Delhi District Court
Sohal Lal Gupta vs . Sat Pal & Ors. on 31 August, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar
U/s 420/34 IPC
Date of Institution : 19.02.1997
Date of Judgment : 31.08.2018
JUDGMENT
(1) Serial number of the case : 6152/2016 (2) Name of the complainant : Sohan Lal Gupta S/o.: Roshal Lal Gupta R/o.: 136, Behra Enclave, Paschim Vihar, New Delhi Earlier at: A-2/53 Paschim Vihar, New Delhi-110063 (3) Name of the accused : 1. Satpal S/o Sh. Kashmiri Lal, R/o 527, Ward No.1, Adarsh Nagar, Gali No.3, Malout, Dist. Muktsar, Punjab
2. B M Associates, Office at: A-1/2, Sector-11, Rohini Delhi-85 Also at: F-24/102, Sector-7, Rohini Delhi-85
3. Bharat Mitter Singla, (discharged)
4. Kapil Singla, S/o Sh. Bharat Mittar Singhla R/o.: A-2/69-70, First floor, Sector-11, Rohini, Delhi
5. Naveen Kumar, (Not summoned) Accused No. 3-5 C/o B M Associates, Office at: A-1/2, Sector-11, Rohini, Delhi Also at: F-24/102, Sector-7, Rohini, Delhi CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 1 of 22 (4) Offence complained of : Under Section 420/34 IPC (5) Plea of the accused : Pleaded not guilty (6) Final Order : Conviction
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant/shop-keeper that accused no. 1 is a builder cum property dealer at accused no.2 firm with accused no. 3 to 5 being its partners. The complainant had previous property dealings with the accused no. 3 and 4 due to which he had confidence in them. On 01.09.1996, accused no. 3 and 4 in criminal conspiracy with the accused no.1 Satpal and with the intention to cheat the complainant, told the complainant about an under construction building of 96 sq. meters at Sector-05 Rohini being available at cheap rate and accused no. 3 Kapil Singhla also showed the property bearing no. 116-117, Pocket 8, Block B, Sector 5, Delhi to the complainant.
2. After the complainant agreed to the proposal, accused No.3 Kapil took the complainant to the house of the accused no.1 at D-777 Saraswati Vihar where the accused no.1 Satpal told the complainant that he was the absolute owner in possession of the said properties offering to sell the same by completing it in all respects upto 3 storey for sale consideration of Rs 29,21,000/- which was agreed upon by the complainant and in furtherance of the same, a sum of Rs 10,000/- was paid to the accused no.1 on 01.09.1996 and Rs 4,90,000/- on 18.09.1996 for total sum of Rs 5,00,000/- as earnest money. The date and time for the payment of the balance sale CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 2 of 22consideration and execution and registration of necessary sale/transfer papers and handing over of the vacant possession of the said property by the accused no. 1 was fixed at 100 days with the deal being struck through accused no.2 and an agreement to sell cum receipt was also executed on 01.09.1996.
3. The time was of the essence of the contract and the accused no.1 had been informed at the time of entering into the contract itself as to the complainant wanting the construction complete latest by 8th December 1996 but in the first week of December 1996 when the complainant told the accused about being ready and willing to perform his part of the agreement, and then inspected the buildings, they were not nearing completion and no other requisite sale/transfer formalities had been completed by the accused no.1 upon which the accused no.1 sought extension of a fortnight to perform his part of the agreement to complete the construction and other requisite formalities/permissions to which the complainant agreed.
4. The complainant demanded original papers be shown to him and copy be given to him for the preparation of sale/transfer documents, but the accused no.1 stated that the same were lying in his locker which he would show in a day or two but he did not do so till the time of filing of the complaint. Thereafter upon inquiry, the complainant came to know that accused no1 was not the owner of the property and did not have any right/authority or power to enter CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 3 of 22into agreement to sell or receive an amount of Rs. 5 lakhs as earnest money. A notice dated 27.12.1996 was then sent to the accused no 1 to which the accused no.1 sent a vague reply. Since the accused in furtherance of their common intention dishonestly and fraudulently cheated the accused who could also not file any suit for specific performance of the contract as the accused no.1 was not the owner of the property, hence the present complaint case was filed.
5. To prove its case, the complainant led pre-summoning evidence and examined only himself as CW1 upon consideration of which the accused no. 1 to 4 were summoned by the Ld Predecessor for the commission of the offences under Section 420/34 IPC vide order dated 09.04.97.
