Delhi District Court
(1) Ca No.74/17 vs Central Bureau Of Investigation on 24 November, 2017
IN THE COURT OF SHRI RAKESH TEWARI,
DISTRICT & SESSIONS JUDGE (EAST),
KARKARDOOMA COURTS: DELHI.
(1) CA No.74/17
Sandeep Sahni
S/o Shri Charanjeet Lal Sahni
R/o C525, Defence Colony,
New Delhi24. .......Appellant
Versus
Central Bureau of Investigation
Through its Director
CBI Head Qaurters,
5B, CGO Complex,
Lodhi Road, New Delhi. .......Respondent
(2) CA No.80/17
Vinod Kumar Gupta
S/o Late Sh. Nanak Chand Gupta
R/o C46/Z3, Dilshad Garden,
Delhi110095. .......Appellant
Versus
Central Bureau of Investigation
CGO Complex, Lodhi Road,
New Delhi. .......Respondent
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 1 of 80
(3) CA No.81/17
Kulbhushan Raj Duggal
S/o Sh. Sadhu Ram
R/o 722, Skylark Apartments,
Plot No.35, Sector6, Dwarka,
New Delhi. .......Appellant
Versus
State through CBI .......Respondent
AND
(4) CA No.84/17
R. C. Mishra
S/o Late Sh. Ram Abhilakh Mishra
R/o C343, New Ashok Nagar,
Delhi110096. .......Appellant
Versus
Central Bureau of Investigation
Through its Standing Counsel .......Respondent
Date of Insitution :
CA No.74/17
05.05.2017 CNR No.DLET 01-005460-2017
Sandeep Sahni Vs. CBI
CA No. 80/17 17.05.2017
CNR No.DLET 01-006083-2017
Vinod Kumar Gupta Vs. CBI
CA No.81/17
Kulbhushan Raj Duggal Vs. 18.05.2017 CNR No.DLET 01-006139-2017
CBI
CA No.84/17
19.05.2017 CNR No.DLET 01-006170-2017
R. C. Mishra Vs. CBI
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 2 of 80
Date of order reserved : 31.10.2017
Date of Decision : 24.11.2017
JUDGMENT
1. By this common order, I shall dispose of the four appeals bearing no.74/17, 80/17, 81/17 and 84/17, which have arisen out of the impugned judgment dated 05.04.17 and conviction order dated 22.04.17, passed by the Chief Metropolitan Magistrate (East) in RC No.10/2005/CBI/EOWI, titled as "CBI Vs. K. R. Duggal etc.", whereby, the appellant Kulbushan Raj Duggal, Vinod Kumar Gupta, Sandeep Sahni, Mahender Kumar Magon (since deceased) and Ram Chander Mishra have been convicted for the offence U/s 120B r/w Sec. 420,468 & 471 IPC and accused Kulbhushan Raj Duggal, Vinod Kumar Gupta and Ram Chander Mishra have been convicted U/s 468 & 471 IPC and accused Kulbhushan Raj Duggal has also been convicted U/s 420 IPC and 420 r/w 511 IPC.
2. The facts giving rise to the present appeals, as transpired from the chargesheet are that on the direction of the Hon'ble High Court of Delhi dated 02.08.2005 in Civil Writ Petition No.10066/2004, PE No.EOUI2005A0002 was registered on 08.08.2005 against the unknown office bearers of Defence Accounts Employees CGHS Ltd., unknown officials of Registrar CA No.74/17, 80/17, 81/17 & 84/17 Page No. 3 of 80 of Cooperative Societies, New Delhi and other unknown persons.
3. It was alleged in the FIR that accused Kulbhushan Raj Duggal (A1), the then Secretary of Defence Accounts Employees Cooperative Group Housing Society Ltd., in connivance with unknown officials of Registrar of Cooperative Societies (RCS) got revived the Defence Accounts Employees Cooperative Group Housing Society on 24.10.2000, even though it had earlier been wound up on 17.06.1997. Thereafter, accused Vinod Kumar Gupta (A2) in connivance with accused K. R. Duggal (A1), Sandeep Sahni (A3) and unknown officials of the RCS office got the fake list of 90 members of the society approved from Sh. N. Diwakar, the then RCS on 25.07.2003 on the basis of forged affidavits. Accused Sandeep Sahni also got some of the employees and relatives inducted in the Management Committee of the society without their knowledge.
4. It was also alleged that the affidavits in respect of Sh. Harish Chander Singh Rawat (Membership No.181) and Smt. Kamini Vig (M. No.238) were found forged and the affidavits of Sh. S. Jagannath Rao (M. No.13), Sh. M. L. Bali (M. No.153), Smt. Nirmala Devi (M. No.216) and Sh. Omkar Singh (M. No.127) were found to be false. The aforesaid facts disclosed commission of offence U/s 120B r/w 420, 468,471 IPC and 13(2) r/w 13(1) (d) of PC Act, 1988 and substantive offences thereof and therefore, CA No.74/17, 80/17, 81/17 & 84/17 Page No. 4 of 80 the instant case was registered against the above accused persons.
5. Investigation in respect of the above allegations was conducted which revealed that Defence Accounts Employees CGHS Ltd., was registered with the office of RCS, New Delhi on 26.12.1983 vide Regn. No.1150(GH). At the time of its registration, there were total 90 promoters members who were mostly the employees of Defence Accounts Department and the address of the Society was also the office of Comptroller General of Defence Account, West Block5, R. K. Puram, New Delhi. At the time of its registration, Sh. V. K. Vishwanathan R/o Q. No.205, Sec.5, R. K. Puram, was the President, Sh. V. K. Krishna Mourthi R/o 5/11793, Sat Nagar, Karol Bagh was the Vice President, Sh. K. Unnikrishnan R/o 62/2, Pushpa Vihar, Saket was the Secretary and Sh. G. L. Kermani R/o G1/708, Sarojini Nagar was the Treasurer and Sh. P. J. Thomas R/o B6/44/1, Safdarjung Enclave, New Delhi, Sh. J. K. Gupta R/o B102, Moti BaghI, New Delhi and accused Kulbhushan Raj Duggal (A1) were the Executive Committee Members of the Society. Accused Prem Sagar Mehta (A6) was also one of the promoter members of the Society.
6. Investigation further revealed that the Society had failed to get the list of members approved from the RCS office and election was pending since 1995 and audit was pending since the year 1991 CA No.74/17, 80/17, 81/17 & 84/17 Page No. 5 of 80 and, therefore, show cause notice (SCN) U/s 63(2) of the DCS Act was issued to the Society on 06.05.1997 by Sh. Mukesh Prashad, the then Deputy RCS and the Society was directed to submit its reply within 15 days of the issue of the letter. The reply to the said SCN was filed by Sh. B. B. Khanna, the then Secretary of the Society but the same did not reach the office of the Registrar Co op Societies in time and therefore, winding up order U/s 63(2) of DCS Act was passed against the Society on 17.06.1997 by Sh. Mukesh Prashad, the then Deputy RCS. Sh. B. B. Khanna again submitted his representation dated 26.06.1997 in the RCS office for cancellation of the said winding up order but the RCS office did not cancel the winding up order and the Society stood wound up.
7. Investigation further revealed that in the last quarter of the year 1999, accused K. R. Duttal (A1), Mohinder Kumar Magon (A4) (since deceased), P. S. Mehta (A6) and Sh. B. B. Khanna entered into a criminal conspiracy for getting the Society revived from the RCS office on the basis of fake documents/concealment of facts and in furtherance of the said criminal conspiracy, accused K. R. Duggal, P. S. Mehta and B. B. Khanna handed over the documents of the Society which were in the custody of accused K. R. Duggal to accused Mohinder Kumar Magon for preparing fake documents for revival of the Society. In view of the aforesaid CA No.74/17, 80/17, 81/17 & 84/17 Page No. 6 of 80 conspiracy, accused K. R. Duggal, P. S. Mehta and B. B. Khanna enrolled 56 new members each and rest of the members so required for the revival were enrolled by accused Mohinder Kumar Magon (A4), who is a builder by profession and Director of M/s Swati Housing Construction Company Pvt. Ltd., 82, Joshi Road, Karol Bagh, New Delhi, out of which, thirty five members were found to be forged.
8. Investigation further revealed that in furtherance of the aforesaid conspiracy, accused K. R. Duggal enrolled his sons Sh. Puneet Duggal (M. No.140) and Sh. Amit Duggal (M. No.150) and three bogus members ie Kanwaljeet Kaur (M. No.147), Sh. Sudhir Kumar (M. No.148) and Sh. Umesh Mehta (M. No.149) by forging their signatures on enrollment applications. Similarly, accused P. S. Mehta enrolled his son Vishal Mehta ( M.No.141) and three bogus members namely Sh. S. K. Swami (M.No.151), M. L. Bali (M.No.153) and P. P. Singh ( M.No.154) by forging their signatures on enrollment applications. Similarly, B. B. Khanna enrolled his son Hitesh Khanna (M. NO.142), his brother Sh. S. K. Khanna (M. No.143) and Sh. Sudesh Khanna (M. No.146), his wife Smt. Nirmala (M. No.144) and two bogus members by the names of Sh. Vinay Bajaj (M. No.156) and Sat Pal Sharma (M. No.145) by forging their signatures on enrollment applications.
9. Investigation further revealed that accused K. R. Duggal (A CA No.74/17, 80/17, 81/17 & 84/17 Page No. 7 of 80
1) collected all the above forms from accused P. S. Mehta and B. B. Khanna and handed over all the records of the Society including the above applications to accused R. C. Mishra, who prepared forged documents at the instance of accused Mohinder Kumar for the revival of the Society. Accused R. C. Mishra was an employee of accused Mahinder Kumar Magon. Accused R. C. Mishra and accused Mohinder Kumar Magon also enrolled many fake members including R. S. Pillay (M. No.155), Ashok Kumar (M.No.158), Kalka Prasad (M. No.159), Ashwani Kumar Gupta (M. No.160), Manju Negi (M. No.161), Mukram Ali (M.No.162), Rao Rashid (M. No.164), Mohd. Zafir Khan (M.No.167), Ram Yash Mishra (M. NO.168), Devender Singh (M. No.169), Farid Hussain (M. No.171), Om Prakash (M. No.172), Jai Bhagwan Rohi (M. No.173), Chander Bhushan Prasad (M. No.175), Avdesh Kumar Singh (M. No.177), Ms. Renu Sharma (M. No.180), Kuldeep Kumar Singh (M. NO.184), Tribhuvan (M. No.185), Sudesh Kumar (186), B. K. Puri (M. No.188), Komal Ram (M. No.191), R. D. Sharma M. No.192), Bali Ram Bharti (M. No.193), Raj Kumar (M. No.197), Smt. Preetma Devi (M. No.195), S. R. Puri (M. No.196), Rakesh Kumar (M. No.197), Raj Kumar Saluja (M. No.198), Chander Prakash (M. No.199), R. K. Sharma (M. No.200), Hari Shanker (M. No.201), Subhash Chaddha (M. No.202), Rajesh Dimri (M. No.203), Kanahiya Lal (M. No.204), CA No.74/17, 80/17, 81/17 & 84/17 Page No. 8 of 80 Omkar Sharma (M. No.205), Smt. Kiran (M. No.206). Accused R. C. Mishra also forged the signatures of the above members on their enrollment applications and Membership Register of the Society. He also wrote the minutes of the fake proceedings of the Managing Committee of the Society dated 29.12.95, 29.03.96, 14.02.97 and 13.03.98 in which the enrollments of the above fake members were falsely shown to have been approved by the Society. Those fake proceedings were also signed by accused P. S. Mehta and K. R. Duggal as office bearers of the Society.
10. Investigation further revealed that in the proceeding of the Society dated 20.08.2000, the resignation letters of the members namely Tribhuvan, Sudesh Kumar, Devki Nandan, B. K. Puri, Nirmala Devi, Jagdish Lal, Komal Ram, R. D. Sharma, Bali Ram Bharti, Raj Kumar, Smt. Preetma Devi, S. R. Puri, Rakesh Kumar, Raj Kumar Saluja, Chander Prakash, R. K. Sharma, Hari Shanker, Subhash Chaddha, Rajesh Dimri, Kanhaiya Lal, Omkar Sharma, Smt. Kiran were falsely shown to have been accepted by the Society. On the said fake proceeding, accused K. R. Duggal signed as Secretary of the Society and accused R. C. Mishra forged the signatures of other fake members of the management committee. Accused R. C. Mishra also forged the signatures of the above members on their resignation applications.
