Delhi District Court
Supreme Court Reported As State vs . V.C. Shukla, Air 1980 Sc 1382, on 8 December, 2017
State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
IN THE COURT OF SH. VIRENDER BHAT
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT
ROHINI COURTS COMPLEX, DELHI.
IN THE MATTER OF:
CBI No. : 68/2016 (Old No. 70/2008)
CNR No. : DLNW01-000083-2007
FIR No. : RC BDI/2005/E0011/CBI/BS&FC/NEW DELHI
Under Section: 120B IPC r/w Section 420/468/471 IPC
and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988
and substantive offences and
Under Section 15 r/w Section 13 (1)(d) of PC Act, 1988.
Police Station: CBI/BS&FC/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION
NEW DELHI
VERSUS
CBI No. 68/2016 (Old No. 70/2008) Page No. 1 of 96
State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
1. Narayan Diwakar
S/o Late Sh. Chhathi Lal Diwakar
R/o G-30, Masjid Moth,
Greater Kailash, Part-II,
New Delhi-48.
(Discharged vide order dated 14.12.2015)
.........Accused No. 1
2. Daya Nand Sharma @ D. N. Sharma
S/o Late Sh. Ram Diwaya
R/o 1378, Ist Floor,
Rani Bagh, Delhi-34.
(Discharged vide order dated 14.12.2015)
..........Accused No. 2
3. Faiz Mohd.
S/o Sh. Gulam Mohd.
R/o 4794, Bara Hindu Rao
near Sadar Bazar,
Pahari Dheeraj,
Delhi-6.
..........Accused No. 3
4. Ram Nath,
S/o Late Sh. Bishan Lal,
R/o 192, West Guru Angad Nagar,
Laxmi Nagar,
Gali No. 9,
Delhi-92.
..........Accused No. 4
CBI No. 68/2016 (Old No. 70/2008) Page No. 2 of 96
State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
5. Shrichand
S/o Late Sh. Hari Singh
R/o 274A, Pocket-C,
Mayur Vihar, Phase-III.
Delhi-91.
..........Accused No. 5
6. Anna Wankhede
S/o Late Sh. P. Arunji Wankhede
R/o H. No. 148 E/A-2, Phase-III,
Mayur Vihar,
Delhi-91.
..........Accused No. 6
7. Balam Singh Aswal @ B.S.Aswal
S/o Late Dhyan Singh
R/o P-3, Block-34, Kalyan Vass
Delhi Staff Govt. Quarter,
Near Mayur Vihar, Phase-II,
Delhi-91.
..........Accused No. 7
8. P.K. Thirwani
S/o Late Sh. Moti Ram Thirwani
R/o 348E, Pocket-II, Phase-I,
Mayur Vihar,
Delhi-91.
..........Accused No. 8
CBI No. 68/2016 (Old No. 70/2008) Page No. 3 of 96
State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
Date of Institution : 18.12.2008
Date of judgement reserved on : 01.12.2017
Date of pronouncement of judgement : 08.12.2017
Appearance : Sh. Neetu Singh, Learned Public
Prosecutor for CBI
Sh. S.K. Bhatnagar, Advocate, counsel for
accused Faiz Mohd. (A3), Ram Nath (A4)
and P.K. Thirwani (A8).
Sh. Abhishek Prasad, Advocate, counsel
for accused Shrichand (A5), Anna
Wankhede (A6) and Balam Singh Aswal
(A7)
J U D G E M E N T :-
1. Central Bureau of Investigation, the prosecuting agency "in short CBI" had charge-sheeted above named accused persons for having committed offences under Section 120B IPC r/w Section 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and substantive offences under Section 15 r/w Section 13 (1) (d) of PC Act, 1988.
2. The FIR, in this case, was registered on 31.10.2005 in pursuance to the order dated 02.08.2005 passed by Hon'ble Delhi High Court in Civil Writ Petition No. 10066/2004 directing the CBI to conduct thorough investigation in the whole matter relating to 135 Cooperative Group Housing Societies including Sri Madhuvana CGHS CBI No. 68/2016 (Old No. 70/2008) Page No. 4 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Ltd. It is after conducting the investigation that the charge-sheet, in this case, was laid before the concerned Special Judge in Patila House Court on 29.01.2007.
Factual Matrix:-
3. The case of he CBI is that the accused persons had entered into criminal conspiracy with the object to fraudulently revive Sri Madhuvana CGHS Ltd. Society on the basis of false and forged documents in order to cheat the DDA by gross abuse of their official position as public servants and thus, have also committed the offences of cheating, forgery and use of forged documents as genuine.
4. It is stated that Sri Madhuvana CGHS Ltd. having 16 promoter members was registered with the Registrar Cooperative Society (RCS) office vide Registration No. 155 (H) on 22.04.1972. However, the Society failed to function in accordance with the provision of Delhi Cooperative Society Act as well as Rules framed thereunder. Its accounts remained unaudited since its inception and the list of the members also was not approved by the RCS. Since, the Society was not functional, it was placed under liquidation due to non observation of statutory requirements vide order issued under reference No. 46/47/155/79/H/Coop/1537-43 dated 21.03.1979.
5. It is further case of CBI that in pursuance to the criminal conspiracy, A5 Shrichand submitted a letter dated 24.11.2003 signed by Sh. H. S. Arora, Secretary of the Society in the office of Assistant CBI No. 68/2016 (Old No. 70/2008) Page No. 5 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Registrar (North-West) Zone, RCS office, New Delhi with the request to withdraw winding up order which had been passed against the Society. The letter mentioned that all the short-comings on the basis of which the Society had been ordered to wind up, have been removed. A copy of false and forged letter dated 11.01.1979 regarding the change of address of the registered office of the Society from 19/3 Asif Ali Road to C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi was annexed with the letter dated 24.11.2003. It is stated that the said letter dated 11.01.1979 was signed by Sh. Kamal Kishor Gupta as Secretary of the Society and was addressed to Sh. H.C. Joshi, the then AR (Housing) in the office of RCS. However, Sh. H.C. Joshi had been transferred from the office of RCS in the year 1978 itself and thus was not posted in the said office in the year 1979. Apart from the said letter dated 11.01.1979, copies of the registration certificate purportedly issued under the signature of Sh. G.R. Mata, the then AR (Housing); copies of order of liquidation; bye-laws of the Society purportedly signed by promoter members as well as by Sh. G.R. Mata and copies of election proceedings of Special General Body Meeting purportedly held on 23.11.2003, General Body Meeting purportedly held on 10.01.1979 and a list of 120 members of Sri Madhuvana CGHS Ltd. were also submitted in the office of RCS at that time. However, the investigation revealed that the aforementioned registration certificate and the copies of purportedly bye-laws of the Society were forged documents as Sh. G.R. Mata denied having signed these documents.
6. CBI further alleged that the said letter dated 24.11.2003 was received in the office of RCS by A3 Faiz Mohd. vide Diary No. 4361 CBI No. 68/2016 (Old No. 70/2008) Page No. 6 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) dated 24.11.2003, who then put the same alongwith the annexures before Sh. D.N. Sharma, the then AR (A2). A3 Faiz Mohd. also reported that the original file of the Society was not traceable and recommended for the issuance of a circular/letter to all the concerned Zone/Branches of RCS to make efforts to trace the same. He also prepared favourable note with regards to all the forged documents which had been annexed alongwith the letter dated 24.11.2003 and put up the note before A2 (D.N. Sharma), who endorsed it and later on was approved by A1 Narayan Diwakar on 28.11.2004. Accordingly, a circular was issued on 03.12.2003 in terms of the aforesaid note under the signature of A2 D.N. Sharma. Thereafter, A3 Faiz Mohd. prepared another note on 16.12.2003 recommending that the file pertaining to the Society may be reconstructed on the basis of information furnished by the Society and also recommended that A4 Ram Nath may be deputed to conduct an inspection of the Society under Section 54 of DCS Act, 1972. The said note was also dishonestly endorsed by A2 D.N. Sharma on 16.12.2003 itself and was approved by A1 Narayan Diwakar on 17.12.2003.
7. Further, case of the prosecution is that A1, A2 and A3 did not take any steps to verify the claim for revival of the Society or its winding up details. They also omitted to initiate any enquiry about the missing file of the Society and did not report the matter to police. A1 Narayana Diwakar is stated to have ignored the liquidation order deliberately and approved the reconstruction of the file. Meanwhile, A4 Ram Nath in furtherance to the object of the criminal conspiracy, submitted a false inspection report with regard to the verification of the registered office of the Society in Sector-9, Rohini, Delhi. He falsely CBI No. 68/2016 (Old No. 70/2008) Page No. 7 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) reported that Sh. H.S. Aroa, Secretary of the Society produced all the relevant record before him; that there were 120 members in the Society; that the registered office of the Society was shifted from Asif Ali Road to Sector-9, New Delhi; that the election of the Managing Committee of the Society was held on 23.11.2003; that the membership register of the Society was complete in all respect; that the accounts of the Society were unaudited since registration and Society prepared up to date accounts till 31.03.2003; the last meeting of the Society was held on 24.11.2004; that the Society's records were in safe custody of Sh. H.S. Arora and various office bearers of the Society had been elected in the Special General Body Meeting held on 23.11.2003.
8. It is revealed from the Investigation that the previous registered office of the Society i.e. 19/3, Asif Ali Road, New Delhi was non existant and the new address of the Society C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi is flat owned by Mr. H.S. Arora, who denied that the registered office of the Society was situated in the said flat at any point of time. All the elected Management Committee Members of the Society except Smt. Seema Aggarwal (President) and Sh. H.S. Arora (Secretary) were found to be non existing at the address mentioned in the record of the Society. Smt. Seema Aggarwal and Sh. H.S. Arora also denied having been members of the Society.
9. It is further alleged by CBI that A3 Faiz Mohd again prepared a favourable note on the basis of the false report submitted by A4 Ram Nath and put up the same in the reconstructed file mentioning therein that the Secretary of the Society had attended the office on CBI No. 68/2016 (Old No. 70/2008) Page No. 8 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) 22.01.2004 and submitted the copies of the records including unaudited accounts from 01.07.1971 to 31.03.2003 etc. He further requested to competent authority to consider revival of the Society under Section 63 (3) of DCS Act, 1972 and to approve the freeze strength of 120 members for allotment of the land by DDA. The note was again dishonestly endorsed by A2 D.N. Sharma and was sent to Reader to RCS, who recommended for issuance of the notice for appearance of President/Secretary of the Society in the Court of RCS on 26.02.2004, which was approved by A1 Narayan Diwakar. The notice was issued by the Reader on 12.01.2004, which was received by A5 Shrichand personally on behalf of the Society. However, in furtherance to the criminal conspiracy, A1 Narayan Diwakar dishonestly and fraudulently called for the file of the Society on 13.01.2004 even though the notice had been issued for the date 26.02.2004 and ordered AR D.N. Sharma (A2) to conduct physical verification of the members at random as well as the spot verification and to submit a report before the next date of hearing i.e. 26.02.2004.
10. CBI further alleged that A2 D.N. Sharma in furtherance to the criminal conspiracy issued a letter on 16.01.2004 to the President/Secretary of the Society directing him to appear on 25.01.2004 alongwith the original record of the Society. The said letter was delivered to A5 Shrichand. On the same day, D.N. Sharma also directed A3 Faiz Mohd. to conduct physical verification of the members at random. It is stated that Faiz Mohd. did not conduct any physical verification of the members at random or spot verification of the Society members and submitted a bogus/fake verification report on 22.01.2004 in this regard. He mentioned in the report that he had CBI No. 68/2016 (Old No. 70/2008) Page No. 9 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) conducted the physical verification of 12 members of the Society and also obtained certificates regarding their bonafide membership of the Society as well as copies of their respective ration cards, but only 8 out of these 12 members were found in existence at the given addresses where remaining four members were found to be non existant. Even those 8 members, who were found residing at the given addresses, also denied having given the aforesaid said certificate and ration cards to Faiz Mohd. and also stated that they are not members of the Sri Madhuvana CGHS Ltd. It came out during investigation that the certificates were prepared and forged by A6 Anna Wankhede, an employee of A5 Shrichand.
11. Further, case of CBI is that A3 Faiz Mohd. prepared another detailed favourable note dated 23.01.2004 whereby he recommended for revival of the Society and forwarding the approved list of 120 members of the Society to DDA for allotment of the land. The note was again favourably endorsed by A2 D.N. Sharma. At the same time, even though A1 Narayan Diwakar had earlier fixed date of hearing in the matter as 26.02.2004, heard the matter suo-moto on 19.02.2004 and reserved the same for orders. Ultimately, he passed order for revival of the Society on 01.03.2004 purportedly in the presence of Smt. Rashmi Gulati, Advocate, who represented the Society. However, he put a condition that the cancellation of winding up order and revival of the Society is subject to pending audit and election of the Management Committee which hall be got completed within two months time. He also appointed A7 Balam Singh Aswal again as an election officer to conduct the election of the Society.
CBI No. 68/2016 (Old No. 70/2008) Page No. 10 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
12. Investigation further revealed that Smt. Rashmi Gulati, who had represented the Society before A1 Narayan Diwakar, was engaged by A5 Shrichand, who had provided all the requisite documents to her. Thereafter, A2 D.N. Sharma dishonestly forwarded the name of the Society to AR (Policy) alongwith the approved list of 120 members with a request to forward the same to DDA for allotment of the land. Even though, the election and audit of the Society had not been conducted till then. Sh. Yogi Raj, AR (Policy) forwarded the name of the Society alongwith the approved list of the 120 members to DDA vide letter No. F-47/19/NGH/Coop/298 dated 25.03.2004 for allotment of the land.
13. CBI further alleged that A7 Balam Singh Aswal had not conducted the election of the Society and instead submitted a false and bogus report in this regard mentioning therein that the elections were conducted on 04.04.2004 in which 59 members of the Society participated whereas most of these members were either non existant or denied being members of the Society. He submitted the report with regard to the election proceedings to the office of RCS on 16.04.2004 alongwith the name of successful Management Committee Members i.e. Smt. Seema Aggarwal (President), Sh. K.C. Gupta (Vice- President), Sh. H.S. Arora (Member), Sh. R.K. Aggarwal (Member) and Gurpreet Kaur (Member). Out of these, Sh. K.C. Gupta and Sh. R.K. Aggarwal and Gurpreet Kaur were found to be non existing at their respective given addresses. Smt. Seema Aggarwal and Sh. H.S. Arora also denied having been members of the Society or having filed nominations for any post in the Management Committee of the Society. It is stated that thus A7 Balam Singh Aswal facilitated CBI No. 68/2016 (Old No. 70/2008) Page No. 11 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) fraudulently revival of the Society.
