Delhi District Court
Cbi vs Vipin Aggarwal & Ors. on 30 November, 2022
IN THE COURT OF MS ANJANI MAHAJAN,
CHIEF METROPOLITAN MAGISTRATE, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI
CBI No.215/19
CBI vs Vipin Aggarwal & Ors.
CNR No.DLCT12-000699-2019
Date of Institution : 19.02.2008
Date on which case reserved for Judgment : 15.11.2022
Date of Judgment : 30.11.2022
JUDGMENT
1. CBI No. : 215/19
2. Date of the Commission
of Offence : Between the period 1984 to
2004
3. Name of the accused : (1) Sh. Vipin Aggarwal S/o
Late Sh. Ram Gopal
Aggarwal, R/o F-353,
Mayur Vihar, Phase-II,
Delhi-92.
(2) Sh. Parveen Kumar Jain
S/o Sh. T. C. Jan, R/o C-57,
Niti Bagh, New Delhi.
: Note: proceedings qua
Mrs. Avinder Kohli
have abated vide order
dated 18.07.2012)
4. Offence complained of : under Section
420/468/471/120-B IPC
5. Plea of accused : Plead not guilty
6. Final Order : Acquitted for the offence
alleged.
BRIEF FACTS OF THE CASE
1. The present judgment is directed only against the accused persons Vipin Aggarwal and Parveen Kumar Jain as the co-
CBI No.215/19 Page 1 of 44CBI vs Vipin Aggarwal & Ors. DL00524 accused Mrs. Avinder Kohli expired during the course of trial and proceedings against her stood abated vide order dated 18.07.2012.
2. As per the averments in the charge-sheet, Guru Ram Dass Cooperative Group Housing Society (hereinafter referred to as the Society), was registered with the office of Registrar of Cooperative Societies (RCS), New Delhi on 21.01.1984. Initially, there were 55 members in the Society and subsequently, the number of members increased to 100.
3. It is averred by the Central Bureau of Investigation (CBI) that the management and affairs of the Society were looked after by accused persons Smt. Avinder Kohli, President (since expired), Vipin Aggarwal, Secretary and Parveen Kumar Jain, Vice President and they had been operating the bank accounts of the Society in Union Bank of India and Dena Bank. Further, all the correspondences exchanged by the Society with the Government Authorities like RCS and Delhi Development Authority (DDA) had been signed by the accused persons and audit reports had also been signed by them.
4. The CBI alleges that the accused persons during the period 1985 onwards entered into a criminal conspiracy with the object of getting land for construction of flats for 100 members allotted from DDA at subsidized rates in the name of the Society by submitting false information and forged documents. In pursuance to the alleged criminal conspiracy, the Society submitted a list of 105 members to the office of RCS, Delhi on 13.06.1985 for approval and onward submission to DDA for allotment of land.
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5. According to the CBI, the aforesaid list was signed by all the accused persons. Later on, names of five members were deleted from the list by RCS and another list of members signed by the accused persons was submitted to RCS, Delhi. A Certificate was given to the effect that the list of members was considered by the Managing Committee of the Society and the Managing Committee had authorized the accused persons to submit the list to the RCS office. It was inter-alia certified that the information given in the list was as per the records of the Society and nothing therein had been concealed/omitted/misrepresented.
6. After processing the request of the Society, the office of RCS, Delhi forwarded the list of 100 members to DDA on 13.05.1997 for allotment of land in favour of the Society. The DDA approved the allotment of land in the name of the Society in the year 1998. Plot no.3-B, Sector-22, Dwarka, Phase-I, New Delhi measuring 5500 sq. mtrs. was allotted to the Society at subsidized rates for Rs.1,94,31,500/-. The Society immediately accepted resignations of 50 members and enrolled 50 members on 18.05.1998 once the land was approved for allotment on 12.05.1998 by DDA. The Society made payment of cost of the land and took possession of the land on 08.09.2000 through the accused Parveen Kumar Jain.
7. It is further alleged that on 17.02.2004, accused Parveen Kumar Jain submitted documents like proceeding register, cash book, election records and residence proof in respect of 61 fresh enrollments and 61 resignations of existing members for approval of RCS, Delhi including the 50 members enrolled on CBI No.215/19 Page 3 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 18.05.1998. The documents enclosed with the letter dated 17.02.2004 bore the signatures of all the accused persons and contents of the documents submitted for approval of fresh enrollments and resignations were found to be false.
8. As per the CBI, the accused persons Mrs. Avinder Kohli, President and Vipin Aggarwal, Secretary also submitted an undertaking dated 05.02.2004 affirming to the correctness of the information given in the support of the Society's proposal of pending resignations and enrollments and with the further undertaking that in case the information was found fake, the Society would be responsible. The RCS office, Delhi accepted enrollment of 31 members and resignations of all 61 members as requested by the Society in 2004.
9. It is the case of the CBI that during investigation, 24 members of the Society, whose names, membership numbers alongwith date of Resolution accepting resignations have been provided in tabular form in Para-(vii) of the charge-sheet, denied having resigned from the Society and also denied their signatures on the resignation letters. Some of the persons even denied becoming members of the Society. Further, GEQD, Kolkata opined that the signatures on the resignation letters of the members whose names were mentioned in Para-8 of the charge- sheet were not in the handwriting of the respective persons and GEQD also confirmed the signatures of the accused persons on several alleged incriminating documents eg. Resolutions for accepting resignation of 61 members on 18.05.1998, 13.12.2000 and 05.04.2003 on the list of 100 members submitted to RCS, CBI No.215/19 Page 4 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 Delhi for onward submission to the DDA, for allotment of land and correspondences exchanged with DDA and RCS.
