Delhi District Court
State vs . : Sanjeev Kumar Khanna on 1 August, 2018
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 524/03
P.S. : Kotla Mubarakpur
U/s : 420/468/471 IPC
State Vs. : Sanjeev Kumar Khanna
a. The Sl. No. of the case : 86061/16
b. The date of commission of offence : In the year 2001
c. The date of Institution of the case : 27.01.2005
d. The name of complainant : Mr. M. R. Sharma [Deputy
Director /LAB (H), DDA]
e. The name of accused : Sanjeev Kumar Khanna s/o
Late Sh. Sarabjeet Kumar
Khanna R/o 1/9C, Pocket B
Phase - III, MIG Flat, Ashok
Vihar New Delhi
f. The offence complained of : 420/468/471 IPC
g. Charges framed : 420 IPC
h. The plea of accused : Pleaded not guilty
i. Arguments heard on : 23.07.2018
j. The final order qua accused : Acquitted
k. The date of judgment : 01.08.2018
JUDGMENT
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 1 of 26
1. The present case herein is premised on the allegation that one accused Sanjeev Kumar Khanna had defrauded DDA. It is alleged that in the year 2001, at DDA Vikas Sadan, New Delhi he dishonestly induced the officials of DDA to transfer Flat no. 9C, Block 1, Ashok Vihar Phase - III, Delhi - 52 ['the said property'] in his name, by way of mutation, by filing affidavits dated 09.03.2000 and 08.11.2000, and undertaking and indemnity bonds dated 08.11.2000 claiming himself as the only legal heir of his grandfather namely Sh. Maharaj Krishan Khanna. As per the allegations, he concealed the fact of survival of two other legal heirs i.e. his sisters namely Mrs. Dimple Vaid and Mrs. Rita Kapoor from DDA and obtained mutation of the aforesaid flat in his favour vide order dated 15.03.2001. Thus, it is alleged that he committed offence made punishable u/s. 420/468/471 IPC.
2. It may be noted that initially on the aforesaid allegations, the FIR was filed on the written complaint of one M. R. Sharma who was posted as Deputy Director/LAB(H), DDA under section 420/468/471 IPC. This written complaint is dated 29.09.2003 and the FIR was registered on 29.12.2003. The IO, after completion of investigation, filed charge sheet before this court under the aforesaid sections for which cognizance was thereafter taken.
3. After appearance of the accused, arguments on the point of charge were heard and thereafter sections 468/471 IPC were dropped against the accused. Charge for offence made punishable u/s. 420 IPC only FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 2 of 26 was framed upon the accused to which he pleaded not guilty and claimed trial. Thus, the accused herein has been tried for offence made punishable u/s. 420 IPC only.
4. Prosecution has examined the following witnesses in support of its case:
Sr. Witness Nature of deposition / documents No. Description produced / proved
1. PW1 Mrs. This witness is the sister of the accused. She Dimple Vaid deposed that in the year 1981 one flat as described above was allotted in the name of their father namely Sh. Sarvjeet Kumar Khanna.
As per the said witness, the said flat thereafter was transferred by their father in the name of their grandfather namely Maharaj Krishan Khanna.
This witness further deposed that after the death of her father, mother and grandfather, she had moved an application before DDA to get to know about the status of the said flat. In reply of the said application, she came to know that the said flat was mutated in the name of the accused (her brother) for which he filed an indemnity bond, undertaking, affidavit showing that the accused was the only legal heir of the said property.
Thereafter, as per her, DDA issued a show cause notice to the accused and FIR was got registered in the year 2003, against the accused.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 3 of 26 She further deposed that she herself and her sister namely Rita Kapoor are also the legal heirs of their grandfather and thus have a share in the abovementioned flat. She claimed that she also filed a civil suit qua the said flat which was decided in her favour.
Accused who was present in the court was correctly identified by the said witness as the person responsible for the said acts.