6. After the accused entered appearance, they were admitted to bail and thereafter, the pre-charge evidence was led. In the pre-charge evidence, the complainant examined himself as CW1 and Sh Bahvesh Kumar Gupta as CW2 where after the pre-charge evidence was closed vide order dated 27.04.2013 by the Ld Predecessor. Upon consideration of the pre-charge evidence, the accused Bharat Singh Mitter was discharged vide order dated 06.06.2014 and charge was directed to be framed against the accused no.1 Satpal and accused no.3 Kapil for offences under Section 420/34 IPC which was so framed on 07.06.2014 to which both the accused pleaded not guilty and claimed trial.
CIS No. 6152/2016Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 4 of 227. During the post-charge evidence, the complainant examined himself as CW1 testifying that Kapil being a property dealer telephoned him on 01.09.1996 informing about a property being available. CW1 further testified as to accused Kapil Singhla having taken him to Sector 5, building no. 116-117, pocket B-8, Rohini, Delhi and a building under construction being shown to him which was of 2 plots of 48 sq. meters each with building being incomplete as only the structure was complete. CW1 further testified that the accused Kapil had told him that the building will be given to him on completion within a period of 100 days and it was also told to him that the building was of one Satpal. CW1 further testified that accused Kapil took him to the residence of Satpal at D-777, Saraswati Vihar, Pitampura and there introduced the complainant to the accused Satpal stating that Satpal was the owner of the said under construction building.
8. CW1 further testified that after bargaining, accused Satpal agreed to sell the said building for Rs. 29,21,000/- within 100 days to which the complainant agreed and paid a sum of Rs. 10,000/- as advance and Rs. 4,90,000/- was to be paid by complainant to the accused Satpal on 18.09.1996. CW1 further testified that thereafter he alongwith accused Kapil and Satpal went to the office of accused Kapil at Sector 11, Rohini, where accused Kapil got a receipt signed by accused Satpal in respect of building nos. 116-117, Pocket B-8, Sector 5, Rohini, Delhi by mentioning the advance payment of Rs. 10,000/- as paid by complainant to accused Satpal.
CIS No. 6152/2016Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 5 of 22CW1 further testified that the amount of Rs. 10,000/- was given by him to accused Kapil who in turn handed it over to accused Satpal in the presence of complainant. CW1 also relied upon receipt dated 01.09.1996 ie Ex. CW1/A and visiting card of M/s. B. M. Associates, Sector 11, Rohini, Delhi given by accused Kapil Ex. CW1/B.
9. CW1 further testified that at the time of above agreement to sell and purchase, he had asked accused Kapil and Satpal to show him the title deeds of the property but he was told by both of them that the original documents of ownership of said properties are lying in the locker of accused Satpal. He further testified that as he knew accused Kapil well, he believed and trusted him though he did not know accused Satpal earlier. CW1 further testified that both accused Kapil and Satpal promised to show him the ownership documents within a period of 5-7 days but did not show them till date.
10. CW1 further testified that on 18.09.1996, he paid a sum of Rs.
4,90,000/- to the accused Satpal through accused Kapil and endorsement to this effect was made by accused Kapil duly signed by accused Satpal in respect of the receipt of the said amount.
11. CW1 further testified that as agreed, he went to accused Kapil and Satpal after 90 days and asked them to show the ownership documents of the above properties alongwith completion of the CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 6 of 22construction work and to receive the balance sale consideration but both of them asked the complainant to extend 15 days time for the completion of the said buildings upon which they extended the period of 15 days. CW1 further testified that thereafter, he visited the office of accused Kapil 2-3 times and asked him to show the ownership documents of the building and to complete the construction work who told him that he will reply after consultation with accused Satpal.
12. CW1 further testified that thereafter, after inquiry from a nearby property dealer, he came to know that building no. 116-117, Pocket B-8, Sector 5, Rohini, Delhi was not owned or possessed by accused Satpal. He further testified that thereafter, he received a notice from Satpal that as he had not made the payment in time, his earnest money stood forfeited. The complainant further testified that in response to the notice, he got a notice issued to the accused Satpal on 27.12.1996 Ex. CW1/C and his counsel received a false and wrong reply to the said notice from accused Satpal vide reply dated 31.12.1996 Ex. CW1/D.
13. CW1/Complainant further testified that neither accused Kapil nor Satpal ever showed the ownership documents of the abovesaid properties to him and that had he known that accused Satpal is not the owner of the said buildings, he would never entered into any type of agreement to sell with him nor he would have paid even a single penny to them.