10. It is therefore, the case of the CBI that the accused persons in pursuance of criminal conspiracy submitted false and forged documents to the Office of RCS, Delhi for getting the land allotted to the Society at subsidized rates from DDA and getting resignations of 61 members and enrollment of fresh members in lieu thereof approved.
COGNIZANCE & SUMMONING
11. Vide the order dated 02.05.2008 cognizance for the offences U/s 120-B r/w Sections 420/468/471 IPC and substantive offences u/s 420/471 IPC was taken and accused persons were summoned for answering to the allegations in the charge-sheet.
CHARGE
12. In pursuance to the order on charge dated 24.02.2009, formal charge for the offences U/s 420/468/471/120-B IPC was framed against the accused persons on 24.04.2009.
THE TRIAL PROCEEDINGS
13. In order to establish its case against the accused persons, the prosecution has examined 46 witnesses in total.
14. PW-1 was Sh. Vinod Kumar, an official of Delhi State Cooperative Bank, Connaught Place, where the account of the Society was maintained. He exhibited the letter dated 21.05.2007 bearing the signature of Branch Manager, Sh. V. S. Rana as Ex.PW1/A. PW-1 exhibited the specimen signature card bearing signatures of accused persons Arvinder Kohli and Vipin Kumar CBI No.215/19 Page 5 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 as Ex.PW1/B and certified copy of statements of account of the Society as Ex.PW1/C.
15. PW-2 Mrs. Pinki Luthra @ Rita Luthra inter alia deposed about becoming a member of the Society through one Sh. Sunil Arora, a friend of her husband. She denied that the membership register of the Society showing her membership number at serial no.72 bore her signatures. The membership register was exhibited as Ex.PW2/1. She also denied that the signatures on letter dated 17.04.1998 stated to be her resignation letter and signatures on voucher dated 01.06.1998 were her's. The said documents were exhibited as Ex.PW2/2 and Ex.PW2/3 respectively.
16. PW-3 was Sh. R. K. Sharma who inter alia deposed that he never became a member of the Society and denied his signatures at serial no.22 on page-3 of the membership register, on resignation letter dated 18.04.1998 and on voucher dated 01.06.1998. The said documents were exhibited as Ex.PW3/1 to Ex.PW3/3 respectively. PW-3 also denied that his signatures appeared on page-2 of the General Body Meeting conducted on 27.10.1983, on page-20 dated 20.08.1998, on page-39 dated 16.08.1991 and testified that he had not attended the General Body Meetings on any of the aforesaid dates.
17. PW-4 was Sh. Anupam Mathur, Sub Inspector, CBI who carried out the preliminary inquiry in relation to the Society which was entrusted to him pursuant to the direction of the Hon'ble Delhi High Court to enquire about the societies which had been allotted land. PW-4 exhibited the letter dated 17.04.2006 received by him from the office of RCS sent by the CBI No.215/19 Page 6 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 Assistant Registrar (CND) Handu Baa alongwith documents- memo as Ex.PW4/A. It appears that the exhibit mark was inadvertently not put on the document i.e. letter dated 17.04.2006 itself but the description of the document is sufficiently provided in the evidence sheet of the witness, so there is no confusion regarding the document. PW-4 also exhibited letter dated 28.04.2006 sent to him by Sh. K G Kashyap, Deputy Director (GH)/DDA containing list of files sent to him as Ex.PW4/B. PW- 4 exhibited his report dated 04.01.2007 as Ex.PW4/C.
18. PW-5 was Sh. Pawan Luthra who deposed inter alia about becoming a member of the Society alongwith his wife i.e. PW-2 Mrs. Pinki Luthra. He denied that the signatures on Ex.PW2/1 to Ex.PW2/3 were of his wife. He also stated about getting membership money deposited for Avinash Luthra, Promila Luthra and Kavita Surma in the Society.
19. PW-6 Mrs. Usha Sachdeva deposed inter alia that she could not remember if she was a member of any Society but denied that any membership money had been returned to her and also denied attending any meeting of the Society. She deposed that signatures at point X on Ex.PW2/1 were not hers and also denied signatures on the documents Ex.PW6/A and Ex.PW6/B.
20. PW-7 was Ms. Kavita Surma. She inter alia deposed that her brother told her that he had deposited money for her membership in the Society in her name. She denied that the signatures at point Y at serial no.74 on Ex.PW2/1 were hers. Similarly, she denied that the signatures at point Y1 on Ex.PW7/A and at point Y2 on Ex.PW7/B were her signatures. PW7 deposed that she had not attended any meeting and had not CBI No.215/19 Page 7 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 paid any money to the Society except what was paid by her brother.
21. PW-8 was Mrs. Avinash Luthra. She deposed inter alia that her brother in law Pawan Luthra had got a membership of a Society for her but she did not know the name of the Society. She testified that the signatures at point Z at serial no.70 on Ex.PW2/1, at point Z1 on Ex.PW8/A and Z2 on Ex.PW8/B were not her signatures nor had she signed the same. She denied having attended any meeting of the Society and testified that there was no occasion for her to have deposited money against the flat as she was never informed about the same.
