Final Order 1

Order Details: Copy of Judgment
Pdf Text: -- 1 -- C.C.NO.992/PW/2023
Presented on 23 06 2023
Registered on 23 06 2023
Decided on 18 11 2024
Duration Year
01
Month
04
Days
25
Exh. No.45
Part-A
MHMM180042752023 IN THE COURT OF THE ADDL. CHIEF JUDICIAL MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by A. K. Awari )
C.C.No.992/PW/2023
Date of Judgment: 18/11/ 2024
Details of FIR/
Crime No. and
Police Station
Crime No.912/2022, offences punishable under
Sections 420, 465, 466, 467, 468, 469, 471 of the
Indian Penal Code,
Police Station, Khar.
Prosecution
:
The State Of Maharashtra Through
Police Station Officer, Police Station
Khar, Mumbai
Represented by : Shri.Kishor Patil ,Learned Assistant Public Prosecutor
for the State.
Accused : Sushil Narayan Gaikwad
Age – 44 years, Occupation- Nil
R/o. Room No.2/9, D 34,
Priyadarshani Co-op. Housing Society,
Behind D.A.V. School,Sector 48,
Seawood, Navi Mumbai
Represented by : Adv. Shri. P.P. K h o t , Learned Counsel for the
accused
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Part -B Para 44(i) of Chapter VI of the Criminal Manual.
Date of offence From 21/01/2018 to 31/07/2021
Date of FIR 21/06/2022
Date of Charge-sheet 23/06/2023
Date of Framing of Charges 07/08/2023
Date of commencement of evidence 26/09/2023
Date on which Judgment is reserved Nil
Date of the Judgment 	18/11/2024
Date of the Sentencing Order, if any 18/11/2024
Accused Details
Ran
k of
the
Acc
use
d
Name
of
Accuse
d
Date of
Arrest
Date of
Release
on Bail
Offenc
es
charge
d with
Whether
acquitted
or
convicted
Sentence Imposed Period of
Detention
Undergon e
during Trial
for purpose
of Section
428 Cr.P.C.
1) Sushil
Narayan
Gaikwad
25/04/2023 Through
out Under
Trial
420,465,
466,467,
468,469
471of
the
Indian
Penal
Code
Convicted for
the offence
punishable
under
Sec.420,
465, 466,
467, 468 &
471 of IPC
Acquitted for
the offence
under
Section 469
of I.P.C.
For the offence
punishable
U/sec.420
R.I. for 03 Yrs. and
fine of Rs.10,000/- i.d.
S.I. for 01 month.
U/sec.465
R.I. for 02 Yrs. and
fine of Rs.10,000/- i.d.
S.I. for 01 month.
U/sec.466
R.I. for 03 Yrs. and
fine of Rs.5,000/- I.d.
S.I. for 01 month.
U/sec.467
R.I. for 03 Yrs. and
fine of Rs.10,000/- I.d.
S.I. for 01 month.
U/sec.468
R.I. for 03 Yrs. and
fine of Rs.10,000/- I.d.
S.I. for 01 month.
U/sec.471
R.I. for 02 Yrs. and
fine of Rs.10,000/- I.d.
S.I. for 01 month.
From
25/04/2023
to
18/11/2024
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Judgment (Exh.45)
Part -C
List of Prosecution/ Defence/Court WitnessesPart -C
List of Prosecution/ Defence/Court Witnesses
Rank Name Exh. Nos. Nature of the evidence
1 Nisar Ahmed
Hajimohammad Hanif
05 Informant
2 Ayub Ismile Pathan 08 Witness
3 Sayyed Shumak Ahmed 12 Witness
4 Sayyed Shafique Ahemd 15 Witness
5 Shakuntala Vasant Gaikwad 27 Witness
6 Anusaya Namdeo Gaikwad 28 Witness
7 Gokul Dinesh Bhoi 29 Investigating Officer
List of Prosecution/ Defence/Court Exhibits
Rank Exh. Nos. Nature of the evidence
1 06 Report
2 16 Power of Attorney dated 18/09/2018
3 17 Rectification Deed
4 18 New Power of Attorney dated 18/01/2019
5 26 Development Agreement
6 30, 31 and 32 The panchanamas
7 33 Report of handwriting expert
8 35 Bank statement of IDBI Bank
9 36 Bank Statement of Axis Bank
10 37 Letter of CIDCO
11 38 Report from CIDCO
12 30 and 40 Bank Statements of SBI of Shabbir Ali
Sayyed
13 Article A, B & C The cheques
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Judgment (Exh.45)
J U D G M E N T
(Delivered on 18.11.2024)
1. The accused in the dock is tried for the offences punishable
under Sections 420, 465, 466, 467, 468, 469, 471 of the Indian Penal Code,
at the behest of Police Station, Khar.
