Delhi District Court
Pronouncements Of The Hon'Ble Apex ... vs . State Of on 1 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-01
ROHINI COURTS, DELHI.
TITLE: : State v. Rajiv Chopra
FIR NO. : 1145/01
P.S. : Sultanpuri
R-NO. : 535944/16
Date / Year of commission of offence : May, 2001
Name of Informant/complainant : Kanti Devi
Name of accused : Rajiv Chopra
Jai Bhagwan
Offence/s complained of : s. 406/420/120-B IPC
Cognizance under section/s : s. 406/420/120-B IPC
Charges framed under section/s : s. 406/420/120-B IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 23-08-2022
Date of pronouncement : 01-09-2022
Final Order : Acquittal
For the Prosecution : Ld. APP Sh. Pankaj Yadav
For the Defence : Sh. B.B. Sharma and Sh. Satish Bajaj.
Present : Pritu Raj
M.M.- 01,
Rohini Courts, Delhi.
R. No. 535944/16 State v. Rajiv Chopra Page 1 of 30
JUDGEMENT
1. The accused persons are facing trial for offences s. 406/420/120-B Indian Penal Code, 1860 [Hereinafter, referred to as 'IPC'].
2. Stated succinctly, the facts germane for the prosecution of the case are that the complainant Kanti Devi came into contact with accused Jai Bhagwan during the month of April, 2001 and developed family relations with him. During the course of time, the accused Jai Bhagwan introduced the complainant and her husband to accused Sanjeev Chopra and in the month of May, 2001 accused Jai Bhagwan told the husband of the complainant that accused Sanjeev Chopra had a share in a hotel in Nepal which he intended to dispose of and he was persuaded by both the accused namely Jai Bhagwan and Sanjeev Chopra to buy the same. It is the further case of the prosecution that upon much persuasion by the accused persons, the complainant transferred her house located at P-II/381-382, Sultanpuri to the accused Sanjeev Chopra for raising money to buy the hotel share, in lieu of which, she was given three cheques as consideration. Later on, she also transferred her other property no. R ZT-15, Sagarpur Dayal Park, Delhi for the same purpose. On 18.05.2001, the accused Sanjeev Chopra and Prince Chopra (since declared PO) took her husband to Nepal for showing the hotel in the car of her husband bearing no. DL-4C-5567. It is the further case of prosecution that on 25.05.2001, accused Sanjeev Chopra came to the house of complainant and informed her that her husband had been apprehended in a drugs case in Nepal and R. No. 535944/16 State v. Rajiv Chopra Page 2 of 30 a sum of Rs. 45,00,000/- was required to secure his release. Pursuing to such information, the complainant transferred her property at RZT-14 Dayal park, Sagarpur, in the name of accused Sanjeev Chopra. The further case of the prosecution is that the complainant visited Nepal multiple times to secure the release of her husband and he was finally released around August, 2001 and when the complainant got to know about the falsity of the representations made by the accused persons, she canceled all property transactions vide which she had transferred the property, as described above, to the accused persons. The complainant has further gone on to state that despite requests, her car was not returned back by the accused persons and during the period she was in Nepal, the accused persons also tried to grab her property located at Sagarpur West, leading to the present case.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 1145/2001 on 22.09.2001, and, after investigation, submitted the charge sheet on 07.12.2001 against the aforementioned accused person u/s. 406/420/120B IPC. Cognisance was taken on 07.12.2001 and provisions of section 207 Cr.P.C. were duly complied.
4. Charges s. 406/420/120B IPC were framed and read over to the accused, in Hindi, on 07.08.2002 to which they denied the incident and claimed to be tried.
5. During the course of trial, vide separate supplementary chalan, accused Sanjeev Chopra and Prince Chopra were declared PO as reflected in order dated R. No. 535944/16 State v. Rajiv Chopra Page 3 of 30 23.06.2007.
6. The prosecution, in order to prove the case beyond all reasonable doubt, examined eight witnesses in support of its case during the course of trial.