11. Investigation further revealed that the accused R. C. Mishra CA No.74/17, 80/17, 81/17 & 84/17 Page No. 9 of 80 also wrote fake proceedings dated 05.11.2000 in which all the above fake members were again shown to have been reenrolled as members of the Society. The forgery of the signatures of the above members on their reenrollment applications were again done by accused R. C. Mishra.
12. Investigation further revealed that accused R. C. Mishra also wrote fake proceedings of Annual General Body Meeting dated 16.01.2000 in which 47 members were falsely shown to be present. In this meeting, resolution for revival of the Society was also falsely shown to have been passed and election of the new managing committee was also shown to have taken place. In this proceeding, fake members namely R. S. Pillay was shown to have been elected as President and the other fake members namely Om Prakash, Manju Negi and Kanwaljeet Kaur were shown to have been elected as Executive Committee Members of the Society. B. B. Khanna was falsely shown to have been elected as Vice President of the Society. Accused K. R. Duggal and accused P. S. Mehta were also shown to have been elected Executive Committee members. In this proceeding, accused K. R. Duggal, P. S. Mehta and R. C. Mishra forged the signatures of various members.
13. Investigation further revealed that K. R. Duggal submitted an application dated 06.03.2000 in the RCS office for change of address of the Society from the office of CGDA, West Block5, R. CA No.74/17, 80/17, 81/17 & 84/17 Page No. 10 of 80 K. Puram to 846A, Joshi Road, Karol Bagh. This application was prepared in the computer of accused Mohinder Kumar Magon in his office at 82, Joshi Road, Karol Bagh. Thereafter, accused K. R. Duggal again submitted his application dated 29.03.2000 for revival of the Society and alongwith the application, he also submitted the photocopy of the fake AGM and election proceedings dated 16.01.2000 in which the resolution for the revival of the Society was shown to have been passed and the election of the new Management Committee of the Society was shown to have been held. Thereafter, accused K. R. Duggal and Sh. B. B. Khanna also submitted a joint affidavit dated 24.07.2000 in the office of RCS in the capacity of Secretary and Vice President of the Society. This affidavit was also prepared in the office of accused Mohinder Kumar Magon. Accused K. R. Duggal personally appeared before Sh. R. K. Srivastava, the then RCS on 08.08.2000 and pursued the matter of revival before him. Thereafter, in compliance of the directions of the RCS for filing separate affidavits of the President and Secretary of the Society, the forged affidavit of Sh. R. S. Pillay who had been falsely made the President of the Society was submitted in the RCS office vide letter dated 17.08.2000. Again vide letter dated 18.08.2000, the list of members of the Society as on 31.03.2000 as per Rule 37 of the DCS Rules were also submitted in the RCS office. Both the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 11 of 80 letters dated 17.08.2000 and 18.08.2000 were also prepared in the office of accused Mohinder Kumar Magon. Finally, on the basis of the above documents, order for revival of the Society dated 24.10.2000 was passed by Sh. R. K. Srivastava, the then RCS.
14. During investigation, search of the office of accused Mohinder Kumar Magon, Director of M/s Swati Housing Construction Co. Pvt. Ltd. at 82, Joshi Road, Karol Bagh, was conducted and from there, three computer harddiscs were seized and the data/documents available in them were scanned and they were also got examined by the Computer Forensic Expert of CFSL, New Delhi and the relevant documents pertaining to the case were retrieved from them. From the said harddiscs, the application for change of address of the Society, letter dated 17.08.2000, vide which the forged affidavit of Sh. R. S. Pillay were forwarded to the RCS office, letter dated 18.08.2000 vide which the fake list of the members of Defence Accounts Employees Co operative Group Housing Society Ltd. as on 31.03.2000 was forwarded to the RCS office etc., were retrieved. From the said harddiscs, the list of another Cooperative Group Housing Society namely Ram Jas Cooperative Group Housing Society Ltd. was also recovered and in that list also, the names of Sh. Tribhuvan, Devki Nandan, Komal Ram, Jagdish Ram, Rakesh Kumar, Raj Kumar, Chander Prakash, R. K. Sharma, Nirmala Devi, Sita Ram CA No.74/17, 80/17, 81/17 & 84/17 Page No. 12 of 80 Puri, Jagdish Lal, Pritama Devi, Bali Ram Bharti, Raj Kumar Saluja, Ram Dhan Sharma, Sudesh Kumar are figuring. Thus, the names of the above mentioned fake members were taken from the list of Ram Jas Cooperative Group Housing Society Ltd. and pasted in the list of Defence Accounts Employees Cooperative Group Housing Society Ltd. by accused R. C. Mishra and Mohinder Kumar Magon for the purpose of illegal revival of the Society.
15. Investigation further revealed that sometimes in the year 2002, accused Mohinder Kumar Magon returned all the records of the Society to accused K. R. Duggal. Thereafter, in January February 2003, accused K. R. Duggal further entered into a criminal conspiracy with accused Vinod Kumar Gupta and in furtherance of the said conspiracy, he handed over all the records of the Society to accused Vinod Kumar Gupta who was not even a member of the Society. Accused Vinod Kumar Gupta further sold the Society to accused Sandeep Sahni for Rs.16.2 Lacs. Further, on the directions of accused Sandeep Sahni, accused Vinod Kumar Gupta prepared fake minutes of the MC meeting proceeding dated 13.06.2001 and 10.07.2001 in which ten members including Sh. Anil Vohra, the brother in law of accused Sandeep Sahni, S. P. Gupta, Khem Chand, Sunita Malhotra, Kundan Singh, all employees of accused Sandeep Sahni were enrolled as members of CA No.74/17, 80/17, 81/17 & 84/17 Page No. 13 of 80 the Society in place of ten members who were falsely shown to have resigned. Accused Vinod Kumar Gupta also forged the signatures of the members of the Management Committee members of the Society. On the direction of accused Sandeep Sahni, accused Vinod Kumar Gupta also wrote fake proceedings of General Body Meeting dated 31.10.2002 and forged signatures of many members in that. In the said proceeding, Sh. S. P. Gupta, Anil Vohra, Khem Chand, Smt. Sunita Malhotra etc., all relatives and employees of accused Sandeep Sahni, were falsely shown to have been elected for the post of President, Vice President and MC Members respectively of the Society.
16. Accused Vinod Kumar Gupta also prepared fake list of members of the Society to be approved from the RCS office, fake list of resigned members, fake list of enrolled members and forged signatures of S. P. Gupta, Anil Vohra and Khem Chand who were shown to be office bearers of the Society on all the above lists. He also forged the signatures of the above persons on the Balance Sheet, Income and Expenditure Statements and other documents pertaining to the accounts of the Society for the year 20022003 and obtained the audit report of the Society from Sh. P. K. Thirwani, auditor of the RCS office. Accused Vinod Kumar Gupta also forged the signatures of many members on their affidavits and submitted all the above forged documents in the RCS office along CA No.74/17, 80/17, 81/17 & 84/17 Page No. 14 of 80 with the application dated 04.07.2003 for approval of the list of members. The signatures of Sh. Khem Chand, Secretary was also forged by accused Vinod Kumar Gupta on the said application. Along with the said application, he also submitted the photocopies of forged enrollment applications and resignation applications of fake members. Accused V. K. Gupta also forged the signatures of Sh. Khem Chand, as Secretary of the Society on the affidavit dated 18.07.2003 and the signatures of Khem Chand, Secretary and Sh. Anil Vohra as President of the Society on the undertaking dated 18.07.2003 and submitted both these documents also in the RCS office. On the directions of accused Sandeep Sahni, accused Vinod Kumar Gupta also changed the address of the Society to 34/13, East Patel nagar, New Delhi which is the residential address of accused Sandeep Sahni. Accused Vinod Kumar Gupta also appeared in the RCS office alongwith the forged documents of the Society for verification and finally got the list of 90 members approved from the RCS office on 27.07.2003, on the basis of the above forged/fake documents.
17. Investigation further revealed that after getting the Society revived from the RCS office, accused Vinod Kumar Gupta handed over all the documents of the Society to accused Sandeep Sahni in the presence of Sh. Ashwani Vig, property dealer who was witness to the deal between them, for total consideration of Rs.16.2 Lacs.
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 15 of 80 After taking over the Society, accused Sandeep Sahni made Sh. Praveen and Sh. P. S. Gupta, the Secretary and Treasurer respectively of the Society for enrolling new members and also further running the Society.
18. During the investigation, the opinion of GEQD Hyderabad was also obtained and they vide their opinion no.CH274/2006 dated 18.09.2006 confirmed that the forgery of the signatures of the members on the proceeding registers, enrollment applications, resignation letters and affidavits etc. were done by accused R. C. Mishra, Vinod Kumar Gupta, K. R. Duggal and P. S. Mehta.
19. Thus, it is established that accused K. R. Duggal, P. S. Mehta, Mohinder Kumar Magon, R. C. Mishra and B. B. Khanna entered into a criminal conspiracy in the year 19992000 and got the Defence Accounts Employees Cooperative Group Housing Society Ltd. revived from the RCS office on the basis of various documents forged by accused K. R. Duggal, R. C. Mishra and P. S. Mehta. Further, in the year 2003, accused K. R. Duggal, Vinod Kumar Gupta and Sandeep Sahni entered into another criminal conspiracy and got the fake list of the Society approved from the RCS office on the basis of fake/forged documents prepared by accused Vinod Kumar Gupta. Accused K. R. Duggal and accused V. K. Gupta submitted fake documents ie copies of fake proceedings, enrollment applications, resignation applications, CA No.74/17, 80/17, 81/17 & 84/17 Page No. 16 of 80 affidavits of members etc. in the office of RCS for the purpose of revival of the Society and approval of fake list of members with an intention to get land allotted to the Society by DDA at concessional rates. Sh. Bharat Bhushan Khanna disclosed true facts of case within his knowledge during the investigation and therefore, his statement U/s 164 Cr.PC was recorded by Sh. Chandra Shekhar, MM, Patiala House and Smt. I. K. Kochar, Spl. Judge, Patiala House Courts was also pleased to tender pardon to him U/s 306 of Cr.PC.
20. I have heard the respective Counsel for the appellants as well as Public Prosecutor for the CBI. I have also gone through the written submissions filed on behalf of all the appellants and have also perused the record of the trial court.
21. After reading the impugned judgment in its totality, the only impression comes to the judicial mind is that the Ld. Trial Court has misdirected himself on three accounts. First is that he has not discussed the cross examination of any of the 57 witnesses. Needless to repeat the law that the Indian Evidence Act provides three stages of recording of deposition of a witness which are examination in chief, cross examination and reexamination, if any, but once it is done, the deposition of a witness is to be read as a whole. No part can be placed at upper level than the other and thereafter, the evidentiary value of the deposition is to be assessed.
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 17 of 80
22. Second is that the Ld. Trial Court has adopted a policy of pick & choose from the deposition of witnesses to his suitability and ignored the rest of the deposition e.g. he has mentioned that the appellant K. R. Duggal went to the officials of the office of Registrar of Cooperative Society for allegedly submitting the documents for revival of the Society in order to prove the offence of conspiracy and other offences against him, but what those officials have further said in their deposition, has been ignored by the Ld. Trial Court, who infact, have given a clean chit to the respective appellants in their further deposition as discussed below in detail.
23. Third misdirection is that Ld. Trial Court has misinterpreted the judgments of the Hon'ble Superior Courts relied upon by the accused and thus, came to a wrong conclusion of the law as established.
