Delhi District Court
State vs . Gautam Kumar Etc. Kaur on 25 February, 2020
IN THE COURT OF MS. GURMOHINA KAUR
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 145/96 Digitally
PS : Lajpat Nagar signed by
U/s : 120B r/w 420, 420 r/w 120B and 506 r/w 34 IPCGURMOHINA GURMOHINA
State Vs. Gautam Kumar etc. KAUR
KAUR
Date:
Case No. : 85406/16 2020.02.27
10:06:08 -0600
Date of institution of case : 21.12.1998
Date of reserving the judgment : 30.01.2020
Date of pronouncement of judgment : 25.02.2020
JUDGMENT
1. S. No. of the Case : 85406/16
2. Date of Commission of Offence : 1996
3. Name of the complainant : Smt. Neera Malik,
R/o M11, Lajpat Nagar III,
New Delhi.
4. Name,parentage & address of accused : 1. Gautam Dhar, S/o A.K.
Dhar, R/o AI/B/111C,
Paschim Vihar, New Delhi.
2. Subroto Brahma, S/o N.C.
Brahma, R/o G1228,
C.R. Park, New Delhi.
5. Offence complained of : u/s 120B r/w 420, 420 r/w
120B and 506 r/w 34 IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. Briefly stated facts of the case are that the complainant Ms. Neera Malik was FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 1 induced to pay Rs.52,50,000/ to both accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma pursuant to a criminal conspiracy who promised her high rate of interest by alluring her in their business. It is averred in the charge sheet that both the accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma assured that their business would give profit and that if she would make an investment in the factory and both of them would work in the factory as her employees. It is further alleged as per charge sheet that the accused persons obtained her signature on many papers after preparing the resolution and meeting papers of M/s Agnay Automation Pvt. Ltd. and M/s SB System company. It is also stated that visiting card of the complainant was prepared by the accused persons wherein the complainant was shown as Chairperson of M/s Agnay Automation Pvt. Ltd. and that both the accused persons started collecting money from her on different occasions and she made payments to them from 17.12.1994 to 20.01.1996. It is further alleged as per the charge sheet that on checking the accounts, it was revealed to the complainant that the total amount spent by the complainant in the factory was Rs.52 lacs and despite query from accused namely accused Gautam Kumar Dhar (PO), no proper information was given to the complainant and that it was then revealed later to that both accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma had become the owners of the company M/s Agnay Automation Pvt. Ltd., after playing fraud FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 2 and on the basis of forged documents. It has been averred in the charge sheet that both the accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma could not be found nor they were available when the complainant tried to contact them, however, they threatened the complainant that, if she asked for accounts she would be kidnapped and her dead body would be found. It is further alleged in the charge sheet that during investigation it was revealed that both the accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma pursuant to a criminal conspiracy to cheat the complainant had constituted M/s Agany Automation Systems Pvt. Ltd. and got it registered with ROC on 19.05.1994 with intention to induce the complainant and the accused persons had even published advertisement in the newspaper wherein amount was sought to be invested in the company with 10% monthly interest. It is further stated in the chargesheet that they induced the Complainant to part with Rs.52.50 lacs and in order to show the genuineness, the accused persons namely accused Gautam Kumar Dhar (PO) and accused Subroto Brahma prepared promissory notes of the said amount and gave it to the complainant and also filled Form 32 to appoint the complainant as Director in the company from 01.01.1996. On these facts FIR was registered and on completion of investigation charge sheet was filed before the court on 12.12.1998. Cognizance of the offence was taken and both accused persons were summoned. Vide order dated 21.08.2003 FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 3 accused Gautam Kumar Dhar was declared PO.
2. After supplying copies of chargesheet and documents in compliance of Section 207 Cr.P.C. and on finding a primafacie case, vide order dated 05.10.2004 charge u/s 420/120B/506 was ordered to be framed against accused Subroto Brahma to which the accused Subroto Brahma pleaded not guilty and claimed trial.
3. In order to substantiate and prove the charge against the accused persons prosecution examined as many as 15 witnesses.
4. PW1 Neera Malik is the complainant who deposed that she had paid Rs.52.50 lacs to the accused persons from 17.12.1994 to 20.01.1996. She stated that accused Gautam Dhar (PO) used to teach her children and she had been informed that accused Gautam Dhar (PO) was doing the business of fax role papers alongwith his brother accused Subroto Brahma and that accused Gautam Kumar Dhar (PO) further told her that she had both money and time and that they should together start a business in M/s Agany Automation Systems Pvt. Ltd. of which advertisement has already been given in the newspaper and the amount which was sought to be repaid was at the rate of interest payable at 10%. She stated that she believed in both the accused persons and paid them Rs.1 lacs on 17.12.1994 and the accused persons issued her promissory note of Rs. 1 lacs on which both the accused persons put their signatures. She added that when she handed over the said promissory note, the accused persons also acknowledged the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 4 receipt of one note in the diary maintained by her by putting their respective signatures. She also stated that the both accused persons used to visit her residence to collect amount from her by acknowledging the said amount in her diary and by issuing promissory note and that till 20.01.1996, she handed over the amount to the accused persons an amount of Rs.52 lacs which included interest as well. She deposed that she kept on asking the accused persons about the development of factory but the accused persons kept on delaying on one pretext or the other and also told her that the one factory of M/s Agnay Automation Pvt. Ltd. and one other concern M/s B System was being run and that she would be made the Chairman. She stated that when she called the accused persons for rendering accounts, they kept avoiding her and thereafter she called Nitin Johri, her CA to verify the accounts and both the accused persons were also called by her with account books. She added that accused Gautam came on 04.02.1996 and 08.02.1996 and on 09.02.1996 and her CA checked the account but accused Gautam Dhar (PO) could not explain the discrepancies as he was unable to explain the heavy amount which he had spent. She then added that she called Sh. S.N. Kalra, Advocate, who used to look after company cases and he told her that there was bungling in the accounts. She further stated that she alongwith advocate Sh. S.N. Kalra went to the house of Subroto Brahma at G1228, C.R. Park and found the family members who informed them that accused Subroto had gone to the market. She further deposed that accused Subroto slipped away FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 5 when his sisters told him that they were at his house and added that when she had inquired about accused Gautam Dhar (PO), his mother informed that Gautam had not come to his house for the last 2/3 days and thereafter they avoided her and gave her threatening on telephone that if she asked them to render their accounts they would get her and her children kidnapped and their dead bodies would not be traced because they had many gundas with them. She added in her deposition that she repeatedly received the threatening calls and was threatened that she will not be kept alive. She added that her written complaint was Ex.PW1/A. She further stated that the accused Gautam Dhar (PO) had run away after giving her threats and was not found by the police and he alongwith accused Subroto Brahma had broken the locks of