Delhi District Court
State vs Dewendra Pandey And Vivek Bhat on 19 July, 2025
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDITIONAL SESSIONS JUDGE-02, SOUTH-EAST DISTRICT
SAKET COURTS, NEW DELHI
State Vs Vivek Bhat & Anr.
FIR No.: 134/2008
U/s : 420/468/471/120B IPC
PS : EOW
Brief Details Of The Case
FIR Number : 134/2008
Offence complained of : U/s 420/468/471/120B IPC
Date of Offence : In the year 2008
Name of the complainant : Mr. Vinay RC Iyer
CEO A & A Capital, Eros
Corporate Tower, Nehru
Place, New Delhi
Name of the accused : (1) Vivek Bhat
S/o S/o Sh. J L Bhat
R/o H 254, Rama Krishna
Vihar, 29, IP Extn., New Delhi
(2) Dewender Pandey,
S/o Sh. Lallan Pandey,
R/o H.No.H-45, First Floor,
Kalkaji, New Delhi
Date of Institution : 08.12.2008
Date of Judgment reserved on : 05.06.2025
Date of Judgment : 19.07.2025
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.1 to 129
Plea of the accused : Pleaded not guilty.
Final judgment : Both accused are acquitted.
JUDGMENT
1. Accused Vivek Bhat and Devendra Pandey faced trial for offences, punishable U/s 420/468/471/120B IPC.
2. Prosecution story, as per chargesheet is that a complaint was filed by complainant Vinnay RC Iyer stating that he was introduced to Vivek Bhat by one Ravi Sain for organizing funds to the tune of US $ 7.8 Million which was equivalent to Rs.32 crores and Vivek Bhat was to ensure the payment of aforesaid amount to M/s A & A Capital by 17.11.2007. Vivek Bhat gave assurance and based upon that an agreement between M/s A & A Capital and accused Vivek Bhat was signed on 17.10.2007 and M/s A & A Capital advanced Rs.23 Lakhs to accused Vivek Bhat by way of cheque of Rs.1 Lakh vide cheque no.000014 dated 17.10.2007 drawn on Kotak Mahindra Bank and another cheque of Rs.22 Lakhs having cheque no.000019 dated 30.10.2007 drawn on Kotak Mahindra Bank. However, accused Vivek Bhat did not make the payment despite reminders and later promised that the payment would be swifted to the bank account of M/s A & A Capital on 02.12.2007 and to substantiate his claim accused presented the bankers of A & A Capital with the copy of Swift Advice. However, Sh. Saurabh Dhingra who was the Manager at HSBC at Barakhamba Road upon verifying declaring the Swift Advice furnished by accused Vivek FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.2 to 129 Bhat to be forged and accused Vivek Bhat defrauded M/s A & A Capital and the payment of Rs.32 Crores was not received.
3. Upon several reminders accused Vivek Bhat agreed to pay M/s A & A Capital an advance of Rs.22 Crores out of the aforesaid Rs.32 Crores and issued a cheque no.055258 dated 29.12.2007 drawn on Dena Bank OIA from the account of Vicky Overseas which was the company owned by accused and entered into an agreement regarding the same on 24.12.2007. A post dated guarantee cheque of Rs.22 crore was issued by M/s A & A Capital in favour of Vivek Bhat on 28.12.2007. The said cheque of Rs.22 Crores which was issued by accused Vivek Bhat and his partner Devender Pandey dated 29.12.2007 was handed over to the complainant and when the aforesaid cheque was presented on 02.01.2008, the same was dishonoured due to "insufficient funds". Complainant informed regarding the same to the accused Vivek Bhat. Upon which, accused promised to issue a demand draft of Rs.22 Crore in favour of M/s A & A Capital (company of the complainant) but did not issued the same despite reminders and at that time, Mr. Ravi Saini kept pacifying the matter between the parties. Further, it was accused Vivek Bhat who again assured the complainant to complete the financial transaction by January 2008. However, again promised to pay an amount of Rs.21.6 Crores to the complainant and again issued three cheques from ICICI Bank dated 30.01.2008, 01.02.2008 totaling to Rs.21.6 Crores in favour of M/s A & A Capital but again the first cheque no.073096 got dishonored and therefore the complainant did not present the remaining two cheques. Subsequently, the same was informed to the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.3 to 129 accused by complainant and he asked the complainant to return the three cheques and again assured that he would get a bank guarantee in favour of M/s A & A Capital for a sum of Rs.32 Crores but again failed in complying with the aforesaid promise. However, the complainant was threatened by accused. Further, that the accused played fraud upon the complainant and caused wrongful loss to him.
4. Upon the aforesaid complaint dated 03.04.2008, FIR was registered in the present matter on 14.08.2008 by PS EOW and investigation ensued. During investigation by SI Chhotu Singh IO examined the complainant and collected the original documents including the letter dated 23.06.2008, of one person namely Elmar Haag of Interworld Pty Ltd. and the complainant of his own had contacted the aforesaid Australian Company and had arranged the aforesaid letter written by Mr. Elmar Haag wherein he had categorically stated that they had no representative or agent in India and that they had not authorized accused Vivek Bhat or any other person to solicit business on their behalf, and the loan agreement, loan approval letter, apology letter which accused Vivek Bhat had forwarded to M/s A & A Capital was forged and had not been issued by the aforesaid company of Australia. Upon the aforesaid information LOC of accused Vivek Bhat was opened. Reply from HSBC Bank regarding SWIFT Advise was investigated and was found that the transaction ID No. was a transaction reference and not a Swift copy. Certified copy of the bank account details of M/s A & A Capital of the complainant and which showed that an amount of Rs.23 Lakh vide two cheques bearing 000014 and 000019 dated FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.4 to 129 31.02.2007 was paid in the account of Vicky Overseas, Dena Bank. Subsequently, the documents from concerned bank of Dena Bank was also collected. The agreement dated 24.12.2007 and the notary in respect of the same was examined. On 11.10.2008, accused was arrested from Air Port and investigation was carried out. On the disclosure statement of accused Vivek Bhat, accused Devender Pandey was also investigated.
5. Chargesheet in the present matter was filed on 08.12.2008 and charge against accused Vivek Bhat U/s 420/468/471/120B was framed vide order dated 07.01.2009. Supplementary chargesheet qua accused Devender Pandey was filed on 24.12.2009, and charge qua accused Devender Pandey was framed on 02.03.2010 U/s 420/120B IPC and matter was listed for prosecution evidence.
PROSECUTION EVIDENCE
6. Prosecution has examined 20 witnesses in support of its case: -
Sl No. Name of the Witness Crux of deposition
PW-1 Ct. Shyam Phool Witness deposed that Inspt. Sushil
(got the FIR registered Kumar handed over rukka to him and thereafter he went to PS EOW and after on the complaint filed) registering of FIR return back to AF&C office and handed over copy of rukka to Inspt Sushil Kumar.
Despite opportunity this witness has not been cross examined on behalf of FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.5 to 129 accused persons.
PW-2 SI Brij Mohan Witness deposed the he had received rukka from Ct. Shyam Phool and he got registered the FIR No.134/2008 and handed over copy of FIR with original rukka to Ct. Shyam Phool. He tendered the following documents in evidence :-
a) FIR - Ex.PW2/A Despite opportunity this witness has not been cross examined on behalf of accused persons.
PW-3 Ramesh Chander Witness joined the investigation with IO Vashist, Asst. Central and deposed the different stages of investigation conducted with IO and Intelligent Officer II, prove the following documents:
Bureau of a) LOC (Look Out Circular) -
Immigration, IGI Ex.PW3/A
b) Stamp of immigration mentioning Airport, New Delhi "offloaded" affixed on passport of accused at page no.8 - Ex.PW3/B Despite opportunity this witness has not been cross examined on behalf of accused persons.
PW-4 Sh. Saurabh Dhingra, Witness deposed regarding forwarding of Asst. Manager, HSBC transaction reference number to their Mumbai Head office of their bank and Bank thereafter, the head office checked the said number and prove the following document.
a) Letter dated 27.11.2007 - Ex.PW4/A FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.6 to 129 This witness has been duly cross-
examined.
PW-5 Mr. Gurpreet Singh Witness deposed that he provided Kochhar certified copy of account opening form and documents pertaining to account no.026120000032131 which was in the name of Mr. Vinay R C Iyar and proved the following documents.
a) Letter dated 25.11.2008 Ex.PW5/A
b) Account opening form of A & A Capital Ex.PW5/B
c) Statement of account for the period 01.10.2007 to 25.11.2008 Ex. PW5/C This witness has been duly cross-
examined.
PW-6 Mr. Prabhat Jha Witness proved the signature of Mr. Subodh Kumar Samal on document Ex.PW6/A and also the genuineness of account, account opening form.
Despite opportunity this witness has not been cross examined on behalf of accused persons.
PW-7 Mr. Atul Gupta Witness proved the account statement of account no.13020200032426 Ex.PW7/A. Despite opportunity this witness has not been cross examined on behalf of accused persons.
PW-8 Mr. Arun Oberoi Witness proved the certified copy of account opening form, copy of office FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.7 to 129 verification/telephone verification, copy of mobile bill, copy of certificate of Import-Export, copy of PAN card, statement of account w.e.f. 22.11.2007 to 07.05.2008 Ex.PW8/A (Colly) and the said documents handed over to IO vide letter dated 07.05.2008 Ex.PW8/B and another letter dated 11.08.2008.
This witness has been duly cross-
examined.
PW-9 Sh. G R Meena Witness proved the certified copy of account no.3646 Ex.PW9/A, statement of account no.3642 Ex.PW9/B and certified copy of cheques Ex.PW9/C. This witness has been duly cross-
examined.
PW-10 Sh. Komal Singh Witness deposed that he is a Notary Suman (Notary Public appointed by Central Government with power to attest documents and Public) proved the following documents:-
a) His attestation on cheque Ex.PW10/A
b) Copy of agreement dated 24.12.2007 Ex.PW10/B This witness has been duly cross-
examined.
PW-11 ASI Bijender Singh Witness joined the investigation with IO and deposed the different stages of investigation conducted with IO and prove the following documents:
a) Seizure Memo of certain documents Ex.PW11/A
b) Seizure Memo of certain emails FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.8 to 129 Ex.PW11/B This witness has been duly cross-
examined.
PW-12 Inspt Sushil Kumar Witness deposed that he verified the
bank transactions and he put his
endorsement on the complaint
Ex.PW12/A, thereafter he was
transferred from the case and
investigation of present case marked to
another IO.
This witness has been duly cross-
examined.
PW-13 HC Surinder Singh Witness joined the investigation with IO
and deposed the different stages of
investigation conducted with IO and
prove the following documents:
a) Arrest memo and personal search
memo of accused Vivek Bhat
Ex.PW13/A and Ex.PW13/B
respectively.
b) Seizure memo of mobile phone and
laptop Ex.PW13/C
c) Disclosure statement of accused Vivek
Bhat Ex.PW13/D
This witness has been duly cross-
examined.
PW-14 ASI Rajeshwar Singh Witness proved the Letter dated Rana 09.02.2009 bearing no.
IP-06/180/2008/738 Ex.PW14/A and annexures Ex.PW14/B from office file FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.9 to 129 no.IP06/180/2008.
This witness has been duly cross-
examined.
PW-15 Mr. Vinay R.C. Iyer To prove the material essentials of the (complainant) offences alleged. He tendered the following documents in evidence :-
a) Draft agreement dated 17.10.2007 Ex.PW15/A
b) Fair agreement Ex.PW15/B
c) Receipt of cheque of Rs.22 Lakh issued by accused Vivek Bhat Ex.PW15/C
d) Agreement dated 24.12.2007 Ex.PW15/D
e) Cheque of Rs.22 Lakh dated 29.12.2007 issued by accused Vivek Bhat Ex.PW15/E
f) Detailed filed to EOW, Delhi Ex.PW15/F
g) E-mail correspondence received by him and forwarded by accused vivek Bhat
h) E-mail correspondence sent by accused Vivek Bhat and same downloaded by complainant Ex.PW15/G1
i) Report of the bank of dishonour of cheque of Rs.22 Crores given by accused to complainant Ex.PW15/H
j) Copy of email alongwith attachment forwarding the sanction letter of Australian Company Ex.PW15/I
k) Copy of email sent by accused Vivek FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.10 to 129 Bhat alongwith attachment forwarding the apology for delay letter of his Australian Company Ex.PW15/J
l) e-mail conservation Ex.PW15/J1
m) e-mail communication between accused and complainant vide forwarding letter dated 16.09.2008 Ex.PW15/K
n) Enclosure 1, enclosure 2 and enclosure 3 attached with letter dated 16.09.2008 Ex.PW15/K1, Ex.PW15/K2 & Ex.PW15/K3 respectively.
o) Letter dated 10.10.2008 regarding reply of signing original agreements with accused Vivek Bhatt on 17.10.2007 & 04.12.2007 Ex.PW15/L, Ex.PW15/L1 & Ex.PW15/L2A, Ex.PW/L2B
p) Letter dated 19.11.2008 written by complainant to IO Ex.PW15/M
q) Letter dated 25.11.2008 written by complainant to IO Ex.PW15/N & Ex.PW15/N1
r) Letter dated 03.09.2008 written by complainant to IO Ex.PW15/O, Ex.PW15/O1, Ex.PW15/O2 & Ex.PW15/O3 respectively This witness has been duly cross-
examined.
PW-16 Inspt. Abhinendra Witness deposed regarding different Singh stages of investigation conducted and proved the following documents.
a). Seized print outs Ex.PW16/X1 FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.11 to 129 (Colly)
b) Letter dated 25.11.2008 of Dena Bank alongwith three cheques Ex.PW16/A, Ex.PW16/A1, Ex.PW16/A2 and Ex.PW16/A3 respectively
c) Letter dated 06.10.2008 of Dena Bank Ex.PW16/B
d) Letter dated 01.12.2008 of Dena Bank alongwith account opening form of Vicky Overseas Ex.PW16/C and Ex.PW16/D respectively
e) Letter received from Federal bank with statement of account of M/s CM Fabs Ex.PW16/E
f) Certified copy of account opening form of M/s CM Fabs Ex.PW16/F
g) Letter dated 15.12.2009 Ex.PW16/G, and enclosures Ex.PW16/G1
h) Letter dated 18.12.2009 of Federal bank Ex.PW16/H alongwith original account opening form of M/s CM Fabs alongwith Power of Attorney document Ex.PW16/H1
i) Arrest memo & Personal Search Memo of accused Devender Pandey Ex.PW16/I and Ex.PW16/J respectively
j) Disclosure statement of accused Devender Pandey Ex.PW16/K
k) Sample signatures of accused Devender Pandey Ex.PW16/L1 to Ex.PW16/L3 respectively and sample signatures of accused Vivek Bhat are Ex.PW16/M1 to Ex.PW16/M7 FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.12 to 129 respectively This witness has been duly cross-
examined.
PW-17 Inspt. Shambhunath Witness deposed regarding different stages of investigation conducted and he had filed the supplementary chargesheet containing two FSL reports.
Despite opportunity this witness has not been duly cross-examined by accused persons.
PW-18 Inspt. Shyo Ram Witness deposed regarding the different stages of investigation conducted.
Despite opportunity this witness has not been duly cross-examined by accused persons.
PW-19 Mr. Ram Singh Saini Witness proved the account details with respect to account no.0261000003216 from 31.01.2007 to 09.03.2009 Ex.PW19/A Despite opportunity this witness has not been duly cross-examined by accused persons.
PW-20 Mr. Tushar Kapoor Witness deposed regarding non availability of original cheques with the bank as per the bank retention police and proved the following documents
a) Reply/letter dated 04.11.2024 Ex.PW20/A This witness has been duly cross-
examined.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.13 to 129
7. Vide statement under Section 294 Cr.P.C. recorded on 05.02.2018, both accused has admitted the genuineness of the following documents: -
S. No. Documents Admitted
1. FSL-2009/D-0871 dated 20.04.2009 Ex.A1
2. FSL-2009/D-5353 dated 09.04.2014 Ex.A2
8. Prosecution witnesses deposed regarding the offence in the present matter as follows :-
PW-1 Ct. Shyam Phool deposed that on 14.8.2008, he was posted at AF&C section EOW, Crime Branch, Delhi. On that day, at about 3.30 pm, Inspector Sushil Kumar handed over him a rukka. He went to PS EOW and after getting the FIR registered, came back at the office of AF&C and handed over the copy of FIR and original rukka to Inspector Sushil Kumar.
