whom the accused persons were having dealings, accused Khurshida Bano told that the big businessmen with whom she used to deal did not allow to disclose anything about them and that she must deal only with the accused persons. She stated that the accused asked her that she must rely upon her (Khurshida's) version as she had accepted her as a sister inlaw and that she would not cheat her and the accused Khurshida Bano asked her to invest Rs. 10 Lacs in the business. She stated that she showed her reluctance to arrange the said amount but somehow she arranged Rs. 5,40,000/ and paid the said amount in cash to the accused persons in the presence of daughters of the accused namely Tabassum FIR No. 227/02 State Vs. Tajuddin Khan Page 15 of 24 and Sonia and one Afroz was also present at that time. She also stated that after one month accused Khurshida and Tajuddin again came to her and told that they had received a large export order and asked her to arrange the amount of Rs. 7 Lacs but she told them that she did not have the said amount upon which they asked her to borrow the same from her relatives. She stated that she took the amount of Rs. 1,90,000/ from her fatherinlaw Mohd. Maqsood, Rs. 50,000/ each from sistersinlaw namely Razia and Shahjahan, Rs. 35,000/ from her daughter Safia, Rs. 50,000/ from her soninlaw Sarshar Nazim, Rs. 50,000/ from her Bhabhi Munni, Rs. 50,000/ each from her brothers Arif and Akil and Rs. 1.50 Lacs from her Dever Sharif Ahmed. She also stated that she filed the list of money borrowed by her which is Ex.PW4/A. She stated that on 12.01.2001. She handed over the amount of Rs. 7 Lacs in cash to accused Khurshida Bano and Tajuddin who assured her to return the money. She further stated that one day accused Khurshida Bano again came to her house and asked her to arrange the amount of Rs. 3 Lacs on the pretext that she required aforesaid amount of money as her consignment had been detained by the custom and that if she (PW4) did not pay the aforesaid amount then the accused persons would lose their money and consequently she (PW4) would also lose her money. She stated that she again arranged the amount of Rs. 3 Lacs from her relatives as mentioned in the list Ex.PW4/A and handed over the same to accused Khurshida Bano at her house on 18.03.2001. She stated that she used to visit the house of accused persons to ask them about her money where she used to meet other people as well who used to come for the same purpose. She stated that she developed some suspicion against the accused persons and she met some persons outside the house of accused who informed her that they had also come for return of their money. She did not remember FIR No. 227/02 State Vs. Tajuddin Khan Page 16 of 24 the date when the accused Tajuddin and Khurshida executed the pronote Ex.PW4/B and stamp paper Ex.P2. She also stated that the accused acknowleged only the payment of Rs. 15 Lacs vide the said documents instead of total amount of Rs. 15,40,000/ and she made the complaint regarding the balance amount of Rs. 40,000/ in PS Chandani Mahal which is MarkEx.PW4/X. She stated that the accused persons did not return her money and instead they started keeping bad elements to threaten the investors and thereafter she alongwith other investors made the police complaint. She stated that the documents which were handed over by her to the police were seized vide seizure memo Ex.PW4/C.
28. PW5 Ehsan Ahmed deposed that he gave the sum of Rs. 2 Lacs to Ata Ullah Qashmi who introduced him to accused Khurshida Bano and asked him to invest money with her as they were in business of embroidery work and suits etc. He stated that he gave the sum of Rs. 4 Lacs in total in two installments to AtaUllah Qashmi for Khurshida Bano and the said amount was paid by AtaUllah Qashmi to Khurshida Bano. He stated that the amount of Rs. 2 Lacs was given by him in the month of January 2001 and Rs. 2 Lacs in April 2001 whereas in the month of October 2001 accused Khurshida Bano gave the cheque of Rs. 2 Lacs Ex.PW3/B to AtaUllah Qashmi drawn on Jamia Cooperative Bank in the presence of Afzal, Nikhilesh, Sabia Anwar etc which was dishonoured and the same was seized vide seizure memo Ex.PW3/A. He stated that thereafter Panchayat was arranged and accused Khurshida Bano gave the promissory note amounting Rs. 20 Lacs Ex.PW5/A which was signed by him and Afzal as witnesses. He stated that he gave the amount of Rs. 4 Lacs in cash to accused through AtaUllah Qashmi in the hope of getting profit of 2% per month. He identified the accused Khurshida Bano in the Court.
