Delhi District Court
State vs . Ashok Kumar & Anr. on 24 March, 2023
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2035196/2016
STATE vs. ASHOK KUMAR & ANR.
State vs. Ashok Kumar & Anr.
FIR No. 233/2010
Police Station: Malviya Nagar
Under Section: 420/168/34 IPC
Date of institution : 06.05.2011
Date of reserving : 11.01.2023
Date of pronouncement : 24.03.2023
JUDGMENT
a) Serial number of the case : 2035196/2016 b) Date of commission of : 28.02.2009 offence c) Name of the complainant : Mrs. Anita Saini d) Name, parentage and : i) Ashok Kumar S/o Late Sh.
address of the accused Raghubar Dayal R/o B-410, PTS, persons Malviya Nagar, New Delhi
ii) Sanjay Kumar S/o Late Sh.
Rajbir Singh R/o 109, Begumpur, Malviya Nagar, New Delhi
e) Offence complained of : 420/168/34 IPC
f) Plea of the accused persons : Accused persons pleaded not guilty
g) Final order : Both accused persons acquitted of the offence u/s 420/34 IPC.
State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 1 of 25 Accused Ashok convicted for the offence u/s 168 IPC.
h) Date of final order : 24.03.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. Aggrieved of the cheating of Rs.8,50,000/- caused by accused No. 1 i.e. Ashok Kumar, who happened to be an ASI at the relevant time in Delhi Police, and inactions by the officials of Police Station Malviya Nagar, complainant Smt. Anita Saini submitted a written complaint dated 06.04.2010 to the then DCP, South District, New Delhi. In her complaint, the complainant averrerd that she was living in a small one-room-house at Ashram, New Delhi with her three children i.e. one son and two daughters. The son of the complainant was married and working with the Indian Army. Out of the two daughters, one was married and the second one was unmarried. Owing to the illness of her husband and also that her son and elder daughter were living separately, the complainant and her husband were totally dependent upon their youngest daughter for their livelihood. More so, the responsibility of getting her youngest daughter married was also to be executed by the complainant.
2. The complainant further averred that she wanted to purchase a spacious house for her family and after utilizing all her savings, which included cash, jewellery, other assets and a loan amount of Rs.2,00,000/- taken from a private agent, she State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 2 of 25 accumulated a total amount of Rs.8,50,000/-. With this amount, the complainant purchased a one-room-flat on the first floor from accused No. 1 in a building at Khirki Extension, Malviya Nagar, New Delhi, which was under construction since the year 2009. The complainant further averred that her son-in-law Sh. Rakesh Sharma was acquainted with accused No. 1 and introduced her to accused No. 1. Reposing trust on her son-in-law, the complainant paid Rs.8,50,000/- as an advance payment to accused No. 1 on 28.02.2009 at his residence at PTS Colony, Malviya Nagar, New Delhi. To this effect, an agreement was arrived at between the complainant and accused No. 1, however, the same was not being signed by accused No. 1 on the ground that he was working with Delhi Police. Later on, Sanjay Kumar/accused No. 2 i.e. an assistant of accused No. 1, signed the agreement with the complainant. As per the agreement, the sale consideration of the flat was Rs.10,50,000/- and the balance payment, over and above of Rs.8,50,000/-, was to be paid at the time of possession of the flat. Sh. Prakash Singh Negi and accused No. 1 stood as witnesses to the agreement and accused No. 1 collected the amount from the complainant.
3. The complainant persistently approached accused No. 1 to either give possession of the flat or to return the advance amount of Rs.8,50,000/- paid by her towards purchase of the flat. However, accused No. 1 kept on ignoring the complainant and did not do so. In addition to it, he threatened her son-in-law not to follow him and if followed, he would either implicate her son- in-law in a false case or make their life miserable.
State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 3 of 25
4. Sh. H.G.S. Dhaliwal, the then DCP, South, New Delhi went through the complaint of the complainant and Sh. Mehar Singh, the then ACP, Hauz Khas, New Delhi was directed to inquire the matter and submit report thereon. The ACP acted upon the duty assigned and found the allegations of the complainant substantiated. Thereafter, the ACP submitted his inquiry report to Sh. H.G.S. Dhaliwal, the then DCP, South, New Delhi and recommended to get an FIR registered, which was approved by the DCP. Thereafter, the present FIR was registered and after formal investigation, the present charge sheet for the offences punishable under Sections 420/168/34 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") was filed.
