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2017 DIGILAW 1192 (PNJ)

Rajesh v. Veena Gupta

2017-05-16

SURINDER GUPTA

body2017
JUDGMENT : SURINDER GUPTA, J. This is revision against judgment passed by Additional Sessions Judge, Faridabad whereby judgment by Judicial Magistrate Ist Class, Faridabad acquitting all the accused, was partly set aside upholding acquittal of Sri Chand Suneja, Tarun Suneja, Hoshiar Singh, Chunni Lal, Bhajan Lal Sharma and Chetan Swaroop Sharma but setting aside acquittal of petitioner-Rajesh, who was convicted and sentenced as follows:- Section Sentence Fine In default 467 IPC RI for 7 years Rs.10000/- SI for 20 days 468 IPC RI for 5 years Rs.5000/- SI for 15 days 471 IPC RI for 5 years Rs.5000/- SI for 15 days BRIEF FACTS:- 2. FIR No. 199 dated 06.06.2008 was registered on the complaint dated 10.01.2007 of Smt. Veena Gupta and R.K. Gupta, who are residents of England. As per complainant, they are lawful owner in possession of plot no. D-31, measuring 485.6 sq. yards situated at Model Town, DLF Area, Sector 11, Faridabad. This plot was purchased from one Balraj Singh son of Avtar Singh Bihala lawful attorney of Devender Singh son of Avtar Singh Bihala for sale consideration of Rs.60,700/- vide duly executed and stamped receipt dated 22.02.1989 and conveyance deed No. 1226 dated 27.07.1989, registered in the office of Sub-Registrar, Delhi. After purchase of this plot, complainant went to England as Veena Gupta is settled there. On 01.12.2006, complainant came to India on a short visa and visited the said plot with a view to raise construction thereon and was astonished to know that a building has been raised over the plot of complainant by some strangers. On enquiry and going through the record, it was revealed that accused no. 1-S.C. Suneja son of L.C. Suneja has got a general power of attorney executed and registered in his favour in respect of the said plot in the office of Sub-Registrar, Faridabad on 08.07.1996 by hatching a criminal conspiracy with accused-Rajesh (petitioner), Hoshiar Singh Saini, document writer, Smt. Tarun Suneja wife of S.C. Suneja, Jai Ram Sharma, document writer. Some lady was produced in place of complainant-Veena Gupta for executing this general power of attorney. Some lady was produced in place of complainant-Veena Gupta for executing this general power of attorney. On 08.07.1996, when this power of attorney was executed, complainant was in England and S.C. Suneja, who is not known to complainant further appointed C.L. Kalra son of Khillu Ram as special power of attorney, registered in the office of Sub-Registrar, Faridabad on 30.04.1997 and this plot was further sold to different purchasers and a building was illegally constructed on the plot of complainant, who was cheated and defrauded by aforesaid persons by grabbing her land on the basis of sham, bogus, forged and fabricated documents. The police after registration of FIR presented challan against seven accused, namely, Rajesh son of Babu Lal, Sri Chand Suneja son of Lal Chand Suneja, Tarun Suneja son of Sri Chand Suneja, Hoshiar Singh Saini son of Mamraj Saini, Chunni Lal son of Khillu Ram, Bhajan Lal Sharma son of Dharambir and Chetan Swaroop Sharma son of Ram Charan Sharma. 3. Learned trial Court acquitted all the accused of the charge for offence punishable under Sections 419, 420, 467, 471 read with Section 120-B of Indian Penal Code (for short 'IPC') with observations as follows:- (i) Prosecution has failed to prove that general power of attorney dated 08.07.1996, which the prosecution has alleged that it was executed in favour of S.C. Suneja by producing some lady, who impersonated as complainant-Veena Gupta, to be a forged and fabricated document. (ii) Prosecution has failed to examine complainant-Veena Gupta or to produce evidence that this general power of attorney does not bear her signatures or that somebody has got it executed by impersonating her. Specimen signatures of complainant-Veena Gupta were not obtained to get the same compared with signatures of Veena Gupta on general power of attorney, copy of which was produced as Ex. PW-4/C. The original general power of attorney was also not taken into possession or produced. (iii) Original conveyance deed with regard to plot in question, which was executed in favour of complainant-Veena Gupta, was recovered from possession