PW-2 SI Brij Mohan (Duty Officer) deposed that on 14.8.2008, he was working as Duty Officer at PS EOW from 8 am to 8 pm. On that day, at about, 3.45 pm, Ct. Shyam Phool came with a rukka. On the basis of the said rukka, he registered present FIR bearing no 134/08 and handed over the copy of FIR and original rukka to Ct. Shyam Phool. Copy of FIR was Ex. PW2/A. Record produced by the witness seen and returned.
PW-3 Ramesh Chander Vashisht Asst. Central Intelligent Officer II, Bureau of Immigration, IGI Airport, New Delhi deposed that in the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.14 to 129 intervening night of 10/11.10.2008, he was posted as ACIO-II at Immigration of IGI Airport. On that night, his duty was at departure wing. After seeing the particulars of passenger Vivek Bhat, which were matching with the LOC was detained at the Airport. SI Chhotu Singh of Crime Branch was handed over the accused Vivek Bhat alongwith his passport bearing no. F-9350746. The documentation done by him regarding this passenger on LOC was Ex.PW3/A. He was not allowed to take the journey on his passport a stamp of immigration mentioning "offloaded" was affixed on his passport on page no.8 and same was Ex. PW3/B. PW-4 Saurabh Dhingra, Asst. Manager HSBC Bank, Barakhamba Road, Connaught Place, New Delhi deposed that Mr. Vinay R C Iyar was customer of Bank and he needed funding for his project Bandra Kurla Complex, Mumbai. Accused Vivek Bhat was arranging funds for Mr Vinay R C Iyar. Both Mr Vinay Iyar accused visited our Bank in mid of 2007 to give details for a transfer of money initiated from Australia. Both of them supplied one Transaction Reference Number. A transaction reference number was given when money was to be transferred electronically and this number was generated from the bankers of sender. Upon investigation by the Bank on the said transaction reference number, they could not trace funds under that transaction reference number. They forwarded this transaction reference number to their Mumbai Head Office of our Bank and the Head Office on checking the said number informed them that there are no such funds available under such number. Complainant Vinay R C Iyar addressed one letter dated 27-11-2007 to him for inward remittance FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.15 to 129 intimation for A&A Capital A/c no. 051-664662-001 and the said letter was Ex.PW4/A. Their Bank received two notices from Inspector Sushil Kumar from the Office of ACP, EOW regarding inquiry into complaint of Sh Vinay R C Iyar. In reply to the notices received from the Investigating Officer, Bank replied the IO vide two letters dated 07-05-2008 and letter dated 11-08-2008 which are signed by Mr Arun Oberoi, Vice-Presidents, Operations, Northern India for HSBC. These two letters are marked 4A and 4B respectively. After the transaction reference number could not be connected with any funds from Australia, Mr Vinay R C Iyar deposited one cheque in his account no. 051-664662-001 for encashment which was issued the by accused Vivek Bhat. The said cheque was dishonoured because of funds insufficient.
During cross-examination on behalf of accused Vivek Bhat witness deposed that he did not remember when he met Mr Vinay R C Iyar for the first time. He could not admit or deny the suggestion that he met Mr. Vinay R C Iyar three/four months prior to May 2007. He voluntarily deposed that he did not remember. He knew Mr Vinay R C Iyar only because he was customer of Bank. Mr Vinay R C Iyar has only one account in Bank as mentioned above. He did not remember the date of opening of this account. Their Bank did not deal in transaction of any person who was not a customer of this Bank. He even did not remember whether the account of Mr Vinay R C Iyar was opened prior to Mid of 2007. He could not admit or deny the suggestion that this account of Mr Vinay was opened on 29-11- 2007. From mid 2007 till December 2007 he was posted in Barakhamba FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.16 to 129 Road Branch of HSBC as Asstt. Manager, Liabilities, Small and Medium Enterprises. It was correct that this Branch does not deal with international transactions directly. Police never recorded his statement in writing. It was correct that Mark 4A and 4B were not executed in his presence nor he personally sent them, however, before sending these letters information was sought from him. The information which he had sent to Mr Arun Oberoi was sent by him through E-mails. The IO never obtained hard copy of those E-mails from him during investigation nor they are on record of judicial file. He did not remember as to on which bank the said cheque was drawn which he mentioned to have been dishonoured due to insufficient funds. It was correct that he did not deal in personal accounts of individuals. He did not member as to what date was mentioned by him regarding opening of member account of Mr Vinay when he gave information to Mr Arun Oberoi. It was correct that in mark 4A the date of opening of account of Mr. Vinay was shown as 22-11-2007. He did not send any information to Mr. Arun Oberoi by post besides E-mails. It was correct that specimen signatures cards/account opening form etc. of an account holder remains in the branch of Bank until obtained by Investigating Agency or Court. Witness again said, the account opening forms etc. are sent to Back Office which was located in Chennai regarding accounts in HSBC. Mr Arun Oberoi has office at Barakhamba Road Branch itself and he was in the same office in 2007 when he gave information to him. He was in same office till date. His branch and office of Mr Arun Oberoi are located across the road. He never met personally Mr Arun Oberoi regarding the present case. He never went to the IO regarding FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.17 to 129 this case. Nor IO ever came to his office to investigate the present case. He had seen the IO for the first time in the court. He was not sure whether the cheque deposited by Mr Vinay R C Iyar which was dishonoured and as stated by him in his chief was issued by the accused or somebody else.
PW-5 Gurmeet Singh Kochhar (Branch Manager Kotak Mahindra Bank) deposed that he was Branch Manager of Kotak Mahindra Bank JMD, Regent Square, Mehrauli, Gurgaon Road, MG Road, Gurgaon, Haryana since July 2008. On receipt of a letter from IO Inspector Sushil Kumar dated 20-08-2008 which was received in our Bank in November 2008 in which the IO had asked the Bank to produce certified copies of account opening form and other documents pertaining to a/c no. 02612000003213 which was in the name of Mr Vinay R C Iyar, Bank was also asked to produce statement of account between 01-10-2007 till the date of letter and Bank was also asked certain details about two cheques. Vide his letter dated 25-11-08 which was Ex.PW5/A he had sent one certified copy of account opening form and all other documents submitted at the time of opening of the said account in the name of A&A Capital. The account opening form was Ex. PW5/B running into four pages. At the time of opening of account, one copy of Pan card was also furnished which was mark 5A. Subsequently, in this account one change of name application was given by the account holder, photocopy of which is Mark 5B. Subsequently, one application for acceptance of multiple signatures was also given to the Bank, the photocopy of which was Mark 5C. He also handed over one statement of the said account for the period 01-10-2007 FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.18 to 129 till 25-11-2008, the certified copy of which was on record Ex. PW5/C. Besides this, he also handed over two cheques worth Rs. 22 lakhs and Rs. One lakh respectively which were issued from this account. One of the cheque was in the name of Vicky Overseas and the second cheque was in the name of one individual.
On 16.11.2024 PW-5 was recalled for cross examination after 10.02.2009 and Court observed that IO in the present matter was summoned on the last date of hearing and to clarify regarding the cheques in question bearing no.000019 dated 30.10.2007 issued by A & A Capital in favour of Vicky Overseas and another cheque no.000014 dated 17.10.2007 issued in the name of Sh. Vivek Bhat and during clarification IO apprised the court that the aforesaid two cheques being admitted were never sent to FSL in the present matter and the original of the same were never seized. He further has apprised that the cheques are already Marked-16/A2 and Mark-16/A3 for an amount of Rs.22 Lakhs and Rs.1 Lakh respectively. In view of the aforesaid clarification from the IO, the examination chief of witness was deferred due to want of original cheques and since the cheques were never seized, the examination in chief stands concluded. During the testimony, witness submits that as per his previous statement recorded on 10.02.2009 it had been mentioned that he had handed over the original cheques but he again gone through the letter Ex.PW5/A wherein it he categorically mentioned that he had handed over the copy of the cheques to the IO.
During cross-examination on behalf of accused Vivek Bhat PW-5 deposed that he had never handed over the original cheques to the IO in the present FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.19 to 129 matter during his tenure. During examination witness was asked could he explain the procedure of SWIFT TRANSFER to which witness replied that Swift Transfer was when overseas bank transfer money to India via a direct mode or through a tie-up branch in India. For example if a Bank of America overseas has a liasoning office/Branch office in India they will transfer directly to Bank of America India Branch else they will credit to the Nostro Bank Account where they have tie-up. This complete information comes by a email or Swift Advise to the concerned bank and the customer for which the swift advise is generated. Whenever if there was any discrepancy regarding the inward swift not received then the customer has to bring the requisite information/details which he received via email from his foreign bank and then only bank follow-up with the corresponding bank. To confirm any swift advise the bank requires the complete details of the remitting bank transfer which was provided to them via email which was a detailed document. He did not know as to how many digits have the Swift Account Number.
Accused Dewendra Pandey adopted the cross conducted on behalf of accused Vivek Bhat.
PW-6 Sh. Prabhat Jha (Bank Official) deposed that he could identify the signature of Mr. Subodh Kumar Samal on Ex.PW6/A as he had worked with him and seen him signing and writing in his presence during course of his duty. The genuineness of documents which was marked as A and was an account opening form running into 6 pages from 181 to 186 was not in dispute and each page bears signature of Mr. Subodh Kumar Samal at point FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.20 to 129 A who got attested the same. The genuineness of the statement of account No. 007101031604 annexed with the judicial file running from 181 to 213 are not in dispute and the same was collectively marked as B. Despite opportunity PW6 was not cross examined by both accused persons.
PW-7 Sh. Atul Gupta, Assistant Manager, Federal Bank, Nehru Place, New Delhi deposed that he had brought the account statement of Account No.13020200032426 which was running into two pages and the same was Ex.P7/A which bears the signature of Manoj Kumar U-K, Senior Manager. He could not identify the signatures on letter dated 18.12.2009 issued by Federal Bank.
Despite opportunity PW6 was not cross examined by both accused persons.
PW-8 Sh. Arun Oberoi, Vice President (Operation) HSBC Ashoka Estate 24, Barakhamba Road, New Delhi deposed that he was posted as Vice President (Operation), HSBC, Ashoka Estate, 24, Barakhamba Road, New Delhi-01. On request of IO, copy of current account no. 051664662001 in the name of M/s. A&A Capital which was opened by Mr. Vinay R.C Iyer was handed over by another bank official to him. The certified copy of the account opening form of the said account, copy of office verification / telephone verification, copy of mobile bill, copy of certificate of Import- Export, Copy of PAN Card, statement of the said account from the date of account opened i.e 22.11.2007 to 07.05.2008 are Ex. PW 8/A (colly). The following documents were handed over to IO vide letter dated 07.05.2008 which was Ex.PW 8/B earlier marked as Mark 4A. He had seen the letter FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.21 to 129 dated 11.08.2008 and he confirmed its authenticity as it pertains to his bank. Same was Ex.PW8/C. During cross examination on behalf of accused Vivek Bhat PW-8 deposed that it was correct that he had no personal knowledge about the facts of this case. It was correct that document Ex. PW 8/C does not bear his signatures. Witness voluntarily deposed that it bears signatures of one Mr. Kapil Kapoor who was his colleague as well as was authorised to sign letters on his behalf. Same was his reply in respect of document Ex.PW 8/B which bears signatures of one Ms. Veenu Kuba on his behalf. Today, he did not remember as to whether he had personally handed over any document to any of the police officials or not. He could not admit or deny whether document Ex.PW 8/B was handed over to police by him or not. He did not remember whether police had recorded his statement or not. Despite opportunity PW-8 did not cross examine by accused Devender Pandey.
PW-9 Sh. G R Meena, Sr. Manager, Dena Bank, Okhla Phase III, New Delhi deposed that he had brought the summoned record and has also tallied the same with the documents available on the judicial file. Certified copy statement of account in respect of account No. 3646 was Ex.PW9/A and certified copy of statement of account in respect of account No. 3642 was Ex.PW9/B, the certified copies of cheques are collectively Ex.PW9/C. The originals of all these documents including cheques were handed over to police by their bank.
During cross examination conducted on behalf of accused Vivek Bhat FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.22 to 129 PW-9 deposed that it was correct that he had no personal knowledge about the present case.
Accused Devender Pandey adopted the cross examination conducted on behalf of accused Vivek Bhat.
PW-10 Sh. Komal Singh Suman, Advocate deposed that she has been practicing advocate at Delhi and also a Notary Public appoint by Central Government with power to attest the documents. She had seen the photocopy of cheque bearing her attestation at point A and also carrying her seal. The said document was Ex. PW10/A which was attested by her in her capacity as Notary Public. She had also seen the photocopy of an agreement dated 24.12.2007 which also bear her signature at point A and the said photocopy is Ex. PW10/B. Besides these attestation, she had no personal knowledge about the facts of the present case. During cross examination on behalf of accused Vivek Bhat PW-10 deposed that she was given the notary license for the period 01.06.2007 till 31.05.2012 and later on it has been renewed further. It was correct that as per procedure a notary was required to maintain a register mentioning therein the nature of document attested alongwith the name of the party presenting it for attestation. Neither IO had demanded nor she had handed over him any such extracts of her register. It was not mandatory in the case of a photocopy attested by a notary to record its particulars in the said register. It was correct that she had no knowledge about the contents of the documents which were attested by her.
Despite opportunity accused Dewender Pandey did not cross examine FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.23 to 129 PW10.
PW-11 ASI Bijender Singh deposed that on 14.10.2008 he was posted as Head Constable at PS EOW. On that day, he had joined investigation with the IO/SI Chotu Singh and on that day accused Vivek Bhat who was already in police custody was taken to his house at 254, Rama Krishna Vihar, Plot No. 29, I.P. Extension, Delhi from where IO had seized certain documents and had also prepared seizure memo of the same which was Ex. PW11/A. On the very same day, accused was thereafter brought to Saket, J- Block Market and was taken to a Cyber Cafe from where his e-mail account was opened and IO had taken the print outs of certain e-mails which were taken into possession vide seizure memo Ex. PW11/B. Thereafter, they had reached back to their office where his statement was also recorded by the IO.
During cross examination on behalf of accused Vivek Bhutt PW-11 deposed that on 14.10.2008 the office of EOW was situated at Qutub Institutional Area. Accused was taken out from lock up at around 9.00 am and was lodged back at lock up at 8.00 pm. They had reached at the house of the accused at around 11.00 am. The building where the flat of the accused was situated was around 3-4 storeys. There was no cinema hall or school near the house of the accused. The flat of accused was situated either on first or second floor which he do not remember exactly. The wife of accused who was also present in the court and witness has correctly pointed out was present at his flat and she had opened the door. They had reached there in the vehicle of IO. Accused was brought to their office FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.24 to 129 from lock up and from there they had directly proceeded to his residence. Accused was lodged in Hauz Khas Police lock up. They left their office at around 9.30 am to proceed to the house of accused. No one met them on their way to house of accused who could have been asked to join the proceedings. IO had not called anyone from RWA. The IO had requested 2-3 neighbours but they had also refused to join the proceedings. Accused was residing in a Society Flat. It was correct that entires with respect to visitors are maintained with the society. The signatures of wife of the accused were obtained on the seizure memo. Again said, he did not remember exactly as to whether her signatures were obtained or not. They left the house of accused at around 12.00 noon -1.00 pm. He did not remember the name of Cyber Cafe in Saket Market where accused was taken for operating his e-mail account. He had no knowledge as to whether any entry in mandatory in the register kept at the Cyber Cafe by the person who wishes to use the internet facility. The Cyber Cafe was situated at the backside of Anupam PVR. The distance between Cinema Hall and Cyber Cafe was about 100 yards. He did not remember the duration for which internet connection was used by the accused. IO had obtained the receipt of the same. He did not know whose identity was used for operating the internet. IO might have taken the counter signs of the owner of Cyber Cafe on the documents seized from there. He did not know if IO had recorded any statement at the Cyber Cafe or not. He did not remember the registration number of the IO's personal vehicle. Accused was taken to Safdarjung hospital for his medical examination after taking him out from the lock up as well as putting him back at around 7.00 pm. Again said, FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.25 to 129 accused are medically examined only once in 24 hours and that too mostly in the evening.
Accused Devender Pandey adopted the cross examination conducted on behalf of accused Vivek Bhat.
PW-12 Inspector Sushil Kumar deposed that in the month of April, 2008 the enquiry of the complaint of this case was marked to him. He verified the bank transactions etc. and having found commission of cognizable offence. He put his endorsement on the complaint vide Ex.PW12/A and got this case registered at PS EOW on 14.08.08. On 20.08.08, he was transferred from this case and the investigation was marked to another IO.