2. The case of the prosecution can be summarized as under,
Nisar Ahmed Haji Mohammad Hanif Qureshi( the informant), resident of
Bandra(W), Mumbai is into the construction business. In the year 2018, he
alongwith his friends Sayyed Shafique Ahmed, Ayub Pathan, Sayyed
Shumak Ahmed started new company in the name and style as ONYX
Infrabuild LLP. It was agreed amongst them that Sayyed Shafique Ahmed
would supervise, the informant would see the construction and Ayub Pathan
would look after all the documentary part of the project.
3. The informant was having acquaintance with one agent Mr.
Kiran Jadhav. He introduced the accused to the informant stating that the
accused has property at New Mumbai for development. Accordingly, he took
the informant at Plot No.B-1, Sector 08, Ulve,Taluka Panvel, District Raigad
to see the property. The accused came there with the copies of the papers
related to the property showing that he was the owner. Later on
02/05/2018, the accused had been to the office of the informant at Bandra
alongwith the papers of the property. It was seen that the said property was
given to one Manjula Krishna Naik, Anusaya Namdeo Gaikwad and
Shakuntala Vasant Gaikwad by CIDCO in the scheme and subsequently they
entered into the Tripartite Agreement with the accused. The informant
towards the part performance paid Rs.5,00,000/- to the accused by cheque.
Thereafter again, the accused was called alongwith the documents at
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Judgment (Exh.45)
Bandra Office in order to show the papers to their legal advisor P. Vas & Co..
Accordingly on verification of the documents, one Memorandum of
Understanding and the Development Agreement were entered into between
the informant, other partners and the accused at Sub-registrar Office,
Panvel. As in the agreement the property was shown at Dapoli instead of
Ulve, the Correction Deed was also executed.
4. Pursuant to the said agreement, the total amount of
Rs.85,92,520/- was given to the accused from time to time on the request of
the accused and the receipts were also issued by the accused. As he was in
regular touch with the informant and the partners, they never doubted.
5. In July 2021, their legal advisor P. Vas & Co. asked for the
original documents of the property. Hence, the informant requested the
accused for it, but the accused was avoiding to give the same. He was even
avoiding to meet and to receive the calls of the informant. Hence, they
obtained the certified copies from the Sub-registrar Office. At that time, it
was revealed that, there was no entry in the name of the accused over the
property details and the said property was still standing in the name of the
abovesaid three ladies. Hence, Ayub Pathan met the said ladies. At that
time, they told that they have no acquaintance with Sushil Gaikwad and
they were absolutely unaware of the alleged transaction.
6. Later on, the meetings and discussion took place between the
informant and the accused wherein the accused assured to repay the
amount within three months but till the date it was not returned. Hence,
the informant lodged the report on 21/06/2011 against the accused to
Police Station, Khar.
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Judgment (Exh.45)
7. On his report, the Police Station, Khar registered Crime
No.912/2022 for the offences punishable under Sections 420, 465, 466,
467, 468, 469, 471 of the Indian Penal Code against the accused and the
investigation was handed over to API Mr. Bhoi ( Investigating Officer).
8. During investigation, the Investigating Officer recorded the
statements of the witnesses. He further collected signatures of the accused
and prepared panchanama. He arrested the accused. Further, he made
correspondence to the CIDCO as well as Manager, State Bank of India and
collected the relevant record from there. Further, the Investigating Officer
seized the documents and issued letters to the handwriting expert and
collected the report. After the investigation, he filed charge-sheet.
9. My Ld. Predecessor framed the charges against the accused for
the offence punishable under Sections 420, 465, 466, 467, 468, 469, 471 of
the Indian Penal Code vide Exh.02. The accused abjured the guilt and
claimed to be tried. His statement is of total denial and that of false
implication.
