Delhi District Court
State vs Dewendra Pandey And Vivek Bhat on 19 July, 2025
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDITIONAL SESSIONS JUDGE-02, SOUTH-EAST DISTRICT
SAKET COURTS, NEW DELHI
State Vs Vivek Bhat & Anr.
FIR No.: 134/2008
U/s : 420/468/471/120B IPC
PS : EOW
Brief Details Of The Case
FIR Number : 134/2008
Offence complained of : U/s 420/468/471/120B IPC
Date of Offence : In the year 2008
Name of the complainant : Mr. Vinay RC Iyer
CEO A & A Capital, Eros
Corporate Tower, Nehru
Place, New Delhi
Name of the accused : (1) Vivek Bhat
S/o S/o Sh. J L Bhat
R/o H 254, Rama Krishna
Vihar, 29, IP Extn., New Delhi
(2) Dewender Pandey,
S/o Sh. Lallan Pandey,
R/o H.No.H-45, First Floor,
Kalkaji, New Delhi
Date of Institution : 08.12.2008
Date of Judgment reserved on : 05.06.2025
Date of Judgment : 19.07.2025
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.1 to 129
Plea of the accused : Pleaded not guilty.
Final judgment : Both accused are acquitted.
JUDGMENT
1. Accused Vivek Bhat and Devendra Pandey faced trial for offences,
punishable U/s 420/468/471/120B IPC.
2. Prosecution story, as per chargesheet is that a complaint was filed by
complainant Vinnay RC Iyer stating that he was introduced to Vivek Bhat
by one Ravi Sain for organizing funds to the tune of US $ 7.8 Million
which was equivalent to Rs.32 crores and Vivek Bhat was to ensure the
payment of aforesaid amount to M/s A & A Capital by 17.11.2007. Vivek
Bhat gave assurance and based upon that an agreement between M/s A & A
Capital and accused Vivek Bhat was signed on 17.10.2007 and M/s A & A
Capital advanced Rs.23 Lakhs to accused Vivek Bhat by way of cheque of
Rs.1 Lakh vide cheque no.000014 dated 17.10.2007 drawn on Kotak
Mahindra Bank and another cheque of Rs.22 Lakhs having cheque
no.000019 dated 30.10.2007 drawn on Kotak Mahindra Bank. However,
accused Vivek Bhat did not make the payment despite reminders and later
promised that the payment would be swifted to the bank account of M/s A
& A Capital on 02.12.2007 and to substantiate his claim accused presented
the bankers of A & A Capital with the copy of Swift Advice. However, Sh.
Saurabh Dhingra who was the Manager at HSBC at Barakhamba Road
upon verifying declaring the Swift Advice furnished by accused Vivek
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.2 to 129
Bhat to be forged and accused Vivek Bhat defrauded M/s A & A Capital
and the payment of Rs.32 Crores was not received.
3. Upon several reminders accused Vivek Bhat agreed to pay M/s A & A
Capital an advance of Rs.22 Crores out of the aforesaid Rs.32 Crores and
issued a cheque no.055258 dated 29.12.2007 drawn on Dena Bank OIA
from the account of Vicky Overseas which was the company owned by
accused and entered into an agreement regarding the same on 24.12.2007.
A post dated guarantee cheque of Rs.22 crore was issued by M/s A & A
Capital in favour of Vivek Bhat on 28.12.2007. The said cheque of Rs.22
Crores which was issued by accused Vivek Bhat and his partner Devender
Pandey dated 29.12.2007 was handed over to the complainant and when the
aforesaid cheque was presented on 02.01.2008, the same was dishonoured
due to “insufficient funds”. Complainant informed regarding the same to
the accused Vivek Bhat. Upon which, accused promised to issue a demand
draft of Rs.22 Crore in favour of M/s A & A Capital (company of the
complainant) but did not issued the same despite reminders and at that
time, Mr. Ravi Saini kept pacifying the matter between the parties. Further,
it was accused Vivek Bhat who again assured the complainant to complete
the financial transaction by January 2008. However, again promised to pay
an amount of Rs.21.6 Crores to the complainant and again issued three
cheques from ICICI Bank dated 30.01.2008, 01.02.2008 totaling to Rs.21.6
Crores in favour of M/s A & A Capital but again the first cheque
no.073096 got dishonored and therefore the complainant did not present the
remaining two cheques. Subsequently, the same was informed to the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.3 to 129
accused by complainant and he asked the complainant to return the three
cheques and again assured that he would get a bank guarantee in favour of
M/s A & A Capital for a sum of Rs.32 Crores but again failed in complying
with the aforesaid promise. However, the complainant was threatened by
accused. Further, that the accused played fraud upon the complainant and
caused wrongful loss to him.
4. Upon the aforesaid complaint dated 03.04.2008, FIR was registered in the
present matter on 14.08.2008 by PS EOW and investigation ensued. During
investigation by SI Chhotu Singh IO examined the complainant and
collected the original documents including the letter dated 23.06.2008, of
one person namely Elmar Haag of Interworld Pty Ltd. and the complainant
of his own had contacted the aforesaid Australian Company and had
arranged the aforesaid letter written by Mr. Elmar Haag wherein he had
categorically stated that they had no representative or agent in India and
that they had not authorized accused Vivek Bhat or any other person to
solicit business on their behalf, and the loan agreement, loan approval
letter, apology letter which accused Vivek Bhat had forwarded to M/s A &
A Capital was forged and had not been issued by the aforesaid company of
Australia. Upon the aforesaid information LOC of accused Vivek Bhat was
opened. Reply from HSBC Bank regarding SWIFT Advise was
investigated and was found that the transaction ID No. was a transaction
reference and not a Swift copy. Certified copy of the bank account details
of M/s A & A Capital of the complainant and which showed that an
amount of Rs.23 Lakh vide two cheques bearing 000014 and 000019 dated
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.4 to 129
31.02.2007 was paid in the account of Vicky Overseas, Dena Bank.
Subsequently, the documents from concerned bank of Dena Bank was also
collected. The agreement dated 24.12.2007 and the notary in respect of the
same was examined. On 11.10.2008, accused was arrested from Air Port
and investigation was carried out. On the disclosure statement of accused
Vivek Bhat, accused Devender Pandey was also investigated.
5. Chargesheet in the present matter was filed on 08.12.2008 and charge
against accused Vivek Bhat U/s 420/468/471/120B was framed vide order
dated 07.01.2009. Supplementary chargesheet qua accused Devender
Pandey was filed on 24.12.2009, and charge qua accused Devender Pandey
was framed on 02.03.2010 U/s 420/120B IPC and matter was listed for
prosecution evidence.
PROSECUTION EVIDENCE
6. Prosecution has examined 20 witnesses in support of its case: –
Sl No. Name of the Witness Crux of deposition
PW-1 Ct. Shyam Phool Witness deposed that Inspt. Sushil
(got the FIR registered Kumar handed over rukka to him and
thereafter he went to PS EOW and after
on the complaint filed)
registering of FIR return back to AF&C
office and handed over copy of rukka to
Inspt Sushil Kumar.
Despite opportunity this witness has not
been cross examined on behalf of
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.5 to 129
accused persons.
PW-2 SI Brij Mohan Witness deposed the he had received
rukka from Ct. Shyam Phool and he got
registered the FIR No.134/2008 and
handed over copy of FIR with original
rukka to Ct. Shyam Phool. He tendered
the following documents in evidence :-
a) FIR – Ex.PW2/A
Despite opportunity this witness has not
been cross examined on behalf of
accused persons.
PW-3 Ramesh Chander Witness joined the investigation with IO
Vashist, Asst. Central and deposed the different stages of
investigation conducted with IO and
Intelligent Officer II,
prove the following documents:
Bureau of a) LOC (Look Out Circular) –
Immigration, IGI Ex.PW3/A
b) Stamp of immigration mentioning
Airport, New Delhi
“offloaded” affixed on passport of
accused at page no.8 – Ex.PW3/B
Despite opportunity this witness has not
been cross examined on behalf of
accused persons.
PW-4 Sh. Saurabh Dhingra, Witness deposed regarding forwarding of
Asst. Manager, HSBC transaction reference number to their
Mumbai Head office of their bank and
Bank
thereafter, the head office checked the
said number and prove the following
document.
a) Letter dated 27.11.2007 – Ex.PW4/A
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.6 to 129
This witness has been duly cross-
examined.
PW-5 Mr. Gurpreet Singh Witness deposed that he provided
Kochhar certified copy of account opening form
and documents pertaining to account
no.026120000032131 which was in the
name of Mr. Vinay R C Iyar and proved
the following documents.
a) Letter dated 25.11.2008 Ex.PW5/A
b) Account opening form of A & A
Capital Ex.PW5/B
c) Statement of account for the period
01.10.2007 to 25.11.2008 Ex. PW5/CThis witness has been duly cross-
examined.
PW-6 Mr. Prabhat Jha Witness proved the signature of
Mr. Subodh Kumar Samal on document
Ex.PW6/A and also the genuineness of
account, account opening form.
Despite opportunity this witness has not
been cross examined on behalf of
accused persons.
PW-7 Mr. Atul Gupta Witness proved the account statement of
account no.13020200032426 Ex.PW7/A.
Despite opportunity this witness has not
been cross examined on behalf of
accused persons.
PW-8 Mr. Arun Oberoi Witness proved the certified copy of
account opening form, copy of office
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.7 to 129
verification/telephone verification, copy
of mobile bill, copy of certificate of
Import-Export, copy of PAN card,
statement of account w.e.f. 22.11.2007 to
07.05.2008 Ex.PW8/A (Colly) and the
said documents handed over to IO vide
letter dated 07.05.2008 Ex.PW8/B and
another letter dated 11.08.2008.
This witness has been duly cross-
examined.
PW-9 Sh. G R Meena Witness proved the certified copy of
account no.3646 Ex.PW9/A, statement of
account no.3642 Ex.PW9/B and certified
copy of cheques Ex.PW9/C.
This witness has been duly cross-
examined.
PW-10 Sh. Komal Singh Witness deposed that he is a Notary
Suman (Notary Public appointed by Central Government
with power to attest documents and
Public)
proved the following documents:-
a) His attestation on cheque Ex.PW10/A
b) Copy of agreement dated 24.12.2007
Ex.PW10/BThis witness has been duly cross-
examined.
PW-11 ASI Bijender Singh Witness joined the investigation with IO
and deposed the different stages of
investigation conducted with IO and
prove the following documents:
a) Seizure Memo of certain documents
Ex.PW11/A
b) Seizure Memo of certain emails
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.8 to 129
Ex.PW11/BThis witness has been duly cross-
examined.
PW-12 Inspt Sushil Kumar Witness deposed that he verified the
bank transactions and he put his
endorsement on the complaint
Ex.PW12/A, thereafter he was
transferred from the case and
investigation of present case marked to
another IO.
This witness has been duly cross-
examined.
PW-13 HC Surinder Singh Witness joined the investigation with IO
and deposed the different stages of
investigation conducted with IO and
prove the following documents:
a) Arrest memo and personal search
memo of accused Vivek Bhat
Ex.PW13/A and Ex.PW13/B
respectively.
b) Seizure memo of mobile phone and
laptop Ex.PW13/C
c) Disclosure statement of accused Vivek
Bhat Ex.PW13/D
This witness has been duly cross-
examined.
PW-14 ASI Rajeshwar Singh Witness proved the Letter dated
Rana 09.02.2009 bearing no.
IP-06/180/2008/738 Ex.PW14/A and
annexures Ex.PW14/B from office file
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.9 to 129
no.IP06/180/2008.
This witness has been duly cross-
examined.
PW-15 Mr. Vinay R.C. Iyer To prove the material essentials of the
(complainant) offences alleged. He tendered the
following documents in evidence :-
a) Draft agreement dated 17.10.2007
Ex.PW15/A
b) Fair agreement Ex.PW15/B
c) Receipt of cheque of Rs.22 Lakh
issued by accused Vivek Bhat
Ex.PW15/C
d) Agreement dated 24.12.2007
Ex.PW15/D
e) Cheque of Rs.22 Lakh dated
29.12.2007 issued by accused Vivek
Bhat Ex.PW15/E
f) Detailed filed to EOW, Delhi
Ex.PW15/F
g) E-mail correspondence received by
him and forwarded by accused vivek
Bhat
h) E-mail correspondence sent by
accused Vivek Bhat and same
downloaded by complainant
Ex.PW15/G1
i) Report of the bank of dishonour of
cheque of Rs.22 Crores given by accused
to complainant Ex.PW15/H
j) Copy of email alongwith attachment
forwarding the sanction letter of
Australian Company Ex.PW15/I
k) Copy of email sent by accused Vivek
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.10 to 129
Bhat alongwith attachment forwarding
the apology for delay letter of his
Australian Company Ex.PW15/J
l) e-mail conservation Ex.PW15/J1
m) e-mail communication between
accused and complainant vide
forwarding letter dated 16.09.2008
Ex.PW15/K
n) Enclosure 1, enclosure 2 and
enclosure 3 attached with letter dated
16.09.2008 Ex.PW15/K1, Ex.PW15/K2
& Ex.PW15/K3 respectively.
o) Letter dated 10.10.2008 regarding
reply of signing original agreements with
accused Vivek Bhatt on 17.10.2007 &
04.12.2007 Ex.PW15/L, Ex.PW15/L1 &
Ex.PW15/L2A, Ex.PW/L2B
p) Letter dated 19.11.2008 written by
complainant to IO Ex.PW15/M
q) Letter dated 25.11.2008 written by
complainant to IO Ex.PW15/N &
Ex.PW15/N1
r) Letter dated 03.09.2008 written by
complainant to IO Ex.PW15/O,
Ex.PW15/O1, Ex.PW15/O2 &
Ex.PW15/O3 respectively
This witness has been duly cross-
examined.
PW-16 Inspt. Abhinendra Witness deposed regarding different
Singh stages of investigation conducted and
proved the following documents.
a). Seized print outs Ex.PW16/X1
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.11 to 129
(Colly)
b) Letter dated 25.11.2008 of Dena Bank
alongwith three cheques Ex.PW16/A,
Ex.PW16/A1, Ex.PW16/A2 and
Ex.PW16/A3 respectively
c) Letter dated 06.10.2008 of Dena Bank
Ex.PW16/B
d) Letter dated 01.12.2008 of Dena Bank
alongwith account opening form of
Vicky Overseas Ex.PW16/C and
Ex.PW16/D respectively
e) Letter received from Federal bank
with statement of account of M/s CM
Fabs Ex.PW16/E
f) Certified copy of account opening
form of M/s CM Fabs Ex.PW16/F
g) Letter dated 15.12.2009 Ex.PW16/G,
and enclosures Ex.PW16/G1
h) Letter dated 18.12.2009 of Federal
bank Ex.PW16/H alongwith original
account opening form of M/s CM Fabs
alongwith Power of Attorney document
Ex.PW16/H1
i) Arrest memo & Personal Search
Memo of accused Devender Pandey
Ex.PW16/I and Ex.PW16/J respectively
j) Disclosure statement of accused
Devender Pandey Ex.PW16/K
k) Sample signatures of accused
Devender Pandey Ex.PW16/L1 to
Ex.PW16/L3 respectively and sample
signatures of accused Vivek Bhat are
Ex.PW16/M1 to Ex.PW16/M7
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.12 to 129
respectively
This witness has been duly cross-
examined.
PW-17 Inspt. Shambhunath Witness deposed regarding different
stages of investigation conducted and he
had filed the supplementary chargesheet
containing two FSL reports.
Despite opportunity this witness has not
been duly cross-examined by accused
persons.
PW-18 Inspt. Shyo Ram Witness deposed regarding the different
stages of investigation conducted.
Despite opportunity this witness has not
been duly cross-examined by accused
persons.
PW-19 Mr. Ram Singh Saini Witness proved the account details with
respect to account no.0261000003216
from 31.01.2007 to 09.03.2009
Ex.PW19/A
Despite opportunity this witness has not
been duly cross-examined by accused
persons.
PW-20 Mr. Tushar Kapoor Witness deposed regarding non
availability of original cheques with the
bank as per the bank retention police and
proved the following documents
a) Reply/letter dated 04.11.2024
Ex.PW20/A
This witness has been duly cross-
examined.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.13 to 129
7. Vide statement under Section 294 Cr.P.C. recorded on 05.02.2018, both
accused has admitted the genuineness of the following documents: –
S. No. Documents Admitted
1. FSL-2009/D-0871 dated 20.04.2009 Ex.A1
2. FSL-2009/D-5353 dated 09.04.2014 Ex.A2
8. Prosecution witnesses deposed regarding the offence in the present matter
as follows :-
PW-1 Ct. Shyam Phool deposed that on 14.8.2008, he was posted at
AF&C section EOW, Crime Branch, Delhi. On that day, at about 3.30 pm,
Inspector Sushil Kumar handed over him a rukka. He went to PS EOW and
after getting the FIR registered, came back at the office of AF&C and
handed over the copy of FIR and original rukka to Inspector Sushil Kumar.
PW-2 SI Brij Mohan (Duty Officer) deposed that on 14.8.2008, he was
working as Duty Officer at PS EOW from 8 am to 8 pm. On that day, at
about, 3.45 pm, Ct. Shyam Phool came with a rukka. On the basis of the
said rukka, he registered present FIR bearing no 134/08 and handed over
the copy of FIR and original rukka to Ct. Shyam Phool. Copy of FIR was
Ex. PW2/A. Record produced by the witness seen and returned.
PW-3 Ramesh Chander Vashisht Asst. Central Intelligent Officer II,
Bureau of Immigration, IGI Airport, New Delhi deposed that in theFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.14 to 129
intervening night of 10/11.10.2008, he was posted as ACIO-II at
Immigration of IGI Airport. On that night, his duty was at departure wing.
After seeing the particulars of passenger Vivek Bhat, which were matching
with the LOC was detained at the Airport. SI Chhotu Singh of Crime
Branch was handed over the accused Vivek Bhat alongwith his passport
bearing no. F-9350746. The documentation done by him regarding this
passenger on LOC was Ex.PW3/A. He was not allowed to take the journey
on his passport a stamp of immigration mentioning “offloaded” was affixed
on his passport on page no.8 and same was Ex. PW3/B.PW-4 Saurabh Dhingra, Asst. Manager HSBC Bank, Barakhamba Road,
Connaught Place, New Delhi deposed that Mr. Vinay R C Iyar was
customer of Bank and he needed funding for his project Bandra Kurla
Complex, Mumbai. Accused Vivek Bhat was arranging funds for Mr Vinay
R C Iyar. Both Mr Vinay Iyar accused visited our Bank in mid of 2007 to
give details for a transfer of money initiated from Australia. Both of them
supplied one Transaction Reference Number. A transaction reference
number was given when money was to be transferred electronically and
this number was generated from the bankers of sender. Upon investigation
by the Bank on the said transaction reference number, they could not trace
funds under that transaction reference number. They forwarded this
transaction reference number to their Mumbai Head Office of our Bank and
the Head Office on checking the said number informed them that there are
no such funds available under such number. Complainant Vinay R C Iyar
addressed one letter dated 27-11-2007 to him for inward remittanceFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.15 to 129
intimation for A&A Capital A/c no. 051-664662-001 and the said letter
was Ex.PW4/A. Their Bank received two notices from Inspector Sushil
Kumar from the Office of ACP, EOW regarding inquiry into complaint of
Sh Vinay R C Iyar. In reply to the notices received from the Investigating
Officer, Bank replied the IO vide two letters dated 07-05-2008 and letter
dated 11-08-2008 which are signed by Mr Arun Oberoi, Vice-Presidents,
Operations, Northern India for HSBC. These two letters are marked 4A and
4B respectively. After the transaction reference number could not be
connected with any funds from Australia, Mr Vinay R C Iyar deposited one
cheque in his account no. 051-664662-001 for encashment which was
issued the by accused Vivek Bhat. The said cheque was dishonoured
because of funds insufficient.
During cross-examination on behalf of accused Vivek Bhat witness
deposed that he did not remember when he met Mr Vinay R C Iyar for the
first time. He could not admit or deny the suggestion that he met Mr. Vinay
R C Iyar three/four months prior to May 2007. He voluntarily deposed that
he did not remember. He knew Mr Vinay R C Iyar only because he was
customer of Bank. Mr Vinay R C Iyar has only one account in Bank as
mentioned above. He did not remember the date of opening of this account.
Their Bank did not deal in transaction of any person who was not a
customer of this Bank. He even did not remember whether the account of
Mr Vinay R C Iyar was opened prior to Mid of 2007. He could not admit or
deny the suggestion that this account of Mr Vinay was opened on 29-11-
2007. From mid 2007 till December 2007 he was posted in BarakhambaFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.16 to 129
Road Branch of HSBC as Asstt. Manager, Liabilities, Small and Medium
Enterprises. It was correct that this Branch does not deal with international
transactions directly. Police never recorded his statement in writing. It was
correct that Mark 4A and 4B were not executed in his presence nor he
personally sent them, however, before sending these letters information
was sought from him. The information which he had sent to Mr Arun
Oberoi was sent by him through E-mails. The IO never obtained hard copy
of those E-mails from him during investigation nor they are on record of
judicial file. He did not remember as to on which bank the said cheque was
drawn which he mentioned to have been dishonoured due to insufficient
funds. It was correct that he did not deal in personal accounts of
individuals. He did not member as to what date was mentioned by him
regarding opening of member account of Mr Vinay when he gave
information to Mr Arun Oberoi. It was correct that in mark 4A the date of
opening of account of Mr. Vinay was shown as 22-11-2007. He did not
send any information to Mr. Arun Oberoi by post besides E-mails. It was
correct that specimen signatures cards/account opening form etc. of an
account holder remains in the branch of Bank until obtained by
Investigating Agency or Court. Witness again said, the account opening
forms etc. are sent to Back Office which was located in Chennai regarding
accounts in HSBC. Mr Arun Oberoi has office at Barakhamba Road
Branch itself and he was in the same office in 2007 when he gave
information to him. He was in same office till date. His branch and office
of Mr Arun Oberoi are located across the road. He never met personally Mr
Arun Oberoi regarding the present case. He never went to the IO regardingFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.17 to 129
this case. Nor IO ever came to his office to investigate the present case. He
had seen the IO for the first time in the court. He was not sure whether the
cheque deposited by Mr Vinay R C Iyar which was dishonoured and as
stated by him in his chief was issued by the accused or somebody else.