7. PW1 Kanti Devi deposed that since year 1998 she is running the school in the name of Geeta Public School at Sagar Pur and that in the month of April, 2001 the accused Jai Bhagwan came to her school through one Ram Kumar. She deposed that accused Jai Bhagwan requested her to get his daughter admitted in 10th class and thereafter he maintained family relations with her. She further deposed that in the month of May, 2001 at the inauguration function of accused Jai Bhagwan's house, the accused Jai Bhagwan introduced accused Sanjeev Chopra to her and her husband and told that Sanjeev Chopra has a hotel in Nepal and Sanjeev Chopra wants to sell his share and advised her to purchase the share to which she denied. She further deposed that Sanjeev Chopra and Jai Bhagwan pressurized her to transfer her property in the name of Sanjeev Chopra stating he can provide her money and on request, she transferred her house No. P-II/381-382, Sultan Puri by Power of Attorney, Will etc in the name of accused Sanjeev Chopra. She further deposed that she was having another plot bearing No. RZT-15, Sagar Pur, Dayal Park, New Delhi in which she was running a school and she also transferred the said plot in the name of Sanjeev Chopra by executing Power of Attorney and Will etc. She further deposed that on 18.05.2001, the accused namely Sanjeev Chopra and Prince Chopra took her husband to Nepal for showing the hotel and they had R. No. 535944/16 State v. Rajiv Chopra Page 4 of 30 gone in the Car bearing Registration number DL-4C-5567 and her husband took Rs.15,000/- with him to Nepal. She further deposed that on 31.05.2001, Sanjeev Chopra came to her house and told her that her husband was apprehended in Nepal in a drugs case and Rs.45 lacs was needed to rescue him and he told her that law of Nepal was such that a person is kept in jail for life or killed in such type of offences and also told her that she was having that much of property which can be used in this regard in saving her husband. She further deposed that on his saying, she took out a file of RZT-14, Dayal Park, West Sagar Pur from Rajasthan Bank and gave it to accused Jai Bhagwan and Sanjeev Chopra at the house of accused Jai Bhagwan and that Sanjeev Chopra along-with accused Jai Bhagwan took her to the office of Sub- Registrar at Pitam Pura on 02.06.2001 where the Power of Attorney, Will etc were transferred in the name of Sanjeev Chopra and her signatures were also obtained on blank papers. She further deposed that on 01.06.2001, she received a telephonic call on her mobile phone that Mr. Verma is in police custody in Nepal and on 02.06.2001 she received another call from somebody called Ravi who told her that she should arrange Rs.25000/-, Rs.30,000/-, again said Rs.25 to 30 lacs, and come to Bharwa at Nepal. She further deposed that after about 2-3 days back, she received a telephonic call from her husband that nothing has been recovered from him and only on suspicion, he has been detained and also told her that Sanjeev Chopra and Prince Chopra took him to Nepal and also taken his car. She further deposed that she along-with her brother Rajender Kumar went to Nepal at Bharwa and met R. No. 535944/16 State v. Rajiv Chopra Page 5 of 30 with her husband where police did not release him and she returned to Delhi and after coming to Delhi she came to know the truth and got cancelled all the GPA, Will etc. which she executed in favour of Sanjeev Chopra and her husband returned to the house in August, 2001. She further deposed that on 08.06.2001, Sanjeev Chopra got vacated the H.No. P-II/381-382 with the help of accused Jai Bhagwan and Vinod from her and sold it to some Bhagwan Dass for the consideration of Rs.14 lacs. She further deposed that the above said car was also remained in the custody of Sanjeev Chopra and he has not returned the same despite her demands and in her absence, when she went to Nepal, the accused persons along-with Vinod Sharma, Sanjeev Chopra went to her school and tried to take the possession of the same by putting locks over it. She further deposed she made a complaint to the police Ex.PW-1/A and she had given the copies of deed of cancellation of documents transferred by her in the name of Sanjeev to police and the same are seized vide memo Ex.PW-1/B. She further deposed that she brought original documents of cancellation of GPA of H.No.382, in Block P-2, Sultan Puri, Delhi Ex.PW-1/C and original cancellation of GPA in respect of property No.381, in Block P-2, Sultan Puri Ex.PW-1/D. She further deposed that she brought the cancellation of Will Ex.PW-1/F in respect of property No. 382, in block P-2, Sultan Puri, Delhi and the photocopy of cancellation of GPA in respect of property No. P-15 Block RZ, Khasra No.228-229, situated in Colony known as Dayal Park, Sagar Puri, West Delhi Ex.PW-1/G and copy of cancellation of Will Ex.PW-1/H. She further deposed that the photocopy of cancellation GPA of R. No. 535944/16 State v. Rajiv Chopra Page 6 of 30 property No. RZT, 14 which is Mark A and all the documents bears her signature. She further deposed that the accused persons had shown her fear and by threat and by inducement they had cheated her.
