Delhi District Court
Santosh Jain vs Ved Prakash Page 1 /18 on 25 May, 2023
IN THE COURT OF MM07 (NORTH WEST DISTRICT)
ROHINI COURTS COMPLEX, DELHI.
Presiding Officer: Ritika Kansal, DJS.
IN THE MATTER OF :
Smt. Santosh Jain
S/o Shri Sain Dutta Mal
R/o B-95, and also BA/C, Gali No.1, Majlis Park,
Delhi
Vs
1. Ved Prakash S/o Shri Sain Dutta
Mal, R/o B95 and BA/C, Gali No.1,
Majlis Park, Delhi
2. Renu Khurana W/o Shri Gurvinder
Khurana (Proceedings abated qua the
said accused) vide order dated 20.01.2023.
3. Gurvinder Khurana (already
discharged) vide order dated 31.01.2014.
4. Rita Malhotra W/o Sh. Chaman Lal
(already discharged) vide order dated 31.01.2014.
5. Shri Chaman Lal (already discharged) vide order
dated 31.01.2014.
Police Station : South Rohini
Under Section : 420/34 IPC
Date of Institution : 28.05.2001
FIR 853/02, PS South Rohini & Case no. 8901/16
Santosh Jain v/s Ved Prakash page 1 /18
Date of reserving of order : 25.04.2023
Date of Judgment : 25.05.2023
CNR No. DLNW02-000268-2003
JUDGMENT
1. Serial No. of the case : 8901/2016
2. FIR NO. : 853/2002, PS S.
Rohini
3. Name of the Complainant : Santosh Jain
4. Name of accused :
(1) Ved Prakash
(2) Renu Khurana( deceased)
(3) Gurvinder Khurana (discharged)
(4) Rita Malhotra (discharged).
(5) Shri Chaman Lal (discharged).
4. Offence for which charge
has been framed : S. 420/34 IPC
5. Plea of accused : Not guilty
6. Final Order : Acquittal
7. Date of Judgment : 25.05.2023
1. The present matter holds the notorious distinction of being one of oldest matters pending in this court. Its progression in last two decades is reflective of our sluggish judicial system.
2. In the present matter, FIR (first information report) was FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 2 /18 registered after order was passed u/section 156(3) of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.) and the complaint case and charge-sheet were consolidated under section 210 Cr.P.C. vide order dt. 18.10.2005.
FACTUAL MATRIX:
3. Briefly put, the story of the prosecution is that complainant, a window, was dealing with stress and financial worries after demise of her husband in month of May, 2000 and accused persons, who were known and trusted by her took advantage of her vulnerable situation and cheated her for a total sum of Rs. 3,40,000/- on the pretext of providing her a counter in a showroom of garments.
4. Since the police case was registered upon court complaint, it is pertinent to refer to the said complaint. The complaint was filed against five accused persons who allegedly cheated the complainant by falsely representing that they are going to buy a showroom in Rani Bagh for Rs. 15,00,000/- (Fifteen Lakhs) whose owner has died, that money had been contributed by all of them in advance and that complainant would be given a counter in said showroom if she also invests her money. It is further stated that before making any investment, complainant sought advice of accused Rita Malhotra, Chaman Lal, Gurvinder Khurana as they were known to be partners of accused Ved Parkash, but said accused persons falsely assured complainant that her money would remain safe and told her to give money to accused Ved FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 3 /18 Parkash. Complainant was under lot of tension, trusted accused persons and became victim of the conspiracy hatched by all accused persons and ended up handing over Rs. 2,50,000/- to accused Ved Parkash on 14.11.2020 and a month thereafter a further sum of Rs. 90,000/-. It is also stated that accused Renu executed two stamp papers as it was practice of accused Ved Prakash to take cash and ask Renu to execute documents. However, complainant was not provided with any counter despite several requests. On 13.03.2001, complainant came to know that accused Renu had fled away after selling her house and shop, and she went to police station with her complaints dt.13.03.2001, 14.03.2001, 15.03.2001 and 19.03.2001 but no FIR was registered upon her complaint rather she was made a witness in another case FIR no 176/2001 P.S. South Rohini.
