Delhi District Court
State vs . on 26 April, 2014
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Harvinder Singh
FIR No. 32/95
P. S.: Kotla Mubarakpur
JUDGMENT
1. Sr. No. of case : 02403R0007301995
2 Date of institution : 02.12.1995
3. Name of the complainant : Sh. V.K. Singhal
4. Date of commission of offence : Around June, 1990
5. Name of accused : Harvinder Singh
S/o Sh. Harbans Singh
R/o 36/52, Punjabi Bagh
West, Delhi.
6. Offence complained of : Sec. 419/420/467/471/120B IPC
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the judgment : 09.04.2014
9. Final order : Acquitted
10. Date of such judgment : 26.04.2014
Page 1 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95
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FACTUAL BACKGROUND:
1. The important facts of the case are as under. Present FIR was registered on the complaint of Sh. V.K. Singhal, Director (H), DDA, alleging that allottee Smt. Rama Sharma has submitted fake challan no. 535133 dated 18.06.90 for Rs.94,440.83 against allotment of flat no. 200, Pocket2, BlockB, Sector17, Rohini, Delhi (in short "the flat") and further she sold the flat illegally to someone. During investigation, it was found that Smt. Rama Sharma sold the flat to Smt. Somwati wife of Sh. R.S. Azad through accused Harvinder Singh, Virender Singh and Surjeet Singh and they had submitted the forged challan in DDA on her behalf. After culmination of investigation, the accused persons were charge sheeted and summoned to face trial.
TRIAL PROCEEDINGS:
2. In light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C., vide order dated 16.11.2004, the then Ld. Metropolitan Magistrate, framed charges under section 419/420/467/471/120B IPC against all the accused, to which they pleaded not guilty and claimed trial.
Page 2 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 3
3. Proceedings against accused Virender Kumar stood abated vide order dated 30.06.2006.
4. Proceedings against accused Surjit Singh stood abated vide order dated 20.08.2007.
5. For proving its case, prosecution has produced 19 witnesses. 5.1 PW1, W/HC Poonam Tyagi, proved present FIR Ex.PW1/A. 5.2 PW2, Sh. V.K. Singhal (complainant), testified that flat no.
200, Pocket 2, BlockB, Sector 17, Rohini, Delhi, was allotted to Smt. Rama Sharma on cash down basis against the consideration of Rs. 95,440.83 on 30.03.1990 and she was supposed to make the payment by 28.06.1990. Further, he mentioned that Smt. Rama Sharma submitted fake challan on 18.06.1990 alongwith other documents and obtained the possession of the flat and further she sold out the said flat to some other person. Thereafter, he made complaint Ex.PW2/A to police. Further, he mentioned that alongwith the complaint, he annexed copy of show cause notice Ex.PW2/B addressed to Smt. Rama Sharma, demandcum allotment letter Ex.PW2/C, photocopy of forged challan in question Ex.PW2/D and the documents submitted by Smt. Rama Sharma at the time of taking possession alongwith her forwarding letter Ex.PW2/E1 to Ex.PW2/E7.
Page 3 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 4 5.3 PW3, HC Sudhir Kumar, deposed that during investigation, IO arrested accused Harvinder Singh, conducted his personal search vide memo Ex.PW3/A and his disclosure statement Ex.PW3/B was recorded. 5.4 PW4, HC Hawa Singh, mentioned that during investigation, IO interrogated accused Harvinder Singh, Surjit Singh and Virender Sharma and recorded their disclosure statement Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. 5.5 PW5, HC Suresh Chander, testified that on 28.01.1995, he alongwith IO SI Hari Ram and Sh. R.S. Azad joined the investigation and on that day, at the instance of accused Harvinder Singh, one challan form of Central Bank of India and one photocopy of letter were recovered from flat no. 86, Janta Flat, Madi Pur, Delhi, and these were seized vide seizure memo Ex.PW5/A. 5.6 PW6, Sh. Krishan Kumar Koundal, Senior Manager, Central Bank of India, mentioned that old challans and other documents have been destroyed and the report Ex.PW6/H of challan in question was given by Sh. R.K. Sethi, the then Branch Manager, Central Bank of India and he can identify his signature on this report.
5.7 PW7, Sh. Jai Gopal Gupta, deposed that one Dinesh Kant who was resident of his locality told him regarding the sale of one flat of Page 4 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 5 his relative but he is not aware about the facts of this case. Further, he denied the suggestion put by Ld. APP for the State that he has given the statement to the police or he took the documents from his maternal aunt Smt. Rama Sharma and handed it over to Virender Sharma. 5.8 PW8, Smt. Kulwant Kaur, deposed that stamp papers Ex.PW2/E1 were sold to Smt. Rama Sharma.