PW-5 Gurmeet Singh Kochhar (Branch Manager Kotak Mahindra Bank)
deposed that he was Branch Manager of Kotak Mahindra Bank JMD,
Regent Square, Mehrauli, Gurgaon Road, MG Road, Gurgaon, Haryana
since July 2008. On receipt of a letter from IO Inspector Sushil Kumar
dated 20-08-2008 which was received in our Bank in November 2008 in
which the IO had asked the Bank to produce certified copies of account
opening form and other documents pertaining to a/c no. 02612000003213
which was in the name of Mr Vinay R C Iyar, Bank was also asked to
produce statement of account between 01-10-2007 till the date of letter and
Bank was also asked certain details about two cheques. Vide his letter
dated 25-11-08 which was Ex.PW5/A he had sent one certified copy of
account opening form and all other documents submitted at the time of
opening of the said account in the name of A&A Capital. The account
opening form was Ex. PW5/B running into four pages. At the time of
opening of account, one copy of Pan card was also furnished which was
mark 5A. Subsequently, in this account one change of name application
was given by the account holder, photocopy of which is Mark 5B.
Subsequently, one application for acceptance of multiple signatures was
also given to the Bank, the photocopy of which was Mark 5C. He also
handed over one statement of the said account for the period 01-10-2007FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.18 to 129
till 25-11-2008, the certified copy of which was on record Ex. PW5/C.
Besides this, he also handed over two cheques worth Rs. 22 lakhs and Rs.
One lakh respectively which were issued from this account. One of the
cheque was in the name of Vicky Overseas and the second cheque was in
the name of one individual.
On 16.11.2024 PW-5 was recalled for cross examination after 10.02.2009
and Court observed that IO in the present matter was summoned on the last
date of hearing and to clarify regarding the cheques in question bearing
no.000019 dated 30.10.2007 issued by A & A Capital in favour of Vicky
Overseas and another cheque no.000014 dated 17.10.2007 issued in the
name of Sh. Vivek Bhat and during clarification IO apprised the court that
the aforesaid two cheques being admitted were never sent to FSL in the
present matter and the original of the same were never seized. He further
has apprised that the cheques are already Marked-16/A2 and Mark-16/A3
for an amount of Rs.22 Lakhs and Rs.1 Lakh respectively. In view of the
aforesaid clarification from the IO, the examination chief of witness was
deferred due to want of original cheques and since the cheques were never
seized, the examination in chief stands concluded.
During the testimony, witness submits that as per his previous statement
recorded on 10.02.2009 it had been mentioned that he had handed over the
original cheques but he again gone through the letter Ex.PW5/A wherein it
he categorically mentioned that he had handed over the copy of the cheques
to the IO.
During cross-examination on behalf of accused Vivek Bhat PW-5 deposed
that he had never handed over the original cheques to the IO in the presentFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.19 to 129
matter during his tenure. During examination witness was asked could he
explain the procedure of SWIFT TRANSFER to which witness replied that
Swift Transfer was when overseas bank transfer money to India via a direct
mode or through a tie-up branch in India. For example if a Bank of
America overseas has a liasoning office/Branch office in India they will
transfer directly to Bank of America India Branch else they will credit to
the Nostro Bank Account where they have tie-up. This complete
information comes by a email or Swift Advise to the concerned bank and
the customer for which the swift advise is generated. Whenever if there was
any discrepancy regarding the inward swift not received then the customer
has to bring the requisite information/details which he received via email
from his foreign bank and then only bank follow-up with the corresponding
bank. To confirm any swift advise the bank requires the complete details of
the remitting bank transfer which was provided to them via email which
was a detailed document. He did not know as to how many digits have the
Swift Account Number.
Accused Dewendra Pandey adopted the cross conducted on behalf of
accused Vivek Bhat.
PW-6 Sh. Prabhat Jha (Bank Official) deposed that he could identify the
signature of Mr. Subodh Kumar Samal on Ex.PW6/A as he had worked
with him and seen him signing and writing in his presence during course of
his duty. The genuineness of documents which was marked as A and was
an account opening form running into 6 pages from 181 to 186 was not in
dispute and each page bears signature of Mr. Subodh Kumar Samal at pointFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.20 to 129
A who got attested the same. The genuineness of the statement of account
No. 007101031604 annexed with the judicial file running from 181 to 213
are not in dispute and the same was collectively marked as B.
Despite opportunity PW6 was not cross examined by both accused persons.
PW-7 Sh. Atul Gupta, Assistant Manager, Federal Bank, Nehru Place, New
Delhi deposed that he had brought the account statement of Account
No.13020200032426 which was running into two pages and the same was
Ex.P7/A which bears the signature of Manoj Kumar U-K, Senior Manager.
He could not identify the signatures on letter dated 18.12.2009 issued by
Federal Bank.
Despite opportunity PW6 was not cross examined by both accused persons.
PW-8 Sh. Arun Oberoi, Vice President (Operation) HSBC Ashoka Estate
24, Barakhamba Road, New Delhi deposed that he was posted as Vice
President (Operation), HSBC, Ashoka Estate, 24, Barakhamba Road, New
Delhi-01. On request of IO, copy of current account no. 051664662001 in
the name of M/s. A&A Capital which was opened by Mr. Vinay R.C Iyer
was handed over by another bank official to him. The certified copy of the
account opening form of the said account, copy of office verification /
telephone verification, copy of mobile bill, copy of certificate of Import-
Export, Copy of PAN Card, statement of the said account from the date of
account opened i.e 22.11.2007 to 07.05.2008 are Ex. PW 8/A (colly). The
following documents were handed over to IO vide letter dated 07.05.2008
which was Ex.PW 8/B earlier marked as Mark 4A. He had seen the letterFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.21 to 129
dated 11.08.2008 and he confirmed its authenticity as it pertains to his
bank. Same was Ex.PW8/C.
During cross examination on behalf of accused Vivek Bhat PW-8 deposed
that it was correct that he had no personal knowledge about the facts of this
case. It was correct that document Ex. PW 8/C does not bear his signatures.
Witness voluntarily deposed that it bears signatures of one Mr. Kapil
Kapoor who was his colleague as well as was authorised to sign letters on
his behalf. Same was his reply in respect of document Ex.PW 8/B which
bears signatures of one Ms. Veenu Kuba on his behalf. Today, he did not
remember as to whether he had personally handed over any document to
any of the police officials or not. He could not admit or deny whether
document Ex.PW 8/B was handed over to police by him or not. He did not
remember whether police had recorded his statement or not.
Despite opportunity PW-8 did not cross examine by accused Devender
Pandey.
PW-9 Sh. G R Meena, Sr. Manager, Dena Bank, Okhla Phase III, New
Delhi deposed that he had brought the summoned record and has also
tallied the same with the documents available on the judicial file. Certified
copy statement of account in respect of account No. 3646 was Ex.PW9/A
and certified copy of statement of account in respect of account No. 3642
was Ex.PW9/B, the certified copies of cheques are collectively Ex.PW9/C.
The originals of all these documents including cheques were handed over
to police by their bank.
During cross examination conducted on behalf of accused Vivek Bhat
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.22 to 129
PW-9 deposed that it was correct that he had no personal knowledge about
the present case.
Accused Devender Pandey adopted the cross examination conducted on
behalf of accused Vivek Bhat.
PW-10 Sh. Komal Singh Suman, Advocate deposed that she has been
practicing advocate at Delhi and also a Notary Public appoint by Central
Government with power to attest the documents. She had seen the
photocopy of cheque bearing her attestation at point A and also carrying
her seal. The said document was Ex. PW10/A which was attested by her in
her capacity as Notary Public. She had also seen the photocopy of an
agreement dated 24.12.2007 which also bear her signature at point A and
the said photocopy is Ex. PW10/B. Besides these attestation, she had no
personal knowledge about the facts of the present case.
During cross examination on behalf of accused Vivek Bhat PW-10 deposed
that she was given the notary license for the period 01.06.2007 till
31.05.2012 and later on it has been renewed further. It was correct that as
per procedure a notary was required to maintain a register mentioning
therein the nature of document attested alongwith the name of the party
presenting it for attestation. Neither IO had demanded nor she had handed
over him any such extracts of her register. It was not mandatory in the case
of a photocopy attested by a notary to record its particulars in the said
register. It was correct that she had no knowledge about the contents of the
documents which were attested by her.
Despite opportunity accused Dewender Pandey did not cross examine
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.23 to 129
PW10.
PW-11 ASI Bijender Singh deposed that on 14.10.2008 he was posted as
Head Constable at PS EOW. On that day, he had joined investigation with
the IO/SI Chotu Singh and on that day accused Vivek Bhat who was
already in police custody was taken to his house at 254, Rama Krishna
Vihar, Plot No. 29, I.P. Extension, Delhi from where IO had seized certain
documents and had also prepared seizure memo of the same which was Ex.
PW11/A. On the very same day, accused was thereafter brought to Saket, J-
Block Market and was taken to a Cyber Cafe from where his e-mail
account was opened and IO had taken the print outs of certain e-mails
which were taken into possession vide seizure memo Ex. PW11/B.
Thereafter, they had reached back to their office where his statement was
also recorded by the IO.
During cross examination on behalf of accused Vivek Bhutt PW-11
deposed that on 14.10.2008 the office of EOW was situated at Qutub
Institutional Area. Accused was taken out from lock up at around 9.00 am
and was lodged back at lock up at 8.00 pm. They had reached at the house
of the accused at around 11.00 am. The building where the flat of the
accused was situated was around 3-4 storeys. There was no cinema hall or
school near the house of the accused. The flat of accused was situated
either on first or second floor which he do not remember exactly. The wife
of accused who was also present in the court and witness has correctly
pointed out was present at his flat and she had opened the door. They had
reached there in the vehicle of IO. Accused was brought to their office
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.24 to 129
from lock up and from there they had directly proceeded to his residence.
Accused was lodged in Hauz Khas Police lock up. They left their office at
around 9.30 am to proceed to the house of accused. No one met them on
their way to house of accused who could have been asked to join the
proceedings. IO had not called anyone from RWA. The IO had requested
2-3 neighbours but they had also refused to join the proceedings. Accused
was residing in a Society Flat. It was correct that entires with respect to
visitors are maintained with the society. The signatures of wife of the
accused were obtained on the seizure memo. Again said, he did not
remember exactly as to whether her signatures were obtained or not. They
left the house of accused at around 12.00 noon -1.00 pm. He did not
remember the name of Cyber Cafe in Saket Market where accused was
taken for operating his e-mail account. He had no knowledge as to whether
any entry in mandatory in the register kept at the Cyber Cafe by the person
who wishes to use the internet facility. The Cyber Cafe was situated at the
backside of Anupam PVR. The distance between Cinema Hall and Cyber
Cafe was about 100 yards. He did not remember the duration for which
internet connection was used by the accused. IO had obtained the receipt of
the same. He did not know whose identity was used for operating the
internet. IO might have taken the counter signs of the owner of Cyber Cafe
on the documents seized from there. He did not know if IO had recorded
any statement at the Cyber Cafe or not. He did not remember the
registration number of the IO’s personal vehicle. Accused was taken to
Safdarjung hospital for his medical examination after taking him out from
the lock up as well as putting him back at around 7.00 pm. Again said,
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.25 to 129
accused are medically examined only once in 24 hours and that too mostly
in the evening.
Accused Devender Pandey adopted the cross examination conducted on
behalf of accused Vivek Bhat.
PW-12 Inspector Sushil Kumar deposed that in the month of April, 2008
the enquiry of the complaint of this case was marked to him. He verified
the bank transactions etc. and having found commission of cognizable
offence. He put his endorsement on the complaint vide Ex.PW12/A and got
this case registered at PS EOW on 14.08.08. On 20.08.08, he was
transferred from this case and the investigation was marked to another IO.
During cross examination on behalf of accused Vivek Bhat PW-12 deposed
that he conducted enquiry for about 3 ½ months before forwarding the
complaint for registration of FIR. During the course of enquiry he had not
recorded statement of any public person or bank official or even otherwise,
however he had collected certain documents from the banks to verify the
allegations. It was correct that he had not given the details of all the
documents collected by him during the course of enquiry. He voluntarily
deposed that he had mentioned the brief outcome of the enquiry in the
rukka. He handed over all the documents which were collected by him
during the course of enquiry to the investigating officer. He had not
collected any document from Australian company Interworld P. Ltd. to
show that the signatures of CEO and Director of the said company was
forged. He had verified from HSBC, Barakhamba Road who informed in
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.26 to 129
writing that the swift advice was a bogus document. The said letter of
HSBC was also handed over to the IO. He could not say as to why the IO
has not placed the same.
Despite opportunity accused Devender Kumar Pandey did not cross
examine PW-12.
PW-13 HC Surender Singh deposed that on 10.10.08 he was posted as a
HC at AF&C EOW. On that day SI Chotu Singh received DD No. 30. On
this he alongwith SI Chotu Singh went to IGI Airport where immigration
staff of IGI Airport handed over accused Vivek Bhat, who was present in
the court to SI Chotu Singh. Thereafter they had taken accused Vivek Bhat
to the office of EOW. IO interrogated accused Vivek Bhat. Accused Vivek
Bhat was arrested and his personal search was conducted vide Ex.PW13/A
and Ex. PW13/B. The belongings of the accused except one laptop make
HP and one mobile phone make Motorola was handed over to his wife
Pooja, again said Poonam. The above said laptop and mobile phone was
seized vide seizure memo Ex.PW 13/C. The identity of the above said
mobile phone and laptop was not in dispute. Accused was produced before
senior officials and later on his remand was sought by the Court. On
12.10.08 IO obtained specimen handwriting and signatures of accused
Vivek Bhat and disclosure statement of accused was recorded which was
Ex.PW13/D. On 02.12.08 he collected three sealed pulandas from
malkhana EOW sealed with the seal of CHD and got it deposited in FSL,
Chandigarh vide RC No. 5/21/2008, PS EOW on 03.12.08. On 04.12.08 he
handed over the photocopy of receipt of deposit of exhibits to the IO and
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.27 to 129
original of the same to the MHC(M), PS EOW.
During cross examination on behalf of accused Vivek Bhat PW-13 deposed
that the information from IGI Airport was received at PS EOW Cell on
10.10.08 at 11:40 pm. He did not know the name of the Immigration
Officer who had given message to the police station. He did not remember
the exact time when he alongwith IO SI Chotu Singh proceeded for IGI
Airport. He voluntarily deposed that they proceeded immediately after
receipt of the information. SI Chotu Singh had made departure entry in the
DD register before proceeding to IGI Airport. No other person other then
him and IO had proceeded to IGI Airport. He alongwith IO and accused
Vivek Bhat came back to the police station at 2:00/3:00 am on 11.10.08. It
had taken about one hour at IGI Airport in the entire writing work. He did
not know whether they had gone to Immigration room of the arrival section
or departure section. No document of handing over of accused and his
belongings by the Immigration Officer to the IO was prepared. Accused
was not arrested at IGI Airport. He was simply detained by us and brought
to police station. He did not remember if IO had made any entry in respect
of taking the accused alongwith him from the immigration section. It was
correct that he had not mentioned the model number and description of
mobile and laptop in his statement. Laptop and mobile were seized at EOW
Cell. He did not know if IO had made any entry regarding taking over of
laptop, mobile and other belongings from the Immigration Officer in the
record of the Immigration office. It was correct that no
statement/interrogation report/ disclosure of accused Vivek Bhat was
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.28 to 129
written down by the IO before being produced in the court for the first time
on 11.10.08. On 11.10.08 accused was remanded to police custody till
16.10.08. During police remand accused was not taken to the court of Ld.
Magistrate. He did not remember if IO had sought permission from the Ld.
Magistrate before taking specimen writing and signatures of accused. It
was correct that no public person was joined before taking the alleged
specimen handwriting and signatures of the accused. So far he remained
associated with the investigation of the present case, nobody else was
joined in the proceedings. He did not remember if he had made entry
regarding receipt of exhibits from MHCM in the malkhana register on
02.12.08. It was correct that copy of the road certificate or form CFSL are
not on record.
Despite granting opportunity accused Devender Pandey did not cross
examine PW13.
PW-14 ASI Rajeshwar Singh Rana deposed that letter dated 09.02.2009
bearing no. IP-06/180/2008/738 alongwith annexures was issued by Sh.
Rakesh Aggarwal, Assistant Director, Interpol, New Delhi. It was
forwarded to DCP (EOW), Crime Branch. The said letter was Ex PW14/A
(page no.1) bearing signatures of Sh. Rakesh Aggarwal. He had brought
original file no. IP-06/180/2008 from his office which was containing
office copy of the said letter and all the annexures which were Ex.PW14/A
and Ex.PW14/B (Colly)
During cross examination on behalf of accused Vivek Bhat PW14 deposed
that Mr. Rakesh Aggarwal, the then Assistant Director is present posted in
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.29 to 129
Himachal Pradesh. He belongs to Himachal Pradesh cadre and after 2009,
he left Delhi and joined back Himachal Cadre in Himachal Pradesh. He
was working in the Interpol Section since 1998. He had worked with Mr.
Rakesh Aggarwal. He had not handled file of the present case as mentioned
above. He had been assigned by the office to bring the record before the
court. He identify the signatures of Mr. Rakesh Aggarwal. He had no
personal knowledge of this case. He could not say what follow up was
taken on the letter Ex.PW14/A by their office and when the annexure
Ex.PW14/B were received in their office.
During cross examination on behalf of accused Devender Kumar Pandey
PW14 deposed that it was correct that the letter Ex.PW14/A was not signed
in his presence by Sh. Rakesh Aggarwal. It was also correct that the said
letter Ex.PW14/A and Ex.PW14/B (Colly) were not dispatched in his
presence nor he had any knowledge regarding the same. It was correct that
signatures on Ex.PW14/A was only an initial and not the full name. He was
told for the first time about the said signatures only when the summons
were received in his office. The Dealing hand has handed over the file and
asked him to appear before the court. He did not have personal knowledge
of the case.
PW-15 Sh. Vinay R.C. Iyyer (complainant) deposed that in the year 2007,
he was CEO of “A&A Capital” having its office at Eros Tower, Nehru
Place, New Delhi. The A&A Capital was started in the year 2006 by him to
facilitate and construct real estate projects in Mumbai and other cities. In
the year 2007, he was introduced to accused Vivek Bhat by Mr. Ravi Saini,
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.30 to 129
Mr. Vinay Kapoor and Rajesh Pundhir telling him that accused Vivek Bhat
was claiming himself to be representative of an Australian Company
namely Interworld PTY. Ltd. for providing finances for business projects.
During his talks with accused Vivek Bhat, he confirmed that he was
representing the above mentioned Australian Company and accused told to
him that he will arrange finance of Rs. 32 Crores against an International
Bank guarantee from his above mentioned Australian Company. At that
time, he was in need of finance for funding the earnest money for the
projects to be taken up by A&A Capital. He had disclosed to the accused
Vivek Bhat that he was in need of finance upon which he offered that he
will provide the financing of above mentioned Rs. 32 Crores (7.8 Million
USD) from his Australian Company. Accused also said that he will himself
arrange the International Bank guarantee to be used for the purpose of
arranging finance as above mentioned. For this purpose, accused Vivek
Bhat asked him to give him Rs. 23 Lacs in two installments, the first being
a cheque of Rs.1 Lac and another cheque of Rs. 22 Lacs after his getting
the finance project being approved by his Australian Company. In
pursuance of the assurances of the accused, he entered into a written
agreement with him on 17.10.2007. For this purpose, he drafted a typed
agreement dated 17.10.2007 in which accused Vivek Bhat did handwritten
changes. The above said agreement was Ex.PW15/A. The handwriting in
blue ink on Ex.PW15/A has been made by accused Vivek Bhat in his
presence. After that the amendments were included and a fair agreement
dated 17.10.2007 was executed between him and accused Vivek Bhat
witnessed by Vinay Kapoor, Rajesh Pundhir and Ravi Saini. The above
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.31 to 129
said agreement was Ex.PW15/B. After execution of agreement Ex.PW15/B
its original was taken back by accused Vivek Bhat to get it stamped by his
above mentioned Australian Company and thereafter, despite numerous
requests from his side, he never returned the original agreement to him. He
had retained its copy with him which he furnished to IO. On the same day,
i.e. 17.10.2007 after signing the agreement Ex. PW15/B, he handed over a
cheque of Rs.1 Lac to accused Vivek Bhat which was encashed by accused.