During cross examination on behalf of accused Vivek Bhat PW-12 deposed that he conducted enquiry for about 3 ½ months before forwarding the complaint for registration of FIR. During the course of enquiry he had not recorded statement of any public person or bank official or even otherwise, however he had collected certain documents from the banks to verify the allegations. It was correct that he had not given the details of all the documents collected by him during the course of enquiry. He voluntarily deposed that he had mentioned the brief outcome of the enquiry in the rukka. He handed over all the documents which were collected by him during the course of enquiry to the investigating officer. He had not collected any document from Australian company Interworld P. Ltd. to show that the signatures of CEO and Director of the said company was forged. He had verified from HSBC, Barakhamba Road who informed in FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.26 to 129 writing that the swift advice was a bogus document. The said letter of HSBC was also handed over to the IO. He could not say as to why the IO has not placed the same.
Despite opportunity accused Devender Kumar Pandey did not cross examine PW-12.
PW-13 HC Surender Singh deposed that on 10.10.08 he was posted as a HC at AF&C EOW. On that day SI Chotu Singh received DD No. 30. On this he alongwith SI Chotu Singh went to IGI Airport where immigration staff of IGI Airport handed over accused Vivek Bhat, who was present in the court to SI Chotu Singh. Thereafter they had taken accused Vivek Bhat to the office of EOW. IO interrogated accused Vivek Bhat. Accused Vivek Bhat was arrested and his personal search was conducted vide Ex.PW13/A and Ex. PW13/B. The belongings of the accused except one laptop make HP and one mobile phone make Motorola was handed over to his wife Pooja, again said Poonam. The above said laptop and mobile phone was seized vide seizure memo Ex.PW 13/C. The identity of the above said mobile phone and laptop was not in dispute. Accused was produced before senior officials and later on his remand was sought by the Court. On 12.10.08 IO obtained specimen handwriting and signatures of accused Vivek Bhat and disclosure statement of accused was recorded which was Ex.PW13/D. On 02.12.08 he collected three sealed pulandas from malkhana EOW sealed with the seal of CHD and got it deposited in FSL, Chandigarh vide RC No. 5/21/2008, PS EOW on 03.12.08. On 04.12.08 he handed over the photocopy of receipt of deposit of exhibits to the IO and FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.27 to 129 original of the same to the MHC(M), PS EOW.
During cross examination on behalf of accused Vivek Bhat PW-13 deposed that the information from IGI Airport was received at PS EOW Cell on 10.10.08 at 11:40 pm. He did not know the name of the Immigration Officer who had given message to the police station. He did not remember the exact time when he alongwith IO SI Chotu Singh proceeded for IGI Airport. He voluntarily deposed that they proceeded immediately after receipt of the information. SI Chotu Singh had made departure entry in the DD register before proceeding to IGI Airport. No other person other then him and IO had proceeded to IGI Airport. He alongwith IO and accused Vivek Bhat came back to the police station at 2:00/3:00 am on 11.10.08. It had taken about one hour at IGI Airport in the entire writing work. He did not know whether they had gone to Immigration room of the arrival section or departure section. No document of handing over of accused and his belongings by the Immigration Officer to the IO was prepared. Accused was not arrested at IGI Airport. He was simply detained by us and brought to police station. He did not remember if IO had made any entry in respect of taking the accused alongwith him from the immigration section. It was correct that he had not mentioned the model number and description of mobile and laptop in his statement. Laptop and mobile were seized at EOW Cell. He did not know if IO had made any entry regarding taking over of laptop, mobile and other belongings from the Immigration Officer in the record of the Immigration office. It was correct that no statement/interrogation report/ disclosure of accused Vivek Bhat was FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.28 to 129 written down by the IO before being produced in the court for the first time on 11.10.08. On 11.10.08 accused was remanded to police custody till 16.10.08. During police remand accused was not taken to the court of Ld. Magistrate. He did not remember if IO had sought permission from the Ld. Magistrate before taking specimen writing and signatures of accused. It was correct that no public person was joined before taking the alleged specimen handwriting and signatures of the accused. So far he remained associated with the investigation of the present case, nobody else was joined in the proceedings. He did not remember if he had made entry regarding receipt of exhibits from MHCM in the malkhana register on 02.12.08. It was correct that copy of the road certificate or form CFSL are not on record.
Despite granting opportunity accused Devender Pandey did not cross examine PW13.
PW-14 ASI Rajeshwar Singh Rana deposed that letter dated 09.02.2009 bearing no. IP-06/180/2008/738 alongwith annexures was issued by Sh. Rakesh Aggarwal, Assistant Director, Interpol, New Delhi. It was forwarded to DCP (EOW), Crime Branch. The said letter was Ex PW14/A (page no.1) bearing signatures of Sh. Rakesh Aggarwal. He had brought original file no. IP-06/180/2008 from his office which was containing office copy of the said letter and all the annexures which were Ex.PW14/A and Ex.PW14/B (Colly) During cross examination on behalf of accused Vivek Bhat PW14 deposed that Mr. Rakesh Aggarwal, the then Assistant Director is present posted in FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.29 to 129 Himachal Pradesh. He belongs to Himachal Pradesh cadre and after 2009, he left Delhi and joined back Himachal Cadre in Himachal Pradesh. He was working in the Interpol Section since 1998. He had worked with Mr. Rakesh Aggarwal. He had not handled file of the present case as mentioned above. He had been assigned by the office to bring the record before the court. He identify the signatures of Mr. Rakesh Aggarwal. He had no personal knowledge of this case. He could not say what follow up was taken on the letter Ex.PW14/A by their office and when the annexure Ex.PW14/B were received in their office.
During cross examination on behalf of accused Devender Kumar Pandey PW14 deposed that it was correct that the letter Ex.PW14/A was not signed in his presence by Sh. Rakesh Aggarwal. It was also correct that the said letter Ex.PW14/A and Ex.PW14/B (Colly) were not dispatched in his presence nor he had any knowledge regarding the same. It was correct that signatures on Ex.PW14/A was only an initial and not the full name. He was told for the first time about the said signatures only when the summons were received in his office. The Dealing hand has handed over the file and asked him to appear before the court. He did not have personal knowledge of the case.
PW-15 Sh. Vinay R.C. Iyyer (complainant) deposed that in the year 2007, he was CEO of "A&A Capital" having its office at Eros Tower, Nehru Place, New Delhi. The A&A Capital was started in the year 2006 by him to facilitate and construct real estate projects in Mumbai and other cities. In the year 2007, he was introduced to accused Vivek Bhat by Mr. Ravi Saini, FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.30 to 129 Mr. Vinay Kapoor and Rajesh Pundhir telling him that accused Vivek Bhat was claiming himself to be representative of an Australian Company namely Interworld PTY. Ltd. for providing finances for business projects. During his talks with accused Vivek Bhat, he confirmed that he was representing the above mentioned Australian Company and accused told to him that he will arrange finance of Rs. 32 Crores against an International Bank guarantee from his above mentioned Australian Company. At that time, he was in need of finance for funding the earnest money for the projects to be taken up by A&A Capital. He had disclosed to the accused Vivek Bhat that he was in need of finance upon which he offered that he will provide the financing of above mentioned Rs. 32 Crores (7.8 Million USD) from his Australian Company. Accused also said that he will himself arrange the International Bank guarantee to be used for the purpose of arranging finance as above mentioned. For this purpose, accused Vivek Bhat asked him to give him Rs. 23 Lacs in two installments, the first being a cheque of Rs.1 Lac and another cheque of Rs. 22 Lacs after his getting the finance project being approved by his Australian Company. In pursuance of the assurances of the accused, he entered into a written agreement with him on 17.10.2007. For this purpose, he drafted a typed agreement dated 17.10.2007 in which accused Vivek Bhat did handwritten changes. The above said agreement was Ex.PW15/A. The handwriting in blue ink on Ex.PW15/A has been made by accused Vivek Bhat in his presence. After that the amendments were included and a fair agreement dated 17.10.2007 was executed between him and accused Vivek Bhat witnessed by Vinay Kapoor, Rajesh Pundhir and Ravi Saini. The above FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.31 to 129 said agreement was Ex.PW15/B. After execution of agreement Ex.PW15/B its original was taken back by accused Vivek Bhat to get it stamped by his above mentioned Australian Company and thereafter, despite numerous requests from his side, he never returned the original agreement to him. He had retained its copy with him which he furnished to IO. On the same day, i.e. 17.10.2007 after signing the agreement Ex. PW15/B, he handed over a cheque of Rs.1 Lac to accused Vivek Bhat which was encashed by accused. After around a week or 10 days, accused Vivek Bhat confirmed to him that finance of 7.8 Million USD has been approved by his Australian Company as mentioned above in favour of his firm A&A Capital and asked him to hand him over the second cheque of Rs. 22 Lacs. In pursuance of the representation of accused, he handed him over another cheque of Rs. 22 Lacs dated 30.10.2007 vide a receipt duly issued to him by accused Vivek Bhat. The above said receipt of cheque of Rs. 22 Lacs issued by accused Vivek Bhat is Ex. PW15/C bearing signature of accused Vivek Bhat. The receipt Ex.PW15/C also embodies the copy of cheque of Rs. 22 Lcas issued by him. The above said cheque of Rs. 22 Lacs was also encashed by accused through his Company Vicky Overseas. The first cheque of Rs. 1 Lac was issued by him in the name of accused. While the second cheque of Rs. 22 Lacs was issued in the name of his company Vicky Overseas as per insistence of accused Vivek Bhat. Despite paying Rs. 23 Lacs, his proprietorship concern A&A Capital does not receive any funding as claimed by accused Vivek Bhat. When he persuaded accused Vivek Bhat he sent him several e-mail attachments of letters purportedly issued by his Australian Company claiming that the fund of Rs. 7.8 Million USD was on FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.32 to 129 the way and was going to be credited in the account of A&A Capital. Accused Vivek Bhat also provided him a swift advice that the above mentioned fund was already transferred from Australian Company and was to be credited in the account of A&A Capital. He presented the above mentioned swift advice to Mr. Saurabh Dhingra, Manager, HSBC Bank, Barakhamba Branch who verified the above mentioned swift advice as bogus and forged advice. When he confronted the accused Vivek Bhat that the swift advice arranged by him was declared as bogus by HSBC Bank officials, he showed his repentance and pleaded to be given one ore chance to arrange the said fund of Rs.7.8 Million USD.
Accused Vivek Bhat told him that for the interim period till which he was not able to arrange the above mentioned funds, he will provide an interim funding of Rs. 22 Crores, for which an agreement dated 24.12.2007 witnessed by Sh. Ravi Saini and Vinay Kapoor was executed between him and accused Vivek Bhat which was Ex. PW15/D. Thereafter, in execution of the agreement Ex.PW15/D, accused Vivek Bhat issued him a cheque of Rs. 22 Crores dated 29.12.2007 which was Ex.PW15/E bearing signature of accused Vivek Bhat and signature of accused Dewender Pandey. Accused Vivek Bhat also took a guarantee cheque of Rs. 22 Crores from him to be encashed after he would receive the funding from his Australian Company. The above mentioned guarantee cheque was neither returned to him nor presented. When he presented cheque Ex.PW15/E in the account of his proprietorship concern A&A Capital, it was dishonoured by Dena Bank. When he confronted accused Vivek Bhat as to the fact of the dishonour of his cheque, he told him that he had requisite funds (Rs 22 FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.33 to 129 Crores) in his saving bank account in ICICI Bank, Green Park Branch, New Delhi which he could not transfer to Dena Bank. Thereafter, on his insistence, accused Vivek Bhat issued him three fresh cheques of ICICI Bank, Green Park Branch, amounting to Rs. 21.60 Crores. The copies of above said three cheques are marked as Mark 15/X. When he presented the first cheque dated 30.01.2008, it was dishonoured and therefore he did not present the remaining two cheques being a futile exercise. When he confronted accused Vivek Bhat about the above said facts, he once again pleaded for one last opportunity to be given to him for arranging the funding equivalent to USD 7.8 Million USD which he told, he would do by getting a bank guarantee issued and discounted in favour of A&A Capital from his own sources. For this purpose accused Vivek Bhat asked him for one week time which he also gave him as he had already parted with Rs. 23 Lacs. But, during the said week accused Vivek Bhat absconded from Delhi NCR with his family. Accused Vivek Bhat also switched off his mobile phones and left all his known premises. He tried best to contact or search him through the people who had introduced him to him but no one was knowing about his whereabouts. Since all his efforts to contact accused proved to be futile as he was absconding, he filed a complaint in EOW, Delhi Police. His detailed complaint was Ex.PW15/F. With his complaint he annexed the e-mail correspondences received by him and forwarded by accused Vivek Bhat as annexure 1 which was Ex. PW15/G (running into 06 pages). With his complaint, he had also annexed copy of his bank statement which was marked as Mark 15/X1. He also annexed with his complaint e- mail correspondence sent by accused Vivek Bhat and downloaded by him FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.34 to 129 on his computer which was Ex. PW15/G1. His letter dated 27.11.2007 to Mr. Saurabh Dhingra, Manager, HSBC was already Ex. PW4/A and annexed by him with his complaint as annexure 6-B. The copy of his guarantee cheque issued to accused was marked as Mark 15/X2. The report of the Bank of dishonour of cheque of Rs. 22 Crores given to him by accused and annexed with his complaint as annexure 10 was Ex. PW15/H. The copy of e-mail sent by accused Vivek Bhat alongwith attachment forwarding the sanction letter of his Australian Company to him annexed as annexure 12 with his complaint was Ex. PW15/I. The copy of e-mail sent by accused Vivek Bhat alongwith attachment forwarding the apology for delay letter of his Australian Company to him annexed as annexure 13 with his complaint was Ex.PW15/J. During investigation, he forwarded to IO e- mail communications between accused Vivek Bhat and he vide his forwarding letter Ex.PW15/J. The e-mail conversation forwarded with above said letter are Ex.PW15/J1 (colly, 31 pages) from page no. 43 to 73 of judicial record. During investigation, he forwarded IO his letter dated 16.09.2008 with enclosure 1, 2 and 3 giving contact detail of Bank guarantee provider and other details of the case. The above said letter was Ex. PW15/K. The enclosure attached with the above said letters as enclosure 1 is Ex. PW15/K1 (running into 02 pages), the enclosure 2 was Ex. PW15/K2 (running into 05 pages) and enclosure 3 was Ex. PW15/K3 (running into 02 pages). During investigation, he forwarded to IO his letter dated 10.10.2008 regarding his reply about original agreements signed with accused Vivek Bhat on 17.10.2007 and 04.12.2007. The said letter was Ex. PW15/L. He also forwarded letter dated 10.10.2008 to IO regarding FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.35 to 129 investigation of guarantee cheque of Rs. 22 Crores issued by A&A Capital. The said letter was Ex. PW15/L1. His letter dated 10.10.2008 with which was handed over copy of e-mail sent by Mr. Ravi Saini to accused Vivek Bhat and himself on 27.12.2007 and handed over to IO was Ex. PW15/L2. The two annexures annexed with Ex. PW15/L2 was Ex. PW15/L2A and Ex. PW15/L2B. His letter dated 19.11.2008 enclosing and forwarding to the IO filled up funding application provided to him by Vivek Bhat was Ex.PW15/M (running into 03 pages). His letter dated 25.11.2008 forwarded to IO was Ex. PW15/N (running into 03 pages including annexure / enclosure). His letter dated 25.11.2008 handing over bank endorsement receipt from ICICI Bank to IO was Ex. PW15/N1 (running into two pages including annexure). During investigation, he handed over original documents mentioned in his letter dated 03.09.2008 to IO. His above said letter dated 03.09.2008 was Ex.PW15/O. The documents forwarded with letter Ex. PW15/O were already Ex.PW15/A, Ex. PW15/C, Ex. PW15/O1, Ex. PW15/E, Ex. PW15/H and Ex. PW15/O2 respectively as shown in Ex.PW15/O. The envelop in which he had received documents Ex.PW15/O2 from Interworld PTY Ltd., Australia has also been handed over to IO by him and placed on record which was Ex.PW15/O3. The agreement dated 24.12.2007 entered into between Creative Brains Financial Consultancy (business concern of accused Vivek Bhat) and A&A Capital represented by him was notarized by one public notary Mr. Komal Singh who was also examined by the police. In the present case, accused Vivek Bhat was also arrested in the office of EOW / Crime Branch, Qutub Institutional Area vide arrest memo already Ex.PW13/A. There from the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.36 to 129 possession of accused Vivek Bhat one HP Laptop with charger in a polybag and one Motorola mobile phone was also seized vide seizure memo already Ex. PW13/C. He heard from the police that accused Vivek Bhat was apprehended by the police at IGI Airport, New Delhi while attempting to flee. The e-mail correspondences handed over by him to IO which was already Ex.PW15/G, already Ex. PW15/G1, Ex. PW15/I, already Ex.PW15/J, already Ex.PW15/J1 and all other e-mail correspondences which he forwarded to the IO as annexures with his above mentioned letter already exhibited by him were received by him on his personal laptop and print outs taken by him personally from his Laptop. He handed over IO all the e-mail correspondences as it was, as he received and downloaded / printed it from his personal laptop. During the period, he received above said e-mails and downloaded / printed the same. His laptop and printer were properly functioning. Initially, he was operating his bank account of A&A Capital in Kotak Mahindra Bank, Gurgaon but later on he also opened an account of A&A Capital in HSBC Bank, Barakhamba Road, New Delhi on asking and persuasion of accused Vivek Bhat as he claimed that funds would be swifted from his Australian Company into HSBC Bank only. Accused Vivek Bhat was present in the Court and correctly identified by the witness. He heard about accused Dewendra Pandey first time when he received a cheque of Rs. 22 Crores Ex. PW15/E from accused Vivek Bhat as interim funding. On the above said cheque signature of Dewendra Pandey was also appearing as co-signatory. When he asked the accused Vivek Bhat about the status of Dewendra Pandey, Vivek Bhat claimed that accused Dewendra was his partner in various FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.37 to 129 business ventures. He saw accused Dewendra Pandey for the first time when he was apprehended by officials of EOW in the office of EOW / Crime Branch. Accused Dewendra was also present in the Court and correctly identified by the witness.