CHARGE
5. Vide order dated 18.09.2012, charge for the offences punishable under Sections 420/168/34 IPC was framed against accused No. 1 and charge for the offences punishable under Sections 420/34 IPC was framed against accused No. 2, to which they pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 29.10.2018, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), both accused persons admitted genuineness of the following documents, namely: i) Proceedings State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 4 of 25 of obtaining specimen handwriting of accused Sanjay Kumar conducted on 15.01.2011 in the Court of Sh. Deepak Sehrawat, Ld. Metropolitan Magistrate; and ii) Proceedings of obtaining specimen handwriting of accused Ashok Kumar conducted on 07.12.2010 in the Court of Ms. Monika Saroha, Ld. Metropolitan Magistrate vide Ex A1 to A2.
EVIDENCE OF THE PROSECUTION
7. Prosecution has examined fourteen witnesses i.e. PW1 Sh. Prakash Singh Negi, PW2 Smt. Anita Saini (the complainant), PW3 Sh. Rakesh Sharma (the son-in-law of the complainant), PW4 HC Bhupender, PW5 HC Guddu, PW6 Ct. Bhagwan Sahay, PW7 ASI Rambal, PW8 ASI Pawan Kumar, PW9 HC Surender Kumar, PW10 HC Manoj, PW11 Inspector Dheeraj Narang [the investigating officer (IO)], PW12 SI Deep Chand, PW13 Sh. Vijender Singh (Assistant Director, FSL, Rohini, Delhi) and PW14 SI Deepak Kumar.
8. PW1 Sh. Prakash Singh Negi deposed that Sh. Rakesh Sharma i.e. the son-in-law of the complainant was his friend, who informed him that his mother-in-law was looking for a flat to purchase it. PW1 was acquainted with accused No. 1, who was constructing a new building at Khirki Extension, New Delhi. The son-in-law of the complainant was introduced to accused No. 1 by PW1. PW1 further deposed that as per his knowledge, his friend i.e. the son-in-law of the complainant paid Rs.8,50,000/- to accused No. 1 towards the flat. He further State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 5 of 25 deposed that accused No. 2 was working with accused No. 1. He further deposed that his friend i.e. son-in-law of the complainant had paid the amount towards the flat to accused No. 1 at his residence and that he (PW1) appended his signature on the document as a witness. PW1 deposed that the payment was made to accused No. 1 on more than one occasion and he along with his friend remained present every time while the payments were made. PW1 correctly identified both the accused persons. The witness was duly cross-examined on behalf of accused Ashok Kumar.
9. PW2 Smt. Anita Saini is the complainant of this case, who deposed that in the year 2009, she was in need of a house and asked her son-in-law, namely, Rakesh Sharma in that regard. The son-in-law of the complainant with the help of his friend Prakash Singh Negi went to see a flat i.e. S-14, Khirki Extension, New Delhi, to which the complainant acceded to purchase. The complainant along with her son-in-law went to the house of accused No. 1 and made payment of Rs.8,00,000/- to him and he agreed to receive the balance payment of Rs.2,00,000/- after two or three months. The agreement papers were prepared, which were signed by one Sanjay i.e. accused No. 2. The complainant asked accused No. 1 to append his signatures on the agreement papers but he refused, stating that he was a Government servant. However, after insistence by the complainant, accused No. 1 wrote "I received Rs.8.00 Lakh from Mrs. Anita Saini" on page No. 2 of the agreement papers. PW2 further deposed that after some days, she along with her son-in-law visited the flat in State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 6 of 25 question, where she came to know that the same had been sold to someone else by the accused persons. The complainant demanded her money back or the possession of the flat from accused No. 1, who did not heed to that and rather threatened her son-in-law to implicate him in a false case. Thereafter, the complainant made police complaint, Ex PW2/A. The complainant admitted her signature at points A1 to A3 and denied at point A4 on the original agreement dated 28.02.2009, Ex PW2/B. Further, the police seized the Agreement to Sell vide seizure memo Ex PW2/C. PW2 correctly identified both the accused persons. The witness was duly cross-examined on behalf of both the accused persons.