24. In view of the said position, heavy burden has been cast upon this Court to scrutinize the deposition of witnesses.
25. PW1 Sh. Rajesh Kumar Srivastava, who was posted as Registrar, Cooperative Society, Delhi between 1999 to February 2001 at the relevant time, has deposed that the said Housing Society was registered on 26.12.1983 and he proved list of members of the said Society as Ex.PW1/B5/2 and he also proved the byelaws of the Society as Ex.PW1/B5/3 although, these CA No.74/17, 80/17, 81/17 & 84/17 Page No. 18 of 80 documents have been objected on behalf of the appellants as regards mode of proof. He also proved the winding up order of the Society dated 12.06.1997 as Ex.PW1/B5/5 and he also proved the application for change of address of Society as Ex.PW1/B5/6 and he further deposed that in view of the said application, the Insp. S. D. Sharma was directed to visit the premises ie 846A, Joshi Road, Karol Bagh, Delhi to verify the shifting and he also proved the application for revival of the Society alongwith set of documents as Ex.PW1/B5/7, Ex.PW1/B5/8 and Ex.PW1/B5/9. The said documents were marked to Deputy Registrar on 25.04.2000 by him and thereafter, the papers went downwards for examination to the concerned Assistant Registrar. He further deposed that a proposal was put by the dealing Assistant on 17.05.2000 to Assistant Registrar and the Society requested for revival in order to fulfill their object to obtain a flat on reasonable rates through Cooperative Society and that it was proposed by the dealing Assistant that the request of the revival may be considered U/s 63 (3) of the Delhi Cooperative Society Act, 1972 (in short The DCS Act) as the Registrar was competent to cancel an order for winding up of a Cooperative Society at any time and he deposed that it was on the recommendation of Deputy Registrar, the President and Secretary of said Society were asked to appear before him on 24.07.2000 and that Sh. K. R. Duggal, Secretary of CA No.74/17, 80/17, 81/17 & 84/17 Page No. 19 of 80 the Society and Sh. B. P. Mahaur, Assistant Registrar, as representative of the department appeared before him in the Court on 08.08.2000 and it was directed that separate affidavits on behalf of President and Secretary to be filed and to file the audit documents, in pursuance of which, the Society submitted letter dated 20.07.2000 which were dealt by him and thereafter, Assistant Registrar (CND) and Assistant Registrar (Audit) submitted the report of the compliance of audit objections and as such, approval of action proposed earlier may be approved and accordingly, a detailed speaking order was passed by him on 24.10.2000 for cancelling the winding up order dated 17.06.1997 by exercising the powers U/s 63 (3) of DCS Act and the Assistant Registrar concerned was directed to verify all the records of the Society and submit a verification report and also to get uptodate audit conducted. (emphasis supplied). He further deposed that the Zonal Assistant Registrar as per the existing practice and orders, verified the records submitted by the Society.
26. In his cross examination on behalf of the appellants, PW1 could not say if the winding up order can remain in existence for three years. He was confronted with his previous statement U/s 161 Cr.PC wherein it is mentioned "from the records, it reveal that although, it (the Society) was liquidated during June 1997 and the orders were obtained for taking action U/s 66 of DCS Act, no CA No.74/17, 80/17, 81/17 & 84/17 Page No. 20 of 80 action was taken for appointment of Liquidator, therefore, rendering liquidation proceedings void as more than three years had passed". He admitted that he had not made any personal verification of the record submitted before him as it was not the legal requirement. He admitted that he was accused in about 30 cases at the instance of CBI and that he had played similar role in other cases as in the present case. (emphasis supplied). He further admitted that prior to the passing any order in the present case, he had got the record properly verified and scrutinized from the Zonal staff. He admitted that the Society's inspection report was available on record with regard to the inspection carried by Sh. S. D. Sharma, Area Inspector dated 24.04.2000. He admitted that order of revival passed in the present case on the basis of proper verification of records, proper scrutiny of records and with due application of mind, in a justified manner.
27. The Ld. Trial Court in the attached table with the impugned judgment picked up a circumstance that the appellant K. R. Duggal, Secretary of the Society appeared before the RCS officials, but the said deposition of PW1 depicts in what circumstances, the appellant K. R. Duggal appeared before him and for what purpose and what he was directed to do. The said cross examination of PW1 infact gives a clean chit to all the appellants for the revival of the Society in as much as it was PW1 CA No.74/17, 80/17, 81/17 & 84/17 Page No. 21 of 80 who, on the basis of the various reports of his subordinates as mentioned above, passed the order cancelling the winding up of the Society and its revival.
28. PW2 Sh. Virender Kumar Bansal, who was the concerned Assistant Registrar from January 2004 to May 2008, deposed regarding the procedure for registration of a Cooperative Society under the said Act and he further deposed that the Group Housing Societies were created for the procurement of land under the scheme of DDA and no fresh registration of the Group Housing Society was made after 1985 and the seniority of the Societies already registered till 1985, continued for the further allotment also. He specifically deposed that all the existing Group Housing Societies, which were registered upto 1985, had not been allotted land. (emphasis supplied). He further deposed that the Managing Committee of the Society had the power to accept the resignation of existing member and to enroll new member in his place without any permission required from the RCS for this purpose as per the Directives issued by the RCS (the Registrar Cooperative Society) from time to time. He deposed that before sending the list of members, to the DDA for allotment of land, verification of the list of members is done first at the Society level and thereafter, the said list is verified in the office of RCS by checking whether the documents are proper or not. He deposed that there is no limit to CA No.74/17, 80/17, 81/17 & 84/17 Page No. 22 of 80 the number of members to be enrolled in a particular Society but once it is approved by the RCS, it becomes known as Freeze List and thereafter, the members cannot be added and the verified Freeze List is directly forwarded by the RCS to DDA for consideration of allotment. He further deposed that audit of the records of the Society including books of account is conducted every year at the instance of RCS within six months of the closing of accounts and that the actual audit is done by an Auditor from the panel of Auditors maintained by RCS. He further deposed that though, a Society can be revived and its winding up order can be cancelled, but there is no procedure governing for the same in the DCS Act/Rules. In his cross examination on behalf of the appellants, he admitted that the Directives as referred by him above, have not been shown to him in the Court and are not on record. He further admitted that definition of the Freeze List as given by him above, is not mentioned in any Act/Rule/ByLaw and he volunteered that it is a matter of practice.
29. Similarly, PW3 Bhudev Prasad Mathur was the concerned Assistant Registrar who deposed that application for change of address dated 06.03.20009 Ex.PW1/B5/6 signed by appellant K. R. Duggal was received in his office during March 2000 and the said application was put up before him by Assistant Registrar (South) vide his note dated 07.04.2000 transferring the matter to CA No.74/17, 80/17, 81/17 & 84/17 Page No. 23 of 80 him and thereafter, he put up a note dated 26.04.2000 directing Sh. S. D. Sharma, the Inspector to visit the other premises no.846A, Joshi Road, Karol Bagh, Delhi and confirm the shifting and the said Inspector submitted his report dated 27.04.2000 in the prescribed proforma Ex.PW1/B5/PW3/A wherein it was reported that the Society was found operating from the other premises and the last election was reported to have held on 16.01.2000. He further deposed that an application dated 29.03.2000 Ex.PW1/B 5/9 was received in the said office dated 11.04.2000 on 25.04.2000 and the same was marked downwards and that the dealing Assistant Sh. A. K. Handa have put up a detailed note mentioning that all the records of the Society have been checked by the Area Inspector Sh. S. D. Sharma as per his report dated 26.04.2000. (emphasis supplied) and said note was forwarded by him to Deputy Registrar Sh. P. D. Sharma who again put up his note and recommended and in view of the verification report and due to certain other recommendations, the request for revival may be considered by the competent authority who was the RCS and the file was marked to him and the RCS Sh. R. K. Srivastava directed the President/Secretary of the Society to appear before him on 24.07.2000 and accordingly, he (the witness) alongwith the appellant K. R. Duggal, Secretary of the Society appeared before the said RCS on 08.08.2000 and ultimately, after getting all the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 24 of 80 record completed, the RCS Sh. R. K. Srivastava, vide note dated 24.10.2000 revived the Society and in his cross examination on behalf of the appellants, PW3 admitted that he submitted his report after scrutinization of the record which was in order. He admitted that the appellant K. R. Duggal had never met him before or after 08.08.2000 and he could not say that the person who appeared in his office on behalf of the Society, was appellant K. R. Duggal.
30. PW4 Sh. Prem Dutt Sharma was the UDC in the office of RCS and he dealt with the file of the present Society and that affidavit in original of all the 90 members was placed in separate file which is Ex.PW1/B3 (D7) and list of resigned members is Ex.PW1/B4 (D8) and list of remaining enrolled members is reflected as Ex.PW1/B4 (D8) at page no.74/C to 76/C. He deposed that the Certificate of 90 members was given which are appearing at page no. 54/C of file Ex.PW1/B4 (D8) and thereafter, he deposed regarding other documents and he compared the original record with the photocopies submitted by the Society and the original record were returned to appellant Vinod Kumar Gupta and thereafter, he put the list of 90 members to be approved by the competent authority and ultimately, Sh. Narayan Diwakar, the RCS has given his approval and a copy of the list was handed over to the appellant Vinod Kumar Gupta. In CA No.74/17, 80/17, 81/17 & 84/17 Page No. 25 of 80 his cross examination on behalf of appellants, he admitted that as per record, there were 90 promoter members in the Society and that the list of promoter members is sent to the DDA after the registration of the Society. He replied that since, he was not aware of the procedure during the year 1983, he could not tell as to whether in the present case, any such list was sent to DDA at the time of registration of Society in question. He was not aware of the fact as to why the approved list is sent to DDA and he volunteered that concerned Zonal Officer sends the list approved by the competent authority to AR (Policy) for further transmission. (emphasis supplied). He admitted that he had thoroughly checked and compared the records with the original and that he had recommended for the approval of the list at the request of appellant Vinod Kumar Gupta and he had done the same as per rules and procedures. He admitted that the record which he had verified included affidavits, resignations, proceedings, elections, audit reports etc. He admitted that he did not find out any discrepancy in the record produced by the appellant Vinod Kumar Gupta and he put up for approval of the list. He admitted that he is a witness in other cases also.
31. PW5 Sh. Paras Nath was the Assistant Director, DDA, who in his cross examination on behalf of appellants, has admitted that no land has been allotted to the present Society.
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 26 of 80
32. PW24 Sh. Prahlad Kumar was the Senior Auditor of the Audit Branch in the office of RCS who conducted the audit of the present Society and he submitted his report containing in the file Ex.PW1/B4 (D8) from pages no.21/C to 38/C and original set of documents for the period 20022003 at page no.53/C to 73/C in file Ex.PW9/F (D22) and he was declared hostile and was cross examined on behalf of the CBI, wherein, he admitted that no office bearer of the present Society had appeared before him or signed the audit report in his presence. He denied the suggestion that he had told the CBI that all the records of present Society were brought to him by the appellant Vinod Kumar Gupta and he did not tell CBI that he had not checked the records and simply signed the audit report without application of mind and that appellant Vinod Kumar Gupta gave him Rs.1500/ at the rate of Rs.500/ for each year of audit and he was confronted with his previous statement Ex.PW24/A from portion A to A wherein it was found so recorded. He replied that he identified appellant Vinod Kumar Gupta, present in the Court, as he and the said appellant were coaccused in one or two similar cases. He replied that it is not necessary that record should be produced by any of the office bearers of the Society only.
33. From the said deposition of said official witnesses, it is clear that nothing has come on record against any of the appellants CA No.74/17, 80/17, 81/17 & 84/17 Page No. 27 of 80 by the persons who should have been made as complainants in the case and whose duty it was to scrutinize and verify, whatever was submitted by the appellants or for that matter by any other person of the Society but the same was not done nor the said officials of the office of Registrar of Cooperative Society were made accused in the case as per claim of the IO in the Chargesheet and by holding of the Trial Court also that the Society was got revived on the basis of forged documents and the list of members of the Society was also forged and fabricated to be submitted to the DDA and this is how, even the IO has adopted the policy of pick & choose including the Trial Court. The said deposition of the auditor PW24 further proves the pick & choose policy of the IO as this witness should have been an accused as per the stand of the CBI in his crossexamination but he has been made a witness in the present case. Admittedly, the ultimate object of the conspiracy was to get a land for the Society from the DDA and that object was never achieved which is established from the said depositions of the said witnesses.