During cross examination on behalf of accused Dewendra Pandey PW-15 deposed that before meeting for the first time in the office of EOW / Crime Branch post registration of present FIR, he never personally dealt with accused Dewendra Pandey for any purpose whatsoever. It was correct that Dewendra Pandey personally never gave any assurance or promised to do anything for him, whatsoever. It was also correct that Dewendra Pandey never even talked to him at any point of time for any purpose. It was also correct that the cheque Ex.PW15/E was not signed by accused Dewendra Pandey in his presence. It was also correct that he had never seen accused Dewendra Pandey signing any document or cheque. It was also correct that he never entered into any agreement be it oral or written with Dewendra Pandey for any purpose. The aforesaid information that he did not deal with accused Dewendra Pandey at any point of time for any purpose was also disclosed by him to the police during investigation. He could not comment, if accused Dewendra Pandey was also a victim in present case. He did not sign any document in the presence of police officials pertaining to arrest of Dewendra Pandey.
During cross examination on behalf of accused Vivek Bhat PW-15 deposed and witness was asked questions as follows:-
Qns. Is it correct that you have your complaint exhibited as Ex.PW15/F as FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.38 to 129 authorized signatory of M/s. A&A Capital?
Ans. I have filed my complaint as a proprietor of M/s. A&A Capital. Qns. Is it correct that in Ex.PW15/F it is not mentioned that you are proprietor of M/s. A&A Capital?
Ans. It is mentioned that I have signed the complaint as the CEO of M/s. A&A Capital and I am authorized signatory being the proprietor of M/s. A&A Capital.
Qns. Is it correct that you have not been authorized for and on behalf of M/s. A&A Capital nor any authorization has been filed along with the complaint or any stage during the investigation by you? Ans. This question is erroneous since I do not need authorization from any individual or organization as M/s. A&A Capital is a proprietory concern and I am the sole proprietor.
During cross-examination witness was shown complaint exhibited as Ex.PW15/F and asked that it does not contain any averment that M/s. A&A Capital is the proprietory concern. Witness replied that M/s. A&A Capital is the proprietory concern is not mentioned in the complaint as the complaint is against accused Vivek Bhat for defrauding me and he was well aware that M/s. A&A Capital is a proprietory concern and he agreed to provide funding for his proprietory concern. During cross examination witness was asked questions as follows:-
Qns. Is M/s. A&A Capital was a single entity on that time or there were several company by the name of M/s. A&A Capital under your supervision?
Ans. Yes M/s. A&A Capital was a single entity at that time with one bank FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.39 to 129 account. No other company by the name of M/s. A&A Capital is under my supervision. Vol. Subsequently second bank account in the name of M/s. A&A Capital my proprietory concern was opened at the behest of Vivek Bhat with HSBC Bank, Barakhamba Road, New Delhi as claimed that the funding will be swifted from Australia into the HSBC Account. Qns. Is there any documentary in the form of letter or otherwise to show that the account with HSBC was got opened on the asking of accused Vivek Bhat for the reason assigned by you above?
Ans. No. The request was made telephonically by accused Vivek Bhat. Qns. When M/s. A&A Capital was formed?
Ans. In the year 2007. I do not recollect the month or the date today. Qns. Whether M/s. A&A Capital is a proprietory concern from its inception?
Ans. Yes.
Qns. Whether M/s. A&A Capital was registered?
Ans. It was the proprietory concern as on that time no registration is required as per the law so it was not registered.
Qns. From where this proprietory concern was functioning (address) during the year 2007-2008?
Ans. As mentioned in my complaint it was functioning from Eros Corporate Tower, Nehru Place, New Delhi.
Qns. What was the nature of business of M/s. A&A Capital? Ans. Real Estate Development.
Qns. Is it correct that the nature of business is required to be mentioned in the account opening form with the bank in respect of any FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.40 to 129 proprietorship/partnership/company?
Ans. Yes.
Witness deposed that he must have mentioned the nature of business in the account opening form with the bank. During cross-examination witness was shown with the account opening form exhibited as Ex.PW8/A (colly.) where the nature of business mentioned as Exporter Commodity from point
-A to Al. Witness voluntarily deposed that it was mentioned so because a proprietory concern can have diversified businesses. He had opened account of M/s. A&A Capital with Kotak Mahindra Bank many months prior to the opening of account at HSBC Bank. Account of M/s. A&A Capital with Kotak Mahindra was opened in January 2007 as per the record Ex.PW5/B. It was incorrect that M/s. A&A Capital was not doing any business prior to 21.11.2007 that is why he had mentioned M/s. A&A Capital as new company in Ex.PW8/A (colly.) at point-A. He voluntarily deposed that M/s. A&A Capital was set up in 2007 itself that is why I mentioned new company. As per his knowledge all the details were given in account opening form Ex.PW8/A (colly.) and Ex.PW5/B(colly.) are correct.
During cross examination witness was asked following question:- Qns. For which purpose you had sought the loan and on what pretext from Mr. Hagg?
Ans. This question is factually is incorrect as I did not know Mr. Hagg at that time. Vol. Accused Vivek Bhat approached me and represented himself to be authorized representative of Interworld Pty. Ltd. an Australian Finance Company and offered to provide funding for my project FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.41 to 129 for Real Estate Development.
He had mentioned in his complaint that accused Vivek Bhat approached him and represented himself to be authorized representative of Interworld Pty. Ltd. an Australian Finance Company. Accused Vivek Bhat has shown him a letter to this effect. He voluntarily deposed that the said letter was later on found as a forged document by the EOW and confirmed by Interworld Pty. Ltd. He had not given the said letter to the police official as the same was in the possession of accused Vivek Bhat. It was incorrect that Mr. Hagg was known to him before 2007. He came in contact with accused Vivek Bhat in September/October 2007. He was introduced by his another associate namely Ravi Saini. It was correct that in his examination in chief that accused Vivek Bhat was introduced by Ravi Saini, Vinay Kapoor and Rajesh Pundir. He voluntarily deposed that Vinay Kapoor and Rajesh Pundir claimed that their associate Ravi Saini was the one who was acquainted with accused Vivek Bhat. He had mentioned the name of Vinay Kapoor and Rajesh Pundir as the persons who introduced him to accused Vivek Bhat in his complaint. It was correct that the application form exhibited as Ex.PW15/D1 bears his signatures at point-A and the same was to be sent for loan/funding purpose. He voluntarily deposed that it was taken and kept in the possession of Vivek Bhat himself. It was correct that vide Ex.PW15/D1 M/s. A&A Capital was shown to have estimated total gross assets value worldwide of USD 100 million. Ms. K.J. Sukumari who was attesting witness of Ex. PW15/D1 was his office assistant at that time. He was not aware if the police official enquired with Ms. K.J. Sukumari. He new Ravi Saini 2-3 months prior to introduction of accused Vivek Bhat.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.42 to 129 Vinay Kapoor introduced Ravi Saini to him. He had no business transaction with Ravi Saini and Vinay Kapoor, they were middlemen to secure funding of his project. Rajesh Pundir introduced Vinay Kapoor to him. Rajesh Pundir came in contact with him in the year 2007, the exact day and month he did not recollect/remember. He had no business transaction with Rajesh Pundir also as he was also a middleman to secure loan/funding for his project. He had never met with the person in the name of Ashish Sahwney. He saw the person in the name of Devender Pandey in EOW. It was correct that Ex.PW15/D1 does not contain that the said asset was worldwide. During cross-examination witness was shown the document comprising of 8 pages which was now Ex.PW15/D2 (colly.) and asked that he had shown the total project cost, own contribution and fund required whether it was true. To which witness reply yes it was so mentioned.
During cross examination witness ask the following question:- Qns. I put it to you that you have no contribution available in your account and the document Ex.PW15/D2 have been fabricated by you to Ans. It is incorrect.
During cross-examination witness was shown Ex.PW5/C and asked whether the said document related with the account have only two entries of high denomination which was deposited and dishonoured and last balance as on 31.10.2008 was -2262.60. It was correct that as per the record. He voluntarily deposed that both the cheques which was dishonoured belonged to accused Vivek Bhat. He voluntarily deposed that the cheque of Rs. Twenty two crores was issued M/s. A&A Capital as a FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.43 to 129 guarantee cheque towards repayment of advances of Rs. Twenty two crores issued by accused Vivek Bhat through his firm Vicky Overseas after the funds from Australia had been credit in the account of M/s. A&A Capital. This cheque issued by Vicky Overseas for Rs. Twenty Two crores favouring M/s. A&A Capital was returned dishonoured due to insufficient fund.
During cross-examination witness was asked following question:- Qns. Is it correct that all the cheques were obtained by you from accused Vivek Bhat was not against any existing liability/outstanding? Ans. It is incorrect as there was existing liability/outstanding liability in favour of M/s. A&A Capital from Vivek Bhat vide agreement dated October 17, 2007 towards funds amounting to Rs. Thirty two crores. Qns. I put it to you that in the agreement dated 17.10.2007 (Ex.PW15/B) it is nowhere mentioned that there is existing liability/outstanding in favour of M/s. A&A Capital or against accused Vivek Bhat amounting to Rs. Twenty two crores?
Ans. It is not so mentioned. Vol. There was liability on the part of accused Vivek Bhat to provide funds amounting to Rs. Thirty two crores and against which he took Rs. Twenty two lacs as advance processing fees. During cross examination witness was shown the copy of document now Mark-PW15/A and asked whether it was executed by you. To which he replied that Yes he had signed the same as a party on behalf of M/s. A&A Capital. The agreement was executed by accused Vivek Bhat as a second party. Further he was not aware whether he was acting on behalf of Creative Brains. He had gone through the document Mark-PW15/A before FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.44 to 129 signing the same. He did not remember whether any cheque was issued by or on behalf of M/s. Creative Brains or not.
During cross examination witness was shown the copy of cheque Mark- PW15/B. Mark-PW15/B was issued by Vivek Bhat and accused Devender Pandey on behalf of Vicky Overseas. It was correct that no cheque was issued by or on behalf of M/s. Creative Brains. Witness voluntarily deposed that the accused represented at that time M/s. Creative Brains does not have any bank account, therefore, issued the cheque Mark-PW15/B from their other firm namely Vicky Overseas. As per the agreement Mark-PW15/A Devender Kumar Pandey was not a signatory of the document. It was correct that agreement Mark-PW15/A was in respect of a friendly loan. He voluntarily deposed that however, it was until the funds from Australia materialized which were being arranged by accused Vivek Bhat. Prior to existence of M/s A&A, he was working as Senior Vice President (Consulting) of a Global Consulting Major in North America and earned around US $ 1.5 Lac p.a. (minimum base salary) and other allowances. The assets of M/s A&A Capital primarily comprised of collaterals held by him and his co-promoters overseas and in India, it were in the form of bank deposits. It was correct that his residence at DLF Heritage, Gurgaon and office at EROS Corporate Tower, Nehru Place were on lease / rent. In the year 2006-07, he was not assessed to Income Tax in India as he was a returned NRI. In the year 2007-08, he did not file any Income Tax return as he was not assessed at that time also being returned NRI. Vide Ex. PW15/O i.e. letter dated 03.09.2008, he had handed over original testimony dated 23.06.2008 addressed to Additional Commissioner of Police, EOW, Crime FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.45 to 129 Branch, New Delhi. Ex.PW15/O-2 was the same letter dated 23.06.2008 which was sent by Inter World PTY Ltd. to him at his address mentioned in envelop Ex PW15/O-3. It was correct that in his complaint Ex.PW15/A he had not mentioned about any draft agreement dated 17.10.2007 or any correction being made by accused Vivek Bhat in the said draft agreement.
He voluntarily deposed that he had mentioned about the final agreement signed between Vivek Bhat and himself. It was correct that in agreement Ex.PW15/B Vicky Overseas was not a party. He voluntarily deposed that the agreement was signed between himself and accused Vivek Bhat and he insisted that the cheque amount for Rs. 22 Lacs be paid to his partnership firm Vicky Overseas. Prior to handing over and taking over cheque of Rs. 22 Lacs no document other than Ex.PW15/B was executed. It was correct that Ex.PW15/B does not mention that any amount is or will be payable to Vicky Overseas including any payment of Rs. 22 Lacs. It was correct that in Ex.PW15/B it was not mentioned as to who will keep the original agreement or that the original agreement will be kept by accused Vivek Bhat. It was correct that in Ex.PW4/A i.e. letter dated 27.11.2007, I have not mentioned anything about swift code, swift message or swift advice. The documents Ex. PW15/G1, Ex. PW15/I, Ex. PW15/J and Ex. PW15/J1 were handed over by him to the police. He could not exactly tell, whether he had taken out the print out of above said exhibits from his office computer or from the computer at his residence or from his laptop. But he had taken out the same. He had not mentioned in his complaint Ex.PW15/F that he had taken out print out of above mentioned exhibits on his own. He did not remember whether he had mentioned the above mentioned facts in FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.46 to 129 his statement given to the police.