10. PW3 Sh. Rakesh Sharma is the son-in-law of the complainant, whose testimony is identical to the testimony of PW2/Complainant Smt. Anita Saini, as they both had visited together the house of accused No. 1 and were involved from the very beginning as to the purchase of the flat for the complainant. Additionally, PW3 deposed that accused No. 1 handed over Rs.8,50,000/- to the complainant, while the proceedings on his bail application were on. PW3 correctly identified both the accused persons. The witness was duly cross-examined on behalf of both the accused persons.
11. PW4 HC Bhupender joined the investigation of the present case with IO Inspector Dheeraj Narang on 08.06.2010. He proved the handing over of the Agreement to Sell by the complainant and her son-in-law to Inspector Dheeraj Narang in State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 7 of 25 the police station and its seizure vide Ex PW2/C. PW4 further deposed that there were some oil drops on the said document, which caused hindrance in its reading. The witness was duly cross-examined on behalf of accused Ashok Kumar.
12. PW5 HC Guddu joined the investigation of the present case with IO Inspector Dheeraj Narag on 15.01.2011. He proved the receipt of the signatures of accused No. 2 i.e. Sanjay Kumar on four papers, vide Ex PW5/A, which was allowed by the Ld. Metropolitan Magistrate on an application being moved by the IO to obtain specimen handwriting of accused No. 2. The witness correctly identified accused No. 2.
13. PW6 Ct. Bhagwan Sahay joined the investigation of the present case with IO Inspector Dheeraj Narang on 14.01.2011. He proved the arrest of accused No. 2 by the IO vide memo Ex PW6/A. The witness correctly identified accused No. 2.
14. PW7 ASI Rambal proved the arrest and personal search of accused No. 1 by the IO vide memos Ex PW7/A and PW7/B respectively. He also proved the receipt of specimen signatures and handwritings of accused No. 1 by the IO, taken on separate sheets, vide Ex PW7/C (Colly), after the application of the IO was allowed by the Ld. Metropolitan Magistrate in that regard. The witness correctly identified accused No. 1.
15. PW8 ASI Pawan Kumar is the Duty Officer, who proved the registration of the present FIR on 06.06.2010 vide Ex State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 8 of 25 PW8/A.
16. PW9 HC Surender Kumar deposed that on 24.01.2011, the original documents, as mentioned in Ex PW9/A, were sent to FSL through Ct. Manoj Kumar along with the specimen signatures and handwritings of both accused persons.
17. PW10 is HC Manoj, who deposited the documents i.e. the specimen handwritings and specimen signatures at FSL, Rohini, Delhi on 24.01.2011.
18. PW11 Inspector Dheeraj Narang is the IO of the present case. He deposed that on 06.06.2010, he received one complaint marked to him by the then SHO for registration of the present case and its investigation. Thereafter, he prepared the rukka and handed it over to the Duty Officer for registration of the present FIR. The IO further deposed that the complainant had come to the police station and handed over Agreement to Sell-cum- Receipt related to the property in question, which was seized by him. During the course of investigation, the IO tried to search accused No. 1 but he was not traced and, therefore, the IO got issued the NBWs followed by the process under Section 82 of the Code against accused No. 1. Finally, accused No. 1 was arrested from his home at B-410, PTS Colony, Malviya Nagar, New Delhi on 07.12.2010. Thereafter, the IO prepared the arrest and personal search memos qua accused No. 1. He also recorded the disclosure statement of accused No. 1. During the course of investigation, the IO produced accused No. 1 before the State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 9 of 25 concerned Ld. Metropolitan Magistrate to obtain his specimen signatures and specimen handwritings, which was allowed. PW11/IO further deposed that on 14.01.2011, he formally arrested accused No. 2 and on an application being moved by him and allowed by the concerned Court, he obtained the specimen signatures of accused No. 2. The IO further deposed that on 24.01.2011, he got some documents deposited with the FSL, Rohini, Delhi through MHC(M) HC Surender Kumar. Thereafter, the IO recorded the statement of the witnesses and after completion of investigation, he filed the charge sheet in the court. PW11/IO correctly identified both the accused persons. The witness was duly cross-examined on behalf of accused No.
1.
19. PW12 SI Deep Chand deposed that in December 2014, the FSL Report of the present case was received at PS Malviya Nagar, which was assigned to him. After receiving the FSL Report, PW12 prepared the supplementary charge sheet and filed it in the court. The witness was duly cross-examined on behalf of accused No. 1.