10. The points for determination alongwith my findings thereon are
as under.
Sr.
No.
POINTS FINDINGS
1] Whether the prosecution proves that in
between the period from 21/01/2018 to
31/07/2021 at Yellow Rose Building, 4 Pali
Village, Bandra(W), Mumbai accused cheated
the informant Nisar Ahmed Haji Mohammad
Hanif Qureshi by dishonestly inducing him to
deliver the amount of Rs.85,92,520/- to him
Yes
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Judgment (Exh.45)
and which was the property of the said
informant, thereby committed an offence
punishable under Section 420 of the Indian
Penal Code?
2] Whether the prosecution proves that on the
aforesaid period of time and place accused
forged a document namely the document
regarding the land admeasuring 899.94 Sq.
Meter situated at B 01 Sector 08, Mauje Ulve,
Tal.Panvel, Dist.Raigad thereby committed an
offence punishable under Section 465 of the
Indian Penal Code?
Yes
3] Whether the prosecution proves that on the
aforesaid period of time and place accused
forged the document i.e. MOU and Registered
Development agreement regarding the land
admeasuring 899.94 Sq. Meter situated at B
01 Sector 08, Mauje Ulve, Tal.Panvel,
Dist.Raigad which purports to be record made
by a public servant in his official capacity,
thereby committed an offence punishable
under Section 466 of the Indian Penal Code?
Yes
4] Whether the prosecution proves that on the
aforesaid period of time and place accused
forged a certain document purported to be a
valuable security, namely by preparing forged
documents regarding the land admeasuring
899.94 Sq. Meter situated at B 01 Sector 08,
Mauje Ulve, Tal.Panvel, Dist.Raigad, thereby
committed an offence punishable under
Section 467 of the Indian Penal Code?
Yes
5] Whether the prosecution proves that on the
aforesaid period of time and place accused
forged a document namely by preparing
forged documents regarding the land
admeasuring 899.94 Sq. Meter situated at B
01 Sector 08, Mauje Ulve, Tal.Panvel,
Dist.Raigad intending that it shall be used for
Yes
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Judgment (Exh.45)
the purpose of cheating, thereby committed an
offence punishable under Section 468 of the
Indian Penal Code?
6] Whether the prosecution proves that on the
aforesaid period of time and place accused
forged certain documents i.e. by preparing
forged documents regarding the land
admeasuring 899.94 Sq. Meter situated at B
01 Sector 08, Mauje Ulve, Tal.Panvel,
Dist.Raigad and thereafter for developing the
said land executed MOU and Registered
Development Agreement with the company of
the informant by name ONYX Infrabuild LLP
and its four partners intending that the said
documents forged shall harm the reputation of
the informant’s company, thereby committed
an offence punishable under Section 469 of
the Indian Penal Code?
No
7] Whether the prosecution proves that on the
aforesaid period of time and place accused
fraudulently used as genuine a document by
preparing forged document regarding the land
admeasuring 899.94 Sq. Meter situated at B
01 Sector 08, Mauje Ulve, Tal.Panvel,
Dist.Raigad and thereafter for developing the
said land executed MOU and Registered
Development Agreement with the company of
the informant by name ONYX Infrabuild LLP
and its four partners which you knew at the
time when used it to be a forged document,
thereby committed an offence punishable
under Section 471 of the Indian Penal Code?
Yes
8] What order? Accused is convicted.
R E A S O N S
11. In order to prove the guilt of the accused, the prosecution has
examined Nisar Ahmed Hajimohammed Hanif ( Informant) at Exh.05, Ayub
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Judgment (Exh.45)
Ismile Pathan (P.W.NO.2) at Exh.08, Sayyed Shumak Ahmed (P.W.No.3) at
Exh.12, Sayyed Shafique Ahmed (P.W.No.4) at Exh.15, Shakuntala Vasant
Gaikwad (P.W.No.05) at Exh.27, Anusaya Namdeo Gaikwad (P.W.No.06) at
Exh.28 and API Bhoi (Investigating Officer) at Exh.29. The prosecution has
further relied on the report (Exh.06), Power of Attorney dated 18/09/2018
(Exh.16), Rectification Deed (Exh.17), New Power of Attorney dated
18/01/2019 (Exh.18), Development Agreement (Exh.26), the panchanamas
(Exh.30, Exh.31 and Exh.32), the report of handwriting expert (Exh.33),
bank statement of IDBI Bank (Exh.35), Bank Statement of Axis Bank
(Exh.36), Letter of CIDCO (Exh.37), report from CIDCO (Exh.38), Bank
Statement of SBI of Shabbir Ali Sayyed(Exh.39) and (Exh.40), the cheques
at Article-A, B and C.