22. PW-9 was Mrs. Promila Luthra. She inter alia deposed that her brother in law had made her a member of the Society. She testified that the signatures at point B on Ex.PW2/1, at point B1 on Ex.PW9/A and at point B2 on Ex.PW9/B were not her signatures. She deposed that she had not deposited any money except which was deposited by her brother in law and had not attended any meeting of the Society.
23. PW-10 was Sh. S. P. Singh Bhati, the then Joint Registrar in the RCS. He exhibited the registration certificate of the Society dated 21.01.1984 containing his signatures at point A as Ex.PW10/A. The approval dated 21.01.1984 for issuance of certificate for registration of the Society given by the then Registrar was exhibited as Ex.PW10/B. The bylaws of the Society running from page nos.138 to 161 containing the names of the members of the Society bearing the signature of PW-10 at the back of page-139 at point D and on page-161 at point E were exhibited as Ex.PW10/C. CBI No.215/19 Page 8 of 44 CBI vs Vipin Aggarwal & Ors. DL00524
24. PW-11 was Sh. Kuldeep Parkash Duggal who inter alia deposed that he was never a member of the Society so the question of resigning from the same did not arise. He deposed that Ex.PW11/A i.e. entry no.39 on the membership register at point A, Ex.PW11/B i.e. resignation letter dated 17.04.1998 and Ex.PW11/C i.e. receipt dated 01.06.1998 did not bear his signatures.
25. PW-12 was Sh. Inder Pal Singh Chadha who inter alia deposed that he did not remember as to whether he was ever a member of the Society. However, he denied that Ex.PW12/A i.e. relevant page of membership register containing entry no.104, Ex.PW12/B i.e. resignation letter dated 04.11.2000 and Ex.PW12/C i.e. receipt bore his signatures.
26. PW-13 Ms. Annu Arora denied becoming a member of any Group Housing Society. She inter alia deposed that the serial no.73 of the membership register Ex.PW2/1 reflecting her name did not bear her signatures and same must have been forged. She also denied that letter dated 18.04.1990 stated to be her resignation letter and alleged receipt bore her signatures.
27. PW-14 Dr. Rajeev Kapoor deposed inter alia that he became a member of the Society for which he deposited Rs.100 as membership fee and identified his signature at point A on the membership register at serial no.24 (although the exhibit number of the membership register is mentioned as Ex.PW3/1, however, same appears to be a typographical error since the membership register is Ex.PW2/1 as borne out from the testimonies of the previous witnesses and the exhibit number given on the document itself). PW-14 deposed that resignation letter dated CBI No.215/19 Page 9 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 17.04.1998 and receipt stated to have been given by him did not bear his signatures.
28. PW-15 was Sh. Parminder Singh Chadha. He deposed inter alia that in 1984 he was school going and had not become a member of the Society. He denied that the membership register at serial no.95 bore his signatures (relevant page was exhibited as Ex.PW15/A). He deposed that the resignation letter dated 17.04.1998 and receipt stated to have been given by him did not bear his signatures.
29. PW-16 was Sh. Inder Singh. He deposed inter alia that he was never a member of the Society. He denied that the membership register Ex.PW16/A at membership number 31 bore his signatures in Urdu. Rather, he stated that he did not know Urdu and only signed in English.
30. PW-17 was Sh. Avtar Singh. He inter alia deposed that the signature at serial no.91 appearing on the membership register relevant page of which was already Ex.PW15/A did not bear his signatures nor had he become a member of the Society. He deposed that resignation letter dated 18.04.1998 which was exhibited as Ex.PW17/1 did not bear his signatures. He deposed that there was no question of his receiving back Rs.100/- as he never became a member of the Society.
31. PW-18 was Sh. Yashpal Kohli. He inter alia deposed that the signature at serial no.89 appearing on membership register relevant page of which was already Ex.PW15/A did not bear his signatures nor had he become a member of the Society. He deposed that the resignation letter dated 18.04.1998 which was exhibited as Ex.PW18/1 did not bear his signatures. He deposed CBI No.215/19 Page 10 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 that there was no question of his receiving back Rs.100/- as he never became a member of the Society.
32. PW-19 was Sh. Rajender Joshi. He inter alia deposed that his brother in law Sh. A. K. Sharma helped him in becoming a member of the Society and PW-19 had paid Rs.100/- as the membership fee. He identified his signatures at serial no.6 of the membership register and the relevant page of the register was exhibited as Ex.PW19/A. He deposed that the resignation letter dated 13.04.1998 i.e. Ex.PW19/B and voucher dated 01.06.1998 i.e. Ex.PW19/C did not bear his signatures.
33. PW-20 was Sh. Gurveer Singh. He inter alia deposed that he became a member of the Society through Sh. P. S. Kohli and gave Rs.100/- towards the membership fee. He identified his signature at serial no.102 of the membership register. In relation to the resignation letter dated 13.04.1998 which was exhibited as Ex.PW20/A, PW-20 stated that signatures thereon did not look like his signatures and volunteered that he was unable to recollect as to whether the same had been signed by him. He deposed that the Society had not returned his membership fee to him.