8. PW-2 Sh. Lala Ram Verma deposed that he was supervisor in DDA from 1980 and he resided at H.No. P-2-381/382 from 1982 to May, 2001. He further deposed that his neighbour Ram Kumar introduced accused Jai Bhagwan to him and said neighbour brought accused Jai Bhagwan to his house regarding admission of his daughter namely Pooja as Pooja failed in 9th class and accused Jai Bhagwan wanted to admit her in 10th class. She further deposed that Jai Bhagwan came to his house in the month of April, 2001 and Pooja was admitted in 10th class as Marry International Public School, Sector-7, Rohini due to his "jaan pehchaan". He further deposed that accused Jai Bhagwan started frequently visiting his house and made family terms with him and on 04.05.2001, accused Jai Bhagwan had performed "grih pravesh" ceremony at H.No. 303, Pocket-9, Sector-21, Rohini and invited him and his wife in the aforesaid ceremony. He further deposed that accused Jai Bhagwan introduced him with his friend accused Sanjeev Chopra and thereafter accused Sanjeev Chopra also started visiting his house. He further deposed that accused Jai Bhagwan and Sanjeev Chopra told him that accused Sanjeev Chopra having hotel in Nepal in the name of Prince Hotel and asked him to invest money in shares as he can get income of Rs.30,000/- after investing money in shares and in reply he told that he and his wife not having such money to invest in shares. He further deposed that accused Jai Bhagwan and Sanjeev R. No. 535944/16 State v. Rajiv Chopra Page 7 of 30 Chopra asked him to transfer his property No. P-2/381-382 in the name of accused Sanjeev Chopra and he will arrange money against this and thereafter on pressurizing of both accused, he had transferred aforesaid property in the name of accused Sanjeev Chopra on 15.05.2001. He further deposed that he did not receive any consideration amount against the aforesaid property and 3 cheques of total amount of Rs.35,000/- were given to him by accused Sanjeev Chopra and the market value of his house was about Rs.20 lacs. He further deposed that accused Sanjeev Chopra also transferred property No. RZT-15 in his name and he deposited the aforesaid cheques in his account. He further deposed that on 18.05.2001, accused Sanjeev Chopra and Prince Chopra came to his house in the morning and took him to Nepal in his Santro Car bearing No. DL-4CM-5567 and on 20.05.2001, they reached at Kathmandu and stayed in Kamal Hotel, Kathmandu. He further deposed that he also asked from Sanjeev Chopra that why they were staying in Kamal Hotel when they have taken him to show Prince Hotel then why they did not go to Prince Hotel and in reply Sanjeev Chopra stated that it is night and in the morning they will go to Prince Hotel. He further deposed that on 21.05.2001, in the morning before he wake up, Sanjeev Chopra had left the hotel in his car and Prince Chopra remained in Hotel with him and after about 6 days, Sanjeev Chopra came back at the hotel i.e. 26.05.2001 in the night at 01:00 am. Sanjeev Chopra told him that he had received call for Delhi and his mother was not well and he is not in position to show him Prince Hotel and they have to come back to Delhi. He further deposed that they started for Delhi on 27.05.2001 R. No. 535944/16 State v. Rajiv Chopra Page 8 of 30 and on the way they stayed at Gangotri hotel and thereafter, they again started for Delhi on 28.05.2001 and reached at Bharwa on same day. He further deposed that they stayed in Bharwa at Himalaya Hotel till 29.05.2001 and on 30.05.2001 they had gone to Hotel Moonlight to take meal and stayed there. He further deposed that on 30.05.2001, in the Moonlight hotel one foreigner had come and talk with Sanjeev and Prince Chopra at that time, left the room in silently and Sanjeev Chopra told him that he is going to see the foreigner and left the room. He further deposed that that foreigner had given something to Sanjeev Chopra in black colour bag and after sometime, police came there and searched the room and recovered aforesaid black colour bag from under the pillow of Sanjeev Chopra. He further deposed that the police kept him in the hotel and he made a call to his wife from the PS where he made to sit and narrated the incident to his wife. He further deposed that police had checked the aforesaid bag and found chalk mitti. He further deposed that his wife and brother in law came to meet him in Nepal and the police had left him as the contents of the bag were