12. Heard Ld. A.P.P. for the State Mr. Kishor Patil and Ld. Counsel
for the accused Adv. P.P. Khot. He further relied on written notes of
arguments (Exh.44).
As to Point Nos. 2, 3 and 4:-
13. Ld.Counsel for the accused Adv. Khot argued on the point of
lack of territorial jurisdiction of the Court as the offence did not take place
within the jurisdiction of the Khar Police Station. Further, nothing is
recovered from the accused. The prosecution has based its case on the
documentary evidence, but not recovered any document from the accused.
No bank witnesses or the witnesses on the point of execution of the alleged
documents have been examined by the prosecution. Even, the documents
are not proved by examining the handwriting expert and there is no
concrete evidence to establish that the said signatures are of the accused
only.
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Judgment (Exh.45)
14. He further argued that one Shrikant Damodar was the
instrumental in the transaction and he actually cheated the accused
alongwith Kishor Yadav but no action has been taken against them. No
Partnership Deed among the informant and other partners is placed on
record. Only interested persons have been examined by the prosecution.
The witnesses like Shakuntala (P.W.5), Anusaya (P.W.6) even did not identify
the accused and no documents were confronted to them. Hence, the
prosecution has failed to prove the guilt of the accused.
15. On the contrary Ld. A.P.P. for the State with the help of the
available evidence strenuously submitted on the point of actual involvement
of the accused in the present case. He mainly emphasized over the
documents coupled with the oral testimony of the witnesses. He further
pointed out that the bank statements clearly show the entries in the account
of the accused regarding deposit made in favour of the accused. Further,
the handwriting expert’s opinion (Exh.33) clearly shows that the said
signatures belong to the accused only.
16. This case is mainly based on the documentary evidence. Before
divulging to the prosecution case and the evidence tendered, I need to
reproduce the concept of forgery as contemplated under Section 463 of
I.P.C.. It postulates the making of false documents with intent to cause
damage or injury, to the public or to any person, or to support to any claim
or title, or to cause any person to part with property or to enter into any
expressed or implied contract, or with intent to commit fraud. The making
of forged document expounds the making, signing, sealing or execution of a
document or part of the document and making any mark denoting the
execution of the document or the authenticity of it. All these acts of
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Judgment (Exh.45)
making, signing, sealing, execution, transmission or alteration shall be with
the dishonest and fraudulent intention. Therefore, the evidence of the
prosecution has to be discussed on these lines. As per the prosecution, the
accused prepared forged document regarding the land admeasuring 899.94
Sq. Meter situated at B 01 Sector 08, at Ulve, Tahsil Panvel, Dist. Raigad and
further forged the registered Development Agreement in respect of the said
property purported to be a valuable security for the purpose of cheating the
informant.
17. The disceptation, what emerges from the prosecution evidence,
is quoted in seriatim. Nisar Ahmed (Informant) categorically stated that,
one Kiran Jadhav told him that accused has a plot at New Mumbai hence,he
alongwith Kiran Jadhav went to the abovesaid property. The accused was
present there and he showed the papers to the informant and further on
02/05/2018 he came to the office of the informant. He further stated that
the accused informed him that he entered into one Tripartite Agreement
with three ladies and asked the informant to execute Development
Agreement as he has become the owner of the said property. Keeping the
belief in his words, he paid Rs.5 Lakh by cheque to the accused. He further
took the accused to his lawyer and the Development Agreement was
executed at Sub-registrar Office, Panvel which was subsequently corrected
by way of Correction Deed as the place Dapoli was mentioned instead of
Ulve. Even, the M.O.U. was entered into between the accused and the
informant and the mode of payment was decided. As against the same,
since 2018 to 2021, he paid Rs.85,92,520/- to the accused from time to
time.
