Delhi District Court
State vs . Rajkumar Aggarwal on 10 November, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. RAJKUMAR AGGARWAL
FIR No. 568/2004
PS: MOTI NAGAR
U/S: 420 IPC
JUDGMENT
Sr. no. of the case : 586/2/10
Unique Case ID no. : 02401R6225722004
New Case No. : 61876/2016
Date of commission of offence : 15.10.2004
Date of institution of the case : 17.12.2004
Name of the complainant : Sh. Pramod Kapoor
Name of accused and address : Rajkumar Aggarwal
S/o Sh. Kashmiri Lal
R/o 255, Ward No.6,
Dewan Gate, Jhajjar,
Haryana.
Offence complained of or proved : U/s 420 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date on which reserved for judgment : 02.11.2016
Date of judgment : 10.11.2016
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS:
1. In brief story of prosecution is that accused was working as a property dealer in Moti Nagar area having office at C-19, New Moti Nagar. Smt. Charu Kapoor (PW2) W/o Late Sh. Pramod Kapoor and FIR No. 568/2004, PS Moti Nagar Page 1/18 Smt. Suderdhan Kumari (PW4) W/o Sh. Iqbal Singh entered into an agreement to sell/raseed in respect of a flat no.C-13, New Moti Nagar belonging to Smt. Sudershan Kumari, the deal was done through present accused being property dealer. The entire sale consideration amount for the flat was Rs.11,70,000/-. On 04.09.2004, an agreement to sell/bayana raseed was executed between Smt. Sudershan Kumari and Smt. Charu Kapoor in respect of that flat and a sum of Rs.1 Lakh was also handed over by Smt. Charu Kapoor to Smt. Sudershan Kumari. Accused Rajkumar Aggarwal was a witness of that agreement being property dealer of that deal. As per the deal, the remaining amount was to be paid on 04.11.2004 on which sale deed would have been executed and possession would have been handed over.
However, prior to 15.10.2004 accused approached Smt. Sudershan Kumari, induced her to hand over key of the flat to him for the purpose of performing pooja in the flat by purchaser Smt. Charu Kapoor and Sh. Pramod Kapoor, he also assured that after pooja the keys would be returned to Smt. Sudershan Kumari. On 15.10.2004 accused approached PW2 Smt. Charu Kapoor and her husband late Sh. Pramod Kapoor, induced them to hand over a sum of Rs.5 Lakh to him promising them that on payment of that amount he would hand over key of the flat to them for possession. Accordingly, a sum of Rs.5 Lakh was given to the accused, on that he also executed a stamp paper and handed over key alongwith possession of the flat bearing no.C-13, New Moti Nagar to PW2 Smt. Charu Kapoor and her husband Late Sh. Pramod Kapoor without any authority. After taking the key Smt. Charu Kapoor and Late Sh. Pramod Kapoor went to the flat, started cleaning it. Later on after reasonable time when key was not returned to Smt. Sudershan Kumari and her husband Sh. Iqbal Singh, they went to the flat and found Smt. Charu Kapoor and Sh. Pramod Kapoor at the flat, only after that the design of the accused was disclosed. Later on accused was arrested and sum of Rs.1,50,000/- was recovered from him. Accordingly, after the investigation, police filed the present charge sheet against the accused Rajkumar Aggarwal.
FIR No. 568/2004, PS Moti Nagar Page 2/18
2. Complete set of copies were supplied to the accused. After hearing arguments, charge was framed against the accused for trial of offence U/s 420 IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 ASI Goverdhan Oraon was the Duty Officer, who exhibited on record carbon copy of FIR as Ex.PW1/A (OSR) and endorsement on the rukka as Ex.PW1/B.