14. It is also alleged by CBI that A8 P.K. Thirwani who was appointed as auditor to conduct audit of the Society, submitted a false and fictitious audit report for the period 1971-72 to 2002-03 purportedly conducted by him from 05.03.2004 to 08.03.2004 without visiting the registered office of the Society at Rohini for the said purpose, without checking bank account of the Society which is mandatory as per DCS Act and Rules, without ensuring the presence of President as well as Secretary and Treasurer of the Society during the course of the said audit and got appended false and forged signature of Smt. Seema Aggarwal as President and Sh. R.K. Aggarwal as Treasurer of the Society upon the brief summary as well as balance-sheet annexed with the audit report in order to show that these two persons were present during his audit proceedings. It came out during the course of the investigation that Sh. R.K. Aggarwal did not reside at the given address and signature of Smt. Seema Aggarwal was forged. It is stated that A8 P.K. Thirwani submitted a false audit report to facilitate the revival of the Society and give legitimacy to the said fraudulent revival of the Society.
15. CBI further alleges that false and forged accounts of the Society were prepared by Sh. Neeraj Kumar (Chartered Accountant) through his employee Md. Anees Khan on the request of A5 Shrichand and the documents produced by him consisting of list of the members, list of managing committee, share money receipts etc. for the period 01.07.1971 to 31.03.2003 on their computer and for which he was paid Rs. 6,000/- in cash as professional charges by A5 Shrichand. It is CBI No. 68/2016 (Old No. 70/2008) Page No. 12 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) further stated that all the 120 stamp papers, of the denomination of Rs. 10/- each which were used for swearing of the false and forged affidavits were procured by A6 Anna Wankhede in the name of alleged members vide S. No. 154740 to 154860 dated 24.11.2003 from Sh. Ravi Robinson who purchased the said affidavits from Mr. P.R. Bhatia, stamp vendor having License No. L-262, Old Court Building, Parliament Street, New Delhi. It was found that these 120 affidavits were attested by Sh. K.K. Kaul, Notary Public on a single day i.e. 24.11.2003 and he did not enter the particulars of the deponent of these affidavits in the register maintained by him. Investigation further reveals that 2 affidavits bearing No. 169313 and 164671 as well as 1 affidavit without any serial number were in fact purchased in the name of Taj CGHS Ltd., but were used to prepare affidavit of Smt. Seema Aggarwal and Sh. H.S. Arora for the revival proceedings of Sri Madhuvana CGHS Ltd.
16. It is stated that A1 Narayan Diwakar, the then Registrar Cooperative Societies, New Delhi, A2 D.N. Sharma, the then Assistant Registrar, A3 Faiz Mohd., the then Grade-II/Dealing Assistant, A4 Ram Nath, the then Inspector Grade-II, A7 B.S. Aswal, the then LDC and A8 P.K. Thirwani, the then Auditor in the office of RCS, by abusing their official position as public servants and in criminal conspiracy with A5 Shrichand as well as A6 Anna Wankhede knowingly used as genuine the aforesaid forged documents which they knew or had reason to believe to be forged documents and thereafter A1 Narayan Diwakar revived the Society illegally, also approved the freeze list of 120 members of the Society and also dishonestly induced DDA to allot land in favour of the Society. It is stated that hand writing expert has CBI No. 68/2016 (Old No. 70/2008) Page No. 13 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) confirmed the forgeries committed by A6 Anna Wankhede on the affidavits and certificates and other documents submitted for fraudulent revival of the Society.
17. Charge-sheet also mentions that A1 Narayan Diwakar revived large number of Societies during his tenure as RCS dishonestly and in similar fashion. It also states that A5 Shrichand has been charge- sheeted in another case bearing RC No. 9 (E)/2005/EOW-I which relates fraudulent revival of the Taj CGHS Ltd. It is also mentioned in the charge-sheet that sanction for prosecution of A4 Ram Nath A7 Balam Singh Aswal and A8 P.K. Thirwani under Section 19 (1) of the PC Act, 1988 has duly been obtained from the competent authority whereas no such sanction for prosecution of A1 Narayan Diwakar, A2 D.N. Sharma, A3 Faiz Mohd is required as they have since retired from the government service.
Charges framed against the accused:-
18. Vide order on charge dated 14.12.2015, it was held that evidence collected by CBI is not sufficient to make out prima-facie case against A1 Narayan Diwakar, A2 D.N. Sharma for any of offence as mentioned in the charge-sheet and thus they were discharged accordingly. As regards the other accused, it was held as under:
(a) Prima-facie a case is made out against Shrichand (A5) and Anna Wankhede (A6) for the offence punishable under Section 120B IPC read with Section 420/468/471 IPC.
CBI No. 68/2016 (Old No. 70/2008) Page No. 14 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
(b) Prima-facie a case is also made out against Shrichand (A5) for the offence punishable under Section 420 IPC.
(c) Prima-facie a case is also made out against Anna Wankhede (A6) for the offence punishable under Section 468/471 IPC.
(d) Prima-facie a case is also made out against Faiz Mohd. (A3) and Ram Nath (A4) for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (ii) of PC Act.
(e) Prima-facie a case is also made out against Faiz Mohd. (A3) and Ram Nath (A4) for the offence punishable under Section 13 (2) read with Section 13 (1) (iii) of PC Act.
(f) Prima-facie a case is also made out against Balam Singh Aswal (A7) and P.K. Thirwani (A8) for the offence punishable under Section 15 of PC Act read with Section 13 (1) (d) (ii) and (iii) of PC Act.
19. Hence, charges mentioned herein above were framed against A3 Faiz Mohd., A4 Ram Nath, A5 Shrichand, A6 Anna Wankhede, A7 Balam Singh Aswal and A8 P.K. Thirwani on 21.01.2016 to which all of them pleaded not guilty and claimed trial. Therefore, the prosecution CBI No. 68/2016 (Old No. 70/2008) Page No. 15 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) i.e. CBI was called upon to lead evidence to substantiate the charges against the aforesaid six accused.
Prosecution witnesses:-
20. The prosecution has examined 71 witnesses to bring home the guild of accused. These witnesses can be broadly classified as under:-
(A) Original/Founder members of the Society:-
PW-23 Sh. Subhash Chand PW-25 Sh. Shekhar Gupta PW-26 Sh. Sunil Kumar PW-27 Sh. Manoj Kumar PW-44 Smt. Nirmal Kishore PW-47 Smt. Kamla Gupta (B) Fake/Non existing members of the Society:-
PW-1 Sh. Ravi Shankar Gupta PW-2 Sh. Santosh Kumar PW-4 Sh. Kamal Kishore PW-5 Sh. Naunihal Chand PW-6 Sh. Dhanesh Kumar PW-7 Sh. Sanjay Kumar PW-8 Sh. Anurag Gupta PW-9 Sh. Ram Gupta CBI No. 68/2016 (Old No. 70/2008) Page No. 16 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) PW-10 Sh. Sushil Kumar PW-11 Sh. Vishnu Bhagwan PW-13 Sh. Rajender Prasad PW-14 Sh. Raj Kumar PW-15 Sh. Anand Prakash PW-16 Sh. Rajender Kumar PW-17 Sh. Yodhmal PW-18 Sh. Swami Rajender Prasad PW-19 Sh. Har Gopal PW-20 Sh. Sanjay Kumar Gupta PW-21 Sh. Raj Kumar Gupta PW-22 Sh. Vinod Kumar PW-24 Sh. Dhanraj PW-28 Sh. Sunil Kumar PW-29 Sh. Manoj Kumar PW-30 Sh. Sanjay Gupta PW-31 Sh. Kishan Gopal PW-32 Sh. Jai Dayal PW-33 Sh. Roshan Lal PW-34 Sh. Sunil Kumar PW-36 Sh. Ramesh PW-37 Smt. Kusum Lata PW-38 Sh. Parveen PW-39 Sh. Arun Kumar PW-40 Sh. Umesh Kumar PW-41 Sh. Jai Chand PW-42 Sh. Sanjay Kumar PW-43 Sh. Sunil Saxena CBI No. 68/2016 (Old No. 70/2008) Page No. 17 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) PW-45 Smt. Seema Aggarwal PW-50 Sh. Kewal Kumar PW-54 Sh. Harjeet Singh PW-56 Sh. Naresh Khanna (C) Witnesses from the office of RCS:-
PW-48 Sh. Ashok Bakshi PW-52 Sh. Mahender Singh PW-55 Sh. Yogi Raj PW-60 Sh. C.L. Roy PW-61 Sh. Satya Parkash PW-64 Sh. M.P. Sharma PW-66 Sh. Rakesh Bhatnagar PW-67 Sh. N.D. Kaushik PW-68 Sh. Sanjeev Bharti PW-69 Sh. N.S. Khatri (D) Witnesses to taking of specimen/signatures/writings:-
PW-3 Sh. Tek Chand PW-12 Sh. R.S. Rayat (E) Signature/handwriting Expert:-
PW-70 Sh. R. Chandra CBI No. 68/2016 (Old No. 70/2008) Page No. 18 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) (F) Sanctioning Authority for prosecution of the accused:-
PW-35 Sh. Ramesh Narayanswami PW-49 Sh. Baleshwar Rai (G) Other witnesses:-
PW-46 Smt. Rashmi Gulati PW-51 Sh. Paras Nath PW-53 Sh. Krishan Kumar Kaul PW-57 Sh. Neeraj Kumar PW-58 Sh. Sushil Kumar Sharma PW-59 Sh. Mohan Lal PW-62 Sh. R.C. Khandelwal PW-65 Sh. Avinash Kumar (H) Witnesses from CBI:-
PW-63 Insp. Vishal PW-71 IO/Insp. V.S. Yadav
21. Additionally, vide order dated 08.03.2016, CBI was directed to file the deposition of the witnesses whose names are mentioned at S. No. 83 to 115, 129 and 130 in the list of witnesses alongwith the charge-sheet on affidavit. Accordingly, affidavits of 30 witnesses were filed on 13.05.2016 in compliance with the said order. It was further submitted on that date that 4 witnesses namely Suraj Pal, Karan Singh, Raj Kumar and Rajpal have already expired and therefore, their CBI No. 68/2016 (Old No. 70/2008) Page No. 19 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) names were dropped from the list of witnesses. Another witness namely Sh. Baleshwar Rai was stated to be out of station and his affidavit in evidence was filed on 11.07.2016.
22. On the same day i.e. 11.07.2016, Ld. Counsel for the accused moved an application seeking to summon witnesses Sh. Ramesh Narayanswami and Sh. Baleshwar Rai, whose evidence was led by the CBI by way of affidavits, for cross-examination. Hence, both these witnesses were summoned and examined as well as cross-examined as PWs 35 and 49 respectively.
23. It also needs to be pointed out here that during the course or admission /denial of the documents conducted on 21.01.2016, following documents were admitted by A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani:-
S. No. Name of the Nature of Documents D. No. Exhibit accused
1. P.K. Thirwani Check list page No. 2 of D-5 Ex.A8/1 audit report
2. P.K. Thirwani Appointment Letter D-5 Ex.A8/2
3. P.K. Thirwani Brief Summary D-5 Ex.A8/3
4. P.K. Thirwani Details of documents D-5 Ex.A8/4
5. P.K. Thirwani Audit Report Proforma D-5 Ex.A8/5 from page No. 5 to 215
6. P.K. Thirwani Specimen signatures D-5 Ex.A8/6 from S-65 to S-109
7. Ram Nath Inspection Report with D-3 Ex.A4/1 covering letter CBI No. 68/2016 (Old No. 70/2008) Page No. 20 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
8. Ram Nath Specimen signatures/ D-22 Ex.A4/2 handwritings from S-12 to S-25
9. Faiz Mohd. Note sheet dated D-3 Ex.A3/1
24.11.03 regarding (Vol. I) receipt of documents from Secretary of the society.
10. Faiz Mohd. Note sheet dated D-3 Ex.A3/2 16.12.03 regarding (Vol. I) proposal for revival of society.
11. Faiz Mohd. Note sheet dated D-3 Ex.A3/3 30.12.03 for signature (Vol. I) on order for revival
12. Faiz Mohd. Note sheet dated D-3 Ex.A3/4 05.01.04 for appointing (Vol. I) Inspector Officer
13. Faiz Mohd. Physical verification D-3 Ex.A3/5 dated 22.01.04.
(Vol. II)
14. Faiz Mohd. Documents attached D-3 Ex.A3/6 with physical (Vol. II) verification.
15. Faiz Mohd. Specimen signatures D-22 Ex.A3/7 from S-1 to S-11 (Vol. I)
16. Balam Singh Election of Managing D-8 Ex.A7/1 Aswal Committee 17 Balam Singh Specimen signatures D-22 Ex.A7/2 Aswal from S-61 to 64 CBI No. 68/2016 (Old No. 70/2008) Page No. 21 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.)
24. However, A5 Shrichand and A6 Anna Wankhede denied all the documents stated to be pertaining to them.
Statements of accused under Section 313 Cr. P.C:-
25. All the incriminating evidence was put to the accused in their statements recorded under Section 313 Cr. P.C on 18.07.2017, 26.07.2017 and 27.07.2017 which they denied and claimed false implication.
26. Accused Faiz Mohd further stated that there are neither any standing instructions for physical verification of the members of a Society nor is there any Rule or Provision in this regard in DCS Act, 1972. According to him, physical verification is done from the records of the office as per practice. He also stated that no senior official in the office of RCS has pointed out any lapse or deficiency in his report. He stated that there is no evidence that he demanded or received any financial or pecuniary gain in this case or that he violated any provision of DCS Act/Rules in dealing with the file or in conducting physical verification of the members.
27. Accused Ram Nath stated that there is no evidence showing any deficiency or illegality in the inspection report submitted by him. According to him, inspection under Section 54 of DCS Act is done from the records of the Society produced by the Society through its representatives and there is no requirement to meet the members of the Society as no such specific instructions were issued to him in this regard by his seniors. He also stated that inspection under Section 54 CBI No. 68/2016 (Old No. 70/2008) Page No. 22 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) of DCS Act is not a pre-requisite for revival of the Society and there is no evidence on record that any demand for pecuniary advantage was made by him.
28. In his statement, accused Shrichand claimed that he never approached Neeraj Kumar for preparation of the accounts of Sri Madhuvana CGHS. However, he did not deny that he was Vice- President of Naval Technical Officers CGHS Ltd. of which Mohan Lal was the President and that Sh. Mohan Lal (PW59) had introduced accused Anna Wankhede to him and he had given some job to Anna Wankhede in his office. He denied that documents relating to Sri Madhuvana CGHS Ltd. were produced either by him or Anna Wankhede in the office of RCS. He also denied that accused Anna Wankhede had signed the stamp papers at his instance. He stated that he had no concern or dealing with Sri Madhuvana CGHS Ltd. at any point of time and neither he nor any of his family members/relatives was member of the said Society.
29. Accused Anna Wankhede stated that he was doing job of housing keeping and serving tea, water, refreshment etc. to the visitors and members of Naval Technical Officers CGHS Ltd and had no concern with the Society in question i.e. Sri Madhuvana CGHS Ltd. However, he has not denied that he was introduced to accused Shrichand by Sh. Mohan Lal (PW59), the President of Naval Technical Officers CGHS Ltd. and that Shrichand had given him some job in his office. He denied having signed any stamp papers at the instance of accused Shrichand.