20. PW13 Sh. Vijender Singh, Assistant Director (Documents), FSL, Rohini, Delhi proved his Reports No. FSL 2011/D-0283 dated 31.07.2014 and No. FSL 2015/D-1212 dated 30.06.2015 vide Ex PW13/A and PW13/B respectively.
21. PW14 SI Deepak Kumar deposed that on 12.08.2015, the investigation of the present case was marked to him. He further State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 10 of 25 deposed that during the investigation, he collected the result of the FSL, pursuant to which he prepared the supplementary charge sheet and filed it in the court. The witness was duly cross- examined on behalf of accused No. 1.
STATEMENT / DEFENCE OF THE ACCUSED
22. In their respective statement recorded under Section 313 of the Code, both the accused persons denied the entire evidence against them. They stated that they have been falsely implicated in this case. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
23. The record has been thoroughly and carefully perused. The respective submissions of Sh. Rajat Bansal, Ld. Assistant Public Prosecutor for State, and Sh. Amit Biswas and Sh. M.S. Hussain, Ld. Counsels for accused Nos. 1 and 2 respectively have been considered.
24. On 18.09.2012, charge was framed against both the accused persons under Section 420/34 of IPC. Additionally, accused Ashok was also charged under Section 168 IPC. The issue whether the prosecution has been able to drive home the culpability of the accused persons under the above said sections shall be assessed separately herein below.
Re: Section 420/34 IPC
25. The primary allegation against both the accused persons is State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 11 of 25 that they in furtherance of their common intention deceived the complainant Anita Saini by fraudulently or dishonestly inducing the complainant to pay Rs.8,50,000/- as earnest money for purchase of flat without having any intention right from the beginning to transfer the flat in favour of the complainant and committed an offence punishable under Sections 420/34 of IPC.
26. At the outset, it is imperative to discuss the law relating to the offence of cheating as stipulated under the provisions of IPC. Section 415 of IPC defines cheating as under:-
"415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
27. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under:-
"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."
28. In Vijay Kumar Ghai vs. State of West Bengal [(2022) 7 SCC 124], the Hon'ble Supreme Court has held that to establish the offence of cheating in inducing the delivery of property, the State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 12 of 25 following ingredients need to be proved:-
a) a person must commit the offence of cheating under Section 415; and
b) the person cheated must be dishonestly induced to;
(i) deliver property to any person; or
(ii) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
29. In the above said decision, the following observation of the Hon'ble Apex Court in the case of Uma Shankar Gopalika vs. State of Bihar and Another [(2005) 10 SCC 336] has been reproduced:
"15. ...that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. 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 i.e. the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise..."
30. The Hon'ble Supreme Court has also endorsed the view in Hridaya Ranjan Prasad Verma and Others vs. State of Bihar and Another [(2000) 4 SCC 168] wherein the distinction between mere breach of contract and cheating, which is criminal offence, has been held to be a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In Vesa Holdings Private Limited and Another vs. State of State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 13 of 25 Kerala and Others [(2015) 8 SCC 293], the Hon'ble Supreme Court observed:-
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show that at the very inception there was any deception on behalf of an accused person to cheat which is a condition precedent for an offence u/s 420 IPC. In our view, the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the courts."
31. Moving on to the arguments addressed by both the counsels, the Ld. APP for State has forwarded the written submissions submitted by the son-in-law of the complainant on behalf of the prosecution. In the written submissions, the hardships faced by the complainant in registering and pursuing the instant matter have been elaborated. It is averred that initially the FIR was not registered, as the accused Ashok was posted as ASI at Police Headquarters (Vigilance). It was on approaching the office of the DCP, the FIR was registered after considerable delay. Pursuant to the registration of the FIR, it is submitted that no arrests were made by the investigating officials and only on the dismissal of the anticipatory bail application of accused Ashok, accused Ashok was arrested. It is also averred that accused Ashok threatened the complainant as well as her son-in- law but no sections with respect to the threats were added. The following submissions on the merits of the matter have been made:
State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 14 of 25
a) Firstly, that there is typographical error in the Sec-
tion 161 statement of the complainant wherein it is mentioned that the complainant had paid 8 lakh ru- pees. However, it was corrected by the complainant in her cross-examination where she stated that the amount handed over was 8.5 lakhs.
b) Secondly, that the complainant had taken a loan from a private financier to arrange the earnest money and the mortgage agreement entered into with Rakesh Kumar is also on record.
c) Thirdly, that the supplementary charge sheet also mentions that the handwriting on the agreement be- longs to Accused Ashok.
d) Fourthly, that PW1 Prakash Singh Negi has sup-
ported the version of the prosecution.