After around a week or 10 days, accused Vivek Bhat confirmed to him that
finance of 7.8 Million USD has been approved by his Australian Company
as mentioned above in favour of his firm A&A Capital and asked him to
hand him over the second cheque of Rs. 22 Lacs. In pursuance of the
representation of accused, he handed him over another cheque of Rs. 22
Lacs dated 30.10.2007 vide a receipt duly issued to him by accused Vivek
Bhat. The above said receipt of cheque of Rs. 22 Lacs issued by accused
Vivek Bhat is Ex. PW15/C bearing signature of accused Vivek Bhat. The
receipt Ex.PW15/C also embodies the copy of cheque of Rs. 22 Lcas issued
by him. The above said cheque of Rs. 22 Lacs was also encashed by
accused through his Company Vicky Overseas. The first cheque of Rs. 1
Lac was issued by him in the name of accused. While the second cheque of
Rs. 22 Lacs was issued in the name of his company Vicky Overseas as per
insistence of accused Vivek Bhat. Despite paying Rs. 23 Lacs, his
proprietorship concern A&A Capital does not receive any funding as
claimed by accused Vivek Bhat. When he persuaded accused Vivek Bhat
he sent him several e-mail attachments of letters purportedly issued by his
Australian Company claiming that the fund of Rs. 7.8 Million USD was on
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.32 to 129
the way and was going to be credited in the account of A&A Capital.
Accused Vivek Bhat also provided him a swift advice that the above
mentioned fund was already transferred from Australian Company and was
to be credited in the account of A&A Capital. He presented the above
mentioned swift advice to Mr. Saurabh Dhingra, Manager, HSBC Bank,
Barakhamba Branch who verified the above mentioned swift advice as
bogus and forged advice. When he confronted the accused Vivek Bhat that
the swift advice arranged by him was declared as bogus by HSBC Bank
officials, he showed his repentance and pleaded to be given one ore chance
to arrange the said fund of Rs.7.8 Million USD.
Accused Vivek Bhat told him that for the interim period till which he was
not able to arrange the above mentioned funds, he will provide an interim
funding of Rs. 22 Crores, for which an agreement dated 24.12.2007
witnessed by Sh. Ravi Saini and Vinay Kapoor was executed between him
and accused Vivek Bhat which was Ex. PW15/D. Thereafter, in execution
of the agreement Ex.PW15/D, accused Vivek Bhat issued him a cheque of
Rs. 22 Crores dated 29.12.2007 which was Ex.PW15/E bearing signature
of accused Vivek Bhat and signature of accused Dewender Pandey.
Accused Vivek Bhat also took a guarantee cheque of Rs. 22 Crores from
him to be encashed after he would receive the funding from his Australian
Company. The above mentioned guarantee cheque was neither returned to
him nor presented. When he presented cheque Ex.PW15/E in the account
of his proprietorship concern A&A Capital, it was dishonoured by Dena
Bank. When he confronted accused Vivek Bhat as to the fact of the
dishonour of his cheque, he told him that he had requisite funds (Rs 22
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.33 to 129
Crores) in his saving bank account in ICICI Bank, Green Park Branch,
New Delhi which he could not transfer to Dena Bank. Thereafter, on his
insistence, accused Vivek Bhat issued him three fresh cheques of ICICI
Bank, Green Park Branch, amounting to Rs. 21.60 Crores. The copies of
above said three cheques are marked as Mark 15/X. When he presented the
first cheque dated 30.01.2008, it was dishonoured and therefore he did not
present the remaining two cheques being a futile exercise. When he
confronted accused Vivek Bhat about the above said facts, he once again
pleaded for one last opportunity to be given to him for arranging the
funding equivalent to USD 7.8 Million USD which he told, he would do by
getting a bank guarantee issued and discounted in favour of A&A Capital
from his own sources. For this purpose accused Vivek Bhat asked him for
one week time which he also gave him as he had already parted with Rs. 23
Lacs. But, during the said week accused Vivek Bhat absconded from Delhi
NCR with his family. Accused Vivek Bhat also switched off his mobile
phones and left all his known premises. He tried best to contact or search
him through the people who had introduced him to him but no one was
knowing about his whereabouts. Since all his efforts to contact accused
proved to be futile as he was absconding, he filed a complaint in EOW,
Delhi Police. His detailed complaint was Ex.PW15/F. With his complaint
he annexed the e-mail correspondences received by him and forwarded by
accused Vivek Bhat as annexure 1 which was Ex. PW15/G (running into 06
pages). With his complaint, he had also annexed copy of his bank statement
which was marked as Mark 15/X1. He also annexed with his complaint e-
mail correspondence sent by accused Vivek Bhat and downloaded by him
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.34 to 129
on his computer which was Ex. PW15/G1. His letter dated 27.11.2007 to
Mr. Saurabh Dhingra, Manager, HSBC was already Ex. PW4/A and
annexed by him with his complaint as annexure 6-B. The copy of his
guarantee cheque issued to accused was marked as Mark 15/X2. The report
of the Bank of dishonour of cheque of Rs. 22 Crores given to him by
accused and annexed with his complaint as annexure 10 was Ex. PW15/H.
The copy of e-mail sent by accused Vivek Bhat alongwith attachment
forwarding the sanction letter of his Australian Company to him annexed as
annexure 12 with his complaint was Ex. PW15/I. The copy of e-mail sent
by accused Vivek Bhat alongwith attachment forwarding the apology for
delay letter of his Australian Company to him annexed as annexure 13 with
his complaint was Ex.PW15/J. During investigation, he forwarded to IO e-
mail communications between accused Vivek Bhat and he vide his
forwarding letter Ex.PW15/J. The e-mail conversation forwarded with
above said letter are Ex.PW15/J1 (colly, 31 pages) from page no. 43 to 73
of judicial record. During investigation, he forwarded IO his letter dated
16.09.2008 with enclosure 1, 2 and 3 giving contact detail of Bank
guarantee provider and other details of the case. The above said letter was
Ex. PW15/K. The enclosure attached with the above said letters as
enclosure 1 is Ex. PW15/K1 (running into 02 pages), the enclosure 2 was
Ex. PW15/K2 (running into 05 pages) and enclosure 3 was Ex. PW15/K3
(running into 02 pages). During investigation, he forwarded to IO his letter
dated 10.10.2008 regarding his reply about original agreements signed with
accused Vivek Bhat on 17.10.2007 and 04.12.2007. The said letter was Ex.
PW15/L. He also forwarded letter dated 10.10.2008 to IO regarding
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.35 to 129
investigation of guarantee cheque of Rs. 22 Crores issued by A&A Capital.
The said letter was Ex. PW15/L1. His letter dated 10.10.2008 with which
was handed over copy of e-mail sent by Mr. Ravi Saini to accused Vivek
Bhat and himself on 27.12.2007 and handed over to IO was Ex. PW15/L2.
The two annexures annexed with Ex. PW15/L2 was Ex. PW15/L2A and
Ex. PW15/L2B. His letter dated 19.11.2008 enclosing and forwarding to
the IO filled up funding application provided to him by Vivek Bhat was
Ex.PW15/M (running into 03 pages). His letter dated 25.11.2008 forwarded
to IO was Ex. PW15/N (running into 03 pages including annexure /
enclosure). His letter dated 25.11.2008 handing over bank endorsement
receipt from ICICI Bank to IO was Ex. PW15/N1 (running into two pages
including annexure). During investigation, he handed over original
documents mentioned in his letter dated 03.09.2008 to IO. His above said
letter dated 03.09.2008 was Ex.PW15/O. The documents forwarded with
letter Ex. PW15/O were already Ex.PW15/A, Ex. PW15/C, Ex. PW15/O1,
Ex. PW15/E, Ex. PW15/H and Ex. PW15/O2 respectively as shown in
Ex.PW15/O. The envelop in which he had received documents
Ex.PW15/O2 from Interworld PTY Ltd., Australia has also been handed
over to IO by him and placed on record which was Ex.PW15/O3. The
agreement dated 24.12.2007 entered into between Creative Brains
Financial Consultancy (business concern of accused Vivek Bhat) and A&A
Capital represented by him was notarized by one public notary Mr. Komal
Singh who was also examined by the police. In the present case, accused
Vivek Bhat was also arrested in the office of EOW / Crime Branch, Qutub
Institutional Area vide arrest memo already Ex.PW13/A. There from the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.36 to 129
possession of accused Vivek Bhat one HP Laptop with charger in a
polybag and one Motorola mobile phone was also seized vide seizure
memo already Ex. PW13/C. He heard from the police that accused Vivek
Bhat was apprehended by the police at IGI Airport, New Delhi while
attempting to flee. The e-mail correspondences handed over by him to IO
which was already Ex.PW15/G, already Ex. PW15/G1, Ex. PW15/I,
already Ex.PW15/J, already Ex.PW15/J1 and all other e-mail
correspondences which he forwarded to the IO as annexures with his above
mentioned letter already exhibited by him were received by him on his
personal laptop and print outs taken by him personally from his Laptop. He
handed over IO all the e-mail correspondences as it was, as he received and
downloaded / printed it from his personal laptop. During the period, he
received above said e-mails and downloaded / printed the same. His laptop
and printer were properly functioning. Initially, he was operating his bank
account of A&A Capital in Kotak Mahindra Bank, Gurgaon but later on he
also opened an account of A&A Capital in HSBC Bank, Barakhamba
Road, New Delhi on asking and persuasion of accused Vivek Bhat as he
claimed that funds would be swifted from his Australian Company into
HSBC Bank only. Accused Vivek Bhat was present in the Court and
correctly identified by the witness. He heard about accused Dewendra
Pandey first time when he received a cheque of Rs. 22 Crores Ex. PW15/E
from accused Vivek Bhat as interim funding. On the above said cheque
signature of Dewendra Pandey was also appearing as co-signatory. When
he asked the accused Vivek Bhat about the status of Dewendra Pandey,
Vivek Bhat claimed that accused Dewendra was his partner in various
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.37 to 129
business ventures. He saw accused Dewendra Pandey for the first time
when he was apprehended by officials of EOW in the office of EOW /
Crime Branch. Accused Dewendra was also present in the Court and
correctly identified by the witness.
During cross examination on behalf of accused Dewendra Pandey PW-15
deposed that before meeting for the first time in the office of EOW / Crime
Branch post registration of present FIR, he never personally dealt with
accused Dewendra Pandey for any purpose whatsoever. It was correct that
Dewendra Pandey personally never gave any assurance or promised to do
anything for him, whatsoever. It was also correct that Dewendra Pandey
never even talked to him at any point of time for any purpose. It was also
correct that the cheque Ex.PW15/E was not signed by accused Dewendra
Pandey in his presence. It was also correct that he had never seen accused
Dewendra Pandey signing any document or cheque. It was also correct that
he never entered into any agreement be it oral or written with Dewendra
Pandey for any purpose. The aforesaid information that he did not deal with
accused Dewendra Pandey at any point of time for any purpose was also
disclosed by him to the police during investigation. He could not comment,
if accused Dewendra Pandey was also a victim in present case. He did not
sign any document in the presence of police officials pertaining to arrest of
Dewendra Pandey.
During cross examination on behalf of accused Vivek Bhat PW-15 deposed
and witness was asked questions as follows:-
Qns. Is it correct that you have your complaint exhibited as Ex.PW15/F as
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.38 to 129
authorized signatory of M/s. A&A Capital?
Ans. I have filed my complaint as a proprietor of M/s. A&A Capital.
Qns. Is it correct that in Ex.PW15/F it is not mentioned that you are
proprietor of M/s. A&A Capital?
Ans. It is mentioned that I have signed the complaint as the CEO of M/s.
A&A Capital and I am authorized signatory being the proprietor of M/s.
A&A Capital.
Qns. Is it correct that you have not been authorized for and on behalf of
M/s. A&A Capital nor any authorization has been filed along with the
complaint or any stage during the investigation by you?
Ans. This question is erroneous since I do not need authorization from any
individual or organization as M/s. A&A Capital is a proprietory concern
and I am the sole proprietor.
During cross-examination witness was shown complaint exhibited as
Ex.PW15/F and asked that it does not contain any averment that M/s. A&A
Capital is the proprietory concern. Witness replied that M/s. A&A Capital
is the proprietory concern is not mentioned in the complaint as the
complaint is against accused Vivek Bhat for defrauding me and he was
well aware that M/s. A&A Capital is a proprietory concern and he agreed
to provide funding for his proprietory concern.
During cross examination witness was asked questions as follows:-
Qns. Is M/s. A&A Capital was a single entity on that time or there were
several company by the name of M/s. A&A Capital under your
supervision?
Ans. Yes M/s. A&A Capital was a single entity at that time with one bank
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.39 to 129
account. No other company by the name of M/s. A&A Capital is under my
supervision. Vol. Subsequently second bank account in the name of M/s.
A&A Capital my proprietory concern was opened at the behest of Vivek
Bhat with HSBC Bank, Barakhamba Road, New Delhi as claimed that the
funding will be swifted from Australia into the HSBC Account.
Qns. Is there any documentary in the form of letter or otherwise to show
that the account with HSBC was got opened on the asking of accused
Vivek Bhat for the reason assigned by you above?
Ans. No. The request was made telephonically by accused Vivek Bhat.
Qns. When M/s. A&A Capital was formed?
Ans. In the year 2007. I do not recollect the month or the date today.
Qns. Whether M/s. A&A Capital is a proprietory concern from its
inception?
Ans. Yes.
Qns. Whether M/s. A&A Capital was registered?
Ans. It was the proprietory concern as on that time no registration is
required as per the law so it was not registered.
Qns. From where this proprietory concern was functioning (address)
during the year 2007-2008?
Ans. As mentioned in my complaint it was functioning from Eros
Corporate Tower, Nehru Place, New Delhi.
Qns. What was the nature of business of M/s. A&A Capital?
Ans. Real Estate Development.
Qns. Is it correct that the nature of business is required to be mentioned in
the account opening form with the bank in respect of anyFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.40 to 129
proprietorship/partnership/company?
Ans. Yes.
Witness deposed that he must have mentioned the nature of business in the
account opening form with the bank. During cross-examination witness
was shown with the account opening form exhibited as Ex.PW8/A (colly.)
where the nature of business mentioned as Exporter Commodity from point
-A to Al. Witness voluntarily deposed that it was mentioned so because a
proprietory concern can have diversified businesses. He had opened
account of M/s. A&A Capital with Kotak Mahindra Bank many months
prior to the opening of account at HSBC Bank. Account of M/s. A&A
Capital with Kotak Mahindra was opened in January 2007 as per the record
Ex.PW5/B. It was incorrect that M/s. A&A Capital was not doing any
business prior to 21.11.2007 that is why he had mentioned M/s. A&A
Capital as new company in Ex.PW8/A (colly.) at point-A. He voluntarily
deposed that M/s. A&A Capital was set up in 2007 itself that is why I
mentioned new company. As per his knowledge all the details were given
in account opening form Ex.PW8/A (colly.) and Ex.PW5/B(colly.) are
correct.
During cross examination witness was asked following question:-
Qns. For which purpose you had sought the loan and on what pretext from
Mr. Hagg?
Ans. This question is factually is incorrect as I did not know Mr. Hagg at
that time. Vol. Accused Vivek Bhat approached me and represented
himself to be authorized representative of Interworld Pty. Ltd. an
Australian Finance Company and offered to provide funding for my projectFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.41 to 129
for Real Estate Development.
He had mentioned in his complaint that accused Vivek Bhat approached
him and represented himself to be authorized representative of Interworld
Pty. Ltd. an Australian Finance Company. Accused Vivek Bhat has shown
him a letter to this effect. He voluntarily deposed that the said letter was
later on found as a forged document by the EOW and confirmed by
Interworld Pty. Ltd. He had not given the said letter to the police official as
the same was in the possession of accused Vivek Bhat. It was incorrect that
Mr. Hagg was known to him before 2007. He came in contact with accused
Vivek Bhat in September/October 2007. He was introduced by his another
associate namely Ravi Saini. It was correct that in his examination in chief
that accused Vivek Bhat was introduced by Ravi Saini, Vinay Kapoor and
Rajesh Pundir. He voluntarily deposed that Vinay Kapoor and Rajesh
Pundir claimed that their associate Ravi Saini was the one who was
acquainted with accused Vivek Bhat. He had mentioned the name of Vinay
Kapoor and Rajesh Pundir as the persons who introduced him to accused
Vivek Bhat in his complaint. It was correct that the application form
exhibited as Ex.PW15/D1 bears his signatures at point-A and the same was
to be sent for loan/funding purpose. He voluntarily deposed that it was
taken and kept in the possession of Vivek Bhat himself. It was correct that
vide Ex.PW15/D1 M/s. A&A Capital was shown to have estimated total
gross assets value worldwide of USD 100 million. Ms. K.J. Sukumari who
was attesting witness of Ex. PW15/D1 was his office assistant at that time.
He was not aware if the police official enquired with Ms. K.J. Sukumari.
He new Ravi Saini 2-3 months prior to introduction of accused Vivek Bhat.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.42 to 129
Vinay Kapoor introduced Ravi Saini to him. He had no business
transaction with Ravi Saini and Vinay Kapoor, they were middlemen to
secure funding of his project. Rajesh Pundir introduced Vinay Kapoor to
him. Rajesh Pundir came in contact with him in the year 2007, the exact
day and month he did not recollect/remember. He had no business
transaction with Rajesh Pundir also as he was also a middleman to secure
loan/funding for his project. He had never met with the person in the name
of Ashish Sahwney. He saw the person in the name of Devender Pandey in
EOW. It was correct that Ex.PW15/D1 does not contain that the said asset
was worldwide. During cross-examination witness was shown the
document comprising of 8 pages which was now Ex.PW15/D2 (colly.) and
asked that he had shown the total project cost, own contribution and fund
required whether it was true. To which witness reply yes it was so
mentioned.
During cross examination witness ask the following question:-
Qns. I put it to you that you have no contribution available in your account
and the document Ex.PW15/D2 have been fabricated by you to
Ans. It is incorrect.
During cross-examination witness was shown Ex.PW5/C and asked
whether the said document related with the account have only two entries
of high denomination which was deposited and dishonoured and last
balance as on 31.10.2008 was -2262.60. It was correct that as per the
record. He voluntarily deposed that both the cheques which was
dishonoured belonged to accused Vivek Bhat. He voluntarily deposed that
the cheque of Rs. Twenty two crores was issued M/s. A&A Capital as aFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.43 to 129
guarantee cheque towards repayment of advances of Rs. Twenty two crores
issued by accused Vivek Bhat through his firm Vicky Overseas after the
funds from Australia had been credit in the account of M/s. A&A Capital.
This cheque issued by Vicky Overseas for Rs. Twenty Two crores
favouring M/s. A&A Capital was returned dishonoured due to insufficient
fund.
During cross-examination witness was asked following question:-
Qns. Is it correct that all the cheques were obtained by you from accused
Vivek Bhat was not against any existing liability/outstanding?
Ans. It is incorrect as there was existing liability/outstanding liability in
favour of M/s. A&A Capital from Vivek Bhat vide agreement dated
October 17, 2007 towards funds amounting to Rs. Thirty two crores.
Qns. I put it to you that in the agreement dated 17.10.2007 (Ex.PW15/B) it
is nowhere mentioned that there is existing liability/outstanding in favour
of M/s. A&A Capital or against accused Vivek Bhat amounting to Rs.
Twenty two crores?
Ans. It is not so mentioned. Vol. There was liability on the part of accused
Vivek Bhat to provide funds amounting to Rs. Thirty two crores and
against which he took Rs. Twenty two lacs as advance processing fees.
During cross examination witness was shown the copy of document now
Mark-PW15/A and asked whether it was executed by you. To which he
replied that Yes he had signed the same as a party on behalf of M/s. A&A
Capital. The agreement was executed by accused Vivek Bhat as a second
party. Further he was not aware whether he was acting on behalf of
Creative Brains. He had gone through the document Mark-PW15/A beforeFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.44 to 129
signing the same. He did not remember whether any cheque was issued by
or on behalf of M/s. Creative Brains or not.
During cross examination witness was shown the copy of cheque Mark-
PW15/B. Mark-PW15/B was issued by Vivek Bhat and accused Devender
Pandey on behalf of Vicky Overseas. It was correct that no cheque was
issued by or on behalf of M/s. Creative Brains. Witness voluntarily deposed
that the accused represented at that time M/s. Creative Brains does not have
any bank account, therefore, issued the cheque Mark-PW15/B from their
other firm namely Vicky Overseas. As per the agreement Mark-PW15/A
Devender Kumar Pandey was not a signatory of the document. It was
correct that agreement Mark-PW15/A was in respect of a friendly loan. He
voluntarily deposed that however, it was until the funds from Australia
materialized which were being arranged by accused Vivek Bhat. Prior to
existence of M/s A&A, he was working as Senior Vice President
(Consulting) of a Global Consulting Major in North America and earned
around US $ 1.5 Lac p.a. (minimum base salary) and other allowances. The
assets of M/s A&A Capital primarily comprised of collaterals held by him
and his co-promoters overseas and in India, it were in the form of bank
deposits. It was correct that his residence at DLF Heritage, Gurgaon and
office at EROS Corporate Tower, Nehru Place were on lease / rent. In the
year 2006-07, he was not assessed to Income Tax in India as he was a
returned NRI. In the year 2007-08, he did not file any Income Tax return as
he was not assessed at that time also being returned NRI. Vide Ex. PW15/O
i.e. letter dated 03.09.2008, he had handed over original testimony dated
23.06.2008 addressed to Additional Commissioner of Police, EOW, CrimeFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.45 to 129
Branch, New Delhi. Ex.PW15/O-2 was the same letter dated 23.06.2008
which was sent by Inter World PTY Ltd. to him at his address mentioned in
envelop Ex PW15/O-3. It was correct that in his complaint Ex.PW15/A he
had not mentioned about any draft agreement dated 17.10.2007 or any
correction being made by accused Vivek Bhat in the said draft agreement.