the factory and had stolen the goods from both the factories. She added that she had also filed a case in PS Kalkaji u/s 448/457 IPC. She stated that in her deposition accused persons had told her they had made her the Director of the company on 01.01.1996 and in that pretext they had obtained her signature on number of blank papers and that she later on came to know that they had removed her from Directorship of the company on 01.06.1996 without her knowledge. She added that during the investigation, the IO had seized the receipt dated 17.12.1994 amounting to Rs. 1 lakh by Gautam Dhar, which was Ex.PW1/B and the photocopy of the receipt of Rs. 2 lakh taken by accused Gautam (PO) was Mark E, was also seized by IO vide seizure memo Ex.PW1/C. The 21 promissory notes dated FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 6 17.12.1994, 27 promissory notes dated 17.01.1995, 43 promissory notes dated 17.02.1995, 9 promissory notes dated 17.04.1995 and one diary containing pages 1 to 142 were seized vide seizure memo Ex.PW1/D. The promissory notes were collectively Ex.P1 to Ex.P5 and the diary was Ex.P 6 and the documents of Memorandum of Articles of M/s Agnay Automation System Pvt. Ltd. was Ex.PW1/F, visiting cards of complainant showing her to be Chairperson of M/s Agnay Automation System Pvt. Ltd. was Ex.PW1/G. During her cross examination conducted by Ld. Defence Counsel, she stated that she was an income tax payee and that she had seen the advertisement but she did not remember as to whether she had given the same to the police or not during the investigation. She also stated that she did not remember whether in the advertisement the rate of interest had been mentioned or not. She further added during her cross examination that she did not remember as to what was the mode of payment of Rs. 1 lakh on 17.12.1994 but stated that she had enough funds such as FDRs in bank, Cash in hand etc. from which she paid Rs. 1 lakh to the accused persons. She also pointed out to the 21 demand promissory notes dated 17.12.1994 during her cross examination worth Rs.9900/ each out of which 20 are Rs.9900/ each and one of Rs.1000/She stated that all the demand promissory notes of Rs.9900/ mentioned two names of Raj Gupta and Neera Malik and the 21 promissory notes were Ex.PW1/1 to Ex.PW1/21 and all these promissory notes bore the signatures of Subroto Brahma and FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 7 Gautam Dhar (PO). She added that the witness no. 2 was her son and admitted that the demand promissory notes mentioned the money as a loan transaction. She further stated that Ex.P6 was the acknowledgement signed by accused Gautam Dhar (PO) on a page, copy of which was tagged in her diary by pin and admitted that there was no date of execution mentioned on it and that the said note was not signed nor counter signed by accused Subroto Brahma. She also added that the money given by her was carrying an interest rate of 10% per month and the money i.e. Rs.52,00,000/ was the money inclusive of interest till 20.01.1996. She, however, added that she could not tell the exact principal amount which was mentioned in the diary of 142 pages and the same were Ex.PW1/1 to Ex.PW1/51. It was observed by the court during cross examination of PW1 Neera Malik conducted on 17.04.2010 that on all promissory notes, accused Subroto Brahma was cited as a witness and not as a borrower and all the promissory notes mentioned that all the amount was taken as loan. The complainant / PW1 further stated during her cross examination that the writing was done by the accused himself at her home where he took money from her on 17.04.1995. She added that she could not say from which account the money was given to the accused, but he had acknowledged the money as and when required. She also stated that she did not remember, the date or month, but it was in the year 1996 that she was threatened by the accused persons. During her cross examination conducted on 19.01.2019, she stated that the signatures FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 8 of accused Subroto Brahma appeared on page no. 141 of Ex.PW1/51 and further mentioned that date of 17.04.1995 was mentioned on the aforesaid page. She also stated that accused Gautam Dhar (PO) had signed the promissory notes Ex.PW1/3 and further added that accused Subroto Brahma signed the diary on page 141 Ex.PW1/51. She stated that accused Subroto Brahma signed as a loanee / receiver of loan at page 141 of diary Ex.PW1/51 and also signed the promissory note, Ex.PW1/51 and that she had handed over the documents including diary to the police for registration of FIR. She denied the suggestion that writing and signatures of accused were forcibly obtained in the Police Headquarter in her presence on getting the police remand of accused Subroto Brahma.
5. PW2 WSI Rita deposed that on 17.02.1996 she was posted at PS G.K. as Duty Officer. She stated that FIR was Ex.PW2/B and endorsement on the same as Ex.PW2/B. During cross examination conducted by Ld. Defence counsel she stated that she could not deny the suggestion that the case was registered at the instance of senior officers of police on the request of the complainant and added that she had simply registered the case as per the dictates of senior officers including Sh. O.P. Arora dated 17.02.1996.
6. PW3 Insp. Dhanvir Dutt deposed that he was posted as an Insp. at SIT Section, Crime Branch and was assigned investigation of the case. He stated that on 17.11.1996, CFSL documents and report were collected by him and placed on the file and further that on 27.11.1996, some additional papers FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 9 required by FSL were also sent. Thereafter, he was transferred as SHO and case file was handed over to ACP, SIT for marking it to some other officer. This witness was not cross examined by ld. Defence counsel despite being given opportunity.
7. PW4 R.K. Sabarwal deposed that he was working as CA since 1990 and accused Gautam Dhar (PO) came to him on 1992 through a common friend Sh. Chander Singh and in the year 1994 accused Gautam Dhar again came to him and told him that he wanted to incorporate a company in the name of M/s Agnay Automation Systems Pvt. Ltd at G1228, C.R. Park and the said company was incorporated on 19.05.2004 and was registered with ROC, Delhi and Haryana. He added that in the first week of February, 1996 accused Gautam Dhar (PO) approached him and told him that complainant Neera Malik has been appointed as Director of their company w.e.f 01.01.1996 and accordingly, he filed the relevant papers with the Registrar of the Companies on 12.02.1996 for the appointment of Neera Malik as Director. He further added that after 45 days accused Gautam Dhar (PO) again came to him and told that the newly appointed Director Neera Malik had resigned and that he should inform ROC regarding the resignation and he submitted the relevant document of resignation on ROC on 16.02.1996. Witness further deposed that the Resolution of Board of Director in respect of the appointment and dismissal of the new Director were available with the respective companies only and same were audited by him at the time of FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 10 finalization of account and filing of annual returns. He also added that on 25.02.1996, he had handed over the original Form 32 regarding Appointment of Complainant, Neera Malik as Director and another Form 32 showing her resignation from the said Company alongwith the receipt intimating the ROC, filing of fees etc to the IO of this case and that both the Forms no. 32 on record were Ex.PW4/A and Ex.PW4/B respectively. During cross examination conducted by Ld. Defence counsel, witness stated that he had not brought the minutes of the meeting and they were not available with him. He deposed that he was not aware whether the police had seized the minutes from the office of the company. He further added that Ex.PW4/A and Ex.PW4/B were filled by him at the instance of accused Gautam Dhar (PO) and was signed by accused Gautam Dhar (PO) himself. Witness further deposed that accused Subroto Brahma had signed the Audited Annual Accounts of the company on 02.09.1995 in his office.