34. Coming to the aspect of offence of conspiracy, as per definition of the same given in Section 120A of IPC "when two or more persons agreed to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: provided that no CA No.74/17, 80/17, 81/17 & 84/17 Page No. 28 of 80 agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
35. It was held by the Hon'ble Supreme Court in the case titled "John Pandian Vs. State" JT 2010 (13) SC 284 that circumstances in a case, when taken together on their face value, should indicate meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, committed by illegal means and that a few bits here and a few bits there on which prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy and that it has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched and that circumstances relied for the purposes of drawing an inference should be prior in point of time then the actual commission of the offence in furtherance of the alleged conspiracy.
36. Judging in the light of the said observations of the Hon'ble Supreme Court and appreciating the said official witnesses, the revival of Society was in itself was not illegal as it was provided CA No.74/17, 80/17, 81/17 & 84/17 Page No. 29 of 80 not only by the law but was within the power of PW1 and at the same time, the ultimate object of getting the land from the DDA, though, was also not illegal in itself but it was never achieved also.
37. The Ld. Trial Court totally ignored the law of evidence in order to establish the conspiracy. Section 120B IPC cannot be read in isolation and it has to be read with Section 10 of the Indian Evidence Act, 1872 which is a deviation from the normal rule of evidence and a specific provision to deal with the aspect of conspiracy. Section 10 of the Indian Evidence Act reads as under:
"Things said or done by conspirator in reference to common design: Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it".
38. The bare reading of said Section 10 goes to show that it is in two parts. First part is that there must be a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong and if it is established, CA No.74/17, 80/17, 81/17 & 84/17 Page No. 30 of 80 the second part is anything said, done or written by anyone of such persons in reference to their common intention during the subsistence of the conspiracy, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Thus, if prima facie evidence of existence of conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirator in furtherance of the common object, is admissible against all. Reference can be given of the judgment AIR 2005 SC
716.
39. I will try to find out (1) as to whether there is prima facie evidence of conspiracy against the appellants so as to apply the second part of Section 10 of the Evidence Act in order to read "whatever said or done or written by one of the conspirator against others" and (2) as to whether the said legal object of the alleged conspiracy was tried to be obtained by illegal means, as is the requirement of Section 10 of the Evidence Act mentioned above.
40. The Hon'ble Apex Court in the case titled "State Vs. Nalini"
1999 SCC (5) 253, laid down relevant guidelines as under:
"7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the Court may consider the entire mass of evidence against every accused. Prosecution has to CA No.74/17, 80/17, 81/17 & 84/17 Page No. 31 of 80 produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficult in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed to Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
41. In this case, but for the deposition of the approver PW12 Sh. B. B. Khanna, there is no admissible evidence on record to establish the prima facie proof of conspiracy against all the appellants. Let me examine the deposition of PW12.
42. PW12 deposed in his examination in chief that he got recorded his confessional statement U/S 164 Cr.P.C. before the Magistrate on 06.11.2006, which is Ex.PW12/A and same was voluntary and without any pressure and undue influence from any CA No.74/17, 80/17, 81/17 & 84/17 Page No. 32 of 80 corner upon him and that the said statement is correct and bear his signatures and prior to that on 27.10.2006, he had submitted an application before the Ld. Special Judge, CBI, Patiala House Courts for grant of pardon which is Ex.PW12/B and that he was granted pardon by the Successor Judge of the Special Judge CBI, which is Ex.PW12/C and thereafter chargesheet was filed against the remaining accused persons. (the appellants herein). He further deposed that during the trial of the present case before the ld. ACMM, East Delhi, his examination in chief was recorded on 9.10.2007 and he was cross examined also and he confirmed the deposition made by him before the said Court. He further deposed that he was arrested on 24.10.2006 in the case and was released on bail. He further testified that he was employed in the Defence Accounts Department since the year 1970 onwards as Senior Accounts Officer and he came to know about the said Co operative Society and he became a member of the Society in the year 1990 and thereafter became the Secretary of the Society in the year 1997 and at that time accused P.S. Mehta and accused K.R. Duggal were also in the management of the Society and after he became the Secretary of the Society, a winding up order was passed by the Registrar of Societies because the accounts of the society was not being regularly audited and there was no regular Annual General Body Meetings and that he represented to the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 33 of 80 office of RCS to cancel the winding up documents and he proved the correspondence with the said office in this regard. He further deposed that one day in the year 1999, accused K.R. Duggal informed him on telephone to come at Udipi Hotel at Munirka, and he went to the said place where accused P.S. Mehta, accused Mahender Kumar Mogan, present in the Court, and one more person whose name he did not know at that time but subsequently revealed as accused R.C. Mishra, present in the Court, were already present, and accused Mahhender Kumar Mogan was introduced by the accused K.R. Duggal as builder, running firms in the name of M/s Swastik Construction and accused K.R. Duggal informed that accused Mahender Kumar Mogan would help in getting the society revived with condition that when land is allotted to the society, the construction of the building should go to him, and that all of them i.e. accused P.S. Mehta, accused K.R. Duggal and he himself discussed this aspect amongst us and proposal was found agreeable, and that it was found that they were not having sufficient members in the society, and as such accused Mahender Kumar advised to get four or five members enrolled by each of them and rest of the members will be got arranged by the accused Mahender Kumar and that membership forms were available with the accused K.R. Duggal at his residence and that he (acused) filled up six forms in his handwriting and put his CA No.74/17, 80/17, 81/17 & 84/17 Page No. 34 of 80 signatures in the column of the applicant, and the same are Ex.PW12/G1 to Ex.PW12/G4. He further deposed that he came to know that accused P.S. Mehta and accused K.R. Duggal since they were working as Senior colleagues in his department i.e. Defence Account Department since 1990 and as such he could identify their handwriting and signatures and application enrollment filed and signed by accused K.R. Duggal are already Ex.AW1/E and Ex.AW1/F and that application for enrollment filled and signed by accused P.S. Mehta are Ex.AW1/C and Ex.AW1/D, and that the accused R.C. Mishra is employee of accused Mahender Kumar. He further deposed that there was no progress of reviving the society and thereafore it was decided by him to submit resignation letter in respect of all the six persons got enrolled by him. Accordingly, he filled up and signed the set of resignation letters and receipts, and those that of Sh. Sudesh Kumar are already Ex.AW1/I and Ex.AW1/J and that of Sh. Satpal Sharma are Ex.AW1/K and Ex.AW1/L and that of Nirmal Kumari are Ex.AW1/M and Ex.AW1/N and that of Sh. S.K. Khanna are already Ex.AW1/O and Ex.AW1/P respectively and at the same time, accused P.S. Mehta also submitted his resignation letter and receipt which are Ex.PW12/H1 and Ex.PW12/H2 and that resignation forms and receipts which were filled up by him were handed over by him to accused K.R. Duggal. Thereafter, he further testified that in the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 35 of 80 month of November and December, 1999 accused K.R. Duggal had called him on phone and that accused R.C. Mishra stated to be employee of accused Mahender Kumar came to residence of accused K.R. Duggal in R.K. Puram, Sector12, to collect records of the society, which were lying with the accused K.R. Duggal at his residence in connection with revival of the society. At the time of receiving the phone call, he was at his office and he went to residence of accused K.R. Duggal and there in his presence accused K.R. Duggal handed over all the records of the society to accused R.C. Mishra and the record includes, receipts in the forms of cash book bundles, some registers and the proceedings register of the society is already Ex.PW4/E, the Annual General Meeting register already Ex.PW4/F, members register already Ex.PW4/A and the file containing forms of members is already Ex.PW4/H. He further deposed that in the month of May and July 2000, he and acused K.R. Duggal went to the office of Registrar of Cooperative Society and submitted joint affidavit already Ex.AW1/Q for revival of the Society and he signed the affidavit as Vice President of the society and accused K.R. Duggal signed affidavit as Hony. Secretary of the Society and that he had attended some meetings of the society in the year 1997, and thereafter he did not attend any meeting and that he was not aware about the records, if any prepared with respect to the meeting of CA No.74/17, 80/17, 81/17 & 84/17 Page No. 36 of 80 the society and that he signed the Proceeding Register No.3 wherein at page 7, minutes of the meeting dated 29.12.1995 of the executive committee of the Society has been shown and his signatures on the minutes at the relevant page is already Ex.AW1/R. He further testified that in the year, 2005 accused K.R. Duggal informed him that all the documents of the society had been returned by accused Mahender Kumar and he also informed that the society has been revived, but the list of members was yet to be approved.
Thereafter, in the year 2003 accused K.R. Duggal informed him that he was going to handover the society to accused Vinod Kumar Gupta for running the society and the said accused Vinod Kumar Gupta is present in the Court, and that he told accused K.R. Duggal that he was no more interested in continuing the membership of the Society and that he intended to resign, and that on 31.05.2003 accused K.R. Duggal called him at his residence to submit his resignation. Accordingly, he went to his residence where one person was sitting, who was introduced to him as accused Vinod Kumar Gupta by accused K.R. Duggal and that in his presence accused K.R. Duggal handed over all the documents of the society to accused Vinod Kumar Gupta and that after that he received all his dues from the society and that during investigation of the present accused, IO showed him register CA No.74/17, 80/17, 81/17 & 84/17 Page No. 37 of 80 regarding Annual General Body Meeting in which he was elected as Vice President of the Society dated 16.01.2000 Ex.PW4/F (page No.27 of the said list is already Ex.AW1/X) and in the said resolution, accused K.R. Duggal was authorized to approach the office of RCS for revival of the society and approval of list of members of the society, and he (witness) had not attended the said meeting and that his signatures on the meeting had been forged. He further deposed that during the course of investigation, IO told him that proceedings register of the society already Ex.PW4/E contains authorized minutes of the meeting and he identified signatures of accused K.R. Duggal and accused P.S. Mehta on the same. Thereafter, in various minutes of meeting, he identified signatures of accused K.R. Duggal and accused P.S. Mehta, and thereafter he was shown proceedings dated 13.06.01, 10.07.01 and 25.09.02 on which his forged signatures are there. Thereafter, he identified the letter already Ex.PW1/B5/9 bearing signatures of accused K.R. Duggal. Thereafter, he also identified signatures of accused K.R. Duggal on the letter dated 06.03.2000 seeking change of address of the Society which is Ex.PW1/B5/6.
43. Nowhere in above said examinationinchief, it has been deposed by PW12 that they decided to revive the society, even if it is taken true that all the accused met at Uddipi Hotel, by way of making fictitious members and forged signatures of all the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 38 of 80 members in order to revive this Society, even the alleged resignation letters of all the six persons which said witness claims to have been signed by him, only one Sudesh Kumar has been produced as PW43 and remaining 5 persons have not been produced at all in the witness box. It is nowhere mentioned in his said examination in chief that the appellants including him agreed to forge the signatures of the persons to be shown as members of the said Society for its revival or to make fictitious members.
44. Coming to the crossexamination of PW12, he admits that CBI had arrested him on 24.10.2006 and he has not preferred any bail application before any Court and that he was released by the CBI on bail on the same day. He preferred an application for grant of pardon on 27.10.2006 which was got prepared by him and in the said preparation, he took the help of IO. He signed the said application in the CBI office itself on the same day ie 24.10.2006 and the said application was thereafter, delivered by him to the IO and then, IO called him on 27.10.2006 at the CBI office and then, they went together to Patiala House Courts where the said application was filed. (emphasis supplied). He further answered that he moved the application for cancellation of winding up order of the Society before the Registrar Cooperative Societies on 26.06.1997 and was signed by him only and no resolution was passed either by Managing Committee or by the Governing Body CA No.74/17, 80/17, 81/17 & 84/17 Page No. 39 of 80 of the Society for moving the said application and that he was the Secretary of the Society on the papers only and he moved the said application after consulting Mr. K. R. Duggal and Sh. P. S. Mehta, who were the other office bearers of the Society at the relevant time and the contents of the said application were dictated by Sh. K. R. Duggal which was got written by him. He admitted that no force, pressure or coercion was exercised by Mr. Duggal in getting the said application moved to the said office of Registrar and the said application was moved for the overall welfare of the members of the Society. He admits that he had not stated about the aforesaid facts before the Court of Sh. Chander Shekhar, MM, where his statement U/s 164 Cr.PC was recorded or before the Court of Sh. Sanjeev Jain, ACMM, KKD Courts, where again his statement was recorded. (emphasis supplied).