CIS No. 6152/2016Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 7 of 2214. CW1/Complainant further testified that thereafter, he got copy of lease deed of the building no. Plot No. 116-117, Pocket B-8, Sector 5, Rohini, Delhi from the DDA Ex. CW1/E and CW1/F as per which Lajya Rani was the lessee of the DDA of Plot No. 116, Pocket B-8, Sector 5, Rohini, Delhi and Krishan Lal Mahendru was the lessee of plot no. Plot No. 117, Pocket B-8, Sector 5, Rohini, Delhi, and not the accused Satpal.
15. Complainant further testified as to both the accused Satpal and Kapil having cheated him in criminal conspiracy with each other with intent to defraud him of the sum of Rs. 5 lacs. CW1 further testified that he had not insisted much on showing the ownership documents at the time of entering into the above agreement dated 01.09.1996 because he had full faith in accused Kapil and Bharat Mittar Singhla. The complainant was duly cross-examined at length by the Ld Counsel for the accused.
16. CW2 Inderjeet being a summoned witness from DDA, brought the copy of lease deed pertaining to plot no. 117, pocket 8, Block B, Sector 5 Rohini, Delhi measuring 48 sq. meters Ex. CW1/F and testified that as per record the plot was allotted in the name of Kishan Lal Mahendru and Smt. Sudesh Kumar and the lease was executed on 21.08.1987. He further deposed that Kishan Lal sold the plot of Sh. Baldev Ram and Sh. Baldev Ram sold the same to Sh. Jai Bhagwan and Sh. Jai Bhagwan sold it to Surender Kumar CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 8 of 22and Surender Kumar sold the plot to Savita Jain in whose favour the plot is going to be freehold. He was duly cross examined by the Ld Counsel for the accused.
17. CW3 Sh. Mohan Sharma also being a summoned witness from DDA brought a copy of lease deed pertaining to plot no. 116, pocket 8, Block B, Sector 5 Rohini, Delhi measuring 48 sq. meters Ex. CW1/E and testified that as per record the plot was allotted in the name of Lajja Rani on 08.09.1987. He further testified that Lajja Rani sold the plot to Sh. Joginder Kumar Bhandula and Sh. Joginder Kumar Bhandula sold the same to Smt. Saroj Goel and Smt. Saroj Goel sold it to Surender Kumar and Surender Kumar sold the plot to Anita Jain and Anita Jain sold the plot to Deepika Jain in whose favour the plot has been freehold on 13.01.2015. He was not cross examined by the Ld Counsel for the accused despite opportunity.
18. The statement of both the accused was thereafter recorded under Section 281 read with Section 313 of Code of Criminal Procedure on 16.07.2016 wherein the entire incriminating evidence was put to the accused Kapil and Satpal wherein they both admitted the property transaction but denied having cheated the complainant stating that Satpal was the brother of the owner Surender Kumar and was also the attorney holder. They further stated that the complainant did not pay the balance consideration due to which the sale deed could not be executed. Both the accused opted to lead CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 9 of 22defence evidence and examined two witnesses in their defence.
19. DW1 Ms. Meenakshi being the wife of the deceased brother of accused Satpal namely Sh Surender testified as to there being two properties in sector 5, Rohini, Delhi in the name of her deceased husband who had executed power of attorney in respect of aforesaid properties in favour of her brother in law Satpal vide power of attorney Ex. DW1/A. She further testified as to Satpal having sold off both the properties to the complainant. She also testified as to her husband having expired on 17.09.2008 and relied upon his death certificate Ex DW1/B. She was duly cross examined by the Ld Counsel for the complainant.
20. DW2 Sh. Mohan Sharma being a summoned witness from the DDA brought the record pertaining to the property bearing no. 116, Pocket 08, Block B, Sector 5, Delhi allotted to Smt Lajja Rani on 29.12.1983 as well as linkage sheet Ex. DW2/A. He also brought the record pertaining to the property bearing no. 117, Pocket 08, Block B, Sector 5, Delhi allotted to Krishan Lal and Sudesh Kumari on 21.12.1983 as well as linkage sheet Ex. DW2/B testifying that the property was subsequently transferred to Surender Kumar vide entry at point B on Ex DW2/B. He was duly cross examined by the Ld Counsel for the complainant.
21. Final arguments advanced by Sh. Vinod Mittal, Ld counsel for the complainant and by Sh. Arjun Dass, Ld. Counsel for the accused CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 10 of 22persons have been carefully considered alongwith entire evidence on record.