8. PW 5 Binkesh Kocchar deposed that he did not know anything about this case and he had received the summons. He added that he came to know that this is a case filed by complainant Neera Malik wherein he was made witness and that promissory notes Ex.PW1/22 to Ex.PW1/47 did not bear his signature as witness no. 2. He further added that the handwriting in which the address is mentioned as N268, Greater Kailash I, New Delhi was very much similar to his handwriting but he had never become the attesting witness to the execution of promissory note at any point of time nor he had FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 11 given any statement to the police ever. This witness was cross examined by the Ld. APP for State as he resiled from his statement recorded u/s 161 Cr.P.C. During cross examination conducted by Ld. APP for State, he denied that on 17.01.1995 he had signed twenty seven promissory notes Ex.PW1/22 to Ex.PW1/47 and that he had mentioned his address below the signature. He also denied that he had signed the promissory notes at the house of complainant Neera Malik and IO had recorded his statement.
9. PW 6 Sh. Abhinandan Sood deposed that during the period 1993 to 1996, he was working with M/s S.B. Systems and M/s Agnay Automation Systems Pvt. Ltd and accused persons namely Subroto Brahma and Gautam Dhar (PO) were its Directors. He added that complainant Neera Malik visited their office few times and he had signed the promissory notes as witness no. 1, Ex.PW1/51 to Ex.PW1/102 in the office of crime Branch, PHQ, ITO. He further added that in his presence these promissory notes were never executed between the parties and he had signed these promissory notes at the instance of police offical under threat. This witness was cross examined by the Ld. APP for State as he resiled from his statement recorded u/s 161 Cr.P.C. wherein he denied that he had signed the promissory notes Ex.PW1/51 to Ex.PW1/102 as witness no. 1 at the time of execution of the same and that he had signed the promissory notes at Crime Branch office, PHQ, ITO under the pressure of police. During cross examination conducted by Ld. Defence counsel he stated that he used to be threatened that he FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 12 would be falsely implicated in the case and police officials kept on mounting pressure on him and finally obtained his signature on these paper.
10. PW 7 SI Avdhesh Kumar deposed that in the year 1996, he received documents i.e. specimen fingerprint Marked S1 to S23 and specimen thumb impression slip of accused Subroto Brahma Marked S24 to S27 and promissory notes receipts bearing the questioned print mark Q16, Q20, Q 24, Q28, Q 32, Q 36, Q - 40, Q44, Q48, Q52, Q56, Q60, Q64, Q68, Q 72, Q76, Q80, Q84, Q88, Q92, Q96, Q100, Q104, 107A and Q195A and after comparing the above mentioned specimen with the questioned documents he prepared the report which was Ex.PW7/A. During cross examination conducted by Ld. Defence counsel he added that he had examined the questioned and specimen thumb impression on 25.07.1996 and the report was signed by the Director. He further deposed that there was an endorsement in the file of the department brought by him indicating agreement with his opinion by Sh. R.K. Rohilla, SI.
11. PW8 ACP O.P. Sagar deposed that on 01.03.1996, he was posted as Inspector in Crime Branch and on that day further investigation of the present case was marked to him and during the investigation he had flashed the information via wireless regarding the clue of the whereabouts of accused Gautam Kumar Dhar (PO) and also searched for him at his own level and even he once met him. He added that accused Gautam Dhar (PO) was not arrested as he was granted anticipatory bail from the Hon'ble High Court of FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 13 Delhi, thereafter, he handed over notice u/s 160 Cr.P.C to accused for his appearance but he did not appear to join the investigation. He further deposed that on 07.03.1996, he made an application for judicial remand of coaccused Subroto Brahma and on the same day he seized certain documents from the complainant vide memo Ex.PW1/C and recorded statement of witnesses u/s 161 Cr.P.C. He further added that thereafter the investigation was handed over to Insp. O.P. Arora on 29.03.1996. During cross examination conducted by Ld. Defence counsel, he stated that he had apprised about the appearance of accused before him in PHQ to his senior officers namely Sh. Jaipal singh, then ACP. He denied that accused Gautam Dhar was not arrested and interrogated despite the fact that he was available as he had conspired with ACP and Neera Malik, complainant and her godfather, the then Home Minister and his son Sh. Ashok Chavan because accused Subroto Brahma had a house in the name of his father in C.R. Park with a view to grab the property.
12. PW 9 Retired ACP Rajbir Singh deposed that in the year 199697 he was posted at Crime Branch as ACP and case file of this case was handed over to him for certain compliance as challan has already been drafted. He added that during investigation a matter relating to this case was pending before the Hon'ble High court of Delhi and he had appeared before the Hon'ble High Court of Delhi and on 13.01.1997, there were direction of Hon'ble High Court for operation of locker no. A19, Syndicate Bank, Nehru Place of the sister FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 14 and father of accused Subroto Brahama and Sh. Man Mohan Singh, Advocate was appointed as Local Commissioner. He added that on 15.01.1997 in pursuance of order of Hon'ble High Court of Delhi the locker was opened and inventory the articles were kept in the same condition in the locker and report was submitted to the Hon'ble High Court of Delhi, thereafter, PW9 had recorded the statement of 23 witnesses and filed the challan in the court. During cross examination conducted by ld. Defence counsel he deposed that he was also present with local Commissioner Advocate Sh. Man Mohan Singh. He also added that accused Subroto Brahma alongwith his sister and father were also present there.
13. PW10 HC Dinesh Pathak deposed that on 07.03.1996, he gone to PS Lajpat Nagar with senior official whose name he did not remember where the complainant handed over some documents to the IO which were taken by the officer and he made an endorsement in token thereof. During cross examination conducted by Ld. Defence counsel he stated that he did not know the details of the documents and the date when he visited.
14. PW11 Sh. Jagdish Kumar Chopra deposed that in the year 1995, he had a shop at Lajpat Ngar and Neera Malik, the complainant was residing at B9, Lajpat Nagar III and he knew her since 1979 to 1980 as he provided her service of electrical and plumber etc. He added that in the year 1995, he had signed 27 promissory notes Ex.PW1/22 to Ex.PW1/47 and Ex.PW11/A as a witness at the house of the complainant Neera Malik and IO recorded his FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 15 statement u/s 161 Cr.P.C. During cross examination conducted by Ld. Defence counsel he deposed that on that day he had gone to the house of complainant to attend some complaints of electricity, plumbering etc. and at that time he had signed these documents in front of complainant and her son. He denied that he had signed the abovesaid documents at the instance of the complainant and the police officials.