45. He further stated in his crossexamination that he did not know as to where the office of Swati Housing and Construction Private Limited was situated and he did not know who were the persons who worked with the aforesaid company or as to who were the Directors of the same. He did not remember for how long the meeting continued at Hotel Uddipi, Munirka and it may be around for one hour in the evening. He replied that he had not stated in his statements recorded U/s 164 Cr.PC or before the Court of Ld. ACMM, KKD, Delhi that Sh. R. C. Mishra, the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 40 of 80 appellant herein, was also present in the alleged meeting. (emphasis supplied). He replied that he did not meet Sh. Mahender Kr. Magon either before or after the alleged meeting and that he met him only during the court proceedings and that so far as Sh. R. C.Mishra is concerned, he did not meet him before the alleged meeting and that he met Sh. R. C. Mishra at the residence of Sh. K. R. Duggal after the alleged meeting only once. He admitted that he had made a statement before the Court of Ld. ACMM, KKD that the records of the Society was given by Mr. K. R. Duggal to Sh. R. C. Mishra which was lying in a plastic bag which was twisted and tied up at its mouth by a rope and that he was aware of the documents kept in that plastic bag which was handed over to Sh. R. C. Mishra and he was confronted with his statement given before the said Ld. ACMM where it is mentioned that he did not know as to what record of the Society was delivered by Sh. K. R. Duggal to Sh. R. C. Mishra as the said records were lying in a plastic bag which was tied with a rope at its mouth and that he had not seen as to which documents were delivered to Sh. R. C. Mishra by Sh. K. R. Duggal (an improvement before the Trial Court).
46. PW12 further replied in his crossexamination that Sh. Mahender Kr. Magon and Sh. R. C. Mishra had not prepared and/or filled up any membership form, any resignation letter or CA No.74/17, 80/17, 81/17 & 84/17 Page No. 41 of 80 any other document pertaining to the Society in question in his presence. (emphasis supplied). He further replied that no land has been allotted to the Society by the DDA at any point of time. He further answered that revival order dated 24.10.2000 was not passed by the Registrar of Societies in his presence. He did not know as to whether any list of members was approved by the RCS or not. He did not know as to whether the Society in question had ever applied to the DDA for allotment of plot at any point of time. He admitted that as per byelaws of the Society's Act, all the official records of the Society are required to be kept and maintained by the Secretary of the Society and that he has not objected to the other office bearers of the Society in relation to the fact as to why the records of Society in question were not kept under his care and custody. He has not inspected and/or seen any records of the Society from the time when he became member of the Society in the year 1990 till the time he resigned on 31.05.2003 and that since he had neither seen nor inspected the records of the Society and as such, he could not tell as to what records of the Society in question were being maintained and by whom and what were their contents. (emphasis supplied).
47. In his further crossexamination, PW12 admitted that the accused K. R. Duggal (the appellant herein) was working in Project Section as Assistant Accounts Officer in the same Branch CA No.74/17, 80/17, 81/17 & 84/17 Page No. 42 of 80 where P. S. Mehta and he himself were working and that P. S. Mehta was working in a different Section, the name of which he did not remember but he was working as Accounts Officer and that at the relevant time, his (the witness) function was different and he was not supposed to report to the aforesaid accused persons nor they were supposed to report to him. He admitted that there was no exchange of documents between the aforesaid accused persons and himself and he denied the suggestion as wrong that in the said circumstances, he was not aware of signatures and handwriting of aforesaid accused persons or that he identified the same at the instance of CBI. (emphasis supplied).
48. Further he did not recollect the number of meetings of Managing Committee or the General Body of the Society during his tenure from 1990 till 1997 and that he had attended 23 meetings of the Society but he could not say as to whether those meetings were of Managing Committee or of General Body of the Society.
49. He further answered that when he delivered 6 membership forms to accused K. R. Duggal, he had informed him that these forms were filled by him in his handwriting and it was he who had forged the signatures of the applicants. He did not recollect as to whether he had disclosed the aforesaid facts in his statement recorded U/s 164 Cr.PC before the MM or before the Court of CA No.74/17, 80/17, 81/17 & 84/17 Page No. 43 of 80 ACMM, KKD Courts, Delhi. (emphasis supplied). He admitted that he had not taken any acknowledgement from accused K. R. Duggal while submitting his resignation dated 31.05.2003.
50. He further admitted that when the CBI had registered the present FIR, he was the only serving Officer in the aforesaid department and accused K. R. Duggal and P. S. Mehta had already retired by that time and that he had not disclosed to his department about the fact relating to registration of FIR by CBI against him or filing of chargesheet in relation thereof. (emphasis supplied). He further answered that he went to CBI office for about four times before his statement U/s 164 Cr.PC was recorded and that accused K. R. Duggal was called by the CBI prior to him while accused P. S. Mehta was called after he was interrogated by the CBI and that accused K. R. Duggal was not arrested till that time. He replied that his statement was recorded by the CBI on 24.10.2006 but he was not sure if accused P. S. Mehta was called before or thereafter and he admitted that accused P. S. Mehta was not arrested during investigation of the case. He replied that he was arrested by the CBI on 24.10.2006 itself after his statement was recorded and was released on bail on the same day by the CBI and that he had not given any information of his arrest to his department as per CCS Conduct Rules. (emphasis supplied).
51. He further replied that he did not disclose to any of his CA No.74/17, 80/17, 81/17 & 84/17 Page No. 44 of 80 colleagues from the department that he was arrested and detained by the CBI on 24.10.2006 and that he had not stated in his statement U/s 164 Cr.PC that he was arrested by the CBI on 24.10.2006. He specifically replied that IO Mr. Manoj Kumar had advised him to move an application to the Court for grant of pardon and that on 27.10.2006, he alongwith said IO and Sh. Ojha, the Senior PP of CBI, had taken him to the Court of ACMM at Patiala House, New Delhi and he did not mention before the said Court that he was arrested by the CBI on 24.10.2006 nor said disclosure was made in his application for pardon nor anything was asked from him in this regard. He could not say if the said application was signed by the said IO and Sh. Ojha, but they were present in the Court with him at that time and thereafter, he was taken to the Court of Ms. Kamini Lau by the IO and Senior PP and from there, he was sent to the Court of Sh. Chander Shekhar, MM where both the above said persons were present with him throughout and that he was given the date of 06.11.2006 by the said MM for recording his statement and on the said date, he again went to the office of CBI and then, he was accompanied by the IO but did not remember if Sh. Ojha was also accompanying him or not. He further replied that application Ex.PW1/A was drafted in the office of CBI after he was arrested by the CBI and that after his arrest by the CBI, he told them that he should be given pardon CA No.74/17, 80/17, 81/17 & 84/17 Page No. 45 of 80 and thereafter, he was told by the CBI officials that he should make a statement to the Court and thereafter only, his request for grant of pardon would be considered. He admitted that even CBI officials have not informed his department regarding his arrest. He could not say if the CBI had informed his department about his arrest, he would have faced the departmental enquiry even to the extent of suspending him from service. (emphasis supplied).
52. He admitted that in the said Society, besides members of Defence Accounts Department, other persons from other departments of Govt. of India or even private persons can become member of the said Society.
53. He replied that he had stated in his statement recorded U/s 164 Cr.PC that in the year 1990, accused K. R. Duggal informed him on telephone to come to Uddipi Hotel, Munirka and he was confronted with statement Ex.PW12/A where it is not so recorded. He had not stated in his statement Ex.PW12/A that one more person, whose name he did not know at that time, subsequently revealed his name as R. C. Mishra, was present in the Uddipi Hotel. He did not remember if he had stated in his statement U/s 164 Cr.PC that he came to know accused P. S. Mehta and accused K. R. Duggal since they were working as senior colleagues in his department since 1990 and as such, he could identify their handwriting and signatures and that he could identify the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 46 of 80 application for enrollment which were filled by accused K. R. Duggal and accused P. S. Mehta already Ex.AW1/E and Ex.AW1/F and enrollment application filled and signed by accused P. S. Mehta already Ex.AW1/C and Ex.AW1/D and he was confronted with his statement Ex.PW12/A where it is not so recorded (improvements before the Trial Court).
54. He admitted that after joining for second tenure his office, after some time, accused K. R. Duggal was shifted to Ministry of Welfare, Delhi Administration and he rejoined the department in the year 1998 in West Block, VI of Airforce. He admitted that he was working in different department and accused K. R. Duggal was working in separate department who was never his senior colleague at any point of time, though, he was working at equivalent status to him. He further admitted as correct that during his tenure as well as that of accused K. R. Duggal, he had not received any file from Sh. K. R. Duggal with his notings and his signatures, as their departments were different. He admitted that he was not having any direct correspondence/communication with accused P . S. Mehta. He was confronted with his statement Ex.PW12/A where the portion A to A1 of his examination in chief was not found recorded. He did not recollect where his affidavit Ex.AW1/Q was drafted and who drafted the same. He did not recollect as to whether he put his signatures in any register or not CA No.74/17, 80/17, 81/17 & 84/17 Page No. 47 of 80 and that his signatures were not identified by any Advocate nor he was administered any oath. The witness was shown portion mark B to B1 of his examination in chief which was not found recorded in his statement Ex.PW12/A, when confronted. He did not state portion C to C1 of his examination in chief in his statement U/s 164 Cr.PC Ex.PW12/A, where it was not so recorded. Similarly, portion D to D1, E to E1 and F to F1 of the examination in chief before the Trial Court, were also not found recorded in his previous statement U/s 164 Cr.PC Ex.PW12/A. He admitted that he tendered his resignation in May 2003 but he could not say if accused P. S. Mehta has resigned on 11.01.2003 and accused K. R. Duggal resigned on 20.05.2003 prior to his tendering resignation and he admitted his application Ex.PW12/DA in his handwriting and bearing his signatures at point A.
55. From the bare reading of the said crossexamination, particularly, from the said underlined portions of his deposition, which is full of self contradictions, improvements and changing stands of the PW12, I failed to understand as to how the Ld. Trial Court came to the conclusion to convict the appellants on the basis of such tainted and unreliable testimony of the alleged approver. As per his own admission in his crossexamination, he had no occasion to see the handwriting and signatures of accused K. R. Duggal and P. S. Mehta, then how he claimed to be in a position to CA No.74/17, 80/17, 81/17 & 84/17 Page No. 48 of 80 identify their handwriting and signatures in his examinationin chief.
56. From the said crossexamination and even from the examination in chief of PW12, it has nowhere come on record that there was a prior meeting of mind amongst the appellants to achieve the revival of the society by illegal means i.e. by making fictitious members or by forged documents. Nowhere the PW12 uttered in his deposition that he and the appellants agreed to make fictitious members by forged documents or by forging the other record of the society. Thus, I do not find any evidence of prior meeting of mind to agree to achieve an illegal object i.e. allotment of land by DDA or revival of the society or if the object was legal, as has already been held by me above while discussing the deposition of said RCS officials, the same was tried to be obtained by illegal means which is the requirement of section 120A IPC and as such, the second part of section 10 of the Evidence Act, "to read anything said, done or written by anyone of them against others", cannot be applied in the present case.
57. The holding of the Ld. Trial Court that the status of PW12 got changed from the category of an accused to the status of a prospective witness of the prosecution and he was granted pardon in order to obtain the evidence of any person supposed to have CA No.74/17, 80/17, 81/17 & 84/17 Page No. 49 of 80 been directly or indirectly concerned in or privy to an offence, is only one sided picture. Ld. Trial Court forgot that it is equally important to take cognizance of the fact that an approver betrays his own associates in order to save his own skin and as such Courts should be slow in relying upon his testimony unless and until it is substantially corroborated in the material particulars.