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30. Accused Balam Singh Aswal denied that he had not conducted any election of the Management Committee of Sri Madhuvana CGHS Ltd. According to him, the election was conducted by him in the office of RCS as per Rules. He also stated that he was only a matriculate and if there appeared any short-comings on his part in official discharge of his function, the same are on account of his lack of experience and knowledge.
31. Accused P.K. Thirwani stated that he was assigned the job of conducting audit of Sri Madhuvana CGHS Ltd for the period 01.07.1971 to 31.03.2003 by Sh. J.S. Sharma, the then AR (Audit). He stated that he conducted the audit on the basis of the records produced by the Society. According to him, the audit is conducted on the basis of the records of the Society produced before the Auditor and the Auditor does not go to the bank for checking of the accounts as it is not in his power under DCS Act. He denied that any such documents relating to the Society were produced before him in the office of RCS either by accused Shrichand or by accused Anna Wankhede. He also denied that these documents were prepared in his office. He pointed out that he had raised serious objections in his audit report pertaining to the Society in question, which shows that he was not in collusion with any person related to the Society. He also stated that there is no evidence on record that he has cheated any person or has used any forged document. He claimed to have done his duty in good faith and to have conducted the audit of the Society's record as per the records produced by the Society after its revival.
CBI No. 68/2016 (Old No. 70/2008) Page No. 24 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Defence Evidence:-
32. A3 Faiz Mohd., A4 Ram Nath, A6 Anna Wankhede and A7 Balam Singh Aswal stated that they do not want to lead evidence in their defence. However, A5 Shrichand and A8 P.K. Thirwani stated that they wish to lead evidence in their defence. Accordingly, case was adjourned for defence evidence. However, none of them produced any witness in their defence and accordingly defence evidence was closed on 25.09.2017.
33. I have heard Ld. Public Prosecutor representing CBI and Ld. Defence counsels Sh. S.K. Bhatnagar and Sh. Abhishek Prasad representing accused persons. I have also perused the entire oral and documentary evidence on record. Needless to say that the Ld. PP as well as Ld. Defence counsels have painstakingly taken me through entire voluminous evidence recorded in this case.
Submissions made by Ld. Public Prosecutor for CBI:-
34. Ld. PP submitted that even though accused Narayan Diwakar and D.N. Sharma have been discharged in this case, they were actively involved in the conspiracy for fraudulent revival of the Sri Madhuvana CGHS Ltd on the basis of forged and fabricated documents. He stated that the order whereby these accused have been discharged, has been assailed by the CBI in the High Court and the matter is still pending disposal there.
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35. He argued that A1 Narayan Diwakar ordered the reconstruction of the original missing file pertaining to Sri Madhuvana CGHS Ltd without holding any enquiry about its loss/misplacement and also approved the reconstruction of the file dishonestly and then approved the freeze list of the members in the Society without looking into the fact as to whether or not was the election and audit of the Society conducted as per Rules. He argued that A2 D.N. Sharma, the then Assistant Registrar in the office of RCS, was also active member in the conspiracy and had recommended the revival of the Society on the basis of false and forged documents.
36. Ld. PP submitted that he would not be arguing in detail about the exact role played by these two accused in the conspiracy as they have been discharged in this case by this Court and the matter is subjudice in the High Court, but has highlighted their role in brief in order to show as to how and in what manner has the object of the conspiracy been fulfilled by all the accused who were doing their acts only to fulfil the said objective.
37. Ld. PP would submit that in pursuance to the conspiracy hatched by all the accused, A3 Faiz Mohd put up the note to the effect that the original file of the Society is not traceable and also recommended the reconstruction of the file on the basis of false information furnished by the Society. He argued that A3, who was dealing assistant in the office of RCS, accepted the false and forged documents for revival of the Society and also submitted a bogus physical verification report regarding 12 members of the Society. He further stated that similarly A4 Ram Nath also submitted a false CBI No. 68/2016 (Old No. 70/2008) Page No. 26 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) inspection report with regard to the verification of the registered office of the Society in order to facilitate the revival of the Society on the basis of fraudulent documents.
38. As regards A5 Shrichand, Ld. PP submitted that he had got prepared the false and fictitious documents for revival of the Society and submitted the same in the office of RCS. He pointed out that this accused used two stamp papers as affidavit in the name of Secretary and President of the Society which have been purchased in the name of Taj CGHS Ltd., which Society is subject matter of another CBI case bearing RC No. 9/2005-EOW-I in which also Shrichand has been charge-sheeted. According to Ld. PP, Shrichand was the brain behind the entire conspiracy for revival of the Society in question on the basis of false and forged documents. He further argued that A6 Anna Wankhede had arranged stamp papers for preparation of affidavits of 120 fake members of the Society and forged those affidavits at the instance of accused Shrichand.
39. It is further submitted by Ld. PP that A7 Balam Singh Aswal submitted a false election report regarding the election of Managing Committee Members of the Society whereas no election had in fact been conducted at all. He submits that accused Balam Singh Aswal showed the presence of 59 members in the elections whereas most of the members were later on found to be either not existing or having denied being the members of the Society. He further submitted that similarly A8 P.K. Thirwani prepared the false and fictitious audit report of the Society whereas he neither visited registered office of the Society nor met any of the members of its Managing Committee CBI No. 68/2016 (Old No. 70/2008) Page No. 27 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Members. He argued that the said accused forged the signature of Managing Committee Members on the audit report as all of those who were found to be non existing except President and Secretary of the Society, who have denied their signatures on the report.
40. Ld. PP argued that CBI has proved its case against all the accused beyond reasonable doubt. According to him, all the public servants were acting in connivance with Shrichand and were helping him, actively and intentionally, to get the Sri Madhuvana CGHS Ltd revived on the basis of forged and fictitious documents, which Society was dormant for several years. It is contended that in view of the judgement of Delhi High Court, the land was to be allotted by the DDA on the basis of seniority, which was fixed having regard to the date of registration of the Society and therefore, newly created Society would not have got any land. It is for this reason that false and forged documents were created with active connivance of the RCS officials for revival of dormant Society, which was duly registered in the office of RCS since April, 1972 and therefore, was eligible for allotment of land as per seniority. Ld. PP submitted that each of the accused has played vital role towards fulfilment of the objective of the conspiracy, which is duly established in the evidence led by the CBI and therefore, all of them are liable to convicted.
Submissions of the Ld. Defence counsels:-
41. Sh. S.K. Bhatnagar, Ld. Counsel appearing for A3 Faiz Mohd., A4 Ram Nath and A8 P.K. Thirwani has contended that they have been implicated falsely in this case by the CBI. He submitted that CBI No. 68/2016 (Old No. 70/2008) Page No. 28 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) these three accused, who were lower rung employee in the office of RCS, were merely discharging their respective official duties and had no reason to know or suspect that the documents being produced before them by A5 Shrichand were forged and fabricated. He pointed out that accused Faiz Mohd was head clerk in the office of RCS and had retired from service on 28.02.2004 i.e. three days prior to the revival of the Society. He submitted that two notings attributed to this accused were bonafide and without any criminal intention and at the most he could be said to have not acted as per Rules of DCS, which do not attract any criminal liability. It was contended that only action under DCS Act was liable to be taken against these accused. Ld. Counsel submitted that accused Faiz Mohd had conducted physical verification of the records of the Society only, as required, and had not conducted physical verification of the members of the Society as contended by the CBI.
42. As regards A4 Ram Nath, Ld. Counsel submitted that he was posted as Head Clerk, LDC in the office of RCS and there is no evidence to show that he had given a false verification report qua Society in question. He argued that report submitted by this accused was absolutely correct. There is no evidence to show that he demanded any bribe from anyone whatsoever for giving false report or that he had received bribe from any person. He further contended that the sanction for prosecution of the accused under Section 19 of Prevention of Corruption Act is invalid for the reason that it has been accorded without application of mind to the facts and circumstances of the case and also for the reason that it mentions about the offences under Penal Code also. According to him, the sanction for prosecution CBI No. 68/2016 (Old No. 70/2008) Page No. 29 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) of this accused is not proper and therefore, whole trial is vitiated and the accused is liable to be acquitted on this score alone. He would also argue that no offence at all is made against this accused as there is no evidence led by CBI to show that any department or any public person has suffered any loss on account of any act of the accused.
43. Ld. Counsel further contended that A8 P.K. Thirwani is not named in the FIR and had entered the scene after the revival order had been passed by the RCS. Therefore, he cannot be said to be co- conspirator. He submitted that audit report submitted by this accused on 10.03.2004 was examined by the RCS officials and no irregularities was pointed out in the same. It was aso argued by him that accused P.K. Thirwani had raised various objections in the audit report and therefore, he cannot be said to have favoured the Society or the other accused. Lastly, Ld. Counsel contended that freeze list of the members of the Society had already been approved on 03.03.2004 i.e. much before the submissions of audit report by this accused and therefore, no criminal intent can be attributed to him and is liable to be acquitted.
44. Sh. Abhishek Prasad, Ld. Counsel appearing for A5 Shrichand, A6 Anna Wankhede and A7 Balam Singh Aswal also pleaded for their acquittal saying that they have been framed in this case by the CBI. As regard A7 Balam Singh Aswal, Ld. Counsel contended that the revival order was not based on the elections conducted by this accused and therefore, he cannot be viewed as a co-conspirator. It is contended that he was Class-IV employee and did not know how to conduct the elections. He submitted that there may be some CBI No. 68/2016 (Old No. 70/2008) Page No. 30 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) irregularities in conducting of the elections by this accused, but no culpability can be attached to him as there is no evidence of any corruption against him.
45. Arguing for A5 Shrichand, Ld. Counsel submitted that there is no evidence on record to show that he was involved in sending the list of alleged fake members of the Society to the office of RCS. It is contended that no offence under Section 420 IPC is made out as there is no evidence to show that no loss was suffered by DDA or any other authority. According to the Ld. Counsel, witnesses PW52 and PW57, who have deposed against accused Shrichand, are not trustworthy for the reason that PW52 is a stock witness of the CBI and PW57 is a planted witness. He submitted that these two witnesses cannot be expected to identify the signature of accused Shrichand on the documents in the Court after such a long gap in between and they appear to have deposed falsely at the behest of CBI. He contended that the identity of accused Shrichand to be person who had submitted false and forged documents in the office of RCS for revival of the Society is not established from the evidence on record.
46. As regards A6 Anna Wankhede, Ld. Counsel submitted that there is no evidence to show that he had purchased or received the stamp papers on which the fictitious affidavits are stated to have been prepared. He contended that the report of handwriting expert PW70 cannot be believed as he has evidently given his opinion without examining the documents.
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47. Ld. Counsels, thus, prayed for acquittal of all the accused. In support of their respective contentions, Ld. Counsels have also relied upon several judgements, which would be referred to at appropriate places hereinafter.
Evaluation of the evidence and findings:-
48. It is not in dispute that a Housing Society by the name Sri Madhuvana CGHS Ltd. have been formed in the year 1972 having 16 promoter/founder members and the same was duly registered with the office of Registrar Cooperative Societies (RCS), on 22.04.1972. It was given the Registration No. 155 (H). PW23, PW44 and PW47 were its members. PW47 has deposed that she was either the President or the Secretary of the Society and one Ms. Syamla Gupta was also an Executive Member of the Society. According to her, the female teaching staff of Lady Sri Ram College, New Delhi and Kamla Nehru College were the members of the Society. She further deposed that since the location of the plot of land allotted to the Society was not as per their choice, they decided to wind up the Society and accordingly, the Society was dissolved. The deposit money was returned to the members and no activity took place in the Society thereafter.
49. PW44 has corroborated the deposition of PW47.
50. It is not clear from the evidence on record as to how many persons in total had become the members of Sri Madhuvana CGHS Ltd. in the year 1972 and thereafter till it was later on dissolved/wound up.
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51. PW48 was posted as Dy. Registrar in the office of RCS in the year 1978. He had passed liquidation order Ex.PW48/A qua Sri Madhuvana CGHS Ltd. The detailed reasons for the liquidation of the Society have been mentioned in the aforesaid order. The correctness / legality or otherwise of those reasons need not be gone into in these proceedings.
52. Hence, it is evident that Sri Madhuvana CGHS Ltd was formed in the year 1972 and registered with the office of RCS on 22.04.1972 vide Registration No. 155 (H) was brought under liquidation vide order dated 21.03.1979 (Ex.PW48/A).
53. It appears that proceedings for revival of the said Society i.e. cancellation of the liquidation order/winding up order passed qua the same, were initiated in the year 2003 by submitting a letter dated 24.11.2003 in the office of the RCS. Copies of certain documents relating to the functioning of the Society including a list of its 120 members were annexed with the said letter. The winding up order dated 21.03.1979 was ultimately cancelled by the then Registrar Cooperative Societies Sh. N. Diwakar (A1) vide his order dated 01.03.2004. It is the case of CBI that the letter dated 24.11.2003 seeking revival of the Society was submitted in the office of RCS by A5 Shrichand, who had entered into a conspiracy with the other accused persons to get the Society revived on the basis of forged documents and fake membership list, which were accepted by A3, A7 and A8 without any objection/demur, who also prepared favourable notes on the basis of these fake/forged documents and thus the revival order dated 01.03.2004 was passed.
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54. The letter dated 24.11.2003 (Mark PW54/1) is on the letterhead of Sri Madhuvana Cooperative Group Housing Societies Ltd. showing its address as C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi and is signed by H.S. Arora as its Hony. Secretary. It was vehemently argued by Ld. Counsel for accused Shrichand that there is no evidence on record to show or suggest that the aforesaid letter alongwith the documents relating to the Society was submitted in the office of RCS by Shrichand.
55. PW52 was posted in the office of RCS, North-West Zone, Parliament Street in the year 2003-04. He has deposed in clear words that on 24.11.2003, Shrichand had given a letter to him on behalf of Sri Madhuvana CGHS Ltd., which he handed over to accused Faiz Mohd., who received the same by putting his signature at point A on the dispatch Register Ex.PW52/B. He also stated that he can identify Shrichand. But accused Shrichand was not present on that day and the counsel representing him submitted that the identity of accused Shrichand is not in dispute. It is probably for this reason that the deposition of PW52 with regards to identification of Shrichand was not deferred. The logical conclusion which can be had in such a situation is that the witness was in a position to correctly identify accused Shrichand to be person who had handed over the letter dated 24.11.2003 to him.