He voluntarily deposed that he had mentioned about the final agreement
signed between Vivek Bhat and himself. It was correct that in agreement
Ex.PW15/B Vicky Overseas was not a party. He voluntarily deposed that
the agreement was signed between himself and accused Vivek Bhat and he
insisted that the cheque amount for Rs. 22 Lacs be paid to his partnership
firm Vicky Overseas. Prior to handing over and taking over cheque of Rs.
22 Lacs no document other than Ex.PW15/B was executed. It was correct
that Ex.PW15/B does not mention that any amount is or will be payable to
Vicky Overseas including any payment of Rs. 22 Lacs. It was correct that
in Ex.PW15/B it was not mentioned as to who will keep the original
agreement or that the original agreement will be kept by accused Vivek
Bhat. It was correct that in Ex.PW4/A i.e. letter dated 27.11.2007, I have
not mentioned anything about swift code, swift message or swift advice.
The documents Ex. PW15/G1, Ex. PW15/I, Ex. PW15/J and Ex. PW15/J1
were handed over by him to the police. He could not exactly tell, whether
he had taken out the print out of above said exhibits from his office
computer or from the computer at his residence or from his laptop. But he
had taken out the same. He had not mentioned in his complaint Ex.PW15/F
that he had taken out print out of above mentioned exhibits on his own. He
did not remember whether he had mentioned the above mentioned facts in
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.46 to 129
his statement given to the police.
PW-16 Inspt. Abhinendra Singh (IO) deposed that on 29.08.2008, he was
posted in AF& C Section EOW Qutub Institutional Area, New Delhi. On
that day he was handed over further investigation of present case and he
received case file of the present case including complaint already
Ex.PW15/F alongwith its 13 enclosures also received letter of complainant
dated May 9, 2008 already Ex.PW15/J forwarding prints out of the E-mail
communications already Ex.PW15/J-1 (colly.). During investigation he met
complainant Mr. R.C. Iyar who handed over him letter dated 16.09.2008
already Ex.PW15/K alongwith enclosure already Ex.PW15/K-1,
Ex.PW15/K-1 and Ex.PW15/K-3. During investigation on 10.10.2008
complainant handed over him letter already Ex.PW15/L, Ex.PW15/L-1 and
Ex.PW15/L-2 alongwith enclosure Ex.PW15/L-2A and Ex.PW15/L-2B.
During investigation on 19.11.2008 complainant handed over him letter
already Ex.PW15/M (three pages). During investigation on 25.11.2008
complainant handed over him letter already Ex. PW15/N (three pages) and
letter Ex.PW15/N-1 (two pages). During investigation on 03.09.2008
complainant handed over him letter already Ex.PW15/O alongwith original
documents mentioned in the same which were Ex.PW15/A, Ex.PW15/C,
Ex.PW15/O-1, Ex.PW15/E, Ex.PW15/H, Ex.PW15/O-2, Ex.PW15/O-3
respectively. During investigation on 11.10.2008 he arrested accused Vivek
Bhat as he was detained IGI Airport, Terminal 3 as LOC was opened
against him vide arrest memo Ex.PW13/A, after bringing him in their
office. The detection and handing over memo of accused by Airport
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.47 to 129
authority/FRRO authority to him was already Ex.PW3/A. Complainant was
also called at our office. The personal search memo of accused Vivek Bhat
was Ex.PW13/B. From the possession of accused one laptop make HP and
one Motorola mobile phone were seized vide seizure memo Ex.PW13/C.
During investigation he sent the said laptop for examination in FSL but
nothing incriminating could be found. Thereafter, he interrogated and
recorded disclosure statement of accused already Ex.PW13/D. Thereafter,
five days police remand of accused Vivek Bhat was obtained. During PC
remand we searched for co-accused Devender Pandey but could not find
him. During PC remand of accused Vivek Bhat on 14.10.2008, accused
opened his e-mail ID at one Cyber Cafe at J block, saket Delhi and printed
out 28 pages of e-mails regarding present case which were seized vide
seizure memo Ex.PW11/B. The seized print outs (28 pages) are
Ex.PW16/X-1 (colly.). On said day accused Vivek Bhat also led us to his
house at H-254, Rama Krishna Vihar, IP Exten. and from his house
produced and got seized original agreement dated 24.12.2007. (already
Ex.PW15/D and also mentioned as already Ex.PW10/B on the copy of said
document), photocopy of agreement dated 17.10.2008 as Mark PW16/A-1
(two pages) and copy of one cheque bearing no.000030 dated 23.06.2008
Ex.PW10/A, which were seized vide seizure memo already Ex.PW11/A.
During investigation, he received letter of Kotek Mahindra Bank already
Ex.PW5/A alongwith enclosures Ex.PW5/B, mark 5-A, Mark 5-B, Mark 5-
C, statement of account Ex.PW5/C and copy of two cheques bearing no.
000019 dated 30.10.2007 in favour of Vicky Overseas Mark 16/A-2 (two
pages) front and back and cheque no. 000014 dated 17.10.2007 in the name
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.48 to 129
of Sh. Vivek Bhat of Rs. 1 lacs which was Mark 16/A-3 (two pages).
During investigation he also received letter Ex.PW6/A from ICICI Bank,
Green Park Exten. New Delhi branch alongwith enclosure Mark A, Mark
B. During investigation he received letter dated 25.11.2008 of Dena Bank
Okhla New Delhi Branch which is Ex.PW16/A alongwith three original
cheques which are three original cheques Ex.PW16/A-1, Ex.PW16-A-2 and
Ex.PW16/A-3. During investigation he had also received letter dated
06.10.2008 of Dena Bank, Okhla New Delhi Ex.PW16/B with certified coy
of the cheque Ex.PW9/C. During investigation he also received letter dated
01.12.2008 of Dena Bank, Okhla, New Delhi branch Ex.PW16/C
alongwith account opening form of Vicky overseas Ex.PW16/D (running
into 16 pages back to back) and certified copy of account opening form of
V.N. Creations Ex.PW9/B. During investigation he also received letter
from Federal Bank Ltd. with statement of account of M/s CM Fabs and its
certified copy of account opening form and other enclosures. The said letter
is Ex.PW16/E, the statement of account is Mark 16/A-4 and certified copy
of account opening form of M/s CM Fabs was Ex.PW16/F (colly. Five
pages) and the original account opening form of the same was
Ex.PW16/F-1 (colly. Five pages back to back). Thereafter, he prepared
charge-sheet against accused Vivek Bhat as other co-accused were still at
large and filed the same before the court for trial. Accused Vivek Bhat was
correctly identified by the witness. After filing of first charge-sheet he
continued investigation qua other accused persons. During investigation,
hee wrote letter and received letter of Dena Bank, OIA Branch, Delhi dated
15.12.2009 same Ex.PW16/G with enclosures i.e. certified copy of account
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.49 to 129
opening form and account statement of M/s V.N. Creations same
Ex.PW16/G-1 and Ex.PW16/G-2. During investigation, he also received
letter of Federal Bank dated 18.12.2009 Ex.PW16/H alongwith original
account opening form M/s C.M. Fabs alongwith Power of Attorney
document and authority for third party to operate the account which are
Ex.PW16/F-1 (colly. Five pages) and account statement from 01.10.2007 to
18.12.2009 Ex.PW16/H-1. During investigation he also made
correspondence with interpol CBI New Delhi regarding verification of
documents of Interword PTY Ltd. – Australia and received the letter of
Asstt. Director, CBI Interpol Wing dated 09.02.2009 already Ex.PW14/A
alongwith enclosures already Ex.PW14/B (colly.) Referred to DCP EOW
and marked to him which he placed on the file. The letter of Queensland
Police Service, Brisbane Australia dated 17.12.2008 forming part of
Ex.PW14/B (colly.) as page no. 25 and 26 have direct bearing upon the
verified subject. On 30.10.2009, he arrested accused Devender Pandey vide
arrest memo Ex.PW16/l and personal memo Ex.PW16/J. He recorded
disclosure statement of accused Devender Pandey Ex.PW16/K. He
obtained one days PC remand of accused Devender Pandey and took his
sample signatures marked as S-8, S-9, S-10, which was Ex.PW16/L-1,
Ex.PW16/L-2 and Ex.PW16/L-3. During investigation and during PC
remand of accused Vivek Bhat on 12.10.2008, he had also taken sample
signature / sample writing of accused Vivek Bhat which was Mark as S-1
to S-7 and which was now Ex.PW16/M-1 to Ex.PW16/M-7. He had sent
documents to FSL. He had also recorded statement of witnesses u/s 161
Cr.P.C. He filed FSL report regarding laptop verification of accused and
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.50 to 129
handwriting comparison of accused Vivek Bhat. Thereafter, he prepared
supplementary charge-sheet against accused Devender Pandey was
correctly identified by the witness. Thereafter, he was transferred from
EOW.
During cross-examination on behalf of accused Vivek Bhat PW-16 deposed
that the present case was assigned to him for further investigation on
29.08.2008 from Ins. Sushil Kumar the then IO of the case. The present
case file was assigned to him through Reader of ACP/AF&C Section and
as such no handing over and taking over was drawn. On the very next day
he met the complainant in the present case. He did not recollect whether he
recorded his statement on the said date i.e. 30.08.2008 or not. Witness
voluntarily deposed that he recorded his statement on all the occasions
when he handed over the documents personally to him. At times, the
documents were handed over by the complainant to the Reader and on
those occasion his statement was not recorded, however, the same was
mentioned in the case diary. During the enquiry with the complainant he
did not try to ascertain as to when A & A Capital came into existence. He
did not ascertain as to whether A & A Capital was registered or not. He did
not ascertain as to what was the nature of business A & A Capital was
carrying out. He voluntarily deposed that complainant had informed him
that he is in the business of property dealing. He could not tell after seeing
the record as to whether the account opening forms from HSBC shows the
nature of business of A & A Capital Company as exporter commodity. He
did not carried out any investigation to ascertain whether the information
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.51 to 129
mentioned by the complainant regarding the nature of business of A & A
Capital was correct or not. He did not carry out any investigation on this
aspect. I did not carry out any investigation on this aspect as there was no
need regarding the same. He could not tell that the A & A Capital had no
business prior to 21.11.2007 since it is mentioned as a new company in
Ex.PW8/A (at page no. 152) by the complainant. He did not carry out any
investigation in this regard. He could not comment that although the A & A
Capital Company had opened an account in Kotak Mahindra in the year
2007. The account statement of Kotak Mahindra will establish whether
there was any transaction in the next one year of its opening or not. He
could not comment if A & A Capital Company was formed only to avail
the loan in question. The loan was to be obtained by the complainant to
help him run a project / business relating to construction of buildings,
however, he did not carry out further enquiry on this aspect. Complainant
had not given him any blue print/plan of action for conduction of
construction/estate business regarding which the alleged loan was to be
taken. He voluntarily deposed that however, the same was received through
the communication of interpol which was part of Ex.PW14/B (colly.) from
page no. 65 to 72 which I also verified from the complainant.
During cross examination witness was asked following questions:-
Q. I put it to you that during investigation the documents were received the
contents of which shows that the complainant was acquainted with Mr.
Hagg of Interworld PTY Ltd. Of Australia since 1997-98 and loan was
sought by the complainant from Mr. Hagg?
Ans. I had received a letter through interpol dated 17.12.2008 of
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.52 to 129
Queensland Police Service forwarded by senior constable M.L. Cavanagh
in which it has been mentioned that Mr. Hagg stated that one person
namely Khubi Mabusela was corresponding to him for about ten years over
internet to broker a loan to complainant Vinay R.C. lyer. The letter also
mentions that Mr. Hagg was of opinion that complainant R.C. lyer
originally approached Vivek Bhat for this loan who in turn approached
Mabusela. Vol. I confronted complainant with this report, who told me that
he never directly approached Mr. Hagg for loan purpose.
Witness further deposed that he also could not verify this fact from Mr.
Hagg personally was introduced to the complainant by Ravi Saini in year
2007 or that they were not known to each other prior to 2007. He did not
ascertain as to wherefrom the Interpol got the project report of A & A
Capital. He had not verified the gross asset value mentioned by the
complainant in his application Ex.PW15/D-1 showing net asset value 75
million US$ and gross asset value of 100 million US$. He could neither
admit nor deny that the complainant was not involved in the business of
marketing and promoting commercial and residential project, IT Parks and
SEZ Projects as claimed by him in the application Ex.PW15/DA receive
from Interpol. Information regarding detention in pursuant to LOC of
accused Vivek Bhat was received from the Airport on 10.10.2008 at mid
night. It was correct that prior to issuance to LOC no notice u/s 160 Cr.P.C
was issued to the accused to join the investigation. No independent public
witness was joined during the process of handing over or his subsequent
arrest or seizure. It was correct that nothing incriminating was recovered or
seized from the possession of accused Vivek Bhat. He voluntarily deposedFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.53 to 129
that Mobile and laptop of accused was seized from his possession. It was
correct that CFSL did not found anything incriminating either in mobile or
laptop. On 12.10.2008, the accused was interrogated at EOW cell at Qutub
Institutional Area. The case property of the present case i.e. mobile and
laptop were handed over to the Malkhana Incharge by him, however, he
had not signed on the malkhana register at the time of handing over. He did
not recollect when they proceeded from EOW cell on 14.10.2008.
Normally they made their departure entry in the Roznamcha. It was correct
that no record of such entry is on judicial file. He did not join any public
witness either before proceedings from EOW or even on their way or after
reaching the society where accused Vivek Bhat was residing. He and one
HC had gone to the residence of accused. He could not admit or deny that
the ingress or outgress in the society used to be maintained in the register at
the gate in respect of outsiders. He had not collected the copy of such
register to show their visit to the society/residence of the accused. Wife of
the accused was present in the house. He did not ask wife of the accused or
immediate neighbors to become attesting witness of the seizure memos. He
had not informed RWA officials because accused had requested us not to
inform them. He could not tell the exact time when they reached or for how
long they remained there. From the residence of accused they proceeded to
their office and their way they enquired about the Cyber Cafe. On their way
they did not find any cyber cafe around Patparganj Society. They reached
Saket at J Block Market where they came to know about Cyber Cafe in the
said market. He did not recollect what was the name of the said cyber cafe.
He did not site the owner of the said cyber cafe as a witness in the case. HeFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.54 to 129
did not recollect as to whether they had made entry in the register at the
said Cafe or not. It was correct that they had not collected the copy of the
said register. The payment was made by him. No receipt was collected by
him from the Cafe Owner. He did not join either the cafe owner or any
other person present in the said cafe during the proceedings nor he recorded
their statements. He did not recollect from which computer the internet was
accessed. The print out was taken out by him. He did not obtain any
certificate from the owner or from anybody else or the accused in terms of
section 65-B Indian Evidence Act. The specimen handwriting and signature
of the accused was taken at EOW Cell. He had not taken any permission
from the Ld. MM prior to taking specimen handwriting and signature of the
accused. He voluntarily deposed that he was not aware about the legal
position at that time and the accused was willing to give his specimen
handwriting. He did not collect the register maintained by the notary public
in respect of attestation of documents. It was correct that it has come during
the investigation that accused Vivek Bhat came in contact with the
complainant through Ravi Saini. He could nether admit or deny that that
complainant had hired the services of accused Vivek Bhat only for
providing assistance to prepare the documents pertaining to loan and for the
same Rs.1 lac was paid vide cheque no. 000014 dated 17.10.2007. He
could not comment on the question that the complainant had obtained
cheque of Rs.22 Crore from accused Vivek Bhat on the pretext of showing
the same to Mr. Hagg and other persons. He could not comment on the
question that at the time of obtaining said cheque of Rs.22 crore the
complainant had assured not to encash the same or attempt to encash theFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.55 to 129
same and for the said assurance the complainant had issued a cheque of Rs.
22 Crore in favour of accused Vivek Bhat. He could not comment on the
question that all the cheques obtained from accused Vivek Bhat was neither
against any liability nor for any purpose except to show the same by the
complainant to his lenders. It was correct that no cheque was issued from
the account of Creative Brains nor any cheque was received in the said
account of which accused Vivek Bhat was proprietor. He voluntarily
deposed that an agreement was executed between the complainant and
creative brains. During investigation, notices were issued to Ravi Saini,
Rajesh Pundhir and Vinay Kapoor and in response to the said notices Ravi
Saini, Rajesh Pundhir and Vinay Kapoor had joined the investigation. He
voluntarily deposed that Ravi Saini had joined the investigation once and
thereafter he did not turn up before him. He did not take any coercive step
against said Ravi Saini. Notice was issued to Ashish Sahani for joining the
investigation, however, he did not join the investigation. He did not take
any coercive step against said Ashish Sahani. He could not assign any
reason as to why he did not take any coercive step against said Ravi Saini
and Ashish Sahani. He had gone through the documents Ex.PW15/J-1 and
Ex.PW15/K-1 were handed over to him by complainant. He could not
comment whether these two documents e-mails were sent by Ashish Sahani
to accused Vivek Bhat. He had not carried out any investigation in respect
of these e-mails. It was correct that the FSL examination has not found any
document or signature being forged accused Vivek Bhat. He could not
comment that original balance sheet and other documents including Project
Reports of A & A Capital was sent by Asish Sahani through Courier toFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.56 to 129
Australian Interworld Pty. Ltd. He had not carried out any investigation in
respect of these documents. He could not comment that Ashish Sahani had
admitted that Mr. Mabusala, the authorised representative of Interworld
Pty. Ltd. Was introduced to him by Mr. Govind Salgoankar. It was correct
that letter from Interworld Pty. Ltd. Dated 23.06.2008 (Ex.PW15/O-2) was
handed over to him by the complainant alongwith his letter dated
03.09.2008 (Ex.PW15/O). It was correct that as per record the said letter
(Ex.PW15/O-2) was received by Vinay R.C. Iyar by Airmail at his
residential address at Gurgaon vide envelope Ex.PW15/O-3. It was correct
that the said letter Ex.PW15/O-2 was sent by Mr. Elmar Haag from
Australia directly to the complainant. He voluntarily deposed that the said
letter was also verified by Mr. Elmar Haag through interpol report placed
on record. He did not recollect, if he had asked him about his mode of
interactin with Mr. Elmar Haag or not. He could not comment whether he
had asked the complainant to furnish the record of his interaction with Mr.
Elmar Haag to verify the processing of loan. It was correct that the
complainant has mentioned in Ex.PW15/F that a copy of Swift Advice was
given to Mr. Saurabh Dhingra by accused Vivek Bhat.
During cross-examination witness was asked following question:
“Q. Did you ask Mr. Saurabh Dhingra for a copy of alleged Swift Advice
given to him by accused Vivek Bhat ?
Ans. I did not examine Mr. Saurabh Dhingra as reply of Mr. Arun Oberoi
form HSBC Bank (Ex.PW8/C) regarding the alleged Swift Advice which
was in reality a transaction reference and not a Swift Copy was obtained
and placed on record by earlier IO Insp. Sushil Kumar.”
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.57 to 129
It was correct that it is mentioned in Ex.PW8/C that the transaction
reference number has been provided to the bank by above referred
customer. He could not comment that the accused Devender Pandey was
known to the complainant prior to the transaction in question. He did not
ascertain as to when Vicky Overseas came into existence. He comment that
the account of Vicky Overseas was got opened at the instance of
complainant. He did not ascertain from the complainant as to why he did
not issue the cheque of Rs.22 lacs in favour of Creative Brains despite
greement between A & A Capital and Creative Brains. He could not say
that Vicky Overseas was initially was owned by accused Devender Pandey
only or that subsequently at the instance of complainant accused Vivek
Bhat was inducted in Vicky Overseas as partner. He could not comment
that the complainant pursuaded accused Vivek Bhat to give blank signed
cheque of partnership and thereafter, he transferred Rs. 22 lacs in the
account of partnership firm i.e. Vicky Overseas. It was correct that the said
amount of Rs. 22 lacs, were transferred by accused Devender Pandey as
well as accused Vivek Bhat in the account of his sister i.e. C.M. Fabs
(authorsised signatory Devender Pandey) and in the account of M/s
V.N.Creations (Proprietorship concern) and cash amount was withdrawn
by accused Devender Pandey was well as Vivek Bhat. It was correct that
no amount was transferred through banking channel out of abovesaid Rs.22
lacs into the bank account of accused Vivek Bhat. He voluntarily deposed
that the amount of Rs.1 lacs were withdrawn in cash from the bank account
of Vicky Overseas. It was correct that out of Rs.1 lacs, which was received
by accused Vivek Bhat from the complainant in his personal account, a
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.58 to 129
sum of Rs.49,000/- was transferred in the account of Ashish Sahani. It was
correct that I had not obtained any certificate u/s 65-B Evidence Act nor the
same has been filed on record by me in respect of e-mails and other
electronic records filed by him alongwith the charge sheet. He have neither
filed and supplementary charge sheet nor any closure report against Asish
Sahani and / or Ravi Saini. He did not collect CDR of the complainant to
examine his interaction with Asish Sahani. Devender Pandey and others.