58. Judging in the light of the said law, the only inference from three statements of PW12, one recorded under Section 164 Cr.P.C, second before the ACMM at the time of grant of pardon and the third before the Trial Court is that the whole testimony substantially is not only self exculpatory but it gave clean chit to the other appellants also. This is how it is established that PW12 deposed to his suitability at various stages, so that ultimately, his own safety does not come under danger. In this object, even IO has helped him throughout the circumstances in which the said three statements were recorded. Admittedly, from the said cross examination of PW12, it has been established on record that the office of the PW12 where he was employed being a government servant, was never informed regarding registration of the case against the PW12, about his arrest, about his becoming approver in the case and thus, securing his job. Ld. Trial Court has held that under Section 437 Cr.P.C, even the IO was empowered to grant bail to any of the accused but at the same time, Ld. Trial Court CA No.74/17, 80/17, 81/17 & 84/17 Page No. 50 of 80 failed to appreciate as to in what circumstances, the IO granted the bail to PW12. Section 306 Cr.P.C in subclause (4)(b) directs the Court that every person accepting a tender of pardon shall, unless he is already on bail, be detained in custody until the termination of the trial. Admittedly, the PW12 was arrested in this case and if his application for tender of pardon would have been allowed during the custody of PW12, he would not have been granted bail and would have been detained in custody till the termination of the trial. Needless to say, that IO was very much vigilant about the said law and before such a situation of PW12 remaining in jail during the trial could have arisen, he facilitated him to remain free by granting him bail, even after acceptance of pardon by the Court. In the said crossexamination, PW12 has specifically admitted that it was at the instance of the IO and it was in the office of the IO that the application under Section 306 was drafted and it was in the surveillance of the IO that the proceedings under Section 306 Cr.P.C took place and PW12 was granted pardon. The only inference is that not only there was a deal between the IO and the PW12 to stand the case against the other appellants, but at the same time it was ensured that no harm is caused to PW12 in this process and same was successfully carried out also.
59. Another thing which has come on the record from the said deposition of PW12 before this Court that when he has already CA No.74/17, 80/17, 81/17 & 84/17 Page No. 51 of 80 exonerated the appellants by way of his answers in the cross examination and improvements made by him, what is the need of finding a corroboration from the other evidence and circumstances on record and that would amount to a futile exercise. However, the Hon'ble Supreme Court has time and again has held that statement of an approver without any corroboration is a weak testimony. Reference here can be given of latest judgement titled "Somasundaram vs. State" reported as 2016 SCC online SC 1006.
60. The portion A to A1 of examination in chief of PW12 which was dealing with receiving a phone call from K.R. Duggal regarding revival of the society, handing over all the records of the society to accused R.C. Mishra by K.R. Duggal which included proceeding register, AGM register, member register and the file containing application forms of the members was not found recorded in his previous statement Ex.PW12/A. Portion B to B1 of his examination in chief regarding PW12 telling accused K.R. Duggal regarding his no more interest in continuing with the society and his intention to resign and as a result of which accused K.R. Duggal calling him at his residene on 31.05.2003, reaching to the residence of K.R. Duggal, presence of accused Vinod Kumar Gupta at the residence of K.R. Duggal and handing over all the documents of the society to Vinod Kumar Gupta was also not found recorded in the said previous statement of PW12 CA No.74/17, 80/17, 81/17 & 84/17 Page No. 52 of 80 Ex.PW12/A. The portion C to C1 of his examination in chief, the IO showing register to the witness of AGM, minutes of the said AGM dated 16.01.2000, resolution authorizing accused K.R. Duggal to approach the office RCS for revival of the society and approval of the list of members of society, nonattending of the said meeting by PW12 and his forged signatures on the minutes of the meeting was also not found recorded in his previous statement Ex.PW12/A. The portion to D to D1 of his examinationinchief regarding minutes of meeting dated 29.03.1996, 14.02.1997, 13.03.1998 and signatures of accused K.R. Duggal on the same was also not found recorded in his previous statement Ex.PW12/A. The portion E to E1 regarding minutes of meeting dated 10.12.1999 having signatures of accused K.R. Duggal and P.S. Mehta, minutes of the meeting dated 20.08.2000 having the signatures of accused K.R. Duggal and minutes of meeting dated 05.11.2000 having the signatures of accused K.R. Duggal and accused PS Mehta was also not found mentioned in his previous statement Ex.PW12/A. The portion F to F1 of his examinationin chief with regard to proceeding register dated 10.04.2002, 25.09.2002 bearing his forged signatures, letter dated 29.03.2000 seeking revival of the society and signatures of accused K.R. Duggal on the same and letter dated 06.03.2000 seeking change of address of the society having alleged signatures of accused K.R. CA No.74/17, 80/17, 81/17 & 84/17 Page No. 53 of 80 Duggal, was also not found recorded in his previous statement Ex.PW12/A. Thus, the whole case has been planted for the first time with regard to documents and alleged signatures of the appellants before the Trial Court.
61. Coming to the deposition of handwriting expert PW54, in his crossexamination, he says the method used for comparison of signatures is universally accepted as "comparison of like with the like". He had further replied that he had seen individual characteristics as well as general characteristics during caparison and that he had also considered the shape, size, alignment, flow, speed and curves while comparing the signatures in the present case. He further answered that there is no difference in comparing handwriting and signatures. He admitted that during examination, it is necessary to see the similarities as well as differences in the signatures. He denied the suggestion that parameters of comparing ball pen signatures and inked pen signatures are different. He admitted that in the present case, ball pointed pen and inked pen have been used and the specimen signatures and disputed signatures have been made by both the pens. He replied that he had not prepared enlarged photographs of the exhibited signatures containing the signatures and he volunteered that he had examined the original documents with the help of scientific instruments such as magnifiers, microscope etc. He replied that he had not CA No.74/17, 80/17, 81/17 & 84/17 Page No. 54 of 80 mentioned in his opinion as to what instruments he used for comparison of signatures. He replied that he had not observed defective line quality of the signatures mentioned in his opinion. He further admitted that all the signatures were freely written and he had not observed the hesitation in the production of the signatures mentioned in the documents and that he had not noticed unusual pen lifts about the signatures and he volunteered that he had not noticed the pen lifts at unusual places. He further replied that he had not noticed the difference in the skill in the disputed and specimen signatures and had not noticed the difference in the slants, spacing, size and proportion of characters, nature of commencing, nature of convention of strokes, nature of start, nature of body curve part, nature of circular stroke, nature of space and angular nature of its lower part in comparison to the questioned and specimen signatures. (emphasis supplied). He replied that he had not enlarged the drawings of signatures to compare the signatures of above said characteristics.
62. Needless to repeat the law that comparison of signatures and handwriting is not a science and therefore, in order to rely on the evidence of an expert, the Court must be fully satisfied that he is a truthful witness and also a reliable witness, fully adept in the art of identification of handwriting in order to opine as to whether the alleged handwriting has been made by a particular person or not.
CA No.74/17, 80/17, 81/17 & 84/17 Page No. 55 of 80 The reference is AIR 1979 Supreme Court 1011. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on the expert opinion without substantial corroboration and that this type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. Reference is 1977 Crl. L. J. (SC) 711. In AIR 2003 Kerala 191, it was further held that handwriting comparison is imperfect science and the expert can certify only probability and not 100% certainty. From the said crossexamination of PW54, it is strange that PW54 did not notice any differences in slants, spacing, size, characteristics, strokes, curves, angular nature, unusual pen lifts, but at the same time, he submits that all the signatures were freely written and he did not observe any defective line quality of signatures. It is common knowledge that state of mind of a person such as joy, sorrow, depression, guilty intent, all reflect and make an impact on his handwriting. If the present appellants were forging the signatures and certainly it is not the case of CBI that the appellants were habitual forgers of handwriting, the handwriting and signatures are bound to be different. The guilty conscious of the appellants at the time of forging the handwriting and signatures must reflect and the hesitation in the production of CA No.74/17, 80/17, 81/17 & 84/17 Page No. 56 of 80 signatures is bound to come and there may be unusual pen lifts also and all the signatures cannot be forged in a freely written manner as has been observed by the handwriting expert in the present case in his crossexamination. It is in this sense that an expert is required to be demonstrative. Ld. Trial Court has held that there is no law to make the enlarged photographs of the disputed signatures in order to compare the same with the specimen signatures but the Ld. Trial Court failed to appreciate that considering the weak evidence of the handwriting expert and it being not a science, such expert must demonstrate his opinion by way of cogent reasoning and also by the facts as to how he has arrived at his opinion. The alleged scientific instruments such as magnifiers, microscope etc. do nothing but enlarges the image which is seen through the same. Then, what prevented PW54 to make the enlarged photographs so that he could have demonstrated before the Court, the basis of his conclusions. Not noticing the above said features of the disputed signatures may suggest that the same may have been executed by the persons to whom the said signatures were attributed.
63. In view of my said analysis of the deposition of PW54, this Court is of opinion that it will be unsafe to rely upon his testimony, particularly, for the conviction of the present appellants.
64. The Ld. Trial Court misdirected itself while relying upon CA No.74/17, 80/17, 81/17 & 84/17 Page No. 57 of 80 testimonies of PW12 and PW54 for basing his opinion for the conviction of the accused. In this regard, the Hon'ble Supreme Court has not approved the said practice and held that one doubtful piece of evidence cannot be corroborated by another doubtful piece of evidence to substantiate the conviction of the accused. The reference is "Jameel Ahmed & Anr. Vs. State of Rajasthan" reported as 2003 (2) RCR (Crl.) 844.
65. From the said deposition of said two witnesses namely PW12 and PW54, no evidence has come on record with regard to conspiracy or the offences U/s 468 & 471 IPC.
66. There is no evidence on the record or the deposition of witness who claimed to have suffered wrongful loss or wrongful gain to the appellants so as to attract the definition of cheating as defined U/s 415 IPC.
67. Moreover, the membership of a Society has never been considered "to be a property" under the law and it has been so held in the case titled "A. P. Narang Vs. CBI" in Criminal Revision Petitions No.397, 398 of 2010, decided on 17.01.2011 by the Hon'ble High Court of Delhi and it was further held that only that membership of the Group Housing Cooperative Society matures into property where the member contributes towards construction of the flats and towards purchase of land for flats and if he does not contribute either towards purchase of land or CA No.74/17, 80/17, 81/17 & 84/17 Page No. 58 of 80 towards construction, he does not hold any property right in the Group Housing Cooperative Society and the Society is not bound to allot any flat and as such, no offence U/s 415 or 420 IPC was made out against the petitioners.
68. Let me turn to the recovery of harddiscs of computer. In this regard, there are allegedly two independent recovery witnesses namely PW25 and PW50. PW25 in his examination in chief deposed that for conducting search, CBI team including him, reached the office of Swati Housing Construction Company Pvt. Ltd. and one of the Directors of the Company was present during the search and that apart from some documents, three computer harddiscs were seized from the said office which were sealed and seized vide memo Ex.PW10/A. In his crossexamination, he replied that two harddiscs were recovered from two computers while one disc was recovered from inside the room but the same was not attached to any computer. He could not tell which of the disc was taken from the computers and which was taken from the room. However, PW50 has another story to tell about the said recovery. He says in his crossexamination that one person accompanying the CBI team, took out these harddiscs from the computers and he did not recollect as to whether the harddiscs were recovered from the different computers and he volunteered that there is normally one harddisc in one computer and there CA No.74/17, 80/17, 81/17 & 84/17 Page No. 59 of 80 were 23 computers in that office. He further replied that computers from which the said three harddiscs were taken out were not ON. He could not tell as to how many harddiscs were there in each computer. He admitted that the fact that harddiscs were recovered from the computers is not mentioned either in the search memo Ex.PW10/A or punchnama Ex.PW25/A or his statement Ex.PW50/DA. He could not tell as to in which of the discs, there was no data. He could not tell as to how many printouts were taken out from the computers.
