Delhi District Court
State vs . Trilok Singh on 1 July, 2015
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTHEAST)07, NEW DELHI
FIR No. : 279/95
U/s : 420/511/471 IPC
PS : KM Pur
State Vs. Trilok Singh
JUDGMENT
a The Sl. No. of the case : 45/1/14
b The date of commission : 24.06.1994
c The date of Institution of the case : 10.03.1998
d The name of complainant : M. C. Singhal
e The name of accused : Trilok Singh Bakshi
S/o Niranjan Singh Bakshi
R/o V275, Rajori Garden, New
Delhi.
f The offence complained of : 420/511/471 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 16.05.2015
i The final order : Convicted
j The date of judgment : 01.07.2015
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The accused has been sent for trial on the allegations that on or before 24.06.1994 at the office of DDA Vikas Sadan within the jurisdiction of P.S. Kotla Mubarak Pur, he had attempted to cheat DDA as well as the owner of the plot No. A5/15, Paschim Vihar, New Delhi( hereinafter case property plot) by moving an application alongwith forged GPA, Agreement to sell and other documents and attempted to induce DDA to convert the said plot from lease hold to free hold and FIR No. 279/95 Page 1 of 25 thereby committed offences punishable under section 420/511/471 IPC. Investigation was conducted and chargesheet was filed in the court on 10.03.1998. 2 Charge for commission of offences punishable u/s 420/511/471 IPC was framed upon the accused on 22.04.1999 to which he pleaded not guilty and claimed trial.
3 In support of its case prosecution examined 7 witnesses.
PW1/complainant is M.C. Singhal, who being the Senior Assistant Director, Personal Branch, DDA Vikas Sadan has deposed that from June 1994 up till June 1995, he was posted as Assistant Director Lease Administration (Residential) in DDA and was looking after the work of lease deeds etc. One Trilok Singh had applied regarding one plot No. A6/15, Paschim Vihar for conversion of this plot into free hold. The file of this case came to him after due investigation done by Vigilance Branch and also of Legal Department and he was instructed to lodge the FIR in police as the papers submitted by the applicant for conversion of the plot to free hold were found to be false or forged and proved his complaint to this effect Ex. PW1/A. He has further deposed that he was relieved from the said post on 19.06.1995 and apart from filing the complaint he did not do anything in the present case and he did not see Trilok Singh.
PW2 is Ram Kishan, who being Assistant Establishment Section, DDA INA, New Delhi has deposed that he was assistant in the year 1995 in Lease Administration Branch. A file was received from Vigilance Department which was regarding conversion of plot A5/15, Pashchim Vihar applied by accused Trilok Singh. Vigilance Department had recommended for lodging for an FIR against the FIR No. 279/95 Page 2 of 25 person who had applied for conversion of plot to free hold as the documents submitted by the applicant were found to be forged. The file was accordingly put by him to other senior officer upto Commissioner where FIR lodging was approved. He had prepared draft of the complaint and put up the same to my Deputy Director which was marked to Sh. M.C. Singhal, Asst. Director (LA) for lodging the FIR. He did not see the accused Trilok Singh at any point of time nor can identify him. He had met police who had made enquiries from him and recorded his statement. The original allottee was one Naresh Kumar Gupta of the plot and his wife Meena had applied for mutation of the plot after his death. He had handed over the photocopies of the relevant papers to the IO of the case. He has exhibited the original record of the plot like perpetual deed vide Ex. PW2/A, which was signed by T.C. Sharma, LAO, application for conversion made by accused vide Ex. PW2/B1 to B4 and the photocopy of the perpetual lease deed annexed alongwith the application submitted by accused vide Ex. PW2/C was found to be false as it did not telly without record and was signed by one H.C. Dixit on behalf of DDA and also exhibited the photocopies of the power of attorney of other documents like special power attorney, will , general power attorney as Ex. A1 to A4.
PW3 is HC Krishan Lal who being posted as Duty Officer has proved the registration of FIR vide Ex. PW3/A. PW4 is P.L. Nagpal, who being Deputy Director (NL) DA, has stated that file pertaining to this case was never put before him and did not support the case of the prosecution despite cross examination by Ld. APP.