PROGRESSION OF CASE:
5. Eventually, FIR no.853/02 P.S. South Rohini, dt.12.12.2002 was registered in compliance of order dt. 27.06.2002. Matter was investigated by then SI Dayanand.
During investigation, accused persons were granted anticipatory bail with directions to join investigation as and when required by the investigating officer (hereinafter referred to as "IO"), but except for accused Renu, no accused was joined in the investigation (as per judicial record). IO collected documents from the complainant which were already annexed by her in her court complaint, recorded statement of complainant and her mother namely Sushila Sharma and filed FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 4 /18 charge-sheet on 20.01.2005 against all five accused persons u/section 420/120B/34 of IPC.
6. The complaint case and charge-sheet were consolidated u/section 210 Cr.P.C. vide order dt.18.10.2005 and all five accused persons were summoned to face trial vide order dt. 16.12.2008. Vide order dt. 31.01.2014, accused Rita Malhotra, Chaman Lal, Gurvinder Khurana were discharged from the present case and charge u/section 420 read-with section 34 IPC was framed against accused Renu and Ved Prakash to which they pleaded not guilty and claimed trial. Prosecution evidence was closed on 04.12.2017. Separate statements of accused person u/section 313 Cr.P.C. was recorded wherein they denied all allegation but did not lead any positive evidence in their defence. Written submissions were filed by both the sides and after hearing final arguments, the matter was reserved for pronouncement of judgment. It needs mentioning due to demise of accused Renu pending trial, present proceedings qua her have been abated vide order dt 20.01.2023.
7. It has been argued by Ld. APP for state and Ld. counsel for the complainant that complainant's testimony is fully corroborated with her previous statements and thus, prosecution has successfully proved the guilt of accused Ved Prakash beyond reasonable doubt. Per contra, it has been argued by accused Ved Prakash that there are material inconsistencies in the prosecution case as complainant had given different statements and thus, she is an unreliable witness. Alternatively, it is also argued that after demise of FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 5 /18 accused Renu, now there remains no material against the accused Ved Prakash.
RELEAVANT LAW:
8. Before proceeding, let us refer to relevant provisions of law. Section 415 IPC defines the offence of cheating and section 420 IPC prescribes the punishment for the offence of cheating by way of inducement to deliver property. Language of both sections is re-produced here for ready reference:
"415 Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section"
"Section 420: Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 6 /18 any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. From bare perusal of language of section 415 IPC it becomes evident that before a person can said to committed the offence of cheating, it needs to be established that either a person was deceived into delivering property by dishonest or fraudulent inducement or was deceived by intentional inducement either into doing something or not doing something which would not have been possible but for inducement. Thus, the section 415 IPC talks about two categories of deception and one of the categories relate to delivery of property which has been separately dealt u/section 420 IPC.
10. To put it in simpler words, to establish the offence of cheating u/section 420 IPC, following has to be proved simultaneously:
a. Accused made false representation and; b. Accused knew the same to be false and; c. Accused has either dishonest or fraudulent intention at the time of making representation and; d. As an effect of representation made with such intention, the victim has been deceived and induced to deliver property.
FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 7 /18 FACTS TO BE PROVED:
11. Coming to the facts of the present case, prosecution is required to prove following:
e. Firstly, that a representation was made by accused Renu and Ved Parkash regarding providing the complainant with a counter shop in a showroom located in Rani Bagh to be purchased by them; f. Secondly, that representation was false; g. Thirdly, that accused persons had knowledge regarding falsity of the claim at the time of making the same;
h. That, believing the false representation, complainant handed over sum total sum of Rs 3,40,000/- (i.e., Rs. 2,50,000/- on 14.11.2000 and thereafter Rs. 90,000/-) PROSECUTION EVIDENCE:
12. During trial, prosecution led following evidences.
i. Oral Evidence: Prosecution has cited total 4 witnesses. By giving a statement u/section 294 Cr.P.C., accused admitted genuineness of the FIR in question, hence, PW HC/DO Gurbax Singh was dropped from list of witness vide order dt.