69. PW10, the official of CBI, who was the Incharge of the team of search and seizure, in his crossexamination, answered that he did not take any document from the premises with regard to ownership of the premises by M/s Swati Housing Construction Company Pvt. Ltd. nor he confirmed as to who were operating the computers from which the harddiscs in question were seized. There was no other computer in the office premises apart from the aforesaid computers.
70. From the said deposition of three witnesses, the material contradictions which come on the surface that for PW25, third disc was recovered from the room, whereas, for PW10 and PW50, all the discs were recovered from the computers. As such, even the recovery of harddiscs become doubtful.
71. The Ld. Trial Court rejected the arguments of the present CA No.74/17, 80/17, 81/17 & 84/17 Page No. 60 of 80 appellants that since the harddiscs were produced before the Court, the same were admissible without any certification U/s 65 B of Indian Evidence Act. Be it may so, but we do not know that when the data in the said discs were uploaded or whether the same were contemporary to alleged conspiracy of forging and fabricating the documents because Sh. N. K. Aggarwal of CFSL, who examined the said discs, was never produced before the Court and PW56, the Lab Assistant, proved his signatures on the report given by Sh. N. K. Aggarwal. The Ld. Trial Court has tried to assume role of the computer expert and etechnology by getting the said harddiscs displayed before him and that is why it has not been established by the prosecution that who created the file containing alleged printouts or as to when the said files were created or as to whether the said files were read only files or editable files and as to how many times said files were edited or altered and as such no authenticity of the data stored in said hard discs, the printouts taken in the Court from the said harddiscs, cannot be said to have become admissible in evidence. Moreover, the printouts were simply formats and there is no evidence who typed the same or as to when they were typed and the said formats could not have been used without being duly signed and executed. There is no link of those prints out with any of the appellants.
72. From the said deposition of the said witnesses, even the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 61 of 80 recovery of the harddiscs becomes doubtful and cannot be taken as a corroborative fact to any other fact.
73. Coming to the deposition of the IO PW 57, in his cross examination, he has admitted that a preliminary enquiry was conducted before the registration of the present FIR and that he had conducted the said enquiry and had submitted an enquiry report and after that, finding a prima facie case from the said enquiry, the present FIR was registered. He admitted that in the preliminary enquiry, he had found that offences under the Prevention of Corruption Act alongwith other offences had been committed by unknown officials of office of RCS and as such, he recommended the registration of FIR under the PC Act. He admitted that he has not filed the said enquiry report on the record of the case. He admitted that he is the IO of the case but he cannot be called a complainant. He could not tell as to at what stage of the investigation, he came to the conclusion that no offence under the PC Act was committed by the officials of RCS. He admitted that there was violation of provisions of Delhi Cooperative Societies Act and rules framed thereunder and the verification conducted by them was not proper, for which, he recommended for major penalty against them. He admitted to have gone through the DCS Acts and Rules but he did not know as to whether the verification of the members of the Society is done at various CA No.74/17, 80/17, 81/17 & 84/17 Page No. 62 of 80 periods of time with respect to a Society and he did not know if members of the Society are verified at the time when the Society is registered and he did not know if on the basis of information given by the Society to the office of RCS, said verification is being conducted in routine. He admitted that when the Society become defunct, at the time of its revival, again verification is being done. He did not know if at the time of approval of list, verification takes place or not. He did not know if at the time of allotment of the flat, a proper verification is done with respect to each and every member of the Society. He did not recollect if there were 90 promoter members at the time of registration of the Society. He did not know if in the present case, the freezed strength of the Society was 90. He could not tell if the list sent for approval to the office of RCS for being forwarded to DDA also consisted of 90 members. He could not tell if officials of the office of RCS at the time of approval of list, had thoroughly checked and verified all the affidavits, resignations etc. and since they found everything was in order, they had recommended the approval of list. He did not recollect if he had recommended any departmental action against any of the officials who had dealt with the records at the time of approval of list. He did not remember as to whether accused Sandeep Sahni was a member of the Society or a member of Executive/Management Committee of the Society or his name CA No.74/17, 80/17, 81/17 & 84/17 Page No. 63 of 80 figures in any of the records of the Society. He admitted that he had not obtained the specimen signatures of accused Sandeep Sahni during the course of investigation. He could not recollect if there was no writing of accused Sandeep Sahni on any of the records. He was not aware if Sunita Malhotra was an employee of S. P. Saxena earlier and he did not know if she was the employee of S. P. Saxena when she became the member of the Society. He did not know if number of members were enrolled in the present Society at the instance of Sunita Malhotra who herself was enrolled as member at the instance of S. P. Saxena. (emphasis supplied).
74. In his further crossexamination, he admitted that there was no complaint in this case prior to registration of FIR and that on the basis of the directions of Hon'ble High Court of Delhi, the preliminary enquiry was conducted. He replied that there was a list of Societies against which the enquiry was to be conducted in which the name of present Society was mentioned, but when specific question was asked to him to show the list of Societies as provided by the Hon'ble High Court of Delhi, he admitted that no list was provided by the Hon'ble High Court of Delhi, but a list was provided by the Registrar of the Societies and name of accused Society found mentioned at serial no.58. He admitted that there is no stamp/seal and signatures of Registrar of Societies nor CA No.74/17, 80/17, 81/17 & 84/17 Page No. 64 of 80 there is any covering letter by which the list was sent. He could not tell if there was any complaint by office bearers, members or any concerned person of the Society against the accused Vinod Kumar Gupta. He admitted that accused Vinod Kumar Gupta was not the member nor office bearer of the said Society prior to its revival or after the revival of the Society also nor accused V. K. Gupta was beneficiary as the member or the office bearer in the said Society. He did not know if accused Vinod Kumar Gupta had tried to become member or office bearer in the said Society. He admitted that said accused was not alloted any flat/land in the present case. He further admitted that accused Vinod Kumar Gupta was neither the promoter nor the member of the Society nor after the revival, a new member in the Society. He admitted that there was no recovery effected in the present case from accused Vinod Kumar Gupta. He further admitted that there is no documentary evidence against accused Vinod Kumar Gupta showing the transaction of selling the Society to accused Sandeep Sahni for Rs.16.2 Lacs. (emphasis supplied).
75. In his further crossexamination, IO PW57, he admitted to have released B. B. Khanna (PW12) on bail after his arrest. He admitted not to have informed the concerned department of B. B. Khanna about his arrest because it was not mandatory for him but it was mandatory for the arrested accused to inform his concerned CA No.74/17, 80/17, 81/17 & 84/17 Page No. 65 of 80 department. He did not remember the date when they had offered Mr. Khanna for becoming an approver by granting him pardon. He did not remember if he had given this offer to Sh. Khanna before he was arrested or thereafter. He did not remember if he had received any notice/summon from the Court when the application for pardon was moved by Mr. Khanna. He replied that he had no discussions, which Sh. Khanna in his office before he moved an application for grant of pardon to B. B. Khanna. He admitted that Sh. B.B. Khanna was Vice President of the Society when the documents were handed over to Sh. Mahender Kumar. He did not remember if accused PS Mehta had resigned from the society on 01.01.03 and accused KR Duggal resigned on 20.05.03. He had not got accused K.R. Duggal identified from the Officers of RCS Office to ascertain if accused K.R. Duggal had accompanied to Sh. B.B. Khanna to submit the joint affidavit.
76. In his further crossexamination, he replied that he had not visited or sent any of his officials to the permanent address of Sh. M.L. Bali mentioned in Ex.PW1/D at Prem Garh Railway Road, Hoshiyar Pur, Punjab and the same was his reply with regard to permanent address of Sh. V.P. Singh, which was also not got verified. He admitted that address of Sh. S.K. Swami mentioned in the application form for membership as D610, Sarojini Nagar, New Delhi, was a correct address. He could not tell if the final list CA No.74/17, 80/17, 81/17 & 84/17 Page No. 66 of 80 of 90 members was submitted to the RCS on 25.07.2003. He did not remember if the names of the Kamaljeet, Sudhir Kumar, Umesh Mehta, Sh. S.K. Swami and Sh. P.S. Mehta were not there in the final list. He also did not remember if Sh. K.R. Duggal, Puneet Duggal, Vishal Mehta had already resigned from the membership of the society before submission of the final list on 25.07.2003. He did not remember, if he joined Puneet Duggal or Vishal Mehta as witnesses in the present case. He was not aware nor has investigated about the fact that Sh. P.S. Mehta had already retired from service while accused K.R. Duggal was on deputation to the office of Registrar of Newpapers, R.K. Puram, New Delhi, when documents were handed over to Sh. Mahender Kumar. He admitted that two letters dated 22.08.1997 and 14.10.1997 for the revival of the society were written by Sh. B.B. Khanna. He admitted not to have moved an application before Ld. MM seeking permission to take specimen handwritings of accused P.S. Mehta and accused K.R. Duggal and he volunteered that the same were taken by him in his office in the presence of independent witness.
77. In his further crossexamination, he replied that Sh. B.B. Khanna had not taken any advise from the panel lawyers of CBI nor he had any discussion with him before moving an application for grant of pardon to the Court of Special Judge. He replied that he had no talks with Sh. B.B. Khanna on reaching the Court CA No.74/17, 80/17, 81/17 & 84/17 Page No. 67 of 80 before he conceded his request for grant of pardon nor he had asked the Court to give time to him to have a talk with Sh. B.B. Khanna or to think over the matter.
78. Now apparently, the RCS officials were not made accused in the present case by the IO PW57 although the circumstances and facts were appearing before them also. Secondly, there is a material contradiction between the deposition of PW12 and PW57 with regard to the factum of grant of pardon to B.B. Khanna, who claimed in his deposition that he had visited four times to the CBI Office and met the IO and thereafter on the advise of the IO he moved the application for grant of pardon and that the application itself was drafted in the Office of the CBI and the IO as well as Senior Public Prosecutor of CBI Sh. Ojha accompanied him to the Court, whereas in the said crossexamination PW57, the IO of the case, totally denied the said deposition of PW12. Moreover, the accused K.R. Duggal, accused P.S. Mehta, accused V.K. Gupta, accused Sandeep Sahni have been given clean chit by the IO in his said crossexamination. In the said underlined portion of his cross examination in para74 above, IO PW57 has specifically admitted that there was no complaint against accused Vinod Kumar Gupta nor he was member or office bearer of the Society prior to or after the revival of the Society nor he was beneficiary as the member of the said Society nor he was alloted any flat/land in the present CA No.74/17, 80/17, 81/17 & 84/17 Page No. 68 of 80 case nor accused Vinod Kumar Gupta was promoter or new member of the Society. The IO further admitted that there was no recovery affected in the present case from accused Vinod Kumar Gupta. IO specifically admitted that there is no documentary evidence against accused Vinod Kumar Gupta showing the transaction of selling the Society to accused Sandeep Sahni for Rs.16.2 Lacs. If it was so, I failed to understand as to how the Ld. Trial Court has come to the conclusion that most of illegal transactions are done in black money and rarely any direct evidence comes on record because this has not been so said by any of the witnesses that the transaction was done in black money for the alleged sale of the Society. Even the evidence collected by the IO failed to prove the conspiracy among the appellants as discussed by me above.
79. One more thing is established from the said cross examination of PW57 that holding of the Trial Court that it was the Hon'ble High Court of Delhi which is the complainant in the case, is wrong, because Hon'ble High Court of Delhi only directed to inquire about the role of the Cooperative Societies and their nexus with the builders. However, technically speaking, it was PW57 IO of the case who is complainant in the case. I have just referred above that to his sweet will, he has not made the RCS Officials, the accused in the case, and has adopted a policy of the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 69 of 80 pick and choose not only qua the accused but during the process of collecting evidence also and that is why it was held in the case titled Megha Singh Vs. State of Haryana, AIR 1995 SC 2339 that the complainant being police official cannot be investigating officer because in such a case accused and prosecution will be deprived of their valuable rights of contradictions and corroborating previous information recorded under Section 154 or 155 Cr.P.C and such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.