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Judgment (Exh.45)
18. His evidence further depicts that the accused used to visit the
informant’s office as and when called. Hence, they had no suspicion over
him. But in the year 2021, when the original documents were called by
lawyer of the informant, he started avoiding and even did not receive the
calls. On verifying the documents at Sub-registrar Office by the lawyer, it
transpired that the said property was not standing in the name of the
accused, but in the name of three ladies. Even, the said ladies never
transacted with the accused in any manner in respect of the said property.
Hence, he lodged the report (Exh.06).
19. Ayub Pathan (P.W.2) is the partner of ONYX Infrabuild LLP and
was working with the informant. He also testified on the same lines and
corroborated the testimony of the informant. Sayyed Shumar (P.W.3) who is
also one of the partner of ONYX Infrabuild LLP also corroborated the
evidence of the informant. Same is the case with Sayyed Shafique (P.W.4), a
Partner in ONYX Infrabuild LLP. He further added that in all 85,92,520/-
rupees were given to the accused. He even relied on the bank statement
(Article A & B), The Power of Attorney (Exh.16), Correction Deed (Exh.17)
and Power of Attorney (Exh.18) as well as Development Agreement dated
18/09/2018 (Exh.26).
20. In searching cross-examination of the informant his testimony
is not shattered. Several suggestions were given regarding the non-
execution of the Development Agreement, but the informant flatly denied it.
But it is strange to observe that no suggestion regarding non-payment of the
amount to the accused is given. Even, the cross-examination of other
witnesses shows the suggestions of denial which are of no help to the
defence.
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Judgment (Exh.45)
21. Now, I move to the evidence of the other witnesses, the
reference of which ladies is there in the evidence of the informant and other
witnesses. Shakuntala (P.W.5 ) and Anusaya (P.W.6) are the owners of the
abovesaid property. They testified that they never entered into any
agreement with the accused in respect of the said property and even their
signatures are not there on Exh.26 though their photos were there. In their
cross-examination, all the suggestions have been specifically denied by
them.
22. API Bhoi (I.O.) recorded the FIR and registered
C.R.No.912/2022. He further recorded the statements of witnesses. He
obtained the signatures of the accused and prepared panchanama (Exh.30,
Exh.31 and Exh.32). He further referred the same to the handwriting
expert and received report (Exh.33). He further corrected the bank
statement of IDBI Bank (Exh.35) and Axis Bank (Exh.36). Further vide
letter (Exh.37) the report of CIDCO authority was obtained. Even, he
collected the bank statements (Exh.39) and (Exh.40) of SBI Account of
Shabbir Ali and obtained cheques(Article A,B,C) with the signatures of the
accused. During cross-examination he admitted that he did not record the
statements of Shakuntala, Anusaya and Manjula initially but later it was
recorded. He even did not collect the promissory note regarding the
payment made to the accused. The remaining suggestion have been denied
by him.
23. The most important document on which the prosecution is
relied is the Development Agreement (Exh.26) which is executed between
the accused and the ONYX Infrabuild LLP and his partners . From the said
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Judgment (Exh.45)
document, it transpires that the agreement to lease was there between
CIDCO and Manjula Naik, Anusaya Gaikwad and Shankuntala Gaikwad who
subsequently by way of Tripartite Agreement dated 10th March 2017
transferred their rights in favour of the accused. Further, by making the said
fact the basis, the present Development Agreement (Exh.26) was prepared.
However, Anusaya and Shakuntala have clearly denied the said execution of
any such document in favour of the accused at any point of time. Therefore,
since inception, the fraudulent and dishonest intention of the accused is
seen. The agreement (Exh.26) further makes out the mode of payment to
be paid to the accused from time to time. The said agreements appears to
have been signed by the accused and even registered at Sub-registrar
Office,Panvel. Later, the Correction Deed was prepared as the correction as
regards the place was required to be made. I further move to the Power of
Attorney (Exh.16 & Exh.18) which also shows the execution by the accused.