2. PW2 Sh. Documents produced/proved:
Ramesh Chandra, A. Letter bearing no. 15083 dated 30.12.2003 Assistant issued by M. R. Sharma, Director (LAB) Director Housing Ex.PW2/A. (LAB) Housing at B. Affidavit dated 09.03.2001 Ex.PW2/B. DDA Vikas C. Affidavit dated 08.11.2000 Ex.PW2/C. Sadan, New D. Undertaking dated 08.11.2000 Delhi Ex.PW2/D (colly.).
E. Indemnity Bond dated 08.11.2000 Ex.PW2/E (colly.).
[These are the documents in which the accused herein claim to be the sole legal heir of his grandfather Maharaj Khanna.] F. Seizure memo of aforesaid documents Ex.PW2/F. This witness had handed over the aforesaid documents i.e. Ex.PW2/A to Ex.PW2/E to the police.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 4 of 26
3. PW3 Sh. Documents produced/proved:
Bhakti Pad Mishra, A. Detailed opinion Ex.PW3/A Assistant B. Reasons of the opinion Ex.PW3/B Government C. Letter no. DXC60/2004/995 dated Examiner of 12.03.2004 forwarding the detail opinion, the questioned reasons of opinion by Sh. Narinder Singh documents Ex.PW3/C D. Signature specimen sheets of the accused from S1 to S6 which were exhibited as Ex.PW3/D1 to Ex.PW3/D6 E. Personal search memo of accused Ex.PW3/E1 with signatures of accused at point A1.
F. Arrest memo of accused Ex.PW3/E2 with signatures of accused at point A2.
This is the witness who had examined the admitted signatures of the accused as contained on Ex.PW3/D1 to Ex.PW3/D6 and Ex.PW3/E1 and Ex.PW3/E2 [signatures S1 to S6; and A1 to A2] with the questioned signatures Q1 to Q8 on Ex.PW2/B to Ex.PW2/E (colly.).
As per this witness, the specimen signatures of the accused matched with the questioned signatures of the accused.
In other words, as per this witness, accused herein had actually submitted Ex.PW2/B to Ex.PW2/E (colly.) with DDA for mutation of the said property in his favour claiming therein as the sole legal heir of Maharaj Khanna.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 5 of 26
4. PW4 Mrs. She is the other sister of the accused herein.
Rita Kapoor She deposed that it was agreed between her other sister PW1 Dimple Vaid and accused herein that the accused shall pay a sum of Rs.4 lakhs to her out of which she had obtained Rs.50,000/ from the accused in lieu of the said property. She claimed that this amount of Rs.50,000/ has not been paid by the accused to PW1 in her presence.
During the examination in chief of the witness, Ld. APP for State took permission to crossexamine the said witness as she was resiling from her previous statement.
Thereafter this witness claimed that the property in question was allowed to be mutated in favour of the accused herein by PW1 and she herself. She further claimed that the accused had not committed any fraud or illegality against her by getting the aforesaid property mutated in her favour.
5. PW5 Sh. He is a summoned witness.
Pramod
Dayal, This witness had brought the following
Assistant documents :
Director,
DDA, Vikas A. Copy of cancellation of mutation dated
Sadan, New 23.05.2001 of Flat no. 1/9C, Ashok Vihar,
Delhi. Phase - III, under MIG Category Ex.PW5/A
(OSR).
B. Copy of mutation letter dated 15.03.2001 of the said flat Ex.PW5/B (OSR).
C. Photocopy of reply given by the accused to DDA Mark PW5/C. FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 6 of 26 This witness was summoned to bring on record the original record qua cancellation of mutation of the aforesaid property.
It may be noted that in the crossexamination of the said witness, a document Mark PW5/C (running into 02 pages) dated 24.04.2001 was shown to this witness.
After seeing the same, this witness stated that Mark PW5/C was the reply which was given by the accused to DDA in response of letter dated 23.04.2001 written by DDA to the accused. It may be noted that as per record letter dated 23.04.2001 was produced by PW1 Dimple Vaid (photocopy) during her cross examination. This letter is a show cause notice issued by DDA to the accused herein calling an explanation from the accused asking him to explain why mutation done in his favour on 15.03.2001 should not be cancelled.