5. PW2 Ms. Charu Kapoor stated that accused was a property dealer running his business in the name and style "Hari Kishan Property". On 04.09.2004 at the office of accused an agreement to sell (for a total consideration amount of Rs.11,70,000/-) in respect of flat no.C-13, New Moti Nagar was executed between Iqbal Singh & Sudershan Kumari (seller) on one side and this witness (purchaser) on the other side. On that day agreement to sell was executed and a sum of Rs.1 Lakh was paid by this witness to Sh. Iqbal Singh and Sudershan Kumari. Later on, on 15.10.2004 accused came to the house of this witness, took a sum of Rs.5 Lakh, also executed a document in that respect and handed over the keys of the flat to the complainant. Later on when this witness and her husband went to the said flat, owner of the same Iqbal Singh came there and stated that he has not received the payment and has not vacated the possession in favour of this witness. It is stated by this witness that she asked the accused to return her money but accused did not return the same. This witness exhibited the receipt of token money as Ex.PA, stamp paper regarding payment of Rs.5 Lakh as Ex.PW2/A bearing signature of accused at point C, the complaint made to the police as Ex.PW2/B. In her cross-examination, it is stated by her that she has gone to the office of Shri Krishna Property Dealer, however, she could not tell the address (postal) of the Shri Krishna Property Dealer. It is stated by her that she paid the money to the FIR No. 568/2004, PS Moti Nagar Page 3/18 dealer i.e. the accused. It is stated by her that she was not aware if Krishna Property Dealer used to be run by two partners. It is stated by her that she only knows that accused was the owner of Shri Krishna Property Dealer. However, it is further stated that later on she came to know that other partner of Shri Krishna Property Dealer was one Sh. Hemant Arora. It is stated by this witness that she paid a sum of Rs.4 Lakh on 04.11.2004 to accused Rajkumar. It is stated that she cannot produce the original of Ex.PA as her husband has expired. It is stated that on 04.11.2004 when she paid Rs.4 Lakh accused procured one stamp paper and did some writing work on the same. It is stated by her that at the time of agreement of Rs.4 Lakh she was not at the spot, only her husband and accused were there. It is stated that the sum of Rs.4 Lakh was paid in her presence as well as in presence of her brother-in- law Sushil Kumar. It is stated by her that agreement in respect of Rs.4 Lakh was prepared at their home and the same was a typed one. It is stated that on that day owner of the property Iqbal Singh has not visited their house. It is stated by her that at the time of payment of Rs.4 Lakh accused Rajkumar handed over keys of the house to them for cleaning the premises. It is stated that the said agreement was not transferred into a sale. She denied the suggestion that document Ex.PA is a forged document or that they have not paid any money to accused Rajkumar Aggarwal. She denied the suggestion that her husband procured the key from Iqbal Singh on the pretext of showing the house to some relatives.
6. PW3 Sh. Iqbal Singh stated that flat no.C-13, New Moti Nagar was in the name of his wife Smt. Sudershan Kumari. It is stated that he had entered into an agreement to sell on behalf of his wife in respect of the above stated flat with PW2 Charu Kapoor for a total consideration amount of more that Rs.11,50,000/-. It is stated that the agreement to sell was executed in the presence of accused being property dealer and a sum of Rs.1 Lakh was given to this witness by Charu Kapoor. It is further stated by him that later on during Navratras in 2004, this witness FIR No. 568/2004, PS Moti Nagar Page 4/18 was busy in attending Nirankari Sant Samagam and his wife was alone at home, the accused visited his house in his absence and demanded keys of the house from his wife on the pretext of performing some pooja. It is stated that wife of this witness refused to hand over the keys but on persisting requests of the accused wife of this witness called this witness telephonically and asked his permission, since accused had promised to return the key after pooja, hence this witness directed his wife to hand over the keys to the accused. When accused did not return the key for 3 days this witness went to the flat and found that PW2 Charu Kapoor had shifted to the flat with her family and articles. On enquiry, this witness found that accused had taken a sum of Rs.5 Lakh from Charu Kapoor, however, never gave that amount to this witness or his wife. It is stated by this witness that he returned the bayana amount of Rs.1 Lakh to Charu Kapoor and cancelled the agreement to sell. In his cross-examination it is stated by him that accused Rajkumar is the owner of the property dealer shop. It is stated by this witness that he does not know who were the proprietor of Hari Krishan Properties, however, he met accused in the said shop and afterward accused came to his house. He denied the suggestion that deal for the sale of the flat took place at the house of Sh. Nashila Ji, it is explained by him that the deal had taken place at the shop of property dealer, however, the payment of bayana amount was made at the house of Sh. Nashila Ji. This witness could not tell if the key of the flat were handed over by his wife to the accused at his house or were sent to the office of the accused through their son. He denied the suggestion that he delivered keys of the house to Late Sh. Pramod Kapoor for the purpose of ascertaining the estimate of cleaning and whitewashing of the said flat or to show the same to the mother of Sh. Pramod Kapoor. It is accepted by him that possession of the flat was returned to him after payment of Rs.1 Lakh.