56. This witness PW52 admitted in his cross-examination that he is a witness of CBI in many matters and has been appearing in Courts for CBI in several cases. Pointing towards this portion of the testimony of PW52, Ld. Counsel for accused Shrichand submitted that he is a CBI No. 68/2016 (Old No. 70/2008) Page No. 34 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) stock witness of CBI and therefore, totally untrustworthy. I am unable to accept the submissions of the Ld. Counsel. Merely because a witness has appeared for CBI in several cases does not mean that he is not to be trusted per se. As noted herein above, PW52 was posted in the office of RCS in the relevant period. It appears from his deposition that he used to receive papers/documents and dispatch the same to concerned authorities/persons in the office. It is, therefore, natural for him to be a witness in several cases for CBI wherein the issue of receipt/dispatch of documents in the office of RCS is to be proved. Further, there is nothing in cross-examination of this witness to show that he has deposed at the behest of CBI.
57. Here, I find it pertinent to refer to the deposition of PW57 also. He is a partner of Auditor Firm M/s C.L. Golcha & Company. He deposed that he knew accused Shrichand as he had approached him for preparing the accounts/income tax return of a Group Housing Society COSMOS CGHS Ltd. He further stated that Shrichand had approached him for preparing the statement of accounts of Sri Madhuvana CGHS Ltd. also and provided him various documents relating to the said Society such as list of members, list of Managing Committee Members, statements of income/expenditure etc. Accordingly, he prepared the statement of accounts of the Society and handed over the same to Sushil Kumar, a staff member of Shrichand. He identified the said statement of accounts as Ex.PW57/A. There is nothing in his cross-examination to falsify or doubt his testimony.
57A. The Ld. Defence counsel appearing for A5 Shrichand vehemently argued that the identification of this accused in Court by CBI No. 68/2016 (Old No. 70/2008) Page No. 35 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) PW52 and PW57 cannot be accepted for the reason that the TIP of this accused was not conducted by the investigating officer upon his arrest. His submission is that in the absence of any TIP, the identification of accused in dock should never be relied upon. In support of his submissions, the Ld. Counsel placed reliance upon the judgements of Supreme Court reported as State Vs. V.C. Shukla, AIR 1980 SC 1382, Dana Yadav @ Dahu and others Vs. State of Bihar, (2002) 7 SCC 295 and Lahu Kamlakar Patil Vs. State of Maharashtra (2013) 6 SCC 417. I have gone through these judgements carefully. Their perusal reveals that they have been rendered in totally different factual situations. TIP of an accused is necessary only in case the accused was not known to the witness, who is stated to have seen the accused committing the offence, before the date of offence or did not have any reasonable opportunity/time to see the assailants at the time of offence. Both these conditions do not appear in this case. It is clear from the testimony of PW57 that he knew this accused Shrichand very well and for the last several years. Similarly, there is nothing in the deposition of PW52 to indicate that he was not known to accused Shrichand prior to 24.11.2003 and that he had seen him on that day for the first time. The testimony of these two witnesses also does not show that they did not have any reasonable time or opportunity to see the accused Shrichand before or at the relevant time. Therefore, I do not find it necessary that the TIP of accused Shrichand should have been conducted to establish his identity in this case and accordingly his identification by there two witnesses in Court cannot be faulted with. Further, when PW52 was called upon to identify Shrichand in Court, the accused's counsel stated that his identity is not disputed. This witness has not been cross-examined on the aspect of identity of accused Shrichand at all. Hence, it does not lie in the mouth of this accused now to claim that his identity as conspirator has not been established.
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58. Thus, it cann't be said that accused Shrichand had no role to play in the revival proceedings pertaining to Sri Madhuvana CGHS Ltd. Evidence on record manifests beyond doubt that he had got false statements of account of the Society prepared from PW57 which he submitted alongwith other false documents in the office of RCS alongwith application for revival of the Society. Thus, he was the brain behind applying for revival of the defunct Society and also the kingpin of entire conspiracy.
59. Accused Faiz Mohd. has admitted that note Ex.A-3/1 was prepared by him on the basis of letter dated 24.11.2003 received in the office of revival of the Sri Madhuvana CGHS Ltd. He has mentioned in the note that the main file of the Society is not available in the office and recommended for issuance of a circular to all the branches/zones to trace out the main file of the Society. The said note was admittedly approved by A2 D.N. Sharma and later on by A1 Narayan Diwakar. From the subsequent note dated 16.12.2003 (Ex.A- 3/2), which too is undisputed from the side of the accused, it appears that the circular had been issued to all the branches/zones in terms of previous note to trace out the main file of Sri Madhuvana CGHS Ltd., but no reply had been received from any branch/zone. This note also has been prepared by A3 Faiz Mohd. whereby he suggested reconstruction of the main file from the record available with the Society Sri Madhuvana CGHS Ltd. and to appoint A4 Ram Nath as inspecting officer under Section 54 of the DCS Act, 1972 to verify/examine the record of the Society in order to bring out the factual position of the Society. This note was approved by A2 D.N. Sharma and A1 Narayan Diwakar, which fact is not disputed at all.
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60. A4 Ram Nath submitted his inspection report dated 31.12.2003 Ex.A4/1 (colly.) annexing therewith copies of various documents purported to have been furnished to him by the Secretary of the Society Sh. H.S. Arora. He further mentioned in the report that he visited the registered office address of the Society i.e. C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi on 31.12.2003 and met Sh. H.S. Arora, who produced all the relevant records of the Society including list of 120 members of the Society. He found membership register as well as proceeding register complete which shows that last Managing Committee Meeting was held on 21.11.2003 and last election of the Society was also held on the same day as per DCS Rules. He noted that all the Society's records were found under the safe custody of Sh. H.S. Arora, Secretary of the Society. Upon receipt of the said inspection report, A3 Faiz Mohd, again admittedly prepared another note dated 05.01.2004 Ex.A-3/3 wherein he noted the contents of the inspection report and recommended revival of the Society under Section 63 (3) of DCS Act, 1972 as well as to approve the list of 120 members for allotment of land. This note was also approved by A2 D.N. Sharma.
61. One can get the clear smell of intentional wrongdoings on the part of A1, A2 and A3 from their conduct which is evident from the aforementioned three undisputed notes Ex. A-3/1, Ex. A-3/2 and Ex. A-3/3. It is manifest that no serious or genuine efforts has been made to search or trace out the original main file of the Society. Even though, it is not necessary to initiate the enquiry with regards to the disappearance of the original file from the office and to report the matter to the police, yet it is not understandable as to how directions CBI No. 68/2016 (Old No. 70/2008) Page No. 38 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) could have been passed to reconstruct the file on the basis of records submitted by so-called office bearers of the Society, who were interested in the revival of the Society, which had been liquidated decades ago and why did these officials show such a tearing hurry in the reconstruction of the file without even waiting for any response from other branches/zones to the communication sent to them in this regard. The note Ex. A-3/2 reveals that a circular had been issued to all the branches/zones on 03.12.2003 to trace out the main file of the Society within weeks time. Prescribing, such a short duration of the time for tracing out 30 years old file in itself raises suspicion about the manner in which the case for revival of the Society was being taken up in the office of the RCS by the concerned officials i.e. A1, A2 and A3. The fact that the disappearance of the file was neither inquired into in order to fix the responsibility nor was the same reported to the police makes suspicion stronger against these officials about their malafide/ulterior/criminal intentions.
62. What further intrigues this Court is that A3 Faiz Mohd., who was only a Grade-II Clerk in the office of RCS, has suggested appointment of A4 Ram Nath as inspecting officer for the Society under Section 54 of the DCS Act. The job of naming inspecting officer should have been left to the higher officers. A1 and A2 also did not raise any eyebrow regarding the said conduct of A3. This prima-facie shows that all of them were acting in league with each other.
63. The contents of the inspection report Ex. A-3/3 submitted by A4 Ram Nath have been stated briefly herein above. He claims to have met the Secretary of the Society Mr. H.S. Arora at the Society office in CBI No. 68/2016 (Old No. 70/2008) Page No. 39 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Sector-9, Rohini, Delhi, who handed over to him all the relevant records of the Society. Mr. H.S. Arora has appeared as PW54. He is the owner of the premises C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi. He deposed that he had never become the member or office bearer of the Sri Madhuvana CGHS Ltd. at any point of time and that no Society had ever functioned from the aforesaid residence in Rohini. He further stated that he had never received any correspondence/letter in the name of either aforesaid Society or any other Society at the said address. He did not know any person by the name of Smt. Seema Aggarwal, Sh. K.C. Gupta, Sh. R.K. Aggarwal and Smt. Gurpreet Kaur. He also stated that no official from the office of RCS had ever visited aforesaid address for making any enquiry with regards to the Sri Madhuvana CGHS Ltd. He specifically stated that no employee from the office of RCS by the name of Ram Nath had ever met him either in connection with the affairs of aforesaid Society or otherwise. He had never attended any meeting of the said Society. According to him, the signature appearing at point Q90 on the inspection report Ex. A-4/1 (colly.), at point B on the copy of the minutes of Special General Body Meeting dated 23.11.2003 of the Society Mark PW54/B, at point B on the copy of minutes of General Body Meeting of the Society dated 24.11.2003 Mark PW45/4, at point Q154, Q155 and Q181 on the affidavits Mark PW54/4 and Mark PW54/5, at point Q151 on the certificate dated 19.01.2004 Mark PW54/6 are not his signatures. He stated that the copy of ration card annexed with the certificate Mark PW54/6 is not his ration card and it also does not bear his photograph. He did not know any person by the name of Faiz Mohd. and stated that no person by the name of Faiz Mohd. had visited his residence for making any enquiry. He was CBI No. 68/2016 (Old No. 70/2008) Page No. 40 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) shown various documents which purportedly bear the signatures of Mr. H.S. Arora, but he reiterated that these are not his signatures and he never signed any such document. He withstood the entire cross- examination and nothing contrary could be elicited from him. He has denied each and every suggestions put to him. He deposed that CBI had conducted search of his premises i.e. C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi in connection with Sri Madhuvana CGHS Ltd., but no records/documents regarding the said Society was recovered during search as he never possessed any such record.
64. As per the copy of the minutes of Special General Body Meeting dated 21.11.2003, which has been annexed by A4 Ram Nath alongwith his inspection report, following office bearers were elected unopposed;
(i). Smt. Seema Aggarwal, Vice President. (ii). Sh. K.C. Gupta, Member. (iii). Sh. H.S. Arora, Member. (iv). Sh. R.K. Aggarwal, Member. (v). Smt. Gurpreet Kaur.
65. The meeting is stated to have taken place at C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi. Mr. H.S. Arora, as already noted herein above, has deposed that he was neither member nor office bearer of the said Society at any point of time and that the Society never functioned at his residence C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi at any point of time. Smt. Seema Aggarwal appeared as PW45, also has deposed that she was neither CBI No. 68/2016 (Old No. 70/2008) Page No. 41 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) a member nor office bearer of Sri Madhuvana CGHS Ltd. and therefore, had no occasion to attend any meeting of the Society. She stated that she does not know any person by the name of Mr. K.C. Gupta, Mr. H.S. Arora, Mr. R.K. Aggarwal and Smt. Gurpreet Kaur. According to her, she has never met any of these any persons at any point of time and has no relations with the premises No. C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi. She was shown various documents relating to the Society wherein signatures of Smt. Seema Aggarwal as President of the Society appeared, but she denied that these are her signatures. The documents are Mark PW45/1 to Mark PW45/147. Interestingly, she stated that the writings marked S-110 to S-117, which are stated to be her specimen signatures taken by the CBI during the course of investigation of this case, are not her signatures/writings. On this aspect of her testimony, she was declared hostile and was cross-examined by Ld. Public Prosecutor, but she stuck to her stand. However, nothing contrary has also come out in her cross-examination on behalf of the accused. She has denied all the suggestions put to her. Even though, she admitted that Ex.PW45/D1 is ration card of her family bearing photograph of her husband, but she did not know how the copy of the said ration card is in the Court file.
66. The testimony of PW45 and PW54, who have been shown as President and the member respectively of the Managing Committee of the Society, clearly shows that no such Society had office or functioned from C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi. It has been mentioned in the revival letter dated 24.11.2003 that the Society had its registered office earlier at 19/3, Asaf Ali Road, CBI No. 68/2016 (Old No. 70/2008) Page No. 42 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Delhi, which was shifted to C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi on 10.01.1979 regarding which intimation was sent to Sh. H.C. Joshi, Assistant Registrar (H) vide letter dated 11.01.1979. A copy of the said intimation has been annexed alongwith the letter for revival. Even the Asaf Ali Road address also has turned out to be a fictitious one. Enquiries regarding the said address were made by CBI from the Municipal Corporation of Delhi and it was communicated to CBI by the MCD vide letter Ex.PW62/A that no such address exists on Asaf Ali Road, Delhi. Hence, both the previous address of registered office of the Society as well as the changed address have been mentioned falsely in the application for revival dated 24.11.2003 which goes on to show that the Society in fact did not exist at all in the year 2003 and a deliberate attempt was made to get it revived on the basis of fictitious/false documents by A5 Shrichand in connivance with the other accused.
67. As per the deposition of IO (PW71), he had sent notices under Section 160 Cr. P.C to all the 120 persons shown as members of the Society in the membership list annexed by A4 alongwith his report, but only 43 of them were found existing whereas all others were found untraceable. All the envelopes except 43 were returned back with the report that either the address was not correct or the addressee was not residing at the given address or the address was not in existence. These envelopes are Ex.PW71/B (colly.). Affidavits in evidence of 30 postmen have been filed by the CBI, to whom these undelivered envelopes were entrusted for delivery to the addressees. The affidavits were filed in terms of the directions dated 08.03.2016 of this Court. In all these affidavits, the concerned postmen have deposed CBI No. 68/2016 (Old No. 70/2008) Page No. 43 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) that they could not deliver the speed post envelope to the addressee on account of non existence of the address in their respective beat area and thus returned the envelope undelivered. No prayer was made on behalf of any of the accused to produce these postmen in the Court for their cross-examination. Therefore, an inference can be drawn that the accused do not dispute that the addresses mentioned on these envelopes were not in existence and that these had been returned back undelivered for this very reason which leads to another inference that the 30 so-called members of the Society, to whom these envelopes were addressed, were fake.
