Delhi District Court
State vs Bhagwan Dass Etc. on 24 March, 2007
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA M.M.
KKDCOURTS DELHI:-
FIR No. 41/90
U/S. 420/468/471/34 IPC
P.S. Gokal Puri
State Vs Bhagwan Dass Etc.
JUDGMENT
a. Sl. No. of the case : 230/03 b. Date of commission of offence : 01.11.88 c. Name of the complainant : Sh. Arun Pratap Singh
d. Name of the accused, his 1. Bhagwan Dass S/o Sh.Karan Singh parentage and address. R/o E-96, West Karawal Nagar, Delhi.
2. Smt. Jal Devi W/o Sh. Yad Ram R/o West Karawal Nagar, 30ft.Road Delhi.
e. Plea of the accused : Pleaded not guilty. f. Offence complained of or proved : 420/468/471/34 IPC g. Final order : Convicted. h. Date of such order : 24.03.07. Brief reasons for the decision of the case:- The above named accused were charge sheeted
by SHO P.S. Gokal Puri U/s. 420/468/471/34 IPC with the allegations that on 12.02.90, a complaint was made by one Sh. Arun Pratap Singh that on 01.11.98 he purchased a plot measuring 100 Square Yards out of Khasra No. 17/24, Village-Karawal Nagar from one Sh. Rajbir Singh for a consideration of Rs. 27,000/- through Smt. Jal Devi and Bhagwan Das and documents were executed in Seelam Pur court and he made entire payment in the court. Further, in his presence Rajbir gave Rs. 9,000/- to Bhagwan Das and co-
1accused Rajbir alongwith Smt. Jal Devi went away with remaining amount. After some time when he went to his plot for constructing boundary wall, he found one Mohan Lal in possession of the plot, on which he went to Jal Devi and Bhagwan Das and told them about possession of another person, on which they told him to meet with Rajbir Singh and were lingering the matter. After some time they admitted that they have committed mistake and cheating with him in connivance with Rajbir and they will return the balance amount to him. Smt. Jal Devi returned him Rs. 4,000/-, but did not pay the remaining amount and all the accused committed cheating with him in connivance of each other. On the basis of this complaint present case FIR was registered.
The investigation of the case was conducted and during the investigation, site plan was prepared, statements of witnesses were recorded, documents were seized and sent to CFSL. However, accused Rajbir could not be arrested as his address was not known and other two accused were arrested and after completing the other formal investigation, the challan was presented in the court for trial.
The copies of challan were supplied to the accused persons as per section 207 CrPC and since prima facie a case U/s. 420/468/471/34 IPC was made out against both accused, accordingly, a charge was framed against both accused to which they pleaded not guilty and claimed trial. Statements of both the accused were recorded U/s. 313 CrPC, wherein both accused claimed themselves innocent and on the plea of his defence, they preferred not to lead defence evidence.
To substantiate the charge, prosecution has examined as many as eleven witnesses. PW1 is Dhan Pal Singh, who was 2 previous owner of the property, PW2 is Sh. Arun Pratap i.e. complainant, who proved his complaint as Ex. PW2/A, PW3 is Ct. Jaivir Singh, who deposited the documents with CFSL, PW4 is HC Ganpat Singh, in whose presence accused were arrested, PW5 is Sh. Yogesh Kumar, in whose presence accused Smt. Jal Devi executed an agreement to return the amount, PW6 is Sh. Rakesh Singh, in whose presence also accused agreed to return the amount, PW7 is HC Bhagwati Prasad, who also deposited the samples with the CFSL, PW8 is Veenu Gopal, MHC(M), who provided the documents to Ct. Bhagwat, PW9 is Ct. Dalip Singh, in whose presence the accused Bhagwan Das was arrested, PW10 is Inspector Ram Chander, IO, who narrated the steps taken during the investigation and proved various memos, prepared during the investigation and PW11 is Retd. SI Niranjan Singh, MHC(R).
I have heard Ld. APP for the state and Ld. Defence counsel and perused the record.