7. PW4 Smt. Sudershan Kumari also deposed on the same lines as PW3 Sh. Iqbal Singh. It is stated by her that during Navratras accused FIR No. 568/2004, PS Moti Nagar Page 5/18 Rajkumar Aggarwal visited her house and demanded the keys of the flat on the pretext of performing some pooja. She refused to hand over the keys but on persistent requests of the accused she called her husband to seek directions. It is stated that accused had promised to return the keys after performing pooja. It is stated that on direction of her husband she directed her son Kiran Mohan to hand over the keys to the accused at his shop. Accordingly, her son went to the shop of the accused and returned after handing over the keys to the accused. In her cross- examination it is stated by her that bayana amount was given to them by PW2 Charu Kapoor at the residence of Sh. Nashila Ji. It is stated by her that the bayana amount of Rs.1 Lakh was taken by her husband. It is stated that the keys of the flat were not handed over on that day (date of executing bayana agreement), she voluntarily stated that same were handed over later on.
8. PW5 Ct. Akhilesh stated that on 19.10.2004 he visited hometown of accused at Jhajjar alongwith IO in search of accused but accused could not be found there. Later on accused was arrested from his office in New Moti Nagar. From his office, accused was brought to the police station. Personal search of accused was conducted vide memo Ex.PW5/A, accused was arrested vide memo Ex.PW5/B. It is stated that accused handed over a stamp paper of Rs.50/- having record of certain transactions, the same is Ex.PW2/A. In his cross-examination by Ld. APP for State, it is stated by this witness that complainant Pramod Kapoor was present at the time of arrest of the accused. He exhibited the seizure memo of stamp paper as Ex.PW2/D.
9. PW6 SI Bhupesh Kumar stated that on 17.10.2004 complaint made by Sh. Pramod Kapoor was marked to him for enquiry and investigation. The complaint is Ex.PW2/B. It is stated that on this complaint, he written an application to DCP concerned for registration of the case, he exhibited his request as Ex.PW6/A. On receiving approval he made endorsement on the complaint of Sh. Pramod Kapoor, which is Ex.PW6/B and handed over the same to Duty Officer for registration of FIR No. 568/2004, PS Moti Nagar Page 6/18 case. It is stated that after registration, FIR was marked to SI Jitender Kumar. In his cross-examination, he denied the suggestion that he had arrested accused Rajkumar Aggarwal on 16.10.2004. He also denied if he had obtained signatures of accused on rent agreement on behalf of Hemant Arora, the other partner of Hare Krishan Properties. He also denied the suggestion that he obtained the signatures of the accused on the receipt amounting to Rs.5 Lakh regarding the deal of C-13, New Moti Nagar, Delhi.