68. Out of the aforesaid 43 persons, upon which the aforesaid postal envelopes had been delivered, some have appeared as witnesses in the Court. They are PW1, PW2, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW13, PW14, PW15, PW16, PW17, PW18, PW19, PW20, PW21, PW22, PW24, PW28, PW29, PW30, PW31, PW32, PW33, PW34 and PW42. All of them denied that they had become the members of Sri Madhuvana CGHS Ltd. at any point of time. Further, the deposition of following witnesses is noteworthy with regards Smt. Meera Jain, Mr. Kharak Singh, Sh. Satish Kumar, Sh. Rakesh Kumar Gupta, Smt. Sushma Gupta, Sh. R.K. Aggarwal and Sh. Subhash Chand Jain, who also have been shown as members of the Society in the membership list of 120 members. PW36 is the resident of the D-196, JJ Colony, Inder Puri and deposed that Smt. Meera Jain w/o Sh. Satinder Jain never resided at this address and she has never received any letter in her name at the said address. Similarly, PW37 is the owner of WZ 863, Nangal Rai, New Delhi, who deposed that Smt. Chander Prakash Mittal w/o Satya Pal CBI No. 68/2016 (Old No. 70/2008) Page No. 44 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Mittal never resided at the said address. PW38 is the resident of 8/8 West Patel Nagar, Delhi, who deposed that Mr. Kharak Singh S/o Pratap Singh has never resided at this address and they never received any letter in the name of Kharak Singh at the said address. PW39 is the resident of D-14A/11, Model Town, Part-III, Delhi, who testified that Smt. Gurpreeet Kaur w/o Sh. C.S. Basin has never resided at the above said address and they have never received any letter in the name of Gurpreet Kaur at the said address. PW40 is the resident of B-64, Ashok Vihar, Phase-I, Delhi, who deposed that Satish Kumar s/o Malik Chand never resided at the said address in any capacity and they have never received any letter in the name of the said person in the said address. PW41 has been residing at H. No. 9355, Gali Dorwali, Tokri Walan, Azad Market, Delhi and deposed that Rakesh Kumar Gupta s/o Pratap Kumar Gupta has never been residing in any capacity at the said address and they have never received any letter in the name of Rakesh Kumar Gupta at the said address. PW43 has been residing at 209 Hauz Rani, Malviya Nagar, New Delhi and stated that Sushma Gupta d/o Sh. Meer Chand Gupta had never resided at the given address in any capacity. PW50 is the resident of T-45, Rajouri Garden, New Delhi and stated that Mr. R.K. Aggarwal s/o K.L. Aggarwal never resided at the above said house. PW56 is the resident of H-31, Kirti Nagar, New Delhi and stated that he does not know any person by the name of Subhash Chand Jain s/o Sh. Swaroop Singh and they have never resided at the said address. It is pertinent to note here that none of the witnesses has been cross- examined on behalf of the accused which makes their testimony un- controverted. It is, therefore, manifest that most of the persons shown to be the members/office bearers of Sri Madhuvana CGHS Ltd. in the CBI No. 68/2016 (Old No. 70/2008) Page No. 45 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) list annexed by A4 Ram Nath alongwith his report, had never been the members of the said Society and further some turned out to be fictitious/non existing.
69. Out of 5 office bearers of the Society, 2 office bearers namely Smt. Seema Aggarwal and Mr. H.S. Arora have denied to have become members or office bearers of the Society at any point of time and the remaining 3 were found to be non existing at the given address. It is also manifest from the testimony of PW54 that the Society had never its office at C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi. The evidence on record, thus, clearly shows that A4 Ram Nath, has submitted a false and fictitious inspection report. He had neither visited the office address of the Society nor had met any of its members/office bearers. The documents relating to the various activities of the Society such as General Body Meetings etc. as well as list of the 120 members also are forged documents. It may be noted here that A4 Ram Nath has admitted that he prepared and submitted the inspection report Ex. A-4/1, but has denied that he annexed pages 28/C to 48/C (documents relating to the activities of the Society) alongwith his report. However, order dated 07.01.2004 passed by the Registrar Cooperative Societies Sh. Narayan Diwakar (A1), which is on the basis of reconstructed file as well as inspection report of A4 Ram Nath and whereby notice under Section 63 (3) of DCS Act was issued to the President/Secretary of the Society for initial hearing on 26.02.2004, clearly mentions that pages 28/C to 48/C are part and parcel of the inspection report of A4 Ram Nath. Further, no suggestion has been put to investigating officer PW71 in his cross- examination in this regard. In his statement under Section 313 Cr. P.C CBI No. 68/2016 (Old No. 70/2008) Page No. 46 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) also, he has nowhere stated that the report submitted by him consisted of only one or two pages and he had not annexed any documents relating to the proceedings of the Society with the same.
70. Further, note Ex. A-3/3 which has been admittedly prepared by A-3 Faiz Mohd. on the basis of the inspection report submitted by A-4 Ram Nath also mentions that the Secretary of the Society attended the office of RCS on 02.01.2004 and submitted the photocopies of following documents which were taken on record :
i) Copy of M.C. proceedings dated 19.10.2003 ;
ii) Copy of agenda notice dated 20.10.2003 ;
iii) Copy of UPC and service proof dated 20.10.2003 ;
iv) Copy of proceedings of GBM dated 23.11.2003 ;
v) Copies of nomination forms (5 members) ;
vi) Copy of MC proceedings dated 24.11.2003 ;
vii) unaudited accounts w.e.f. 01.01.1971 to 31.03.2003.
71. Even if it is assumed for the sake of arguments that no documents annexed by A-4 alongwith his inspection report, yet it is quite evident that these very documents which are stated to have been submitted by the Secretary of the Society in the office of RCS on 02.01.2004, as mentioned herein above, were shown to A-4 Ram Nath during his alleged inspection of the Society, which documents turned out to be fake and fabricated in view of the evidence discussed herein above. The inspection conducted by A-4 Ram Nath was absolutely false and a mere eye-wash. Infact, he did not conduct any inspection at all and prepared his report on the basis of the fake / fabricated CBI No. 68/2016 (Old No. 70/2008) Page No. 47 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) documents produced before him by a person projecting himself as Secretary of the Society. Certainly, it was not Sh. H.S. Arora, who has produced these documents before A-4 Ram Nath and in the office of RCS before A-3 Faiz Mohd. There was no occasion for him to do such exercise as he was neither a member nor office bearer of the Society as deposed by him.
72. A-3 Faiz Mohd. also did not make any effort to check or verify the identity of the person who represented as Secretary of the Society in the office of RCS on 02.01.2004 and submitted the copies of aforementioned documents relating to the Society. He also did not make any effort to check the authentication of the documents so produced before him by that person. Without looking into the contentions of that person and without proceeding to check / verify the documents produced by that person, he took the documents on record and recommended the revival of the Society as well as approval of list of 120 members for allotment of land vide note Ex. A-C/4. The note was approved by A-2 D.N. Sharma blindfoldedly and the file was sent to the Reader to the Registrar Cooperative Societies (A-1 Narayan Diwakar).
73. When the file was put up before the Reader to the Registrar, he prepared note Ex. PW-68/A and suggested issuance of notice under section 63 (3) of DCS Act, 1972 to the President / Secretary of the Society for initial hearing on 26.02.2004. It appears from the order passed by the Registrar (A-1) on the file on 13.01.2004 that such notice had been issued to the President / Secretary of the Society. However, the manner in which proceedings were conducted in the CBI No. 68/2016 (Old No. 70/2008) Page No. 48 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) office of Registrar upon the file is very curious as well as suspicious. Even though, the hearing was fixed for 26.02.2004, the Registrar appears to have taken up the file on his own on 13.01.2004 and passed the order directing the Reader to send the file to the concerned zone for verification of records pertaining to the membership as well as audit / election of the Society with further directions that the verification shall be completed and report be submitted before the next date of hearing. The concerned AR was also directed to conduct physical verification of members at random as well as spot verification. When the file was put up before AR D.N. Sharma (A-2), he noted that the physical verification may be completed by the Dealing Assistant (D.A.). It is pertinent to mention here that the Registrar had dictated the order dated 13.01.2004 to his stenographer Sh. Sanjeev Bharti PW-68 who deposed about the same and also identified the signatures of the Registrar on the same at point Q-22. He then sent the file to AR (North West) vide his endorsement Ex. PW-68/D thereafter the AR (North West) D.N. Sharma (A-2) made endorsement that physical verification may be completed by Dealing Assistant.
74. As per the deposition of PW-68, in pursuance to the note dated 07.01.2004 Ex. PW-68/A duly approved by the Registrar on the same day, notice dated 12.01.2003 Ex. PW-68/A (date wrongly mentioned on the notice as it should have been 12.01.2004) was addressed to the President / Secretary of Sri Madhuvana CGHS Ltd., C-26, Shakti Apartments, Sector-9, Rohini wherein date of hearing was mentioned as 26.02.2004 at 3:00 pm. Vide this notice Ex. PW-68/B, the President / Secretary of the Society were directed to appear alongwith CBI No. 68/2016 (Old No. 70/2008) Page No. 49 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) all the original records pertaining to the Society. PW-68 identified the signatures of Sh. N.S. Khatri, the Reader to the Registrar on this notice at point Q-86. Sh. Khatri appearing as PW-69 also has deposed that he sent a notice to the President / Secretary of Sri Madhuvana CGHS Ltd. through dispatch on 12.01.2004 in compliance of the directions contained in order dated 07.01.2004. He proved the said notice Ex. PW-69/A. There is nothing on record to show as to how and in what manner was the said notice dispatched to the President / Secretary of the said Soceity. However, perusal of Ex. PW-69/A shows that it has been received by hand by somebody on behalf of Society whose signatures appeared at point Q-88 on the same. It is also not clear from the record as to who was this person who had signed at point Q-88 on the notice Ex. 69/A as acknowledgment of the receipt of the said notice. There is no explanation or justification from the side of the accused as to why the said notice was not dispatched to the office of the Society by post or by any Special Messenger. This clearly shows that the officials in the office of RCS, who were dealing with this file pertaining to Sri Madhuvana CGHS Ltd. were acting in league with some person who was keeping a watch upon the whole activity and upon gaining knowledge that the notice dated 12.01.2004 has been issued to the Society, he visited the office and received the same personally vide his signatures at point Q-88.
75. It appears from the record that in pursuance to the directions passed by AR (North West), A-3 Faiz Mohd. had proceeded to conduct the physical verification of the members of the Society in terms of order dated 13.01.2004 of the Registrar Ex. PW-68/C. He CBI No. 68/2016 (Old No. 70/2008) Page No. 50 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) has admitted that Ex. A-3/5 is the report submitted by him in this regard wherein he mentions that he has visited and physically verified 10 % of total members of the Society on 17.01.2004, 18.01.2004 and 19.01.2004. He has also admitted that the documents from pages 46/C to 69/C were annexed by him alongwith his report. These documents Ex. A-3/6 (colly.) are in the nature of certificate issued by various members of the Society alongwith the copies of their ration cards, regarding which Faiz Mohd. claims to have conducted physical verification.
76. I may say here that the Registrar vide his order dated 13.01.2004 Ex.PW68/C had issued two directions. Firstly that the file be sent to the concerned zone for verification of record pertaining to membership as well as audit/election of the Society. Secondly that the concerned AR to conduct physical verification of the members at random as well as spot verification. The concerned AR vide his noting dated 16.01.2004 merely directed that the physical verification may be completed by the dealing assistant. There is nothing on record to suggest that he had sent the file to the concerned zone for verification of the records pertaining to the membership as well as audit/election of the Society. As per physical verification report Ex. A-3/5 submitted by A3 Faiz Mohd., he has physically verified only 10% of total membership of the Society i.e. 12 members. Why did he conduct physical verification of only 10% of the total membership of the Society, is ascertainable from the record. Moreover, the physical verification report submitted by him is patently false and fictitious for the reason that almost all the members mentioned in the membership list submitted alongwith the application for revival of the Society have CBI No. 68/2016 (Old No. 70/2008) Page No. 51 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) been found to be fictitious/non existing or not having become the member of Sri Madhuvana CGHS Ltd. at any point of time. Out of those 12 members of the Society with regards to A3 Faiz Mohd. claims to have conducted physical verification, 5 were examined as PW1, PW8, PW16, PW28 and PW45. All of them have denied that they had become members of the Sri Madhuvana CGHS Ltd. at any point of time and have also denied their signatures on the membership form, affidavits and certificates etc. Regarding others in the said list of 12 members, it has been deposed by the investigating officer PW71 that they could not be traced as they were not existing at the given address. Therefore, it is quite intriguing as to how could A3 Faiz Mohd. physically verifiy even those 12 members of the Society which he claims to have done, and obtained their certificates as well as copies of their ration cards which are Ex. A-3/6 (colly.). It is thus manifest that no physical verification at all was conducted by A3 and he submitted a false report in order to facilitate the revival of the Society on the basis of forged and fictitious documents. This fact is further strengthened by the report of handwriting expert Ex.PW17/F1 which reveals that the particulars filled-up on the aforesaid certificates submitted by A3 Faiz Mohd. alongwith his report are in the handwriting of A6 Anna Wankhede. The evidence on record, therefore, reveals that the said certificates have been fabricated by Anna Wankhede and those were unhesitately accepted by A3 Faiz Mohd., who annexed them alongwith his false report.
77. Based upon his own aforesaid physical verification report as well as inspection report of A4 Ram Nath and the original record claimed to have been received from the Secretary of the Society, Faiz CBI No. 68/2016 (Old No. 70/2008) Page No. 52 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Mohd. again prepared the detailed favourable report on 23.01.2004 recommending revival of the Society and approval of final list of 120 members. Perusal of the original file shows that the said note of Faiz Mohd. was approved by AR (North-West) on the same day and the file was sent to the Reader to Registrar.
78. Though, the date of hearing had earlier been fixed as 26.02.2004 on which date the President/Secretary of the Society was required to produce the original record of the Society, yet it appears that the Registrar took up the file on 19.02.2004. The order dated 19.02.2004 passed by the Registrar, whereby he reserved for orders the application for revival of the Society after hearing rival submissions, does not show why the file was taken up on the said date instead of 26.02.2004. However, PW69 had deposed in this regard that the file was placed before the Registrar on 19.02.2004 on receipt of a letter from Secretary of the Society Mr. H.S. Arora seeking early hearing in the case. He further deposed that the said letter dated 22.01.2004 was never put up by him before the Registrar and he only placed the entire file before the Registrar. He also deposed that there is no order of the Registrar on the said letter seeking early hearing. In these circumstances, one fails to conceive any cogent reason for the undue haste shown by the Registrar in taking up the file on 19.02.2004 instead of the date already fixed i.e. 26.02.2004.
79. Perusal of the notice dated 12.01.2004 (Ex.PW68/B and Ex.PW69/A) shows that the President/Secretary of the Society were directed to appear before the Registrar on 26.02.2004 at 3 PM alongwith all the original records pertaining to the Society for CBI No. 68/2016 (Old No. 70/2008) Page No. 53 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) examination/verification. However, it is manifest from the order dated 19.02.2004 of the Registrar that neither President nor Secretary of the Society was present before him on that day. The society was represented by an advocate namely Ms. Rashmi Gulati and the department was represented by A2 D.N. Sharma, AR (North-West). The order also does not show that Ms. Rashmi Gulati had produced the original records of the Society, as mentioned in the notice dated 12.01.2004. PW69, Reader to the Registrar has deposed that no office bearers of the Society appeared alongwith Ms. Rashmi Gulati on that day. As per the deposition of PW68, stenographer in the office of RCS at the relevant time, the Registrar had dictated the said order on 19.02.2004 to him and he typed the same. He identified the signatures of Registrar on the same. Ultimately, the Registrar vide his detailed order dated 01.03.2004 cancelled the winding up order dated 21.03.1979 with regard to Sri Madhuvana CGHS Ltd. and directed its revival with immediate effect.