As per testimony of PW5, the letter dated 23.04.2001 was indeed issued by DDA as a show cause notice to the accused. This show cause notice was issued on the complaint of PW1 / Dimple Vaid.
Now, in response to the said show cause notice, accused appears to have written a letter to DDA. The said letter was marked as Mark PW5/C which was admitted by PW5 to have been indeed written to DDA.
As per Mark PW5/C which is dated 24.04.2001, accused claimed that he was not aware that married daughters are legal heirs of FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 7 of 26 a given person and therefore he had claimed in his documents given to DDA (at the time of mutation) that he is the only legal heir of his grandfather. Vide said letter, he prayed to DDA that his mutation may be cancelled.
With the said letter he had enclosed an affidavit dated 24.04.2001 disclosing the names of Reeta Kapoor and Dimple Vaid as the other legal heirs of his grandfather and had also sent the original mutation letter to DDA for necessary action.
6. PW6 Sh. B. S. Asiwal, This witness had come to prove that the letter Retired Joint of cancellation of mutation of Flat no. 1/9C, Director, Ashok Vihar, Phase - III, under MIG DDA, Vikas Category already exhibited as Ex.PW5/A Sadan, New (OSR). He had signed the said letter of Delhi cancellation vide file no. F52(76)81/LAB/H.
7. PW7 Sh. This witness had handed over the original Dashrath, documents to the police PS Kotla Mubarakpur UDC, DDA, already exhibited as Ex.PW2/A to Ex.PW2/E Vikas Sadan, (colly.) which were duly seized by the police New Delhi vide Ex.PW2/F (colly.).
8. PW8 Retired He is the first IO of the case who carried out SI Ishwar investigation in this case. He had taken the Singh documents from DDA already exhibited as Ex.PW2/A to Ex.PW2/E and seized the said documents (Ex.PW2/A to Ex.PW2/E) vide seizure memo already Ex.PW2/F. He has also arrested and conducted personal search of accused vide memos already Ex.PW3/E2 and Ex.PW3/E1 respectively.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 8 of 26 Documents produced/proved:
A. Disclosure statement of accused Ex.PW8/A. He got transferred from this case and handed over the present case file to MHC(R).
9. PW9 HC This witness deposed that on 02.04.2003 IO / Rajeev SI Aishvir Singh handed over him specimen Kumar signature and admitted signatures of the accused. He went to CFSL, Kolkata and had handed over the same to official of CFSL, Kolkata.
10. PW10 Inspector This witness had made endorsement on the Aishvir Singh complaint Ex.PW10/A directing registration of FIR.
Documents admitted by the accused:
A. FIR (without contents) Ex. PA2.
5. After closure of prosecution evidence, statement of accused was recorded u/s. 313 Cr.P.C in which he stated that he has been falsely implicated in the present case. He did not lead any defence evidence.
6. Hence matter reached the stage of final arguments.
7. Final arguments heard. Record perused.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 9 of 26
8. The case of the prosecution herein is that for the property bearing Flat no. 9C, Block 1, Ashok Vihar Phase - III, Delhi - 52, the actual allottee was one Sarvjeet Kumar Khanna. This property was transferred in DDA records in favour of Mr. Maharaj Krishan Khanna, who was father of Sarvjeet Kumar Khanna. As per record, it appears that Mr. Maharaj Krishan Khanna died intestate in 1986. Thus on the death of Maharaj Krishan Khanna, property devolved in favour of the original allottee namely Sarvjeet Kumar Khanna.
9. Now, Sarvjeet Kumar Khanna too died intestate in 1987. He left behind his wife and 03 children namely Sanjeev Khanna (accused herein), Dimple Vaid and Reeta Kapoor. The wife of Sarvjeet Kumar Khanna also died in the year 2000. From the record, there appears to be no dispute on the aforesaid facts. As already noted, it appears that Sarvjeet Kumar Khanna died intestate and thus, by operation of law, each of the aforesaid legal heirs, shall have an equal share in the aforesaid property.