24. Here except the bare suggestion even the defence has not
disputed the execution of the Power of Attorney as well as the Development
Agreement (Exh.26) in a specific manner. The report (Exh.33) of the
handwriting expert clearly shows that the standard signatures of the
accused is similar with that of the disputed signatures on the Development
Agreement (Exh.26) and even indicate the common authorship. Though it
is the opinion, but it corroborates the substantive evidence of the informant
and the other witnesses. Therefore, it carries significance.
25. As stated earlier, the prosecution evidence especially of Anusaya
and Shakuntala goes to show that no agreement of any nature was executed
by them in favour of the accused at any point of time. Even, the defence
could not bring on record any material to substantiate his stand on the point
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Judgment (Exh.45)
of his alleged rights over the property in view of the transfer by Shakuntala,
Anusaya and Manjula. Hence, there is enough room to hold that the act of
stating about the Tripartite Agreement and mentioning about the same in
Development Agreement (Exh.26) is itself forgery. The question arises when
no such agreement was executed by Shakuntala, Anusaya and Manjula, how
the accused obtained the allotment letter dated 16/03/2017[which is a part
of Development Agreement (Exh.26)] issued by CIDCO Authority. When the
said allotment in favour of the accused is itself false and forged, the
Development Agreement (Exh.26) is also a forgery. The basis for the
execution of the Development Agreement (Exh.26) is the said allotment
letter issued by CIDCO. Even, one thing is evident from the evidence of API
Bhoi (I.O.) that he received report (Exh.38) from CIDCO Authority. The
report (Exh.38) if is meticulously seen, it is certain that to the query as to
whether the said property was given to Anusaya, Manjula and Shakuntala,
the CIDCO Authority clearly denied that and further no such Tripartite
Agreement is ever executed between the accused and the said ladies and
ever reported to CIDCO Authority. Even, the Report (Exh.38) shows that no
allotment as a lessee was granted to the accused and even no such letter
dated 16/03/2017[ annexed with Development Agreement(Exh.26)] was
ever issued by the CIDCO Authority in favour of the accused. This evidence
is of much significance because the intention to defraud and deceive is
apparent since inception and even prior to entering into the transaction
with the informant and his firm.
26. I would like to further observe that the forgery in the allotment
letter issued by CIDCO in favour of the accused is clearly established by the
evidence of Shakuntala and Anusaya as well as the letter issued by
CIDCO(Exh.38). Hence, the Development Agreement (Exh.26) which is
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Judgment (Exh.45)
executed on the basis of it can be said to be forged as the accused had
knowledge of it as a forged one. Therefore, the prosecution has successfully
proved the forgery committed by the accused. In such circumstances, the
burden shifts on the accused and it is for the accused to disprove the said
fact. However, neither by way of specific defence nor in the statement
under Section 313, the accused could disprove the said fact. Hence, the
charges for the offences punishable under Section 465, 466 as well as 467 of
the Indian Penal Code are proved by the prosecution. Hence, I answer Point
No.2, 3 and 4 in the affirmative.
As to Point No.5:
27. Pursuant to the above said evidence, I emphasize that already
the forgery by the accused in making and preparing the forged allotment
letter by CIDCO by forging the signatures of Shakuntala, Anusaya and
Manjula is proved by the prosecution. However, the said document has
been made use of by the accused while preparing the Development
Agreement (Exh.26) with the ONYX Infrabuild and the informant alongwith
his partners. Therefore, when the accused had a knowledge that the said
document was itself forged and false, it can be easily inferred that, it was
used by the accused with the intention of cheating the informant and his
partners. Therefore dishonest intention of the accused which is the primary
ingredient for the offence of cheating is evident. I further make a note that
making use of said document, the ONYX Infrabuild and the partners
invested the amount and paid the same to the accused. Therefore, despite
the knowledge, the accused insisted the partners of the firm to invest and
thus, the forgery with the intention to cause wrongful loss and to take
pecuniary advantage can also be said to be proved. Therefore, the forgery
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Judgment (Exh.45)
with the intention of cheating is very well established by the prosecution
with the available evidence. Hence, I answer Point No.5 in the affirmative.