80. In order to exhibit his bonafides, the Registrar has observed in his order dated 01.03.2004 that the revival of Sri Madhuvana CGHS Ltd. is subject to condition that pending audit shall be got completed within two months time. He also appointed B.S. Aswal (A7), Grade-IV employee of his office, as an election officer to conduct the election of the Managing Committee of the Society within two months time.
81. However, it appears that the concerned officials in the office of the Registrar Cooperative Societies were in such intense hurry to ensure that the land is allotted to the Society at the earliest that they could not wait for completion of the audit of the Society and holding of CBI No. 68/2016 (Old No. 70/2008) Page No. 54 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) the election of Managing Committee of the Society. A2 D.N. Sharma sent a letter dated 03.03.2004 (Ex.PW67/B) to AR (Policy) enclosing therewith the freeze list of the 120 members of the Sri Madhuvana CGHS Ltd. with a request to forward the same to DDA for allotment of land. PW67, who was working in the office of RCS at the relevant time has deposed that he typed the said letter Ex.PW67/B on the directions of A2 D.N. Sharma. He proved his note relating to the said letter as Ex.PW67/A. According to PW55, he was posted as AR, North-West in the office of RCS in March, 2004 and was also looking after the charge of AR (Policy). He has deposed that vide letter dated 25.03.2004, he had sent a list of 35 Group Housing Society to the DDA for allotment of land and the name of Sri Madhuvana CGHS Ltd. is mentioned at S. No. 21 in the said list. Manifestly, therefore, the name of Sri Madhuvana CGHS Ltd was forwarded to the DDA for allotment of land without waiting for the audit report or the result of the election of the Managing Committee Members.
82. Coming to the election of the Managing Committee of the Society, which was to be conducted by A7 Balam Singh Aswal as per the directions of the Registrar. He has submitted his report in this regard which is Ex. A-7/1 (colly.). The report alongwith its annexures from page 106 to 116 in the file No. D-8 has been admitted by this accused. As per report, A7 conducted the election on 04.04.2004 in the premises office of the Registrar Cooperative Societies, New Delhi. The election proceedings recorded by him as Ex.PW68/F (colly.) show that 59 members of the Society participated in the election process wherein Smt. Seema Aggarwal was elected as President, Mr. K.C. Gupta as Vice President, Smt. Gurpreet Kaur, Women Management CBI No. 68/2016 (Old No. 70/2008) Page No. 55 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Committee Member, Mr. H.S. Arora and Sh. R.K. Aggarwal as the Members of the Managing Committee. In the report, A7 Balam Singh Aswal claims to have called a Special General Body Meeting of the members of the Society for the purpose of conducting election on 04.04.2004 at 10 AM vide agenda notice dated 04.03.2004, which forms part of his report from page 113 to 116. However, the report is mischievously silent about the manner in which the agenda notice was dispatched and served upon the individual members of the Society, as to whether the members had received the said agenda notice or the same was returned back unserved for any reason whatsoever etc. The report also does not mention as to whether the election was held by secret ballot. As per schedule-II attached to the Delhi Cooperative Societies Rules, 1973, as applicable to this case, the election of Committee members of the Society is to be held by secret ballot and the ballot papers have to be issued to the members by the election officer upon satisfaction that the member concerned is same person as noted in the list furnished to him. The format of the ballot paper has been given in the form-I to the said schedule-II. Further, there is separate format in schedule-III in which any member can nominate/propose the name of any other member for any post in Managing Committee and the member so nominated has to sign the declaration thereby agreeing to his nomination to such post.
83. It does not appear from the report of A7 Balam Singh Aswal that he had conducted the election of the Managing Committee of the Society through secret ballot. Further, the names of the members which he claims to have participated in the election process are the same who were later on found to be either non existing or not having CBI No. 68/2016 (Old No. 70/2008) Page No. 56 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) become members of the Society at any point of times. Some of them appeared as witness for CBI (see PW Nos. mentioned in para 68 herein above) and reiterated that they had neither become members of Sri Madhuvana CGHS Ltd. nor had attended any of its General Body Meeting. More intriguingly, out of the 5 members of the Managing Committee stated to have elected in the said General Body Meeting dated 04.04.2004, the 2 namely Smt. Seema Aggarwal and Mr. H.S. Arora appearing as PW45 and PW54 respectively have denied that they had attended any such meeting or have been elected as office bearers of the Society at any point of time whereas remaining 3 namely Mr. K.C. Gupta, Smt. Gurpreet Kaur and Sh. R.K. Aggarwal were found to be non existing.
84. The report of election submitted by A7 Balam Singh Aswal, thus, patently appears to be a bogus one. In fact, he has not conducted any election at all. The election could not have been conducted for the reason that none of the so-called members of the Society was a genuine member. There was no one to participate in the election process. Accused B.S. Aswal, in collusion with the other officials in the office of RCS as well as the interested private parties, submitted a false and bogus audit report in order to facilitate the revival of the Society Sri Madhuvana CGHS Ltd. The election proceeding Ex.PW68/F (colly.) have been prepared by PW68 on the dictation of A7 Balam Singh Aswal.PW68 has deposed that these proceedings are in his handwriting. He has nowhere stated in his testimony that the members of the Society were present in the office of RCS on that day i.e. 04.04.2004 or that any election had been taken place in his presence on that day.
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85. It has been already pointed out hereinabove that the revival of the society, as directed by the Registrar vide his order dated 01.03.2004, was subject to the condition that pending audit of the Society shall be got completed within two months time. The record shows that A-8 P.K. Thirwani was appointed as Auditor to conduct the audit of the Society Sri Madhuvana CGHS Ltd. vide order dated 03.03.2004 of AR (Audit). It is not disputed on behalf of A-8 that he submitted his audit report Ex. A-8/5 (colly) wherein he mentioned that he conducted the audit of the Society from 05.03.2004 to 08.03.2004. On the last page of the report, he has pointed out certain deficiencies / short comings which he found in the records of the Society. The report nowhere shows as to the place where the audit was conducted by A-8. Whether it was done in the registered office of the Society or in the office of Registrar of Cooperative Societies.
86. Here, I find it relevant to refer to Rule 83 of Delhi Cooperative Societies, 1973 (as applicable to the instant case) which envisages that the audit of Cooperative Society shall be conducted in the registered office of the Society unless otherwise conducted by the Registrar and previous intimation shall be given to the Society before the audit is commenced. It is not clear from the report of A-8 as to whether he had given any previous intimation to the office bearers of the Society before the commencement of the audit. Even if it is assumed that A-8 had given such an intimation, the question arises as to whom such an intimation was given. None of the office bearers of the Society including its President and Secretary, as communicated to the office of the Registrar by way of documents accompanying the request for revival of the Society, were genuine members of the CBI No. 68/2016 (Old No. 70/2008) Page No. 58 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) society. This aspect has already been discussed in detail herein above. In these circumstances, what intrigues this Court is as to who was dealing with A-8 and providing documents to him of the society such as balance sheets, statement of accounts etc. which have been annexed by A-8 alongwith his report Ex. PW-57/A (colly). It also can't be believed that A-8 had conducted the audit in the registered office of the Society. This is for the reason that the society had not its registered office at C-26, Shakti Apartments, Sector-9, Rohini at any point of time. It is, therefore, manifest that A-8 merely received the documents from somebody on behalf of the Society and prepared the false and bogus audit report on the basis of those documents without verifying those documents and without verifying residential of that person. He has neither visited the registered office of the Society as there was no such office in existence nor had he met any member or office bearer of the society as there was none. A-8 has prepared and submitted the fictitious audit report to ensure that the revival of the society does not get hampered due to lack of such a report which was a condition precedent for its revival.
87. The discussion, now takes the court to the role of A-6 Anna Wankhede. PW-59 who had been elected as the President of Naval Technical Officers CGHS Ltd. has deposed that Shrichand was the Vice President of the Society. He identified the accused Shrichand in the court. He also identified A-6 Anna Wankhede saying that A-6 was his neighbour and had helped him in getting a premises on rent. He further deposed that since A-6 was facing some complications in his office, he introduced him to accused Shrichand. Accordingly, A-5 Shrichand gave some job to A-6 Anna Wankhede. This witness has CBI No. 68/2016 (Old No. 70/2008) Page No. 59 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) not been cross examined either on behalf of A-5 Shrichand or A-6 Anna Wankhede on this aspect. Therefore, it stands established that A-6 Anna Wankhede was introduced to A-5 Shrichand by PW-59 and thereafter, A-5 gave some job to A-6 Anna Wankhede. I may also note here that A5 and A6 have not disputed this fact in their statement under Section 313 Cr. P.C. It has been held in preceding paragraphs of this judgment that it was none other than A-5 Shrichand who garnered the idea of revival of the Society Sri Madhuvana CGHS on the basis of false / forged documents and accordingly submitted a request for revival of the Society dated 24.11.2003 in the office of Registrar. According to the report Ex. PW-70/F-1 of the handwriting expert PW-70, the writing on the reverse side of the affidavits of the members of the Society [Ex.PW53/A (colly.)] as forwarded to the office of Registrar alongwith other documents for revival of the Society, is in the handwriting of A-6 Anna Wankhede. It may be noted here that these affidavits, purportedly sworn by the members of the Society, alongwith the copies of membership applications as well as the copies of receipts of membership fee have been submitted in the office of Registrar alongwith the other documents for the revival of the Society. The entire file (Ex. PW-63/E) containing these documents was seized from the office of Registrar by PW-63 vide memo Ex. PW-63/A. PW- 63 had conducted preliminary enquiry in this case before the registration of the FIR. He has not been cross examined on this aspect and, therefore, it stands established that these documents i.e. the original affidavits, copies of membership forms and copies of receipts of the membership fee contained in file Ex. PW-63/E were seized by PW-63 from the office of the Registrar.
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88. As per the deposition of PW-53, the Notary Public, all the aforesaid affidavits (total 120) [Ex.PW53/A (colly.)] were attested by him on 13.12.2003. He identified his signatures on all these affidavits. He further deposed that the deponents of these affidavits did not appear before him at the time of attestation and these affidavits were produced before him by one typist named Ravi Robinson as well as some other typist.
89. PW-65 was an employee of P.R. Bhatia who was a stamp vendor and used to sell stamp papers at Parliament Street. He deposed that he knows Ravi Robindson who was working as typist at Parliament Street, Court Complex. He further deposed that Robinson used to come to his shop and he used to issue stamp papers to him after making entry of the buyers in the register. He identified all the 120 affidavits Ex. PW-53/A (colly.) to be the same which have been sold to Ravi Robinson. He deposed that the serial numbers mentioned on the stamp papers are in his handwriting. He also deposed that he knows accused Anna Wankhede as he sometimes used to visit Ravi Robinson. Accused Anna Wankhede was introduced to him by Ravi Robinson. He also deposed that all the stamp papers were sold in the name of Sri Madhuvana CGHS. He had made entry of the stamp papers in the register from serial no. 145740 to 154864 and proved copy of the relevant pages of the register as Ex. PW-65/A (colly). He stated that Ravi Robinson did not fill up the name of the buyers on the stamp papers in his presence. In his cross examination conducted by Ld. PP after he was declared hostile, he was confronted with his statement under section 161 Cr. PC wherein he had stated that Ravi Robinson has handed over these stamp papers to Anna Wankhede.
CBI No. 68/2016 (Old No. 70/2008) Page No. 61 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) He denied having made such statement to CBI. There is nothing worth mentioning in his cross examination.
90. What comes out from the testimony of PW59, PW53 and PW65 is that PW65 sold the entire set of stamp papers (120 in total) upon which the affidavits of the alleged members of the Society Ex.PW53/A (colly.) were prepared to Ravi Robinson who got them attested from the Notary Public (PW53) on 13.12.2003. The writing on the reverse of these stamp papers is in the hand of A6 Anna Wankhede. A6 Anna Wankhede was introduced to A5 Shrichand by PW59 and A5 had provided some job to A6 Anna Wankhede. None of the deponents as mentioned in the aforesaid affidavits had appeared before PW53 at the time of attestation of these affidavits and none of them deposed before the Court that they had sworn these affidavits as members of the Society. As already observed herein above, the names of all those members were given fictitiously as some of them had never become the member of the Society at any point of time and some were found non existing. The evidence also shows that A6 Anna Wankhede used to accompany Ravi Robinson to the shop of PW65 and Ravi Robinson has introduced A6 to PW65. All these stamp papers have been purchased from PW65 in the name of Sri Madhuvana CGHS Ltd. and he had made entry in this regard in his register Ex.PW65/A (colly.). Though, PW65 denied that he had handed over these stamp papers later on to A6 Anna Wankhede, yet it is evident from the aforementioned testimony of these witnesses that A6 has played an active role in forging as well as procuring these affidavits at the behest of A5 Shrichand with whom he was working. It may be noted here that Ravi Robinson could not be examined as he had expired during the CBI No. 68/2016 (Old No. 70/2008) Page No. 62 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) trial of the case. Thus, A6 Anna Wankhede has played an important role in fabricating as well as forging documentary evidence in order to facilitate the revival of the Society. A6 had also forged the membership certificates which have been submitted by A3 alongwith his physical verification report. (see paragraph no. 76 herein above).
91. Thus following facts and circumstances have been proved on record beyond any shadow of doubt in view of the evidence led by the CBI, which has been discussed herein above:
(i) Sri Madhuvana CGHS Ltd, a Housing Society, had been formed in the year 1972 having 16 promoters/founder members and it was duly registered with the office of the Registrar Cooperative Societies on 22.04.1972 vide Registration No. 155 (H).
(ii) Female teaching staff of Lady Shri Ram College and Kamla Nehru College were the members of the said Society.
(iii) Since, the location of the plot of land alloted to the Society was not as per the choice of its members, they decided to wind up the Society and accordingly it was dissolved. The deposit money was returned to the members and no activity took place thereafter in the Society.
(iv) The Society was liquidated/wound up vide order Ex.PW48/A dated 21.03.1979.
(v) In the year 2003, A5 Shrichand gardened an idea of revival of the said defunct Society Sri Madhuvana CGHS Ltd.
on the basis fake/forged documents. He submitted a letter dated 24.11.2003 in the office of Registrar Cooperative Societies CBI No. 68/2016 (Old No. 70/2008) Page No. 63 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) seeking revival of the said Society.
(vi) Alongwith the aforesaid letter dated 24.11.2003, A5 Shrichand further submitted various false and forged documents such as copies of minutes of General Body Meeting of the Society, membership list of 120 members of the Society, names of the office bearers of the Society, unaudited accounts of the Society etc.
(vii) He had got the statement of accounts of the Society prepared from PW57.
(viii) A6 Anna Wankhede was introduced to A5 by
PW59 and A5 provided him job.
(ix) A6 had played vital role in forging as well as
preparing false membership certificates of the fictitious members and also false affidavits Ex.PW53/A (colly.) of the so-called members of the Society, which had been submitted alongwith the application in the office of the Registrar for the revival of the Society.