PW5 is Meena Gupta, who in her deposition has deposed that in the FIR No. 279/95 Page 3 of 25 year 1996 she was residing with her parents at Jaipur and in the year 1986, she moved an application that the accused Trilok Singh, whom she correctly identified, had forged her signatures and tried to grab the plot No. A5/15, Paschim Vihar, which was in the name of her husband Naresh Kumar Gupta, who was missing since 1977 and his whereabouts are not known. A complaint regarding missing of her complaint was also filed before PS Karol Bagh. During investigation police official obtained her specimen signatures on some papers vide Ex. PW5/A1 to PW5/A4. She has also stated that the the documents filed by the accused with DDA for grabbing the plot were not hers and same were forged. She never writes her name and signed as Meena Devi. She always writes her name and signs as Meena Gupta. She did not remember as to whether the documents were shown to her by the DDA or not. In the year 1996 the mutation of the said plot was mutated in her name by the DDA. It is pertinent to note that the PW5 was also cross examined by Ld. APP and in said cross examination PW5 has further admitted that the said mutation was applied in the year 1996, application and documents filed by the accused for getting the said plot free hold in DDA were shown to her. She had also stated to the DDA Official that the same were not bearing her signatures and her signatures were forged. She has also stated that specimen writing as Meena Devi as Ex. PW5/B1 and B2 was also obtained by the police from her during investigation and inadvertently she stated the year 1986 instead of 1996.
PW6 is SI Hari Singh, who being the IO has proved the investigation done by him in the present case and has proved and exhibited the documents prepared during course of investigation like his endorsement Ex. FIR No. 279/95 Page 4 of 25 PW6/A on the complaint Ex. PW1/A, specimen signatures of accused vide Ex. PW6/B1 to Ex. PW6/B4, specimen signatures of complainant Meena vide Ex. PW5/B1 to Ex. PW5/B2, PW7 is Harsh Vardhan, Assistant Director (documents) FSL, Madhuban, Karnal, Haryana, who in his deposition deposed that documents of this case were forwarded by SHO PS. K.M. Pur vide memo No. 959/KM dated 24.04.1997 and received in his Devision on 24.04.1997 and proved the details of the said documents vide his report Ex. PW7/A which is also containing the detailed reasons alongwith the opinion.
All the PWs have been duly cross examined by Ld. Defence Counsel except PW5, PW3 and PW7 and for these 3 PWs also opportunity to cross examination was not availed by the accused.
4 Statement of accused was recorded U/s 313 Cr.P.C., wherein accused has denied all the allegation made against him. He has also deposed that it is a false case registered against him and also deposed that he has taken the plot in question from one Mukesh Gupta and the documents which the Mukesh Gupta provided to him he has annexed with the documents and plot was given to the Meenaji. Mukesh is wrong. He has deposited Rs. 25085/ in the DDA and has examined himself as DW1 in his defence.
5 I have heard Ld. APP for the State, Ld, defence counsel for the accused persons and also gone through case file very carefully. 6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
FIR No. 279/95 Page 5 of 25 7 I have perused the case file very carefully and have duly considered the respective arguments.
8 Before discussion on the merits of the case it would be pertinent to quote the relevant law in the present case. The prosecution has charged the accused for attempt to commit the offence of cheating as well as use of forged documents for dishonest purpose and thus the accused was made to stand trial for offence u/s 420/511/471 IPC meaning thereby that the accused faces allegations for attempt to commit cheating and for use of forged documents. The allegation against the accused pertains to seeking of conversion of the case property plot from lease hold to free hold on the basis of forged perpetual lease deed, forged agreement to sell, GPA and other documents like forged NOC of victim PW5 Meena Gupta by way of commission of the said offences.
9 Relevant Law Section 415 IPC (cheating) 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, mind, reputation or property, is said to "cheat".
Section 420 IPC (cheating and dishonestly inducing delivery of property) Whoever cheats and thereby dishonestly induces the person deceived to FIR No. 279/95 Page 6 of 25 deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC (using as genuine a forged [document or electronic record]) Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
Section 511 IPC (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
Section 11 of IPC defines the word 'person' as " The word ' person' includes any Company or Association or body of persons, whether incorporated or not.
