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[Cites 13, Cited by 0]

Delhi District Court

Sh. Mahesh Chand vs State (Nct Of Delhi) on 26 October, 2013

                 IN THE COURT OF SH. NARINDER KUMAR
              ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI

Criminal Revision No. 127/2013
In the matter of:­

Sh. Mahesh Chand,
S/o Late Sh. Roop Chand,
R/o F­200, Lal Kuan,
New Delhi­44                                         ....Petitioner

       Versus

State (NCT of Delhi).                               ....Respondent

Date of Institution: 07.06.2013
Date of Judgment:  26.10.2013

                                     J U D G M E N T

Present revision petition has been preferred against order dated 27.04.2013 passed by learned Metropolitan Magistrate in case FIR No. 367/2002 registered at PS Karol Bagh. Vide impugned order, learned Metropolitan Magistrate has framed charge for offences under Section 120B, 467 read with Section 120B, 468 read with Section 120B, 420 read with Section 511 read with Section 120B and 471 read with Section 120B IPC against all the accused persons, while observing that prima facie case is made out against all the three accused persons including the present petitioner for these offences.

2. At the outset, it may be mentioned that learned counsel has not challenged framing of charge for an offence under Section 120B IPC. Even otherwise, from 1 the material available on record, prima facie case under Section 120B IPC is made out against including the present petitioner for having entered into criminal conspiracy to cheat Municipal Corporation of Delhi by forging notes 22N and 23N, in respect of shop no. 149 situated in Municipal Market, Karol Bagh so as to allow deposit of reduced amount in respect of actual liability of Rs.4,86,458/­.

3. Learned counsel for the petitioner has contended that this is a case where no offence under Section 467, 468 or 471 IPC can be said to have been committed by the petitioner. Learned counsel has submitted that by preparing statement depicting reduced amount of Rs.1,87,784/­, the petitioner did not make any false document so as to say that he committed any forgery punishable under Section 467 IPC. In support of his submission, learned counsel has referred to decision in Md. Ibrahim & Ors. Vs. State of Bihar & anr, VII (2009) SLT

355. Another contention raised by learned counsel for the petitioner is that in this case when no property was going to be delivered from one person to the other, it cannot be said that the petitioner attempted to have committed an offence under Section 420 read with Section 511 IPC. In support of this, learned counsel has referred to decision in Devender Kumar Singla Vs. Baldev Krishan Singla, 2004 Cri.LJ 1774,

4. On the other hand, learned Addl. PP has submitted that since the petitioner prepared false statement of calculation depicting reduced amount and the reduced amount accordingly came to be deposited with the Municipal 2 Corporation of Delhi, accused­petitioner can safely be said to have prepared a false document and thereby to have cheated Municipal Corporation of Delhi by causing wrongful gain to Ramesh Chander, co­accused and wrongful loss to the corporation. Therefore, the contention is that there being no merit in the revision petition, same deserved to be dismissed.

5. Substances of the accusation levelled against the accused persons as set out in the charge reads as under:­ "That on or before 13.11.2000, you all criminally conspired to cheat the MCD, Delhi by preparing false document containing calculations of cost of shop with interest and ground rent etc. of shop no. 149, Municipal Market, Saraswati Marg, Karol Bagh for converting the said shop from licensee to lease hold and thereby you all committed offence punishable under Section 120B IPC within my jurisdiction and cognizance.

Secondly, that on 27.11.2000, you all in pursuance of the above said criminal conspiracy forged the calculation dated 27.11.2000 i.e. at page 22N and 23N by reducing the payable amount from Rs.4,86,458/­ into Rs.1,87,784/­ in respect of the above said shop for converting the same in lease hold from licensee with the intention to cheat MCD, Delhi and thereby you all committed offence punishable under Section 467 read with Section 120B IPC within my jurisdiction and cognizance.

Thirdly on 13.11.2000 and 26.12.2000, you all in pursuance of above said conspiracy forged the letters dated 13.11.2000 and 26.12.2000 with the intention to cheat the MCD, Delhi thereby you all committed offence punishable under Section 468 read with Section 120B IPC within my jurisdiction and cognizance.

Fourthly, that on or around 26.12.2000, you all in furtherance if criminal conspiracy dishonestly attempted to cheat MCD, Delhi to convert the abovesaid property into lease h old from license by depositing the abovesaid reduced amount Rs.1,87,784/­ with the MCD and thereby you all committed offence punishable under Section 420/511 read with Section 120B IPC within my jurisdiction and cognizance.