10. PW7 Inspector Jitender Kumar stated that on 19.10.2004 FIR of the present case was marked to him. It is stated that accused was arrested on the same day in presence of the complainant. It is stated that accused made disclosure statement regarding duping the complainants of Rs.5 Lakh. Disclosure statement of accused is Ex.PW7/A. Out of the said amount accused got recovered a sum of Rs.1.5 Lakh from his house in Jhajjar, Haryana. Seizure memo of the currency notes is Ex.PW7/B. It is stated by this witness that he had taken specimen handwriting of the accused, the same are collectively Ex.PW7/C. It is stated that he sent the documents to FSL for comparison and on receipt of the result filed the same in the Court. He also exhibited seizure memo of the original agreement as Ex.PW5/D, agreement is Ex.PW2/A. The currency notes recovered at the instance of the accused could not be brought into the Court as the superdar/complainant Sh. Pramod Kapoor expired prior to recording of his evidence in the Court. In his cross-examination, it is denied by this witness that accused was arrested on 16.10.2004 or was kept in police station till 19.10.2004. It is denied by him that accused was kept in illegal custody and during that custody his signatures were obtained on blank papers, which were utilized against him. It is specifically denied by this witness that signatures of the accused were obtained on affidavit of Rs.50/- dated 15.10.2004 in back date on 16.10.2004. This witness denied the suggestion that accused was beaten up in police lock-up to obtain the signature. It is stated by him that other partner of Hari Krishan Property FIR No. 568/2004, PS Moti Nagar Page 7/18 Dealer namely Hemant Arora was also interrogated in the present case, however, nothing came against said Hemant Arora. This witness could not tell registration number of the vehicle whereby accused was taken to Jhajjar on 19.10.2004 and 20.10.2004. It is stated by him that no local police official of Jhajjar was informed about the present matter. It is stated that at the time of recovery of money from the house of the accused, his 2-3 family members were present there, however, they were not asked to become witness of the proceedings. It is stated that none of the neighbour of the accused were called to be witness of the matter. He denied the suggestion that nothing was recovered from the accused that is why photographs of the currency notes are not on record.
11. There is a FSL report, which is exhibited as X-1, which shows that alleged handwriting and signatures of accused on Ex.PW2/A are in fact written by accused. The same is perse admitted on record as per Section 293 Cr.P.C.
12. No other witness was examined and PE was closed.
THE DEFENCE :
13. Statement of accused U/s 313 of Cr.P.C. was recorded, in which all the incriminating evidences were put to accused. Accused stated that Ex.PW2/A is in his handwriting, he was apprehended by the police officials on 16.10.2016, he was mercilessly beaten by the police officials. They forced him to write the document Ex.PW2/A and also made him sign on the same. It is further stated by him that he has been falsely implicated in the present matter. It is stated by him that he used to work with one Hemant Arora, who was running the shop in the name and style "Hare Krishna Property Dealer". PW2 Charu Kapoor used to visit his employer Hemant Arora, husband of Charu Kapoor namely Pramod Kapoor asked him if his wife visits Hemant Arora, he refused to say anything. On that Pramod Kapoor beaten him on the road and also threatened him to implicate in false case. Thereby, they have falsely FIR No. 568/2004, PS Moti Nagar Page 8/18 implicated him in the present case. Accused opted not to lead defence evidence.
THE ARGUMENTS:
14. Ld. APP for State has argued that witnesses have supported the prosecution and their testimonies have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 420 IPC are proved beyond reasonable doubt as accused had deliberately taken a sum of Rs.5 Lakh from complainant Sh. Pramod Kapoor on the pretext of handing over the possession of the flat to them, further he had also taken keys of the flat from owner of the falt Smt. Sudershan Kumari W/o Sh. Iqbal Singh on the pretext of handing over the same to Pramod Kapoor for the purpose of pooja.