of chalk mitti. He further deposed that his wife told him that both accused alongwith Sanjeev Chopra and one Bhagwat had visited at house and told that they had sold of H.No.P-2/381-382 in consideration of Rs.14 lacs and they are going to release her husband from the Nepal police but aforesaid persons did not come back. He further deposed that when his wife came to know about the forgery and cheating by the aforesaid persons, she had cancelled GPA, Will etc from the Registrar office and his wife asked Sanjeev Chopra to return back the car but they did not R. No. 535944/16 State v. Rajiv Chopra Page 9 of 30 return the same. He further deposed that he had taken Rs.15,000/- with him and he left Nepal from Delhi with Sanjeev Chopra and Prince Chopra. He further deposed that his wife and brother in law told him that the aforesaid persons had sold their house situated in Sultan Puri to one person namely Bhagwan Dass in consideration of Rs.14 lacs in order to release him from the Nepal police. He further deposed that payment of Rs.14 lacs was taken by accused Jai Bhagwan at his house and after threatening and inducing his wife, they had possessed at his Sultan Puri house. He further deposed that when both accused had taken him to Nepal by the car, Sanjeev Chopra took Rs.15,000/- from him which he had taken with him from his house. He further deposed that both accused alongwith Sanjeev Chopa and Prince Chopra had grabbed his property while committing forgery and cheating with him and his wife and he further deposed that one female namely Chandrawati was also involved with the accused persons but her name is not mentioned in the statement. He further deposed that one person namely Vinod Sharma resident of 304, Sainik Vihar who is servicing in DVB is also a companion of the accused persons and they have a group to commit cheating. During testimony of the said witness, both accused were correctly identified in the Court. The witness also correctly identified signature of his wife on Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C.
9. PW-3 Bhagwan Das deposed that in the year 2001, he purchased property i.e. P-2/381-382 Sultanpuri from Kanti Devi as she was in possession at the relevant time. However, the papers/document pertaining to the above said property was in R. No. 535944/16 State v. Rajiv Chopra Page 10 of 30 the name of Vinod Kumar Sharma. He further deposed that he made payment for the purchase of the above said property to Kanti Devi and she handed over the possession of the said property, however the documents in his favour were signed/ executed by Vinod Kumar and Kanti Devi also signed as a witness.
10. PW-4 Inspector Tilak Raj that on 10.09.2001 he was posted at Complaint Branch, North West District. He deposed that on that day, the inquiry of complaint Ex.PW-4/A of Kanti Devi was marked to Inspector Sohan Bir Singh by DCP, North West, He further deposed that he gave the copy of complaint to Sohan Bir Singh. He further deposed that after completion of inquiry, Inspector Sohan Bir Singh has submitted his report Ex.PW-4/B and on the basis of inquiry report submitted by Inspector Sohan Bir Singh, the concerned directed the SHO concerned for registering the FIR.
11. PW-5/Retired ACP Sohan Vir Singh deposed that on 10.09.2001, he was posted at RI North West as Inspector. He deposed that he received a complaint from complaint branch of Smt. Kanta Devi. He further deposed that he recorded the statement of Smt. Kanta Devi alongwith Kishan Lal, Kishan Lal Batra and Rajbir. He further deposed that he submitted inquiry report to DCP, North-West. He deposed that statement of Kanta Devi is already Ex.PW-1/A. He further deposed that during the inquiry, statement of Lala Ram was recorded by him Ex.PW-5/A. He further deposed that the said statement was recorded during the course of inquiry and his inquiry report is Ex.PW-4/B. R. No. 535944/16 State v. Rajiv Chopra Page 11 of 30
12. PW-6 ASI Ajit Singh deposed that on 22.09.2001, he was posted as HC at PS Sultan Puri and working as Duty Officer from 08:00 am to 04:00 pm. He further deposed that on that day at about 09:35 am, he received a rukka vide DD Entry No.14 A through SHO, PS Sultan Puri and on the basis of which he registered FIR No.1145/01. He further deposed that he handed over the copy of FIR to Ct. Ashok Kumar to be handed over in District Crime Cell, North West and made an endorsement Ex.PW-6/A. He also proved copy of FIR as Ex.PW-6/B.