34. PW-21 was Sh. Kulbir Singh. He inter alia deposed about becoming a member of the Society in the year 1982-83 through one Sh. P. S. Kohli and having deposited Rs.100/- as membership fee through Mr. Kohli. He identified his signatures at serial no.101 of the membership register but volunteered immediately thereafter, that he was not sure about the signature as it was an old matter. He denied that resignation letter dated 18.04.1998 i.e. Ex.PW21/A and voucher dated 01.06.1998 i.e. Ex.PW21/B bore his signatures.
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35. PW-22 was Sh. Virender Kumar Loomba, official of Union Bank of India, Paharganj, Delhi. He deposed that the Society had its account with the bank but the same was not in operation any longer. He exhibited the letter dated 19.03.2007 addressed by the Chief Manager, Sh. Vinay Singh whose signatures PW-22 identified, to Sh. N. S. Yadav, containing list of documents (running into 77 pages). The letter was exhibited as Ex.PW22/A. The documents i.e. certified copies of the statement of accounts were exhibited as Ex.PW22/B1 to Ex.PW22/B77. Letter dated 26.04.2007 containing list of documents (running into 07 pages) sent by the Chief Manager to Sh. N. S. Yadav was exhibited as Ex.PW22/C. The documents annexed to the letter dated 26.04.2007 were exhibited as Ex.PW22/D1 to Ex.PW22/D7.
36. PW-23 was Sh. Narender Makkar. He inter alia deposed that as far as he could remember, he never became a member of the Society. He deposed that the signatures at serial no.51 of the membership register Ex.PW23/A were not his though he used to sign in a similar manner in those days. He denied that resignation letter dated 17.04.1998 i.e. Ex.PW23/B and voucher dated 01.06.1998 i.e. Ex.PW23/C bore his signatures though the signature looked similar to his. He deposed that as he had never become a member of the Society so there was no question of his resigning from the Society or having got back the membership fee.
37. PW-24 was Sh. Dilip Bhatacharya. He inter alia deposed that he worked in the RCS office from the year 1997 to 2003. He exhibited the following documents:-
a. List of 55 promoter members of the Society-Ex.PW24/A. CBI No.215/19 Page 12 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 b. The noting of the then RCS approving enhancement of number of members in the Society to 100 at page-22/N in file, volume-4- Ex.PW24/B c. Letter dated 13.05.1997 sent by Sh. R. P. Kalra (whose signatures PW-24 identified) informing about approval of the list of 100 members-Ex.PW24/C. d. Show cause notice issued to the Society by the then RCS Sh. Gopal Dixit whose signatures he identified, dated 28.07.1997- Ex.PW24/D. e. Order dated 20.08.1998 of the RCS withdrawing the show cause notice - Ex.PW24/E. f. Letter dated 06.02.2003 of the Society submitted to RCS informing about new enrollment 61 members and resignation of 61 members alongwith compliance report dated 06.02.2003 -
Ex.PW24/F. g. List of such members - Ex.PW24/G (colly).
h. Order dated 06.01.2003 of Smt. Shakuntala Joshi, Assistant Registrar deputing PW-24 to inspect the Society (whose signatures PW-24 identified) - Ex.PW24/H. i. Inspection report prepared by PW-24 dated 13.02.2003 - Ex.PW24/I. j. Noting of Sh. S S Gaur, Assistant Registrar (whose signature PW-24 identified) for approval of resignation of 61 members and enrollment of 31 members - Ex.PW24/J (colly). k. Undertaking submitted by Society to RCS regarding veracity of list of resignation and undertaking dated 05.02.2004 -
Ex.PW24/K.
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CBI vs Vipin Aggarwal & Ors. DL00524
l. Approval of DDA for allotment of land to the Society - Ex.PW24/L (colly).
m. Letter dated 22.07.1997 issued by DDA to the Assistant Registrar, RCS seeking clarification on the affidavits of the members - Ex.PW24/M. n. Letter dated 10.09.1997 issued by Sh. R. P. Kalra (whose signature PW-24 identified) giving clarification - Ex.PW24/M.
38. PW-25 was Sh. R. P. Kalra who deposed that he joined RCS as Assistant Registrar in November, 1996 and remained in the department upto May 1998 and during the said period he dealt with the file of the Society in his official capacity. He deposed that the report of the inspecting officer was forwarded by him to the deputy registrar on 08.09.1997 with a recommendation to forward the same after approval from the Deputy Registrar. He identified his signature at point X1 on Ex.PW25/A. He further deposed that the recommendation was approved by the Deputy Registrar on 10.09.1997 and letter was sent to the DDA on the same day.
39. PW-26 was Sh. Anil Kumar Bhalla, official of Canara Bank. He exhibited the letter dated 23.05.2007 issued to Sh. M S Yadav, DSP, CBI at the instance of the then Branch Manager as Ex.PW26/A. The account opening form relating to account no.7431 belonging to one Sh. Raghubir Singh was exhibited as Ex.PW26/B.
40. PW-27 was Sh. Deepak Kumar who was working in Allahabad Bank in the year 2007. He exhibited the letter dated 10.05.2007 through which he handed over two account opening forms, one belonging to Rajender Kaur Rekhi and another CBI No.215/19 Page 14 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 belonging to Kanwaljeet Singh Rekhi as Ex.PW27/A and the account opening forms of Rajender Kaur Rekhi and Kanwaljeet Singh Rekhi as Ex.PW27/B and Ex.PW27/C respectively.
