Delhi District Court
State vs . R.K. Aggarwal on 26 April, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. R.K. AGGARWAL
FIR NO. 257/04
PS: MOTI NAGAR
U/S: 420IPC
JUDGMENT
Case No. : 5739/16 Date of commission of offence : 18/19.09.1999 Date of institution of the case : 30.04.2004 Name of the complainant : Sh. Satpal Babbar
Name of accused and address : 1. R.K. Aggarwal s/o Sh.
S.R. Aggarwal, r/o H.no. 8, East Avenue Road, New Delhi- 110026.
2. Ram Prakash Arora, s/o Sh. Ram Chand, r/o E-153, Karampura, New Delhi.
(since deceased).
3. Kanchimal Gupta s/o Sh.
Bihari Lal, r/o G-63, Karampura, New Delhi.
(since deceased).
Offence complained of or proved : U/s 420 IPC Plea of the accused : Pleaded not guilty Final order : Acquitted Date on which reserved for judgment : 26.04.2018 Date of judgment : 26.04.2018
********************************************************************************** BRIEF STATEMENT OF THE FACTS FOR DECISION:
FIR No. 257/04, PS Moti Nagar Page 1/121. This is the prosecution of accused persons namely R.K. Aggarwal, Ram Prakash Arora and Kanchimal Gupta pursuant to charge sheet filed by PS Moti Nagar U/s 420 IPC subsequent to the investigation carried out by them in FIR No.257/04. During the trial accused Ram Prakash Arora and Kanchimal Gupta expired and the proceedings against both of them were abated.
2. As per the prosecution, on 18/19.08.1999 accused R.K. Aggarwal cheated the complainant Sh. Satpal Babbar by making a false statement in the agreement to sell, will and purchase/bayana agreement that part of the property bearing no. F-155 ground floor regarding which the documents were executed was his property I.e. accused was the legal owner of the same while in fact the property belonged to the State. By making such false representation accused induced the complainant to hand over the consideration amount in respect to said property, thereby causing wrongful gain to accused and wrongful loss to the complainant.
Accordingly, after the investigation, police filed the present charge sheet against the accused R.K. Aggarwal for commission of offence punishable u/s 420 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 420 IPC was framed against accused to which accused pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 15 witnesses in total.
5. PW1 Sh. Satpal Babbar is the complainant in the present case and FIR No. 257/04, PS Moti Nagar Page 2/12 stated that in August 1999 one property bearing no. F-155 measuring 72.25 sq. yards, ground floor, situated at Karampura was purchased by him through Kachimal Gupta and Ram Prakash Arora from accused R.K. Aggarwal. It is stated that at the time of purchase of property by PW1 from accused R.K. Aggarwal against consideration of Rs. 8,00,000/-. It is stated that a receipt Ex. PW1/A for Rs. 45,000/- was given to PW-1 by accused and thereafter a Will Ex. PW1/B and GPA Ex. PW1/C was executed at Office of Sub Registrar, Janak Puri. It is stated that SPA, Affidavit, Agreement to appoint Arbitrator and one another affidavit Ex. PW1/D to Ex. PW1/G respectively were executed by accused. It is stated that agreement to sell and purchase was executed as Ex. PW1/H and one possession letter was also handed over by accused to PW-1 which is Ex. PW1/I. It is stated that on the inducement of accused along with R.P. Arora and Kanchimal Gupta, PW-1 purchased the property in question. It is stated that in the year of 2001 officials from MCD came at property in question for demolition of said property and demolished some part of property F-155. It is stated that at that time PW-1 came to know that accused constructed illegal flats at land of F-155. This witness was cross examined on behalf of accused.
6. PW2 W/SI Asha is duty officer and has exhibited on record FIR and endorsement as Ex. PW2/A (OSR) and Ex. PW2/B respectively. This witness was cross examined by accused.