of subsequent purchaser, namely, Parmod Mangla. Prosecution has not explained as to how original conveyance deed in favour of complainant-Veena Gupta reached subsequent purchaser. It was nowhere the case set up by complainant that her original conveyance deed has been lost. From this fact inference was drawn that complainant must have handed over the said document to subsequent purchaser herself. Prosecution has not explained as to how original conveyance deed in favour of complainant-Veena Gupta reached subsequent purchaser. It was nowhere the case set up by complainant that her original conveyance deed has been lost. From this fact inference was drawn that complainant must have handed over the said document to subsequent purchaser herself. (iv) No evidence was produced by the prosecution about the lady, who allegedly impersonated as complainant-Veena Gupta. The prosecution has taken into possession some receipts of payment recovered from accused-Rajesh. However, these receipts assume no relevance with the alleged crime as the said general power of attorney was not proved to be fake and forged document. Even these receipts have not been duly proved, as such, cannot be taken into consideration. Even the investigating officer, who conducted further investigation in this case after part investigation by PW-3 Inspector Sripal, was not examined. 4. Not satisfied, complainant-Veena Gupta and R.K. Gupta filed appeal against judgment of the trial Court wherein acquittal of all the accused except Rajesh (petitioner) was upheld. Role of petitioner-Rajesh was discussed in paras 12 and 13 of the judgment, which reads as follows:- “12. As in pursuance to the disclosure statement Ex. PW2/B suffered by respondent/accused Rajesh vide recovery memo Ex. PW2/C he got recovered two photo copies of payment receipts dated 19.6.1996 and 6.7.1996 and also the original receipts of said photocopies got recovered by respondent Rajesh had been taken into police possession vide recovery memo Ex. PW3/B from respondents S.C. Suneja and Tarun Suneja the said receipts can be taken into consideration. From perusal of receipt dated 19.6.1996 it is revealed that it is qua payment of Rs.3 lacs by respondent/accused S.C.Suneja regarding sale of disputed plot and it bears the signature of respondent/accused Rajesh on the stamp affixed on the same to which one Vijay Kumar is a witness thereof. The second receipt is dated 6.7.1996 qua payment of Rs.1 lac from respondent/accused S.C.Suneja of disputed plot and it is mentioned therein that payment of Rs.4 lacs received and it bears only the signatures of respondent/accused Rajesh. As the aforesaid payment receipts had been got recovered by respondent/accused Rajesh in pursuance of his disclosure statement Ex. PW4/A they can be read against him. It is further relevant to mention here that though in his disclosure statement Ex.PW2/A respondent/accused Rajesh had stated that for GPA (i.e.. Ex. As the aforesaid payment receipts had been got recovered by respondent/accused Rajesh in pursuance of his disclosure statement Ex. PW4/A they can be read against him. It is further relevant to mention here that though in his disclosure statement Ex.PW2/A respondent/accused Rajesh had stated that for GPA (i.e.. Ex. PW4/C) Vijay (witness of first receipt) produced a lady whose name he disclosed as Veena and GPA dated 8.7.1996 (i.e.. Ex.PW4/C) was executed in favour of S.C. Suneja on which he along C.S.Sharma, Advocate put their signatures as witnesses and he also disclosed that on the asking of Vijay Taneja he gave the receipt regarding disputed plot but as the second receipt of Rs.4 lacs bears the signatures only of respondent Rajesh it can not be taken that he had not received Rs.4 lacs only on the asking of witness Vijay Taneja who admittedly has died. 13. In view of the disclosure statement Ex. PW2/A duly proved on record by PW2 since both the receipts bear the signatures of respondent/accused Rajesh the fact that respondent/accused Rajesh received a sum of Rs.4 lacs against sale of disputed plot from respondent S.C. Suneja stands proved. Further since the GPA Ex.PW4/C also carry the signature of respondent/accused Rajesh as witness no. 1 it stands proved that the respondent/accused Rajesh firstly received the sale amount of Rs.4 lacs vide two receipts from respondent S.C. Suneja and then got prepared the