During cross examination on behalf of accused Devender Pandey PW-16
deposed that he visited the address of Devender Pandey having Kalkaji
address but he did not know the exact address. He had not received any
proof of depositing any amount in the account of Vivek Bhat for grant of
loan. He did not do any investigation to know whether accused Devender
Pandey is infact victim of the entire transaction done by accused Vivek
Bhat. It was correct that despite taking accused Devender Pandey on Police
Remand no incriminating document was seized from him. It was correct
that the complainant had not made any complaint against accused
Devender Pandey. He did not do any investigation to the effect that there
were e-mails communications between the accused Vivek Bhat and
Devender pandey in which Devender pandey was repeatedly asking for
getting his loan sanctioned by accused Vivek Bhat. He voluntarily deposed
that no such e-mails were produced by the accused Devender Pandey and,
therefore, the same did not come into his knowledge.
PW-17 Inspt Shambhunath deposed that in the month of September, 2015, I
was posted as Sub Insp. In Section VI EOW, Delhi and was handed over
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.59 to 129
file of the present case. He obtained two pending FSL reports alongwith
original questioned, admitted and specimen documents submitted for the
same bearing reports no.FSL-2009/D-0871 dated 20.04.2009 and report no.
FSL 2009 / D-5353 dated 09.04.2014 placed on the record. He filed
supplementary charge-sheet containing abovesaid two FSL reports in the
present case. He had also placed alleged Ravi Saini at Sr. no. 12 of the
supplementary charge-sheet as no legally admissible incriminating
evidence came against him during the investigation carried out by
predecessor IOs including Insp. Shyoram and him.
Despite opportunity granted PW17 has not been cross examined by accused
persons.
PW-18 Inspt. Shyo Ram deposed that in the month of November, 2014, he
was posted as SI in Section VI EOW, Mandir Marg, New Delhi and he was
handed over further investigation of present case. During investigation,
FSL report in the present case which are already Ex.A-1 and Ex.A-2 had
already been received. During investigation, he called Ashish Sawhney and
interrogated him. He also told me that he never met or talked with
complainant Mr. Vinay R.C. lyar of A. & A. Capital. Thereafter,
investigation was transferred to SI Shambhnath and he was relieved from
the case.
Despite opportunity granted PW17 has not been cross examined by accused
persons.
PW-19 Sh. Ram Singh Saini, Manager Kotak Mahindra Bank GMD Square
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.60 to 129
MG Road, Gurugram deposed that he is the summoned witness in the
present case. He have brought account details of account no.
02612000003213 alongwith attested copies of the account statement of the
aforesaid of the period 31.01.2007 to 09.03.2009. The same was
Ex.PW19/A. The letter dated 25.11.2008 is already Ex.PW5/A.
Despite opportunity granted PW17 has not been cross examined by accused
persons.
PW-20 Sh. Tushar Kapoor Associate Vice President Kotak Mahindra Bank
Branch M G Road, Gurgaon Haryana deposed that he had been working
with the aforesaid bank since January, 2019. Upon receiving the summons
of the Court, he had filed the reply dated 04.11.2024 with the court
pertaining to the present matter being the authorized signatory/being the
representative of the bank. The letter was now Ex.PW20/A. As per the
record of the bank the originals of the cheques in question are not available
with the bank. As per the bank retention policy, the voucher copies for a
period of more than 10 years are not available with the bank and are
destroyed as per norms.
During cross-examination on behalf of accused Vivek Bhat PW-20 deposed
that since, the bank always checks before destroying the documents
pertaining to any bank account/voucher copies/cheques whether there is
any letter pending pertaining to preservation of the same or not. As per the
norms, the concerned team of the bank must have checked whether any
letter/regulatory notice or court order was pending pertaining to
preservation or not of the cheques.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.61 to 129
Accused Dewender Pandey adopted the cross examination conducted on
behalf of accused Vivek Bhat.
9. Statement of both accused U/s 313 Cr.P.C. was recorded. Both accused
persons did not lead DE and consequently, matter was fixed for final
arguments.
FINAL ARGUMENTS ON BEHALF OF STATE.
10.It has been argued on behalf of Ld. Addl. PP for State that in the present
matter both accused are liable to have committed the offence charge as it
was the accused persons who conspired together to commit cheating with
the complainant and for the same played deceitful means and procured
Rs.23 lakhs from the complainant which was transferred to the company of
accused persons and therefore, both accused are liable to be convicted. It
has been argued that the complainant has categorically mentioned in his
complaint the manner in which accused Vivek Bhat committed the offence
by playing fraud upon the complainant and for the same purpose he made
false promises to the complainant and cheated him of the aforesaid amount.
It has been argued that the complainant in his testimony before the court
has categorically stated that it was accused Vivek Bhat who met him
through a common friend and thereafter, allured him by assuring that he
shall arrange the loan amount / funds for his business which he was taking
up of construction in Maharashtra but subsequently, usurped the amount
given to him and caused wrongful loss to the complainant and wrongful
gain to himself and co-accused Devender Pandey. It has been argued that
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.62 to 129
the contention raised on behalf of the accused persons that there is no
criminal conspiracy made out is not tenable since it was both the accused
persons who were partners in the company and had received funds and
subsequently utilized the same for their own benefit. It has also been
argued that it was accused Vivek Bhat who after defrauding the
complainant, did not repay the amount received by him and infact tried to
escape from the process of law, but was arrested from the airport as look
out circular was issued against him. It has also been argued that the accused
Vivek Bhat to gain the faith of the complainant even entered into two
agreements with the complainant only with the intention to cheat the
complainant. It has been argued that the dishonest intention of the accused
was from the beginning of the transaction between the parties, as the
accused Vivek Bhat purposely did not comply with any of the agreements
and the same shows that the dishonest intention of the accused was from
the beginning and the ingredients for commission of cheating are made out
against the accused. It has also been argued that the accused Vivek Bhat
committed wrongful gain to himself by making the complainant pay an
amount of Rs.23 Lakhs on the pretext of initial payment and thereafter,
allured him by promising to arrange the amount of Rs.32 Crores from a
Foreign bank /entity and for the same prepared forged documents and to
the extent that he even gave false SWIFT ADVISE to the complainant and
it was the complainant who came to know regarding the intention of the
accused only once he was told by the bank officials that the aforesaid
SWIFT ADVISE is forged and fake. Again, it has been argued that the
aforesaid conduct of accused vivek Bhat only shows that he had committed
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.63 to 129
the offence against the complainant after conspiring the same with accused
Devender Pandey and therefore, both accused are liable to be convicted.
ARGUMENTS ON BEHALF OF ACCUSED VIVEK BHAT
11.It has been argued on behalf of Ld. Counsel for accused Vivek Bhat has
been falsely implicated in the present matter and that no forgery made out
and in the absence of essential ingredients. It is further argued that the
prosecution has utterly failed to establish any of the essential ingredients of
the offence of forgery as defined under Sections 463, 464, and
consequently, Sections 467, 468, and 471 IPC. In order for a document to
be considered forged under Section 463 IPC, it must be shown to be a
“false document” as defined in Section 464 IPC. In the instant case, no
document has been found or proved to be false. Consequently, the
foundational requirement for invoking any of the forgery-related offences
is entirely absent. It conclusively affirms that no document allegedly forged
was ever recovered from the custody of the accused. The independent
expert report negates the prosecution’s allegations and reinforces the
credibility of the accused’s defence.
12. It has been further argued that Clear Admissions by the Investigating
Officer during his cross-examination, has admitted that no incriminating
evidence exists against the accused, Vivek Bhat. He further conceded that
no document on record was forged or produced in its original form, and all
documents relied upon by the prosecution are merely photocopies or
computer printouts of emails. Further, during cross-examination, the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.64 to 129
Investigating Officer stated that:
“it was correct that CFSL did not found anything in
criminating either in mobile or laptop of the accused
which was seized from his possession and further
deposed that it was correct that the FSL examination has
not found any document or signature being forged by
accused Vivek Bhat.”
13. It has further been argued that No Swift Advice Document Ever Existed
and the allegation of the complainant in this regard are demolished during
trial, since the PW4 & PW5, during cross-examination, categorically
admitted that no swift advice was ever provided or received by the bank.
14. It is a cardinal principle of criminal jurisprudence that forging an imaginary
or non-existent document is a legal impossibility, as there must first exist a
genuine document capable of being forged. The Hon’ble Supreme Court in
Sheela Sebastian v. R. Jawaharaj, (2018) 7 SCC 581 held that the offence
of forgery can only be committed by the maker of a false document, and
mere allegations unsupported by tangible evidence do not sustain a charge
of forgery. Further argued that PW4 Saurabh Dhingra was a planted
witness by the complainant as he was neither examined by the investigating
officer nor any statement under section 161 was recorded ever and he
admitted this in his cross examination. He knew complainant since May
2007, whereas the account was opened in November 2007. That PW8 Shri
Arun Oberoi mentioned in letter dated 11.08.2008 exhibit PW8/C mention
that “we wish to inform you that the above referred customer had provided
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.65 to 129
a transaction reference number and not a swift copy.”
15. It has been further argued that that Absence of Mandatory Certificate under
Section 65B of the Indian Evidence Act that all the electronic documents
relied upon by the prosecution, namely, computer printouts of emails, are
bereft of the mandatory certificate required under Section 65B of the Indian
Evidence Act, 1872. In Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
and further reiterated in Arjun Panditrao Khotkar vs Kailashanro Gorantyal
& Others, (2020), 7 SCC 1 the Hon’ble Supreme Court held that such a
certificate is a condition precedent for the admissibility of electronic
evidence. The absence of such certification renders the electronic evidence
inadmissible and incompetent to sustain any criminal charge.
16. It has been further argued that the entire transaction in question arises out
of a genuine contract voluntarily executed by the complainant and the
accused. It has come on record in the supplementary Chargesheet that the
contract was actually drafted by Elmaar Hagg for the complainant which
stated as follows:-
“On the evening of 17 December 2008, the reporting
officer located Elmar HAAG at his home address. Mr
HAAG states that he was first approached by a male
person by the name of Khubi MABUSELA
(www.jafa.en.ecplaza.net or [email protected] or
[email protected] or telephone +27 12 7174
408 or +27 72 4960 73) who he has been corresponding
with over the internet for approximately 10 years to
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.66 to 129
broker a loan to a Vinnay RC IYER of A & A Capital.
Mr HAAG was of the opinion that RC IYER had
originally approached Vivek BHAT for this loan who in
tum approached MABUSELA. Mr HAAG stated that he
told MABUSELA that he was willing to loan the money
to RC IYER on the condition that a bank guarantee was
arranged. with one of. the 4 big banks in Australia. It
was the role of BHAT to arrange this guarantee. Mr
HAAG stated that he then received some documentation
in the mail relating to RC IYER’s business plans (see
Appendix B). Mr HAAG stated that he originally drew
up a letter of contract and emailed this to MABUSELA
(see Appendix C). MABUSELA has allegedly given
this to BHAT. Mr HAAG stated that he was then
contacted by RC IYER wanting to know where the
funds were. Mr. HAAG told him that he hadn’t received
the bank guarantee and the funds hadn’t been sent.”
17. That the essential ingredients of cheating under Section 415 IPC, as
elucidated in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4
SCC 168, include the existence of a fraudulent or dishonest intention at the
very inception of the transaction. In the present case, there is no material to
suggest any such intention on the part of the accused. Rather, the
complainant himself has failed to discharge his obligations under the
contract, and mere non-return of money paid under a genuine contract does
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.67 to 129
not ipso facto constitute cheating. The Hon’ble Supreme Court in Dalip
Kaur v. Jagnar Singh, (2009) 14 SCC 696 has reaffirmed that breach of
contract simpliciter does not amount to the offence of cheating.
18. That in Hon’ble Supreme Court in the matter of Sarabjit Kaur versus the
state of Punjab and another Criminal Appeal No. 581/2023 (2023) 5 SCC
360 held That a breach of contract does not give rise to criminal
prosecution for cheating unless fraudulent or dishonest intention is shown
right at the beginning of the transaction. Merely on the allegation of failure
to keep a promise will not be enough to initiate proceedings. The criminal
courts are not meant to be used for setting scores of pressurize parties to
settle civil disputes.
19. It has been further been argued that a written document is governed by
Sections 91 and 92 of the Indian Evidence Act and the contract herein is
governed by the same. These provisions enshrine the best evidence rule and
strictly bar the introduction of any oral evidence to vary, contradict, or add
to the terms of the written agreement. The Hon’ble Supreme Court in Roop
Kumar v. Mohan Thedani, (2003) 6 SCC 595 has reaffirmed that courts
cannot allow oral evidence to contradict the explicit terms of a written
contract. The complainant’s allegations, being extraneous to the written
contract and unsubstantiated by any admissible evidence, cannot form the
basis of a criminal prosecution.
20. It has been further argued that complainants are expected to approach the
Court with clean hands and to disclose all material facts. However, in the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.68 to 129
present case, the complainant falsely claimed substantial financial assets
worldwide, including an alleged USD 75 million bank balance, when in
reality his bank account held only 2000 at the relevant time.
21. It has been further argued that the contract required the complainant to
furnish 16% of the face value of the loan as margin money (25 crore), yet
the complainant has neither produced any proof of such margin money nor
offered to furnish the same. That the complainant during his cross denied of
knowing the Elmar Hagg and later as per the record they had long-standing
relationship with financier Elmar Hagg for 10 years, the Letter which was
allegedly written by Elmaar Hagg addressed to ACP, and attempts to rope
in the accused through false allegations demonstrate a calculated effort to
give a criminal color to a purely civil dispute. The Hon’ble Supreme Court
in Dalip Singh v. State of U.P., (2010) 2 SCC 114 held that suppression of
material facts disentitles a litigant to any relief and reflects mala fide
conduct. The same principle squarely applies in the present case.
22. It has been further argued that falsus in uno, falsus in omnibus” is a Latin
phrase meaning “false in one thing, false in everything”. It’s a legal
principle suggesting that if a witness is proven to be untruthful about one
aspect of their testimony, it’s reasonable to assume they are untruthful
about other aspects as well. However, this maxim has not been universally
accepted.
23. It has been further argued that taking note of the favourable FSL report and
the Investigating Officer’s categorical admissions negating the existence of
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.69 to 129
any forged document. Recognize the complete absence of essential
ingredients of the offences alleged. Hold that the dispute is purely of a civil
nature, devoid of any element of criminality.
JUDGMENTS RELIED UPON LD. COUNSEL FOR ACCUSED VIVEK
BHAT
24.During the course of arguments, Ld. Counsel for accused Vivek Bhat relied
upon the following judgments as under:-
a) In the case of “Mohammed Ibrahim & Ors. Vs. State of Bihar & Ors.
(2009)” 8 SCC 75 wherein in para no.14, 16, 17, 18, 19 & 22 it has been
held that
“14. An analysis of Section 464 of the Penal Code shows
that it divides False documents into three categories:
1. The first is where a person dishonestly or fraudulently
makes or executes a document with the intention of causing
it to be believed that such document was made or executed
by some other person, or by the authority of some other
person, by whom or by whose authority he knows it was not
made or executed.
2. The second is where a person dishonestly or fraudulently,
by cancellation or otherwise, alters a document in any
material part, without lawful authority, after it has been
made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently
causes any person to sign, execute or alter a document
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.70 to 129
knowing that such person could not by reason of (a)
unsoundness of mind; or (b) intoxication; or (c) deception
practised upon him, know the contents of the document or
the nature of the alteration.
In short, a person is said to have made a “false document”, if
(1) he made or executed a document claiming to be
someone else or authorised by someone else; or (ii) he
altered or tampered a document; or (iii) he obtained a g
document by practising deception, or from a person not in
control of his senses…………
16. There is a fundamental difference between a person
executing a sale deed claiming that the property conveyed is
his property, and a person executing a sale deed by
impersonating the owner or falsely claiming to be
authorised or empowered by the owner, to execute the deed
on owner’s behalf. When a person executes a document
conveying a property describing it as his, there are two
possibilities. The first is that he bona fide believes that the
property actually belongs to him. The second is that he may
be dishonestly or fraudulently claiming it to be his even
though he knows that it is not his property. But to fall under
first category of “false documents”, it is not sufficient that a
document has been made or executed dishonestly or
fraudulently. There is a further requirement that it should
have been made with the intention of causing it to be
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.71 to 129
believed that such document was made or executed by, or
by the authority of a person, by whom or by whose
authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a
property which dis not his, he is not claiming that he is
someone else nor is he claiming that he is authorised by
someone else. Therefore, execution of such document
(purporting to convey some property of which he is not the
owner) is not execution of a false document as defined
under Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.
Section 420 IPC
18. Let us now examine whether the ingredients of an
offence of cheating are made out. The essential ingredients
of the offence of “cheating” are as follows:
(i) deception of a person either by making a false or
misleading representation or by dishonest concealment or
by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to
either deliver any property or to consent to the retention
thereof by any person or to intentionally induce that person
so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived; andFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.72 to 129
(iii) such act or omission causing or is likely to cause
damage or harm to that person in body, mind, reputation or
property.
19. To constitute an offence under Section 420, there should
not only be cheating, but as a consequence of such cheating,
the accused should have h dishonestly induced the person
deceived
i) to deliver any property to any person, or (ii) to make, alter
or destroy wholly or in part a valuable security (or anything
signed or sealed and which is capable of being converted
into a valuable security)………….
21. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or
misleading representation or by any other action or
omission, nor is it his case that they offered him any
fraudulent or dishonest inducement to deliver any property
or to consent to the retention thereof by any person or to
intentionally induce him to do or omit to do anything which
he would not do or omit if he were not so deceived. Nor did
the complainant allege that the first appellant pretended to
be the complainant while executing the sale deeds.
Therefore, it cannot be said that the first accused by the act
of executing sale deeds in favour of the second accused or
the second accused by reason of being the purchaser, or the
third, fourth and fifth accused, by reason of being the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.73 to 129
witness, scribe and stamp vendor in regard to the sale deeds,
deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415
are not found, it cannot be said that there was an offence
punishable under Sections 417, 418, 419 or 420 of the
Code.”
b) In the case of “Shela Sebastian Vs. R Jawa Haraj & Ors.” (2018) 7 SCC
581 wherein para no.5, 19, 20, 21, 24 & 25 it has been held that
“5. Thereafter, the respondents approached the High Court
of Madras, Bench at Madurai, wherein the High Court
acquitted the revision petitioners by setting aside the
concurrent findings of the courts below. The High Court,
basing on the decision in Guru Bipin Singh v. Chongtham
Manihar Singh & Another, 1996 (11) SCC 622 observed
that, the requirement of Section 464, IPC is not satisfied in
view of what has been stated under Explanation 2
to Section 464. Further from the perusal of the Explanation,
it is clear that to get attracted the offence of forgery,
“making of a false document is essential. Hence perusing
the given facts and circumstances before it, the High Court
concluded that, as no case is made out under Section 464,
IPC offence under Section 420 of the IPC being a
consequential one, equally cannot be sustained……….
19. A close scrutiny of the aforesaid provisions makes it
clear that, Section 463 defines the offence of forgery, while
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.74 to 129
Section 464 substantiates the same by providing an answer
as to when a false document could be said to have been
made for the purpose of committing an offence of forgery
under Section 463, IPC. Therefore, we can safely deduce
that Section 464 defines one of the ingredients of forgery
i.e., making of a false document. Further, Section 465
provides punishment for the commission of the offence of
forgery. In order to sustain a conviction under Section 465,
first it has to be proved that forgery was committed under
Section 463, implying that ingredients under Section 464
should also be satisfied. Therefore unless and untill
ingredients under Section 463 are satisfied a person cannot
be convicted under Section 465 by solely relying on the
ingredients of Section 464, as the offence of forgery would
remain incomplete.
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that “to
make”, in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against a
person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State
of Bihar and Anr., (2009) 8 SCC 751 that- “a person is said
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.75 to 129
to have made a `false document’, if (i) he made or executed
a document claiming to be someone else or authorised by
someone else; or (ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or
from a person not in control of his senses.”……
24. In Mir Nagvi Askari vs. Central Bureau of
Investigation, (2009) 15 SCC 643, this Court, after
analysing the facts of that case, came to observe as follows:
“A person is said to make a false document or record if he
satisfies one of the three conditions as noticed hereinbefore
and provided for under the said section. The first condition
being that the document has been falsified with the
intention of causing it to be believed that such document
has been made by a person, by whom the person falsifying
the document knows that it was not made. Clearly the
documents in question in the present case, even if it be
assumed to have been made dishonestly or fraudulently,
had not been made with the intention of causing it to be
believed that they were made by or under the authority of
someone else. The second criteria of the section deals with
a case where a person without lawful authority alters a
document after it has been made. There has been no
allegation of alteration of the voucher in question after they
have been made. Therefore, in our opinion the second
criteria of the said section is also not applicable to theFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.76 to 129
present case. The third and final condition of Section 464
deals with a document, signed by a person who due to his
mental capacity does not know the contents of the
documents which were made i.e. because of intoxication or
unsoundness of mind, etc. Such is also not the case before
us. Indisputably therefore the accused before us could not
have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute
i.e., referring to rule of interpretation wherein natural
inferences are preferred, we observe that a charge of
forgery cannot be imposed on a person who is not the
maker of the same. As held in plethora of cases, making of
a document is different than causing it to be made. As
Explanation 2 to Section 464 further clarifies that, for
constituting an offence under Section 464 it is imperative
that a false document is made and the accused persons is
the maker of the same, otherwise the accused person is not
liable for the offence of forgery.”
c) In the case of “Mir Nagvi Askari Vs. Central Bureau of Investigation“
(2009) 15 SCC 643 wherein para no.60, 61, 62, 63, 164 & 166 it has been
held that
“60. Criminal conspiracy, it must be noted in this regard,
is an independent offence. It is punishable separately. A
criminal conspiracy must be put to action; for so long as aFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.77 to 129
crime is generated in the mind of the accused, the same
does not become punishable. Thoughts even criminal in
character, often involuntary, are not crimes but when they
take a concrete shape of an agreement to do or caused to
be done an illegal act or an act which is not illegal, by
illegal means then even if nothing further is done, the
agreement would give rise to a criminal conspiracy.