41. PW-28 was Sh. V. P. Singh who was posted in Punjab National Bank in the year 2007. He exhibited the receipt memo dated 31.05.2007 through which he handed over the account opening form of Waryam Singh Sethi to the IO Sh. N. S. Yadav as Ex.PW28/A and account opening form as Ex.PW28/B and stated that said account opening form related to New Bank of India which subsequently merged with PNB.
42. PW-29 was Sh. Vijay Kumar who was posted in RCS office from July, 2001 to August, 2005 as UDC and had dealt with the file bearing no.F-47/1415/CND(Vol. No.4) of the Society. He exhibited the proceedings dated 19.10.2001 and 17.07.2002 on page-34/N of the file bearing his signatures as Ex.PW29/A. He also proved the proceedings sheet written by him dated 06.01.2003 which was already Ex.PW24/11. Notings on page-36/N and 37/N dated 18.02.2003 were exhibited as Ex.PW29/B and pages 38/N to 43/N of the file were exhibited as Ex.PW29/C (colly).
43. Sh. M. P. Sharma was PW-30 who was posted as SDM in Revenue Department, Govt. of NCT Delhi and subsequently posted to RCS office in the month of April 2006. He was posted as Assistant Registrar, South Zone, Policy Branch w.e.f. April 2006 to September, 2007. He exhibited the copy of letter dated 03.09.2007 about the eligibility criteria for becoming a member of a Cooperative Group Housing Society alongwith certified photocopy of list of societies received from RCS which also CBI No.215/19 Page 15 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 contained the name of the Society in question as Ex.PW30/A (colly).
44. PW-31 was Sh. Din Dayal Agarwal whose Chartered Accountants' Firm had carried out the audits of the Society for six years i.e. 1998-1999, 1999-2000, 2000-2001, 2001-2002, 2002-2003 and 2004-2005. He exhibited the audit reports as Ex.PW31/A to Ex.PW31/F.
45. PW-32 was Sh. Pramod Kumar who was posted in RCS office from October 2005 till January 2009 and dealt with the file of the Society. He exhibited his note-sheet no.44/N as Ex.PW32/A.
46. PW-33 was Sh. Devinder Singh who was posted in Thrift and Credit Branch of RCS office from 1998 till 2001. He exhibited the note-sheet at page-27/A appointing him as Election Officer dated 03.07.1998 as Ex.PW33/A and his report/noting as Ex.PW33/B.
47. PW-34 was Sh. Y. K. Chauhan who was posted at RCS office for the period 1982 to 1990 and then 1994 to 2000. He exhibited the note-sheet dated 17.03.1999 vide which he was appointed by Sh. P. D. Sharma the then Deputy Registrar to conduct the election of the Society as Ex.PW34/A identifying signatures of Sh. P. D. Sharma thereon. Letter dated 22.04.1999 received from the Society pertaining to documents regarding election alongwith the annexures of the letter were exhibited as Ex.PW34/B colly. Letter dated 03.06.1999 written by PW-34 intimating the Deputy Registrar that the election of the Society had already been conducted on 23.10.1998 was exhibited as Ex.PW34/C. CBI No.215/19 Page 16 of 44 CBI vs Vipin Aggarwal & Ors. DL00524
48. Sh. S. S. Gaur who worked as Assistant Registrar Co- operative Societies with effect from August 2003 to 28.02.2006 was examined as PW-35. He exhibited his note-sheets no. 39/N, 40/N and 41/N as Ex.PW35/A to Ex.PW35/C respectively. His note-sheet no. 43/N was exhibited as Ex.PW35/D and letter no.2466 dated 17.03.2004 sent to the Society giving approval of 61 members' resignation and enrollment of 31 members contained on pages no. 791/C to 793/C was exhibited as Ex.PW35/E to G. Letter dated 23.12.2003 issued by PW35 contained at page-489/C of the concerned file of RCS office was exhibited as Ex.PW35/H. Letter no.4214 and letter dated 27.12.2005 issued by PW35 were exhibited as Ex.PW35/I and Ex.PW35/J respectively (the evidence sheet mentions the exhibit mark as Ex.PW25/J which is an apparent typographical error).
49. PW-36 was Smt. Rajinder Kaur who was posted in the Audit Branch of RCS, having joined the office of RCS on 14.12.2004 and remained posted there till 06.10.2008. She identified her signature on the Audit Report of the Society at point X2 which was already Ex.PW31/F.
50. Sh. Jagdish Chander was examined as PW37. He was working as Director, Residential Land, DDA looking after work of allotment of land to cooperative group housing societies in the year 2000. He exhibited the possession letter dated 01.09.2000 issued to the Society by him as Ex.PW37/A. Letter dated 08.09.2000 pertaining to handing over possession of the land to the Society by the Assistant Director, Survey was exhibited as Ex.PW37/B. The perpetual lease deed dated 02.04.2004 executed CBI No.215/19 Page 17 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 by Lease Administrative Officer, DDA in favour of the Society was exhibited as Ex.PW37/C.
