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6.6. DW6/Vijay Pandey, account officer, MTNL, at DGM(TR), HQ, 4th Floor, Kidwai Bhawan, Janpath, New Delhi brought the system generated payment report in respect of telephone no. 23745608, (Ex.DW6/1) (colly running into two pages). He deposed that payment for the bills of the aforesaid number was paid in cash as well as through cheques, the details for which can be traced out in the Ex.DW6/1 itself. He was also duly cross-examined by the Ld. APP for the State.

6.7. DW7/Ajay Sharma examined himself as defence witness pursuant to moving application under Sec. 315 CrPC, which was allowed by the Court. He deposed that the premises of New Man & Company located at 4/90 (also called P-4) Cannaught Circus New Delhi-110001 were taken by Sh. Bhawani Sahai Sharma (his grand father) in Oct 1939 on Pagri and he produced rent receipt dated 3rd October 1939 Ex. DW7/2(OSR) issued by New Friend & Co. Ltd. in favour of Sh. Bhawani Sahai Sharma. He stated that later on, tenancy was transferred in the name of M/S New Man & Company with Sh Bhawani Sahai Sharma as the proprietor and thus, he produced rent receipt dated 26 May 1942 Ex. DW7/1(OSR) issued by New Friend & Co. Ltd. in favour of M/S New Man & Company. He stated that although subsequently, the landlordship of the premises passed into the hands of Gyan Chand Vidhyadhar, Vijay Kumar, Visheshvar Devi Gujral and Vimla Vijaya Gujral and FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place their daughters, however, Sh. Bhawani Sahai Sharma continued to pay rent as the proprietor of M/s New Man & Company till 1977. To prove the same, he produced rent receipts dated 06 Apr 1944, 12 Oct 1960 and 01 Sep 1969 exhibited as Ex. DW7/3 (OSR). He stated that in the year 1977, Late Sh. V.B. Sharma (father of the accused) became the sole proprietor of M/s New Man & Company and continued to pay rent through the current account of M/s New Man & Company at State Bank of Bikaner & Jaipur located at P-5, Cannaught Circus, New Delhi to Vimla Vijaya Gujral and daughters. To prove the same, he produced copy of bank statement showing clearance of cheque No. 558402 drawn on account No. 20020 for rent in favour of landlord (as per the cheque book entry dated 11 Oct 1994) exhibited as Ex. DW7/4 (OSR). He stated that after the death of his father, Late Sh VB Sharma, his mother, Mrs Pushpa Sharma became the sole proprietor of M/s New Man & Company. To prove the same, he produced receipt No. 851215 dated 29 Jan 1999 issued by Sales Tax Officer Ward No-3 accepting the letter from Pushpa Sharma in her capacity the sole proprietor of M/s New Man & Company, which was admitted as legitimate by office of Value Tax Officer ward No-3 vide a signed submission dated 20.12.2007 in execution petition No. 207/2008 titled as Gandharva Saini Vs Ajay Sharma between the complaint and accused, which are exhibited as Ex.DW7/5 (colly) (OSR). He stated that in the year 2023, his mother went to Canada to meet his elder brother Mr. Mukesh Sharma, handing over the possession of the said shop to his maternal uncle Late Sh. OP Sharma, who kept complainant (Gandharva Saini) as sales person on commission basis in the month of Oct 2003. He stated that upon return from Canada, his mother allowed the complainant to continue in the same capacity, however, in the month of Feb, 2004, the complainant left the premises on his own due to some dispute pertaining to commission and filed present the FIR. He stated that his mother singularly operated the current bank account bearing no. 20020 in the name of M/s New Man & Company maintained at State Bank of Bikaner & Jaipur, Connauught Circus (between 29 Jan 1999 till closure in Oct 2005) and the current account bearing No. 000705012451 in the name of M/s New Man & FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Company maintained at ICICI Bank Cannaught Place, New Delhi (between Nov 2005 till closure in May 2017). He produced copy of cheque no. 591322 dated 22.03.2003 (drawn on State Bank of Bikaner and Jaipur) issued by his mother Ms. Pushpa Sharma in favour of landlord (V.V. Gujral) for payment of rent alongwith original copy of bank statement showing clearance of the said cheque on 07.04.2003 and showing other similar periodic rental payments (every six months in advance) including on 