FIR No. 279/95 Page 7 of 25 10 Ingredients of the offences The ingredients of the offence u/s 471 IPC inter alia are as follows.
Whoever:
1. Uses as genuine any document.
2. That document is infact a forged document.
3. Accused knows or has reason to believe that document to be a forged one.
4. Still accused uses it fraudulently or dishonestly.
If all these ingredients are satisfied then accused commits the offence under this section and is liable to be punished in the same manner as if he has forged such document.
The ingredients of the offence of cheating u/s 415 IPC are that cheating requires:
1. Deception by the accused.
2. (a) Fraudulently or dishonestly inducing the complainant:
(i) to deliver any property to any person: or
(ii) to consent that any person shall retain any property or
(b) Intentionally inducing the complainant 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 the complainant in body, mind, reputation or property.
FIR No. 279/95 Page 8 of 25
Cheating and dishonestly inducing delivery of property is an offence u/s 420 IPC and is an aggravated form of the offence of cheating defined u/s 415 IPC. The ingredients of the aggravated form of cheating are:
(i) deceiving any person and definition of the word 'person' is given in section 11 IPC.
(ii) Dishonestly or fraudulently inducing the complainant to :
(a) to deliver any property to any person; or
(b) to consent that any person shall retain any property
(c) to make, alter or destroy a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security( emphasis supplied).
11 Onus to prove the case beyond reasonable doubt It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
FIR No. 279/95 Page 9 of 25 12 Documents exhibited during the trial on behalf of the prosecution as well as the accused.
Documents proved Concerned PW
Ex. PW1/A complaint PW1 M.C. Singhal, Sr.
Assistant Director,
Personal Branch, Vikas
Sadan. New Delhi.
Ex. PW3/A which is the FIR 279/95 lodged on the above PW3 DO/HC Krishan complaint. Lal.
Ex. PW2/A original perpetual lease in favour of Late PW2 Ram Kishan
Naresh Kumar Gupta hushand of victim PW5 Meena Assistant,
Gupta. Establishment Section,
DDA
Ex. PW2/C which is the alleged forged lease deed PW2 as above.
presented by the accused.
Ex. PW5/A1 and A2 which are the specimen signatures PW5 victim Meena of PW5 written as "Meena Gupta" Gupta.
Ex. PW5/A3 and A4 which are the specimen signatures PW5 victim Meena of PW5 written as "Meena Kumari" Gupta.
Ex. PW5/B1 and B2 which are the specimen signatures PW5 victim Meena of PW5 written as "Meena Davi" Gupta.
Ex. PW6/A which is the endorsement on the complaint IO /SI PW6 Hari Singh Ex. PW6/B1 to B4 which are the specimen signatures IO /SI PW6 Hari Singh of accused Trilok Singh as " T. Singh"
FIR No. 279/95 Page 10 of 25
Ex. PW6/C1 to C3 which are the specimen signatures IO /SI PW6 Hari Singh of accused as "Meena Devi "
Ex. PW6/D and PW6/E which documents are the IO /SI PW6 Hari Singh alleged forged NOC written to DDA on behalf of Meena Gupta stating that her husband Naresh Kumar Gupta has sold the plot to one Mukesh Kumar who in turn sold it to accused Trilok Singh and that she has no objection to conversion of the said plot to free hold in favour of accused Trilok Singh and other exhibit is the letter written by the accused requesting DDA to convert the case property into a free hold respectively. In the said letter the accused referred the NOC given by PW5 which is Ex. PW6/D in February1994 and also deposited the fees of Rs. 25000/ towards conversion and which application was submitted along with the photocopy of the allegedly forged lease deed Ex. PW7/A which is the FSL report PW7 Harshvardhan, Asstt. Director, (Documents) FSL Madhuban, Karnal, Haryana.
13 Now I will discuss as to what facts have been proved by the prosecution in presenting its case;
FIR No. 279/95 Page 11 of 25
(i) PW1 is Sh. M.C. Singhal who is Senior Assistant, Director Personal Branch, DDA, Vikas Sadan, he has deposed that the accused had applied for conversion of the case property plot from lease hold to free hold and due to the complaint of forgery by the vigilance branch of DDA, he on instructions of Superior Officers lodged the complaint Ex. PW1/A signed by him at point A.