(x) None of those persons whose names are mentioned in the membership list submitted alongwith the application for revival and who are stated to have sworn affidavits Ex.PW53/A (colly.) were genuine members of the Society at any point of time. Some of them were found to be non existing at the given address.
(xi) After receipt of request for revival of the Society in the office of the Registrar vide letter dated 24.11.2003, it was found that the original file of the Society has got misplaced. A Circular was issued by the office to all the branches/zones in terms of the note Ex. A-3/1 prepared by A3 Faiz Mohd. and CBI No. 68/2016 (Old No. 70/2008) Page No. 64 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) approved by A2 D.N. Sharma and also later on by A1 Narayan Diwakar. The circular was sent to all the branches/zones to trace out the original file of the Sri Madhuvana CGHS Ltd.
(xii) However, without waiting for any response from the branches/zones within a reasonable time, A3 prepared another note dated 16.12.2003 whereby he suggested reconstruction of the file from the records available with the Society and to appoint A4 Ram Nath as inspecting officer under Section 54 of DCS Act to verify/examine the records of the Society. The note was approved by A2 D.N. Sharma and then by A1 Narayan Diwakar.
(xiii) A4 did not conduct any inspection at all and submitted a false inspection report dated 31.12.2003 Ex. A-4/1 (colly.) mentioning therein that he visited the registered office of the Society at C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi on 31.12.2003 and met its Secretary Mr. H.S. Arora who produced all the relevant records of the Society before him.
(xiv) Upon receipt of the said inspection report prepared by A4 Ram Nath, A3 again prepared another note dated 05.01.2004 Ex. A-3/3 whereby he recommended revival of the Society as well approval of the list of 120 members for allotment of land. The note was approved by A2 D.N. Sharma.
(xv) Mr. H.S. Arora and Smt. Seema Aggarwal, who are mentioned as the office bearers of the Society, have appeared as PW54 and PW45 respectively wherein they denied having been either members or office bearers of the Society Sri Madhuvana CGHS Ltd. at any point of time. Mr. H.S. Arora has further deposed that he is the owner of the premises C-26, Shakti Apartments, Plot No. 5, Sector-9, Rohini, Delhi and that the said Society had never any office in the said premises. They CBI No. 68/2016 (Old No. 70/2008) Page No. 65 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) both have denied their signatures on the documents, copies of which had been submitted in the office of the Registrar for revival of the Society.
(xvi) IO (PW71) ha issued notice under Section 160 Cr. P.C to all 120 members of the Society mentioned in the membership list submitted alongwith the request for revival and as per his deposition, only 43 of them were found in existence whereas others were found not traceable. All the envelopes except 43 were returned back with the report that either the address was not correct or the addressee was not residing at the given address or the address was not in existence. These envelopes are Ex.PW71/B (colly.).
(xvii) Out of 120 so-called members of the Society, 31 have appeared as witness in this case, who denied that they had become members of the Society at any point of time. Even three office bearers namely Mr. K.C. Gupta, Mr. R.K. Aggarwal and Smt. Gurpreet Kaur were found to be non existing at the given address.
(xviii) Thereafter, the file was put up before the Reader to the Registrar, who prepared the note Ex.PW68/A suggesting therein issuance of the notice under Section 63 (3) of DCS Act, 1972 to the President/Secretary of the Society for initial hearing on 26.02.2004. The note was approved by the Registrar and accordingly such notice had been issued to the President/Secretary of the Society.
(xix) However, the Registrar took up the file of his own on 13.01.2004 and passed an order directing the Reader to send the file to the concerned zone for verification of the records pertaining to the membership as well as audit/election of the Society. The concerned AR was also directed to conduct the CBI No. 68/2016 (Old No. 70/2008) Page No. 66 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) physical verification of members at random as well as spot verification.
(xx) When the file was put up before the concerned AR D.N. Sharma (A2), he noted that physical verification may be completed by the Dealing Assistant (DA).
(xxi) In compliance with the order dated 13.01.2004 of the Registrar, PW69 dispatched notice dated 12.01.2004 to the President/Secretary of the Sri Madhuvana CGHS Ltd directing them to appear alongwith all the original record of the Society on 26.02.2004 at 3 PM.
(xxii) There is nothing on record to show that as to how and in what manner the said notice was dispatched. However, perusal of the said notice Ex.PW69/A shows that it has been received by hand by somebody on behalf of the Society, but it is not clear from the record as who has received the same.
(xxiii) In pursuance to the endorsement on Ex.PW68/D of A2 D.N. Sharma, A3 Faiz Mohd proceeded to conduct physical verification of the members of the Society.
(xxiv) A3 did not conduct either physical verification of the members of the Society at random as well as on the spot or the verification of the records of the Society, but submitted a false report in this regard which is Ex. A-3/5.
(xxv) Also, the file was not sent to the concerned zone for verification of the records pertaining to the membership as well as audit/election of the Society, as directed by A1 Narayan Diwakar vide his order dated 13.01.2004.
(xxvi) The membership certificates submitted by A3 alongwith his report are in the handwriting of A6 Anna CBI No. 68/2016 (Old No. 70/2008) Page No. 67 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) Wankhede.
(xxvii) Based upon his own physical verification report as well as inspection report of A4 Ram Nath, and the original record claimed to have been received from the Secretary of the Society, A3 again prepared a detailed favourable report on 23.01.2004 recommending the revival of the Society and approval of the final list of 120 members which was sent to the Reader to the Registrar.
(xxviii) Though, the date of hearing had earlier been fixed as 26.02.2004 on which date, the President/Secretary of the Society was required to produce original record of the Society, and Registrar took up the file on 19.02.2004 itself and after hearing rival submissions, fixed on 01.03.2004 for pronouncement of his order. However, neither the President nor Secretary of the Society was present in the hearing dated 19.02.2004. The Society was represented by Ms. Rashmi Gulati, Advocate, who also did not produce any original record of the Society.
(xxix) Ultimately, the Registrar, vide his order dated 01.03.2004, cancelled the winding up order dated 21.03.1979 with regards to Sri Madhuvana CGHS Ltd. and directed its revival with immediate effect. However, he also observed that the revival is subject to condition that pending audit of the Society shall be got conducted completed within two months time and also appointed A7 Balam Singh Aswal as an election officer to conduct the election of Managing Committee of the Society within two months time.
(xxx) Without waiting for the completion of the audit of the Society or the result of the election of the Managing Committee of the Society, A2 D.N. Sharma sent a letter dated 03.03.2004 Ex.PW67/B to AR (Policy) enclosing therewith the CBI No. 68/2016 (Old No. 70/2008) Page No. 68 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) freeze list of 120 members of the Society with a request to forward the same to DDA for allotment of land to the Society. AR (Policy) (PW55) sent the list of 35 Group Housing Societies to DDA vide letter dated 25.03.2004 for allotment of the land wherein Sri Madhuvana CGHS Ltd. was mentioned at S. No. 21.
(xxxi) A7 Balam Singh Aswal did not conduct actual election of the Managing Committee members of the Society and submitted a false report Ex. A-7/1 (colly.) in this regard stating therein that he had conducted election on 04.04.2004.
(xxxii) Similarly, A8 P.K. Thirwani who was appointed as auditor to conduct the audit of the Society, submitted a false audit report Ex. A-8/5 (colly.) without making any attempt to conduct actual and genuine audit of the Society.
Offences, if any, committed by the accused:-
92. It remains to be seen now as to what offence, if any, has been committed by all or any of the accused against whom charges have been framed in this case i.e. A-3, A-4, A-5, A-6, A-7 and A-8. At the cost of repetition, it is again noted here that A-1 and A-2 have been discharged vide order dated 14.12.2015 and for this reason, their acts have been discussed very briefly only in order to elaborate the acts attributed to remaining six accused.
93. I find it proper to begin with A-5 Sri Chand and A-6 Anne Wankhede, the private persons who are stated to be the kingpins of the conspiracy. A-5 has been charged with the offence under section 420 IPC whereas A-6 has been charged with the offence under section 468/471 IPC. A combined charge under section 120-B r/w CBI No. 68/2016 (Old No. 70/2008) Page No. 69 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) section 420/468/ 471 IPC has also been framed against both of them.
94. The definition of cheating is provided in section 415 of Indian Penal Code. One of the essential ingredients of the offence of cheating is that the alleged act must have been committed either dishonestly or fraudulently. Section 24 of the Indian Penal Code defines dishonestly as under :
"Dishonestly : Whoever does anything with the intention of causing a wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.
95. Section 25 of the Indian Penal Code defines Fraudulently as under :
"Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
96. It has been contended on behalf of the accused that there was no cheating at all as no wrongful loss has been caused to anyone and there was no corresponding wrongful gain to anybody on account of any alleged acts of the accused and therefore, the ingredients of Section 415 IPC are not fulfilled. According to them, there is nothing on record to suggest that any loss was caused either to the DDA or to the office of Registrar of Cooperative Societies. The submission is that since a crucial ingredient of the offence of cheating is missing, the accused cannot be convicted for the offence of cheating or for the offence of conspiracy to cheat. These contentions and submissions CBI No. 68/2016 (Old No. 70/2008) Page No. 70 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) made on the above accused are absolutely devoid of any merit. The fact that A-5 and A-6 forged various documents relating to the defunct society Sri Madhuvana CGHS Ltd. such as copies of its General Body Meetings, membership list, membership application forms, affidavits of members etc. with the object to get the said society revived, clearly indicates that they were doing all this form some financial gain. It can't be said that all this forgery and fabrication of documents was being done merely out of fancy. It is manifest from the evidence on record that A-5 had formed an idea for applying for revival of the said defunct society on the basis of fake / forged documents. It is a matter of common knowledge that a newly created society either would not have got any land from DDA or would have wait for a long time for the same as there was a long queue of societies seeking allotment of land from DDA. The land was to be alloted by the DDA on the basis of seniority which was fixed on the basis of date of registration of the societies. Therefore, false and forged documents were created by A-5 with active support of A-6 with a view to revive a defunct society which had been registered in the year 1972. It is true that no pecuniary loss has been suffered either by DDA or office of Registrar of Cooperative Societies, but it cannot be said that no loss was suffered by any person at all. The real aggrieved person was the next eligible society to which the land would have been alloted in case the society in question i.e. Sri Madhuvana CGHS Ltd. had not been revived on the basis of false / forged documents submitted by A-5. No doubt can be entertained regarding the fact that A-5 would have obtained huge financial gain wrongfully in case his criminal acts would not have come to light. Infact, the main object of getting the defunct society revived was to get the land alloted from DDA for the said society illegally and CBI No. 68/2016 (Old No. 70/2008) Page No. 71 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) to have financial gains by selling the flats to be constructed on the said land.
97. It is limpid that intention of A5 and A6 was dishonest and fraudulent right since the beginning. They had no right or interest in the Society Sri Madhuvana CGHS Ltd. which had been defunct since decades. They cheated as well as defrauded the DDA and Housing Society which was next in the line for allotment of land by DDA, by getting the said defunct Society revived on the basis of fake, fictitious and forged document. They used the forged documents knowingly for the purpose of cheating.
98. Ld. Defence Counsel Sh. S.K. Bhatnagar submitted that there is no direct evidence against the complicity of A-6 Anna Wankhede in the forgery of the documents related to the society and he cannot be convicted merely on the basis of the report of the handwriting expert. His submission is that the opinion of handwriting expert cannot form the sole basis of conviction without any further corroborative evidence. He also seriously questioned the manner in which the specimen handwriting and signature of A-6 were taken during the course of investigation. According to Ld. Counsel, the specimen handwriting and signatures had been taken without the orders of the court and A-6 was forced to make specimen signatures in a specific manner which was absolutely contrary to the law and principles of justice. He relied upon the judgement of the Hon'ble High Court reported as Sapan Haldar Vs. State 1991 (2012) DLT 225 wherein it has been held that the investigating officer has no power to take specimen handwriting or signatures of the accused without the permission of the court.
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99. The aforesaid judgement is of no help to Ld. Counsel as it appears to have been delivered per incurium. The Supreme Court in the case of Ravinder Singh @ Dara Singh Vs. Republic of India AIR 2011 SC 1436 has held that the investigating officer has power to take specimen signatures during the investigation even without the permission of the court and the report of handwriting expert based on such specimen signatures can be considered in evidence. Even otherwise also, it has been held by the Supreme Court in another case reported as Umesh Kumar Vs. State, 2013 (IX) AD (SC) 581 that in case a document is obtained in improper and illegal manner, such document is admissible in evidence provided the same is relevant and its genuineness is also not in dispute. In view of the aforesaid two judgements of the Apex Court, no force is found in the contentions of the Ld. Counsel that the opinion of the handwriting expert should not be acted upon without corroboration and that the specimen signatures of A-6 had been obtained in violation of the principles of law.
100. With regards to the another limb of the submissions of Sh. Bhatnagar, Advocate that A-6 was forced to make specimen signatures in a specific manner, it would be suffice to say that nothing in this regard was stated by A-6 in his statement under section 313 Cr. PC. It was for A-6 to elaborate in his aforesaid statement as to who exerted force or pressure upon him to make signatures in a particular manner, when and where. Even no such suggestion has been put to IO (PW-71) in this regard. Therefore, I do not find any material on record to hold that A-6 had not given his specific signatures voluntarily.
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101. I also find it pertinent here to reproduce the following passage from another judgement of the Hon'ble Supreme Court reported as Murari Lal Vs. State of Madhya Pradesh 1980 (1) SCC 704 :
"6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to identity of handwriting is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) of Section 114 which entitles the court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial CBI No. 68/2016 (Old No. 70/2008) Page No. 74 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) standard of proof not warranted by the provisions of the Act. Further, under section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are insisted with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be inconsisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
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102. Thus, there is no rule of law to the effect that opinion of handwriting expert must never be acted upon unless substantially corroborated. However, in the instant case, apart from the opinion of the handwriting expert (PW-70), there is enough oral / documentary evidence on record to show that almost all the documents had been forged in order to make a case for revival of the defunct society Sri Madhuvana CGHS Ltd. Further, there is nothing in the cross examination of PW-70 to suggest that he had either not compared the questioned as well as specimen signatures correctly or that he has given a false report. Ld. Counsel pointed out the page no. D-12/10 which forms part of the handwriting expert's report Ex. PW-70/D-B. It is the first page of a detailed report of the expert consisting of 22 pages i.e. From D-12/10 to D-12/32. The caption on the first page is "REASONS FOR SUPPLEMENTARY OPINION NO. CX 283/2006 DATED 21.08.2006". It is the submission of the Ld. Counsel that this is the supplementary opinion only which means that the expert had given some opinion earlier, which has not been brought on record. The submissions of Ld. Counsel have been noted only to be rejected. It is clear that the expert PW-70 had, at first, given a short report dated 21.08.2006 (Ex.PW70/F-1) consisting of four pages wherein he has simply stated as to whether a particular set of questioned signatures/writings matches with the particular set of specimen signatures/writings. It appears that the CBI had later on asked him to give a detailed reasons for arriving at such an opinion and hence the expert gave the aforesaid supplementary opinion (Ex.PW70/G) mentioning therein the detailed reasons for his conclusion. Hence, no fault at all can be found in the opinion of the expert.