13. PW-7/ASI Ballu Ram that on 11.10.2001, he alongwith IO/Inspector Mahabir Singh and Ct. Pratap Singh arrested accused Rajeev Chopra from his house from Sector-6, Rohini, Delhi. He further deposed that he personally searched him. He further deposed that IO recorded his statement. The witness correctly identified accused Rajeev Chopra during his deposition in the Court.
14. PW-8 HC Pratap Singh that on 11.10.2001, he was posted as constable at DIU, Pitampura. He further deposed that he alongwith Ct. Balo Ram and IO Inspector Mahavir Singh were present at DIU office where the IO concerned arrested accused Rajiv Chopra in his presence. He further deposed that arrest memo and personal search memo of you accused Rajeev Chopra were prepared as Ex.PW-8/ A and Ex.PW-8/B. The witness correctly identified accused Rajeev Chopra during his deposition in the Court.
15. Evidence on behalf of the prosecution was closed vide order dated 04.07.2019. All the incriminating evidence which had come in evidence against the accused R. No. 535944/16 State v. Rajiv Chopra Page 12 of 30 persons were put to the accused persons vide. SA recorded under s. 313 Cr.P.C. on 19.02.2020 wherein the accused chose to lead DE.
16. However, despite multiple opportunities, accused persons failed to lead DE and upon the specific submissions, the right of the accused persons to lead DE was closed vide order dated 13.04.2022.
17. Final arguments were heard on behalf of both sides on 23.08.2022 and the matter was fixed for judgement vide. order of the same date.
APPRECIATION OF EVIDENCE
18. Before embarking to determine the guilt/innocence of the accused persons, it would be prudent to reproduce the relevant provisions of law for the sake of brevity:
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 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.
19. Cheating, for the purposes of Sec. 420 IPC has been defined u/s 415 IPC as follows:
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 R. No. 535944/16 State v. Rajiv Chopra Page 13 of 30
406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Determination qua Sec. 420 IPC
20. The law as regards the ingredients of the offence of cheating is no longer res- integra having being fairly settled and been reiterated in the recent pronouncements of the Hon'ble Apex Court. In Archana Rana Vs. State of Uttar Pradesh and Anr. (2021) 3 SCC 751, the Hon'ble Court, while dealing with the issue at hand, it was held:
5. Having heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondent-State and having gone through the averments in the complaint and the chargesheet, even if the averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419 & 420 IPC. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy (supra), the ingredients to constitute an offence under Section 420 are as follows:
i) a person must commit the offence of cheating under Section 415; and
ii) the person cheated must be dishonestly induced to
a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:
i) there should be fraudulent or dishonest inducement of a person by deceiving him:
The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.R. No. 535944/16 State v. Rajiv Chopra Page 14 of 30
Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating.
21. Similarly, in Prof. R.K. Vijayasarathy v. Sudha Seetharam (2019) 16 SCC 739 it was held :
14 Section 415 of the Penal Code reads thus:
"Section 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"." The ingredients to constitute an offence of cheating are as follows:
i) there should be fraudulent or dishonest inducement of a person by deceiving him;
ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or
(b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and
iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
15 Section 420 of the Penal Code reads thus:
"Section 420. Cheating and dishonestly inducing deliver 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 any part of a valuable security, or anything which is signed or sealed, and which is capable to 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." The ingredients to constitute an offence under Section 420 are as follows:R. No. 535944/16 State v. Rajiv Chopra Page 15 of 30
i) A person must commit the offence of cheating under Section 415; and
ii) The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Cheating is an essential ingredient for an act to constitute an offence under Section
420.
22. Similarly, in Rekha Jain vs The State Of Karnataka 2022 SCC OnLine SC 585, it was held:
There must be a dishonest inducement by the accused. As per Section 420 of IPC, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, can be said to have committed the offence under Section 420 of IPC. Therefore, to make out a case against a person for the offence under Section 420 of IPC, there must be a dishonest inducement to deceive a person to deliver any property to any other person.
23. Similarly, in N. Raghavender v. State of Andhra Pradesh, CBI 2021 SCC OnLine SC 1232, it was held:
Ingredients necessary to prove a charge under Section 420 IPC: 46. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine.
47. It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement.
It goes without saying that for the offence of cheating, fraudulent and dishonest R. No. 535944/16 State v. Rajiv Chopra Page 16 of 30 intention must exist from the inception when the promise or representation was made.