15. PW12 Sh. R.K. Sen relied upon certified copies of certificate of incorporation, memorandum of association and articles of association of M/s Agny Automation Private Ltd. as Ex.PW12/A, Ex.PW12/C and Ex.PW12/B respectively. He has also relied upon copy of print out of documents filing done by the said company which is Mark A and as per this detail, company filed Form 32 on 12.02.1996 vide receipt no. 144077 which was Ex.PW12/D and Second Form 32 was filed on 16.02.1996 vide receipt no. 146126 which was Ex.PW12/E. This witness was not cross examined by the Ld. Defence counsel despite being given opportunity.
16. PW13 M.C. Joshi office of Dy. Governer examiner of questioned document, CFSL Chandigarh deposed that the documents of this case were submitted for scientific examination alongwith specimen handwritings and signatures of both the accused persons and after careful examination and comparison he expressed his opinion in typed report Ex.PW13/86 and Ex.PW13/87. He stated that both his report contained detailed reason of his opinion. During his cross examination, stated that Ex.PW13/71 to FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 16 Ex.PW13/85 had dated signatures of Mr. O.P. Arora on the right side portion thereon and he did not know as to when and where Ex.PW13/71 to Ex.PW13/81 were procured and they were not procured in his presence but was made available to him through official channel. He stated that he had seen Ex.PW1/1 and it was in the handwriting and signature at portion Q15 of person namely Subroto Brahma and in Ex.PW1/51 there was a diary where they existed marking that the author at Q3 was Subroto Brahma and for the rest of the remaining items he had expressed the opinion of authorship of accused Gautam Kumar Dhar. He denied the suggestion that at the instance of police officer and Director which was not correct.
17. PW14 Sh. Anup deposed that he was servant of M.K. Choudhary and working in his house and after that he joined in Kothi at Noida as servant and one person namely Jitender introducted him to the accused Subroto Brahma and he gave employment to him. He added that he was residing in the house of accused and he was working at his office in the year 1996. He further added that he met with another accused Gautam Kumar Dhar (PO) at the office of accused Subroto Brahma and accused Gautam Dhar (PO) instructed to him to go to house of Neera Malik and collect the money from there. He further deposed that he had gone to the house of Neera Malik and collected Rs.5,000/ and handed over the same to accused Gautam Dhar (PO). He further added that he collected Rs.5,000/ to Rs.7,000/ from Neera Malik 45 times and the same were handed over to the accused Gautam FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 17 Dhar (PO). He stated that he had accompanied accused Gautam Dhar (PO) to the house of complainant Neera Malik and she gave money to accused Gautam Dhar (PO). This witness was not cross examined by the Ld. Defence Counsel.
18. PW15 ACP O.P. Arora deposed that on 15.02.1996, he was posted as Inspector at SIT Section, Crime Branch and on that day, a complaint Ex.PW1/A of complainant Neera Malik addressed to DCP Crime was lodged in Crime Branch which was marked to him by Sh. Jai pal Singh, ACP for inquiry and necessary action. He added that he had made the preliminary enquiry and found that prima facie offence u/s 420 IPC was made out and on 17.02.1996, he had made an endorsement on the complaint which was Ex.PW15/A and FIR, Ex.PW2/A was registered and he started investigating the matter. He further added that during investigation, he collected documents i.e. Memorandum of Articles of association Agnay Automation System Pvt. Ltd Ex.PW1/F, Balance sheet and Director report of the company for the year 199495 (Mark F), visiting card of Neera Malik, Chairperson of the company (Ex.PW1/4), photocopies of receipts of Rs.52.5 lacs given on diary pages (Mark ZX), photocopies of promissory notes (Mark ZY) vide seizure memo from the complainant which is Ex.PW1/E. He added that he made investigation in this case and the Complainant showed the original documents of promissory notes and diary bearing receipts of Rs.52.5 lac. He further added that on 17.02.1996, he alongwith HC Mukhtiyar Singh FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 18 and one ASI went to the house of the accused Subroto Brahma i.e. house no. G1228, C.R. Park and after interrogation he arrested accused Subroto Brahma vide memo mark ZP , his personal search was conducted vide memo Ex.PW15/B and he recorded his disclosure statement Ex.PW15/C. The supplementary disclosure statement of accused Subroto Brhama was recorded on 19.02.1996 and the same was Ex.PW15/D. Residence of accused Subroto Brahma was searched vide memo Ex.PW15/E and residence of accused Gautam Dhar (PO) was searched vide memo Ex.PW15/F. He added that search was also conducted at factory premises of M/s Agnay Automation Pvt. Ltd. at Flat no. 8106, Govind Puri Extension, New Delhi vide seizure memo Ex.PW15/H and several documents were recovered from the said premises. Witness also added that he also obtained the specimen writing of accused Gautam Kumar Dhar (PO) Ex.PW13/13 to Ex.PW13/17 and the specimen handwriting of accused Subroto Brahma which were Ex.PW13/17 to Ex.PW13/85 and he sent the same to FSL for expert opinion. He stated that he collected the documents i.e. account opening form of M/s Agnay Automation Pvt. Ltd. bearing specimen signature of accused persons Subroto Brahma and Gautam Kumar Dhar (PO) as Director of the company Ex.PW15/Q from United Bank of India, C.R. Park and same were taken into the possession vide seizure memo Ex.PW15/R and he also obtained the finger print expert opinion Ex.PW7/A. During cross examination conducted by Ld. Defence Counsel he deposed that he had FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 19 conducted the investigation in the present case from 17.02.1996 to 02.11.1996 except 04.03.1996 to 29.03.1996. He deposed that the complaint was Ex.PW1/A was addressed to DCP Crime and was dated 15.02.1996 which was received on 15.02.1996 itself and was assigned to him on the same day by ACP Jai Pal Singh vide endorsement on the left side. He admitted that the he had received the complaint running into six pages and handwriting on pages no. 2 and 3 of the said complaint here different.
19. Thereafter, PE was closed and statement of the accused Subroto Brahma was recorded u/s 313 Cr.PC wherein he denied the prosecution case in its entirety. He added that all the documents were signed by him in the police custody under pressure and the complainant could not explain herself during cross examination as to from where she had brought the money. He further added that there was no explanation from the complainant to explain why so many Promissory Notes were executed on the same day and if she was investing money in the company as Chairperson or as a Director then why was she charging interest at the rate of 10% per month. He further stated that there was no date of execution of promissory notes and even the other attesting witnesses had not supported the case of the prosecution. He added that the complainant was making a false story and investigation was conducted in a malafide manner under the pressure of High Officials and politicians and all documents were manipulated.