61. The ingredients of the offence of criminal conspiracy
are: (i) an agreement between two or more persons; (ii) an
agreement must relate to doing or causing to be done
either (a) an illegal act; (b) an act which is not illegal in
itself but is done by illegal means.
Condition precedent for holding the accused persons to be
guilty of a charge of criminal conspiracy must, therefore,
be considered on the anvil of the fact which must be
established by the prosecution, viz., meeting of minds of
two or more persons for doing or causing to be done an
illegal act or an act by illegal means.
62. The courts, however, while drawing an inference from
the materials brought on record to arrive at a finding as to
whether the charges of the criminal conspiracy have been
proved or not, must always bear in mind that a conspiracy
is hatched in secrecy and it is difficult, if not impossible,
to obtain direct evidence to establish the same. The
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.78 to 129
manner and circumstances in which the offences have
been committed and the accused persons took part are
relevant. For the said purpose, it is necessary to prove that
the propounders had expressly agreed to it or caused it to
be done, and it may also be proved by adduction of
circumstantial evidence and/ or by necessary implication.
[See Mohammad Usman Mohammad Hussain Maniyar &
Ors. v. State of Maharashtra]
25. 63. The following passage from Russell on Crimes
(12th Edn. Vol 1) cited by Jagannatha Shetty, J in Kehar
Singh and Ors. v. State (Delhi Administration), [1988 (3)
SCC 609 at 731] brings out the legal position succinctly:
“The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor in
inciting others to do them, but in the forming of the
scheme or agreement between the parties. Agreement is
essential. Mere knowledge, or even discussion, of the
plan is not, per se enough”
Further it was noted in Kehar Singh (supra) that to
establish the offence of criminal conspiracy `[i]t is not
required that a single agreement should be entered into by
all the conspirators at one time. Each conspirator plays
his separate part in one integrated and united effort to
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.79 to 129
achieve the common purpose. Each one is aware that he
has a part to play in a general conspiracy though he may
not know all its secrets or the means by which the
common purpose is to be accomplished.’ ………
164. A person is said to make a false document or record
if he satisfies one of the three conditions as noticed
hereinbefore and provided for under a the said section.
The first condition being that the document has been
falsified with the intention of causing it to be believed
that such document has been made by a person, by whom
the person falsifying the document knows that it was not
made. Clearly the documents in question in the present
case, even if it be assumed to have been made dishonestly
or fraudulently, had not been made with the intention of
causing it to be believed that they were made by or under
the authority of someone else. The second criterion of the
section deals with a case where a person without lawful
authority alters a document after it has been made. There
has been no allegation of alteration of the voucher in
question after they have been made. Therefore, in our
opinion the second criterion of the said section is also not
applicable to the present case. The third and final
condition of Section 464 deals with a document, signed
by a person who due to his mental capacity does not
know the contents of the documents which were made i.e.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.80 to 129
because of intoxication or unsoundness of mind, etc. Such
is also not the case before us. Indisputably therefore the
accused before us could not have been convicted with the
making of a false document……
166. Further, the offence of forgery deals with making of
a false document with the specific intentions enumerated
therein. The said section has been reproduced below.
“463. Forgery. Whoever makes any false documents or
false electronic record or part of a document or electronic
record, with intent to cause damage or injury, to the
public or to any person, or to support any claim or title, or
to cause any person to part with property, or to enter into
any express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery.”
However, since we have already held that the commission
of the said offence has not been convincingly established,
the accused could not have been convicted for the offence
of forgery. The definition of “false document” is a part of
the definition of “forgery”. Both must be read together.
[Vimla (Dr.) v. Delhi Admn.8] Accordingly, the accused
could not have been tried for offence under Section 467
which deals with forgery of valuable securities, will, etc.
or Section 471 i.e. using as genuine a forged document or
Section 477-A i.e. g falsification of accounts. The
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.81 to 129
conviction of the accused for the said offences is
accordingly set aside.”
d) In the case of “Anvaer P V Vs P K Basheer & Ors” (2014) 10 SCC 473
and in the case of ” Arjun Panditrao Khotkar Vs. Kalishanro Gorantyal &
Ors.” (2020) 7 SCC 1.
e) In the case of ” Sarabjit Kaur Vs. State of Punjab & Anr.” (2023) 5 SCC
360″ wherein para no.13 it has been held that
“13. A breach of contract does not give rise to criminal
prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
transaction. Merely on the allegation of failure to keep
up promise will not be enough to initiate criminal
proceedings. From the facts available on record, it is
evident that the respondent No.2 had improved his case
ever since the first complaint was filed in which there
were no allegations against the appellant rather it was
only against the property dealers which was in
subsequent complaints that the name of the appellant
was mentioned. On the first complaint, the only request
was for return of the amount paid by the respondent
No.2. When the offence was made out on the basis of the
first complaint, the second complaint was filed with
improved version making allegations against the
appellant as well which was not there in the earlier
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.82 to 129
complaint. The entire idea seems to be to convert a civil
dispute into criminal and put pressure on the appellant
for return of the amount allegedly paid. The criminal
Courts are not meant to be used for settling scores or
pressurise parties to settle civil disputes. Wherever
ingredients of criminal offences are made out, criminal
courts have to take cognizance. The complaint in
question on the basis of which F.I.R. was registered was
filed nearly three years after the last date fixed for
registration of the sale deed. Allowing the proceedings to
continue would be an abuse of process of the Court.”
f) In the case of ” Roop Kumar Vs. Mohan Thedani” (2003) 6 SCC 595
wherein para no.13, 17, 18, 19, 20, 21 & 22 it has been held that
“13. 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 sometimes 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 all proceedings and
contemporaneous oral expressions of the thing are merged
in the writing or displaced by it. (See Thayer’s Preliminary
Law on Evidence, p. 397 and p. 398; Phipson’s Evidence,
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.83 to 129
7th Edn., p. 546; Wigmore’s Evidence, p. 2406.) It has been
best described by Wigmore stating that the rule is in no
sense a rule of evidence but a rule of substantive law. It
does not exclude certain data because they are for one or
another reason untrustworthy or undesirable means of
evidencing some fact to be proved. It does not concern a
probative mental process the process of believing one fact
on the faith of another. What the rule does is to declare that
certain kinds of facts are legally ineffective in the
substantive law; and this of course (like any other ruling of
substantive law) results in forbidding the fact to be proved
at all. But this prohibition of proving it is merely that
dramatic aspect of the process of applying the rule of
substantive law. When a thing is not to be proved at all a
the rule of prohibition does not become a rule of evidence
merely because it comes into play when the counsel offers
to “prove” it or “give evidence” of it; otherwise, any rule of
law whatever might be reduced to a rule of evidence. It
would become the legitimate progeny of the law of
evidence. For the purpose of specific varieties of jural
effects sale, contract etc. there are specific requirements
varying according to the subject. On the contrary there are
also certain fundamental elements common to all and
capable of being generalised. Every jural act may have the
following four elements:
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.84 to 129
(a) the enaction or creation of the act;
(b) its integration or embodiment in a single memorial
when desired;
(c) its solemnization or fulfilment of the prescribed forms,
if any; and
(d) the interpretation or application of the act to the
external objects affected by it. ………..
17. It is likewise a general and most inflexible rule that
wherever written instruments are appointed, either by the
requirement of law, or by the contract of the parties, to be
the repositories and memorials of truth, any b other
evidence is excluded from being used either as a substitute
for such instruments, or to contradict or alter them. This is
a matter both of principle and policy. It is of principle
because such instruments are in their own nature and
origin, entitled to a much higher degree of credit than parol
evidence. It is of policy because it would be attended with
great mischief if those instruments, upon which men’s
rights depended, were liable to be impeached by loose
collateral evidence. (See Starkie on Evidence, p. 648.) C
18. In Section 92 the legislature has prevented oral
evidence being adduced for the purpose of varying the
contract as between the parties to the contract; but, no such
limitations are imposed under Section 91. Having regard to
the jural position of Sections 91 and 92 and the deliberate
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.85 to 129
omission d from Section 91 of such words of limitation, it
must be taken note of that even a third party if he wants to
establish a particular contract between certain others, either
when such contract has been reduced to in a document or
where under the law such contract has to be in writing, can
only prove such contract by the production of such writing.
19. Sections 91 and 92 apply only when the document on
the face of it e contains or appears to contain all the terms
of the contract. Section 91 is concerned solely with the
mode of proof of a document with limitation imposed by
Section 92 relates only to the parties to the document. If
after the document has been produced to prove its terms
under Section 91, provisions of Section 92 come into
operation for the purpose of excluding evidence of any oral
agreement or statement for the purpose of contradicting,
varying, adding or subtracting from its terms. Sections 91
and 92 in effect supplement each other. Section 91 would
be inoperative without the aid of Section 92, and similarly
Section 92 would be inoperative without the aid of Section
91.
20. The two sections, however, differ in some material
particulars. Section 91 applies to all documents, whether
they purport to dispose of rights or not, whereas Section 92
applies to documents which can be described as
dispositive. Section 91 applies to documents which are
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.86 to 129
both bilateral and unilateral, unlike Section 92 the
application of which is confined to only bilateral
documents. (See: Bai Hira Devi v. Official Assignee of
Bombay.) Both these provisions are based on “best-
evidence rule”. In Bacon’s Maxim.
Regulation 23, Lord Bacon said “The law will not couple
and mingle matters of speciality, which is of the higher
account, with matter of averment which is of inferior
account in law.” It would be inconvenient that matters in
writing made by advice and on consideration, and which
finally import the certain truth of the agreement of parties
should be controlled by averment of the parties to be
proved by the uncertain testimony of slippery memory.
21. The grounds of exclusion of extrinsic evidence are: (1)
to admit inferior evidence when law requires superior
would amount to nullifying the blaw, and (ii) when parties
have deliberately put their agreement into writing, it is
conclusively presumed, between themselves and their
privies, that they intended the writing to form a full and
final statement of their intentions, and one which should be
placed beyond the reach of future controversy, bad faith
and treacherous memory.
22. This Court in Gangabai v. Chhabubar and Ishwar Dass
Jain v. Sohan Lal with reference to Section 92(1) held that
it is permissible to a party to a deed to contend that the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.87 to 129
deed was not intended to be acted upon, but was only a
sham document. The bar arises only when the document is
relied upon and its terms are sought to be varied and
contradicted. Oral evidence is admissible to show that
document executed was never intended to operate as an
agreement but that some other agreement altogether, not
recorded in the document, was entered into between the
parties.”
g) In the case of ” V. Anantha Raju & Anr. Vs. T M Narasimhan & Ors.”
(2021) 17 SCC 165 wherein para no.33 & 34 it has been held that
“33. It could thus be seen that this Court in Roop Kumar
case2 has held that the integration of the act consists in
embodying it in a single utterance or memorial
commonly, a written one. This process of integration may
be required by law, or it may be adopted voluntarily by
the actor or actors and in the latter case, either wholly or
partially. It has been held that the question that is required
to be considered is whether the particular document was
intended by the parties to cover certain subjects of
transaction between them to deprive of legal effect of all
other utterances. It has been further held that the practical
consequence of integration is that its scattered parts, in
their former and inchoate shape, have no longer any jural
effect and they are replaced by a single embodiment of
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.88 to 129
the act. It has been held that when a jural act is embodied
in a single memorial, all other utterances of the parties on
the topic are legally immaterial for the purpose of
determining what are the terms of their act. It has been
held that when persons express their agreements in
writing, it is for the express purpose of getting rid of any
indefiniteness and to put their ideas in such shape that
there can be no misunderstanding, which so often occurs
when reliance is placed upon oral statements. It has been
observed that the written contracts presume deliberation
on the part of the contracting parties and it is natural that
they should be treated with careful consideration by the
courts and with a disinclination to disturb the conditions
of matters as embodied in them by the act of the parties. It
has been held that the written instruments are entitled to a
much higher degree of credit than parol evidence.
34. This Court has further held in Roop Kumar case that
Sections 91 and 92 of the Evidence Act would apply only
when the document on the face of e it contains or appears
to contain all the terms of the contract. It has been held
that after the document has been produced to prove its
terms under Section 91, the provisions of Section 92
come into operation for the purpose of excluding
evidence of any oral agreement or statement for the
purpose of contradicting, varying, adding or subtracting
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.89 to 129
from its terms. It has been held that it would be
inconvenient that matters in writing made by advice and
on consideration, and which finally import the certain
truth of the agreement of parties should be controlled by
averment of the parties to be proved by the uncertain
testimony of slippery memory. It has been held that when
parties deliberately put their agreement into writing, it is
conclusively presumed, between themselves and their
privies, that they intended the writing to form a full and
final statement of their intentions, and one which should
be placed beyond the reach of future g controversy, bad
faith and treacherous memory.”
h) In the case of ” Annaya Kocha Shetty (Dead) Through LRs Vs.
Laxmibai Narayan Satose since deceased through LRs & Ors.” 2025 SCC
758 wherein para no.18 it has been held that
18. The construction of a deed is “generally speaking, a
matter of law.” However, when there is an ambiguity in
the deed, determining its meaning is a mixed question of
fact and law. This concept is encapsulated by sections
91 and 92 of the Evidence Act, 1872.
i) In the case of ” K. Bharthi Devi & Anr. Vs. State of Telangana & Anr.”
(2024) 10 SCC 384.
ARGUMENTS ON BEHALF OF ACCUSED DEVENDER PANDEY
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.90 to 129
26.It has been argued on behalf of Ld. Counsel for accused Devender Pandey
that the Accused No. 2 has no involvement or role in the companies/parties
alleged by the EOW to be linked to offence of section 420/120B of IPC.
Further, that the Accused no.2 runs a business on the name of Vicky
Overseas which is a partnership firm. The other Partner of the firm is Vivek
Bhat.
27. It has been further argued that the EOW due to the partnership firm has
made accused no.2 also liable in the present matter under section 420/120B
IPC due to reasons that the accused no.2 has his signature alongwith
accused no.1 on the cheque given to the complainant of Rs. 22,00,00,000/-.
and that the amount of Rs. 19.5 Lakhs transferred from the account of
Vicky Overseas to the relatives firms of Accused No.2 out of 22 lakhs
transferred to the account of Vicky Overseas by the Complainant.
28.That the prosecution failed to establish a link between the offence of
420/120B of IPC and the accused no.2 and the alleged offence of 420/120B
of IPC or any proceeds of crime. The lack of evidence and absence of
financial trails linking the accused No.2 renders the prosecution illegal.
That the EOW has also failed to demonstrate how the signature on cheque
only, without any involvement from the start or anytime during the ongoing
criminal activity, making the accused no.2 liable for the offences. That
further, at no point of time there is any circumstances occurred or proven or
record that could link both accused persons for making the act liable under
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.91 to 129
section 120B IPC. It has been further argued that absence of “the intention
to cheat complainant from the very inception. That the Accused no.2 had
no intention to cheat as he had not met the complainant and he had no
dishonest intention which is quiet clear from the evidences and facts
presented in this matter. All the contracts and meetings held for the subject
matter in the present case was done without any involvement of accused
no.2. That the Complainant/ Witness No. 15 Sh. Vinay RC Iyyer nowhere
mentioned that accused no.2 had any involvement in his testimony,
examination-in-chief or in his cross examination. That, accused no.1 given
the concerned cheque Ex. PW15/E which was dishonoured and when he
informed accused no.1 about it the accused Vivek Bhat gave him another 3
cheques of his saving bank account in ICICI Bank amounting to Rs. 21.60
crores. These cheques and Bank has no relation to accused no. 2. The apex
court in Mohan v. State, 2024 SCC Online SC 339 , has stated that
dishonest inducement is the sine qua non to attract the provisions of
Sections 415 and 420 of the IPC.
29.It has been further argued that on the question of funds being transferred
from account of Vicky Overseas to relatives of accused no. 2. It is very
much evident that personal transactions were done between accused no.1
and accused no.2 with each other and some amounts were taken as loan by
Vivek Bhat from relative of Dewendra Pandey. Hence, when later asked
about such loan, Vivek Bhat to return the loan amount insured accused no.
2 that an amount out of business transaction will be deposited in the
account of Vicky Overseas. It has been argued that Absence of any
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.92 to 129
circumstantial evidence to show agreement between the parties for making
it liable under Section 120B that when the accused no.2 at no point of time
had any dishonest intention to cheat then presuming him to be liable under
section 120B is out of question. That the accused no. 2 had no meeting of
mind with accused no. 1 to conspire the stated case and no involvement
shown anywhere.
30.Before appreciating the evidence, brought on record by the prosecution, I
must mention here the law of appreciating evidence of the witnesses.
Hon’ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991
JCC 6147, had observed:
“While appreciating the evidence of a witness, approach
must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that
impression is formed then undoubtedly it is necessary for
the court to scrutinize the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence given by the witness and whether
earlier evaluation of evidence is shaken as to render it
unworthy of behalf. Minor discrepancies on trivial
matters not touching the core of the case, hyper technical
approach by taking sentences torn out of context here
and there from the evidence, attaching importance to
some technical error committed by the investigating
officer not going to the root of the matter, would not
ordinarily permit rejection of the evidence as a whole.
The main thing to be seen is, whether thoseFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.93 to 129
inconsistencies go to the root of the matter or pertained
to the insignificant aspects thereof. In the former case,
the defence may be justified in seeking advantage of the
inconsistencies in the evidence. In the latter, however no
such benefit may be available to it. That is a salutary
method of appreciation of evidence in criminal cases.”
31.So, in the wake of above mentioned law, evidence brought on record, has
to be read as a whole and has to be appreciated as a whole. Minor
discrepancies over trivial matters and hyper technical approach while
appreciating evidence, has to be avoided. It has to be seen whether
shortcomings highlighted by accused, go to the root of the matter and if it
so goes, then in that eventuality only evidence has to be discarded.
THE OFFENCE
32.The law pertaining to Section 420 IPC is discussed herein below.
Section 420 IPC states that:-
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.
33.The law pertaining to the cheating has been discussed by higher echelon of
judicial system and the same is discussed below :-
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.94 to 129
34.In the case of A.M. Mohan Vs. State 2024 SCC Online SC 339 , it has been
held that :-
20. Cheating is an essential ingredient for an act to
constitute an offence under Section 420.”
12. A similar view has been taken by this Court in the
cases of Archana Rana v. State of Uttar Pradesh and
Another4, Deepak Gaba and Others v. State of UP
and Another5 and Mariam Fasihuddin and Another v.
State by Adugodi Police Station and Another.
13. It could thus be seen that for attracting the
provision of Section 420 of IPC, the FIR/complaint
must show that the ingredients of Section 415 of IPC
are made out and the person cheated must have been
dishonestly induced to deliver the property to any
person; or to make, alter or destroy valuable security
or anything signed or sealed and capable of being
converted into valuable security. In other words, for
attracting the provisions of Section 420 of IPC, it
must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person
to deliver any property to any person; and
(iii) dishonest intention of the accused at the time of
making the inducement.
14. The averments with regard to the present
appellant as have been found in the FIR is as under:
“At the instance of the said Lakshmanan (accused
No.1), I (complainant) paid directly Rs. 20,00,000/-
to one Mohan (appellant-accused No. 3) and the said
Lakshmanan (accused No.1) transferred the
remaining sale consideration of over 18 odd crores to
Mohan for the purchase of his lands atFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.95 to 129
Sunguvarchatram. But suppressed the execution of
sale deed dated 03.02.2017 by the appellant/accused
No.3.”
35. Further, in the case of Wolfgang Reim & Ors. Vs. State 2012 SCC
Online Delhi 3341, it has been held that :-
31. So far as Sections 417, 419 and 420 IPC are
concerned, there must be dishonest intention at the
inception of delivery or retention of property is the
gist of the offence and in absence thereof there can be
no offence of cheating. The Hon’ble Supreme Court
has held in Sukhdeo Jha Utpal vs. The State of Bihar;
AIR 1957 SC 466 as under :-
“On charge of cheating, the fact that the accused
made a false representation with the knowledge, that
it was false and that he had a dishonest intention to
induce the person deceived to part with his property,
at the very time when he made a false representation,
is an essential ingredient of the offence. On such a
charge, the burden lies on the prosecution to prove
affirmatively, not only that the accused has made a
false representation, but also he made it with a
dishonest intention, knowing that the representation
he was making was false.”
32. It was further held by the Hon‟ble Supreme
Court of India in S.W. Palanitkar vs. State of Bihar;
(2002) 1 SCC 241 as under:-
“……..In order to constitute an offence of cheating,
the intention to deceive should be in existence at the
time when the inducement was made. it is necessary
to show that a person had fraudulent or dishonest
intention at the time of making the promise, to sayFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.96 to 129
that he committed an act of cheating. A mere failure
to keep up promise subsequently cannot be presumed
as an act leading to cheating.”
33. In the present case, there is nothing on record to
show that the petitioners knowingly made any false
representation, much less dishonestly or fraudulently
any representation. Therefore, one of basic
ingredients of Sec 415 or 420 IPC is not made out.