5.9 PW9, Sh. Mukesh Kumar, deposed that stamp papers Ex.P1 to Ex.P4 were sold to Smt. Rama Sharma.
5.10 PW10, Sh. Mahinder Pal, JE (civil), deposed that the possession of flat no. 200, BlockB, PocketII, Sector17, Rohini, was given to Smt. Rama Sharma vide documents Ex.PW10/A. 5.11 PW11, Sh. R.D. Goel, Assistant Director, DDA, deposed that as per record, flat no. 200, PocketII, BlockB, Sector17, Rohini, was allotted to Smt. Rama Sharma and all the documents i.e allotment form, file notings, affidavit, undertaking, specimen signature, photo and possession letter marked Ex.PW11/A were prepared. 5.12 PW12, Sh. Ravinder Mehta, SubRegistrar, produced the record pertaining to GPA dated 15.10.1990 Ex.PW12/A. 5.13 PW12, Sh. Deepanshu, Single Window Operator, Punjab National Bank, deposed that as per record, no account no. 6741 exists in Page 5 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 6 the name of Sh. R.S. Azad.
5.14 PW13, Sh. Devak Ram, Assistant Director, FSL, proved report Ex.PW13/A. 5.15 PW14, Sh. M.N. Sharma, Advocate, testified that the documents executed by Smt. Rama Sharma in favour of Somwati were drafted by him and further receipt of payment Ex.PW14/A was got registered in the office of SubRegistrarII, Kashmeri Gate, Delhi, on 12.10.1990.
5.16 PW15, Sh. Dinesh Kant, deposed that he had introduced his aunt Smt. Rama Sharma with property dealer Sh. Jai Gopal and he does not know anything else about this case. During cross examination conducted by Ld. APP for the State, PW15 admitted that he was told by his aunt that property was got sold by Virender Sharma and Harvinder Singh to Sh. R.S. Azad and she told him that she has made a complaint against property dealer.
5.17 PW16, Sh. Ram Swaroop Azad, testified that he has purchased flat no. 200, PocketB2, Sector17, Rohini, Delhi, from Smt. Rama Sharma and he does not remember anything else about this case. During cross examination conducted by Ld. APP for the State, he denied that he met with Harvinder in May, 1990 when he went to DDA, Vikas Page 6 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 7 Sadan for deposition of his rent and then he inquired from him about LIG flat in Rohini area. Further, he denied the suggestion that he visited the flat where accused Harvinder Singh introduced another property dealer Virender Singh to him or that accused Harvinder Singh told him that they have purchased the said flat from Smt. Rama Sharma. Further, he denied the suggestion that one PNB cheque was given to accused Harvinder Singh, which was got encashed.
5.18 PW17, Sh. Om Prakash Kanojia, Manager, PNB, deposed that he supplied the required information vide his letter dated 31.01.1995 Ex.PW17/A and also annexed copy of cheque no. 165299 dated 08.10.1990 for Rs. 15,000/ in favour of Harvinder Singh. He also proved certified copy of cheque Ex.PW17/B. 5.19 PW18, Retired Inspector Hari Ram, deposed that in September, 1994, he received a complaint from Sh. R.S. Azad, alleging that that he purchased a flat in the name of his wife Smt. Somwati from Smt. Rama Sharma through Harvinder Singh and Virender Singh and later on he came to know that cost of the flat was not deposited in DDA and a forged challan was used to convince him. Further, the complainant made a complaint mark Ex.PW18/A. Further, he mentioned that during inquiry, a complaint was received from Sh. V.K. Singhal, Director, Page 7 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 8 Housing, DDA, on the basis of which rukka Ex.PW18/B was prepared and FIR was registered. Further, he collected original documents from Sh. R.S. Azad vide memo Ex.PW16/A and examined other documents Ex.PW18/C to Ex.PW18/H. Further, he inquired that accused Harvinder received Rs. 15,000/ through a cheque Ex.PW17/B. Further, he sent bogus challan Ex.PW18/C to Central Bank of India for verification and received their reply Ex.PW6/H. Further, he collected original file Ex.PW11/A from DDA of the said flat and arrested the accused persons. Further, at the instance of accused Harvinder Singh, two documents were recovered from his office. Further, he obtained specimen signature of Rama Sharma Ex.PW18/L, of accused Harvinder Singh Ex.PW18/M, of Virender Singh Ex.PW18/N and of Surjeet Singh @ Mahender Singh Ex.PW18/O and sent them to FSL in the docket Ex.PW18/P.