22. Being a criminal trial, it was for the complainant to prove his case beyond all reasonable doubts by leading reliable, cogent and convincing evidence.
23. In the present case, the accused Kapil and Satpal have been charged for the commission of offence under Section 420/34 of the Indian Penal Code. Hence to discharge the onus cast upon him and to prove his case, it was for the complainant to prove that the accused Satpal and Kapil, in furtherance of their common intention, cheated and thereby dishonestly induced the complainant to deliver Rs 5 Lakh to the accused no.1 as earnest money even though Satpal was not the owner of the property in question. Hence it was for the complainant to prove both the dishonest intention of the accused as also the factum of the delivery of property/money.
24. For the sake of convenience and clarity, the offence of cheating has been defined in Section 415 of the Indian Penal Code has been reproduced as under:
"415. 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 CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.PS Saraswati Vihar Page 11 of 22
or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
25. In the present case, as per the testimony of the complainant/CW1, the accused Kapil had taken him to Sector 5, building no. 116-117, pocket B-8, Rohini, Delhi (hereinafter referred to as the 'property in question') and had told him that the building was of one Satpal. CW1 has categorically testified that thereafter the accused Kapil took him to the residence of accused Satpal at D-777, Saraswati Vihar, Pitampura where he introduced the complainant to the accused Satpal stating that Satpal was the owner of the said under construction building. CW1 has further testified that after bargaining, accused Satpal agreed to sell the said building for Rs. 29,21,000/- within 100 days to which the complainant agreed and paid a sum of Rs. 10,000/- as advance and Rs. 4,90,000/- was to be paid by complainant to the accused Satpal on 18.09.1996. CW1 further testified that thereafter he alongwith accused Kapil and Satpal went to the office of accused Kapil at Sector 11, Rohini, where accused Kapil got a receipt signed by accused Satpal in respect of building nos. 116-117, Pocket B-8, Sector 5, Rohini, Delhi by mentioning the advance payment of Rs. 10,000/- as paid by complainant to accused Satpal. CW1 has also relied upon receipt dated 01.09.1996 ie Ex. CW1/A. CW1 has further testified that thereafter, after inquiry from a nearby property dealer, he came to know that building no. 116-117, Pocket B-8, Sector 5, Rohini, Delhi CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 12 of 22was not owned or possessed by accused Satpal.
26. From the perusal of the entire evidence on record including the cross-examination of the complainant, defence evidence and documents relied upon by the parties, it transpires that the accused have not disputed the factum of property transaction having taken place between the complainant and the accused nor have the accused disputed the factum of receipt of Rs 5 Lakh by the accused no.1 Satpal from the complainant as earnest money/advance. In their defence, the accused have also not claimed that Satpal was the owner of the properties in question or in possession thereof at the time of the property transaction rather the only defence set up by the accused is that the owner of the property in question ie building nos. 116-117, Pocket B-8, Sector 5, Rohini, Delhi was one Surender Kumar ie the brother of the accused Satpal and that the documents reflecting the accused Satpal as attorney of Sh Surender had been shown to the complainant.
27. Since admittedly the property in question did not belong to the accused no.1 Satpal, it needs to be decided whether from the evidence as led, it has been proved whether the factum of the property in question belonging to someone else ie Surender Kumar was or was not communicated to the complainant at the time of the above property transaction.
28. The receipt Ex CW1/A being the only document executed between CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 13 of 22the parties in respect of the transaction in question, is the most crucial piece of evidence to prove the case of the complainant. Perusal of Ex CW1/A reveals that in this entire document, it is nowhere mentioned that the accused no.1 was selling the property as an attorney and this corroborates the case of the complainant as to there being no communication to him as to the accused no.1 entering into the transaction on behalf of Surender Kumar since no explanation has come on record by the accused/defence as to the said omission in the receipt since if the accused had infact communicated it to the complainant that he was entering into the transaction as attorney of Surender, then the same would have been mentioned in the agreement itself. Hence, the receipt Ex CW1/A does not corroborate the defence of the accused as to the factum of communication of the ownership of Surender Kumar to the complainant and rather corroborates the case of the complainant.