08.04.2002, 12.10.2002 and 12.09.2003 are exhibited as Ex.DW7/6 (Colly.). He produced copy of cheque bearing no. 591345 dated 22.10.2003 drawn on State Bank of Bikaner and Jaipur, issued by his mother Ms. Pushpa Sharma in favour of NDMC in the sum of Rs. 10259/- towards payment of electricity bill, alongwith receipt no. 3605962 issued by the New Delhi Municipal Council (NDMC) and original bank statement for account bearing no. 20020 maintained at State Bank of Bikaner & Jaipur, exhibited as Ex.DW7/7 (Colly.). He produced copy of statement of account of M/s New Man Company maintained at ICICI Bank dated as on 30.11.2005, reflecting payment made to NDMC on 16.11.2005 Ex.DW7/8. He stated that his mother also operated the sales tax account of M/s New Man Company from 29.01.1999 till May 2017 as the sole proprietor and that the sale tax department, in the civil proceedings between the complainant and accused, bearing execution petition no. 207/2008 had admitted that as per their record i.e. with effect from 2002-2003, Ms. Pushpa Sharma was the proprietor of M/s New Man Company. He produced copy of assessment order for New Man Company for the year 1999-2000/2000-2001/2002-2003/2003-2004/2004-2005 exhibited as Ex.DW7/9 (OSR). He deposed that a telephone connection was installed at M/s New Man & Company in 1979 with Sh. Vishwabandhu Sharma as the proprietor. He produced copy of duly paid telephone bill showing Sh. Vishwabandhu Sharma as the proprietor of M/s New Man & Company for billing period i.e. 21.08.1979 to 20.09.1979 exhibited as Ex. DW- 7/10 (OSR). He produced original copies of duly paid telephone bills showing Sh. Vishwabandhu Sharma as the proprietor of M/s New Man & Company for various number changed periodically by MTNL since FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place 1979 (from 322688 to 353608 to 3735608 to 23745608) exhibited as Ex.DW7/11(OSR). He produced copy of electricity bill for New Man & Company, 4/90 Connaught Circus, New Delhi for 13.08.1984 and copy of electricity bill for New Man & Company payable for the month of January 1998, in the sum of Rs. 516/- and payment receipt issued by NDMC on 19.02.1998 exhibited as Ex.DW7/12(OSR). He produced copy of electricity bills for New Man & Company, 4/90 Connaught Circus, New Delhi for the relevant period i.e. September 2003, November 2003, January 2004 and March 2004 (issued every after two months) exhibited as Ex.DW7/13(OSR). He also produced telephone bills for telephone number 23745608 C/o proprietor M/s New Man & Company, 4/90, Connaught Circus, New Delhi, with payment duly stamped by MTNL for the relevant period namely 08.09.2003, 08.11.2003, 08.01.2004, 08.03.2003 (issued every two months) exhibited as Ex.DW7/14(OSR). He deposed that all the rent receipts, telephone bills, electricity bills and sales tax documents either bear the name of Late Bhawani Sahai Sharma (his grandfather), Late V.B. Sharma (his father) and Late Ms. Pushpa Sharma (his mother) as the proprietor of New Man Company and the aforesaid rent and bills were paid by them at different point in time between 1939 and 2017 including the relevant period. He stated that his mother continued to manage all day to day affair of M/s New Man & Company during the relevant period and that the complainant was never in exclusive possession of the premises as he never entered into any rent agreement with him. He produced certified copy of judgement Ex.DW7/15(OSR) dated 03.12.2014 (appeal emanating out of objections of Pushpa Sharma in execution 207/2008 titled as Gandharv Saini vs. Ajay Sharma) passed by the Hon'ble High Court of Delhi in execution FA-14/2009 titled as 'Gandharv Saini vs. Pushpa Sharma and Anr.', wherein the Hon'ble High Court of Delhi had observed that Ajay Sharma never had any right qua the premises M/s New Man & Company, and therefore, he could not have given any right to any third person and thus, possession was restored to Mrs. Pushpa Sharma. He also produced medical documents Ex.DW7/16(OSR) to prove his illness. He filed certificate u/s 65(B) of FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place Indian Evidence Act regarding electronic documents (i.e. electricity / water bills dated 29th Nov 2003 and 31ª January 2004), which was exhibited Ex.DW7/17. He was duly cross-examined by the Ld. APP for the State.