6. Statement of accused was recorded under Section 313 Criminal Procedure Code, 1973. When accused was briefed on all the incriminating evidence and documents, he denied the allegations mentioning that he did not know Smt. Rama Sharma or Dinesh Kant. Further, he opted not to lead defence evidence.
Page 8 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 9 APPRECIATION OF EVIDENCE:
7. I have heard the State through Shri Gaurav Singh, Ld. Assistant Public Prosecutor and Shri P.K. Sharma, Ld. Defence Counsel. Record is also gone through.
8. It is summed up by Ld. APP that there is evidence on record to suggest the involvement of accused in the commission of alleged offences. On the other hand, Ld. defence counsel argued that accused had no role to play in the alleged offences and he is deserves to be acquitted in this case.
9. It is observed that present case came into the light with the filing of police complaint Ex.PW2/A by Sh. V.K. Singhal (PW2) alleging that allottee Smt. Rama Sharma has filed fake challan and had obtained the possession of flat in question. Smt. Rama Sharma was made prosecution witness to make it clear as to in what circumstances, the accused persons got prepared the fake challan and filed it on her behalf but unfortunately she could not be produced into the witness box on account of her death. Further, PW16, Sh. Ram Swaroop Azad, another material witness, deposed that the flat was purchased by him in the name of his wife Smt. Somwati. However, this witness had not supported the prosecution case. He categorically denied the suggestion that the Page 9 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 10 accused Harvinder Singh introduced another property dealer to him and he purchased the flat through them. Further he denied the suggestion that he had paid Rs. 15,000/ through cheque to Harvinder Singh as earnest money; that he gave Rs. 1,22,000/ to accused Harvinder Singh; that in 1994 DDA, official came to his flat and informed that Smt. Rama Sharma has not deposited the amount and DDA is going to cancel the allotment; and that then he approached Smt. Rama Sharma who told him that she gave the documents alongwith money to Sh. Gopal Bansal, the property dealer, who brought Virender Singh who in turn brought Harvinder Singh who deposited the money in DDA. Further, he mentioned that he has not given any statement to police and did not identify the accused Harvinder Singh.
10. Though, PW15, Sh. Dinesh Kant, testified that he introduced his aunt Smt. Rama Sharma with property dealer Sh. Jai Gopal and subsequently he was informed by his aunt that property was got sold by Virender Singh and Harvinder Singh to Sh. R.S. Azad and subsequently she made a complaint against property dealer but his testimony loses significance since PW16 Sh. R.S. Azad has not supported the prosecution on any aspect and moreover his testimony falls in the category of "hearsay evidence". In absence of deposition of Smt. Rama Sharma, all Page 10 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 11 the facts narrated by PW15 cannot be said to be proved on record. Further, the property dealer, PW7Sh. Jai Gopal Gupta was also declared hostile by prosecution side. He had also not supported the prosecution case on any count. In view of above, chain of material facts related to the flat sold by Smt. Rama Sharma to Smt. Somwati, wife of PW16 Sh. R.S. Azad, remained unproved on record.
11. Further, Ld. APP for the State also argued that hand writing expert report Ex.PW13/A is sufficient to show that accused Harvinder Singh filled up the body of the challan form on the basis of which forged challan Ex.PW2/D was issued and it corroborates the case of prosecution that Smt. Rama Sharma sold the flat to Smt. Somwati through accused Harvinder Singh. This point of argument was countered by Ld. defence counsel on the basis of decision of Court of Delhi in case titled as Sapan Haldar & Anr. vs. State reported as 191(2012) DLT 225(FB). In view of this Court, the said decision of High Court of Delhi leaves no room for doubt that investigating agency, prior to insertion of section 311A Cr.P.C, which was notified on 23.06.2006, could not have obtained hand writing sample or signature sample from the accused of having committed an offence even with the permission of the Magistrate. Thus, the FSL report Page 11 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95 12 is of no importance in this case. In the result, prosecution has no evidence to connect the accused with the offence of committing forgery. Further, in absence of testimony of Smt. Rama Sharma and supporting deposition of PW16, there is no material on record to connect the accused with the offence of use of forged documents. For the same reason, there is nothing on record to fix the culpability of accused for the offence of cheating and criminal conspiracy.
CONCLUSION :
12. For the reasons recorded above, it is held that prosecution has failed to prove its case beyond reasonable doubts. Accordingly, accused Harvinder Singh is pronounced not guilty in respect of the offences involved in this case.
Announced in the open court (Vivek Kumar Gulia)
on 26th Day of April 2014 Chief Metropolitan Magistrate (S)
(total 12 pages) Saket Courts, New Delhi
Page 12 of 12 State Vs. Harvinder Singh & Ors; FIR No. 32/95