15. On the other hand, Ld. counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued that main complainant Sh. Pramod Kapoor could not be examined before the Court. PW2 Smt. Charu Kapoor gave contradictory statement as in her cross-examination, she stated that she paid a sum of Rs.4 Lakh on 04.11.2004 to the accused, she also contradicted regarding her presence at the time of payment of that amount, further she stated that the agreement was typed one, which is not the case of prosecution. It is further stated that PW4 Sudershan Kumari and her husband Sh. Iqbal Singh did not suffer any loss as on return of the bayana amount of Rs.1 Lakh, possession of the flat was restored to them. It is further argued that there are a number of contradictions in the testimony of police witnesses. Further recovery of the sum of Rs.1,50,000/- from the house of accused is under cloud. It is further argued that non-production of the currency notes will adversely affect the case of the prosecution. It is argued that accused has been falsely implicated as PW2 Smt. Charu Kapoor had illicit relation with Sh. Hemant Arora, owner of Hari Krishan Property Dealer, complainant Sh. Pramod Kapoor wanted the accused to confirm the same, on his refusal he has been falsely implicated in the FIR No. 568/2004, PS Moti Nagar Page 9/18 present case. It is prayed that accused deserves acquittal in the present case.
THE FINDINGS:
Offence U/s 420 IPC:
16. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
17. In order to bring home guilt of the accused, the prosecution was required to prove following ingredients :-
a). The accused cheated and thereby dishonestly induced the complainant Late Sh. Pramod Kapoor and Smt. Charu Kapoor (PW2) to part with a sum of Rs.5 Lakh on the pretext of handing over possession of flat no. C-13, New Moti Nagar, further he cheated owner of the property Smt. Sudershan Kumari to part with key of the flat on the pretext that the same would be given to Sh. Pramod Kapoor and Smt. Charu Kapoor for the purpose of performing pooja but in fact he had given the vacant possession of the flat to Sh. Pramod Kapoor and Smt. Charu Kapoor without having any right or permission from Smt. Sudershan Kumari to do so.
b). Cheating requires:-
I). Deception of any person.
II). (a). Fraudulently and dishonestly inducing that person.
i). To deliver any property to any person; or
ii). To consent that any person shall retain any property; or
(b). Intentionally inducing 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 likely to cause damage or harm to that person in body, mind, reputation or property.
18. To hold a person guilty of cheating, it is necessary to show that he FIR No. 568/2004, PS Moti Nagar Page 10/18 had fraudulent and dishonest intention at the time of making the promise/inducement. From change in circumstances subsequently a culpable intention right at the beginning, that is, when he made the promise/inducement cannot be presumed. Thus in the present case prosecution has to show that at the time of taking the money from the complainant Sh. Pramod Kapoor & Smt. Charu Kapoor and taking the key from Smt. Sudershan Kumari, the accused was acting fraudulently/dishonestly.
19. In the present case, complainant Sh. Pramod Kapoor expired prior to recording of his evidence before the Court. However, PW2 Smt. Charu Kapoor W/o Late Sh. Pramod Kapoor categorically deposed before the Court about the execution of agreement to sell/bayana raseed between Smt. Sudershan Kumari W/o Sh. Iqbal Singh and herself dated 04.09.2004, wherein present accused was a witness and property dealer. She also stated that the entire consideration amount was Rs.11,70,000/- and out of which Rs.1 Lakh was given at the time of execution of agreement to sell/ bayana raseed. It is further stated by her that on 15.10.2004, accused Rajkumar Aggarwal took Rs.5 Lakh from her home and also executed a stamp paper signed by accused as well as late husband of PW2. It is stated that accused handed over key of the house for taking possession of the same to them. Thereafter, they went to the flat, started