forged GPA Ex. PW4/C in favour of respondent/accused S.C.Suneja as the payment receipts vide which respondent/accused Rajesh accepted a sum of Rs.4 lacs from respondent/accused S.C. Suneja bear the date 19.6.1996 and 6.7.1996 i.e. prior to the execution of forged Power of Attorney Ex. PW4/C i.e. 8.7.1996. The Power of Attorney Ex. PW4/C do not carry the signatures of respondent/accused S.C.Suneja. Also from the disclosure statement Ex. PW2/A of respondent/accused Rajesh it can not be inferred that the fact that Veena Gupta allegedly produced by one Vijay is not the actual Veena Gupta was in the knowledge of respondent/accused S.C.Suneja. In view of above and as there is no evidence on record to prove alleged criminal conspiracy between the respondent/accused Rajesh and S.C.Suneja it would be safe to conclude that from prosecution evidence on record the involvement only of the respondent/accused Rajesh in preparation of fake Power of Attorney Ex. PW4/C stands proved. In view of above and as there is no evidence on record to prove alleged criminal conspiracy between the respondent/accused Rajesh and S.C.Suneja it would be safe to conclude that from prosecution evidence on record the involvement only of the respondent/accused Rajesh in preparation of fake Power of Attorney Ex. PW4/C stands proved. Also there is no prosecution evidence on record qua role of C.S. Sharma whose name is mentioned on the Power of Attorney Ex. PW4/C as witness no. 2. Therefore, from the prosecution evidence on record except for the specific role of respondent Rajesh there is no cogent evidence against S.C. Suneja and C.S. Sharma qua preparation of fake GPA Ex. PW4/C.” 5. It was observed that receipts dated 19.06.1996 and 06.07.1996, which were recovered form S.C. Suneja and Tarun Suneja bear signatures of accused-Rajesh. While relying on receipts, learned Appellate Court relied on disclosure statement of accused-Rajesh. 6. Appellate Court while holding petitioner-Rajesh guilty has relied on statement HC Satbir, who appeared as PW-2. He has stated that petitioner-Rajesh on his arrest on 20.09.2008 suffered a disclosure statement that plot owned by Veena Gupta was purchased by S.C. Suneja. At the time of execution of general power of attorney on her behalf, Vijay Taneja had brought a lady, who was introduced as Veena Gupta. A long time thereafter, he came to know that the lady brought by Vijay Taneja was not Veena Gupta. However, they were not aware of that lady. He had issued receipts of plot No. 31 on asking of Vijay Taneja, copy of which was lying in his office at Jaipur and he could get the same recovered. 7. Above statement of Rajesh, nowhere points towards his complicity in the entire transaction. There is nothing that he was a party to impersonation of some lady as Veena Gupta. The police recovered photocopies of two receipts dated 19.06.1996 and 06.07.1996 each of Rs.1 lac from the petitioner, which were taken into possession vide recovery memo Ex. PW-2/C. These receipts were not duly proved. On receipt dated 19.06.1996, Vijay Taneja was a witness. Vijay Taneja had not been examined as he was reported to have died. The prosecution produced no evidence to prove his signatures on receipts or role played by petitioner in forging of power of attorney of Veena Gupta. PW-2/C. These receipts were not duly proved. On receipt dated 19.06.1996, Vijay Taneja was a witness. Vijay Taneja had not been examined as he was reported to have died. The prosecution produced no evidence to prove his signatures on receipts or role played by petitioner in forging of power of attorney of Veena Gupta. There is nothing on file to show as to who had scribed these receipts, which are on the letter-pad of Ganpati Associates. As per disclosure statement of petitioner-Rajesh (Ex. PW-2/A), office of Ganpati Properties was of Vijay Taneja. The Appellate Court made some sweeping observations regarding photocopies of receipts without any basis. It was observed that these receipts bear signatures of petitioner-Rajesh on stamps affixed on it and one Vijay Taneja is witness of it. These observations were made without any basis. Prosecution had not produced any evidence to prove that these receipts bear signatures either of petitioner or Vijay Taneja. Observations of Appellate Court that “it is further relevant to mention here that though in his disclosure statement