48. It is equally well-settled that the phrase 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mens rea on his part. Unless the complaint showed that the accused had dishonest or fraudulent intention 'at the time the complainant parted with the monies', it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract.
24. A conjoint reading of the aforesaid pronouncements makes it clear that in order to successfully bring home a prosecution u/s 420 IPC, the essential requirements which ought to be fulfilled are, firstly, the act of cheating as stated in 415 IPC, and secondly, the fraudulent or dishonest intention to induce the victim to deliver any property or valuable security with the requisite mens rea. It is also manifestly clear that all the ingredients are to be mandatorily proved, including the delivery of property to the accused, to discharge the burden placed upon the prosecution.
25. Coming to the facts of the case, the story of the prosecution is that the accused persons had entered into a criminal conspiracy to cheat the complainant and fraudulently deceive her into transferring property in favour of the accused Sanjeev Chopra and Jai Bhagwan.
26. In order to prove the same, the prosecution has examined three public witnesses - PW-1 Kanti Devi, PW-2 Lala Ram Verma and PW-3 Bhagwan Das. While PW-3 has turned totally hostile and not supported the case of the prosecution, PW-2 Lala R. No. 535944/16 State v. Rajiv Chopra Page 17 of 30 Ram was never tendered for cross-examination by the defence. Hence, no reliance can be placed on the testimony of PW 2 or PW 3 for the purposes of this case, leaving the only other public witness i.e. PW 1 relevant for the present case.
27. Coming to the testimony of PW-1, she had deposed in her examination-in-chief that she had been pressured by accused Sanjeev Chopra and Jai Bhagwan to acquire a share in the hotel owned by accused Sanjeev Chopra in Nepal and as a result of the pressure to acquire the hotel share in Nepal, by the said accused, she transferred her house No. P-II/381-382 Sultanpuri to accused Sanjeev Chopra, by power of attorney and will etc. She further deposed that she also transferred her other property No. R ZT-15, Sagarpur, Dayal Park, Delhi to the same accused Sanjeev Chopra through the same mode for the aforesaid purpose. This witness has further deposed that property located at RZ-14 Dayal Park had also been transferred to the accused Sanjeev Chopra when she had been informed by the said accused that her husband had been allegedly apprehended in a drugs case in Nepal and an amount of Rs. 45,00,000/- was needed to rescue him from there.
28. This witness, while being examined-in-chief, has exhibited the cancellation deeds of the properties, as mentioned above, in order to prove the fact that the aforesaid properties were transferred to accused as a result of the deception of the accused persons, as follows:
Ex. PW1/C - GPA cancellation Deed for House No. 382 Ex. PW1/D - GPA cancellation Deed for House No. 381 R. No. 535944/16 State v. Rajiv Chopra Page 18 of 30 Ex. PW1/E - cancellation deed of will for House No. 381.
Ex. PW1/F - cancellation deed of will for House No. 382 Ex. PW1/G - cancellation deed of GPA for House No. T-15, Block RZ, Sagarpuri.
Ex. PW1/H - cancellation deed of will for House T-15, Block RZ, Sagarpuri.
29. However, a perusal of the testimony of PW-1 makes it apparently clear that no documents have been produced in evidence by the prosecution to prove the fact that the aforesaid properties had been legally transferred to the accused persons, in contravention of the settled law.
30. The rule of best evidence is one of the cardinal principles of criminal jurisprudence which literally means that in order to prove any particular fact, no evidence will be admissible unless it is the best evidence that its nature will allow. (Omychund v. Barker (1745)). This principle has been imbedded in the Indian Evidence Act, 1872 {Hereinafter referred to as 'Evidence Act'] in Chapter VI, which provides for the exclusion of oral evidence by documentary evidence. More pointedly, section 91 of the Evidence Act expressly bars the proof of any term of any contract, grant or disposition of property except the document itself being produced as primary evidence. Reliance in this regard is placed on Roop Kumar vs Mohan Thedani on 2 April, 2003, where it was held:
Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the R. No. 535944/16 State v. Rajiv Chopra Page 19 of 30 writing or displaced by it. (See Thayer's Preliminary Law on Evidence p.397 and p.398; Phipson Evidence 7th Edn. P.546; Wigmore's Evidence p.2406.)