32. Learned counsel for accused Ashok has averred the following in support of his defence:
a) Firstly, that ingredients of Section 420 IPC are not attracted, as there was no misrepresentation made to the complainant. It is averred that the complainant did not even meet accused Ashok prior to the alleged payment of the earnest money and, therefore, no question of inducement arises.
b) Secondly, that there are inconsistencies in the depo-
sition of the complainant with respect to the sale State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 15 of 25 consideration. It is also argued that the entire trans- action relating to payment of bayana is shrouded by suspicion as in her cross-examination she has de- posed that she did not remember the date on which the payment of the earnest money was made.
c) Thirdly, that the complainant has not been able to show how she arranged the funds of Rs. 8 lakhs as Rakesh Saini (complainant's brother in law) from whom she borrowed some amount has not even been examined.
d) Fourthly, that the alleged amount of Rs. 8.5 lakhs is not mentioned in column no. 1 of Agreement to Sell cum Receipt dated 27.02.2009. The agreement says that an amount of Rs. 5.5 lakhs were received by ac- cused Sanjay and further Rs. 1.5 lakhs given on 20.03.2009 and final payment of Rs. 5 lakhs were to be paid on or before five months from the date of the agreement. The alleged payment in instalments men- tioned in the agreement stands contrary to the aver- ment that payment of earnest money was made in one shot.
e) Fifthly, that the FSL Report is inconclusive and the benefit of doubt must enure to the accused.
f) Sixthly, accused Ashok was not a party to the trans-
action and the complainant has converted a civil dis- pute into a criminal case.
State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 16 of 25
33. The Ld. Counsel for accused Sanjay in addition to the grounds raised by accused Ashok with respect to the inconsistencies in the prosecution has submitted that there was no inducement by accused Sanjay. It is averred that it is substantiated by the fact that PW1/ Prakash Singh Negi as well as PW2/ Complainant deposed that the earnest money was received by accused Ashok and accused Sanjay was introduced as someone who worked with accused Ashok.
34. There is no clarity or uniformity in the averments with respect to the payments allegedly made by the complainant. The Agreement to Sell cum Receipt dated 28.02.2009 entered into by Accused Sanjay with the complainant is Ex. PW2/B. As per this agreement which is relied on by the prosecution, payments were made to the accused in instalments. However, the prosecution witnesses (specifically, PW2 and PW3) have averred that when the complainant met the accused Ashok at her residence, she made payment of Rs. 8.5 lakhs which runs contrary to the payment recital which indicates payment in tranches. In fact, PW2 has deposed in her cross-examination that she met the accused only once at accused Ashok's residence and that was at the time of making payment of Rs. 8.5 lakhs. Similarly, PW3 has also deposed that 8.5 lakhs were paid on 28.10.2009 and the remaining payment was to be made in 90 days. PW1 in his examination in chief deposed that an amount of Rs. 8.5 lakhs was paid by the complainant and an agreement was executed on that day. However, in his cross, he stated that there were different stages of payment and he gave a vague statement that PW3/ State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 17 of 25 Rakesh had given 2 or 3 lakhs in the first meeting. These contradictions in the averments of the prosecution witnesses with respect to the manner of the payment runs contrary to the agreement itself. Further, Section 91 of the Indian Evidence Act, 1872 provides that when the terms of a contract have been reduced in writing, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Therefore, the oral averments qua payment in one lump sum manner are not admissible and the complaint itself on this one account is questionable.
35. It is alleged by the complainant/PW2 that when the agreement to sell was signed by accused Sanjay, she as well as PW3 objected and accused Ashok responded that he could not sign the agreement being a government servant. It is also alleged that on their insistence, the accused Ashok wrote certain statements with respect to the payments received. Contrary to the averment of the complainant, PW1 did not affirm that the accused Ashok was made to write the payment recitals by the complainant and her son-in-law. Further, the FSL Report (Ex. PW13/A) is not conclusive qua the handwriting of the person who has written the recital with respect to the payment and no final observation has been given that the handwriting of accused Ashok matches with the handwriting in the payment recital. Therefore, the averments of the complainant with respect to the recital on the agreement stands unproved.