FIR No. 227/02 State Vs. Tajuddin Khan Page 17 of 2429. PW8 Shiraj deposed that on 20.07.2001 he gave the amount of Rs. 1 Lac in cash to his friend PW2 Nikhilesh as loan which was not returned by him. PW11 Salma also stated that on 18.03.2001 she gave the sum of Rs. 50,000/ to Khurshida Bano on interest basis as she came to her house and the said money was not returned by her. PW12 Abdul Aleem deposed that in the month of February 2001 he gave the amount of Rs. 85,000/ to his Bhabhi Shahida Khatoon who further gave the said money to accused Tajuddin through his wife Khurshida Bano as she assured the profit @ 2% on the said amount. PW15 Razia Begum deposed that in the year 2002 she and her husband gave the amount of Rs. 1 Lac to Khurshida Bano on the assurance of high return but after a lapse of lot of time neither the principal amount was returned nor any profit was given. PW19 Bal Kishan Yadav deposed that on 25.05.2001 his son Nikhilesh Yadav (PW2) told him that accused Khurshida Bano and Tajuddin were asking loan from him and were ready to pay the interest @ 2% per month and upon the asking of his son, he gave the amount of Rs. 1 Lac to lend it to Khurshida Bano and Tajuddin. He stated that accused Tajuddin used to visit the shop of his son for purpose of general store items and mobile coupons and he stated that he also used to sit on the shop of his son. He identified accused Mohd. Tajuddin. PW21 Mohd. Shahid Ali deposed that in the year 2001 he came in contact with accused Tajuddin and Khurshida Bano and in the month of January 2001 accused Tajuddin and Khurshida Bano asked him to lend them the sum of Rs. 50,000/ and they assured him to pay the interest @ 2 % per month and believing their words he lent the said amount and initially for the one month the accused persons paid him the interest @ 2 % but thereafter they told that they had invested some money in Gulf Countries which got stuck their and very soon they would return his money alongwith his interest. He further FIR No. 227/02 State Vs. Tajuddin Khan Page 18 of 24 stated that the accused Tajuddin and Khurshida Bano further asked him to lend them a sum of Rs. 50,000/ as they required more money to invest in their export business and assured him that as soon as they would receive money from Gulf Countries they would pay the entire dues. He also stated that he again lent Rs. 50,000/ to the accused persons and the said amount was paid in cash to accused Tajuddin. He stated that thereafter the accused persons did not return the principal amount nor the interest was paid. He stated that his statement was recorded by the police and he identified accused Tajuddin in the Court.
30. Perusal of the testimonies of PW1 Afzal Ahmed, PW2 Nikhilesh Yadav, PW3 Mohd. AtaUllah Qashmi, PW4 Sabia Anwari and PW20 Mohd. Shahid clearly reveals the factum of involvement of accused Tajuddin and Khurshida Bano (since expired) in the commission of alleged offence of cheating pursuant to criminal conspiracy amongst them. All the aforesaid PWs deposed regarding the manner in which they were approached and induced by accused Khurshida Bano (since expired) and accused Tajuddin on the pretext of providing them high rate of return.
31. Section 10 of Indian Evidence Act, 1872 provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was party to it.
32. In the judgment of Jayendra Saraswati Swamigal Vs. State of Tamil Nadu, AIR 2005 SC 716, Hon'ble Supreme Court observed that if prima FIR No. 227/02 State Vs. Tajuddin Khan Page 19 of 24 facie evidence of conspiracy is given and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of their common object is admissible against all.
33. The manner in which accused Khurshida Bano and accused Tajuddin approached and induced the abovesaid PWs/victims clearly reveals that both the accused were actively involved in the act of inducement to the abovesaid victims for eliciting money from them on the pretext of assurance of high returns. Perusal of testimony of PW4 Sabia Anwari reveals that she was even threatened to lose all the money already given by her to the accused persons in case she failed to pay the further amount of Rs. 3 Lacs to the accused persons. The modus operandi adopted by the accused persons for inducement to the victims for taking money from them shows that the accused Khurshida Bano and Tajuddin conspired together to elicit money from the victims by inducing them on the pretext of assurance of high returns and the alleged offence of criminal conspiracy and cheating was committed by the accused persons in a well planned manner.
34. Ld defence counsel for accused Tajuddin argued that no documentary proof of payment has been placed on record by any of the alleged victim examined by the prosecution, therefore, it cannot be said to have been proved that the alleged victims/PWs gave money to the accused persons.
35. So far as abovesaid argument raised by Ld defence counsel is concerned, it is pertinent to mention that all the abovesaid PWs stood well during their cross examination regarding the role played by the accused persons while inducing them and the factum of making of payment by them to the accused persons. It is also pertinent to mention that when the abovesaid PWs alongwith other victims visited the house of accused persons, various pronotes Ex.P1, Ex.PW2/1, Ex.PW3/E, Ex.PW5/A and Ex.PW4/B FIR No. 227/02 State Vs. Tajuddin Khan Page 20 of 24 regarding the payments received were executed by accused Khurshida Bano and even the stamp papers containing the acknowledgment of liabilities towards the victims duly signed by accused Khurshida Bano and accused Tajuddin Ex.P2 were executed. The accused Tajuddin admitted his signatures on the stamp paper Ex.P2 vide which he acknowledged the liabilities towards the victims vide his statement dated 25.01.2018 u/s 294 Cr.PC. Even during the cross examination of the victims/PWs examined by prosecution, the execution of pronotes and execution of document/stamp paper Ex.P2 were not disputed.