7. PW3 Smt. Sharda Sharma stated that the flat bearing no. F-155/6 was purchased by her from accused and since 2002 to 2003 she was residing there. It is stated that the payment against the flat was made by one Beniram Sharma. PW-3 stated that no one apprised to her that the flat is constructed illegally and without the permission of the government, however, she has been residing therein without any interference of any FIR No. 257/04, PS Moti Nagar Page 3/12 authority. As this witness did not support the case of prosecution in its entirety, she was cross examined by Ld. APP for the state with the permission of the court. This witness was cross examined on behalf of accused.
8. PW-4 Smt. Neha Sharma stated that flat bearing no. F-155/5 was purchased by her husband from accused and she has been residing at the aforesaid address from last 15-16 years. She denied knowledge of any case pending against the accused in respect of aforesaid property. As this witness did not support the case of prosecution in its entirety, she was cross examined by Ld. APP for the state with the permission of the court. This witness was cross examined on behalf of accused.
9. PW5 Smt. Lalita Satish stated that she has no knowledge about the present case. As this witness did not support the case of prosecution in its entirety, she was cross examined by Ld. APP for the state with the permission of the court. This witness was cross examined on behalf of accused.
10. PW-6 Smt. Shanti Devi stated that she has resided at F-155/13 till 2005-06. The said flat was purchased from Satpal Babbar. PW6 stated that during her stay in that property MCD officials pasted notice for seal for demolition and demolition was also carried out on one occasion. It is further stated that after the said notice PW6 came to know that building of F-155 was illegally constructed however, she could not tell as to who has constructed the flats in question. As this witness did not support the case of prosecution in its entirety, she was cross examined by Ld. APP for the state with the permission of the court. This witness was cross examined on behalf of accused.
FIR No. 257/04, PS Moti Nagar Page 4/1211. PW-7 Sh. Sayeed Ali Jah-H-Khan, Assistant Engineer Building, Karol Bagh stated that as per the record his department initiated action against unauthorized construction of excess coverage at the ground floor of F-155 Karampura, New Delhi. This witness exhibited on record the notice served upon the owner / builder of F-155 on 01.10.2004 as Ex. PW7/A (OSR). The FIR under DMC Act 1957 was also registered. The same is exhibited as Ex. PW7/B. This witness also exhibited on record the demolition notice dated 07.10.2004 as Ex. PW7/C and PW7/D respectively. It is further stated that on 14.10.2004 a demolition order was passed against the owner/builder of building F155, that is, Ex. PW7/E. The status report of the same is Ex. PW7/F. The photographs of the above said property are Mark X and Mark X1. This witness was cross examined on behalf of accused.
12. PW8 ASI Krishan Kumar deposed qua the manner and his involvement in the investigation. This witness exhibited on record the arrest memo of accused R.P. Arora as Ex. PW8/A and the personal search memo as Ex. PW8/B. This witness was cross examined on behalf of accused.
13. PW9 Ct. Anil Kumar also stated qua the manner and his involvement in the investigation. This witness exhibited the arrest memo of accused R.K. Aggarwal as Ex. PW9/A and his personal search memo as Ex. PW9/B. This witness identified the accused in the court. This witness was cross examined on behalf of accused. PW10 ASI Vijender deposed on the same lines as that of PW9 Ct. Anil Kumar. This witness was cross examined on behalf of accused.
14. PW11 HC Bansi Lal also stated qua the manner and his involvement in the investigation. This witness exhibited the arrest memo of FIR No. 257/04, PS Moti Nagar Page 5/12 accused Kanchimal as Ex. PW11/A. This witness was not cross examined on behalf of accused.
15. PW12 Insp. Ram Narayan stated that on 30.05.2004 by the order of the court FIR was registered. The endorsement is exhibited as Ex. PW12/A. It is further stated that the complainant was called at PS and his statement was recorded. It is further stated that during investigation it was gathered that the property bearing no. F155 Karampura belongs to labour department vide application Ex. PW12/B. The reply of the same is Ex. PW12/C. PW12 also filed an application before the sub registrar seeking the documents of the aforesaid property I.e. Ex. PW12/D. This witness was cross examined on behalf of accused.