(ii) PW2 is Ram Kishan, Assistant Establishment Section,DDA INA who has corrbobrated the version of PW1 that vigilance Branch has complained of forgery in the papers on basis of which conversion was applied and he on instructions of the superior officers of DDA prepared the draft of complaint Ex. Ex.PW1/A. He deposed that the original allottee/ lessee from owner DDA was late Naresh Kumar Gupta whose wife PW5 Meena Gupta had applied for mutation of the plot after death of the original lessee and the original lease deed Ex. PW2/A was signed by Sh. T.C. Sharma, LAO, DDA whereas the application of conversion of case property plot was made by accused on basis of the forged lease deed Ex. PW2/C( which was signed by one HC Dikshit and same did not tally with the original record brought by him in the court), false documents like SPA, GPA ( mark A1 to mark A4) etc.
(iii) PW5 is the victim Meena Gupta, the legal heir of the original allottee late Sh. Naresh Kumar Gupta as wife. She deposed that the documents filed by accused with DDA were not hers and that she never signed her name as "Meena Devi" but always signed as "Meena Gupta". She further deposed that the police took her specimen signatures as Ex. PW5/A1 to A4 which have been given in detail in the table above. She also identified the accused as the one who has FIR No. 279/95 Page 12 of 25 forged her signatures in the NOC Ex. PW6/D.
(iv) PW6 is IO HC Hari Singh ( Retired) who states that on these facts he arrested the accused identified by him in the court. He collected the copies of the forged documents of the accused which are already mentioned in paragraph No. 3 where evidence of PW6 is outlined. He took specimen signatures of the accused as well as PW5 victim Meena Devi which are already mentioned in detailed in the table above, collected forged NOC Ex. PW6.D and application for conversion made by accused is Ex. PW6/E.
(v) PW7 is the FSL expert whose report is based on the questioned and specimen signatures of the accused as well as PW5 and relies heavily on the admitted signatures of PW5 Meena Devi in the letter written by her to DDA requesting mutation of the plot in her name and in name of her minor children after death of her husband and the said letter is dated 2.6.1994 and her signatures in the said letters are identified therein at point A1, The IO had submitted two applications Ex. PW6/D and PW6/E for opinion of the FSL Expert whether the signatures as Meena Devi on the NOC Ex. PW6/D belonged to PW5 or whether they are forged. The detail of the said NOC as well as the request letter for conversion is already mentioned in the table above. Following are the documents on which the opinion of the FSL expert is based.
Following are the documents on which opinion is based:
FSL Exhibits Court Exhibits Nature of Remarks Specimen signatures document (S), questioned signatures (Q) and FIR No. 279/95 Page 13 of 25 admitted signatures of victim PW5 (A1) S1 to S5 Ex. PW6/B1 to Specimen Made by accused B4 signatures of on direction of IO.
accused Trilok Singh written as " T. Singh"
S6 to S8 Ex. PW6/C1 to Specimen Made by accused
C3 signatures of on direction of IO
accused Trilok
Singh written as
" Meena Devi"
S9 & S10 Ex. PW5/B1 and Specimen Made by accused
B2 signatures of PW5 on direction of IO
Meena Gupta
written as " Meena
Devi"
S11 and S12 Ex. PW5/A1 and Specimen Made by accused
A2 signatures of PW5 on direction of IO
Meena Gupta
written as " Meena
Gupta"
S13 and S14 Ex. PW5/A3 and Specimen Made by accused
A4 signatures of PW5 on direction of IO
Meena Gupta
written as " Meena
Kumari"
A1 Part of FSL It is the admitted Collected by the
report Ex. handwriting of IO as admitted
FIR No. 279/95 Page 14 of 25
PW7/A PW5 victim Meena handwriting of
Gupta whereby she PW5 and not
has requested challenged by the
mutation of the plot accused during the
in her name and in course of trial.
name of her minor
children after death
of her husband and
the said letter is
dated 2.6.1994 and
her signatures in
the said letters are
identified therein at
point A1
Q1 and Q2 Ex. PW6/D and Ex. PW6/D and Collected by the IO
Ex. PW6/E and
PW6/E which are
Q1 co relates to
the signatures the alleged forged
made by accused
NOC written to
on his own
application DDA on behalf of
requesting the
Meena Gupta
DDA to
converting the stating that her
case property
husband Naresh
plot from lease
hold to free hold Kumar Gupta has
in Ex. PW6/E
sold the plot to one
and Q2 co relates
to the allegedly Mukesh Kumar
questioned
who in turn sold it
signatures of
Meena Devi to accused Trilok
FIR No. 279/95 Page 15 of 25
forged by the Singh and that she
accused Trilok
has no objection to
Singh in Ex.