cleaning the same, in the meanwhile husband of the owner of the flat Sh. Iqbal Singh came there and apprised them that possession has not been parted by them. They apprised Sh. Iqbal Singh that they have given a sum of Rs.5 Lakh to accused Rajkumar Aggarwal for taking the possession. On which Sh. Iqbal Singh stated that any such sum of Rs.5 Lakh has not been handed over to him or his wife by the accused. The testimony of PW2 Smt. Charu Kapoor also found support from the testimony of PW3 Sh. Iqbal Singh and PW4 Smt. Sudershan Kumari as both of them stated about execution of agreement to sell/bayana raseed, involvement of the accused in the same as witness as well as property dealer. It is categorically stated by FIR No. 568/2004, PS Moti Nagar Page 11/18 PW4 Smt. Sudershan Kumari that during Navratra accused came to her house and asked her to hand over key of flat to him as the same was required by Sh. Pramod Kapoor and Smt. Charu Kapoor to conduct pooja, initially she refused to hand over the keys but on persistent requests of the accused and on the assurance that key would be returned after performing pooja, she took instructions from her husband on phone, who was busy in Nirankari Samagam and handed over key of the flat to the accused by sending the key to the office of the accused through her son Sh. Kiran Mohan. It is further stated by PW4 as well as PW3 that later on when key was not returned they went to the flat and found Sh. Pramod Kapoor & Smt. Charu Kapoor inside the same, on asking they apprised that they have made a payment of Rs.5 Lakh to the accused for taking the possession of the property. It is stated by PW3 and PW4 that the sum of Rs.5 Lakh was not handed over by accused to them. Later on, PW3 and PW4 taken back the possession of the flat from PW2 and her husband after returning the earnest money of Rs.1 Lakh.
20. There is a hand written stamp paper of Rs.50/- on record, which is having signatures of PW2 Smt. Charu Kapoor as well as her husband and one Sushil Kumar as witness, the same is executed by accused Rajkumar. It is written in the stamp paper, which is in the handwriting of the accused as well as bearing his signature as proved by FSL report Ex.X-1, "I Rajkumar Aggarwal S/o Sh. Kashmiri Lal R/o C-19, N Moti Nagar, Delhi, do the work of property dealer and have office at C-19, N Moti Nagar, Delhi. I got a sum (bayana) of Rs.1 Lakh handed over by your wife Charu Kapoor R/o B-1/180, N Moti Nagar, Delhi to Smt. Sudershan Kumari W/o Iqbal Singh R/o 545/70, N Moti Nagar, Delhi in respect to purchase property no.C-13, N Moti Nagar, Delhi and today on 15.10.2004 you have handed over a sum of Rs.5 Lakh to me and I have handed over keys of H.No.C-13, New Moti Nagar to you for the purpose of whitewash". The document is bearing signatures of the accused at the bottom. Presence of this document makes it clear that accused had FIR No. 568/2004, PS Moti Nagar Page 12/18 received a sum of Rs.5 Lakh from the complainant i.e. Late Sh. Pramod Kapoor in order to hand over the possession of flat no.C-13, New Moti Nagar for the purpose of whitewash. The only defence taken by the accused against this document is that the same was got prepared by the police under threat/violence. It is to be noted that despite opportunity accused did not lead defence evidence to prove his defence that this document was obtained under threat/violence. The defence that the document Ex.PW2/A was obtained by the police under threat/violence was not taken by the accused at the first instance i.e. during the cross-examination of PW2 Ms. Charu Kapoor. It is for the first time in the year 2013 i.e. 9 years after filing of the case this defence was first time take by the accused in the cross-examination of PW6 SI Bhupesh Kumar. Further, accused has not shown/ produced before the Court any complaint whatsoever which might have been made by him to the higher police officials against the act of the police officials in obtaining/preparing the said document from him under threat/violence. Thus, this bald defence of the accused is of no value in the eyes of law.