36. Ld defence counsel during the arguments also raised the plea that the accused persons were made to sign the aforesaid pronotes and stamp paper under pressure by the alleged victims who have been examined by the prosecution as prosecution witnesses. Ld defence counsel also pointed out that the stamp paper on which the signature of accused Khurshida Bano appeared was purchased by PW Sabia Anwari.
37. In this regard, it is pertinent to mention that the signatures of accused Khurshida Bano over pronotes, vide which she acknowledged her liability towards victims, are not disputed nor the signatures of accused Tajuddin are disputed over the stamp paper Ex.P2 vide which he acknowledged his liability towards the victims. Merely the fact that the stamp paper on which accused Khurshida Bano signed and acknowledged her liabilities towards the victims was purchased by PW Sabia Anwari does not disprove the case put forth by the prosecution because vide aforesaid document accused Khurshida Bano acknowledged her liabilities towards PW Sabia Anwari and no law provides that the stamp paper should have only been purchased by accused Khurshida Bano and not by PW Sabia Anwari in whose favour the said document was executed. Further, it is pertinent to mention that the stamp paper vide which accused Tajuddin FIR No. 227/02 State Vs. Tajuddin Khan Page 21 of 24 admitted his liabilities is admittedly signed by him and endorsement on the back side of the said stamp paper clearly reveals that the said stamp paper was purchased by accused Tajuddin himself. Further, had the accused persons not received any money from the victims they would not have signed over any such document. Ld defence counsel failed to explain as to why the aforesaid documents were signed by the accused persons acknowledging their huge liability towards the victims and as to why no police complaint regarding the execution of said documents under pressure was ever made by the accused persons. In the present case cheques drawn on Jamia Cooperative Bank Ltd, Batla House, Jamia Nagar were also issued by accused Khurshida Bano in favour of the victims which were dishonoured on presentation. The issuance of cheques by accused Khurshida Bano or the dishonour thereof has not been challenged by the accused persons during the cross examination of victims. Section 139 Negotiable Instrument Act raises a presumption that a negotiable instrument is executed in discharge of a legal liability. The accused failed to explain as to why the aforesaid cheques were issued by accused Khurshida Bano in favour of victim Mohd. AtaUllah Qashmi and Nikhilesh Yadav if there was no liability towards them as alleged. Had the accused persons not known the victims or had the accused persons not taken any money from them, they would have certainly complained regarding execution of documents under pressure to police authorities or any other law enforcing agency. The conduct of the accused persons, execution of documents/pronotes/stamp papers acknowledging liability by the accused persons and the testimony of victims/witnesses recorded by the prosecution clearly point towards the guilt of the accused persons.
38. The abovesaid PWs examined by the prosecution explained the manner in FIR No. 227/02 State Vs. Tajuddin Khan Page 22 of 24 detail in which they were induced by the accused persons for eliciting money from them on the pretext of assurance of high returns. Various public persons have been examined by the prosecution, who are unrelated to each other, and they have supported the case put forth by the prosecution.
39. The essential ingredient of the offence of "criminal conspiracy" is the agreement to commit an offence and mere proof of such an agreement is sufficient to establish criminal conspiracy. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, done or written by any one of such persons in reference to their common intention, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of conspiracy and for the purpose of showing that any such person was party to it.
40. In the case in hand, the testimonies of PWs examined by the prosecution explaining the role played by accused Khurshida Bano and Tajuddin in inducement to victims and execution of pronotes and other documents bearing signatures of the accused persons in favour of victims provide reasonable ground to believe that the accused Khurshida Bano and accused Tajuddin conspired to commit the offence of cheating and these are relevant facts to prove the existence of criminal conspiracy amongst them. Had the aforesaid PWs/victims not been induced by the accused persons with a wrongful intention, they would have not given any money to the accused persons.
41. In view of the abovesaid facts and circumstances, I am of the considered opinion that the prosecution has proved beyond reasonable doubts that accused Khurshida Bano (since expired) and accused Tajuddin committed the offence of criminal conspiracy to commit the offence of cheating and FIR No. 227/02 State Vs. Tajuddin Khan Page 23 of 24 pursuant to the criminal conspiracy amongst them they cheated the victims by inducing them to give them money on the pretext of assurance of high returns.
42. Therefore, accused Tajuddin is hereby convicted for the offence u/s 120B/420 IPC. Let the accused Tajuddin be heard on the point of sentence.
Announced in the open court Today on 24.07.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/24.07.2018 FIR No. 227/02 State Vs. Tajuddin Khan Page 24 of 24