PW-16 Inspt. Abhinendra Singh (IO) deposed that on 29.08.2008, he was posted in AF& C Section EOW Qutub Institutional Area, New Delhi. On that day he was handed over further investigation of present case and he received case file of the present case including complaint already Ex.PW15/F alongwith its 13 enclosures also received letter of complainant dated May 9, 2008 already Ex.PW15/J forwarding prints out of the E-mail communications already Ex.PW15/J-1 (colly.). During investigation he met complainant Mr. R.C. Iyar who handed over him letter dated 16.09.2008 already Ex.PW15/K alongwith enclosure already Ex.PW15/K-1, Ex.PW15/K-1 and Ex.PW15/K-3. During investigation on 10.10.2008 complainant handed over him letter already Ex.PW15/L, Ex.PW15/L-1 and Ex.PW15/L-2 alongwith enclosure Ex.PW15/L-2A and Ex.PW15/L-2B. During investigation on 19.11.2008 complainant handed over him letter already Ex.PW15/M (three pages). During investigation on 25.11.2008 complainant handed over him letter already Ex. PW15/N (three pages) and letter Ex.PW15/N-1 (two pages). During investigation on 03.09.2008 complainant handed over him letter already Ex.PW15/O alongwith original documents mentioned in the same which were Ex.PW15/A, Ex.PW15/C, Ex.PW15/O-1, Ex.PW15/E, Ex.PW15/H, Ex.PW15/O-2, Ex.PW15/O-3 respectively. During investigation on 11.10.2008 he arrested accused Vivek Bhat as he was detained IGI Airport, Terminal 3 as LOC was opened against him vide arrest memo Ex.PW13/A, after bringing him in their office. The detection and handing over memo of accused by Airport FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.47 to 129 authority/FRRO authority to him was already Ex.PW3/A. Complainant was also called at our office. The personal search memo of accused Vivek Bhat was Ex.PW13/B. From the possession of accused one laptop make HP and one Motorola mobile phone were seized vide seizure memo Ex.PW13/C. During investigation he sent the said laptop for examination in FSL but nothing incriminating could be found. Thereafter, he interrogated and recorded disclosure statement of accused already Ex.PW13/D. Thereafter, five days police remand of accused Vivek Bhat was obtained. During PC remand we searched for co-accused Devender Pandey but could not find him. During PC remand of accused Vivek Bhat on 14.10.2008, accused opened his e-mail ID at one Cyber Cafe at J block, saket Delhi and printed out 28 pages of e-mails regarding present case which were seized vide seizure memo Ex.PW11/B. The seized print outs (28 pages) are Ex.PW16/X-1 (colly.). On said day accused Vivek Bhat also led us to his house at H-254, Rama Krishna Vihar, IP Exten. and from his house produced and got seized original agreement dated 24.12.2007. (already Ex.PW15/D and also mentioned as already Ex.PW10/B on the copy of said document), photocopy of agreement dated 17.10.2008 as Mark PW16/A-1 (two pages) and copy of one cheque bearing no.000030 dated 23.06.2008 Ex.PW10/A, which were seized vide seizure memo already Ex.PW11/A. During investigation, he received letter of Kotek Mahindra Bank already Ex.PW5/A alongwith enclosures Ex.PW5/B, mark 5-A, Mark 5-B, Mark 5- C, statement of account Ex.PW5/C and copy of two cheques bearing no. 000019 dated 30.10.2007 in favour of Vicky Overseas Mark 16/A-2 (two pages) front and back and cheque no. 000014 dated 17.10.2007 in the name FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.48 to 129 of Sh. Vivek Bhat of Rs. 1 lacs which was Mark 16/A-3 (two pages). During investigation he also received letter Ex.PW6/A from ICICI Bank, Green Park Exten. New Delhi branch alongwith enclosure Mark A, Mark B. During investigation he received letter dated 25.11.2008 of Dena Bank Okhla New Delhi Branch which is Ex.PW16/A alongwith three original cheques which are three original cheques Ex.PW16/A-1, Ex.PW16-A-2 and Ex.PW16/A-3. During investigation he had also received letter dated 06.10.2008 of Dena Bank, Okhla New Delhi Ex.PW16/B with certified coy of the cheque Ex.PW9/C. During investigation he also received letter dated 01.12.2008 of Dena Bank, Okhla, New Delhi branch Ex.PW16/C alongwith account opening form of Vicky overseas Ex.PW16/D (running into 16 pages back to back) and certified copy of account opening form of V.N. Creations Ex.PW9/B. During investigation he also received letter from Federal Bank Ltd. with statement of account of M/s CM Fabs and its certified copy of account opening form and other enclosures. The said letter is Ex.PW16/E, the statement of account is Mark 16/A-4 and certified copy of account opening form of M/s CM Fabs was Ex.PW16/F (colly. Five pages) and the original account opening form of the same was Ex.PW16/F-1 (colly. Five pages back to back). Thereafter, he prepared charge-sheet against accused Vivek Bhat as other co-accused were still at large and filed the same before the court for trial. Accused Vivek Bhat was correctly identified by the witness. After filing of first charge-sheet he continued investigation qua other accused persons. During investigation, hee wrote letter and received letter of Dena Bank, OIA Branch, Delhi dated 15.12.2009 same Ex.PW16/G with enclosures i.e. certified copy of account FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.49 to 129 opening form and account statement of M/s V.N. Creations same Ex.PW16/G-1 and Ex.PW16/G-2. During investigation, he also received letter of Federal Bank dated 18.12.2009 Ex.PW16/H alongwith original account opening form M/s C.M. Fabs alongwith Power of Attorney document and authority for third party to operate the account which are Ex.PW16/F-1 (colly. Five pages) and account statement from 01.10.2007 to 18.12.2009 Ex.PW16/H-1. During investigation he also made correspondence with interpol CBI New Delhi regarding verification of documents of Interword PTY Ltd. - Australia and received the letter of Asstt. Director, CBI Interpol Wing dated 09.02.2009 already Ex.PW14/A alongwith enclosures already Ex.PW14/B (colly.) Referred to DCP EOW and marked to him which he placed on the file. The letter of Queensland Police Service, Brisbane Australia dated 17.12.2008 forming part of Ex.PW14/B (colly.) as page no. 25 and 26 have direct bearing upon the verified subject. On 30.10.2009, he arrested accused Devender Pandey vide arrest memo Ex.PW16/l and personal memo Ex.PW16/J. He recorded disclosure statement of accused Devender Pandey Ex.PW16/K. He obtained one days PC remand of accused Devender Pandey and took his sample signatures marked as S-8, S-9, S-10, which was Ex.PW16/L-1, Ex.PW16/L-2 and Ex.PW16/L-3. During investigation and during PC remand of accused Vivek Bhat on 12.10.2008, he had also taken sample signature / sample writing of accused Vivek Bhat which was Mark as S-1 to S-7 and which was now Ex.PW16/M-1 to Ex.PW16/M-7. He had sent documents to FSL. He had also recorded statement of witnesses u/s 161 Cr.P.C. He filed FSL report regarding laptop verification of accused and FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.50 to 129 handwriting comparison of accused Vivek Bhat. Thereafter, he prepared supplementary charge-sheet against accused Devender Pandey was correctly identified by the witness. Thereafter, he was transferred from EOW.
During cross-examination on behalf of accused Vivek Bhat PW-16 deposed that the present case was assigned to him for further investigation on 29.08.2008 from Ins. Sushil Kumar the then IO of the case. The present case file was assigned to him through Reader of ACP/AF&C Section and as such no handing over and taking over was drawn. On the very next day he met the complainant in the present case. He did not recollect whether he recorded his statement on the said date i.e. 30.08.2008 or not. Witness voluntarily deposed that he recorded his statement on all the occasions when he handed over the documents personally to him. At times, the documents were handed over by the complainant to the Reader and on those occasion his statement was not recorded, however, the same was mentioned in the case diary. During the enquiry with the complainant he did not try to ascertain as to when A & A Capital came into existence. He did not ascertain as to whether A & A Capital was registered or not. He did not ascertain as to what was the nature of business A & A Capital was carrying out. He voluntarily deposed that complainant had informed him that he is in the business of property dealing. He could not tell after seeing the record as to whether the account opening forms from HSBC shows the nature of business of A & A Capital Company as exporter commodity. He did not carried out any investigation to ascertain whether the information FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.51 to 129 mentioned by the complainant regarding the nature of business of A & A Capital was correct or not. He did not carry out any investigation on this aspect. I did not carry out any investigation on this aspect as there was no need regarding the same. He could not tell that the A & A Capital had no business prior to 21.11.2007 since it is mentioned as a new company in Ex.PW8/A (at page no. 152) by the complainant. He did not carry out any investigation in this regard. He could not comment that although the A & A Capital Company had opened an account in Kotak Mahindra in the year 2007. The account statement of Kotak Mahindra will establish whether there was any transaction in the next one year of its opening or not. He could not comment if A & A Capital Company was formed only to avail the loan in question. The loan was to be obtained by the complainant to help him run a project / business relating to construction of buildings, however, he did not carry out further enquiry on this aspect. Complainant had not given him any blue print/plan of action for conduction of construction/estate business regarding which the alleged loan was to be taken. He voluntarily deposed that however, the same was received through the communication of interpol which was part of Ex.PW14/B (colly.) from page no. 65 to 72 which I also verified from the complainant. During cross examination witness was asked following questions:-
Q. I put it to you that during investigation the documents were received the contents of which shows that the complainant was acquainted with Mr. Hagg of Interworld PTY Ltd. Of Australia since 1997-98 and loan was sought by the complainant from Mr. Hagg?
Ans. I had received a letter through interpol dated 17.12.2008 of FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.52 to 129 Queensland Police Service forwarded by senior constable M.L. Cavanagh in which it has been mentioned that Mr. Hagg stated that one person namely Khubi Mabusela was corresponding to him for about ten years over internet to broker a loan to complainant Vinay R.C. lyer. The letter also mentions that Mr. Hagg was of opinion that complainant R.C. lyer originally approached Vivek Bhat for this loan who in turn approached Mabusela. Vol. I confronted complainant with this report, who told me that he never directly approached Mr. Hagg for loan purpose. Witness further deposed that he also could not verify this fact from Mr. Hagg personally was introduced to the complainant by Ravi Saini in year 2007 or that they were not known to each other prior to 2007. He did not ascertain as to wherefrom the Interpol got the project report of A & A Capital. He had not verified the gross asset value mentioned by the complainant in his application Ex.PW15/D-1 showing net asset value 75 million US$ and gross asset value of 100 million US$. He could neither admit nor deny that the complainant was not involved in the business of marketing and promoting commercial and residential project, IT Parks and SEZ Projects as claimed by him in the application Ex.PW15/DA receive from Interpol. Information regarding detention in pursuant to LOC of accused Vivek Bhat was received from the Airport on 10.10.2008 at mid night. It was correct that prior to issuance to LOC no notice u/s 160 Cr.P.C was issued to the accused to join the investigation. No independent public witness was joined during the process of handing over or his subsequent arrest or seizure. It was correct that nothing incriminating was recovered or seized from the possession of accused Vivek Bhat. He voluntarily deposed FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.53 to 129 that Mobile and laptop of accused was seized from his possession. It was correct that CFSL did not found anything incriminating either in mobile or laptop. On 12.10.2008, the accused was interrogated at EOW cell at Qutub Institutional Area. The case property of the present case i.e. mobile and laptop were handed over to the Malkhana Incharge by him, however, he had not signed on the malkhana register at the time of handing over. He did not recollect when they proceeded from EOW cell on 14.10.2008. Normally they made their departure entry in the Roznamcha. It was correct that no record of such entry is on judicial file. He did not join any public witness either before proceedings from EOW or even on their way or after reaching the society where accused Vivek Bhat was residing. He and one HC had gone to the residence of accused. He could not admit or deny that the ingress or outgress in the society used to be maintained in the register at the gate in respect of outsiders. He had not collected the copy of such register to show their visit to the society/residence of the accused. Wife of the accused was present in the house. He did not ask wife of the accused or immediate neighbors to become attesting witness of the seizure memos. He had not informed RWA officials because accused had requested us not to inform them. He could not tell the exact time when they reached or for how long they remained there. From the residence of accused they proceeded to their office and their way they enquired about the Cyber Cafe. On their way they did not find any cyber cafe around Patparganj Society. They reached Saket at J Block Market where they came to know about Cyber Cafe in the said market. He did not recollect what was the name of the said cyber cafe. He did not site the owner of the said cyber cafe as a witness in the case. He FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.54 to 129 did not recollect as to whether they had made entry in the register at the said Cafe or not. It was correct that they had not collected the copy of the said register. The payment was made by him. No receipt was collected by him from the Cafe Owner. He did not join either the cafe owner or any other person present in the said cafe during the proceedings nor he recorded their statements. He did not recollect from which computer the internet was accessed. The print out was taken out by him. He did not obtain any certificate from the owner or from anybody else or the accused in terms of section 65-B Indian Evidence Act. The specimen handwriting and signature of the accused was taken at EOW Cell. He had not taken any permission from the Ld. MM prior to taking specimen handwriting and signature of the accused. He voluntarily deposed that he was not aware about the legal position at that time and the accused was willing to give his specimen handwriting. He did not collect the register maintained by the notary public in respect of attestation of documents. It was correct that it has come during the investigation that accused Vivek Bhat came in contact with the complainant through Ravi Saini. He could nether admit or deny that that complainant had hired the services of accused Vivek Bhat only for providing assistance to prepare the documents pertaining to loan and for the same Rs.1 lac was paid vide cheque no. 000014 dated 17.10.2007. He could not comment on the question that the complainant had obtained cheque of Rs.22 Crore from accused Vivek Bhat on the pretext of showing the same to Mr. Hagg and other persons. He could not comment on the question that at the time of obtaining said cheque of Rs.22 crore the complainant had assured not to encash the same or attempt to encash the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.55 to 129 same and for the said assurance the complainant had issued a cheque of Rs. 22 Crore in favour of accused Vivek Bhat. He could not comment on the question that all the cheques obtained from accused Vivek Bhat was neither against any liability nor for any purpose except to show the same by the complainant to his lenders. It was correct that no cheque was issued from the account of Creative Brains nor any cheque was received in the said account of which accused Vivek Bhat was proprietor. He voluntarily deposed that an agreement was executed between the complainant and creative brains. During investigation, notices were issued to Ravi Saini, Rajesh Pundhir and Vinay Kapoor and in response to the said notices Ravi Saini, Rajesh Pundhir and Vinay Kapoor had joined the investigation. He voluntarily deposed that Ravi Saini had joined the investigation once and thereafter he did not turn up before him. He did not take any coercive step against said Ravi Saini. Notice was issued to Ashish Sahani for joining the investigation, however, he did not join the investigation. He did not take any coercive step against said Ashish Sahani. He could not assign any reason as to why he did not take any coercive step against said Ravi Saini and Ashish Sahani. He had gone through the documents Ex.PW15/J-1 and Ex.PW15/K-1 were handed over to him by complainant. He could not comment whether these two documents e-mails were sent by Ashish Sahani to accused Vivek Bhat. He had not carried out any investigation in respect of these e-mails. It was correct that the FSL examination has not found any document or signature being forged accused Vivek Bhat. He could not comment that original balance sheet and other documents including Project Reports of A & A Capital was sent by Asish Sahani through Courier to FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.56 to 129 Australian Interworld Pty. Ltd. He had not carried out any investigation in respect of these documents. He could not comment that Ashish Sahani had admitted that Mr. Mabusala, the authorised representative of Interworld Pty. Ltd. Was introduced to him by Mr. Govind Salgoankar. It was correct that letter from Interworld Pty. Ltd. Dated 23.06.2008 (Ex.PW15/O-2) was handed over to him by the complainant alongwith his letter dated 03.09.2008 (Ex.PW15/O). It was correct that as per record the said letter (Ex.PW15/O-2) was received by Vinay R.C. Iyar by Airmail at his residential address at Gurgaon vide envelope Ex.PW15/O-3. It was correct that the said letter Ex.PW15/O-2 was sent by Mr. Elmar Haag from Australia directly to the complainant. He voluntarily deposed that the said letter was also verified by Mr. Elmar Haag through interpol report placed on record. He did not recollect, if he had asked him about his mode of interactin with Mr. Elmar Haag or not. He could not comment whether he had asked the complainant to furnish the record of his interaction with Mr. Elmar Haag to verify the processing of loan. It was correct that the complainant has mentioned in Ex.PW15/F that a copy of Swift Advice was given to Mr. Saurabh Dhingra by accused Vivek Bhat.
During cross-examination witness was asked following question:
"Q. Did you ask Mr. Saurabh Dhingra for a copy of alleged Swift Advice given to him by accused Vivek Bhat ?
Ans. I did not examine Mr. Saurabh Dhingra as reply of Mr. Arun Oberoi form HSBC Bank (Ex.PW8/C) regarding the alleged Swift Advice which was in reality a transaction reference and not a Swift Copy was obtained and placed on record by earlier IO Insp. Sushil Kumar."
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.57 to 129 It was correct that it is mentioned in Ex.PW8/C that the transaction reference number has been provided to the bank by above referred customer. He could not comment that the accused Devender Pandey was known to the complainant prior to the transaction in question. He did not ascertain as to when Vicky Overseas came into existence. He comment that the account of Vicky Overseas was got opened at the instance of complainant. He did not ascertain from the complainant as to why he did not issue the cheque of Rs.22 lacs in favour of Creative Brains despite greement between A & A Capital and Creative Brains. He could not say that Vicky Overseas was initially was owned by accused Devender Pandey only or that subsequently at the instance of complainant accused Vivek Bhat was inducted in Vicky Overseas as partner. He could not comment that the complainant pursuaded accused Vivek Bhat to give blank signed cheque of partnership and thereafter, he transferred Rs. 22 lacs in the account of partnership firm i.e. Vicky Overseas. It was correct that the said amount of Rs. 22 lacs, were transferred by accused Devender Pandey as well as accused Vivek Bhat in the account of his sister i.e. C.M. Fabs (authorsised signatory Devender Pandey) and in the account of M/s V.N.Creations (Proprietorship concern) and cash amount was withdrawn by accused Devender Pandey was well as Vivek Bhat. It was correct that no amount was transferred through banking channel out of abovesaid Rs.22 lacs into the bank account of accused Vivek Bhat. He voluntarily deposed that the amount of Rs.1 lacs were withdrawn in cash from the bank account of Vicky Overseas. It was correct that out of Rs.1 lacs, which was received by accused Vivek Bhat from the complainant in his personal account, a FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.58 to 129 sum of Rs.49,000/- was transferred in the account of Ashish Sahani. It was correct that I had not obtained any certificate u/s 65-B Evidence Act nor the same has been filed on record by me in respect of e-mails and other electronic records filed by him alongwith the charge sheet. He have neither filed and supplementary charge sheet nor any closure report against Asish Sahani and / or Ravi Saini. He did not collect CDR of the complainant to examine his interaction with Asish Sahani. Devender Pandey and others. During cross examination on behalf of accused Devender Pandey PW-16 deposed that he visited the address of Devender Pandey having Kalkaji address but he did not know the exact address. He had not received any proof of depositing any amount in the account of Vivek Bhat for grant of loan. He did not do any investigation to know whether accused Devender Pandey is infact victim of the entire transaction done by accused Vivek Bhat. It was correct that despite taking accused Devender Pandey on Police Remand no incriminating document was seized from him. It was correct that the complainant had not made any complaint against accused Devender Pandey. He did not do any investigation to the effect that there were e-mails communications between the accused Vivek Bhat and Devender pandey in which Devender pandey was repeatedly asking for getting his loan sanctioned by accused Vivek Bhat. He voluntarily deposed that no such e-mails were produced by the accused Devender Pandey and, therefore, the same did not come into his knowledge.