10. Yet again, wife of Sarvjeet Kumar Khanna also appears to have died intestate and thus her share in the aforesaid property also devolved in equal share on her 03 children namely Sanjeev Khanna (accused herein), Dimple Vaid and Reeta Kapoor. Thus, each of the three grandchildren of Mr. Maharaj Khanna namely Sanjeev Khanna (accused herein), Dimple Vaid and Reeta had an equal share in the aforesaid property.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 10 of 26
11. Now, as per the prosecution, accused herein applied for mutation of the aforesaid property based on the following documents in 2001:
1. Affidavit dated 09.03.2001 Ex.PW2/B.
2. Affidavit dated 08.11.2000 Ex.PW2/C.
3. Undertaking dated 08.11.2000 Ex.PW2/D (colly.).
4. Indemnity Bond dated 08.11.2000 Ex.PW2/E (colly.).
12. In each of the aforesaid documents, the accused claimed himself to be the only legal heir of Maharaj Krishan Khanna (his grandfather) and did not disclose that there are 02 other legal heirs namely Dimple Vaid and Reeta Kapoor, who also had an equal share in the aforesaid property. Based on his representation, the aforesaid property was mutated in his favour by the DDA vide mutation letter dated 15.03.2001 Ex.PW5/B.
13. Thus, as per the prosecution, the accused dishonestly omitted to disclose the aforesaid fact to the DDA and intentionally caused the DDA to mutate the aforesaid property in his favour individually. Thus the accused herein, as per the prosecution, caused wrongful loss to DDA as well as to his sisters by causing the DDA to do which it would not have done, had the DDA known the correct facts, and thus committed offence made punishable u/s. 420 IPC.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 11 of 26
14. The prosecution has placed on record the original documents Ex.PW2/B to Ex.PW2/E (wherein the claim of sole heir) was made by the accused and the signatures thereupon [being marked as Q1 to Q8 by the FSL expert] matched with his admitted signatures S1 to S6 and A1 and A2 on Ex.PW3/D1 to Ex.PW3/D6 and Ex.PW3/E1 and Ex.PW3/E2 respectively. As per the testimony of PW3 (the FSL/handwriting expert) accused herein had signed the documents in question Ex.PW2/B to Ex.PW2/E. The opinion of the handwriting expert was duly proved in evidence as Ex.PW3/A and Ex.PW3/B. As per the said opinion, accused herein was the signatory of the documents in question Ex.PW2/B to Ex.PW2/E at points Q1 to Q8.
15. The said documents PW2/B to PW2/E were documents which were seized from DDA as the documents which were filed by the accused for having the property in question to be mutated in his favor. In other words, as per the prosecution's story, accused herein had applied for mutation of the aforesaid property in his favour and had filed the aforesaid documents Ex.PW2/B to Ex.PW2/E in support of his application. This fact is supported by the testimony of PW3 / handwriting expert to the effect that the accused herein was the signatory of the said documents and thus, by inference, had applied to DDA for mutation with the said documents supporting his claim as the sole legal heir of Maharaj Krishan Khanna based on which the said mutation was eventually done by DDA vide letter dated 15.03.2001.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 12 of 26
16. Thus, it has been shown on record that the accused here in, had in fact, represented himself to be the sole legal heir of his grandfather namely Maharaj Krishan Khanna in the year 2001. Now, two witnesses namely PW1 Dimple Vaid and PW4 Reeta Kapoor stepped in the witness box. The testimony of the said two witnesses show that they were also the legal heirs of their grandfather Maharaj Krishan Khanna. Thus patently, the claim of the accused qua him being the sole legal heir of Maharaj Khanna, made by him in Ex PW2/B to Ex.
PW2/E, was completely false.