\34. Further, a person cannot be charged with the
offence of cheating and criminal breach of trust
simultaneously for the same transaction because for
the offence of cheating, it is a prerequisite that
dishonest intention must exist at the inception of any
transaction whereas in case of criminal breach of
trust, there must exist a relationship between the
parties whereby one party entrusts another with
property as per law, therefore, for commission of
criminal breach of trust, the dishonest intention
comes later, i.e, after obtaining dominion over the
property by the accused person whereas for
commission of cheating, dishonest intention of the
accused has to be present at the inception of the
transaction.”
36. Sec. 467 IPC states that :-
“Forgery of valuable security, will etc.
Whoever forges a document which purports to be a valuable
security or a will, or an authority to adopt a son, or which
purports to give authority to any person to make or transferFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.97 to 129
any valuable security, or to receive the principal, interest or
dividends thereon, or to receive or deliver any money,
movable property, or valuable security, or any document
purporting to be an acquittance or receipt acknowledging the
payment of money, or an acquittance or receipt for the
delivery of any movable property or valuable security, shall
be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine.”
37. Sec. 468 IPC states that :-
“Forgery for purpose of cheating –
Whoever commits forgery, intending that the document or
electronic record1 forged shall be used for the purpose of
cheating, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to fine.”
38. Sec. 471 IPC states that :-
“Using as genuine a forged document :-
Whoever fraudulently or dishonestly uses as genuine any
document which he knows or has reason to believe to be
a forged document, shall be punished in the same manner
as if he had forged such document.”
39. The offence u/sec. 467 IPC is an aggravated form of the preceding
section. The forged document must be one of those mentioned in the
section. Sec. 468 IPC punishes forgery committed for the purpose of
cheating. To bring a document within the definition of a forged document,
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.98 to 129
it is required firstly to be shown that the false document was covered u/sec.
464 IPC and even mere proving of making a false document without
establishing the intention of the maker is not sufficient to constitute an
offence and unless the forgery of a document is proved, it cannot be said
that the said forged document is used as genuine one. Therefore, to
constitute an offence u/sec. 471 IPC, first an offence u/sec. 468 IPC has be
established. Mere preparation of document under once own signature and
writings by making false averments therein does not fall within the
definition of forgery. The ingredient of the offence u/sec. 468 IPC is
committing of forgery with a particular intent, that intent being that the
document forged should be used for the purpose of cheating. The Section
does not require that accused should actually commit the offence of
cheating. Forgery is usually an act done in furtherance of some other
criminal design. What is material is the intention or purpose of the offender
in committing forgery.
40. To constitute an offence u/sec. 468 IPC, the prosecution is required
to establish that the accused had committed forgery and that he did it with
an intention that the document forged shall be used for the purpose of
cheating. The term forged document is defined u/sec. 470 IPC. Sec. 471
IPC states that whoever fraudulently or dishonestly uses as genuine any
document or electronic record which he knows or has reason to believe to
be forged shall be punished in the same manner as if he had forged such
document. Therefore, what this section requires is a use as genuine of any
document which is known or believed to be forged document. The
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.99 to 129
condition precedent for an offence u/sec. 467 and sec. 471 IPC is forgery.
The condition precedent for forgery is making a false document. Therefore,
sec. 471 IPC requires to use the forged document as genuine. To bring
home, sec. 471 IPC user of a forged document as genuine, inter-alia must
be made fraudulently and dishonestly. While deceit is an important
ingredient of the definition of the word ‘fraudulently’ it is not an ingredient
of the definition of the word ‘dishonestly’ which involves a pecuniary or
economic gain or loss, while the word ‘fraudulently’ by construction
excludes that element. Further, it is required that the accused knew or had
good reason to believe that it was not the signature of the person by whom
the document is set to have been written.
41. The law pertaining to the aforementioned offences u/sec.
464/467/468/471 IPC is discussed in my subsequent paragraphs, of this
judgment.
42. It has been held in the case of Mohd. Ibrahim & Ors. Vs. State of
Bihar, 2009 8 SCC 751 para 9 to 22, that :-
“9. The term “forgery” used in these two sections is defined in
section
463. Whoever makes any false documents with intent to cause
damage or injury to the public or to any person, or to support
any claim or title, or to cause any person to part with
property, or to enter into express or implied contract, or with
intent to commit fraud or that the fraud may be committed,FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.100 to 129
commits forgery. Section 464 defining “making a false
document” is extracted below :
“464. Making a false document.–A person is said to make a
false document or false electronic record—
First.–Who dishonestly or fraudulently –
(a) makes, signs, seals or executes a document or part of a
document;
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or
the authenticity of the digital signature, with the intention of
causing it to be believed that such document or a part of
document, electronic record or digital signature was made,
signed, sealed, executed, transmitted or affixed by or by the
authority of a person by whom or by whose authority he
knows that it was not made, signed, sealed, executed or
affixed; or Secondly.–Who, without lawful authority,
dishonestly or fraudulently, by cancellation or otherwise,
alters a document or an electronic record in any material part
thereof, after it has been made, executed or affixed with
digital signature either by himself or by any other person,
whether such person be living or dead at the time of such
alternation; or Thirdly.–Who dishonestly or fraudulently
causes any person to sign, seal, execute or alter a document or
an electronic record or to affix his digital signature on any
electronic record knowing that such person by reason of
unsoundness of mind or intoxication cannot, or that by reason
of deception practised upon him, he does not know the
contents of the document or electronic record or the nature of
the alteration.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.101 to 129
Explanation 1 – A man’s signature of his own name may
amount to forgery.
Explanation 2 – The making of a false document in the name
of a fictitious person, intending it to be believed that the
document was made by a real person, or in the name of a
deceased person, intending it to be believed that the document
was made by the person in his lifetime, may amount to
forgery.
[Note: The words `digital signature’ wherever it occurs were
substituted by the words `electronic signature’ by Amendment
Act 10 of 2009].”
The condition precedent for an offence under sections
467 and 471 is forgery. The condition precedent for forgery is
making a false document (or false electronic record or part
thereof). This case does not relate to any false electronic
record. Therefore, the question is whether the first accused, in
executing and registering the two sale deeds purporting to sell
a property (even if it is assumed that it did not belong to him),
can be said to have made and executed false documents, in
collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it
divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently
makes or executes a document with the intention of causing it
to be believed that such document was made or executed by
some other person, or by the authority of some other person,
by whom or by whose authority he knows it was not made or
executed.
10.2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a document
in any material part, without lawful authority, after it has been
made or executed by either himself or any other person.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.102 to 129
10.3) The third is where a person dishonestly or fraudulently
causes any person to sign, execute or alter a document
knowing that such person could not by reason of (a)
unsoundness of mind; or (b) intoxication; or (c) deception
practised upon him, know the contents of the document or the
nature of the alteration.
11. In short, a person is said to have made a `false document’,
if (i) he made or executed a document claiming to be
someone else or authorised by someone else; or (ii) he altered
or tampered a document; or (iii) he obtained a document by
practicing deception, or from a person not in control of his
senses.
12. The sale deeds executed by first appellant, clearly and
obviously do not fall under the second and third categories of
`false documents’. It therefore remains to be seen whether the
claim of the complainant that the execution of sale deeds by
the first accused, who was in no way connected with the land,
amounted to committing forgery of the documents with the
intention of taking possession of complainant’s land (and that
accused 2 to 5 as the purchaser, witness, scribe and stamp
vendor colluded with first accused in execution and
registration of the said sale deeds) would bring the case under
the first category. There is a fundamental difference between
a person executing a sale deed claiming that the property
conveyed is his property, and a person executing a sale deed
by impersonating the owner or falsely claiming to be
authorised or empowered by the owner, to execute the deed
on owner’s behalf. When a person executes a document
conveying a property describing it as his, there are two
possibilities. The first is that he bonafide believes that the
property actually belongs to him. The second is that he may
be dishonestly or fraudulently claiming it to be his even
though he knows that it is not his property. But to fall under
first category of `false documents’, it is not sufficient that aFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.103 to 129
document has been made or executed dishonestly or
fraudulently. There is a further requirement that it should
have been made with the intention of causing it to be believed
that such document was made or executed by, or by the
authority of a person, by whom or by whose authority he
knows that it was not made or executed. When a document is
executed by a person claiming a property which is not his, he
is not claiming that he is someone else nor is he claiming that
he is authorised by someone else. Therefore, execution of
such document (purporting to convey some property of which
he is not the owner) is not execution of a false document as
defined under section 464 of the Code. If what is executed is
not a false document, there is no forgery. If there is no
forgery, then neither section 467 nor section 471 of the Code
are attracted.
Section 420 IPC
13. Let us now examine whether the ingredients of an offence
of cheating are made out. The essential ingredients of the
offence of “cheating” are as follows: (i) deception of a person
either by making a false or misleading representation or by
dishonest concealment or by any other act or omission; (ii)
fraudulent or dishonest inducement of that person to either
deliver any property or to consent to the retention thereof by
any person or to intentionally induce that person so deceived
to do or omit to do anything which he would not do or omit if
he were not so deceived; and (iii) such act or omission
causing or is likely to cause damage or harm to that person in
body, mind, reputation or property. To constitute an offence
under section 420, there should not only be cheating, but as a
consequence of such cheating, the accused should have
dishonestly induced the person deceived (i) to deliver any
property to any person, orFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.104 to 129
(ii) to make, alter or destroy wholly or in part a valuable
security (or anything signed or sealed and which is capable of
being converted into a valuable security).
14. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the
purchaser under such sale deed, to allege that the vendor has
cheated him by making a false representation of ownership
and fraudulently induced him to part with the sale
consideration. But in this case the complaint is not by the
purchaser. On the other hand, the purchaser is made a co-
accused. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or
misleading representation or by any other action or omission,
nor is it his case that they offered him any fraudulent
or dishonest inducement to deliver any property or to consent
to the retention thereof by any person or to intentionally
induce him to do or omit to do anything which he would not
do or omit if he were not so deceived. Nor did the
complainant allege that the first appellant pretended to be the
complainant while executing the sale deeds. Therefore, it
cannot be said that the first accused by the act of executing
sale deeds in favour of the second accused or the second
accused by reason of being the purchaser, or the third, fourth
and fifth accused, by reason of being the witness, scribe and
stamp vendor in regard to the sale deeds, deceived the
complainant in any manner. As the ingredients of cheating as
stated in section 415 are not found, it cannot be said that there
was an offence punishable under sections 417, 418, 419 or
420 of the Code.
A clarification
15. When we say that execution of a sale deed by a person,
purporting to convey a property which is not his, as his
property, is not making a false document and therefore not
forgery, we should not be understood as holding that such an
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.105 to 129
act can never be a criminal offence. If a person sells a
property knowing that it does not belong to him, and thereby
defrauds the person who purchased the property, the person
defrauded, that is the purchaser, may complain that the
vendor committed the fraudulent act of cheating. But a third
party who is not the purchaser under the deed may not be able
to make such complaint. The term `fraud’ is not defined in
the Code. The dictionary definition of `fraud’ is “deliberate
deception, treachery or cheating intended to gain
advantage”. Section 17 of the Contract Act, 1872 defines
`fraud’ with reference to a party to a contract. In Dr. Vimla vs.
Delhi Administration – AIR 1963 SC 1572, this Court
explained the meaning of the expression `defraud’ thus “The
expression “defraud” involves two elements, namely, deceit
and injury to the person deceived. Injury is something other
than economic loss that is, deprivation of property, whether
movable or immovable, or of money, and it will include any
harm whatever caused to any person in body, mind,
reputation or such others. In short, it is a non-economic or
non-pecuniary loss. A benefit or advantage to the deceiver
will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage
to the deceiver, but no corresponding loss to the deceived, the
second condition is satisfied.”
The above definition was in essence reiterated in State of UP
vs. Ranjit Singh – 1999 (2) SCC 617.
16. The Penal Code however defines `fraudulently’, an
adjective form of the word `fraud’, in section 25, as follows :
“A person is said to do a thing fraudulently if he does that
thing with intent to defraud but not otherwise”. The term
“fraudulently” is mostly used with the term “dishonestly”
which is defined in section 24 as follows : “Whoever does
anything with the intention of causing wrongful gain to one
person or wrongful loss to another person is said to do that
thing “dishonestly”. To `defraud’ or do something
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.106 to 129
fraudulently is not by itself made an offence under the Penal
Code, but various acts when done fraudulently (or
fraudulently and dishonestly) are made offences. These
include:
(i) Fraudulent removal or concealment of property (sec.206,
421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec.
208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin
(sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246
to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure
(sec.264 to 266)
(viii) Cheating (sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors
(sec. 422).
(x) Fraudulent execution of deed of transfer containing false
statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463
to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security
etc.(sec. 477)
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.107 to 129
(xiii) Fraudulently going through marriage ceremony
(sec.496).
It follows therefore that by merely alleging or showing that a
person acted fraudulently, it cannot be assumed that he
committed an offence punishable under the Code or any other
law, unless that fraudulent act is specified to be an offence
under the Code or other law. Section 504 of Penal Code
17. The allegations in the complaint do not also made out the
ingredients of an offence under section 504 of the Penal
Code. Section 504 refers to intentional insult with intent to
provoke breach of peace. The allegation in the complainant is
that when he enquired with accused 1 and 2 about the sale
deeds, they asserted that they will obtain possession of land
under the sale deeds and he can do whatever he wants. The
statement attributed to appellants 1 and 2, it cannot be said to
amount to an “insult with intent to provoke breach of peace”.
The statement attributed to accused, even if it was true, was
merely a statement referring to the consequence of execution
of the sale deeds by first appellant in favour of the second
appellant.
Conclusion
18. The averments in the complaint if assumed to be true, do
not make out any offence under sections 420, 467, 471 and
504 of the Code, but may technically show the ingredients of
offences of wrongful restraint under section 341 and causing
hurt under section 323 of IPC.
19. For the reasons stated above, the appeal is allowed in part.
The order of the High Court is set aside. The order dated
14.12.2005 of the learned Sub-Divisional Magistrate is
quashed insofar as offences under sections
420, 467, 471 and 504 IPC. Consequently, the charges
framed under those sections are also quashed. The order dated
14.12.2005 and the charges in so far as the offence
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.108 to 129
under sections 323 and 341 IPC are left undisturbed. The
appeal is allowed in part accordingly.”
43. It has been held in the case of Sheila Sebastian Vs. R. Jawaharraj &
Anr. 2018 7 SCC 581, para 17 to 30, wherein it has been held that :-
19. A close scrutiny of the aforesaid provisions makes it clear
that, Section 463 defines the offence of forgery, while Section
464 substantiates the same by providing an answer as to when
a false document could be said to have been made for the
purpose of committing an offence of forgery under Section
463, IPC. Therefore, we can safely deduce that Section 464
defines one of the ingredients of forgery i.e., making of a
false document. Further, Section 465 provides punishment for
the commission of the offence of forgery. In order to sustain a
conviction under Section 465, first it has to be proved that
forgery was committed under Section 463, implying that
ingredients under Section 464 should also be satisfied.
Therefore unless and untill ingredients under Section 463 are
satisfied a person cannot be convicted under Section 465 by
solely relying on the ingredients of Section 464, as the
offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of IPC.
As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB
310, a case dealing with the possession and making of
fictitious stamp wherein he stated that “to make”, in itself
involves conscious act on the part of the maker. Therefore, an
offence of forgery cannot lie against a person who has not
created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State
of Bihar and Anr., (2009) 8 SCC 751 that-
“a person is said to have made a `false document’, if
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.109 to 129
(i) he made or executed a document claiming to be someone
else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from
a person not in control of his senses.”
22. In Md. Ibrahim (supra), this Court had the occasion to
examine forgery of a document purporting to be a valuable
security (Section 467, IPC) and using of forged document as
genuine (Section 471, IPC). While considering the basic
ingredients of both the offences,this Court observed that to
attract the offence of forgery as defined under Section 463,
IPC depends upon creation of a document as defined
under Section 464, IPC. It is further observed that mere
execution of a sale deed by claiming that property being sold
was executant’s property, did not amount to commission of
offences punishable under Sections 467 and 471, IPC even if
title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that:
“There is a fundamental difference between a person
executing a sale deed claiming that the property conveyed is
his property, and a person executing a sale deed by
impersonating the owner or falsely claiming to be authorised
or empowered by the owner, to execute the deed on owner’s
behalf. When a person executes a document conveying a
property describing it as his, there are two possibilities. The
first is that he bona fide believes that the property actually
belongs to him. The second is that he may be dishonestly or
fraudulently claiming it to be his even though he knows that it
is not his property. But to fall under first category of `false
documents’, it is not sufficient that a document has been made
or executed dishonestly or fraudulently. There is a further
requirement that it should have been made with the intention
of causing it to be believed that such document was made orFIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.110 to 129
executed by, or by the authority of a person, by whom or by
whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property
which is not his, he is not claiming that he is someone else
nor is he claiming that he is authorised by someone else.
Therefore, execution of such document (purporting to convey
some property of which he is not the owner) is not execution
of a false document as defined under Section 464 of the Code.
If what is executed is not a false document, there is no
forgery. If there is no forgery, then neither Section 467 nor
Section 471 of the Code are attracted.”
24. In Mir Nagvi Askari vs. Central Bureau of Investigation,
(2009) 15 SCC 643, this Court, after analysing the facts of
that case, came to observe as follows:
“A person is said to make a false document or record if he
satisfies one of the three conditions as noticed hereinbefore
and provided for under the said section. The first condition
being that the document has been falsified with the intention
of causing it to be believed that such document has been
made by a person, by whom the person falsifying the
document knows that it was not made. Clearly the documents
in question in the present case, even if it be assumed to have
been made dishonestly or fraudulently, had not been made
with the intention of causing it to be believed that they were
made by or under the authority of someone else.
The second criteria of the section deals with a case where a
person without lawful authority alters a document after it has
been made. There has been no allegation of alteration of the
voucher in question after they have been made. Therefore, in
our opinion the second criteria of the said section is also not
applicable to the present case.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.111 to 129
The third and final condition of Section 464 deals with a
document, signed by a person who due to his mental capacity
does not know the contents of the documents which were
made i.e. because of intoxication or unsoundness of mind, etc.
Such is also not the case before us. Indisputably therefore the
accused before us could not have been convicted with the
making of a false document.
25. Keeping in view the strict interpretation of penal statute
i.e., referring to rule of interpretation wherein natural
inferences are preferred, we observe that a charge of forgery
cannot be imposed on a person who is not the maker of the
same. As held in plethora of cases, making of a document is
different than causing it to be made. As Explanation 2 to
Section 464 further clarifies that, for constituting an offence
under Section 464 it is imperative that a false document is
made and the accused person is the maker of the same,
otherwise the accused person is not liable for the offence of
forgery.
26. The definition of “false document” is a part of the
definition of “forgery”. Both must be read together. ‘Forgery’
and ‘Fraud’ are essentially matters of evidence which could
be proved as a fact by direct evidence or by inferences drawn
from proved facts. In the case in hand, there is no finding
recorded by the trial Court that the respondents have made
any false document or part of the document/record to execute
mortgage deed under the guise of that ‘false document’.
Hence, neither respondent no.1 nor respondent no.2 can be
held as makers of the forged documents. It is the imposter
who can be said to have made the false document by
committing forgery. In such an event the trial court as well as
appellate court misguided themselves by convicting the
accused. Therefore, the High Court has rightly acquitted the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.112 to 129
accused based on the settled legal position and we find no
reason to interfere with the same.
27. A reasonable doubt has already been thoroughly
explained in the case of Latesh @ Dadu Baburao Karlekar
Versus The State of Maharashtra, (2018) 3 SCC 66 wherein
‘reasonable doubt’ has been enunciated by this Court as “a
mean between excessive caution and excessive indifference to
a doubt, further it has been elaborated that reasonable doubt
must be a practical one and not an abstract theoretical
hypothesis.” In this case at hand, the imposter has not been
found or investigated into by the concerned officer. Nothing
has been spilled on the relationship between the imposter and
respondent no.1. Law is well settled with regard to the fact
that however strong the suspicion may be, it cannot take the
place of proof. Strong suspicion, coincidence, grave doubt
cannot take the place of proof. Always a duty is cast upon the
Courts to ensure that suspicion does not take place of the
legal proof. In this case, the trial Court as well as the appellate
Court carried away by the fact that accused is the beneficiary
or the executant of the mortgage deed, where the prosecution
miserably failed to prove the first transaction i.e PoA as a
fraudulent and forged transaction. The standard of proof in a
criminal trial is proof beyond reasonable doubt because the
right to personal liberty of a citizen can never be taken away
by the standard of preponderance of probability.
28. This case on hand is a classic example of poor prosecution
and shabby investigation which resulted in the acquittal of the
accused. The Investigating Officer is expected to be diligent
while discharging his duties. He has to be fair, transparent and
his only endeavour should be to find out the truth. The
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.113 to 129
Investigating Officer has not even taken bare minimum care
to find out the whereabouts of the imposter who executed the
PoA. The evidence on record clearly reveals that PoA was not
executed by the complainant and the beneficiary is the
accused, still the accused could not be convicted. The latches
in the lopsided investigation goes to the root of the matter and
fatal to the case of prosecution. If this is the coordination
between the prosecution and the investigating agency, every
criminal case tend to end up in acquittal. In the process, the
common man will lose confidence on the criminal justice
delivery system, which is not a good symptom. It is the duty
of the investigation, prosecution as well as the Courts to
ensure that full and material facts and evidence are brought on
record, so that there is no scope for miscarriage of justice.