Fifthly, that on the above said date, you all in pursuance of above said criminal conspiracy dishonestly or fraudulently used abovesaid forged documents as genuine knowingly and having reason to believe the same to be forged document thereby you all committed offence punishable under Section 471/120B IPC within my jurisdiction and cognizance."

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6. Case FIR No. 367/2002 came to be registered on the complaint dated 18.04.2002 by Sh. S. K. Jain, Addl. Director (Vigilance), MCD, Delhi whereby he reported to Joint Commissioner of Police, Crime Branch, MSO Building, New Delhi that in the course of investigation carried out by vigilance department of MCD, it was found that a conspiracy was hatched by occupant of shop no. 149, situated in Municipal Market, Karol Bagh to get the shop converted to lease hold from license based, in connivance with officials of MCD namely Sh. Devi Singh, Superintendent of MCD and Mahesh Chand, LDC in MCD.

7. Admittedly, Sh. Devi Singh, accused (non­petitioner) was serving as Superintendent whereas the present petitioner was serving as LDC with Municipal Corporation of Delhi. Record reveals that shop no.149 situated in Municipal Market, Saraswati Market, Karol Bagh, was allotted to Smt. Bhagwan Kaur Johar by way of auction on 21.07.76 at a monthly license fee of Rs.1245/­. Subsequently, vide resolution dt.05.03.79 offer was made to the allottee vide letter dt.28.06.79 for allotment of the said shop on the basis of 99 years leasehold rights subject to payment of cost of the shop. Smt. Bhagwan Kaur Johar accepted the offer and deposited the amount with interest upto date and ground rent.

8. Subsequently, vide notice dt.23.06.99, 05.08.99 and 31.07.2000, MCD called upon the allottee to deposit Rs.4,32,822/­; Rs.4,32,822/­ and Rs. 4,86,458/­. However, a letter dt.13.11.2000 was sent to MCD expressing willingness to pay amount if calculated properly. Thereupon, letter dt. 27.11.2000 is stated to have been issued calling upon the allottee to deposit only 4 a sum of Rs.1,87,784/­ towards balance payment, interest and upto date ground rent. This amount of Rs.1,87,784/­ was deposited with MCD. Thereafter, a letter dt.26.12.2000 is stated to have been received by MCD to the effect that outstanding amount in respect of shop had already been deposited in compliance with demand letter dt.27.11.2000.

9. Enquiry conducted by MCD revealed that calculations were done by dealing assistant and approved by the then Superintendent and even form no. 2075 to 2078 were issued for stamping purposes but no approval of any officer was obtained in this regard and all the decisions are stated to have been taken at the level of Superintendent. The aforesaid calculation reducing the amount to Rs.1,87,784/­ were not got verified from the account side.

Enquiry further revealed that out of three signatures available at page - 23/N one signature was of Mahesh Chand - petitioner herein and one signature was of Devi Singh - Superintendent. Devi Singh retired from service on 31.03.2001. As per evidence collected during investigation, note sheets 22N and 23N were sent to FSL and the report was received that the same bear signatures and handwriting of Mahesh Kumar - petitioner and Devi Singh (non­petitioner).

10. Learned Trial Court has observed that Ramesh Chander (accused - non­ petitioner) must have been party to the criminal conspiracy as he was occupier of the said shop, as per GPA and only that he could have sent letters dt. 13.11.2000, letter dt.26.12.2000 and the undated letter depositing a sum of Rs. 1,87,784/­ instead of Rs.4,86,458/­ towards conversion of the said shop from license to leasehold basis.

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As regards offence of forgery in Md. Ibrahim & Ors. Vs. State of Bihar & anr, VII (2009) SLT 355, Hon'ble Supreme Court, while dealing with provisions of Sec.464 observed in the manner as :­ "In short, a person is said to have made a 'false document', if, (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.

The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities.

The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property.