State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 18 of 25
36. PW2/complainant states that a few days after the execution of the agreement to sell, she and her son-in-law came to know that the flat has been sold to some other person. However, PW3 has deposed that after "long time of payment" to accused Ashok, the flat was neither handed over nor the payment was returned. PW3 in his cross-examination has deposed that he came to know about the sale of the property to a third party (some Constable) from his other friends. He also deposed that he was not aware about the consideration that was paid by the said buyer. He also deposed that the building was sealed by MCD after the payment of the earnest money. Therefore, was the property sold to someone else or was it sealed by MCD, there is no clarity regarding this.
37. Qua accused Sanjay, PW1 deposed in his examination in chief that he could not recollect whether accused Sanjay was present at the time the payment was made by his friend i.e. PW3. However, on the same day in his examination in chief, he deposed that an agreement was signed when the payment of Rs. 8.5 lakhs was paid. These statements are inherently contradictory as the agreement was allegedly signed by accused Sanjay and therefore, in his absence, it could not have been executed. Further, the complainant in her cross-examination has stated that she had never communicated with accused Sanjay as they were dealing with accused Ashok. Also, the son-in-law of the complainant, PW3 has also deposed that accused Ashok represented that he would be responsible for the transaction. PW3, in his cross-examination, has also deposed that accused State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 19 of 25 Sanjay had never met him during negotiations pertaining to the flat. Further, there is no clarity whether accused Sanjay even benefited from the alleged transaction. Therefore, the prosecution has not been able to establish the commonality of intention between accused Sanjay and Ashok.
38. There is another contradiction in the depositions of the witnesses. PW2 has averred in her cross-examination that the oil stains in the agreement were due to her carrying the document in her purse along with her lunch. However, PW3 has deposed that as he used to carry the agreement with him in a bag along with his lunch bag, the oil stains were made in the agreement. Considering the significance of the said document, the witnesses ought to have known how it came to be soiled.
39. Complainant admitted in her cross-examination that she did not see any documents pertaining to the title of the flat prior to making the payment of earnest money and she was aware of the ownership of the flat by accused Ashok as he had verbally informed her. However, despite being aware it is surprising she entered into an agreement wherein it is mentioned that accused Sanjay is the owner of the property in question. Further, the prosecution has failed to establish inducement by the accused persons. PW3 in his cross-examination deposed that "I alongwith my mother-in-law took the amount of Rs. 8.5 lakhs as 'Bayana' on our own accord and the same was not asked by the accused Ashok Sharma". Essentially, the core of the matter is a civil dispute as the dishonest intention of the accused persons have not State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 20 of 25 been established by the prosecution.
40. A case directly in point is Dalip Kaur and Others vs. V. Jagnar Singh and Another [2009 14 SCC 696] wherein the appellant was the owner of some agricultural lands. He entered into an agreement for sale with Respondent 2 agreeing to sell 13 acres of land at the rate of Rs. 4,70,000 per acre. Allegedly, the Respondent 2 paid a sum of Rs. 7,00,000 towards advance to the appellant. A sum of Rs. 14,20,000 was furthermore paid to the appellant within a period of 7 months from the date of execution of the said sale agreement. Inter alia, on the premise that the second respondent was unable to pay the balance amount of consideration, the appellant executed a deed of sale in favour of Balbir Singh and Mohinder Singh. Whereas the case of the appellant was that at the instance of Respondent 2 the said deed of sale was executed, the latter contends that the appellant did so without calling upon him to pay the balance amount and as such committed an offence under Section 406 and 420 of IPC. The Supreme Court held that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance, the same would not constitute to an offence of cheating. In our case at hand, even if the transaction is admitted, the complainant and the witnesses have not established the intention of the accused persons behind the non-performance of the contract.
41. It is a well settled law that every breach of contract would State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 21 of 25 not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating and in the said case nowhere it was stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code.
42. In a nutshell, the depositions of the prosecution witnesses coupled with the agreement to sell placed on record do not inspire the confidence of this court with respect to the genuineness and veracity of the averments with respect to the transaction. Much is left to be desired from the complainant and the other witnesses as their depositions are not consistent. The inconsistencies and contradictions are far too many to be ignored. In arguendo, even if the complainant's version is considered as the gospel truth, the prosecution has not been able to establish the presence of dishonest intention of the accused persons from the very beginning. Therefore, the essential ingredients of an offence of cheating as laid down in Section 420 of IPC is not made out and accused persons are acquitted of the offence under Section 420/34 of IPC.