PW6/D. conversion of the
said plot to free
hold in favour of
accused Trilok
Singh and other
exhibit i.e. PW6/E
is the letter written
by the accused
requesting DDA to
convert the case
property into a free
hold. In the said
letter the accused
referred the NOC
given by PW5
which is Ex.
PW6/D in
February1994 and
also deposited the
fees of Rs. 25000/
towards conversion
FIR No. 279/95 Page 16 of 25
and which
application was
submitted along
with the photocopy
of the allegedly
forged lease deed
Opinion given by the FSL Expert in FSL report Ex. PW7/A which has not been challenged by the accused by way of cross examination despite opportunity.
It is opined by the FSL export that the enclosed signatures on Ex. PW5/B1 and B2 as well as Ex. PW5/A1 to A4, marked S9 to S14 written by PW5 and also admitted signatures A1 on the request letter dated 2.6.1994 by PW5 Meena Devi for conversion of the case property plot on basis of original lease deed and other documents did not match and are not written by the same person who signed on the red enclosed signatures Q2 which is a signatures on Ex. PW6/D ( forged NOC written in name of Meena Devi by the accused). However, it was clearly opined that the person who wrote signatures S1 to S5 in Ex. PW6/B1 to B4 also wrote the red enclosed signatures in Q1 signed in Ex. PW6/E which is the request letter of accused to DDA for conversion of the case property. Hence, it is clear that PW5 did not write the NOC Ex. PW6/D which was knowingly presented by the accused before DDA in February1994 and on which he has FIR No. 279/95 Page 17 of 25 relied in his letter for conversion Ex. PW6/E while submitting the forged lease deed signed by one H.C. Dikshit instead of T.C. Sharma of DDA.
(vi) So it is proved that PW5 did not write the allegedly fake NOC Ex. PW6/D and on the other hand accused on basis of this NOC admittedly submitted by him in Feb1994 along with fake lease deed and other documents has sought to convert case property plot from lease hold to freehold by way of application Ex. PW6/E which as per FSL report is proved to have been signed by the accused.
14 Now I will proceed to discuss whether the charge alleged against the accused of attempt to cheat DDA as well as PW5 Meena Gupta by commission of the offence of used of forged lease deed and forged NOC alongwith other forged documents given by one Mukesh Kumar in favour of Trilok Singh i.e. agreement to sell, GPA, SPA, Indemnity bond, Affidavit , receipt etc. have been proved on the basis of aforementioned proven facts against the accused. However, I will take up section 471 IPC first as if this offence proved, it will have a clear reflection on the proof of the commission of the attempt to cheat on part of the accused.
Discussion of the ingredients of the offence u/s 471 IPC inter alia is as follows.
Section 471 IPC provides that whoever:
(i) Uses as genuine any document.
It is part of the case of the prosecution which is admitted by the accused that he made the application for conversion on basis of the purported FIR No. 279/95 Page 18 of 25 lease in favour of one Mukesh alongwith fees of Rs. 25000/ for conversion of the case property plot. It is also proved that the accused used the forged NOC letter to DDA to his own knowledge wherein the victim PW5 stated that she has no objection to the said conversion. Accused admitted having filed this NOC alongwith other documents i.e. forged lease dead Ex. PW2/C for the purpose of conversion. Hence it is clear that the accused sought to use Ex. PW6/D( Forged NOC) as well as the forged lease deed Ex. PW2/C alongwith false documents apparently executed by Mukesh Kumar in favour of Trilok Singh for change of title in favour of the accused. Hence this ingredient stands proved.
(ii)That document is infact a forged document.
It is proved that the documents Ex. PW6/D and Ex.