20.01.2017. PW Sushila and PW SI/IO Dayanand were dropped from the list of witnesses vide order dt.05.08.2017 (former as she expired and latter was found physically unable to depose) Oral Testimony PW: 1 Complainant Santosh Jain PW: 2 HC Ravinder FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 8 /18 j. Documentary Evidence:
Documentary Evidence Ex. PW-1/A1: Stamp paper in name of Santosh Jain Ex. PW-1/A2: Stamp paper in name of Sushila Ex. PW-1/A3: Police complaint dt.14.03.2001 Ex. PW-1/A4 Police complaint dt.19.03.2001 (hereinafter also referred as "third police complaint") Ex. PW-1/B Complaint given in court (hereinafter also referred as "court complaint") Mark "XX" Photocopy of record of shop in 29 pages Mark "YY" Copy of letter written by accused Renu to one Radha Mark "ZZ" Copy of letter written by husband of accused Renu namely Gurvinder Khurana Ex. PW-2/A Report of SHO, P.S. South Rohini dt. 15.01.2016 regarding destruction of complaint filed on 13.03.2001, 14.03.2001, 19.03.2001 and 07.05.2001.
Ex. PW-2/B Copy of order dt. 27.03.2006 passed by then Dy. C.P., North-West Distt, Delhi verified by SHO, P.S. South Rohini APPRECIATION OF EVIDENCE:
13. PW-2 HC Ravinder is a formal witness whose testimony has no bearing on merits of the case. Hence, same need not be discussed.
14. To establish delivery of property as consequence of inducement, prosecution has firstly placed reliance upon two stamp papers purportedly signed by accused Renu at behest of accused Ved Parkash. As per said stamp papers, on 14.11.2000 accused Renu had allegedly borrowed sum of Rs. 1,50,000/-
FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 9 /18 from complainant and Rs. 1,00,000/- from Sushila (mother of complainant) to be repaid within period of six months.
15. Since, the said documents are alleged to be executed by accused Renu (who had expired during pendency of the present matter), any discussion regarding the admissibility and evidentiary value of same is futile. Otherwise also, mere production of a document during trial is not sufficient, it has to be proved before it can be treated as piece of evidence. To prove a document, both its existence and its contents need to be proved. Accused persons denied execution of the stamp papers by suggesting to complainant during cross-examination that same is forged.
16. Thus, first and foremost, the prosecution was required to prove the signatures of accused Renu on the stamp papers in accordance with section 67 of Indian Evidence Act, 1872 by calling either a handwriting expert or a person acquainted with handwriting of accused Renu or by comparison of questioned signatures with admitted signatures. However, prosecution had not taken in steps in that direction, probably because contents of the stamp papers are stated to be false by complainant herself. Thus, the stamp papers cannot be read in evidence. It is pertinent to mention that an application was moved on behalf of complainant seeking for directions to the IO to send the certain documents along-with handwriting of accused to the Forensic Science Laboratory for comparison but same was withdrawn on 28.11.2017 for the reasons best known to complainant.
FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 10 /18
17. In her testimony on oath, complainant stated that she asked the accused reasons for mentioning the transaction as a loan transaction in stamp papers, nonetheless upon their assurances, she accepted the same. However, her testimony doesn't inspire confidence. As per her own previous statement in form of second police complaint (produced by complainant herself during her testimony, Ex. PW-1/A3 dt. 14.03.2023 bearing her signatures at point "A" and unchallenged by defence), she had given sum of Rs. 1,50,000/- as loan to accused Renu and Ved Prakash and Ms. Sushila Sharma had also given Rs 1,00,000/- to accused and the possess stamp papers to prove the transaction.