29. Although we acknowledge the appellant’s plight who has
suffered due to alleged acts of forgery, but we are not able to
appreciate the appellant’s contentions as a penal statute
cannot be expanded by using implications. Section 464 of the
IPC makes it clear that only the one who makes a false
document can be held liable under the aforesaid provision. It
must be borne in mind that, where there exists no ambiguity,
there lies no scope for interpretation. The contentions of the
appellant are contrary to the provision and contrary to the
settled law. The prosecution could not succeed to prove the
offence of forgery by adducing cogent and reliable evidence.
Apart from that, it is not as though the appellant is remediless.
She has a common law remedy of instituting a suit
challenging the validity and binding nature of the mortgage
deed and it is brought to our notice that already the competent
Civil Court has cancelled the mortgage deed and the appellant
got back the property.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.114 to 129
30. In light of the above discussion, we find no reason to
interfere with the order passed by the High Court, resultantly
appeals stand dismissed being devoid of merits.”\
44. Further, accused persons have also been alleged to have committed
the offence punishable u/sec. 120B IPC. Sec. 120B IPC states as below :-
Punishment of Criminal Conspiracy –
Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.
Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine
or with both.
45. Sec. 120B IPC, criminal conspiracy is an independent offence and is
punishable separately. To establish a charge of criminal conspiracy, the
prosecution must prove an agreement between two or more persons to do
or caused to be done some illegal act or some act which is not illegal by
illegal means, provided that where the agreement is other than one to
commit an offence, the prosecution must prove that some act beside the
agreement was done by one or more of the accused where there is common
object or design in itself to do an unlawful act, the specification of such act
having common design would suffice.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.115 to 129
46. The law pertaining to the offence u/sec. 120B IPC is discussed in my
subsequent paragraphs.
47. In the case of Mir Nagvi Askari Vs. CBI 2009 15 SCC 643, para 60
and 62 and 164.
60. Criminal conspiracy, it must be noted in this regard, is an
independent offence. It is punishable separately. A criminal
conspiracy must be put to action; for so long as a crime is
generated in the mind of the accused, the same does not
become punishable. Thoughts even criminal in character,
often involuntary, are not crimes but when they take a
concrete shape of an agreement to do or caused to be done an
illegal act or an act which is not illegal, by illegal means then
even if nothing further is done, the agreement would give rise
to a criminal conspiracy.
62. The courts, however, while drawing an inference from the
materials brought on record to arrive at a finding as to
whether the charges of the criminal conspiracy have been
proved or not, must always bear in mind that a conspiracy is
hatched in secrecy and it is difficult, if not impossible, to
obtain direct evidence to establish the same. The manner and
circumstances in which the offences have been committed
and the accused persons took part are relevant. For the said
purpose, it is necessary to prove that the propounders had
expressly agreed to it or caused it to be done, and it may also
be proved by adduction of circumstantial evidence and/ or by
necessary implication.
164. A person is said to make a false document or
record if he satisfies one of the three conditions as noticed
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.116 to 129
hereinbefore and provided for under the said section. The first
condition being that the document has been falsified with the
intention of causing it to be believed that such document has
been made by a person, by whom the person falsifying the
document knows that it was not made. Clearly the documents
in question in the present case, even if it be assumed to have
been made dishonestly or fraudulently, had not been made
with the intention of causing it to be believed that they were
made by or under the authority of some one else. The second
criteria of the section deals with a case where a person
without lawful authority alters a document after it has been
made. There has been no allegation of alteration of the
voucher in question after they have been made. Therefore in
our opinion the second criteria of the said section is also not
applicable to the present case. The third and final condition of
Section 464 deals with a document, signed by a person who
due to his mental capacity does not know the contents of the
documents which were made i.e because of intoxication or
unsoundness of mind etc. Such is also not the case before us.
Indisputably therefore the accused before us could not have
been convicted with the making of a false document.”
CONCLUSION
48. In the present matter, the complainant have alleged that sometime in
October, 2007 he had met accused Vivek Bhat through one friend namely
Ravi Saini and thereafter, it was accused Vivek Bhat who had falsely
promised him to organize funds to the tune of Rs.32 Crores which the
complainant was required for his project of construction. Further, that on
the assurances of accused Vivek Bhat he had given Rs.23 Lakhs from his
company M/s A&A Capital to the accused Vivek Bhat by way of two
cheques dated 17.10.2007 for an amount of Rs.22 Lakh and Rs.1 Lakh
respectively as initial charges for organizing the funds and for the same
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.117 to 129
purpose accused Vivek Bhat made false promise to him. Subsequently,
accused did not arrange the funds and entered into an agreement with
complainant dated 17.11.2007 and again promised to arrange for the funds
and make payments to the complainant. Subsequently, the accused again
defaulted in the payment and entered into second agreement which was
between the complainant and the company of the accused. However,
despite several promises it was accused Vivek Bhat who made false
promises to the complainant for which he even issued cheques which was
dishonoured and due to the aforesaid fraudulent act on behalf of the
accused, complainant filed his complaint before EOW on 03.04.2008. As
discussed above the investigation ensued and chargesheet in the present
matter was filed. Charge was framed against accused persons. Accused
Devender Pandey being the partner in the firm/company of the accused
namely Vicky Overseas had also signed on the cheques which was issued
to complainant as partner of accused and being the beneficiary of the
amount was charged for the offence punishable U/s 420/120B IPC.
Subsequently, prosecution lead evidence and examined as many as 20
witnesses in the present matter.
49. Among the 20 witnesses examined by the prosecution. Complainant
was the star witness of the prosecution as the criminal law was set to
motion upon his complaint wherein he had made allegations of cheating,
forgery and criminal conspiracy against both the accused persons. Apart
from him, the remaining witnesses were pertaining to the bank officials
who were working in the bank where the complainant and the accused was
having their bank accounts and apart from them all the remaining witnesses
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.118 to 129
examined by the prosecution were the police officials who had assisted the
IO in carrying out the investigation in the present matter. The initial IO of
the present matter, was Inspt. Sushil Kumar and subsequent IO was Inspt.
Abhinender Singh. After conclusion investigation the aforesaid witnesses
deposed regarding the manner in which the offence was committed.
50. In the present matter, PW-1 Shyam Phool & PW-2 SI Braj Mohan, is
the witness who had got the FIR registered. PW-3 Ramesh Chandra
Vashist, alongwith PW-13 HC Surinder Singh were the witnesses who
accompanied the IO at the time of arrest of accused Vivek Bhat from the
Airport. PW-4 Sh. Saurabh Dhingra was the Assistant Manager with HSBC
and has deposed regarding the bank account maintained by complainant Sh.
Vinay RC Iyer. PW-5 Sh. Gurpreet Singh Kochar was the branch Manager
Kotak Mahindra Bank and deposed regarding the bank account maintained
by complainant with the bank and also regarding the two cheques issued by
the complainant which was credited in the account of the complainant and
the cheques in question were marked 16/A2 & 16/A3 which showed that an
amount of Rs.22 Lakh and Rs.1 Lakh respectively were credited into the
account of Vicky Overseas which was company of both accused persons.
PW-6 Prabhat Jain also deposed regarding the bank account statement of
bank account no. No.007101031604 pertaining to the account of accused
Vivek Bhat and PW-7 Atul Gupta who was Assistant Manager Federal
Bank also disclosed regarding the bank account no.13020200032426
pertaining to C M FABS MAMTA CHOUBEY. PW-8 Arun Oberoi from
HSBC also disclosed regarding bank account no.051664662001 which was
maintained in the name of M/s A&A Capital by the complainant. PW-9 G
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.119 to 129
R Meena who was the Sr. Manager Dena Bank disclosed regarding a/c
no.3646 & 3642 which were Ex.PW9/A and Ex.PW9/B which were
pertaining to Devender Kumar Pandey and Vivek Bhat. PW-10 Sh. Komal
Singh Suman was witness who disclosed that he was the notary public and
the document Ex.PW10/A was signed by him and that he had attested the
photocopy of the cheque. PW-1 ASI Bijender Singh alongwith IO/Chhotu
Singh had taken accused in police custody to his resident and thereafter
seized the document Ex.PW11/A and had also taken the accused to a cyber
cafe where the accused had taken out the prints of certain emails and the
same were seized vide Ex.PW11/B. PW12 Inspt. Sushil Kumar had
endorsed the complaint vide Ex.PW12/A and upon his endorsement the
FIR in the present matter was registered. PW-14 ASI Rajeshwar Singh
Rana received information from Interpol regarding the letter Ex.PW14/A
and Ex.PW14/B. PW-16 was Inspt. Abhinender Singh who had conducted
the investigation in the present matter and had filed the chargesheet after
conclusion of investigation. PW17 Inspt. Shambhu Nath had collected the
documents and sent them to FSL and PW18 Inspt. Shoram exhibited the
FSL report of the present matter that is Ex.A1 and Ex.A2. PW19 was the
witness Manager from Kotak Mahindra Bank and deposed regarding the
bank account statement Ex.PW19/A and Ex.PW5/A. PW20 Tushar Kapoor
also from Kotak Mahindra Bank deposed that the original cheques in
question which were issued by the complainant and credited to the account
of Vicky Overseas were not available but the aforesaid fact of the amount
being credited to the account of accused persons in their company Vicky
Overseas was not disputed by them.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.120 to 129
51. In the present matter, PW15 Complainant deposed regarding his
complaint and during his cross examination categorically stated qua
accused Devender Pandey that he had never personally met him and
accused Devender Pandey had never given him any assurance or promise to
do anything for him and at no point of time, he has ever spoken to accused
Devender Pandey for the present transaction. He admitted that cheque
Ex.PW15/E was never signed by him and that he had never seen the
accused Devender Pandey signing any document or cheques. He further
admitted that he had never entered into any agreement be it oral or written
with accused Devender Pandey and he had not even disclosed the name of
accused Devender Pandey to the police or in his complaint. During cross
examination on behalf of accused Vivek Bhat complainant admitted that he
had filed the present complaint as an proprietor of M/s A & A Capital and
had signed the same as a CEO of M/s A&A Capital and that he is the
authorized signatory of M/s A&A Capital being its proprietor. Complainant
further admitted that M/s A & A Capital was a single entity at that time,
with one bank account and subsequently, the second bank account in the
name of M/s A & A Capital was opened at HSBC Bank Barakhamba Road,
New Delhi upon the asking of accused Vivek Bhat as it was accused Vivek
Bhat who had claimed that the funds will be Swifted from Australia into his
HSBC Bank and he had no document in respect to the aforesaid request as
the same was verbal. Complainant also mentioned during his cross
examination that M/s A & A Capital was into a Real Estate Development
and that he had mentioned the same being the nature of business in the
account opening form. Upon being confronted with account opening form
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.121 to 129
Ex.PW8/A, the nature of business was mentioned as Exporter Commodity.
PW-15 further deposed that he had opened his bank account of M/s A & A
Capital with Kotak Mahindra Bank prior to HSBC Bank in the month of
January, 2007. Complainant further admitted that he had not done any
transaction in the bank of Kotak Mahindra in the year 2007. Upon being
asked the witness deposed that he was not knowing Mr. Hagg and it was
the accused who had approached him and represented himself to be
authorized representative of Interworld Pvt. Ltd. an Australian Finance
Company and offered to provide funding for his Real Estate Development
Project. He admitted that the forged letter shown to him by the accused was
never given by him to the IO. He admitted that Ex.PW15/D1 was the
application form and the same was to be sent for the loan/funding purpose.
He further admitted that he had paid remuneration to accused Vivek Bhat
vide cheque no.000014 dated 17.10.2007 drawn on Kotak Mahindra Bank
for Rs.1 Lakh. He further admitted that his balance in his account on
31.10.2008 was in negative and did not have any funds. PW15 further
admitted that the agreement Ex.PW15/B Vicky Overseas was not a party
and the same was signed between complainant and accused Vivek Bhat and
only because it was accused who had insisted that the cheque amount of
Rs.22 Lakhs be paid in his partnership firm Vicky Overseas, the
complainant had done so. He further admitted that prior to handing over
and taking over of cheques of Rs.22 Lakhs no other document other than
Ex.PW15/B was executed and the same does not mention that any amount
is liable to be payable by Vicky Overseas including any payment of Rs.22
Lakhs.
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.122 to 129
52. In view of the testimony of witnesses and the evidence available on
record it was for the prosecution to prove that the accused persons
conspired to commit the offence of cheating with the complainant and that
the intention to cheat was existing from the beginning to constitute an
offence U/s 420 IPC. In the present matter, the complaint of the
complainant Ex.PW15/F and the first agreement dated 17.10.2007 between
M/s A & A Capital and accused Vivek Bhat was Ex.PW15/B. The
prosecution had relied upon the aforesaid document to show that the
agreement entered into between the parties at the behest of accused Vivek
Bhat was with the intention to cause wrongful loss to the complainant and
wrongful gain to the accused persons. However, the aforesaid document
Ex.PW15/B in original was never brought to the court as none of the
parties stated to have the same in his possession and the complainant also
did not clarify regarding the custody of the aforesaid documents. It has
been alleged that the second agreement dated 24.12.2007 was again entered
between the parties i.e. between Creative Brains Financial consultancy and
M/s A & A Captial on 24.12.2007 and the same bears the signature of
accused Vivek Bhat, complainant Vinay R C Iyar and Ravi Saini and Vinay
Kapoor as witnesses to the same. The aforesaid agreement was Ex.PW10/B
and the same was seized vide document ex.PW11/A. Interestingly even the
original of the aforesaid alleged agreement was never brought on record by
any of the party. Interestingly, some of the documents which was seized
during investigation from the possession of accused were the documents
which were again photocopies and print outs allegedly taken by the accused
from a cyber cafe and print out of the same were seized and believing them
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.123 to 129
to be true copies without any authentication or certificate U/s 65B of Indian
Evidence Act, the same were relied upon by the prosecution. Further, the
documents sent by SI Chhotu Singh to FSL were again the photocopy of
the questioned documents mentioned as Q8 to Q22 and the opinion was
sought on the photocopy documents as the originals of the same was never
procured by the IO during investigation. Further, the laptop seized from the
possession of the accused was also sent to FSL for opinion and it has been
categorically mentioned by PW16 in his testimony that no incriminating
evidence against the accused was found in the laptop seized by the IO from
the possession of the accused. Since, the original agreements allegedly
entered upon by the complainant with the accused also do not show as to
how the accused Vivek Bhat had cheated the complainant as the agreement
itself shows that the same is pertaining to arranging of funds. Moreso, both
the aforesaid agreements i.e. Ex.PW15/B and Ex.PW10/B are also between
two different parties and not between accused in his personal capacity with
the complainant. In both the agreements the name of the parties is different
and not as stated by complainant in his complaint. The entire story of the
prosecution is based upon the photocopy of documents and agreements
between the parties as the same being secondary evidence, cannot be read
into evidence unless the primary evidence is accounted for. All through in
the complaint, the complainant has alleged that it was accused Vivek Bhat
who had promised him to arrange funds of Rs.32 Crores from an Australian
Company/Financer with the condition that the complainant was required
for depositing 16% of the face value of the bank gurantee and then the
balance payment shall be paid to the complainant. However, the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.124 to 129
complainant has no where disclosed whether by any mode he had complied
with the agreement Ex.PW15/B to show his bonafide, which was the pre
condition for the alleged sanction of the amount which the accused had
promised to arrange from Australian Financer. The complainant in his cross
examination has admitted that he had no funds in his account and the same
itself shows that the pre requisite of the agreement Ex.PW15/B was not
fulfilled by him and therefore, the accused Vivek Bhat could not have
arranged any funds for the complainant in the present matter. It is
imperative to see that agreement dated 24.12.2007 Ex.PW10/B shows the
mutual settlement /understanding between the accused and the complainant
regarding the funds of Rs.32 Crores and the mutual understanding does not
show any kind of false representation on the party of the accused. It is not
the case of the prosecution that by entering into two agreements it was the
accused who had misrepresented facts to the complainant in any manner or
that the complainant was made to sign the agreement under false pretext or
under duress. Significantly, agreement dated 17.10.2007 has shown Ravi
Saini, Vinay Kapoor and Rajesh Pundit as witnesses but the prosecution
failed to examine any of the aforesaid witnesses to substantiate the
allegations of the complainant. Even in the agreement dated 24.12.2007,
the witnesses have been mentioned as Vinay Kapoor, and Ravi Saini but
again the prosecution failed to examine the aforesaid witnesses to
substantiate the allegations of the complainant. The IO during his
investigation, did not whisper regarding the investigation or enquiry
conducted from the aforesaid witnesses of the agreement between the
parties and conveniently did not cite them as witnesses. The IO in the
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.125 to 129
present matter, in most casual manner only placed the documents
pertaining to the bank transactions between the parties, photocopy of the
emails and documents which were procured from the accused by taking
him to a cyber cafe and even that without the support of a certificate U/s
65B of Indian Evidence Act and the documents given by the complainant
and the same also being only photocopies. The prosecution in the present
matter, miserably failed to bring home the guilt of the accused persons by
leading any cogent evidence. The entire prosecution story revolve around
the allegations of the complainant which were not supported by any
substantive evidence but merely photocopies of the documents which were
purported to be forged. The prosecution even failed to show as to how the
photocopy documents which were not proved could be categorized to be
same document which was used for the purpose of forgery.
53. Therefore, to constitute an offence U/s 420 IPC, it must be proved
that the complainant parted with his property acting on a representation
which was false to the knowledge of the accused and that the accused had a
dishonest intention from the outset. Where there is no allegation of
complainant, be put to wrongful loss, there cannot be any cheating. Further,
to constitute the offence the mens rea of the accused at the time of making
the inducement is relevant. But if there is no evidence to show that there
was such fraudulent dishonest intention on the part of the accused, the same
cannot be falling under the offence of cheating. Therefore, the prosecution
in the present matter was required to show that the accused had dishonest
intention or fraudulent intention at the time when the complainant had
parted with the property or that the accused by making a representation at
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.126 to 129
or before the time, the complainant had parted with property, deceived the
complainant and thereby induced him to deliver the property and that the
accused knew such representation to be false. Mere allegations of fraud or
cheating in the complaint are not sufficient, to constitute the offence. A
mere failure to keep promise subsequently, cannot be presumed as an act
leading to cheating, further distinction between mere breach of contract and
offence of cheating is a fine one which depends upon facts and therefore, a
mere breach of contract cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is shown right at the
beginning of the transaction. Therefore, the alleged deceit which arise out
of breach of business contract which was a purely a civil transaction, does
not create any criminal liability upon the accused persons. Further, the
accused would have be said to have done a thing dishonestly, if the accused
persons have done the same with intention of causing wrongful gain to
themselves and wrongful loss to the complainant. Wrongful loss is a loss
by unlawful means of property to which a person is entitled by wrongful
gain to an accused would be a gain to him by unlawful means of property
to which the person giving is not legally entitled. However, in the present
matter though the complainant has claimed that due to the acts of accused
Vivek Bhat he had lost his potential business which could have generated
him a greater fortune, but the aforesaid does not show that the act of the
accused in any manner had caused him wrongful loss. Further, the
complainant in the present matter failed to show that the accused Vivek
Bhat had any dishonest intention which constitute mens rea on the basis of
which the dishonest or fraudulent inducement was made to him. Cheating
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.127 to 129
by false representation in respect to a future event must have been proved
by the prosecution by showing that the representation was false to the
knowledge of the accused at the time when it was made. Further, section
468 punishes forgery committed for the purpose of cheating. To bring a
document within the definition of a forged document, it has first to be
shown to be a forged document covered U/s 464 IPC and even mere
proving of making of false document without establishing the intention of
the maker is not sufficient to constitute an offence and unless forgery of a
document is proved it cannot be said that the said forged document is used
as genuine one, meaning thereby to constitute an offence U/s 471 IPC, first
an offence U/s 468 IPC has to be established. Thus, it was required for the
prosecution to proved that the documents had been forged and fabricated
only to be used as genuine to make fraudulent and illegal claim towards the
complainant. However, the complainant in the present matter failed to
substantiate by providing any such original forged or fabricated document
which was used by the accused to make false representation. In the present
matter none of the documents placed on record by the prosecution fall in
the category of forged or fabricated document as the original of the same
were never filed on record including the agreements allegedly entered upon
by the complainant at the behest of the accused. The aforesaid section does
not require that the accused should actually commit the offence of cheating.
What is material is that the intention or purpose of the accused was for
committing forgery, but the ingredients of aforesaid offence have not been
proved by the prosecution. The story of the prosecution creates a doubt in
the mind and the offence of the accused persons have not been proved
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.128 to 129
beyond reasonable doubt. Hence, no offence is made out against the
accused persons U/s 420/468/471/120B IPC. Further, once the accused are
acquitted for the offence u/s 468 IPC they cannot be convicted for the
offences punishable U/s 420 and 471 IPC r/w Section 34 or Section 120B
IPC.
54. In the present facts and circumstances and considering the evidence
available on record and the testimony of witnesses it can be concluded that
the story of the prosecution does not prove any offence against both the
accused persons namely Vivek Bhat and Devender Pandey. Consequently,
both accused persons stands acquitted in the present matter for the offences
punishable U/s 420/468/471/120B IPC.
55.File be consigned to record room after due compliance.
Digitally signed
Announced in open Court SHEETAL
by SHEETAL
CHAUDHARY
CHAUDHARY Date:
Today.
2025.07.19
16:31:31 +0530
[Sheetal Chaudhary Pradhan]
ASJ-02, South-East/Saket/Delhi
19.07.2025
FIR No.134/2008 PS EOW State Vs. Vivek Bhat & Anr. Page No.129 to 129