80. Coming to the depositions of PW6, PW7, PW16, PW22, PW26, PW27, PW29, PW30, PW31, PW33, PW34, PW35, PW36, PW37, PW38, PW39, PW40, PW41, PW42, PW43, PW44, PW45, PW47, PW49, PW53, out of which, PW6 & PW7 denied the signatures on the documents shown to them but they claimed their name, parentage and address on the documents as correct and belonging to them. PW16 again denied to have heard about any such Cooperative Society and he did not know as to who had given his address as the address of aforesaid Society. PW22 again denied his signatures and that of his wife but he claimed that his name, parentage and residential address and name of his wife have been correctly recorded on the documents. PW27 denied his signatures on the documents but he again claimed that his name, CA No.74/17, 80/17, 81/17 & 84/17 Page No. 70 of 80 parentage, age, name of his wife, address etc. have been correctly recorded in the documents. Similar is the deposition of PW29, PW30 and PW33 further mentioned that she knew accused K. R. Duggal who was her neighbour and he used to visit with her father Sh. J. S. Bajaj at Sector12, R. K. Puram and that they were on visiting terms and even after 1996, she used to meet accused K. R. Duggal and she denied the suggestion that she is not identifying her signatures on the documents under the pressure of CBI. Similarly, PW34, PW36, PW37, PW38 and PW39 have denied their signatures on the documents but they have admitted that their name, parentage and address are correct on the documents. PW42, PW43 and PW49 have denied their signatures on the documents but they have admitted that their name, parentage and address are correct on the documents.
81. The said witnesses in no way impute any criminality to any of the appellants. However, their specimen signatures were not obtained by the IO nor their admitted signatures proved on record and thus, the IO has given them a convenient situation wherein they can easily deny their signatures. Moreover, if the appellants are taken as criminals, engaged in forging and fabricating the documents, it does not appeal to the common sense that appellants will provide exact names, parentage and correct addresses of the said PWs, so that they may be readily available as witnesses to the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 71 of 80 CBI against them. I have already held that sole testimony of the handwriting expert PW54 does not come to the help of prosecution in this case.
82. Now coming to the deposition of PW26, who deposed that he had never heard about the said Society and his signatures are forged on the documents but he denied that he did not know the accused Mahender Kumar Magon or accused R. C. Mishra and he has never seen them prior to his deposition in the Court and he was declared hostile by the Ld. PP for the CBI and was cross examined on behalf of the CBI wherein he denied to have made any statement to the CBI that accused Mahender Kumar Magon, accused R. C. Mishra were known to him and he was confronted with his previous statement where it was found so recorded and he denied the suggestion that he had been won over by the said two accused. PW31 claimed that although, his name, parentage, name of wife, profession, address etc. have been correctly shown in the documents but his signatures on the same have been forged by someone. He denied to have known accused Mahender Kumar Magon or accused R. C. Mishra and he was also cross examined on behalf of the CBI wherein he denied that both the said accused had been visiting his office since the year 19992000. He further replied that he cannot identify the accused in the Court on the day of his deposition. He denied to have told to the CBI in his CA No.74/17, 80/17, 81/17 & 84/17 Page No. 72 of 80 statement that both the said accused might have got access to his particulars and misused the same and he was confronted with his previous statement where it was found so recorded. PW35 deposed that he has been a member of said Society and he was declared hostile by the CBI and was cross examined by the Ld. PP for the CBI wherein he answered that his name, parentage, name of his wife are correctly mentioned on the membership register and he has also signed the same and he was confronted with his statement Ex.PW35/A from portion A to A where it is recorded that his signatures at Q479 are forged. (the PW54, the handwriting expert has also opined so and since a contradictory stand has been taken by this witness, it creates further doubt about the veracity of the said report of handwriting expert).
83. He further answered that signatures on the application at point Q773 for the membership is signed by him and resignation letter Ex.PW1/B1 (D5) could not be said to be belonging to him. He also stated that he attended the AGM meetings dated 16.01.2000 and has signed at point Q97. He admitted that accused K. R. Duggal was his neighbour at Pushp Vihar, New Delhi for about 15 years and Sh. Puneet Duggal son of accused K. R. Duggal is his good friend.
84. PW40 also claimed to have filled up the application form for becoming the member of the said Society and his signatures CA No.74/17, 80/17, 81/17 & 84/17 Page No. 73 of 80 appearing at point Q554 have been forged by someone and he identified his signatures on the original membership application at point Q680 and he was again declared hostile by the CBI and was cross examined by the Ld. PP for the CBI wherein he answered that he never attended the meeting of the Society and he admitted that Smt. Sunita Malhotra is her real sister and that earlier she used to work for accused Sandeep Sahni but he had never met accused Sandeep Sahni. He admitted that his sister had informed him that there was one vacancy in a Cooperative Group Housing Society and in case, he was interested, he could be made a member of the same and that he gave his consent to be a member of the said Society. He volunteered that he had submitted his application for enrollment but he is not aware as to what happened to the said application. He further answered that he has not paid any amount to the Society except the token amount of Rs.100/ which he had given at the time of submitting the application for membership of the Society.
85. PW41 Anil Vohra deposed that 1012 years ago, at the request of Sh. Saxena, he had filled up form for membership of some Housing Society but he did not know its name and has got a receipt of payment of Rs.100/ as membership fee and he identified his signatures on the said application at Q685 and he was declared hostile by the CBI and was cross examined by the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 74 of 80 Ld. PP for the CBI. He was confronted with his previous statement. He answered that he had signed on the application at point Q685 and had also signed at point Q551 of membership register and he admitted that signatures appearing at point Q685 has been made in blue ink, whereas, the signatures appearing at point Q551 has been made in black ink. He admitted that he has not submitted any affidavit to the Society or RCS. He denied his signatures on the affidavit at point Q208 and he did not act as the Vice President of Society. He also denied his signatures on candidature form for nomination to the post. He answered that he never attended any meeting of the Society. He replied that accused Sandeep Sahni is his brotherinlaw. He denied the suggestion that accused Sandeep Sahni had told him that he had been made the Vice President of the said Society and he was confronted with his previous statement where it was found so recorded. He denied to have signed the documents at the instance of accused Sandeep Sahni and he volunteered that he signed at the instance of Mr. Saxena. He replied that he has never discussed about the Society with accused Sandeep Sahni nor accused Sandeep Sahni discussed about the same with him.
86. PW44 deposed that he got job with accused Sandeep Sahni which he was continuing also at the time of his deposition and he identified his signatures on membership form of the Society. He CA No.74/17, 80/17, 81/17 & 84/17 Page No. 75 of 80 was also declared hostile by the CBI and was crossexamined on behalf of the CBI wherein he replied that he could not say if his name was being used for allotment of flat in the Society. He admitted his signatures at point Q555 in the membership register. He denied his signatures on the affidavit. He further denied his signatures at point M3, M4, M5, Q385, Q382, Q379, Q396, Q397 and Q395 and he denied to have remained Secretary of the said Society. He denied his signatures on the balance sheets, receipts and payment account list etc. He denied to have attended any meeting of Executive Committee of the said Society. He denied his signatures on the proceedings of AGM of the Society. He replied that he was never asked by accused Sandeep to be a member of the Society.
87. PW45 admitted her signatures on membership form and he identified her signatures on her affidavit Ex.PW45/A and he also identified her signatures on original membership and she was declared hostile and was cross examined by the Ld. PP for the CBI. She was confronted with her previous statement wherein she had denied the said signatures on the said documents. She denied her signatures on the membership register at point Q559. She also denied her signatures on the nomination form. She admitted that there is a difference in the signatures at point N4, N5 and N1 on document Ex.PW45/A. She admitted that she never attended any CA No.74/17, 80/17, 81/17 & 84/17 Page No. 76 of 80 meeting of the Society and she denied her signatures on the minutes of the meeting.
88. PW47 deposed that in the earlier part of the year 2003, she joined the firm of Sh. S. P. Saxena and Sh. S. P. Saxena, Ashok Chaudhary and accused Sandeep Sahni were the Directors of the said Company and that she left the said company in June 2005 and in the year 2003, Sh. S. P. Saxena asked her to fill up certain forms and also asked whether she was interested in a flat and she was declared hostile by the prosecution and was cross examined by the Ld. PP for the CBI. She was confronted with her previous statement when she denied to have any instructions from accused Sandeep Sahni to fill up the application form and affidavit. She admitted that portion encircled and marked as Q684 on application for membership in the name of Anil Vohra has been put by her. She replied that she did not know if Sh. Anil Vohra is fatherinlaw of accused Sandeep Sahni and one Manisha. She admitted that application form of Manisha was filled by her. She also filled up the form of her brother Sh. Charanjeet Arora but she did not sign the same on his behalf. She identified her signatures on the membership application and affidavit. She denied her signatures on the application Ex.PW1/B4 (D8) and at point Q393 and also on the minutes of the meeting of the Executive and General Body of the said Society. In her further crossexamination CA No.74/17, 80/17, 81/17 & 84/17 Page No. 77 of 80 on behalf of accused, she admitted that accused Sandeep Sahni had never referred about the said Society to her. She further admitted that all the applications filled by her in this Society had been filled at the time when she was working with Sh. S. P. Saxena and she had done so at his instance.
89. PW53 admitted his signatures on the application for membership but denied his signatures on the meeting register and also signatures at point Q556 and deposed that he was given the application form and affidavit by Sh. Saxena to fill the same for the purpose of Ration Card. He was declared hostile by the prosecution and was crossexamined on behalf of CBI wherein he denied to have filled up the said form at the instance of accused Sandeep Sahni. In his crossexamination on behalf of the accused, he admitted that accused Sandeep Sahni never mentioned before him about the said Society.
90. The above said depositions of said hostile witnesses give a further jolt to the so called expert opinion of the handwriting expert PW54 and also exposes the conduct of the IO and belies the story of the prosecution.
91. Coming to the witnesses who have taken notices U/s 160 Cr.PC to certain persons and the Ld. Trial Court has come to the conclusion with regard to the said persons that they are fictitious. PW11 took the notice of one Onkar Sharma where he met one CA No.74/17, 80/17, 81/17 & 84/17 Page No. 78 of 80 Ram Prakash, owner of the premises who informed that no such person was residing at the said address and on 15.05.2006, he took another notice in the name of Rakesh Kumar Singh where no such person was found residing. PW13 took the notices of Farid Hussain and Sh. Mohd. Zafi Khan and he could not trace out the said addresses of the said persons. PW14 took the notices of two persons but could not trace out addresses. PW15 took the notice but the address could not be traced out. PW18 took two notices but he also could not trace out the addresses. PW19 also took two notices in the name of I. C. Sharma and he could not found the said person nor the address of another notice. PW21 took four notices and either he could not trace out the addresses or the persons by the name of Raj Kumar Saluja and Tribhuvan. PW23 took two notices in the name of Kedar Nath and Ramesh Mishra but he could not trace out the addresses. PW32 took two notices and he could not trace out the persons named Rao Sahid and M. Ali.
92. All the said witnesses in their respective crossexamination answered that they have not recorded the statements of the persons with whom they met at the addresses given nor they obtained their signatures on their respective reports. What prevented the IO of the case to make a request to the Trial Court in chargesheet itself to summon the said persons by citing them as witnesses so that the CA No.74/17, 80/17, 81/17 & 84/17 Page No. 79 of 80 truth has come on the record through the Courts' Agency of Process Servers. Merely a person remained untraced or his address could not be located, does not mean that he is a fictitious person. As such, the finding of Ld. Trial Court that the said noticees were fictitious persons, is patently illegal.
93. From my above said discussion, I am of considered opinion that the prosecution not only failed to establish the conspiracy under Section 120B IPC against all the appellants and no corroboration of two weak evidences is permissible under the law and PW12 and PW57 themselves absolved all the appellants for the conspiracy for the offences U/s 420, 468 & 471 IPC and substantive offences also and as such, appeals are allowed and appellants are acquitted of the offences for which they were convicted and sentenced as per the above said impugned orders. Their Personal Bonds and Surety Bonds stand discharged. Trial Court record be sent back alongwith copy of this order.
The file be consigned to Record Room.
Announced in open court on 24.11.2017 (RAKESH TEWARI) District & Sessions Judge (East) Karkardooma Courts, Delhi CA No.74/17, 80/17, 81/17 & 84/17 Page No. 80 of 80