PW2/C are forged documents were made a foundation by the accused for conversion of the case property to free hold property in his favour. Hence this ingredient stands proved.
(iii) Accused knows or has reason to believe that document to be a forged one.
It is clear that the accused knew about the lease deed Ex. PW2/C and the NOC Ex. PW6/D as having been forged as he has admitted having made the application for conversion and filed the same with the forged NOC and the lease deed which is written in the said admitted application Ex. PW6/E which is also proved by FSL report signed by him. His defence is that he in fact has been cheated by one Mukesh Kumar who gave him the lease deed and other documents FIR No. 279/95 Page 19 of 25 and that he is a bonafide purchaser of the property from Mukesh Kumar but this defence is a false defence raised by him because neither he has filed any application to cite Mukesh Kumar either as an accused or as a defence witness nor during the investigation he asked for interrogation of Mukesh by way of filing any application before the court at that time. It is clear that he had a reason to believe the said documents to be forged in view of these circumstances and in view of the proof of forgery proved in the FSL report Ex. PW7/A. If the accused had been ignorant of the forgery in the NOC, he would not have relied upon the same in his request letter Ex. PW6/E and seeking conversion by depositing fees for the same. Hence this ingredient stands proved.
(iv) Still the accused uses it fraudulently or dishonestly. This act of seeking conversion of case property plot from lease hold to free hold is clearly fraudulent act of accused perpetrated on DDA and also would have caused wrongful loss to DDA as well as PW5 and wrongful gain to the accused as it is basically the DDA who as the owner of the plot and PW5 as legal heir of the lessee who would have suffered in reputation ( only DDA would have suffered in repute)and property if the plot would have been converted to free hold in favour of the accused. Hence this ingredient stands proved.
Cheating and dishonestly inducing delivery of property is an offence u/s 420 IPC and is an aggravated form of the offence of cheating defined u/s 415 IPC. The discussion on the ingredients of the aggravated form of attempt to cheat u/s 420 read with 511 IPC is as follows: FIR No. 279/95 Page 20 of 25
(i) attempt to deceive any person and definition of the word 'person' is given in section 11 IPC.
It is clear that accused Trilok Singh by applying for conversion of the property on basis of the forged NOC as well as lease deed in support of his application Ex. PW6/E attempted to deceive DDA into converting the lease hold property into freehold in his favour. It is another matter that the vigilance branch of DDA came to know about the forgery and filed the complaint against the accused and as DDA will come in the definition of the word 'person', PW1 as employee of the DDA could have filed the complaint against the accused. Hence this ingredient stands proved.
(ii) Dishonestly or fraudulently inducing the complainant to :
(a) to deliver any property to any person; or
(b) to consent that any person shall retain any property
(c) to make, alter or destroy a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security( emphasis supplied).
It is also clear that this act was fraudulent upon the DDA as the accused used forged documents for the purpose of converting the case property plot from lease hold to freehold and this act if successful would have caused wrongful loss to DDA and PW5 Meena Gupta as being owner and LR of the lessee respectively and this act of accused was directed to make the DDA give him valuable security/title documents of the free hold property at Paschim Vihar, FIR No. 279/95 Page 21 of 25 Delhi. Hence this ingredient stands proved.
15 Now I will deal with the arguments of Ld. Defence Counsel which is necessary as per the procedure and in the interest of justice. Ld. Defence Counsel has also filed written submission in support of the arguments which have been duly considered alongwith the citation relied. The discussion is as under:
(i) It is submitted that Meena Gupta has not filed any complaint as sufferer of wrongful loss and only DDA has filed the complaint who has not shown any wrongful loss.
This argument is without any force as in complaint Ex. PW1/A Meena Gupta PW5 has been cited as a victim. Besides this DDA itself is the victim of the offences alleged which is clear from the discussion aforesaid that it was sought to be defrauded and would have suffered wrongful loss as owner of the property as well as in reputation if the act of the accused had been successful in converting the case property plot from lease hold to freehold in his name.
(ii) It is further argued that the person who has reported forgery after verification has not been examined and it is clear from the evidence of PW1 and PW2 that it was some official of vigilance branch who reported the forgery.
In my view it is not necessary at all to examine the person who reported the forgery as the allegations against the accused have been proved.