PW-17 Inspt Shambhunath deposed that in the month of September, 2015, I was posted as Sub Insp. In Section VI EOW, Delhi and was handed over FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.59 to 129 file of the present case. He obtained two pending FSL reports alongwith original questioned, admitted and specimen documents submitted for the same bearing reports no.FSL-2009/D-0871 dated 20.04.2009 and report no. FSL 2009 / D-5353 dated 09.04.2014 placed on the record. He filed supplementary charge-sheet containing abovesaid two FSL reports in the present case. He had also placed alleged Ravi Saini at Sr. no. 12 of the supplementary charge-sheet as no legally admissible incriminating evidence came against him during the investigation carried out by predecessor IOs including Insp. Shyoram and him. Despite opportunity granted PW17 has not been cross examined by accused persons.
PW-18 Inspt. Shyo Ram deposed that in the month of November, 2014, he was posted as SI in Section VI EOW, Mandir Marg, New Delhi and he was handed over further investigation of present case. During investigation, FSL report in the present case which are already Ex.A-1 and Ex.A-2 had already been received. During investigation, he called Ashish Sawhney and interrogated him. He also told me that he never met or talked with complainant Mr. Vinay R.C. lyar of A. & A. Capital. Thereafter, investigation was transferred to SI Shambhnath and he was relieved from the case.
Despite opportunity granted PW17 has not been cross examined by accused persons.
PW-19 Sh. Ram Singh Saini, Manager Kotak Mahindra Bank GMD Square FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.60 to 129 MG Road, Gurugram deposed that he is the summoned witness in the present case. He have brought account details of account no. 02612000003213 alongwith attested copies of the account statement of the aforesaid of the period 31.01.2007 to 09.03.2009. The same was Ex.PW19/A. The letter dated 25.11.2008 is already Ex.PW5/A. Despite opportunity granted PW17 has not been cross examined by accused persons.
PW-20 Sh. Tushar Kapoor Associate Vice President Kotak Mahindra Bank Branch M G Road, Gurgaon Haryana deposed that he had been working with the aforesaid bank since January, 2019. Upon receiving the summons of the Court, he had filed the reply dated 04.11.2024 with the court pertaining to the present matter being the authorized signatory/being the representative of the bank. The letter was now Ex.PW20/A. As per the record of the bank the originals of the cheques in question are not available with the bank. As per the bank retention policy, the voucher copies for a period of more than 10 years are not available with the bank and are destroyed as per norms.
During cross-examination on behalf of accused Vivek Bhat PW-20 deposed that since, the bank always checks before destroying the documents pertaining to any bank account/voucher copies/cheques whether there is any letter pending pertaining to preservation of the same or not. As per the norms, the concerned team of the bank must have checked whether any letter/regulatory notice or court order was pending pertaining to preservation or not of the cheques.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.61 to 129 Accused Dewender Pandey adopted the cross examination conducted on behalf of accused Vivek Bhat.
9. Statement of both accused U/s 313 Cr.P.C. was recorded. Both accused persons did not lead DE and consequently, matter was fixed for final arguments.
FINAL ARGUMENTS ON BEHALF OF STATE.
10.It has been argued on behalf of Ld. Addl. PP for State that in the present matter both accused are liable to have committed the offence charge as it was the accused persons who conspired together to commit cheating with the complainant and for the same played deceitful means and procured Rs.23 lakhs from the complainant which was transferred to the company of accused persons and therefore, both accused are liable to be convicted. It has been argued that the complainant has categorically mentioned in his complaint the manner in which accused Vivek Bhat committed the offence by playing fraud upon the complainant and for the same purpose he made false promises to the complainant and cheated him of the aforesaid amount. It has been argued that the complainant in his testimony before the court has categorically stated that it was accused Vivek Bhat who met him through a common friend and thereafter, allured him by assuring that he shall arrange the loan amount / funds for his business which he was taking up of construction in Maharashtra but subsequently, usurped the amount given to him and caused wrongful loss to the complainant and wrongful gain to himself and co-accused Devender Pandey. It has been argued that FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.62 to 129 the contention raised on behalf of the accused persons that there is no criminal conspiracy made out is not tenable since it was both the accused persons who were partners in the company and had received funds and subsequently utilized the same for their own benefit. It has also been argued that it was accused Vivek Bhat who after defrauding the complainant, did not repay the amount received by him and infact tried to escape from the process of law, but was arrested from the airport as look out circular was issued against him. It has also been argued that the accused Vivek Bhat to gain the faith of the complainant even entered into two agreements with the complainant only with the intention to cheat the complainant. It has been argued that the dishonest intention of the accused was from the beginning of the transaction between the parties, as the accused Vivek Bhat purposely did not comply with any of the agreements and the same shows that the dishonest intention of the accused was from the beginning and the ingredients for commission of cheating are made out against the accused. It has also been argued that the accused Vivek Bhat committed wrongful gain to himself by making the complainant pay an amount of Rs.23 Lakhs on the pretext of initial payment and thereafter, allured him by promising to arrange the amount of Rs.32 Crores from a Foreign bank /entity and for the same prepared forged documents and to the extent that he even gave false SWIFT ADVISE to the complainant and it was the complainant who came to know regarding the intention of the accused only once he was told by the bank officials that the aforesaid SWIFT ADVISE is forged and fake. Again, it has been argued that the aforesaid conduct of accused vivek Bhat only shows that he had committed FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.63 to 129 the offence against the complainant after conspiring the same with accused Devender Pandey and therefore, both accused are liable to be convicted.
ARGUMENTS ON BEHALF OF ACCUSED VIVEK BHAT
11.It has been argued on behalf of Ld. Counsel for accused Vivek Bhat has been falsely implicated in the present matter and that no forgery made out and in the absence of essential ingredients. It is further argued that the prosecution has utterly failed to establish any of the essential ingredients of the offence of forgery as defined under Sections 463, 464, and consequently, Sections 467, 468, and 471 IPC. In order for a document to be considered forged under Section 463 IPC, it must be shown to be a "false document" as defined in Section 464 IPC. In the instant case, no document has been found or proved to be false. Consequently, the foundational requirement for invoking any of the forgery-related offences is entirely absent. It conclusively affirms that no document allegedly forged was ever recovered from the custody of the accused. The independent expert report negates the prosecution's allegations and reinforces the credibility of the accused's defence.
12. It has been further argued that Clear Admissions by the Investigating Officer during his cross-examination, has admitted that no incriminating evidence exists against the accused, Vivek Bhat. He further conceded that no document on record was forged or produced in its original form, and all documents relied upon by the prosecution are merely photocopies or computer printouts of emails. Further, during cross-examination, the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.64 to 129 Investigating Officer stated that:
"it was correct that CFSL did not found anything in criminating either in mobile or laptop of the accused which was seized from his possession and further deposed that it was correct that the FSL examination has not found any document or signature being forged by accused Vivek Bhat."
13. It has further been argued that No Swift Advice Document Ever Existed and the allegation of the complainant in this regard are demolished during trial, since the PW4 & PW5, during cross-examination, categorically admitted that no swift advice was ever provided or received by the bank.
14. It is a cardinal principle of criminal jurisprudence that forging an imaginary or non-existent document is a legal impossibility, as there must first exist a genuine document capable of being forged. The Hon'ble Supreme Court in Sheela Sebastian v. R. Jawaharaj, (2018) 7 SCC 581 held that the offence of forgery can only be committed by the maker of a false document, and mere allegations unsupported by tangible evidence do not sustain a charge of forgery. Further argued that PW4 Saurabh Dhingra was a planted witness by the complainant as he was neither examined by the investigating officer nor any statement under section 161 was recorded ever and he admitted this in his cross examination. He knew complainant since May 2007, whereas the account was opened in November 2007. That PW8 Shri Arun Oberoi mentioned in letter dated 11.08.2008 exhibit PW8/C mention that "we wish to inform you that the above referred customer had provided FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.65 to 129 a transaction reference number and not a swift copy."
15. It has been further argued that that Absence of Mandatory Certificate under Section 65B of the Indian Evidence Act that all the electronic documents relied upon by the prosecution, namely, computer printouts of emails, are bereft of the mandatory certificate required under Section 65B of the Indian Evidence Act, 1872. In Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and further reiterated in Arjun Panditrao Khotkar vs Kailashanro Gorantyal & Others, (2020), 7 SCC 1 the Hon'ble Supreme Court held that such a certificate is a condition precedent for the admissibility of electronic evidence. The absence of such certification renders the electronic evidence inadmissible and incompetent to sustain any criminal charge.
16. It has been further argued that the entire transaction in question arises out of a genuine contract voluntarily executed by the complainant and the accused. It has come on record in the supplementary Chargesheet that the contract was actually drafted by Elmaar Hagg for the complainant which stated as follows:-
"On the evening of 17 December 2008, the reporting officer located Elmar HAAG at his home address. Mr HAAG states that he was first approached by a male person by the name of Khubi MABUSELA (www.jafa.en.ecplaza.net or [email protected] or [email protected] or telephone +27 12 7174 408 or +27 72 4960 73) who he has been corresponding with over the internet for approximately 10 years to FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.66 to 129 broker a loan to a Vinnay RC IYER of A & A Capital.
Mr HAAG was of the opinion that RC IYER had originally approached Vivek BHAT for this loan who in tum approached MABUSELA. Mr HAAG stated that he told MABUSELA that he was willing to loan the money to RC IYER on the condition that a bank guarantee was arranged. with one of. the 4 big banks in Australia. It was the role of BHAT to arrange this guarantee. Mr HAAG stated that he then received some documentation in the mail relating to RC IYER's business plans (see Appendix B). Mr HAAG stated that he originally drew up a letter of contract and emailed this to MABUSELA (see Appendix C). MABUSELA has allegedly given this to BHAT. Mr HAAG stated that he was then contacted by RC IYER wanting to know where the funds were. Mr. HAAG told him that he hadn't received the bank guarantee and the funds hadn't been sent."
17. That the essential ingredients of cheating under Section 415 IPC, as elucidated in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168, include the existence of a fraudulent or dishonest intention at the very inception of the transaction. In the present case, there is no material to suggest any such intention on the part of the accused. Rather, the complainant himself has failed to discharge his obligations under the contract, and mere non-return of money paid under a genuine contract does FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.67 to 129 not ipso facto constitute cheating. The Hon'ble Supreme Court in Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 has reaffirmed that breach of contract simpliciter does not amount to the offence of cheating.
18. That in Hon'ble Supreme Court in the matter of Sarabjit Kaur versus the state of Punjab and another Criminal Appeal No. 581/2023 (2023) 5 SCC 360 held That a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep a promise will not be enough to initiate proceedings. The criminal courts are not meant to be used for setting scores of pressurize parties to settle civil disputes.
19. It has been further been argued that a written document is governed by Sections 91 and 92 of the Indian Evidence Act and the contract herein is governed by the same. These provisions enshrine the best evidence rule and strictly bar the introduction of any oral evidence to vary, contradict, or add to the terms of the written agreement. The Hon'ble Supreme Court in Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595 has reaffirmed that courts cannot allow oral evidence to contradict the explicit terms of a written contract. The complainant's allegations, being extraneous to the written contract and unsubstantiated by any admissible evidence, cannot form the basis of a criminal prosecution.
20. It has been further argued that complainants are expected to approach the Court with clean hands and to disclose all material facts. However, in the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.68 to 129 present case, the complainant falsely claimed substantial financial assets worldwide, including an alleged USD 75 million bank balance, when in reality his bank account held only 2000 at the relevant time.
21. It has been further argued that the contract required the complainant to furnish 16% of the face value of the loan as margin money (25 crore), yet the complainant has neither produced any proof of such margin money nor offered to furnish the same. That the complainant during his cross denied of knowing the Elmar Hagg and later as per the record they had long-standing relationship with financier Elmar Hagg for 10 years, the Letter which was allegedly written by Elmaar Hagg addressed to ACP, and attempts to rope in the accused through false allegations demonstrate a calculated effort to give a criminal color to a purely civil dispute. The Hon'ble Supreme Court in Dalip Singh v. State of U.P., (2010) 2 SCC 114 held that suppression of material facts disentitles a litigant to any relief and reflects mala fide conduct. The same principle squarely applies in the present case.
22. It has been further argued that falsus in uno, falsus in omnibus" is a Latin phrase meaning "false in one thing, false in everything". It's a legal principle suggesting that if a witness is proven to be untruthful about one aspect of their testimony, it's reasonable to assume they are untruthful about other aspects as well. However, this maxim has not been universally accepted.
23. It has been further argued that taking note of the favourable FSL report and the Investigating Officer's categorical admissions negating the existence of FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.69 to 129 any forged document. Recognize the complete absence of essential ingredients of the offences alleged. Hold that the dispute is purely of a civil nature, devoid of any element of criminality.
JUDGMENTS RELIED UPON LD. COUNSEL FOR ACCUSED VIVEK BHAT
24.During the course of arguments, Ld. Counsel for accused Vivek Bhat relied upon the following judgments as under:-
a) In the case of "Mohammed Ibrahim & Ors. Vs. State of Bihar & Ors. (2009)" 8 SCC 75 wherein in para no.14, 16, 17, 18, 19 & 22 it has been held that "14. An analysis of Section 464 of the Penal Code shows that it divides False documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.70 to 129 knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (1) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a g document by practising deception, or from a person not in control of his senses............
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.71 to 129 believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which dis not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.
Section 420 IPC
18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.72 to 129
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have h dishonestly induced the person deceived
i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).............
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.73 to 129 witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code."
b) In the case of "Shela Sebastian Vs. R Jawa Haraj & Ors." (2018) 7 SCC 581 wherein para no.5, 19, 20, 21, 24 & 25 it has been held that "5. Thereafter, the respondents approached the High Court of Madras, Bench at Madurai, wherein the High Court acquitted the revision petitioners by setting aside the concurrent findings of the courts below. The High Court, basing on the decision in Guru Bipin Singh v. Chongtham Manihar Singh & Another, 1996 (11) SCC 622 observed that, the requirement of Section 464, IPC is not satisfied in view of what has been stated under Explanation 2 to Section 464. Further from the perusal of the Explanation, it is clear that to get attracted the offence of forgery, "making of a false document is essential. Hence perusing the given facts and circumstances before it, the High Court concluded that, as no case is made out under Section 464, IPC offence under Section 420 of the IPC being a consequential one, equally cannot be sustained..........
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.74 to 129 Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that- "a person is said FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.75 to 129 to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."......
24. In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.76 to 129 present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused persons is the maker of the same, otherwise the accused person is not liable for the offence of forgery."
c) In the case of "Mir Nagvi Askari Vs. Central Bureau of Investigation"
(2009) 15 SCC 643 wherein para no.60, 61, 62, 63, 164 & 166 it has been held that "60. Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.77 to 129 crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
61. The ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
62. The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.78 to 129 manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/ or by necessary implication. [See Mohammad Usman Mohammad Hussain Maniyar & Ors. v. State of Maharashtra]
25. 63. The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J in Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731] brings out the legal position succinctly:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough"
Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy `[i]t is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.79 to 129 achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.' .........
164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under a the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criterion of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.80 to 129 because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document......