29. It is pertinent to note that in the entire cross-examination, the accused have not been able to discredit the testimony of the complainant/CW1. They have also not been able to elicit any admission from the complainant as to the property documents having been shown to him rather the complainant has repeatedly re- affirmed that he was not shown the documents. Even in the cross- examination of CW1, the accused merely put a suggestion to the complainant as to accused Satpal having shown the documents reflecting Satpal to be attorney of Surender Kumar and as to accused Kapil having shown the documents of the property in CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 14 of 22question but was unable to elicit any admission from him as to such documents having been shown, but there is not even a single suggestion in the entire cross-examination as to when and where such documents were purportedly shown by the accused or even as to what was the description of the document so shown to the complainant in respect of the purported authorization. Hence only a vague defence has been put up by the accused.
30. It is also pertinent to note here that in their defence, the accused have examined Meenakshi ie wife of deceased brother of accused Satpal namely Surender as DW1 who testified as to there being two properties in Sector 5, Rohini, Delhi in the name of her deceased husband who had executed power of attorney in respect of aforesaid properties in favour of her brother in law Satpal vide power of attorney Ex. DW1/A. Interestingly, the DW1 testified in her cross- examination that the accused Satpal had not asked for the GPA from her as the same was already with him. The same assumes significance as admittedly the said GPA was not put to the complainant during his cross-examination. Now it is reasonable to expect that if the GPA was already with the accused Satpal and it is his case that the said document had already been shown to the complainant, then there was no reason for him to not put it to the complainant during his cross-examination. The omission of the accused to so the same raises suspicion as to the version of the defence especially since DW1 did not identify the signatures of her husband on the said document nor the accused examined any of the CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 15 of 22attesting witnesses thereto. That being so, the document Ex DW1/A remains unproved and cannot be looked into and hence does not prove the defence of the accused.
31. Be that as it may, it cannot be lost sight of that even if the accused had been able to prove Ex DW1/A, that in itself could not have proved the factum of communication of the same to the complainant for which the accused was required to either elicit an admission from the complainant or they were required to prove the same through other oral or documentary evidence. However, with the accused not stepping into the witness box, with no documentary evidence as to the communication of the factum of accused no.1 being attorney of the Surender to the complainant and with there being no admission of the complainant as to any such communication even in his cross-examination, the factum of the communication to the complainant remains unproved.
32. Non production of original documents: An argument has been raised on behalf of the accused that case of the complainant is false as it is not believable that the complainant would not have seen the property documents before entering into the agreement and kept mum since the complainant was familiar with the property transactions as admitted by him in his cross-examination even more so as the complainant took no steps to verify the ownership till the expiry of stipulated period of 100 days despite no documents having been shown to him. To understand this argument, it is CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 16 of 22necessary to read the relevant testimony of the complainant.
33. The complainant/CW1 has testified that he had asked the accused Satpal and Kapil for the title deeds of the property in question at the time of the agreement to sell and purchase, but he was told by them that original documents of ownership were lying in the locker of Satpal which the complainant believed as he trusted accused Kapil. Complainant further testified that he was promised by both the accused that the said documents shall be shown within 5-7 days but did not do so. Complainant has further testified that after 90 days he again asked the accused to show him the ownership documents of the property in question but they asked for extension of time. Complainant further testified that thereafter he visited the office of the accused 2-3 times asking him to inter alia show the documents but was told by Kapil that he will reply after consulting accused Satpal. Complainant has also testified that he did not insist on production of original documents at the time of execution of agreement dated 01.09.1996 since he had full faith in Kapil and Bharat Mitttar Singhla.
34. In his cross-examination, CW1 testified as to him having asked for the property documents at the time of handing over of the sum of Rs 10,000/- at which time they did not do so. He further testified that he had also asked for the documents to be shown to him at the time of the execution of the receipt thereof but was told by the accused that the same will be shown when he makes the complete CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 17 of 22bayana payment. He further testified that he again asked for the documents at the time of payment of Rs 4,90,000/- on 18.09.1996 but the accused did not do so assuring that they will show the documents within 2-3 days. He further testified that even on the day when he had gone to the office of the accused telling them about money being ready but building being incomplete, he had asked for the documents to be shown to him, but they were not shown on the excuse that the same were lying in the bank locker. Complainant went on to testify that since the accused had assured that they will show the property documents to him, it was upon their assurance, that he had not made efforts to verify the ownership from other sources.