FIR No. 145/96
PS : Lajpat Nagar
State Vs. Gautam Kumar etc. Page no. 20
20. The accused Subroto Brahma opted to lead defence evidence and examined the following persons as defence witnesses :
21. DW1 Sh. Shakti Raj Sabarwal deposed that he had purchased D9, Lajpat Nagar from Ram Raja and Sons about 1520 years back but had not brought the sale deed of the said property. He added that he had never purchased any property from Neera Malik and he did not know the status and character of her possession. During his cross examination by Ld. APP for State he admitted that Ms. Neera Malik was residing in the aforesaid address in 1992.
22. DW2 H.C. Sunil Kumar deposed that he had brought the copy of the FIR no.
149/06 and stated that no separate case filed of the aforesaid FIR was pending in their police station and the same was with Crime branch. He was not cross examined by ld. APP for State.
23. DW3 Retired ACP Jai Pal Singh deposed that Neera Malik was known to him and he had assigned the investigation of the complaint of Neera Malik to Insp. O.P. Arora. He added that he had received the complaint Ex.PW1/A from DCP Crime. He further added that IO used to apprise him about the investigation of the present case from time to time and that he might have called the IO in the presence of Neera Malik to know about the status investigation. He added that he was transferred out of the Section prior to the finalization of the investigation of the present case. His further examination was deferred for want of record but the witness would not be called again.
24. DW4 Sh. Qumar Ahmad, Retired Special CP deposed that in the year 1996 FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 21 he was DCP Crime and Railway, Delhi Police. He added that the complaint Ex.PW1/A had its endorsement "examine for legal action". He added that the case was marked to ACP SIT and Ms. Neera Malik had personally handed over the complaint to his office. He added that he might have gone through the complaint before assigning it further to his subordinates. He was not cross examined by Ld. APP for State.
25. DW5 Insp. Swaran Kumar deposed that he had brought the file relating to providing security to Ms. Neera Malik and added that Ms. Neera Malik was provided security from Delhi Police on 06.10.1995 on the directions of Home Ministry for three months which was extended for three months and the security was withdrawn on 16.07.1996. He stated that again on the order of Delhi Police security was provided to her on 07.09.2005 which was withdrawn on 14.03.2008. He added that the security had been extended / provided because of threat perceptions. During her cross examination by Ld. APP for State he stated that he had no knowledge about FIR no. 145/96 and stated that the complainant was not known to her.
26. DW6 HC S.K. Nair brought the summoned record from the service book of ACP O.P. Arora who was posted at CAW Cell, Nanakpura New Delhi and he stated that as per their record the concerned official was posted at SIT Section of Crime Branch on 26.10.1994 and remained there up to 16.06.1997. During his cross examination by Ld. APP for Stated to have no knowledge of the case.
FIR No. 145/96
PS : Lajpat Nagar
State Vs. Gautam Kumar etc. Page no. 22
27. DW7 SI Ranjan Kumar from PS Lajpat Nagar deposed that as per their record Ms. Neera Malik was involved in FIR no. 379/96 PS C.R. Park, FIR No. 448/97 PS C.R.Park, FIR No.139/96 PS Kalkaji, FIR No.329/96, PS Kalkaji and FIR no. 797/99 PS Lajpat Nagar. During his cross examination by Ld. APP for State he admitted the fact that he had no personal knowledge about the present case.
28. DW8 HC Jai Singh brought the record Ex.DW8/A sent by ASI Ramesh, SIT Crime Branch, Sector 18, Rohini Delhi dated 26.07.2013. He added that no report submitted by Sh. O.P. Arora PW15 was available. He was not cross examined by Ld. APP for State.
29. DW9 Kush Anand, Asstt. Ahlmad in the court of Ms. Bhawna Kalia, MM 06, South East District, Saket Court deposed that he had brought the record of FIR no. 131/96 PS Kalkaji titled as State vs. Subroto Brahma. He added that the case was decided by the Hon'ble Delhi High Court on 06.03.2014. He was not cross examined by Ld. APP for State.
30. DW10 Mangal Murthi, Inspector, Income Tax Department, Ward no.
32(4) deposed that he had brought the record filed by Ms. Neera Mahajan PAN no. AHVPM225P and the certified copies of returns for the assessment year 200506 till 20062010 which were Ex.DW10/A. He added that no income tax was filed for the assessment year 2010 - 2011 till 201415 as per the income tax record. He stated that in the year 20062007 the gross total income disclosed by the assessee was Rs.1,95,912/. He stated that the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 23 original income tax return could not be produced as the office had shifted.
31. DW11 Lajpat Rai, Income Tax Officer, Ward no. 54 (5) deposed that that no income tax record from Neera Mahajan for the year 199394 to 20032004 were traceable being very old. He stated that the attested copy of Income Tax Return for the year 200405 to 20092010 was Ex.DW11/A and the assessee Neera Mahajan did not appear to have filed income tax return for the period 2011 to 2015. He added that his original letter was Ex.DW11/D (OSR) and as per the record available with their department there was no reference of any loan to any body and there was no reference of sale of any premises by Ms. Neera Mahajan. During cross examination conducted by ld. APP for state he stated that he has no personal knowledge of the case and was further admitted that the documents produced by him in his examination in chief did not mention the details to whom the loan was given but the interest amount was mentioned for the year 2005 to 2006. He further admitted that the records available with them shows that there was a reference to investment / loan but the details and name of the person to whom the loan was given on and where investment was made were not available.
32. DW12 SI Vipin Yadav, NR Crime Branch deposed that he was a summoned witness as per the record available with their branch it pertained to complainant register, diary register and dispatch register. There was nothing / noting sheet of Sh. O.P. Arora the then Insp. Crime Branch, Delhi FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 24 Police having been made on 16.02.2006 and 17.02.2006 in FIR no. 145/96 PS Lajpat Nagar and the record is Ex.DW12/A (colly.) (running into 12 pages). He added that if the accused had admitted to do with record of the year 1996, then the same was not available as accused destroyed as per rules. The witness was not cross examined by Ld. APP for State.