166. Further, the offence of forgery deals with making of a false document with the specific intentions enumerated therein. The said section has been reproduced below.
"463. Forgery. Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
However, since we have already held that the commission of the said offence has not been convincingly established, the accused could not have been convicted for the offence of forgery. The definition of "false document" is a part of the definition of "forgery". Both must be read together. [Vimla (Dr.) v. Delhi Admn.8] Accordingly, the accused could not have been tried for offence under Section 467 which deals with forgery of valuable securities, will, etc. or Section 471 i.e. using as genuine a forged document or Section 477-A i.e. g falsification of accounts. The FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.81 to 129 conviction of the accused for the said offences is accordingly set aside."
d) In the case of "Anvaer P V Vs P K Basheer & Ors" (2014) 10 SCC 473 and in the case of " Arjun Panditrao Khotkar Vs. Kalishanro Gorantyal & Ors." (2020) 7 SCC 1.
e) In the case of " Sarabjit Kaur Vs. State of Punjab & Anr." (2023) 5 SCC 360" wherein para no.13 it has been held that "13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by the respondent No.2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.82 to 129 complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court."
f) In the case of " Roop Kumar Vs. Mohan Thedani" (2003) 6 SCC 595 wherein para no.13, 17, 18, 19, 20, 21 & 22 it has been held that "13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the "best-evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.83 to 129 7th Edn., p. 546; Wigmore's Evidence, p. 2406.) It has been best described by Wigmore stating that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all a the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any rule of law whatever might be reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects sale, contract etc. there are specific requirements varying according to the subject. On the contrary there are also certain fundamental elements common to all and capable of being generalised. Every jural act may have the following four elements:
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.84 to 129
(a) the enaction or creation of the act;
(b) its integration or embodiment in a single memorial when desired;
(c) its solemnization or fulfilment of the prescribed forms, if any; and
(d) the interpretation or application of the act to the external objects affected by it. ...........
17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any b other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.) C
18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.85 to 129 omission d from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing.
19. Sections 91 and 92 apply only when the document on the face of it e contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document with limitation imposed by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section
91.
20. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.86 to 129 both bilateral and unilateral, unlike Section 92 the application of which is confined to only bilateral documents. (See: Bai Hira Devi v. Official Assignee of Bombay.) Both these provisions are based on "best- evidence rule". In Bacon's Maxim.
Regulation 23, Lord Bacon said "The law will not couple and mingle matters of speciality, which is of the higher account, with matter of averment which is of inferior account in law." It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory.
21. The grounds of exclusion of extrinsic evidence are: (1) to admit inferior evidence when law requires superior would amount to nullifying the blaw, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
22. This Court in Gangabai v. Chhabubar and Ishwar Dass Jain v. Sohan Lal with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.87 to 129 deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties."
g) In the case of " V. Anantha Raju & Anr. Vs. T M Narasimhan & Ors." (2021) 17 SCC 165 wherein para no.33 & 34 it has been held that "33. It could thus be seen that this Court in Roop Kumar case2 has held that the integration of the act consists in embodying it in a single utterance or memorial commonly, a written one. This process of integration may be required by law, or it may be adopted voluntarily by the actor or actors and in the latter case, either wholly or partially. It has been held that the question that is required to be considered is whether the particular document was intended by the parties to cover certain subjects of transaction between them to deprive of legal effect of all other utterances. It has been further held that the practical consequence of integration is that its scattered parts, in their former and inchoate shape, have no longer any jural effect and they are replaced by a single embodiment of FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.88 to 129 the act. It has been held that when a jural act is embodied in a single memorial, all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. It has been held that when persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. It has been observed that the written contracts presume deliberation on the part of the contracting parties and it is natural that they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. It has been held that the written instruments are entitled to a much higher degree of credit than parol evidence.
34. This Court has further held in Roop Kumar case that Sections 91 and 92 of the Evidence Act would apply only when the document on the face of e it contains or appears to contain all the terms of the contract. It has been held that after the document has been produced to prove its terms under Section 91, the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.89 to 129 from its terms. It has been held that it would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. It has been held that when parties deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future g controversy, bad faith and treacherous memory."
h) In the case of " Annaya Kocha Shetty (Dead) Through LRs Vs. Laxmibai Narayan Satose since deceased through LRs & Ors." 2025 SCC 758 wherein para no.18 it has been held that
18. The construction of a deed is "generally speaking, a matter of law." However, when there is an ambiguity in the deed, determining its meaning is a mixed question of fact and law. This concept is encapsulated by sections 91 and 92 of the Evidence Act, 1872.
i) In the case of " K. Bharthi Devi & Anr. Vs. State of Telangana & Anr." (2024) 10 SCC 384.
ARGUMENTS ON BEHALF OF ACCUSED DEVENDER PANDEY FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.90 to 129
26.It has been argued on behalf of Ld. Counsel for accused Devender Pandey that the Accused No. 2 has no involvement or role in the companies/parties alleged by the EOW to be linked to offence of section 420/120B of IPC. Further, that the Accused no.2 runs a business on the name of Vicky Overseas which is a partnership firm. The other Partner of the firm is Vivek Bhat.
27. It has been further argued that the EOW due to the partnership firm has made accused no.2 also liable in the present matter under section 420/120B IPC due to reasons that the accused no.2 has his signature alongwith accused no.1 on the cheque given to the complainant of Rs. 22,00,00,000/-. and that the amount of Rs. 19.5 Lakhs transferred from the account of Vicky Overseas to the relatives firms of Accused No.2 out of 22 lakhs transferred to the account of Vicky Overseas by the Complainant.
28.That the prosecution failed to establish a link between the offence of 420/120B of IPC and the accused no.2 and the alleged offence of 420/120B of IPC or any proceeds of crime. The lack of evidence and absence of financial trails linking the accused No.2 renders the prosecution illegal. That the EOW has also failed to demonstrate how the signature on cheque only, without any involvement from the start or anytime during the ongoing criminal activity, making the accused no.2 liable for the offences. That further, at no point of time there is any circumstances occurred or proven or record that could link both accused persons for making the act liable under FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.91 to 129 section 120B IPC. It has been further argued that absence of "the intention to cheat complainant from the very inception. That the Accused no.2 had no intention to cheat as he had not met the complainant and he had no dishonest intention which is quiet clear from the evidences and facts presented in this matter. All the contracts and meetings held for the subject matter in the present case was done without any involvement of accused no.2. That the Complainant/ Witness No. 15 Sh. Vinay RC Iyyer nowhere mentioned that accused no.2 had any involvement in his testimony, examination-in-chief or in his cross examination. That, accused no.1 given the concerned cheque Ex. PW15/E which was dishonoured and when he informed accused no.1 about it the accused Vivek Bhat gave him another 3 cheques of his saving bank account in ICICI Bank amounting to Rs. 21.60 crores. These cheques and Bank has no relation to accused no. 2. The apex court in Mohan v. State, 2024 SCC Online SC 339 , has stated that dishonest inducement is the sine qua non to attract the provisions of Sections 415 and 420 of the IPC.
29.It has been further argued that on the question of funds being transferred from account of Vicky Overseas to relatives of accused no. 2. It is very much evident that personal transactions were done between accused no.1 and accused no.2 with each other and some amounts were taken as loan by Vivek Bhat from relative of Dewendra Pandey. Hence, when later asked about such loan, Vivek Bhat to return the loan amount insured accused no. 2 that an amount out of business transaction will be deposited in the account of Vicky Overseas. It has been argued that Absence of any FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.92 to 129 circumstantial evidence to show agreement between the parties for making it liable under Section 120B that when the accused no.2 at no point of time had any dishonest intention to cheat then presuming him to be liable under section 120B is out of question. That the accused no. 2 had no meeting of mind with accused no. 1 to conspire the stated case and no involvement shown anywhere.
30.Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.93 to 129 inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
31.So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as a whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
THE OFFENCE
32.The law pertaining to Section 420 IPC is discussed herein below. Section 420 IPC states that:-
420. Cheating and dishonestly inducing delivery of property.
--
Whoever cheats and thereby dishonestly induces the person deceived to 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.
33.The law pertaining to the cheating has been discussed by higher echelon of judicial system and the same is discussed below :-
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.94 to 129
34.In the case of A.M. Mohan Vs. State 2024 SCC Online SC 339 , it has been held that :-
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
12. A similar view has been taken by this Court in the cases of Archana Rana v. State of Uttar Pradesh and Another4, Deepak Gaba and Others v. State of UP and Another5 and Mariam Fasihuddin and Another v. State by Adugodi Police Station and Another.
13. It could thus be seen that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and
(iii) dishonest intention of the accused at the time of making the inducement.
14. The averments with regard to the present appellant as have been found in the FIR is as under:
"At the instance of the said Lakshmanan (accused No.1), I (complainant) paid directly Rs. 20,00,000/- to one Mohan (appellant-accused No. 3) and the said Lakshmanan (accused No.1) transferred the remaining sale consideration of over 18 odd crores to Mohan for the purchase of his lands at FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.95 to 129 Sunguvarchatram. But suppressed the execution of sale deed dated 03.02.2017 by the appellant/accused No.3."
35. Further, in the case of Wolfgang Reim & Ors. Vs. State 2012 SCC Online Delhi 3341, it has been held that :-
31. So far as Sections 417, 419 and 420 IPC are concerned, there must be dishonest intention at the inception of delivery or retention of property is the gist of the offence and in absence thereof there can be no offence of cheating. The Hon'ble Supreme Court has held in Sukhdeo Jha Utpal vs. The State of Bihar;
AIR 1957 SC 466 as under :-
"On charge of cheating, the fact that the accused made a false representation with the knowledge, that it was false and that he had a dishonest intention to induce the person deceived to part with his property, at the very time when he made a false representation, is an essential ingredient of the offence. On such a charge, the burden lies on the prosecution to prove affirmatively, not only that the accused has made a false representation, but also he made it with a dishonest intention, knowing that the representation he was making was false."
32. It was further held by the Hon‟ble Supreme Court of India in S.W. Palanitkar vs. State of Bihar; (2002) 1 SCC 241 as under:-
"........In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.96 to 129 that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."
33. In the present case, there is nothing on record to show that the petitioners knowingly made any false representation, much less dishonestly or fraudulently any representation. Therefore, one of basic ingredients of Sec 415 or 420 IPC is not made out.
\34. Further, a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e, after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction."
36. Sec. 467 IPC states that :-
"Forgery of valuable security, will etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.97 to 129 any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
37. Sec. 468 IPC states that :-
"Forgery for purpose of cheating -
Whoever commits forgery, intending that the document or electronic record1 forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
38. Sec. 471 IPC states that :-
"Using as genuine a forged document :-
Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
39. The offence u/sec. 467 IPC is an aggravated form of the preceding section. The forged document must be one of those mentioned in the section. Sec. 468 IPC punishes forgery committed for the purpose of cheating. To bring a document within the definition of a forged document, FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.98 to 129 it is required firstly to be shown that the false document was covered u/sec. 464 IPC and even mere proving of making a false document without establishing the intention of the maker is not sufficient to constitute an offence and unless the forgery of a document is proved, it cannot be said that the said forged document is used as genuine one. Therefore, to constitute an offence u/sec. 471 IPC, first an offence u/sec. 468 IPC has be established. Mere preparation of document under once own signature and writings by making false averments therein does not fall within the definition of forgery. The ingredient of the offence u/sec. 468 IPC is committing of forgery with a particular intent, that intent being that the document forged should be used for the purpose of cheating. The Section does not require that accused should actually commit the offence of cheating. Forgery is usually an act done in furtherance of some other criminal design. What is material is the intention or purpose of the offender in committing forgery.
40. To constitute an offence u/sec. 468 IPC, the prosecution is required to establish that the accused had committed forgery and that he did it with an intention that the document forged shall be used for the purpose of cheating. The term forged document is defined u/sec. 470 IPC. Sec. 471 IPC states that whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be forged shall be punished in the same manner as if he had forged such document. Therefore, what this section requires is a use as genuine of any document which is known or believed to be forged document. The FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.99 to 129 condition precedent for an offence u/sec. 467 and sec. 471 IPC is forgery. The condition precedent for forgery is making a false document. Therefore, sec. 471 IPC requires to use the forged document as genuine. To bring home, sec. 471 IPC user of a forged document as genuine, inter-alia must be made fraudulently and dishonestly. While deceit is an important ingredient of the definition of the word 'fraudulently' it is not an ingredient of the definition of the word 'dishonestly' which involves a pecuniary or economic gain or loss, while the word 'fraudulently' by construction excludes that element. Further, it is required that the accused knew or had good reason to believe that it was not the signature of the person by whom the document is set to have been written.
41. The law pertaining to the aforementioned offences u/sec. 464/467/468/471 IPC is discussed in my subsequent paragraphs, of this judgment.
42. It has been held in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar, 2009 8 SCC 751 para 9 to 22, that :-
"9. The term "forgery" used in these two sections is defined in section
463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.100 to 129 commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document.--A person is said to make a false document or false electronic record---
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.101 to 129 Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.102 to 129 10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.103 to 129 document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
Section 420 IPC
13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.104 to 129
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-
accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code.
A clarification
15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.105 to 129 act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617.
16. The Penal Code however defines `fraudulently', an adjective form of the word `fraud', in section 25, as follows :
"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently" is mostly used with the term "dishonestly"
which is defined in section 24 as follows : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To `defraud' or do something FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.106 to 129 fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (sec.206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec.
208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266)
(viii) Cheating (sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477) FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.107 to 129
(xiii) Fraudulently going through marriage ceremony (sec.496).
It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law. Section 504 of Penal Code
17. The allegations in the complaint do not also made out the ingredients of an offence under section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation in the complainant is that when he enquired with accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to appellants 1 and 2, it cannot be said to amount to an "insult with intent to provoke breach of peace". The statement attributed to accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by first appellant in favour of the second appellant.
Conclusion
18. The averments in the complaint if assumed to be true, do not make out any offence under sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under section 341 and causing hurt under section 323 of IPC.
19. For the reasons stated above, the appeal is allowed in part. The order of the High Court is set aside. The order dated 14.12.2005 of the learned Sub-Divisional Magistrate is quashed insofar as offences under sections 420, 467, 471 and 504 IPC. Consequently, the charges framed under those sections are also quashed. The order dated 14.12.2005 and the charges in so far as the offence FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.108 to 129 under sections 323 and 341 IPC are left undisturbed. The appeal is allowed in part accordingly."
43. It has been held in the case of Sheila Sebastian Vs. R. Jawaharraj & Anr. 2018 7 SCC 581, para 17 to 30, wherein it has been held that :-
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied.
Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-
"a person is said to have made a `false document', if FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.109 to 129
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that:
"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.110 to 129 executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
24. In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.111 to 129 The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.112 to 129 accused based on the settled legal position and we find no reason to interfere with the same.
27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
28. This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.113 to 129 Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigation, prosecution as well as the Courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice.
29. Although we acknowledge the appellant's plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant's contentions as a penal statute cannot be expanded by using implications. Section 464 of the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation. The contentions of the appellant are contrary to the provision and contrary to the settled law. The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the appellant got back the property.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.114 to 129
30. In light of the above discussion, we find no reason to interfere with the order passed by the High Court, resultantly appeals stand dismissed being devoid of merits."\
44. Further, accused persons have also been alleged to have committed the offence punishable u/sec. 120B IPC. Sec. 120B IPC states as below :-
Punishment of Criminal Conspiracy -
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
45. Sec. 120B IPC, criminal conspiracy is an independent offence and is punishable separately. To establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or caused to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must prove that some act beside the agreement was done by one or more of the accused where there is common object or design in itself to do an unlawful act, the specification of such act having common design would suffice.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.115 to 129
46. The law pertaining to the offence u/sec. 120B IPC is discussed in my subsequent paragraphs.
47. In the case of Mir Nagvi Askari Vs. CBI 2009 15 SCC 643, para 60 and 62 and 164.
60. Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
62. The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/ or by necessary implication.
164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.116 to 129 hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of some one else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e because of intoxication or unsoundness of mind etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document."