PW2 Sh. Arun Prasad i.e. complainant has deposed that before 1990, he met accused Jal Devi, who used to deal in property in front of her house and asked her to tell about some good offer of plot, on which accused Jal Devi and accused Bhagwan Das took him to a plot measuring about 100 square yards at Karawal Nagar. Thereafter, accused Jal Devi came to his house alongwith one Rajbir Singh and introduced him as the owner of the plot shown to him. PW1 further deposed that cost of the plot was told to him as Rs. 27,000/- and he asked Jal Devi that as Rajbir and Bhagwan Das are not known to him, he is entering in the deal with Jal Devi and paid her Rs. 1,000/- as earnest money. PW2 further deposed that after one month, power of attorney was executed at Seelam Pur Court, where he went alongwith 3 one Yogesh and he handed over Rs. 26,000/- to accused Jal Devi. Thereafter, they handed over GPA i.e. Ex. PW2/1, agreement to sale i.e. Ex. PW2/2 and receipt Ex. PW2/3, which was in favour of Rajbir, saying that now these documents belong to him. He further deposed that after 20 days of the execution of the said documents, he went to the plot and found that construction was going, on which he got suspicious and asked the person, namely Bhupender, how he was constructing at his plot, who informed him that he has been cheated and claimed himself the true owner of the plot. Thereafter, he contacted the accused, and accused Jal Devi agreed to return the amount received from him and executed a document as Ex. PW2/4 to this effect. PW2 further deposed that neither amount nor possession of the plot was given to him. He further proved his complaint as Ex. PW2/5 and deposed that documents, produced by him were seized by the police vide memo Ex. PW2/6. He further identified both the accused, who received the amount of Rs. 27,000/- from him.
PW5 Sh. Yogesh Kumar has deposed that on 26.4.89, accused Jal Devi executed an agreement with complainant Arun Pratap to the effect that she would return the amount of Rs. 27,000/- to complainant till 1.8.89 as they fraudulently sold the plot to him. He further identified his signatures on the documents Ex. PW2/4 at point A. In his cross examination PW5 confirmed that accused Jal Devi purchased the stamp papers in his presence and same were prepared at the house of complainant.
PW6 Rakesh Singh has deposed that he used to sell children clothes on the road and accused Jal Devi arrived at the spot alongwith complainant and one Yogesh and a compromise was effected 4 between them and accused Jal Devi agreed to return the amount received from complainant within two months and parties signed the agreement Ex. PW2/4 in his presence.
PW1 Dhan Pal Singh has also deposed that the property in question belongs to them, earlier they had sold the property to one person, who was in the occupation of same and accused Jal Devi dishonestly sold the same to complainant after forging the documents.
The ingredients required to constitute the offence of cheating are :
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or not to do anything which he would not do or on it if we were not so deceived;
Thus, for an offence of cheating, it is necessary that there should be fraudulent and dishonest inducement by the accused persons and on the basis of that fraudulent and dishonest inducement, there should be delivery of property. In the present case PW1 has specifically deposed that accused Jal Devi and Bhagwan Das took him to the plot measuring 100 square yards situated at Karawal Nagar and then introduced one Rajbir Singh as the owner of the plot, since accused Bhagwan Das and Rajbir Singh (who has not been arrested so far) were not known to complainant and 5 he paid the amount of Rs. 27,000/- to accused Jal Devi in presence of accused Bhagwan Das at Seelam Pur Court, which they distributed amongst them in his presence. Thereafter, when it came to the notice of complainant that he has been cheated, accused Jal Devi executed a document i.e. Ex. PW2/4 in presence of PW5 and PW6 wherein she has admitted that she fraudulently obtained Rs. 27,000/- from complainant and will return the same till 1st August, 1989, but not returned the same.
From the testimony of complainant and other prosecution witnesses the ingredients of Section 420 IPC have been proved. As far as offence punishable U/s. 468/471 IPC is concerned, there is no evidence that which of two accused prepared the forged documents and used the same, while selling plot to complainant. No definite opinion was given by the CFSL on supplementary report dated 29.08.01, given by Senior Scientific officer. Therefore, accused can not be convicted for offence punishable U/s. 468/471 IPC. It has been duly proved that accused Jal Devi and Bhagwan Das in furtherance of their common intention induced the complainant to purchase a plot, which was not belonging to them and dishonestly received Rs. 27,000/- from him as such I held accused Jal Devi and Bhagwan Das guilty U/s. 420/34 IPC and accordingly, convict them therein under.
Announced in the open court.
Dated:-24.03.07 (SANJEEV KUMAR MALHOTRA)
Metropolitan Magistrate
Karkardooma Courts, Delhi
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