17. This brings me to the contention raised by the counsel for the accused to the effect that even though the fact of the accused being the sole legal heir of Maharaj Khanna, made by him in Ex PW2/B to Ex. PW2/E, is false, the same by itself is not sufficient to convict the accused u/s. 420 IPC. It is argued by the counsel for the accused that for an offence u/s. 420 IPC, a dishonest intention or an intention to deceive at the inception of the act is a necessary ingredient. It is his case that before an accused can be convicted u/s. 420 IPC, the said accused must be shown to have possessed a dishonest mens rea at the very inception or the mens rea to deceive at the inception of the transaction in question. In other words, it is his argument that the accused must be shown to have had an intention to deceive a given person since very beginning when such a deception is played upon the person so deceived. He argues that in case where an accused was under some misconception of fact or of law and he does an act or FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 13 of 26 omission based on such misconception without knowing the correct fact or law, such an accused cannot be said to possess the necessary mens rea to deceive at the time when the act is done and thus he cannot be held guilty for an offence punishable u/s. 420 IPC in such a case.
18. To further his argument, as aforesaid, counsel for the accused drew my attention to the crossexamination of PW5 / Pramod Dayal, Assistant Director, DDA Vikas Sadan New Delhi. This witness was shown a photocopy of a document Mark PW5/C (running into 02 pages with one being the letter written by the accused to DDA and the other being an affidavit of the accused submitted with the said letter) during his crossexamination. It may be noted that no objection qua the mode and manner of proof qua this document Mark PW5/C [it being a photocopy] was taken by the Ld. APP for the State when the same was put to the aforesaid witness. After seeing the said document, this witness stated that Mark PW5/C was the reply which was given by the accused to DDA in response of letter dated 23.04.2001 written by DDA to the accused. Thus, even otherwise, once the said document was admitted to have been written to DDA by the accused [by the witness PW5; who is a DDA official appearing in his official capacity with the original record of the property in question], the document Mark PW5/C became admissible in evidence and thus can be read in evidence.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 14 of 26
19. It may be noted that as per record letter dated 23.04.2001 was produced by PW1 Dimple Vaid (photocopy) during her cross examination. This letter is a show cause notice issued by DDA to the accused herein calling an explanation from the accused asking him to explain why mutation done in his favour on 15.03.2001 should not be cancelled. As per testimony of PW5, letter dated 23.04.2001 was indeed issued by DDA as a show cause notice to the accused (see his cross examination wherein he voluntarily speaks of letter dated 23.04.2001 and deposes that the same was a show cause notice issued by DDA to the accused qua the property in question). This show cause notice was issued on the complaint of PW1 / Dimple Vaid. Now, in response to the said show cause notice, accused appears to have written a letter to DDA. The said letter was marked as Mark PW5/C which was admitted by PW5 to have been indeed written to DDA by the accused. As per Mark PW5/C which is dated 24.04.2001, accused claimed that he was not aware that married daughters are legal heirs of a given person and therefore he had claimed in his documents given to DDA (at the time of applying for mutation with DDA) that he is the only legal heir of his grandfather. Vide said letter, he prayed to DDA that mutation done in his favor may be cancelled. With the said letter he had enclosed an affidavit dated 24.04.2001 disclosing the names of Reeta Kapoor and Dimple Vaid as the other legal heirs of his grandfather and had also sent the original mutation letter to DDA for necessary action.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 15 of 26
20. It was argued by the counsel for the accused that the DDA had issued a show cause notice to the accused on 23.04.2001 Ex.PW1/DB. In response to the said show cause notice, accused replied through letter Mark PW5/C dated 24.04.2001, clearly stating that he was not aware that even married daughters are legal heirs of a deceased person. Accused himself requested for cancellation of mutation done in his favour and enclosed an affidavit dated 24.04.2001 and the original mutation letter for necessary action. The cancellation of the mutation was thereafter done on 23.05.2001. Thereafter, DDA wrote a letter to SHO concerned for registration of FIR dated 29.09.2003 Ex.PW10/A. On the basis of the said letter, the present FIR was registered only on 29.12.2003.