CONCLUSION
48. In the present matter, the complainant have alleged that sometime in October, 2007 he had met accused Vivek Bhat through one friend namely Ravi Saini and thereafter, it was accused Vivek Bhat who had falsely promised him to organize funds to the tune of Rs.32 Crores which the complainant was required for his project of construction. Further, that on the assurances of accused Vivek Bhat he had given Rs.23 Lakhs from his company M/s A&A Capital to the accused Vivek Bhat by way of two cheques dated 17.10.2007 for an amount of Rs.22 Lakh and Rs.1 Lakh respectively as initial charges for organizing the funds and for the same FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.117 to 129 purpose accused Vivek Bhat made false promise to him. Subsequently, accused did not arrange the funds and entered into an agreement with complainant dated 17.11.2007 and again promised to arrange for the funds and make payments to the complainant. Subsequently, the accused again defaulted in the payment and entered into second agreement which was between the complainant and the company of the accused. However, despite several promises it was accused Vivek Bhat who made false promises to the complainant for which he even issued cheques which was dishonoured and due to the aforesaid fraudulent act on behalf of the accused, complainant filed his complaint before EOW on 03.04.2008. As discussed above the investigation ensued and chargesheet in the present matter was filed. Charge was framed against accused persons. Accused Devender Pandey being the partner in the firm/company of the accused namely Vicky Overseas had also signed on the cheques which was issued to complainant as partner of accused and being the beneficiary of the amount was charged for the offence punishable U/s 420/120B IPC. Subsequently, prosecution lead evidence and examined as many as 20 witnesses in the present matter.
49. Among the 20 witnesses examined by the prosecution. Complainant was the star witness of the prosecution as the criminal law was set to motion upon his complaint wherein he had made allegations of cheating, forgery and criminal conspiracy against both the accused persons. Apart from him, the remaining witnesses were pertaining to the bank officials who were working in the bank where the complainant and the accused was having their bank accounts and apart from them all the remaining witnesses FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.118 to 129 examined by the prosecution were the police officials who had assisted the IO in carrying out the investigation in the present matter. The initial IO of the present matter, was Inspt. Sushil Kumar and subsequent IO was Inspt. Abhinender Singh. After conclusion investigation the aforesaid witnesses deposed regarding the manner in which the offence was committed.
50. In the present matter, PW-1 Shyam Phool & PW-2 SI Braj Mohan, is the witness who had got the FIR registered. PW-3 Ramesh Chandra Vashist, alongwith PW-13 HC Surinder Singh were the witnesses who accompanied the IO at the time of arrest of accused Vivek Bhat from the Airport. PW-4 Sh. Saurabh Dhingra was the Assistant Manager with HSBC and has deposed regarding the bank account maintained by complainant Sh. Vinay RC Iyer. PW-5 Sh. Gurpreet Singh Kochar was the branch Manager Kotak Mahindra Bank and deposed regarding the bank account maintained by complainant with the bank and also regarding the two cheques issued by the complainant which was credited in the account of the complainant and the cheques in question were marked 16/A2 & 16/A3 which showed that an amount of Rs.22 Lakh and Rs.1 Lakh respectively were credited into the account of Vicky Overseas which was company of both accused persons. PW-6 Prabhat Jain also deposed regarding the bank account statement of bank account no. No.007101031604 pertaining to the account of accused Vivek Bhat and PW-7 Atul Gupta who was Assistant Manager Federal Bank also disclosed regarding the bank account no.13020200032426 pertaining to C M FABS MAMTA CHOUBEY. PW-8 Arun Oberoi from HSBC also disclosed regarding bank account no.051664662001 which was maintained in the name of M/s A&A Capital by the complainant. PW-9 G FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.119 to 129 R Meena who was the Sr. Manager Dena Bank disclosed regarding a/c no.3646 & 3642 which were Ex.PW9/A and Ex.PW9/B which were pertaining to Devender Kumar Pandey and Vivek Bhat. PW-10 Sh. Komal Singh Suman was witness who disclosed that he was the notary public and the document Ex.PW10/A was signed by him and that he had attested the photocopy of the cheque. PW-1 ASI Bijender Singh alongwith IO/Chhotu Singh had taken accused in police custody to his resident and thereafter seized the document Ex.PW11/A and had also taken the accused to a cyber cafe where the accused had taken out the prints of certain emails and the same were seized vide Ex.PW11/B. PW12 Inspt. Sushil Kumar had endorsed the complaint vide Ex.PW12/A and upon his endorsement the FIR in the present matter was registered. PW-14 ASI Rajeshwar Singh Rana received information from Interpol regarding the letter Ex.PW14/A and Ex.PW14/B. PW-16 was Inspt. Abhinender Singh who had conducted the investigation in the present matter and had filed the chargesheet after conclusion of investigation. PW17 Inspt. Shambhu Nath had collected the documents and sent them to FSL and PW18 Inspt. Shoram exhibited the FSL report of the present matter that is Ex.A1 and Ex.A2. PW19 was the witness Manager from Kotak Mahindra Bank and deposed regarding the bank account statement Ex.PW19/A and Ex.PW5/A. PW20 Tushar Kapoor also from Kotak Mahindra Bank deposed that the original cheques in question which were issued by the complainant and credited to the account of Vicky Overseas were not available but the aforesaid fact of the amount being credited to the account of accused persons in their company Vicky Overseas was not disputed by them.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.120 to 129
51. In the present matter, PW15 Complainant deposed regarding his complaint and during his cross examination categorically stated qua accused Devender Pandey that he had never personally met him and accused Devender Pandey had never given him any assurance or promise to do anything for him and at no point of time, he has ever spoken to accused Devender Pandey for the present transaction. He admitted that cheque Ex.PW15/E was never signed by him and that he had never seen the accused Devender Pandey signing any document or cheques. He further admitted that he had never entered into any agreement be it oral or written with accused Devender Pandey and he had not even disclosed the name of accused Devender Pandey to the police or in his complaint. During cross examination on behalf of accused Vivek Bhat complainant admitted that he had filed the present complaint as an proprietor of M/s A & A Capital and had signed the same as a CEO of M/s A&A Capital and that he is the authorized signatory of M/s A&A Capital being its proprietor. Complainant further admitted that M/s A & A Capital was a single entity at that time, with one bank account and subsequently, the second bank account in the name of M/s A & A Capital was opened at HSBC Bank Barakhamba Road, New Delhi upon the asking of accused Vivek Bhat as it was accused Vivek Bhat who had claimed that the funds will be Swifted from Australia into his HSBC Bank and he had no document in respect to the aforesaid request as the same was verbal. Complainant also mentioned during his cross examination that M/s A & A Capital was into a Real Estate Development and that he had mentioned the same being the nature of business in the account opening form. Upon being confronted with account opening form FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.121 to 129 Ex.PW8/A, the nature of business was mentioned as Exporter Commodity. PW-15 further deposed that he had opened his bank account of M/s A & A Capital with Kotak Mahindra Bank prior to HSBC Bank in the month of January, 2007. Complainant further admitted that he had not done any transaction in the bank of Kotak Mahindra in the year 2007. Upon being asked the witness deposed that he was not knowing Mr. Hagg and it was the accused who had approached him and represented himself to be authorized representative of Interworld Pvt. Ltd. an Australian Finance Company and offered to provide funding for his Real Estate Development Project. He admitted that the forged letter shown to him by the accused was never given by him to the IO. He admitted that Ex.PW15/D1 was the application form and the same was to be sent for the loan/funding purpose. He further admitted that he had paid remuneration to accused Vivek Bhat vide cheque no.000014 dated 17.10.2007 drawn on Kotak Mahindra Bank for Rs.1 Lakh. He further admitted that his balance in his account on 31.10.2008 was in negative and did not have any funds. PW15 further admitted that the agreement Ex.PW15/B Vicky Overseas was not a party and the same was signed between complainant and accused Vivek Bhat and only because it was accused who had insisted that the cheque amount of Rs.22 Lakhs be paid in his partnership firm Vicky Overseas, the complainant had done so. He further admitted that prior to handing over and taking over of cheques of Rs.22 Lakhs no other document other than Ex.PW15/B was executed and the same does not mention that any amount is liable to be payable by Vicky Overseas including any payment of Rs.22 Lakhs.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.122 to 129
52. In view of the testimony of witnesses and the evidence available on record it was for the prosecution to prove that the accused persons conspired to commit the offence of cheating with the complainant and that the intention to cheat was existing from the beginning to constitute an offence U/s 420 IPC. In the present matter, the complaint of the complainant Ex.PW15/F and the first agreement dated 17.10.2007 between M/s A & A Capital and accused Vivek Bhat was Ex.PW15/B. The prosecution had relied upon the aforesaid document to show that the agreement entered into between the parties at the behest of accused Vivek Bhat was with the intention to cause wrongful loss to the complainant and wrongful gain to the accused persons. However, the aforesaid document Ex.PW15/B in original was never brought to the court as none of the parties stated to have the same in his possession and the complainant also did not clarify regarding the custody of the aforesaid documents. It has been alleged that the second agreement dated 24.12.2007 was again entered between the parties i.e. between Creative Brains Financial consultancy and M/s A & A Captial on 24.12.2007 and the same bears the signature of accused Vivek Bhat, complainant Vinay R C Iyar and Ravi Saini and Vinay Kapoor as witnesses to the same. The aforesaid agreement was Ex.PW10/B and the same was seized vide document ex.PW11/A. Interestingly even the original of the aforesaid alleged agreement was never brought on record by any of the party. Interestingly, some of the documents which was seized during investigation from the possession of accused were the documents which were again photocopies and print outs allegedly taken by the accused from a cyber cafe and print out of the same were seized and believing them FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.123 to 129 to be true copies without any authentication or certificate U/s 65B of Indian Evidence Act, the same were relied upon by the prosecution. Further, the documents sent by SI Chhotu Singh to FSL were again the photocopy of the questioned documents mentioned as Q8 to Q22 and the opinion was sought on the photocopy documents as the originals of the same was never procured by the IO during investigation. Further, the laptop seized from the possession of the accused was also sent to FSL for opinion and it has been categorically mentioned by PW16 in his testimony that no incriminating evidence against the accused was found in the laptop seized by the IO from the possession of the accused. Since, the original agreements allegedly entered upon by the complainant with the accused also do not show as to how the accused Vivek Bhat had cheated the complainant as the agreement itself shows that the same is pertaining to arranging of funds. Moreso, both the aforesaid agreements i.e. Ex.PW15/B and Ex.PW10/B are also between two different parties and not between accused in his personal capacity with the complainant. In both the agreements the name of the parties is different and not as stated by complainant in his complaint. The entire story of the prosecution is based upon the photocopy of documents and agreements between the parties as the same being secondary evidence, cannot be read into evidence unless the primary evidence is accounted for. All through in the complaint, the complainant has alleged that it was accused Vivek Bhat who had promised him to arrange funds of Rs.32 Crores from an Australian Company/Financer with the condition that the complainant was required for depositing 16% of the face value of the bank gurantee and then the balance payment shall be paid to the complainant. However, the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.124 to 129 complainant has no where disclosed whether by any mode he had complied with the agreement Ex.PW15/B to show his bonafide, which was the pre condition for the alleged sanction of the amount which the accused had promised to arrange from Australian Financer. The complainant in his cross examination has admitted that he had no funds in his account and the same itself shows that the pre requisite of the agreement Ex.PW15/B was not fulfilled by him and therefore, the accused Vivek Bhat could not have arranged any funds for the complainant in the present matter. It is imperative to see that agreement dated 24.12.2007 Ex.PW10/B shows the mutual settlement /understanding between the accused and the complainant regarding the funds of Rs.32 Crores and the mutual understanding does not show any kind of false representation on the party of the accused. It is not the case of the prosecution that by entering into two agreements it was the accused who had misrepresented facts to the complainant in any manner or that the complainant was made to sign the agreement under false pretext or under duress. Significantly, agreement dated 17.10.2007 has shown Ravi Saini, Vinay Kapoor and Rajesh Pundit as witnesses but the prosecution failed to examine any of the aforesaid witnesses to substantiate the allegations of the complainant. Even in the agreement dated 24.12.2007, the witnesses have been mentioned as Vinay Kapoor, and Ravi Saini but again the prosecution failed to examine the aforesaid witnesses to substantiate the allegations of the complainant. The IO during his investigation, did not whisper regarding the investigation or enquiry conducted from the aforesaid witnesses of the agreement between the parties and conveniently did not cite them as witnesses. The IO in the FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.125 to 129 present matter, in most casual manner only placed the documents pertaining to the bank transactions between the parties, photocopy of the emails and documents which were procured from the accused by taking him to a cyber cafe and even that without the support of a certificate U/s 65B of Indian Evidence Act and the documents given by the complainant and the same also being only photocopies. The prosecution in the present matter, miserably failed to bring home the guilt of the accused persons by leading any cogent evidence. The entire prosecution story revolve around the allegations of the complainant which were not supported by any substantive evidence but merely photocopies of the documents which were purported to be forged. The prosecution even failed to show as to how the photocopy documents which were not proved could be categorized to be same document which was used for the purpose of forgery.
53. Therefore, to constitute an offence U/s 420 IPC, it must be proved that the complainant parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outset. Where there is no allegation of complainant, be put to wrongful loss, there cannot be any cheating. Further, to constitute the offence the mens rea of the accused at the time of making the inducement is relevant. But if there is no evidence to show that there was such fraudulent dishonest intention on the part of the accused, the same cannot be falling under the offence of cheating. Therefore, the prosecution in the present matter was required to show that the accused had dishonest intention or fraudulent intention at the time when the complainant had parted with the property or that the accused by making a representation at FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.126 to 129 or before the time, the complainant had parted with property, deceived the complainant and thereby induced him to deliver the property and that the accused knew such representation to be false. Mere allegations of fraud or cheating in the complaint are not sufficient, to constitute the offence. A mere failure to keep promise subsequently, cannot be presumed as an act leading to cheating, further distinction between mere breach of contract and offence of cheating is a fine one which depends upon facts and therefore, a mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Therefore, the alleged deceit which arise out of breach of business contract which was a purely a civil transaction, does not create any criminal liability upon the accused persons. Further, the accused would have be said to have done a thing dishonestly, if the accused persons have done the same with intention of causing wrongful gain to themselves and wrongful loss to the complainant. Wrongful loss is a loss by unlawful means of property to which a person is entitled by wrongful gain to an accused would be a gain to him by unlawful means of property to which the person giving is not legally entitled. However, in the present matter though the complainant has claimed that due to the acts of accused Vivek Bhat he had lost his potential business which could have generated him a greater fortune, but the aforesaid does not show that the act of the accused in any manner had caused him wrongful loss. Further, the complainant in the present matter failed to show that the accused Vivek Bhat had any dishonest intention which constitute mens rea on the basis of which the dishonest or fraudulent inducement was made to him. Cheating FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.127 to 129 by false representation in respect to a future event must have been proved by the prosecution by showing that the representation was false to the knowledge of the accused at the time when it was made. Further, section 468 punishes forgery committed for the purpose of cheating. To bring a document within the definition of a forged document, it has first to be shown to be a forged document covered U/s 464 IPC and even mere proving of making of false document without establishing the intention of the maker is not sufficient to constitute an offence and unless forgery of a document is proved it cannot be said that the said forged document is used as genuine one, meaning thereby to constitute an offence U/s 471 IPC, first an offence U/s 468 IPC has to be established. Thus, it was required for the prosecution to proved that the documents had been forged and fabricated only to be used as genuine to make fraudulent and illegal claim towards the complainant. However, the complainant in the present matter failed to substantiate by providing any such original forged or fabricated document which was used by the accused to make false representation. In the present matter none of the documents placed on record by the prosecution fall in the category of forged or fabricated document as the original of the same were never filed on record including the agreements allegedly entered upon by the complainant at the behest of the accused. The aforesaid section does not require that the accused should actually commit the offence of cheating. What is material is that the intention or purpose of the accused was for committing forgery, but the ingredients of aforesaid offence have not been proved by the prosecution. The story of the prosecution creates a doubt in the mind and the offence of the accused persons have not been proved FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.128 to 129 beyond reasonable doubt. Hence, no offence is made out against the accused persons U/s 420/468/471/120B IPC. Further, once the accused are acquitted for the offence u/s 468 IPC they cannot be convicted for the offences punishable U/s 420 and 471 IPC r/w Section 34 or Section 120B IPC.
54. In the present facts and circumstances and considering the evidence available on record and the testimony of witnesses it can be concluded that the story of the prosecution does not prove any offence against both the accused persons namely Vivek Bhat and Devender Pandey. Consequently, both accused persons stands acquitted in the present matter for the offences punishable U/s 420/468/471/120B IPC.
55.File be consigned to record room after due compliance.
Digitally signed Announced in open Court SHEETAL
by SHEETAL
CHAUDHARY
CHAUDHARY Date:
Today.
2025.07.19
16:31:31 +0530
[Sheetal Chaudhary Pradhan]
ASJ-02, South-East/Saket/Delhi
19.07.2025
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.129 to 129