ARGUMENTS

7. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.

8. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the witnesses have supported the case of the prosecution and the offence is proved by the State at the requisite threshold. He has argued that despite putting the complainant in possession of the shop, the accused trespassed into the same and committed theft of the belongings of the complainant on 20.02.2007. Ld. APP has argued that the accused, fraudulently represented to the complainant that he was the owner of the shop in question and induced him to part with the security amount of Rs. 5 Lakhs, and FIR No.409/2022 (State vs. Ajay Sharma) PS Connaught Place caused him wrongful loss. Ld. APP has argued that the basis of the case of prosecution is despite having taken security/pagri in the sum of Rs. 5 Lakhs, the accused did not execute rent agreement in favour of the complainant, and resultantly, the complainant could not get electricity/water connection transferred in his name. As such, it is prayed that the accused be punished for the said offences.

35. Although, PW4/Shailender Gupta, claims to be a witness to the transaction of payment of pagri/security amount of Rs. 5 lacs to the accused by the complainant, however, it is surprising to note that PW9/Gandharv Saini nowhere mentions about the presence of PW4/Shailender Gupta during the time of payment of the pagri amount of Rs. 5 lacs to the accused. In other words, the statement of PW4/Shailender Gupta is not corroborated by the complainant/PW9 Gandharv Saini and becomes doubtful. The other witness examined by the prosecution to prove to the payment of pagri/security by the complainant is PW5/Shakuntala Saini, who also has deposed that on 22.09.2003, she was accompanied by her brother and PW4/Shailender Gupta to shop no. P-4, Connaught Place, New Delhi where the accused met them, and agreed to rent out the aforesaid shop to the complainant Gandharv Saini at a monthly rent of Rs. 26,500/- and against a pagdi/security amount of Rs. 5 lacs. Again, the testimony of PW5/Shakuntala Saini in so far as it mentions about the presence of Shailender Gupta on 22.09.2003, is not corroborated by complainant/PW9 Gandharv Saini, as the complainant has deposed that he was only accompanied by Shakuntala Saini and OP Sharma (maternal uncle of the accused) on 22.09.2003. Additionally, PW5/Shakuntala Saini is the sister of the complainant and PW4/Shailender Gupta has admitted in his cross-examination about having known the complainant for the last many years, therefore their depositions, which have already come under a shadow of doubt, cannot form the sole basis of conviction and require some independent corroboration.

37. Although, it is the case of the prosecution that the complainant was induced to pay a sum of Rs. 5 lacs as pagri/security to the accused and that he also paid a monthly rent of Rs. 26,500/- to the accused from September 2003 till February 2004, however, no such receipt of monthly rent has been brought on record either. It is rather implausible that despite the alleged failure of the accused to issue a receipt against the payment of Rs. 5 lacs as pagri/security, the complainant continued to pay monthly rent to the accused, without keeping proof of the subsequent rental transactions or without requiring the accused to issue a receipt for the same.The conduct of the complainant does not inspire confidence of the court and his version appears to be nothing more than a bald assertion, unsubstantiated by any cogent and reliable evidence in support of those assertions.