33. The accused Subroto Brahma examined himself as DW13 on an application being allowed u/s 315 Cr.P.C wherein he deposed that he was one of the accused in the present matter and during investigation he was arrested and taken for police remand by IO O.P. Arora. He added that during his police remand he was taken to Police Head Quarter at ITO wherein complainant Neera Malik was also present and he was not only beaten up by IO Sh. O.P. Arora and other police officials but was also made to confess, that he had taken Rs.50 lacs from complainant Neera Malik. He added that the matter of fact was that he had not taken any such amount at any point of time from the complainant and when he refused to confess, he was again beaten up and asked to tender apology to the complainant. He stated that he was directed by IO O.P. Arora and, complainant to write and sign as per their instructions on various documents and added that initially he refused but under the compelling circumstances and their assurances that they would set him free for his sister marriage and on their instructions, he had written about his name and about his taking Rs. 52 lacs from the complainant and besides that he had also signed on many documents as he FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 25 was so directed. He stated that in order to harass him further, the complainant got the locker of his sister sealed unlawfully and illegally by IO Sh. O.P. Arora and his brother in law Anoop Chakravorty was also falsely implicated in the present case by the IO at the instance of the complainant to pressurise him. He stated that he was pressurised by the IO and the complainant to transfer his property in her name or to pay Rs.26 lacs, which was half the amount of Rs. 52 lacs. He stated that on his instructions, an application u/s 340 Cr.P.C dated 07.06.1996 Ex.PW13/1 was moved which was pending. He stated that he had moved another application dated 24.02.1996 Ex.PW13/2. He also stated that he had been falsely implicated in the present case by the police at the instance of the complainant in lieu of the nearness and closeness of the complainant. He added that he was made to write and sign in diary Ex.PW1/51 during police remand on the back page of page no. 140 and on the front side of page no. 141 and he was also forcibly made to sign Ex.PW15/D while in police custody. He added that the promissory notes / receipts which he was required to sign were already Ex.PW1/1 to Ex.PW1/102 and he further clarified that some of the promissory notes did not bear his signature. He also stated that the other promissory notes which he was made to sign in police custody by the IO O.P. Arora were already Ex.PW13/3 to Ex.PW13/12 and other documents made in police custody were Ex.PW13/71 to Ex.PW13/85. During his cross examination by Ld. APP for State he denied the suggestion that he was FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 26 taken to Police Headquarter at ITO after his arrest, the complainant Neera Malik was already present there. He further denied the suggest that police had never created any pressure upon him to confess that he had taken Rs.52 lacs from the complainant Neera Malik and also denied the suggestion that he had confessed during police custody was made by him voluntarily without any force coercion or pressure. He denied the suggstion that IO, complainant and police had never unlawfully sealed the locker of his sister or falsely implicated his brother in law Sh. Anoop Chakravorty to mount any illegal pressure on him. He also denied the suggestion that allegations made by him against the complainant were false and frivolous having levelled and were baseless in order to malign her and save her from lawful force. He denied the suggestion that he was deposing falsely.
34. On completion of defence evidence, final arguments were heard.
35. It was argued on behalf of Ld. APP for State during final arguments that there was sufficient evidence on record to conclusively establish the guilt of accused Subroto Brahma the offence of criminal conspiracy to commit cheating and for the offence of criminal intimidation pursuant to common intention with coaccused Gautam Kumar Dhar (PO).
36. It has been argued on behalf of the complainant that both the accused persons i.e. Gautam Dhar (PO) and Subroto Brahma were engaged as home tutors for the children of the complainant in 1992 and during that period they had developed good relationship with the complainant and induced the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 27 complainant to invest money. It is further urged that the accused persons took approximately Rs.39,95,300/ from the complainant on different dates which as per their promise came to Rs.52,50,000/ in the year 1996 and in order to gain confidence of the complainant they issued promissory notes of the entire loan amount taken by them. It is further urged that the promissory notes were prepared by the accused themselves and the money was taken by both the accused persons who endorsed the due amount in the diary of the complainant. It has been argued that it is an admitted possession that the promissory note was signed by accused persons Gautam Dhar and Subroto Brahma either as a witness or as a recipient and the FSL report also confirmed the writing and signature as well as thumb impression of both the accused persons. It is also argued that it was not disputed that the money was taken by the accused persons in their personal capacity to invest in their company M/s Agnay Automation Systems Pvt. Ltd. and induced the complainant very cleverly to make her as Chairman and even filed Form 32 with ROC as a Director in the company to induce the complainant. It is argued that the accused has himself stated that he had taken money from her which shows her dishonest intention.
37. Per contra, Ld. Counsel for accused argued during final arguments that the accused Subroto Brahma had been falsely implicated and a false and frivolous case was filed by complainant Neera Malik qua him. It has been further argued that the investigation was carried in a prejudiced and a FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 28 biased manner and even as per the prosecution case, the complainant had issued demand promissory notes qua loan which was given in cash allegedly taken by the company and accused Subroto Brahma had only witnessed the Demand Promissory Notes. It was further argued that the firm M/s Agnay Automation Pvt. Ltd. which had allegedly taken the loan had not been impleaded as accused, which goes to the root of the matter. He submitted that there was no evidence whatsoever no record nor were there any allegations in the charge sheet that the accused Subroto Brahma was responsible for the conduct of the business of the company. It has also been argued that none of the demand promissory note or receipt have been proved and the alleged diary and demand promissory notes relied upon by the prosecution had got forcible written from the accused Subroto Brahma while he was in police custody in the presence of the complainant.
38. Arguments heard. Record perused and considered.
39. Perusal of the record reflects that the charges were framed qua accused Subroto Brahma for offences punishable u/s 120B r/w Section 420 IPC, u/s 420 r/w Section 120B IPC and u/s 506 read with 34 IPC. The relevant provisions are as follows :
(a) u/s 120B IPC : (I) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 29 manner as if he had abetted such offence.
(ii) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
(b) u/s 420 IPC : Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole of 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.
(c) u/s 506 IPC : Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years , or with fine, or with both
(d) u/s 34 IPC : When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
40. Qua the offence of Section 506 IPC r/w 34 IPC, it is pertinent to mention that no evidence of threat have been led by the complainant / PW1 or any other witness during trial to show that the accused Subroto Brahma had given or extended threats to the complainant Neera Malik to cause death or grievous injuries to her or her children as alleged. It has been held in the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 30 judgment of Amulya Kumar Behera vs. Nabaghana Behera, 1995, CrLJ 3559 (Ori) that the intention of the accused must be to cause alarm to the victim and whether he is alarmed or not is of no consequence. However, mere expression of any word without any intention to cause alarm would not be sufficient to bring the application of Section 506 IPC.
41. In order to attract the ingredients of Section 506, of the Indian Penal Code, it is essential for the offence of Criminal, 1860, it is essential for the offence of criminal intimidation that it must come on record that the intention of the accused must be to cause alarm to the victim . Mere expression of words, without any intention to cause alarm, would not suffice. To constitute an offence under Section 506 IPC it must be shown that the person charged actually threatened another with injury to his person, reputation and property or to the person or reputation of anyone in who the person is interested, with the intention to cause alarm. In the present case, even if the allegations in the complaint are read as a whole, and are accepted in their entirety as true, the ingredients of Section 506, IPC are not attracted insofar as the complainant herein are concerned except to allege that she was threatened by accused persons with threats to kill her where ever they met her and by telephone. But as discussed above no evidence has been led in this effect and neither any telephone number nor the place where she was threatened and whether these threats caused any alarm to her has not been provided or produced during trial.