51. PW-38 was Sh. Uma Shankar Bhardwaj who was posted as Assistant Director in Group Housing, DDA between the period 2002 to 2006. He identified his signatures on the perpetual lease deed dated 02.04.2004 i.e. Ex.PW37/C and also identified the signatures of the Secretary i.e. accused Vipin Aggarwal who had signed thereon. The Lease Plan was exhibited as Ex.PW38/A and note-sheet no.33/N and 34/N were exhibited as Ex.PW38/B and Ex.PW38/C respectively.
52. Sh. Virender Singh Verma who worked as Assistant, Group House Branch, DDA in the year 2001 was examined as PW39.
53. PW-40 was Sh. Brahm Prakash who was posted in Dwarika Planning as Assistant Director, Survey from 1998 to 2002. He exhibited the possession plan vide which the possession of land was given by DDA to the Society on 08.09.2000 as Ex.PW40/A.
54. Public witnesses Sh. V. K. Gupta and Sh. T. C. Choudhary were examined as PW41 and PW42 respectively.
55. PW43 was Sh. Bachan Singh, the independent witness to the proceedings pertaining to taking the specimen writings of the accused Vipin Aggarwal and Praveen Kumar Jain as well as of the persons Dr. Rajiv Kapoor, Sh. Jagjeet Singh Rekhi, Sh. Surjeet Singh Rekhi, Sh. Inderdeep Singh and Sh. Parminder Singh. He identified his signatures on the handwritings which were exhibited as Ex.PW43/1 (colly) to Ex.PW43/7 (colly).
56. PW-44 was Sh. Baij Nath Gupta who deposed that he was a founder member of the Society. He identified his signatures at CBI No.215/19 Page 18 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 serial no.12 on the membership register as Ex.PW44/A, his signatures on Minutes of Meeting held on 18.10.2009 as Ex.PW44/B and Minutes of the Annual General Body Meeting of the Society held on 16.08.1991 as Ex.PW44/C. PW-44 also identified the signatures of the accused Avinder Kohli at point D on page-38 on Ex.PW44/C. He identified his signatures on the Minutes of Managing Committee Meeting dated 17.09.1991 as Ex.PW44/D also identifying the signatures of the then President i.e. accused Vipin Kumar Aggarwal at point F thereon. PW-44 further identified his signature on the Proceeding Register containing information about Executive Meeting held on 23.02.1992 i.e. Ex.PW44/E. He identified the signatures of the accused persons on Ex.PW44/F and signatures of accused Vipin Aggarwal on perpetual lease deed also exhibited as Ex.PW44/G and signature of accused Praveen Jain on letter dated 01.08.2000 i.e. Ex.PW44/H. PW-44 also identified the signatures of accused Vipin Aggarwal on the documents then exhibited as Ex.PW44/I to Ex.PW44/Q. He identified the signatures of all three accused persons on Ex.PW44/R and Ex.PW44/S. He also identified the signatures of accused Vipin Aggarwal on list of members enrolled by the Society upto 31.03.2003 and verification of the members of Society for sending of the list of members to DDA for allocation of land as ExPW44/T and Ex.PW44/U. PW44 identified the signatures of the accused persons Praveen Jain and Vipin Aggarwal on the documents Ex.PW44/V and Ex.PW44/W.
57. PW-45 was Sh. A. K. Singh, Assistant Government Examiner, GEQD, Kolkata who proved his opinion on handwriting exhibited as Ex.PW45/1 and supplementary opinion CBI No.215/19 Page 19 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 as Ex.PW45/2. The application/letter dated 12.06.2014 sent to SSP, CBI, Special Task Force, CGO Complex, Delhi forwarded by Director, CFSL was exhibited as Ex.PW45/A1. The reasons for the opinion dated 05.06.2007 were exhibited as Ex.PW45/A2 (colly). Specimen handwriting and signatures of the accused persons Vipin Aggarwal and Praveen Kumar Jain bearing the stamp of GEQD were exhibited as Ex.PW45/X1 (colly) and Ex.PW45/X2 (colly).
58. PW-46 was the Investigating Officer (IO) of the case namely Sh. N. S. Yadav, Retired SP. He exhibited the following documents:-
a) FIR registered on 05.01.2007 - Ex.PW46/1.
b) Letter dated 30.03.2007 received by PW46 on 03.04.2007
- Ex.PW46/2.
c) Seizure Memo dated 12.06.2006 alongwith four proceeding registers - Ex.PW46/3A to Ex.PW46/3D.
d) Letter dated 12.06.2007 received from Dena Bank alongwith Accounts Statement of the Society for the period 27.06.1998 to 03.09.2005 - Ex.PW46/4.
e) Letter dated 12.04.2007 received from Dena Bank - Ex.PW46/5.
f) Receipt memo dated 15.02.2007 - Ex.PW46/6.
g) Audit Balancesheet alongwith Audit report of the Society for the year ending on 31.03.2004 - Ex.PW46/7.
h) Receipt memo dated 06.06.2007 - Ex.PW46/8.
i) Receipt memo dated 05.06.2007 - Ex.PW46/9.
j) Receipt memo dated 25.05.2007 - Ex.PW46/10.
k) Receipt memo dated 22.05.2007 - Ex.PW46/11.