Re: Section 168 IPC
43. Section 168 of IPC is verbatim reproduced below:-
"Whoever, being a public servant, and being legally bound as such public servant not to engages in trade, engages in trade, shall be punished with simple imprisonment for a State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 22 of 25 term which may extend to one year, or with fine, or with both.
44. The section requires three elements to constitute the offence:
a) that the offender is a public servant;
b) that as such he is legally bound not to engage in
trade; and
c) that he is engaged in trade.
45. In Ghanshyam Lal Choudhary vs. State of Rajasthan [1972 WLN 375], the Hon'ble Rajasthan High Court observed the following with respect to Section 168 of IPC:-
"The word 'trade' and the term 'engages in trade' have not been defined in the Indian Penal Code. Section 168, IPC has been made the radix for a number of special enactments in order to control the conduct of public servants. Public servants are not allowed to trade so that they may not neglect their duties and being in official position may not obtain unfair advantages. The expression 'trade', as used in Section 168, Penal Code and Rule 14 of the Rajasthan Government Servants' and Pensioners' Conduct Rules, 1949 formed part of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 in the form of Appendix A and saved by Rule 35 of the Rajasthan Civil Services, (Classification, Control and Appeal) Rules, 1958, cannot be construed in its technical sense. It should not be confined to mercantile or commercial operations, but it should be given a wider meaning bearing in mind the context in which it is used. In its wider sense the word is used to cover every kind of trade, business, profession or occupation. Trade in its primary meaning is the exchanging of goods for goods or goods for money & in a secondary meaning it is any business carried on with a view to profit, whether manual or mercantile as distinguished from liberal arts or learned professions and from agriculture: see Halsburys Laws of England, Vol. 38, 3rd Edition, Page 8. So construed, it would include any business carried on with a view to profit: vide Mulshanker vs. Government of Bombay Per Ganjendra gadkar, J. Besides, the word 'trade' implies that the trade or business must be habitually or systematically exercised. It does not apply to isolated transactions: vide Rolls State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 23 of 25 v. Miller 1865 (27) Ch. D. 71.
6. It may also be stated here that if a Government servant carries on trade benami in the name of another person, he must be regarded as himself carrying on the trade. In this connection a reference is made to King v. Maung Sew Uan AIR 1930 Rangoon 69."
46. With the above background, it is to be seen whether the prosecution has succeeded in bringing home the fact that accused Ashok engaged himself in trade while he was in service with Delhi Police. The star witness in this regard is PW1/Prakash Singh Negi. PW1 in his examination in chief clearly deposed that he knew accused Ashok was constructing a new building at Khirki Extension and, therefore, he introduced the son-in-law of the complainant to accused Ashok. He has also deposed that payments were made by the complainant to accused Ashok. Adding merit to PW1's deposition is the testimony of PW3 wherein he has deposed that he was told by PW1 Prakash Singh Negi that accused Ashok who was working with Delhi Police was also doing the business of builder and has constructed a building in Khirki Extension. With respect to these averments, nothing material has been elicited by the cross-examination. The accused has not placed on record any evidence to establish that the complainant had some axe to grind with him and, therefore, had falsely implicated him in this case. The accused did not even step into the witness box to put forth his case that he was not engaged in any trade.
47. The accused has alleged in his arguments that alleged payments were not made to him. However, the prosecution has State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 24 of 25 established beyond reasonable doubt that she had arranged the funds and made the payment. Even though the depositions with respect to the tranches in which the payments were made are inconsistent, the fact that is proved beyond reasonable doubt is that accused Ashok was dealing in property. It is pertinent to note that unlike Section 420 of IPC, no mens rea is required to be established to prove an offence under Section 168 of IPC. In view of the above discussion, accused Ashok is held guilty for the offence punishable under Section 168 of the IPC and is accordingly convicted.
48. In view of acquittal of accused Sanjay in the present case, bail bond in compliance of Section 437A of the Code is directed to be furnished by him.
Dictated and announced in open Court on 24.03.2023.
(T. Priyadarshini) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 24.03.2023 State vs. Ashok Kumar & Anr FIR No. 233/2010, PS: Malviya Nagar Page 25 of 25