As to Point No.7:
28. To bring home the guilt of the accused under Section 471 of the
Indian Penal Code, it is required to be established that the accused who is
the user of the forged document, used the same as genuine interalia must be
made fraudulently and dishonestly. To bring a person within the purview of
abovesaid section, it is enough that the said document was used which he
knew or had reason to believe to be a forged document. In this context, I
need to observe that in the foregoing paras already the making of forged
document and its use for the purpose of cheating has been established by
the prosecution. The accused since the making of the forged and false
allotment letter by CIDCO, was very well within the knowledge that it was
not the genuine one. Even if, had he not used the same, the Section would
not have been come into picture. But when, he was knowing it that it was
forged and lacked any trustworthiness, he used the same for entering into
Development Agreement (Exh.26) and the Power of Attorney with the
ONYX Infrabuild and its partners. Therefore, the act of the accused very
well comes within the purview of Section 471 of the Indian Penal Code.
Hence, I answer Point No.7 in the affirmative.
As to Point No.1:
29. The prosecution story mainly emphasizes of the cheating
committed by the accused with the ONYX Infrabuild, the informant and his
partners. The evidence of the informant and other witnesses especially the
partners categorically depict that the accused since beginning came with the
help of allotment letter that he got the rights to transfer the abovesaid
property. Relying on his version and submitting certain papers by the
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Judgment (Exh.45)
accused and projection of himself in the like manner, the informant and his
partners agreed to make the payment plan and accordingly paid the huge
amount of Rs.85,92,520/- to the accused. Already, the dishonest intention
of the accused in making the ONYX Infrabuild and partners to invest in the
said project is very well established. On the contrary, the inducement to
deliver the amount is also evident from the prosecution evidence.
30. I must reiterate that the bank statements of IDBI Bank of the
accused clearly goes to show the credit entry in the account of the accused
to tune of Rs.85,92,520/- from time to time. Out of which some in the name
of the accused directly and some in the account of Shri.Vaibhavlaxmi
Enterprises. The prosecution has relied on the account statement (Exh.40)
and (Exh.35). The highlighted entries in the said account clearly establishes
the credit of the abovesaid amount in favour of the accused by ONYX
Infrabuild and the partners of it. Even, the accused has not denied this fact
specifically by adducing the contrary evidence. In such circumstances, the
inducement to deliver the abovesaid amount and to enter into the
transaction by the accused is well proved by the prosecution. In such
circumstances, the prosecution, with the help of cogent and convincing
evidence has proved the offence punishable under Section 420 of the Indian
Penal Code. Hence, I answer Point No.1 in the affirmative.
As to Point No.6:
31. Section 469 of the Indian Penal Code speaks of the forgery
intending to harm the reputation of any party. The expression “Harm”
mainly includes hurt, injury, damage. It also includes the harm to the
reputation with the help of forged documents. I have already discussed
about the forgery and corresponding cheating by the accused in the
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Judgment (Exh.45)
foregoing paras. However, here the prosecution could not establish that the
accused by making forged document and committing forgery, caused harm
to reputation to ONYX Infrabuild or its partners. Even, the evidence of the
prosecution witnesses is silent on these aspects. Hence, it can be said that
the necessary evidence to prove the abovesaid ingredients is lacking and
thus is not sufficient to establish the guilt for the offence punishable under
Section 469 of the Indian Penal Code. Hence, I answer Point No.6 in the
negative.
As to Point No.8:
32. From the findings and discussion to the above points, it is
proved beyond reasonable doubt that the accused has committed offences
punishable under Sections 420, 465, 466, 467, 468 and 471 of the Indian
Penal Code. Thus, these points are answered accordingly. Hence, I stop here
to hear the accused on the point of sentence.
Date:-18/11/2024. (A.K.Awari)
Addl.Chief Judicial Magistrate,
09th Court, Bandra, Mumbai
33. Today the accused is not produced physically by the Jail
Authorities. Hence, he is directed to be produced on Video Conferencing
Facility. On production of the accused on Video Conferencing Facility, he has
been verified as to the audio and video quality of the Video Conferencing
Facility. He stated that the video and audio quality is proper. Further, he is
informed that his advocate is also present before the Court to appear on his
behalf and further informed that his advocate can also make the
submissions on his behalf on the point of sentence.
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34. The accused submitted that, he has no criminal antecedents.