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103. A5 is, thus, liable to be convicted for the offence of cheating under Section 420 IPC and A6 is liable to be convicted for the offence of forgery under Section 468/471 IPC
104. So far as the charge of conspiracy framed against A-5 and A-6 is concerned, reference to Sections 120 A and 120 B of the Indian Penal Code as well as Section 10 of the Indian Evidence Act is necessary. The definition of the offence of criminal conspiracy is found in section 120 A which provides that when two or more persons agree to do, or cause to be done an act which is an illegal act, such an agreement amounts to criminal conspiracy. Section 120-B provides punishment for the offence of criminal conspiracy. The very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicate that it would never be entered into at a public place or on a high pedestal. Such agreements are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult to gather direct evidence to prove a conspiracy. Considering the said about the proof of conspiracy, Section 10 of the Indian Evidence Act has been enacted which reads as under :
"10. 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 any one of them, is a relevant fact as against each of CBI No. 68/2016 (Old No. 70/2008) Page No. 77 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) 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."
105. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
(i) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy ;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the other ;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ;
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(v) It can only be used against co-conspiractor and not in his favour.
106. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established CBI No. 68/2016 (Old No. 70/2008) Page No. 79 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
107. In the instant case also, though there is no direct evidence on record to show that there had been any agreement between A-5 and A-6 to seek revival of the defunct society, on the basis of false as well as forged documents, yet the evidence on record clearly shows that these two accused had been acting in collusion and in league with each other. It is difficult to believe that the criminal acts performed by these two accused, which have been discussed hereinabove, were not the result of an agreement between the two. Therefore, the evidence provides a prima facie reasonable ground to believe that they conspired with each other and the object of conspiracy was to get the defunct society revived on the strength of fake / forged documents. Therefore, whatever has been done by A-5 is the evidence against A-6 and whatever has been done by A-6 is the evidence against A-5. The prosecution has been successful in establishing the charge of CBI No. 68/2016 (Old No. 70/2008) Page No. 80 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) conspiracy against these two accused also.
108. Thus both the accused are liable to be convicted for the offence of conspiracy under Section 120B IPC r/w Section 420/468/471 IPC.
109. As regards the accused A3, A4, A7 and A8, two aspects need discussion. Firstly, whether there has been legally valid sanction for their prosecution and secondly, whether there acts of omission as well commission tantamount to criminal misconduct under Section 13 (1)
(d) of the Prevention of Corruption of Act, 1988.
Sanction:-
110. Ld. Defence counsels appearing for A4 Ram Nath, A6 Anna Wankhede, A7 Balam Singh Aswal and A8 P.K. Thirwani have vehemently assailed the validity of the sanction for prosecution of these three accused under Section 19 of the Prevention of Corruption Act, 1988 stated to have been obtained by the CBI. Pertinent to mention here that no sanction for prosecution of the fourth accused public servant i.e. A3 Faiz Mohd. has been obtained as he had already retired from the services.
111. It is contended by the Ld. Defence counsels that the sanction orders Ex.PW35/B, Ex.PW35/C and Ex.PW49/C are non-est in law for the reason that the same have not been obtained from the competent authorities. They would argue that the sanction orders have been issued without application of mind and therefore, it cannot be said that the sanction for prosecution of these three accused has been CBI No. 68/2016 (Old No. 70/2008) Page No. 81 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) accorded as per law.
112. Ld. Public Prosecutor argued that there is no illegality in the sanction orders qua the said accused and the sanction orders have been issued after proper application of mind.
113. Needless to mention that the sanction for prosecution of an accused under the provision of Prevention of Corrupt Act, 1988 is not a mere formality and it has to be accorded by the sanctioning authority after gaining complete satisfaction from the relevant material produced before him by the prosecuting agency. A sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. At the same time, it also needs to be kept in mind that this provision is not intended to offer an opportunity to a public servant to escape consequences of his criminal acts merely by raising technical plea about the invalidity of the sanction for his prosecution. This Section safeguards the innocent, but does not shield the guilty.
114. PW35, who has accorded sanction for the prosecution of A4 Ram Nath and A8 P.K. Thirwani, has deposed in his cross- examination that the letter had been received in his office on 09.10.2006 in this regard alongwith the report of SP, calendar of oral evidence and calendar of documentary evidence as well as the statement of these two accused. He further stated that the CBI had also sent a draft sanction order alongwith the request letter, but added that it was sent by the CBI on its own and neither he nor his office had ever asked the CBI to send the draft sanction order. He reiterated that CBI No. 68/2016 (Old No. 70/2008) Page No. 82 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) the sanction orders were prepared in this case on his broad directions. He also deposed that he was competent to remove these two government officials from their services on the day when he accorded sanction for their prosecution.
115. It would thus be seen that there is nothing in the deposition of PW35 to show that he had not gone through the relevant material or that he had not applied his own independent mind to the facts of the case before according sanction for the prosecution of A4 Ram Nath and A8 P.K. Thirwani.
116. The sanction for prosecution of A7 Balam Singh Aswal has been accorded by PW49. He has deposed that upon perusal of the request letter of the CBI dated 27.10.2006 in this regard, he called for the relevant papers including SP report in original from the CBI. He further stated that the investigating officer came to his office on 22.11.2006 and produced the entire requisite record including SP report before him. According to him, he granted sanction for prosecution of this accused after going through the entire record produced before him by the investigating officer. He also stated that he was competent to remove this accused from services during that period. In his cross- examination, he admitted that CBI had sent draft order alongwith the request letter Ex.PW49/A, but denied that he had merely signed the said draft sanction order under the pressure of CBI. He reiterated that the investigating officer had produced the entire file including SP report before him.
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117. Hence, I do not find anything in the deposition of this witness also, which may indicate that either he was not competent to accord sanction for the prosecution of this accused or that he had passed the sanction order without proper application of mind.
118. Ld. Defence counsels also argued that the sanction for prosecution of the aforementioned three accused should have been obtained from that particular officer, who was posted in the office of Registrar Cooperative Societies at the time when the offences in question are stated to have been committed, for the reason that he alone would have been competent to remove these three officials at that time. I do not find any force in the said arguments. The only thing required to be seen is whether the sanction has been obtained by the competent authority or not. The competent authority would be the authority having power to remove the accused government official on the day when the sanction for prosecution of the government official is sought. Since, usually there is a long time gap between the day when the offences are committed and the date when the sanction for prosecution of the concerned government official is sought after it is found during the course of investigation that he is guilty of criminal misconduct, it is more likely that the authority, which was having power to remove him from services on the day of commission of offence may have either retired or transferred to some other department/undertaking or may not be available for some other reason. Therefore, the authority which has power to remove the government official on the date when the sanction for his prosecution is sought by the investigating agency, is the competent authority.
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119. Further, it is settled law that merely because there is any omission, error or irregularity in the manner of according sanction, that would not affect the validity of the sanction order unless such error, omission or irregularity results in failure of justice. In this regard, I find support from the judgment of Supreme Court reported as State of Bihar Vs. Raj Mangal Ram, Criminal Appeal No. 709-710 of 2010 decided on 31.03.2014. Ld. Defence counsels have failed to show any evidence on record, which may indicate that there was any failure of justice or serious prejudice to the accused on account of the alleged improper sanction.
120. Hence, I hold that PW35 and PW49 were the competent authorities to accord sanction for the prosecution of A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani and the sanction orders have been passed after proper application of mind. No fault can be found in the sanction orders at all.
Criminal misconduct of public servants i.e. A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani under Section 13 (1) (d) of PC Act :-
121. It was submitted by the Ld. Defence counsels that even, if any, fault or defect is found in the manner in which these four accused have functioned while handling the file relating to the revival of Sri Madhuvana CGHS Ltd., that alone does not tantamount to criminal misconduct on their part in order to attract the provision of Section 13 PC Act. They would argue that the accused didn't have any dishonest intention and admittedly there is no evidence on record to show that CBI No. 68/2016 (Old No. 70/2008) Page No. 85 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) they had received any pecuniary gain from anybody. It is their submission that mere breach of procedure or not following the proper procedure and mere irregularity in doing official work does not make a government official liable under criminal law including PC Act.
122. Ld. Public Prosecutor argued that the evidence on record clearly manifests that it is not a case of mere breach of procedure or irregularity in doing official work on the part of these four accused, but they had been acting in such a manner deliberately, being involved with A5 Shrichand and A6 Anna Wankhede right since the beginning, in order to ensure that the Housing Society Sri Madhuvana CGHS Ltd. gets revived on the basis of false and forged documents and therefore, none of them made any actual or genuine efforts to ascertain whether the documents submitted in the office for the said purpose are genuine or fake. He argued that the dishonest intention on the part of these accused is writ large on the face of the record and therefore, they could not escape the liability under PC Act, 1988 for their criminal misconduct.
123. The manner in which forged/fake documents received in the office of Registrar Cooperative Societies for the revival of the Housing Society Sri Madhuvana CGHS Ltd. were acted upon without any objection/demur coupled with the manner in which false reports were given by these four accused i.e. A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani do not create any slightest impression in ones mind that they were acting bonafidely and without any criminal intent. It is to be borne in mind that these officials were dealing with the Society which was lying defunct for decades and its CBI No. 68/2016 (Old No. 70/2008) Page No. 86 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) original file was stated to be lost/misplaced from the office. In such a situation, no prudent official would accept application for revival of Society and the documents in support thereof without any detailed inquiry/verification. None of these officials made any genuine and actual effort to ascertain the credentials of the person applying for revival of the Society and the persons shown to be members/office bearers of the Society. It is evident that none of these officials stepped out of the office and each one prepared sham and bogus report while sitting in the office at the behest of A5 Shrichand to facilitate the revival of the Society on the basis of fake/forged documents.
124. It is difficult to accept that all these officials were so inefficient that they do not know the proper procedure to do the work entrusted to them. They were not fresh appointees, but had been working in the office and doing same work for the several years. Further, it cannot be a mere co-incidence that all these officials dealing with the file in this case, were negligent and inefficient. The acts of commission and omission of these accused, which have been detailed herein above in the preceding paragraphs of the judgment, leave no doubt in ones mind that they had been doing so for obtaining pecuniary advantage either for themselves or for some other person.
125. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public CBI No. 68/2016 (Old No. 70/2008) Page No. 87 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of ay State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal misconduct, -
(d) if he, -
...................................................
...................................................
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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
126. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary
advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section
13);
(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub-section (1) (d) (i) (iii) of Section 13);
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127. Thus, in order to attract Section 13 (1) (d) (ii), the prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person without any public interest. Use of corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
128. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using CBI No. 68/2016 (Old No. 70/2008) Page No. 90 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
129. Upon the detailed analysis of the said provision of law, Hon'ble High Court, in the aforesaid judgment, came to the conclusion that mens rea is inessential to convict the accsued for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, it has been observed in Para No. 73 of the judgment is as under :-
Para No. 73. "Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court-the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)
(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, CBI No. 68/2016 (Old No. 70/2008) Page No. 91 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
130. Explaining the concept of "public interest", there Lordship referred to the judgment of Supreme Court in LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgment:-
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined toe act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgment, has examined the concept, in NOIDA Entrepreneurs Associate."
131. There Lordships also referred to another judgment of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under : -
CBI No. 68/2016 (Old No. 70/2008) Page No. 92 of 96 State through CBI v. Narayan Diwakar etc. (Sri Madhuvana CGHS Ltd.) The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by Crl. A. Nos. 482/2002, 509/2002 and 536/2002 Page 54 virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
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132. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned public servant are absolutely unfair, unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
133. It is true that the CBI, in this case, has not produced any evidence to show that the four accused i.e. A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani had received any valuable thing or pecuniary advantage for themselves. However, it is manifest beyond any reasonable doubt that they had been acting in collusion with the A5 Shrichand to ensure that A5 Shrichand obtains pecuniary advantage by getting the defunct Housing Society revived on the basis of false and forged documents so that the land allotted to the Society by DDA would be available to A5 Shrichand for his use. Evidence on record shows beyond any doubt that they were dancing to the tune of A5 Shrichand and were assisting him in every possible in order to succeed in revival of the defunct of the Society on the strength of fake documents. They did not proceed beyond what A5 Shrichand dictated them to do. Therefore, they have acted without any public interest.
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134. The CBI has, thus, succeeded in proving beyond reasonable doubt that these four accused A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani have abused their position as public servants in order to ensure pecuniary advantage for A5 Shrichand without any public interest. It cannot be gainsaid that no public interest is involved in revival of the defunct Housing Society on the basis of forged documents.
135. Be it noted here that even though A7 and A8 have been charged for the offence under Section 15 r/w Section 13 (1) (d) (ii) & (iii), yet it is limpid from the above discussion that their role in the entire incident is in no way different that the role of A3 and A4. The offence of criminal misconduct u/s 13 (1) (d) (ii) & (iii) of PC Act stands proved beyond reasonable doubt against all of them. It cann't be said that the acts of omission/commission on the part of these accused i.e. A7 and A8 were a mere attempt to commit criminal misconduct. The evidence on record shows that the offence was complete for the reason that the name of the Society Sri Madhuvana CGHS Ltd. was forwarded alongwith the other Housing Societies to the DDA for allotment of land. It is, therefore, manifest that the offence of criminal misconduct was complete not only against A3 and A4, but qua A7 and A8 also. Hence, by virtue of the provisions of Section 221 (2) Cr. P.C, I hold that A7 and A8 are liable to be convicted u/s 13 (2) r/w Section 13 (1)
(d) (ii) & (iii) of PC Act and not u/s 15 r/w Section 13 (1) (d) (ii) & (iii) of the Act.
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136. All of them, thus, are liable to be convicted for the offence of criminal misconduct as defined under Section 13 (2) r/w Section 13 (1)
(d) (ii) (iii) of the PC Act, 1988.
Conclusion :-
137. In view of the aforesaid discussion, accused persons are hereby convicted as under:
(i) A3 Faiz Mohd., A4 Ram Nath, A7 Balam Singh Aswal and A8 P.K. Thirwani are hereby convicted for the offence punishable under Section 13 (2) r/w Section 13 (1) (d) (ii) (iii) of PC Act.
(ii) A5 Shrichand is convicted for the offence punishable under Section 420 IPC.
(iii) A6 Anna Wankhede is convicted for the offence punishable under Section 468/471 IPC.
(iv). A5 Shrichand and A6 Anna Wankhede are also convicted for the offence punishable under Section 120B IPC r/w Section 420/468/471 IPC.
Announced in the open Court on 08.12.2017 (Virender Bhat) Special Judge, CBI-01, North West Rohini Courts, Delhi CBI No. 68/2016 (Old No. 70/2008) Page No. 96 of 96