31. In the present case, no deed/instrument whatsoever has been produced by the prosecution of PW-1, during her examination-in-chief, to prove the fact that the properties allegedly transferred to the accused persons had been actually transferred - something which could have been done only by adducing and proving the documents vide which the aforementioned properties had been allegedly transferred to the accused persons. PW-1 has expressly stated in her examination that the property No. P-II/381-382 Sultanpuri, RZT-14, Dayal Park and No. RZT-15, Sagarpur, Dayal Park, Delhi had been transferred to accused Sanjeev Chopra by way of power of attorney and will etc. However, neither of these documents have been exhibited or proved by the prosecution during course of the trial to bring home the essential ingredient of transfer of any property or valuable security for the purpose of s. 420 IPC.
32. Even otherwise, if we keep the above discussion aside for the sake of argument, it is the case of the prosecution, stated by PW-1 in her examination-in-chief that the properties No. P-II/381-382 Sultanpuri, RZT-14, Dayal Park and No. RZT-15, Sagarpur, Dayal Park, Delhi had been transferred way of power of attorney and will etc. However, transfer in the aforesaid modes cannot be considered to be valid modes for transfer of immovable property. In this regard, reliance is placed on Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, 183 (2011) DLT 1 (SC), wherein the Hon'ble Apex Court stated the R. No. 535944/16 State v. Rajiv Chopra Page 20 of 30 position of law regarding transfer of property by means of agreement to sell, will, power of attorney as follows:
Scope of an Agreement of sale
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR
293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable R. No. 535944/16 State v. Rajiv Chopra Page 21 of 30 property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate R. No. 535944/16 State v. Rajiv Chopra Page 22 of 30 of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
33. In light of the aforesaid settled principle of law, the transfer of property located at P-II/381-382 Sultanpuri, RZT-14, Dayal Park and No. RZT-15, Sagarpur, Dayal Park, Delhi has not been proved in accordance with law and no transfer can be said to have been affected in the present case in favour of the accused.
34. Hence, in light of the aforesaid discussion, the essential ingredient of transfer of property, as required by s. 420 IPC, is not proved. The prosecution has failed to discharge it burden beyond all reasonable doubt against the accused persons. They are hence, acquitted of the charges u/s 420 IPC.
Determination qua s. 403 IPC
35. The second charge for which the accused persons have been accused of is that of criminal misappropriation of car being registration no. DL4C-5567. In order to successfully prosecute a charge u/s 403 IPC against an accused, the essential ingredients needed to be proved are dishonest misappropriation or conversion to one's use, any movable property. It is the case of the complainant/prosecution that the car belonged to her husband and the same has been dishonestly misappropriated by the accused persons as the same has not been returned back R. No. 535944/16 State v. Rajiv Chopra Page 23 of 30 despite repeated reminders/requests/demands being made in this regard.
36. In order to successfully prove the present charge, it was required to be proved by the prosecution that the car did not belong to the accused Rajiv Chopra and it belonged to some other person. In order to prove the same, the prosecution ought to have produced the same by either adducing primary or secondary evidence. However, the prosecution has utterly failed to discharge the said burden as the Registration Certificate of the said car has not been exhibited by the prosecution. In the alternative, no one from the transport Dept. has been arrayed as a witness on behalf of the prosecution to prove the fact that the car in question did not belong to the accused Rajiv Chopra but belonged to some other person. The only document which has been adduced by the prosecution is the Xerox copy of the RC of the said car. However, the same cannot be read as evidence on behalf of the prosecution on account of the fact that secondary evidence can only be adduced in cases as mandated by s. 65 Evidence Act, which is not the case in the present case. A perusal of the testimony of PW-1 shows that her testimony is entirely silent as to the presence of any situation/circumstance referred to in s. 65 Evidence Act which would enable the proof of ownership of the movable property in question i.e. car by resorting to secondary evidence.
37. The accused are hereby acquitted of the offence u/s 403 IPC.
Determination qua 120-B IPC
38. It is the case of the prosecution that the accused persons entered into a criminal R. No. 535944/16 State v. Rajiv Chopra Page 24 of 30 conspiracy to commit the offences as stated above and that the accused persons while having entered into such criminal conspiracy, committed the offences in question.