21. In the present case sum of Rs.1,50,000/- recovered from the house of the accused was released on superdari as per the order of this Court to the complainant Late Sh. Pramod Kapoor, however, due to demise of complainant Sh. Pramod Kapoor prior to recording of his evidence before the Court the recovered currency notes could not be produced before the Court. The defence of the accused that non-production of the currency notes shows that nothing was recovered from him and the same is fatal for the case of prosecution is not tenable as the accused in the present case is charged with the commission of offence punishable U/s 420 IPC and the offence punishable U/s 420 IPC does not require recovery of the articles handed over after cheating. The offence of cheating is completed by parting with the property under the fraudulent inducement made by the accused. For the fulfillment of ingredients of section 420 IPC it is not required that the property has to be recovered from the accused. As soon as the property is handed over FIR No. 568/2004, PS Moti Nagar Page 13/18 the offence stands committed. It is not essential that the property handed over under inducement has to be recovered from the accused.
22. The defence raised by Ld. counsel for the accused that non-joining of independent witness at the time of recovery of the alleged sum of Rs.1,50,000/- from the house of the accused would falsify the story of recovery is also not material as it is a known fact that generally the public persons do not come forward to be a part of any criminal investigation. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
23. Hence, adverse inference cannot be drawn on account of failure of the police officials to join independent public persons at the time of recovery of money. Furthermore, recovery of money is not a sine qua non to prove the commission of offence punishable U/s 420 IPC.
24. The argument adduced on behalf of the accused that PW2 Charu Kapoor has taken inconsistence stands in her examination-in-chief and cross-examination is correct to an extent as in her examination-in-chief recorded on 02.09.2008 PW2 Smt. Charu Kapoor fully supported the FIR No. 568/2004, PS Moti Nagar Page 14/18 case of prosecution, she categorically stated that accused came to her house on 15.10.2004, a sum of Rs.5 Lakh was handed over to him, he also executed a stamp paper (Ex.PW2/A) countersigned by this witness and her husband as well, it is also stated that accused handed over keys of the house to them for taking possession. However, in her cross- examination which was recorded only on 18.02.2011 i.e. after a laps of almost two and a half years from the date of examination-in-chief and six and a half years after the incident in question, she apparently got confused and stated that on 04.11.2004, she paid a sum of Rs.4 Lakh to the accused on that he handed over a typed agreement to her. It is again stated by her that she was not present when on 04.11.2004 agreement was prepared, however, it is stated that money was paid in her presence. It is to be noted that in the present case FIR was registered on 18.10.2004 itself, the accused was arrested on 19.10.2004, hence nothing was done on 04.11.2004, thus due to lapse of time PW2 Smt. Charu Kapoor could not tell the correct facts of the case, nonetheless these inconsistencies in her testimony will not benefit the accused as it is not the case of the accused that any payment was made on 04.11.2004 or not. Further, the testimony of PW2 Charu Kapoor recorded in her examination-in-chief found support from the testimony of PW3 and PW4, who have also stated that they came to know from PW2 Charu Kapoor and her husband that accused had taken a sum of Rs.5 Lakh from them to hand over the possession of the property. In State of UP Vs. Chetram AIR 1989 SC 1543, it was held by Hon'ble Supreme Court of India that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unrealabled. It is also established principal of law that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. Similarly, in the present case this Court can rely on the testimony of PW2 Smt. Charu Kapoor recorded in her examination-in-chief, while ignoring the inconsistence/confused testimony given by her in her cross- examination.
FIR No. 568/2004, PS Moti Nagar Page 15/18
25. It is to be noted that in the present case accused has committed the offence of cheating not only by inducing the complainant late Sh. Pramod Kapoor and PW2 Smt. Charu Kapoor to hand over a sum of Rs.5 Lakh to them but also by fraudulently inducing PW4 Smt. Sudershan Kumari to hand over the keys of the flat for the purpose of conducting pooja in Navratra while he misused the same by handing over the keys to Sh. Pramod Kapoor and Smt. Charu Kapoor as if he had given possession of the property to them. By fraudulently deceiving PW4 Smt. Sudershan Kumari and PW3 Sh. Iqbal Singh, accused induced them to deliver key of the flat to him on the pretext that after performing pooja by PW2 Smt. Charu Kapoor and Late Sh. Pramod Kapoor key would be returned to them, in absence of said inducement/deception played by the accused, PW3 and PW4 would not have parted with the key, this delivery of key caused damage to PW3 and PW4 in mind and property as possession of the flat was handed over by the accused to Late Sh. Pramod Kapoor and PW2 Smt. Charu Kapoor. Thus, ingredients of Section 420 IPC are fulfilled in the present case in respect of taking the key/keys of the flat from PW3 and PW4. The defence that no loss was caused to PW3 and PW4 as ultimately on return of the earnest money, possession of their flat was returned to them is not technically sound as even a temporary loss/damage is sufficient to fulfill the ingredients of commission of offence punishable U/s 420 IPC.