21. Based on the said facts, counsel for the accused argued that as soon as the show cause notice Ex.PW1/DB dated 23.04.2001 was sent to the accused, accused on the very next day i.e. 24.04.2001 Mark PW5/C had prayed for cancellation of his mutation and had truthfully stated qua his understanding of legal heirs. The letter from DDA, as per the counsel for the accused, for registration of FIR was written only on 29.09.2003 much after cancellation of mutation of the property in question vide letter dated 23.05.2001. Thus, counsel for the accused argued that the accused herein never had any dishonest intention or the necessary mens rea to deceive either the DDA or his sisters at the time of making the said application of mutation in his favor. He, thus prays, that the accused herein should be acquitted on this ground.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 16 of 26
22. It may be noted that another argument was raised by the counsel for the accused to the effect that mutation per se does not confer any right, title or interest in the property and as such there was no damage / injury to DDA which is a necessary prerequisite before an offence u/s. 420 IPC can be said to have been completed. Thus, as per the counsel for the accused, with DDA having not suffered any injury because of mutation done in favour of the accused, ingredients of section 420 IPC are incomplete and on this ground also, accused is entitled to acquittal.
23. As far as the question of injury is concerned, the argument of the counsel for the accused is misplaced. DDA was represented by the accused that he is the sole legal heir. Based on the said representation, the said property stood mutated in the sole name of the accused vide letter dated 15.03.2001. Such entry of the name of the accused as the sole holder of property in the records of DDA was an incorrect entry. Even if it is presumed, for the sake of argument, that the accused did not have a complete right, title or interest in the property in question based on the said entry, there cannot be any dispute that DDA would have treated the accused as the sole person responsible for the said property as per DDA records. In other words, accused caused the DDA to believe that he was the sole person who was entitled to deal with the said property and as such he ruled out his sisters namely Dimple Vaid and Reeta Kapoor from dealing with the said property in the manner they like. Thus, even if DDA did not suffer any injury, of FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 17 of 26 the manner to transfer any right, title or interest in favor of the accused (as claimed by the counsel for the accused) atleast the sisters of the accused were deprived of their rights in the property in question by the false representation of the accused made to DDA. In my opinion, the DDA by mutating the said property in favour of the accused had actually altered its position which it would not have done had the accused told the true facts. In my humble opinion, some injury by such mutation was actually suffered by DDA also because its records got entered with facts which were incorrect. The factum of accused being the sole heir of his grandfather is an incorrect fact which was wrongly entered into the records of DDA. Such wrong entry, in the records of DDA, is by itself an injury suffered by DDA within the meaning of section 420 IPC read with section 415 IPC and as such, it cannot be said that based on the acts of the accused herein, no injury was suffered by DDA. Even otherwise, there cannot be any dispute that such wrong entry into DDA records directly injured the rights of the sisters namely Dimple Vaid and Reeta Kapoor.
24. It was argued by the counsel for the accused that the deception of the accused should lead to injury to the person so deceived to attract section 420 IPC. He argued that thus any injury suffered by Dimple Vaid and Reeta Kapoor shall not make accused herein open to the charge of section 420 IPC. The said argument of the counsel for the accused becomes irrelevant in view of the finding of this court that DDA infact had suffered injury in this case owing to a wrong entry in FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 18 of 26 its records based on the acts of the accused herein. Thus, in my opinion, accused cannot be acquitted only on the argument that DDA did not suffer any injury in this case.
25. This brings me to the other contention of the counsel for the accused that the accused lacked necessary mens rea at the very inception of transaction i.e. when the accused applied for mutation to DDA, he did not intend to deceive either DDA or his sisters. Before proceeding further, I may take note of the settled position in law for an offence u/s. 420 IPC that for an offence under the aforesaid section, it has to be shown that the accused had a dishonest intention or intention to deceive from the very beginning of the commission of the acts/transaction in question. In this regard reference may be had to the judgment of Joseph Salvaraj A vs State Of Gujarat & Ors on 4 July, 2011 AIR 2011 SC 2258 decided by the Hon'ble Supreme Court of India wherein it has been held that :
"Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 19 of 26 does not reflect any such dishonest intention ab initio on the part of the appellant.