He further stated that he be released on the period which has undergone in
the prison considering the same as the sentence. He further added that
since 19 months he is in jail. Recently his father is passed away therefore,
the entire family is depending on him. His son is school going child and
thus for the advancement of his carrier his release from the prison is
necessary. Further, if the severe punishment is imposed, there should be
stigma on his character forever. Hence, prayed for leniency. Adv. Khot
appearing on behalf of the accused also argued on the same line. Adv. Khot
on behalf of the accused submitted that his entire family is dependent on
him. Hence, he be given benefit of Probation of Offenders Act and
minimum punishment he given to him. As against it, Ld. A.P.P. Mr. Kishor
Patil ardently submitted that the offence is very serious in nature and the
amount involved is around Rs.85 Lakhs. Further such type of offences are
rampant in the cities like Mumbai. The whole investment of the informant
is at stake and one cannot imagine the situation if, the entire capital of any
person is disappeared in the like manner. His entire earning has been taken
away by the accused with such a smarter way. As such it is not only the
offence against one person but against the public office as well as the
society. Hence, such acts are required to be curbed and should be dealt with
stern hands. With this he prayed for the severe punishment for the reason
that the message should go to the society.
35. In this case, the mitigating circumstances which has come is
that, the accused is a youth with no criminal antecedents and further his
entire life is ahead. Further, he is the only earning member of his family.
His entire family is dependent on him.
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Judgment (Exh.45)
36. Against this, the aggravating circumstances are that the accused
not only cheated the informant and his firm but the Public Office like
CIDCO. Even, the cheating of three illiterate ladies has been there of which
they had no knowledge. All these acts are really serious in nature. Hence,
the aggravating circumstances are more than the mitigating circumstances.
The amount involved is very huge. The loss caused to the firm cannot be
imagined. The parties in such cases come on the street with such
unanticipated losses. Hence, if the benefit of Probation of Offenders Act is
given it will be lighter punishment and the wrong message will go in society.
On the other hand, if the severe punishment is given, it will meet the ends
of justice. Hence, the order.
ORDER
1) Accused Sushil Narayan Gaikwad is convicted for the offences
punishable under Sections 420, 465, 466, 467, 468, 471 of the Indian Penal
Code vide Section 248(2) of the Code of Criminal Procedure.
2) The accused is convicted for the offence punishable under
Section 420 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 03(Three) years and to pay fine of Rs.10,000/-(Rupees
Ten Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
3) The accused is convicted for the offence punishable under
Section 465 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 02 (Two) years and to pay fine of Rs.10,000/-(Rupees
Ten Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
4) The accused is convicted for the offence punishable under
Section 466 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 03(Three) years and to pay fine of Rs.5,000/- (Rupees
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Judgment (Exh.45)
Five Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
5) The accused is convicted for the offence punishable under
Section 467 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 03 (Three) years and to pay fine of Rs.10,000/-(Rupees
Ten Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
6) The accused is convicted for the offence punishable under
Section 468 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 03(Three) years and to pay fine of Rs.10,000/-(Rupees
Ten Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
7) The accused is convicted for the offence punishable under
Section 471 of the Indian Penal Code and is sentenced to suffer Rigorous
Imprisonment for 02(Two) years and to pay fine of Rs.10,000/-(Rupees Ten
Thousand only) in default to suffer Simple Imprisonment for 01(One)
month.
8) The accused is acquitted of the offence punishable under
Section 469 of the Indian Penal Code vide Section 248(1) of the Code of
Criminal Procedure.
9) The accused is in custody since 25/04/2023. The set off for the
period of his detention be given to the accused under Section 428 of the
Code of Criminal Procedure.
10) The substantive sentences shall run concurrently.
11) The accused shall surrender his bail bonds, if any.
12) The accused is further informed that he has right to appeal
before the Sessions Court.
13) Copy of the judgment be given to the accused free of costs .
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Judgment (Exh.45)
14) The accused is produced by the Jail Authorities on Video
Conferencing Facility. Hence, the copy of the judgment be sent to the
Superintendent, Central Prison, Mumbai with a direction to serve the same
to the accused today itself.
(Dictated on computer and pronounced in open Court.)
Date:-18/11/2024. (A.K.Awari)
Addl.Chief Judicial Magistrate,
09th Court, Bandra, Mumbai
vnh
Dictated on : 18/11/2024
Typed on : 18/11/2024
Signed on : 18/11/2024
../-
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