(iii) It is further averred by the defence counsel that the Commissioner Land Disposal has not deposed and it was on his authority that the complaint was filed.
In my view there was no need to examine him as a witness as the FIR No. 279/95 Page 22 of 25 charge against the accused is u/s 471 IPC as well as 420 r/w 511 IPC which does not invite the bar of section 195(1)(a)(i) which is attracted in the case of non judicial public servants.
(iv) It is further submitted by the defence counsel that PW5 Meena Gupta has stated in her examination in chief that she made the application for conversion of the case property plot from lease hold to free hold in her favour in 1986 but the said application is not on the record.
This argument is without any force since in her crossexamination by APP she had clarified that the year 1986 was inadvertently mentioned which error can be attributed to the age of the said witness as well as lapse of time. There was a big time gap when she made the application and when her evidence was recorded in the year 2003 and it is an admitted document which is part of the FSL report which is Ex. PW7/A on which the Hand Writing Expert has relied and his opinion has not been challenged by the accused by way of cross examination or by way of filing any application for a second opinion to other hand writing expert.
(v) It is further argued that PW5 was not cross examined as she went untraceable after the application of the accused to cross examine her was allowed. Hence, as she is a material witness and could not be cross examined, prosecution case is liable to fail and accused is entitled to acquittal.
This argument is nothing but a shot in the dark as it is settled law that even after allowing the application u/s 311 Cr.P.C, the cross examination of witness is subject to the availability and if such witness is not available after all genuine efforts, then as per section 33 Evidence Act the evidence of such witness FIR No. 279/95 Page 23 of 25 can be read for or against the accused. Even otherwise during the whole of the trial after PW5 was examined and despite opportunity when the accused failed to cross examine her, no allegation has been raised after the application u/s 311 Cr.PC was allowed that genuine efforts were not made for tracing her out and for her production in the witness box.
(vi) It is further submitted that no efforts were made by the IO to trace Mukesh from whom the accused has alleged that property was transferred and that the accused is a bonefide purchaser for consideration of Rs. 82000/ as per the agreement to sell between the said Mukesh Kumar and the accused and that in fact accused is the victim of the offence of cheating by Mukesh Kumar and that accused has no mens rea or dishonest intention to cheat either DDA or PW5 Meena Gupta.
Firstly in my view no application was made by the accused alleging that the Mukesh was not interrogated due to extraneous reasons by the IO despite availability and further the accused has not stated as to how this amount was given, from what sources it was given and the defence evidence in this regard by the accused by his own deposition as defence witness has no weight. The accused in his defence evidence has stated that he is a victim of wrongful act of Mukesh Kumar and that he is a bonefide purchaser and that the property was later transferred by PW5 to other persons and hence neither DDA nor PW5 have suffered any wrongful loss. However, as already stated the accused has neither challenged non interrogation of Mukesh Kumar by way of application during investigation or during trial, nor he has shown the proof of payment to Mukesh FIR No. 279/95 Page 24 of 25 Kumar nor he has explained as to why and for what need he had to rely on the forged NOC of Meena Gupta which is Ex. PW6/D. Also the efforts to settle the case with her were made only after commission of offence to escape the rigours of the law. Hence, all the arguments of the defence counsel have been dealt with and no force have been found therein.
In view of the aforesaid reasons as the facts in this case are not applicable to the citations relied on, it is observed that the Ld. Counsel cannot draw any support on the following citations: 1 Navinchandra Vishnuprasad Shah Vs. State of Gujarat and Anr. 2013(3) Crimes 688(Guj).
2State of Tripura Vs. Ashok Kumar Subba 2000 Cri L.J. 3190. 3B.K. Sondhi Vs. State (NCT of Delhi) & Anr. 2000 CriLJ 421 16 In view of the aforesaid discussion, the offence of use of forged document u/s 471 IPC and attempt to cheat for the purpose of delivery of property u/s 420 read with 511 IPC stands proved. Hence, the accused is convicted for offence u/s 471 and 420 r/w 511 IPC. Let he be heard on the point of sentence separately.
Announced in the open (Ashok Kumar)
Court on 01.07.2015 MM(SouthEast)07,
New Delhi.
FIR No. 279/95 Page 25 of 25