39. The law as regards criminal conspiracy and the burden which is required to be discharged in order to successfully prove the same has been reiterated by the Hon'ble Apex Court in a recent pronouncement titled Parveen @ Sonu vs The State Of Haryana 2021 SCC OnLine SC 1184, where it was held as follows:
2. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In the case of Indra Dalal v. State Of Haryana1, this Court has considered the conviction based only on confessional statement and re c o v e r y o f v e h i c l e u s e d i n t h e c r i m e . I n t h e s a i d c a s e , w h i l e Crl.A.@SLP(Crl.)No.5438 of 2020 setting aside the conviction, this Court has held in paragraphs 16 & 17 as under:
"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.R. No. 535944/16 State v. Rajiv Chopra Page 25 of 30
17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.
40. Similarly in Ram Sharan Chaturvedi v. The State of MP (CRIMINAL APPEAL No. 1066 of 2010; AUGUST 25, 2022), while dealing with the law regarding to criminal conspiracy, the Hon'ble Apex Court held:
22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr. , this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
"12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..." (emphasis supplied)
25. It is not necessary that there must be a clear, categorical and express agreement R. No. 535944/16 State v. Rajiv Chopra Page 26 of 30 between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI , this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
41. Having determined the law regarding to the burden which ought to be discharged in order to successfully prove a charge u/s 120B IPC, this Court will now proceed to determine the evidence tendered by the prosecution to prove the same.
42. The sole witness adduced by the prosecution to prove the charge of criminal conspiracy against the accused persons is PW-1. The remaining public witnesses, as discussed above, have either turned hostile or having not being tendered for cross-examination, don't have any evidentiary value. Coming to the testimony of PW-1, the testimony of this witness is fraught with inconsistencies and cannot relied upon to uphold the case of the prosecution. As enunciated above, there has to be some physical manifestation of the crime alleged to have been committed. A perusal of the testimony of PW-1 makes it apparently clear the entire role which has been ascribed to accused Jai Bhagwan is being one of co-conspirators with accused Rajiv Chopra to commit the crimes in question. However, the alleged transfer of property had been done to only one of the accused namely Rajiv Chopra. Nothing, either immovable or movable property, had been transferred to accused Jai Bhagwan by the complainant. Furthermore, PW-1/complainant has deposed in her testimony that the entire plan had been hatched between accused R. No. 535944/16 State v. Rajiv Chopra Page 27 of 30 Rajiv Chopra and his associates, including Jai Bhagwan, who had intended to cheat the complainant and her husband into transferring immovable properties in favour of the accused and the husband of the complainant had been taken to Nepal for this purpose. However, this witness has deposed that accused Jai Bhagwan did not accompany the husband of the complainant to Nepal when he had been allegedly taken to finalise the hotel deal. Hence, the element of physical manifestation in some form, has not been brought to the fore by the prosecution apart from bald statements by PW-1.
43. Furthermore, this witness (PW-1) has also stated that the accused persons, during the alleged absence of this witness from India, had tried to acquire property belonging to her at Sagarpur by putting locks on the said property and complaint in this regard had been made by her son, Hemant Kumar. However, the prosecution, in order to lend credence to the alleged hatching of conspiracy between the co-conspirators ought to have examined this particular person, i.e., Hemant as a witness, which is not the case.
44. Moreover, as discussed above, the case of the prosecution that as a result of the conspiracy hatched by the accused, the complainant had transferred the properties, of description as above, to the accused has also not been proved which puncture holes in the version of events sought to be proved by the prosecution. It is well settled that the burden which lies on the prosecution is to prove the case beyond all reasonable doubt and not merely on the preponderance of probabilities. The R. No. 535944/16 State v. Rajiv Chopra Page 28 of 30 case of the prosecution must stand on its own two legs. Reliance in this regard is placed on the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
45. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
Findings
46. In light of the aforesaid observations, this Court is of the considered opinion that the prosecution has failed to discharge its burden beyond all reasonable proof as regards section 406/420/120B IPC against the accused persons. R. No. 535944/16 State v. Rajiv Chopra Page 29 of 30
47. The accused are acquitted of the charges under section 406/420/120B IPC.
48. File be consigned to Record Room after due compliance.
Announced in open court Pritu Raj
On 01-09-2022. Metropolitan Magistrate-01
Rohini Courts, Delhi.
R. No. 535944/16 State v. Rajiv Chopra Page 30 of 30