But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If 6 what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted." Herein, when the accused­petitioner without any authority of MCD prepared notes 22N and 23N depicting only a sum of Rs.1,87,784/­ as against actual liability of Rs.4,86,458/­in respect whereof notice had already been issued by the MCD and letter dated 27.11.2010 came to be issued to the allottee for deposit of reduced amount, and that too without any authority of MCD, this Court finds that the accused­petitioner in furtherance of common intention prima facie prepared this false document 22N and 23N and thereby committed forgery as defined under Section 463 IPC, for the purpose of cheating, he prima facie made himself liable for this graver offence punishable under Section 468 IPC.

Since the notes 22N and 23N cannot be termed to valuable security and also do not fall under any of the documents covered by Section 467 IPC, no case for an offence under Section 467 IPC is prima facie made out against the accused­petitioner.

11. In the given facts and circumstances, when the accused­petitioner fraudulently or dishonestly used forged document 22N and 23N which was used by the depositor as a genuine document, knowing and having reasons to believe the same to be forged document and on its basis and forged letter dated 27.11.2010 lesser amount came to be deposited with the MCD, without its authority in furtherance of common intention, and as such he also made himself for an offence under Section 471 read with Section 34 IPC.

12. As regards the offence of cheating, same stands defined under Section

415. The said provision requires, (i) deception of any persons (ii) whereby 7 fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person 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. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some case in whcih no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence.

13. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420.

In Devender Kumar Singla Vs. Baldev Krishan Singla, 2004 Cri.LJ 1774, the facts were like this:­ "The accused Devender Kumar Singla in the company of his wife the other accused Mala Singla, purchase shares from the complainant Baldev Krishan in the presence of Teja Singh, son of Sajjan Singh. The complainant wanted that the payment thereof be made in cash, but accused Devender assured him that as he was a reputed dealer in the sale and purchase of shares, and his business ran into lacs, the payment by cheque would be more 8 in order. The complainant acting on h is representation accepted a post dated cheque and issued by accused Mala Singla, and was payable on 08.08.92. The complainant also delivered shares and in token of having received the same. Devender executed a receipt. When the cheque was presented for encashment, it was dishonored on the ground that the payment had been stopped by the drawer and this fact was conveyed to the complainant vide memo dt.08.08.92."

Therein, it was observed as under:­ On the proved facts it is seen that a cheque was handed over to the complainant and in the receipt it was stated that the shares have been received. The High Court has referred to this factual position and drawn a conclusion that the receipt (Ex.PW3/B) which was admittedly executed by accused Devender Clearly states that the share had been transferred. The mere fact that the cheque was filled in by the complainant is not sufficient to take away the effect of the statement in the receipt. The plea that it was an advance receipt does not appear to have been agitated before the Courts below.

Significantly, there was not suggestion, to the complainant (PW3) that the shares had not been delivered."

In view of material available on record in that case, conviction of Devender Kumar Singla, appellant for an offence U/s 420 IPC was upheld.

Herein, in the given facts and circumstances, accused­petitioner fraudulently or dishonestly deceived the corporation and thereby induced the corporation to accept reduced amount of Rs.1,87,784/­ in lieu of actual amount of Rs.4,86,458/­, the accused­petitioner prima facie committed offence of cheating within the ambit of Section 415 IPC.

14. Since "all the aforesaid offences" prima facie appear to have been committed by the accused­petitioner in furtherance of common intention of his co­accused, charge framed by Learned Metropolitan Magistrate needs to be amendment in respect of all the aforesaid offences, so as to frame the same with 9 the aid of Section 34 IPC, in addition to the independent charge in respect of offence under Section 120 B IPC rightly framed by that Court.

15. It is true that to attract provisions of Section 420 IPC read with Section 511 IPC, in addition to the material regarding an attempt for commission of offence of cheating, there should also be an attempt of dishonestly inducing the person deceived for delivery of any property to any person but herein no delivery of any property was intended to take place, the shop having already been allotted. Therefore, there is merit in the contention raised by learned counsel for the petitioner that no prima facie case for an offence under Section 420 read with Section 511 IPC is made out against the petitioner.

16. In view of the above discussion, this revision petition is partly allowed so far as charge for the offence under Section 420 read with Section 511 IPC is concerned. However, in view of the above findings, as to the case prima facie made out against the accused, learned Trial Magistrate to amend the charge, record plea of the accused and then proceed in accordance with law.

17. Parties to appear before Trial Court on 30.10.2013.



Announced in Open Court 
on 26.10.2013                                               (Narinder Kumar )
                                                      Additional Sessions Judge(Central)
                                                                  Delhi.




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