FIR No. 145/96
PS : Lajpat Nagar
State Vs. Gautam Kumar etc. Page no. 31
42. In the present case, the complainant as PW1 has alleged that she was threatened by the accused persons, what were the threats extended and how did it cause alarm to her have not been explained or even provided during the entire trial. It is the case of the prosecution that she was threatened by the accused persons to kill her and her children telephonically, but from which telephone number the threats was extended or whether it was accused persons only who had threatened the complainant, had not been explained even or provided in the charge sheet nor has any investigation been done in this respect. No call details have been produced nor has evidence been collected on this aspect by the Investigating Officer. Therefore, the prosecution has not been able to prove beyond doubt the essential ingredients of Section 506 IPC qua accused Subroto Brahma in the present case. Accused Subroto Brahma is accordingly acquitted u/s 506 r/w 34 IPC in view of the aforesaid facts and discussion.
43. With respect to the offence u/s 420 r/w 120B and 120B r/w 420 IPC, it requires mentioning that in order to constitute an offence under section 420 IPC, the following essential ingredients have been provided as per the judgment of R.S. Nayak vs. A.R. Antulay (1986) 2 SCC 716 are as follows :
(a) There should be a fraudulent or dishonest inducement of a person by deceiving him.
(b) (i) The person so induced should be intentionally moved to deliver any property to any person or to consent that any person shall retain any FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 32 property.
(ii) The person so induced to do anything which he would not to do or do if he were so deceived.
(iii) In cases covered by second part of (a), the all on omissions should be one which caused or was likely to cause damage on harm to the person induced in body, mind or property.
44. It is a settled law that dishonest intention could not be interfered from the mere fact that accused subsequently failed to fulfill the promise. Reliance is placed on judgment of State of Kerala vs. Pareed Pillai and another, AIR 1973 SC 326. The fraudulent or dishonest intention must exist at the time of commission of act in respect of which the cheating is alleged. The intention to cheat must have been present at the time of initial transaction, the dishonest intention should not be inferred from the mere fact that the accused could not subsequently fulfill the promise and that subsequent inability to pay or fulfill the promise will not amount to offence of cheating.
45. In the present case, promissory notes Ex.PW1/1 to Ex.PW1/102 were alleged to be executed between the Complainant Neera Malik and M/s Agnay Automation Pvt. Ltd. wherein it has been stated that M/s Agnay Automation Pvt. Ltd. has been paid a certain amount as loan and the date on which the money given has provided alongwith amount so stated to be advanced.
FIR No. 145/96
PS : Lajpat Nagar
State Vs. Gautam Kumar etc. Page no. 33
46. The prosecution in the present case has also relied upon a diary Ex.PW1/51 in which there are certain notings on behalf of M/s Agnay Automation Pvt. Ltd. providing as to what loan amount was given on what date by the complainant Neera Malik to M/s Agnay Automation Pvt. Ltd. It is further mentioned in diary Ex.PW1/51 in notings made on the page of date of 9 November that in exchange of amount received from the complainant Neera Malik, M/s Agnay Automation Pvt. Ltd. was paying 10% interest up to 17th November and the interest was cleared. Furthermore, another noting in the aforesaid diary Ex.PW1/51 on the page of date of 18th November provides that M/s Agnay Automation Pvt. Ltd. have received Rs.10,50,000/ from complainant Neera Malik as loan on 17.04.1995 and the interest was payable at the rate of 10% per month till principal amount is returned. The aforementioned noting contained the signature of accused Subrotoa Brahma which have been proved by way of FSL report, Ex.PW13/86 and Ex.PW13/87.
47. Therefore, in the considered opinion of this Court, the amount so received on behalf of M/s Agnay Automation Pvt. Ltd. was stated to be a loan for which promissory notes were executed and notings were also made in the diary of the complainant Ms. Neera Malik to that effect and this fact has also come in the deposition of PW1. Furthermore, perusal of the cross examination of PW1 on 17.04.2010 provides that she could not tell the exact principal amount which she had given loan to the company and that the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 34 entire payment was made in cash and nothing had been paid by cheque. It has further come on record that Ex.P6 was an acknowledgment signed by coaccused Gautam Kumar Dhar on a page of copy which was tagged in her diary Ex.PW1/57 by allpin and there was no date mentioned and it was not signed by accused Subrota Brahma but allegedly contained the signatures of accused Gautam Dhar (PO). Moreover, the complainant has also admitted herself in her cross examination dated 15.04.2010 that the Demand promissory notes mentioned the transfer of money as loan transaction. PW1/complainant Neera Malik further stated that money had been transferred by way of cash on all the promissory notes relied upon by the prosecution. It was also observed by the court during cross examination of PW1 Neera Malik who is the complainant on 17.04.2010 that on Ex.PW1/4 to Ex.PW1/21 and Ex.PW1/22 to Ex.PW1/50 which were the promissory notes placed on record during trial, accused Subroto Brahma was cited as a witness. It is pertinent to mention that during cross examination of PW1 Neera Malik dated 19.01.2019, she stated that she did not take any action under the provisions of Companies Act against the accused persons.
48. Another point which requires attention was the source of money. The complainant / PW1 Neera Malik was reportedly put questions as to the source of her income tax returns during her cross examination by Ld. Defence Counsel. PW1 had stated during her cross examination dated 17.04.2010 that she had enough funds such as FDRs in bank, cash in hand FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 35 etc. and she had further added that she had FDRs in post office, Lajpat Nagar in the name of her children and parents and was having handsome earnings from her paintings. She had, however, added that she had no fixed earnings in the year 1992 and she was not supposed to pay tax as she was exempted. She had also stated during her cross examination that she could not tell the exact source as different payment were made by her to accused persons as she was receiving money from various accounts at different times and money was available to her and she could also not state from which account the money was taken but the accused acknowledged the money as and when required. PW1 further stated that she did not remember whether the payment of Rs. 10 lakhs was made by her by withdrawing money from bank, post office, FDR or cash available with her and added that during that period her property was sold and she was having plenty of money. She had further stated during her cross examination dated 19.01.2019 that she did not remember whether she had placed documents regarding the agricultural income or document regarding giving of money to her placed on record. She further stated that she had not shown the impugned loan in her income tax return since she was not filing the same. Per contra, DW1 namely Shakti Raj Sabrarwal stated during his testimony that he did not purchase the property bearing no. D9, Lajpat Nagar from complainant. These contradictions that have been lead and shown by the defence, brings contradictions in the statement of PW1/Complainant Neera FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 36 Malik on record and weakens the case of the prosecution.
49. It is also relevant to note that DW10 Mangal Murthy stated that he had brought the Income Tax Return of the complainant Neera Malik, from 2005 2006 till 20062010 and the same were Ex.DW10/A. Perusal of the Income Tax Return for these periods show that the total gross income of complainant Neera Malik was between Rs. 1 lakhs to Rs. 2 Lakhs and the Income Tax Return for the year 199394 to 2003 to 2004 was not available at their office as it was very old. DW10 also added that as per their record, there was no reference of loan to anybody. During his cross examination DW10 also admitted that as per their record there was reference of investment of loan but the affairs of such loan were not available. Therefore, the availability of funds and the source of such huge amount of money has also not been proved by the prosecution which is allegedly disbursed to accused persons as per the chargesheet. Infact, perusal of the record also reflects that no investigation was done by the police officials to complete the chain of events. The source of money has not been investigated nor verified. No account details of the complainant have been verified to even corroborate the allegations that the complainant had allegedly given as loan amount which were running into lakhs of rupees in 199394 to M/s Agnay Automation Pvt. Ltd. when admittedly no income tax was being filed by the complainant.