16. PW13 Insp. Bhupesh Kumar deposed on the same lines as that of PW9 Ct. Anil Kumar and PW11 HC Bansi Lal. In addition to the same this witness exhibited on record the seizure memo vide which the chain of documents provided by Promod Kumari as Ex. PW13/A. This witness was cross examined on behalf of accused.
17. PW14 Sh. Rajesh Sharma stated that in the year 2000 property bearing no. F155 ground floor, Karampura, was purchased by him in the name of his mother Late Sh. Pramod Kumari. The said property was sold in the year 2004-05 and the documents of the same were provided to the police to seized them. This witness was cross examined on behalf of accused.
18. PW14 Sh. Krishan Kumar Dhiran, Executive Engineer, KBZ. This witness exhibited on record the demolition action taken report as Ex. PW14/A. This witness was cross examined on behalf of accused.
FIR No. 257/04, PS Moti Nagar Page 6/1219. PW15 SI Ghanshyam Kishore was the second IO who stated that on 17.12.2014 he was marked with the investigation. It is stated by PW15 that he sought the details of flat no. F-155 and his illegal encroachment whereby reply was filed by Assistant House Engineer as Ex. PW15/A. As per the said reply the land was already handed over to MCD on 22.11.1990. It is further stated that on 30.12.2014 PW15 served a notice to MCD seeking details of the above said premises I.e. Ex. PW15/B. It is further stated that on 06.01.2015 a team of MCD inspected the premises and filed their reply Ex. PW15/C. On the basis of which a supplementary charge sheet was filed against the accused. This witness was cross examined on behalf of accused.
20. No other PW was left to be examined, hence PE was closed on 12.02.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
21. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating evidences were put to him. The accused controverted and denied the allegations levelled against him. It is stated by accused that the complainant has filed the case only to harass him and extort more money from him. It is stated that he have sold the alleged flat to the complainant in the same form as he have purchased the same. The complainant has also sold the flat to other persons and he has suffered no loss. The complainant has purchased the alleged flat after verifying the document and authenticity of the alleged flat. It is further stated that he have not cheated the complainant in any manner. It is stated that the complainant have purchased the alleged flat voluntarily after proper verification and he has not induced him (Complainant) in any manner to FIR No. 257/04, PS Moti Nagar Page 7/12 purchase the alleged flat. The complainant has subsequently become greedy and want more money that is why he has filed the present case.
Accused opted not to lead any defence evidence.
ARGUMENTS:
22. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted.
That on a combined reading of testimony of prosecution witnesses, offence U/s 420 IPC is proved beyond doubt against the accused.
23. On the other hand, Ld. Counsel for accused have stated that there is no legally sustainable evidence against the accused. It is argued that accused has not played any fraud against the complainant as he purchased the property after verifying the documents and inspecting the same. It is further argued that the complainant in his cross examination admitted the verification of documents before purchase of the property. Hence, there is no inducement as alleged. It is further argued that the accused has sold the property to the complainant in the same form as he purchased from the predecessor so even the accused was not aware about the illegal construction. It is further argued that the prosecution has failed to prove the ingredients of section 420 IPC and the unreliable testimony of the star witnesses entitles the accused to be acquitted.
FINDINGS:
24. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
FIR No. 257/04, PS Moti Nagar Page 8/1225. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused R.K. Aggarwal is indicted for the offence U/s 420 IPC. Section 420 IPC provides for the punishment for the offence of cheating and dishonestly inducing the person deceived to deliver any property to any person.
26. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
27. The prosecution examined complainant Satpal Babbar as PW-1 being the star witness. In his cross examination the witness stated that he purchased the property after seeing the documents of the same and he was satisfied after seeing the documents of the said disputed property. He also admitted that he never received any notice from any department with respect to unauthorized construction and demolition of said property. The claim of PW1 was that the accused has dishonestly induced him to purchase the property in question which was stated to be genuine in all respects but later on found that the same was built up on the government land and was illegally constructed. Meaning thereby the accused played fraud against the complainant and made him deliver the amount against the sale of the property.