35. Hence the complainant has consistently testified that he has been repeatedly asking for the documents to be shown and that the same were not shown by the accused. No reason has been brought out in his cross-examination to disbelieve the same. Despite the accused putting up a defence of the documents having been shown to the complainant, the accused did not put even any specific suggestion as to the date or month or time when the same were shown. Merely stating that it is unbelievable that the person would enter into transaction without seeing the original documents does not absolve the accused from proving when, where and by whom were the documents shown and what was the nature of those documents which fact was within the special knowledge of the accused since he has asserted the same and nothing prevented the accused from CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 18 of 22proving the same and falsifying the case of the complainant which the accused have failed to do.
36. It has also been argued on behalf of the accused that it was upon expiry of period of 100 days that the property prices decreased and the complainant tried to give colour of cheating to the transaction especially when he received the notice of forfeiture of the bayana amount from the accused. It has been further argued that the complainant has admitted in the notice Ex CW1/C itself that he had received notice of the accused and also admitted the same in his cross-examination and that since in the said notice it was specifically mentioned that the accused no.1 was authorized to deal with the property and his brother Surender was the owner of the property and even the first telegram was sent on behalf of Surender and that it was after the complainant received the telegram that he sent the notice Ex CW1/C, from all this it could be inferred that the complainant was aware of the ownership of Surender, as to the accused Satpal being the Special attorney and as to accused Satpal being competent to sell that property in question.
37. However, the argument as raised is devoid of merits in as much as the said telegram/notice as sent by the accused to the complainant has not been placed on record by either the complainant or the accused. In the notice Ex CW1/C though the complainant makes reference to the notice dated 23.12.1996 sent by the accused no.1, there is nothing in the said notice Ex CW1/C to even remotely CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 19 of 22suggest that it had been communicated to the complainant as to the ownership of Surender or authorization in favour of the accused no.1. Since the accused no.1 has asserted that it was in the notice dated 23.12.1996 that it was specifically mentioned that the accused no.1 was authorized to deal with the property and his brother Surender was the owner of the property, it was imperative for him to have produced such notice which he has miserably failed to do and the non-production of the document weakens the defence of the accused.
38. It is pertinent to note that in the reply Ex CW1/D to the legal notice sent by the complainant, the accused no.1 got a reply sent by his counsel as to it having been communicated to the complainant as to the accused no.1 'being authorized to enter into agreement' on behalf of his brother in whose name the plot in question stood, yet there was no mention in the entire reply as to the nature of such authorization or any date of execution of such authorization and even the reply Ex CW1/D does not disprove the case of the complainant as to the factum of accused having cheated the complainant by deception of material facts nor does the reply prove the defence of the accused.
39. It is pertinent to note that in his statement recorded under Section 313 of the Code of Criminal Procedure, the accused Kapil has merely asserted that the owner of the property in question was Surender and Satpal was the attorney holder and he further denied CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 20 of 22having cheated the complainant. Accused Satpal has also stated on similar lines. They have however nowhere stated that this factum of ownership of the property of Surender had been communicated to the complainant or that they had not represented to the complainant that Satpal was the owner of the property in question.
40. The accused have also relied upon the testimony of DDA officials to contend that even in the records of the DDA, the ownership of Surender is reflected. The accused have however failed to establish as to how the said fact proves that at the time of transaction with the complainant, the factum of ownership of Surender was communicated to the complainant as it is the case of the complainant himself that at the time of transaction the property was not in the name of the accused Satpal.
41. In view of the above discussion, the accused have failed to discredit the testimony of the complainant and no reason has been brought on record to disbelieve the same. The accused have also failed to lead any positive evidence to prove their defence. In view of the testimony of the complainant and receipt Ex CW1/A, the factum of the accused having cheated the complainant, in furtherance of their common intention and as to them having induced the complainant to pay Rs 5 Lakh to the accused Satpal stands proved.
42. In view of the above discussion, as the complainant has been able to discharge the onus cast upon him and has proved his case beyond CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 21 of 22reasonable doubt, the accused Satpal S/o Sh. Kashmiri Lal, and Kapil S/o Sh Bharat Mittar Singhla are convicted of offences under Section 420/34 IPC in CIS No. 6152/2016 titled Sohan Lal Gupta v Satpal & Ors, PS Saraswati Vihar.
43. Copy of judgment be given free of cost to the accused.
Announced in the open court
on 31.08.2018 POOJA
Digitally signed by
POOJA AGGARWAL
AGGARWAL Date: 2018.09.01
10:54:32 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 22 pages and each page bears my signature. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: 2018.09.01 10:54:41 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi CIS No. 6152/2016 Sohal Lal Gupta Vs. Sat Pal & Ors.
PS Saraswati Vihar Page 22 of 22