18. Moving on, though the indifference shown by police in the present matter is apparent from file (who had not done anything in the present matter apart from re-filing the documents in form of charge-sheet which were already filed by complainant with her court complaint), what is surprising is inactiveness of complainant. Being cross-examined specifically on the point of availability and source of funds, she did not produce any document in support of her testimony despite same being within her reach. In her cross-examination, complainant revealed that sum of Rs 1,50,000/- were arranged by her through FDR in name of her children. She admitted that her mother had not given Rs. 100,000/- and hastened to add that her father had given a cheque to her in the year 2000 in sum of Rs 100,000/-. When asked to reveal further details, she stated that she has no document FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 11 /18 regarding FDR and has not brought the passbook in the court and also stated that she had not shown the same to the IO. Further, she failed to disclose any detail of cheque like date, name of bank and withdrawal date. When asked about alleged payment of further sum of Rs 90,000/-, complainant failed to mention exact date and number of instalments. It needs mentioning here that cross-examination of complainant was deferred 24.01.2015 and resumed on 04.07.2015. Thus, she had ample time to produce documents like FDR, pass book entry, bank account statement. On appreciation of material on record, I find the version of complainant to be inconsistent. As mentioned above, second police complaint i.e. Ex. PW1/A3 is silent with respect to Rs. 90,000/-. Furthermore, it is mentioned in the said complaint that sum of Rs. 100,000/- were obtained from Ms. Sushila, who is admittedly mother of complainant. Whereas, in her third police complaint (produced by complainant herself during her testimony exhibited as Ex. PW1/A4 dt. 19.03.2001 bearing her signatures at point "A" unchallenged by the defence), mother of complainant had invested Rs. 1,50,000/-, Rs 1,20,000/- were arranged from FDR and Rs. 100,000/- were received by her after her husband's demise.
19. Further, during her testimony, complainant stated that she asked the accused persons to give her single stamp paper and also asked the reason for executing two separate stamp papers. However, in her cross-examination, complainant herself admitted that she had bought two stamp papers beforehand from her FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 12 /18 relative Amit.
20. Thus, on two crucial factual aspects i.e. delivery of Rs. 3,40,000/- and inducement by accused persons in form of providing a counter shop in a show room, complainant's version is found inconsistent for reasons mentioned above.
21. This court is mindful of the fact that not every inconsistency is material. Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence. It is also a settled principle that statements of the witnesses have to be read as a whole and the Court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. Hon'ble Supreme court in case titled as STATE OF RAJASTHAN VS. SMT. KALKI & ANR 1981 SCC (2) 752 observed that "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be." Material discrepancies are those which goes to the root of the matter. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Irrelevant details which do in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions.
FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 13 /18 Whether in a given case, inconsistency is material or normal depends upon facts of that case.
22. Coming to facts of present case, there are three different statements given by complainant at three times and occasions. One statement is her second police statement EX. PW1/A3 dt. 14.03.2001 wherein she has stated that sum of Rs 1,50,000/- was given to accused Renu and Ved Prakash as loan and Rs 100,000/- was given by her mother to accused and that she has two stamp papers to prove the transaction. Then there are other statements i.e. third police complaint Ex. PW1/A4 dt. 19.03.2001 and complainant's testimony on oath wherein she has stated that she was induced to deliver money on promise of providing her with counter at show-room in Rani Bagh. Thus, there is inherent repugnancy between statements of complainant. Further in her police complaints, she has stated that in the money invested by her certain amount was contributed by her mother but in her testimony she denied same. Furthermore, from material on record, it is not clear exactly what amount was invested by the complainant and how she arranged the same. In her second police complaint, she had mentioned amount of Rs 2,50,000/- and sum of Rs 50,000/-, whereas in her third police complaint she had mentioned Rs. 1,50,000/- as contributed by her mother, Rs. 1,20,000/- as arranged from FDR and Rs 1,00,000/- as received by her after demise of her husband. In her testimony, she mentioned a figure of Rs 3,40,000/- out of which she stated that Rs. 1,50,000/- were arranged by her through FDR and her father had given her a cheque of Rs. 1,00,000/- and she denied any FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 14 /18 contribution by her mother. All the statements afore-discussed cannot be true simultaneously. Since, the entire story of prosecution is of around inducement by accused persons in form of providing a counter in a showroom and delivery of Rs. 3,40,000/- it was incumbent upon complainant being the victim and only witness to explain the inconsistency in her statements. However, she had chosen to remain silent. Thus, the inconsistencies in the complainant's statement cannot be brushed aside as minor and insignificant. Further, her explanation that she was assured by accused regarding the contents of the stamp papers and regarding the execution of two stamp papers in place of a single stamp paper is nothing but as can only be treated as self-serving statement made with intention to fill the gaps in her version.