CBI No.215/19 Page 20 of 44CBI vs Vipin Aggarwal & Ors. DL00524 l) Receipt memo dated 21.02.2007 - Ex.PW46/12. m) Receipt memo dated 03.04.2011 - Ex.PW46/13. n) Receipt memo dated 08.06.2007- Ex.PW46/14. o) Original letter to DDA for payment of allotment money for
plot no.3-B, Sector-22, Dwarka dated 05.06.2000 - Ex.PW46/15.
p) Original letter of disbursement of loan of CGHS dated 01.08.2000 - Ex.PW46/16.
q) Letter dated 14.05.2007 sent to GEQD, Kolkata -
Ex.PW46/17.
r) Letter dated 29.06.2007 sent to GEQD, Kolkata -
Ex.PW46/18.
s) Specimen signatures/handwriting of persons Rita Luthra, Usha Sachdeva, Avinash Luthra, Kavita Soorma, Promila Luthra, Anu Arora, Dr. Rajiv Kapoor, Kuldeep Prakash Duggal, Ajay Kumar Garg, Vipin Aggarwal, Jagjeet Singh Rekhi, R. K. Rekhi, Surjeet Singh Rekhi, Inderpal Singh Chadha, R. K. Sharma, Avinder Kohli, Inderdeep Singh, Inder Singh, Narender Kumar, Rajender Joshi, Yashpal Kohli, Avtar Singh, Waryam Singh, Parvinder Singh Chadha, Kulbir Singh, Guruveer Singh, Raghuveer Singh Negi and Praveen Kumar Jain all bearing signatures of IO at point Z respectively - Ex.PW46/19 (colly).
t) Show-cause notice dated 18.07.2002 issued by RCS office
- Ex.PW46/DA1.
58.(i).PW-46/IO also marked the documents i.e. memo containing photocopies of application forms of 107 members of the Society, memo containing photocopies of resignation letters CBI No.215/19 Page 21 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 of 45 members, memo containing photocopy of General Body Proceeding Register, memo containing photocopy of attendance register of General Body Proceeding Register, photocopy of Demand-cum-allotment letter for allotment of plot as Ex.X1 to Ex.X5 respectively and copy of receipt memo regarding documents of member Sh. Devender Kumar Mittal and his family members as Mark PW46/DA.
59. The statements of accused persons Vipin Aggarwal and Praveen Kumar Jain u/s 313 Cr.P.C. were recorded on 02.06.2016. The accused persons denied the allegations against them and sought to lead Defence Evidence.
60. The accused persons examined four witnesses in their defence.
61. DW-1 was Sh. Anil Kumar Gupta who was a member of the Society since 1984.
62. DW-2 was Sh. P. K. Jindal who deposed that his wife was a member of the Society in the year 1984 and had resigned in 2002 and share certificate was surrendered at that time.
63. DW-3 was Sh. Sunil Arora who also deposed to becoming a member of the Society in the year 1983. He exhibited certain receipts issued by the Society to him as Ex.DW3/P1 (colly) (OSR) during his cross-examination.
64. DW-4 was Sh. Naresh Chand Sharma, Manager-cum-Care Taker of the Society who exhibited authorization issued to him by the Society as Ex.DW4/P1 and list of 24 members who had resigned alongwith attested copies of 24 share certificates as Ex.DW4/A1 to Ex.DW4/A25 (colly).
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65. All the witnesses of the defence were duly cross-examined by Ld. APP for the CBI.
FINAL ARGUMENTS
66. Upon conclusion of trial, final arguments were advanced by Ld. PP for CBI and Ld. defence counsel. Written submissions were also furnished by both sides. It was argued by the CBI that the evidence on record amply proved that the accused persons had committed the offences alleged and they were the office bearers of the Society responsible for all its affairs, while ld. Defence counsel argued that there were various infirmities in the prosecution's case and all acts of the accused persons pertaining to signing and submissions of documents were done in pursuance to resolutions passed and authorizations given by the committee of the Society and no offences were committed by the accused persons.
67. The CBI relied on the judgments i.e. Rajiv Kumar vs State of UP (2017) and Shivanarayan Laxminarayan Joshi vs State of Maharashtra AIR 1980 SC 439 on the aspect of conspiracy.
68. The defence relied on the judgments A P Narang vs CBI Crl. Rev. P. No.397 of 2010 decided by Hon'ble Delhi High Court on 17.01.2011, Daulat Ram Mehandiratta vs Lt. Gov. of Delhi and Ors. (AIR) 1982 Delhi 4701, A S Krishnan & Ors. vs State of Kerala (2004) 11 SCC 576, Sheila Sebastian vs R. Jawaharaj & Ors. AIR 2018 SC 2434 and Commission of Income Tax vs Moorti Dev MANU/DE/3033/2010.
69. I have heard the arguments and perused the record including the written submissions furnished and judgments cited at Bar.
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REASONS FOR DECISION
70. The technical objection raised by the defence regarding the CBI having exceeded its authority in investigating and registering the case can be dealt with at the outset.
71. It is the undisputed position that investigations in relation to various group housing societies in Delhi had been launched pursuant to directions passed by the Hon'ble Delhi High Court in W.P. 10006/2004. The argument raised by the defence is that the scope was confined to investigating the unholy alliance between powerful builders and officials of RCS and DDA to reap gains wherein fraudulent revival of defunct societies was got done and in the present case, neither any builder lobby was involved in the functioning of the Society nor, concededly was this case one of revival of defunct Society (as admitted by the IO/PW-46 Sh. N. S. Yadav Retired SP in his cross-examination dated 29.10.2015).