28. The main fact remained unproved in this case I.e. whether the accused R.K. Aggarwal purchased the property in question and sold the same to the complainant as it is and other occupants or he has constructed the flats after purchasing the plot and thereafter sold them to FIR No. 257/04, PS Moti Nagar Page 9/12 the occupants. The evidence in this respect has not been led on record by the prosecution through any witness be it the star witness or the government officials from different departments. There are letters written by the IO to the concerned authorities for knowing about the status of the allotment of the property in question but none of the concerned department in their reply Ex. PW12/C and Ex. PW15/C has provided the details as to whom the property was initially alloted and how the chain of sale transactions carried thereafter. The prosecution has failed to examine any witness from the office of Sub Registrar or the independent witness in the form of erstwhile owners of the property in question that could have shown the actual construction of the property in the preceding sale transactions. The accused has taken the defence that he sold the property as it is after its purchase from the erstwhile owner Sh. Jaspal Singh, so the prosecution was supposed to prove on record that the property was not sold as it is rather the encroachment was done on the government land and thereafter the property was sold but unfortunately the prosecution has failed to prove this fact on record by any cogent evidence.
29. The inducement on the part of the accused for selling his property to the complainant against delivery of payment does exist but the inducement being dishonest or fraudulent on the part of the accused could not be established by the complainant in his testimony. The complainant examined PW-3 Smt. Sharda Sharma, PW-4 Smt. Neha Sharma, PW5 Smt. Lalita Satish, PW-6 Smt. Shanti Devi and PW14 Sh. Rajesh Sharma being the occupants of other flats on the said plot. None of the aforesaid witnesses have deposed that the accused fraudulently or dishonestly induced them to sell the property or none of the aforesaid witnesses have deposed that the building has been illegally constructed on the government land or there is any fraud played upon them by the accused. In fact all the witnesses categorically denied having any knowledge about the present case. Hence, they did not support the case of the prosecution FIR No. 257/04, PS Moti Nagar Page 10/12 in any manner. PW-14 Sh. Rajesh Kumar during his cross examination categorically stated that property in question was purchased by him after verification of chain of documents, meaning there by there was no manipulation on the part of the accused in the documents or the description of the property to be sold. It has also come in the testimony of the aforesaid witness that no government department has ever sent any notice to them qua unauthorized construction nor any demolition took place w.r.t. their portions. Witness PW-4, PW-5 and PW-6 further went on to say that police officials did not inquire or record their statements about the present case. In view of the testimony of aforesaid witnesses the allegations of complainant remained unsubstantiated.
30. In his statement u/s 313 Cr.P.C. accused explained the circumstances and stated that he sold the property in question to the complainant in the same form as he has purchased. Though, the accused has not lead any defence evidence and has not exhibited the previous chain of documents to show the description of the property transferred officially to him but it was the duty of the prosecution to prove its case beyond reasonable doubt. So, the investigating agency should have taken more pain to obtain chain of documents to actually see the root of cause and show that the accused was having knowledge about the illegal construction of the property before its sale to the complainant and other occupants. But even such knowledge on the part of the accused could also not be established by the prosecution. As it is already observed above that the complainant himself admitted the verification of documents of the property himself prior to its purchase so any fraudulent or dishonest inducement attributed on the part of the accused cannot be presumed.
31. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by FIR No. 257/04, PS Moti Nagar Page 11/12 leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
32. The prosecution has miserably failed to built up the case against the accused beyond any reasonable doubt due to lack of cogent evidence. The evidence lead on record does not proves the ingredients for making out an offence U/s 420 IPC against the accused. Thus, the accused is entitled to be acquitted. Accordingly, accused R.K. Aggarwal is hereby acquitted of all the charges levelled against him in the present case.
33. Fresh bail/surety bonds on behalf of accused have already been furnished and accepted in compliance of Section 437-A Cr.P.C. File be consigned to Record Room after due compliance.
VISHAL Digitally signed by
VISHAL PAHUJA
PAHUJA Date: 2018.04.26
16:24:42 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 26.04.2018 MM-04 (WEST)/DELHI
Containing 12 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date: 2018.04.26
16:24:51 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No. 257/04, PS Moti Nagar Page 12/12