(emphasis supplied)
26. It is to be noted herein that intention to deceive, of a given person shall, mostly, if not always, has to be gathered from the surrounding circumstances of a given case and shall have to be deduced by the actions or omissions of a given person. Intention of a person is something which cannot be directly seen and shall have to be constructed from how the said person behaves or acts in a given circumstance to see what was the intention of a given person which guided his actions or omissions. These actions or omissions can be, in the point of time, right before the incident in question or during the said transaction or even right after the said transaction. Though, these actions or omissions cannot be the sole criteria of deducing the intention of a person behind them, they are, and shall, be a very useful and very important guide to understand as to why or for what reasons or with what intention a given person acted or omitted to act in a given circumstance.
27. This means to say, the acts and omissions of a given person before/during/or after a given incident are the prism through which the court shall peep into the mind of a given person to see what was the intention of that person behind the said actions or omissions. They shall be the guiding light which shall guide a court to see whether in a FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 20 of 26 given case the accused had the necessary mens rea or the guilty mind or in the case of 415 IPC 'the guilty intention' at the inception of the transaction or not. Thus, in a given case the surrounding circumstances and the acts and omission of the accused shall be necessary for the court to understand the reasons of the actions/omissions of the accused and see whether the accused in the facts of the case had the intention to deceive at the inception of the act or not (in case of 415/420 IPC).
28. Now, in the case in hand, the following facts are very relevant. As already noted, the mutation in favor of the accused herein took place vide letter dated 15.03.2001. Thereafter, on the complaint of Mrs. Dimple Vaid / PW1, the DDA had issued a show cause notice to the accused on 23.04.2001 Ex.PW1/DB. In response to the said show cause accused replied through letter Mark PW5/C dated 24.04.2001, clearly stating that he was not aware that even married daughters are legal heirs of a deceased person. Accused himself requested for cancellation of mutation done in his favour and enclosed an affidavit dated 24.04.2001 and the original mutation letter for necessary action. The cancellation of the mutation was thereafter done on 23.05.2001.
29. Thus, soon after the mutation on 15.03.2001, on the show cause notice issued to the accused on 23.04.2001, the accused claimed that he was misguided to believe that married sisters are not legal heirs of his FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 21 of 26 deceased grandfather and requested the DDA to cancel his mutation vide letter dated 24.04.2001 itself. The accused relied on the very next day of the show cause being issued to him. The mutation was thus canceled. Till this time neither there was any FIR nor any other action taken by DDA.
30. Thus, it appears, that as per Mark PW5/C [which, this court, for reasons already stated above in this judgment, has found to be admissible in evidence], accused was persuaded to think, that married sisters had no right in the property in question. He, candidly admitted this in his letter to DDA being letter dated 24.04.2001 Mark PW5/C and himself requested the DDA to cancel his mutation. Thus, it appears that the claim of the accused as being the sole legal heir of Maharaj Krishan Khanna was based on a wrong understanding of the accused qua the legal status of his sisters qua the property in question. The accused had applied to DDA for mutation with the understanding that he is the sole legal heir of his grandfather. He, it appears, did not intend to deceive either the DDA or his sisters. When the accused applied to DDA for mutation of the property in question, he had a certain belief qua the legal status of he himself and of his sisters. He applied to DDA with the said belief. The belief was questioned by the DDA in its show cause dated 23.04.2001 Ex. PW1/DB. To the said question, accused candidly explained his belief and described it to DDA which had led him to apply to DDA for mutation and requested for cancellation of his mutation on 24.04.2001 vide Mark PW5/C. If FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 22 of 26 the aforesaid acts of the accused are seen in entirety, it is difficult to say that the accused had a guilty mind or the necessary mens rea or the intention to deceive the DDA. It is pertinent to note herein that the accused herein DID NOT claim before the DDA in Ex. PW2/B to Ex. PW2/E [the documents wherein the claim of sole heirship is made by the accused before DDA] that he is the SOLE CHILD OF HIS FATHER OR THE ONLY GRANDCHILD OF HIS GRANDFATHER. He simply called himself as the sole legal heir of his grandfather. Thus there is a possibility that the accused in fact understood that, save and except he himself, his married sisters are not the legal heirs of his grandfather and therefore he led to make such a claim before the DDA. This possibility is manifested in letter written by the accused to DDA on 24.04.2001 Mark PW5/C, at the first available opportunity given to the accused by DDA to explain his position.