23. With respect to representation allegedly made by the accused persons, no investigation has been done by the IO. Question as to whether any false representation as alleged was ever made to complainant or not is also dependent upon testimony of complainant, which as discussed above is found to be inconsistent and unreliable.
24. To substantiate her allegations, complainant also produced certain documents which were as Mark "XX", Mark "YY" and Mark "ZZ". Though, the documents were not questioned by the defense during trial, same do not advance the case of the complainant. Document marked as "YY" is copy of a letter purportedly written by accused Renu to one Radha, but FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 15 /18 application of complainant for summoning Radha moved u/section 311 Cr.P.C was dismissed by this court vide order dt. 26.06.2019 and her revision petition against the said order was also dismissed vide order dt. 09.12.2020 passed by Ld. Principal District and Sessions Judge. Document marked as "ZZ" and marked as "XX" have not been proved in terms of Indian Evidence Act. Otherwise also, same in no way advance case of prosecution.
25. During cross-examination, Ld. Counsel for accused pointed out various omissions on the part of complainant i.e. not mentioning in her court complaint and her third police complaint of various facts mentioned by complainant in her testimony. For instance, fact of previous offers for investment received by complainant from the one Gurvinder (discharged from present case) husband of accused Renu and from accused Ved Prakash, fact of help given by accused persons in selling her unsold stock, abnormal behaviour of accused Renu, her leaving for Balaji, Rajasthan for treatment, the fact of costly items belonging to accused Renu being taken away by accused Ved Prakash, fact of complainant herself apprehending the accused Ved Prakash while returning from police station to her house. However, same does not require any discussion as on material particulars complainant is found to be unreliable as already discussed above. CONCLUSION:
26. It is cardinal principle of criminal jurisprudence that accused is presumed to be innocent until proven guilty and initial FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 16 /18 burden of proof rests upon the prosecution which has to prove its case beyond any reasonable doubt. As far accused is concerned, he/she is not required to led any positive evidence. He/she can prove his/her innocence by raising doubts with respect to the story of prosecution in the mind of adjudicating authority which can be done by cross-examination of witness. It is also settled principle of law that conviction can be sustained on a sole testimony of an eye-witness provided that it proves itself to be reliable and remains consistent, unchallenged and unshaken during cross-examination.
27. Whether in the present case, prosecution has been able to discharge its burden of proof or not hinges upon testimony of complainant, she being the only prime witness examined by prosecution. Documents i.e. two papers and marked as "XX", "YY", "ZZ" have not been proved during trial. Other documents i.e. second and third police statement and her court complaint for the reasons discussed above do not support testimony of complainant.
28. In view of material consistencies in complainant's versions, basic ingredients of offence of cheating as defined u/section 420 IPC i.e. inducement and delivery of property are not fulfilled. Complainant in the present matter is found to be unreliable due to her different statements at different time. Same coupled with complainant's blissful and intentional silence, failure on her part to offer cogent explanation and absence of any other material on record against accused Ved Prakash, FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 17 /18 cumulatively cast shadow of doubt over prosecution's version. It has failed to establish guilt of accused Ved Prakash.
29. Resultantly, accused Ved Prakash s/o Sain Dutta Mal is hereby acquitted of charge under section 420/34 of Indian Penal Code 1860.
Pronounced in open court today i.e. 25.05.2023 RITIKA KANSAL MM-07/North-West Distt.
Rohini Courts, Delhi 25.05.2023 It is certified that this judgment contains total 18 pages and each page has been signed by the undersigned.
RITIKA KANSAL MM-07/North-West Distt.
Rohini Courts, Delhi 25.05.2023 FIR 853/02, PS South Rohini & Case no. 8901/16 Santosh Jain v/s Ved Prakash page 18 /18