26. Thus, it is proved that accused has dishonestly induced PW2 Smt. Charu Kapoor and her husband Late Sh. Pramod Kapoor to hand over a sum of Rs.5 Lakh to him on the pretext of handing over possession of the flat bearing no.C-13, New Moti Nagar while he was not authorized to hand over such possession or to take money for the same from them. Apart from that he also dishonestly induced PW3 and PW4 to hand over keys of the flat to him on the pretext that same would be returned after performance of pooja in the flat by PW2 and Late Sh. Pramod Kapoor while in fact he misused the keys by handing over the same to PW2 FIR No. 568/2004, PS Moti Nagar Page 16/18 and Late Sh. Pramod Kapoor as if he has given possession of the flat to them as per the authority of PW3 and PW4. Thus, accused has committed the offence of cheating with both the parties i.e. PW2 and Late Sh. Pramod Kapoor on the one side and PW3 and PW4 on the other side. Thus, all the ingredients of offence punishable U/s 420 IPC are proved in the present case. The testimony of PW2, PW3 and PW4 prove the inducement made by the accused, delivery of property i.e. sum of Rs.5 Lakh by PW2 & Late Sh. Pramod Kapoor and key of the flat by PW3 & PW4 resulting into wrongful loss to PW2, PW3, PW4 and Late Sh. Pramod Kapoor.
27. The intention of the accused was fraudulent since the very beginning as on one hand he took key of the flat on the pretext of performing pooja and on the other hand he handed over the same to PW2 and Late Sh. Pramod Kapoor after taking the sum of Rs.5 Lakh without authority.
28. The accused has taken shifting defences in the matter as nowhere in the cross-examination of PW2 Smt. Charu Kapoor he put any suggestion to her that she was having illicit relation with one Hemant Arora, owner of Hare Krishna Property while in his statement U/s 313 Cr.P.C he raised this defence that due to illicit relation between PW2 Smt. Charu Kapoor and owner of Hare Krishna Property Hemant Arora the present accused being an employee of Hemant Arora has been falsely implicated in the present case. Apparently this defence is an afterthought and a lie which cannot be accepted.
29. The testimonies of PW2, PW3 and PW4 are implicating the accused. The testimonies of the prosecution witnesses are consistent and corroborating each other on all material particulars. Therefore, apart from certain minor inconsistencies, which are likely in the evidence of a natural witness and due to lapse of time since the date of incident and examination of witnesses in Court, the testimonies of PWs are coherent and consistent and are implicating the accused.
30. Thus, from the above stated facts and discussions, it has been FIR No. 568/2004, PS Moti Nagar Page 17/18 proved beyond reasonable doubt that accused has committed an offence U/s 420 IPC. Thus, in the considered opinion of this court, all the ingredients of Section 420 IPC are satisfied. As such accused Rajkumar Aggarwal is convicted for the offence of cheating punishable U/s 420 IPC.
31. Copy of the judgment be given to him free of cost.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 10.11.2016 MM-04 (WEST)/DELHI
Containing 18 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR)
MM-04 (WEST)/DELHI
FIR No. 568/2004, PS Moti Nagar Page 18/18