50. Qua the FSL report, Ex.PW13/86, Ex.PW13/87, it is seen that though the signatures of accused Subroto Brahma have been found on some of the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 37 promissory notes relied upon by the prosecution as well as diary Ex.PW1/51, the essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The value of expert evidence depends largely on the cogency of reasons on which it is based. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitation prescribed and with the careful examination by the court. Admittedly the signature of accused Subroto Brahma were found on promissory notes as well as the diary, however, the attesting witness to some of the promissory notes Sh. Binkesh Kochhar examined as DW5 denied signing or attesting the promissory notes Ex.PW1/22 to Ex.PW1/47. Similarly, PW6 Sh. Abhinandan Sood who was the attesting witness on promissory notes Ex.PW1/51 to Ex.PW1/102 denied that the aforesaid promissory notes were never executed in his presence. It is pertinent to mention that through DW11 Jagdish Kumar Chopra has stated that in the year 1995, he had signed Ex.PW1/22 to Ex.PW1/97 and Ex.PW11/A as a witness in the house of complainant but he added during his cross examination that he did not know when the aforesaid documents were filed and at that time when he had signed the abovesaid documents, the complainant, her son and the accused persons were also present. The deposition of PW11 Jagdish Kumar Chopra clearly shows that the promissory notes were not filled in when he had attested them as a witness. Infact, the son of complainant Gaurav Malik who FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 38 is the attesting witness in most of the alleged promissory note was never cited as a witness by the prosecution during trial. Another point which requires consideration is that accused Subroto Brahma who examined himself as DW13 u/s 315 Cr.P.C categorically stated during his testimony that his signatures were forcibly take on all the promissory notes as well as diary Ex.PW1/51 at Police Head Quarter. Surprisingly apart from mere suggestions, no questions were put to him by Ld. APP of State regarding them and neither was he questioned regarding the incident in question pertaining to the present chargesheet.
51. As already discussed, all the promissory notes and the diary relied upon by the prosecution reveal that the alleged loan was given to the company M/s Agnay Automation Pvt. Ltd. and no where have the accused persons been given any loan in their personal capacity by the complainant. However, the company M/s Agnay Automation Pvt. Ltd. has not been arrayed as an accused by the prosecution. Reliance is placed on the judgment of Anita Hada vs. God Father Travel Pvt. Ltd., MANU/SC/2018/2000 wherein Hon'ble Supreme Court of India observed that when the offence is committed by the company, the Director could not be held liable if the company was not arraying as an accused. In the present case, admittedly, M/s Agnay Automation Pvt. Ltd. has not been arrayed as an accused in the charge sheet despite all documents providing that the money was given to M/s Agnay Automation Pvt. Ltd. by the complainant FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 39 which was shown in the promissory notes placed on record as loan. In these circumstances, the fact that accused Subroto Brahma was stated to be a Director of M/s Agnay Automation Pvt. Ltd. and that impugned loan was taken on behalf of M/s Agnay Automation Pvt. Ltd. and the very fact that M/s Agnay Automation Pvt. Ltd. was not impleaded as an accused goes to the very root of the matter.
52. With respect to the offence of the cheating pursuant to a criminal conspiracy punishable u/s 420 r/w 120B IPC and 120B r/w 420 IPC, it is pertinent to mention that it has been held by the Hon'ble Apex Court in the judgment of Hridaya Ranjan Pd. Verma & ors. vs. State of Bihar and another, 2000 CRI C.J. 2983 wherein it was observed that in determining the question as to whether the offence of cheating was made out, the court has to keep in mind the fine distinction between mere breach of contract and the offence of cheating. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transactions. No account statements have been placed on record of the company M/s Agnay Automation Pvt. Ltd. to show that the money so alleged to be invested was accounted by the complainant for, in the aforementioned company's account. Infact, neither the account details of both the accused persons have been collected nor verified at all during investigation nor account details of the company M/s Agnay Automation Pvt. Ltd. have been putforth during trial or even proved. Further, no allegedly FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 40 cheated amount has been recovered from the accused Subroto Brahma in the present case during investigation. The grievance of the complainant is that she had given a loan running into lakhs of rupees and she has claimed that Rs. 52 lakhs alongwith interest was due to her and that by way of her complaint to the concerned police officials, there was bungling in the account of the company M/s Agnay Automation Pvt. Ltd. but the same has never been proved or even been shown once during the entire trial. Merely alleging manipulation of accounts without even an ioata of evidence being produced in this regard goes to the root of the matter and creates doubt in the prosecution story.
53. Qua the offence of the offence of criminal conspiracy to commit the offence of cheating there has been no forthcoming evidence placed on record to show that there was an agreement to commit the offence of cheating by accused persons Gautam Dhar (PO) and Subroto Brahma. The prosecution in the present case has not been able to prove that the accused persons had agreed to do or cause to do an illegal act or an act which was not illegal by illegal means and the some overt act was done by the accused in pursuance of the same. It has been held by the Hon'ble Supreme Court in the case of K.T.M.S. Mohd. vs. UOI (1992) SCC 178 that to establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons do or cause to be done some illegal act or some act which is not illegal by illegal means provided that where the FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 41 agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. In the present case, no overt act which was allegedly done by the accused Subroto Brahma pursuant to the impugned criminal conspiracy to commit the offence of cheating pursuant to a criminal conspiracy has been proved during trial or placed on record and the essential ingredients of the offence of cheating have not been established nor proved beyond reasonable doubt.
54. In view of the aforeasiad facts, in the considered opinion of this court, the investigation was not done in a proper manner and even the basic ingredients of cheating and dishonest intention or the allegations that accused Subroto Brahma received unlawful gain pursuant to a criminal conspiracy have not been proved beyond reasonable doubts by the prosecution.
55. Accordingly, in view of the aforesaid facts and discussions, the charges of 120B r/w 420, 420 r/w 120B and 506 r/w 34 IPC as framed against accused have not been proved beyond reasonable doubts qua accused Subroto Brahma. Therefore, accused Subroto Brahma is held "not guilty" and is accordingly acquitted of all the offences. Announced in the open Court Today on 25.02.2020 (Gurmohina Kaur) CMM/SE/District Court, Saket New Delhi/25.02.2020 FIR No. 145/96 PS : Lajpat Nagar State Vs. Gautam Kumar etc. Page no. 42