Ex.PW2/A respondent/accused Rajesh had stated that for GPA (i.e. Ex. PW4/C) Vijay (witness of first receipt) produced a lady whose name he disclosed as Veena and GPA dated 8.7.1996 (i.e. Ex.PW4/C) was executed in favour of S.C. Suneja on which he along (sic alongwith) C.S. Sharma, Advocate put their signatures as witnesses and he also disclosed that on the asking of Vijay Taneja he gave the receipt regarding disputed plot but as the second receipt of Rs.4 lacs bears the signatures only of respondent Rajesh it can not be taken that he had not received Rs.4 lacs only on the asking of witness Vijay Taneja who admittedly has died” have no basis. Appellate Court proceeded on the presumption that receipts bear signatures of petitioner and Vijay Taneja. These are unproved receipts. Even in the statement of petitioner recorded under Section 313 Cr.P.C., no question was put to him that photocopy of any receipt, which find reference in the judgment of Appellate Court, bear signatures of petitioner. The entire observations of Appellate Court is based on a document, which was not proved on file in accordance with law. These are unproved receipts. Even in the statement of petitioner recorded under Section 313 Cr.P.C., no question was put to him that photocopy of any receipt, which find reference in the judgment of Appellate Court, bear signatures of petitioner. The entire observations of Appellate Court is based on a document, which was not proved on file in accordance with law. Photocopies of receipts, which were taken into possession by the police, cannot be read in evidence until and unless the same are duly proved by some cogent and convincing evidence and opportunity is provided to the accused to explain these receipts. Once this evidence is excluded there remains no basis for observations of Appellate Court that the petitioner received Rs.4 lacs from S.C. Gupta and got prepared forged general power of attorney Ex. PW-4/C in favour of S.C. Suneja. Appellate Court has not set aside the finding of trial Court that forging of general power of attorney of Veena Gupta is not duly proved, rather has observed that there is no evidence on record to prove alleged criminal conspiracy between petitioner-Rajesh and S.C. Suneja. 8. On perusal of trial Court record and judgment of Courts below I am of the considered opinion that Appellate Court while convicting petitioner fell in error while taking note of evidence, which was not admissible and concluding that petitioner is guilty of offence punishable under Sections 467, 468 and 471 IPC. Observations made by Appellate Court are rather self contradictory, when it observed in para 16 as follows:- “16. So far as the allegations of criminal conspiracy cheating or fraud etc. against the remaining respondents/accused namely Sri Chand, Tarun Suneja, Hoshiyar Singh, Chuni Lal, Bhajan Lal and C.S. Sharma are concerned, nothing has come in the prosecution on record as to when and where they had allegedly conspired for preparation of GPA Ex. PW4/C. Further though the complainant had also alleged that respondent/accused S.C.Suneja had fraudulently prepared SPA in favour of C.L.Kalra and his wife but the said SPA has not been produced/proved on record.” 9. It is evident from observations by learned Appellate Court solely relied on recovery of photocopies of receipts without making further enquiry as to whom these receipts were issued. There is no evidence as to who made the payment. It is evident from observations by learned Appellate Court solely relied on recovery of photocopies of receipts without making further enquiry as to whom these receipts were issued. There is no evidence as to who made the payment. Even R.K. Gupta, husband of Veena Gupta has not stated a single word against the petitioner in his testimony while appearing as PW-5. 10. As a sequel of my above discussion, I am of the considered opinion that the Appellate Court fell in grave error while concluding that the petitioner is guilty of offences punishable under Sections 467, 468 and 471 IPC. There was no cogent and convincing evidence or basis for reaching such a conclusion and I have no option but to accept this revision petition and set aside the judgment of Appellate Court. The petitioner, who is in custody, be released forthwith. 11. Copy of this judgment be conveyed to Superintendent, District Jail, Faridabad.