31. This admission of the accused of his mistake of understanding that the married sisters are not legal heirs is also possible considering the educational status of the accused. It may be noted that in the testimony of PW1/Dimple Vaid [the sister of the accused who had complained to DDA qua the property in question in the first place] it has come on record that the accused herein did not even pass his tenth (10th) standard examination. She calls him "10th fail". Thus, the educational qualification of the accused was not such so as to say that he should be presumed to know the legal status of his married sisters FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 23 of 26 correctly. The weak education background of the accused also makes it possible that the accused indeed thought what he claims in his letter dated 24.04.2001.
32. Even otherwise, the conduct of the accused to apply to the DDA for cancellation of his mutation, which was done in his favor just a month back in March 2001, shows or atleast opens up a possibility that the accused did not intend to deceive the DDA. He applied to DDA under a belief. As soon as he realized his mistake, he moved to correct it. This subsequent conduct of the accused, right after the mutation, at the very first opportunity given to the accused by DDA to explain his stand on the issue, is, in my humble opinion, very relevant and crucial act on the part of the accused for this court to understand and try to deduce whether the accused intended to deceive the DDA when he applied for mutation or not. This act of the accused persuades this court to think that the accused never intended to intentionally deceive the DDA. He did apply to DDA for mutation but under a mistaken belief and there was no mens rea or the guilty intention at that time to fool the DDA.
33. Simply put, from the record, it cannot be said that the accused herein had the "intention to deceive the DDA at the time of applying for mutation of the given property" Had it been the case, why would he ask the DDA to cancel his mutation? He would have contested the show cause. He would have resisted it. But, in this case, as per Mark FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 24 of 26 PW5/C, he simply accepted his mistake and himself filed an affidavit giving the names of his sisters. He gave reasons for calling himself as the sole legal heir of his grandfather in Ex. PW2/B to PW2/E. And then called upon the DDA to cancel his mutation and even sent his original mutation letter dated 15.03.2001 to DDA to cancel his mutation. These subsequent acts of the accused on 24.04.2001, which were very close to the time (in March 2001) when the mutation was applied for by the accused and granted by the DDA, show that the accused lacked the necessary guilty or dishonest intention which is a sine qua non for an offence of cheating or the one made punishable under section 420 IPC.
34. All the aforesaid acts, show, in my humble opinion, that the accused herein did not have the intention to deceive the DDA at the time he applied to the DDA for mutation i.e. at the inception of the transaction in question. If that be the case, the basic ingredient of the offence of cheating u/s 415 IPC is not made out. If that be so, consequently, the accused cannot be said to have committed the offence punishable under section 420 IPC because before section 420 IPC can be pressed into service in any case, the offence of cheating is required to be shown to have been completed. With offence of cheating not made out in this case, accused cannot be convicted for offence punishable under section 420 IPC.
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 25 of 26
35. In view of the aforesaid facts and circumstances of the case in hand, in my humble opinion, accused is entitled to be acquitted of the charge of the offence made punishable under section 420 IPC. It is ordered accordingly.
Digitally signed by AASHISH AASHISH GUPTA
GUPTA Date:
2018.08.02
Announced in the Open 13:20:02 Aashish Gupta
+0530
Court on 01st of August, 2018 MM(South East)07
Saket, New Delhi
FIR No. 524/03 State V/s. Sanjeev Kumar Khanna 26 of 26