72. This argument must be rejected for the reason that the copy of the order dated 02.08.2005 passed by Hon'ble Delhi High Court in W.P. No. 10006/2004 (which is on record and not disputed) shows that a clear direction was given by the Hon'ble Delhi High Court to the Director of CBI to conduct thorough investigation in all the matters of 135 cooperative societies. Agreed that a focus of the investigation was required to be the unholy alliance between the builders lobby and officials of the government department but there were no fetters put on the power of the investigating agency to investigate into the genuineness of such societies and alleged illegalities if any committed for securing land from the DDA at pre-determined rates which were lower than the prevailing market value. Rather, CBI No.215/19 Page 24 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 the specific words used in the order dated 02.08.2005 of the Hon'ble High Court are to conduct a 'thorough investigation' and thus it was in fact the bounden duty of the IO to carry out an extensive, in-depth investigation in the present case well. The argument regarding the CBI having exceeded its jurisdiction is thus rejected.
73. Having observed thus, I must now note that the IO has merely made a half-baked and shoddy attempt at investigation in the present case, as I shall proceed to elaborate hereunder.
74. Firstly, no serious attempt to ascertain as to who had carried out the alleged forgery of the various documentation i.e. membership registers, resignation letters, vouchers of refund of money has been done by the IO. None of the prosecution witnesses cited in this regard i.e. who were either members but did not sign any documents or did not sign the resignation letters or were never members at all, have named the accused persons as the alleged forgers nor even made any allegation against them. It is completely understandable that these witnesses, many of whom state they have nothing to do with the Society, would be unaware of the identity of the forger but the investigation should reflect the efforts made to find out about the culprit/culprits and on whose direction or with whose connivance, such culprits had committed the alleged act of forgery.
75. There is nothing on record to show that any investigation was conducted to ascertain when, where and how the alleged forgery of documents was done, what electronic device(s) was/were used to carry out such alleged forgeries (the bodies of CBI No.215/19 Page 25 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 the resignation letters being in printed format) and under whose control such electronic device(s) used to remain.
76. Secondly, the IO/PW-46 Retd. SP N. S. Yadav never bothered to personally visit and inspect the office premises of the Society. This was conceded by him in his cross-examination conducted on 04.12.2015. He testified that he had sent his colleague to the office of the Society in 2007 but he did not remember the name of his colleague or the date/month of the visit. Pertinently, no such colleague who allegedly visited the office of the Society has been cited as a witness. Furthermore, the IO/PW-46 Sh. N. S. Yadav went on to depose that documents were not seized at the office of the Society but were brought by the official of Society to CBI office.
77. Clearly thus, the IO failed to investigate the crucial aspect of whether the records of the Society including the alleged fabricated records were being maintained at the office of the Society or elsewhere.
78. Then, the question arises, how was it ascertained as to who was/were the person/persons who had control over the records of the Society ? In this regard, the defence put a pointed question to the IO/PW-46 Sh. N. S. Yadav during trial as to whether by any law, rule or regulation, the documents of the Society were to be maintained or kept by the secretary of the Society, to which he responded that there was no such rule/law in that regard but through discussion with the Secretary and Vice President, he was told that they were maintaining the documents. When asked whether he had recorded such discussion with the Secretary and Vice President or their disclosure statements to such fact, the CBI No.215/19 Page 26 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 IO/PW-46 Sh. N. S. Yadav candidly responded that no such disclosure and discussion were recorded.
79. Clearly, the aforesaid statement of the IO/PW-46 Sh. N. S. Yadav is not substantiated by any documentary evidence and really appears to be an after thought for filling up the lacuna in the CBI's case.
80. Why the investigation on the aspect of physical verification of records being maintained in the Society's office or elsewhere and the person/persons exercising control on the same was essential is because the accused persons have consistently maintained that it was one Mr. P. S. Kohli, the husband of the accused Avinder Kohli who had promoted the Society naming his wife as President and the office of the Society was at his official address i.e. 5/70 WEA, Karol Bagh, New Delhi. The IO/PW-46 though knew that P.S. Kohli was also a CA but did not remember that the address of the Society was the same as that of the office of P.S. Kohli. The fact that Mr. P. S. Kohli was having some involvement in the Society despite not being a member is corroborated by the prosecution's own witnesses i.e. PW-20 Sh. Gurveer Singh and PW-21 Sh. Kulbir Singh both of whom deposed in their respective chief examination itself that they had become members of the Society through Sh. P. S. Kohli and both also deposed during trial about depositing the membership fee of Rs.100/- though Sh. P. S. Kohli.
81. The accused persons also examined DW-1 Sh. Anil Kumar Gupta during trial who deposed that he was a practicing CA and a member of the Society since 1984 and during his C.A. training, he used to visit some friends of his who were C.A. trainees with CBI No.215/19 Page 27 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 Sh. P. S. Kohli who was also a C.A. and Sh. P. S. Kohli asked him to become a member of the Society and further, when he was an initial member of the Society the other members were mostly Mr. P.S. Kohli's CA trainees, CA and his clients. Similarly, DW-2 Sh. P. K. Jindal also a CA, deposed that the Society was formed by his senior professional colleague Sh. P. S. Kohli and testified that his wife became a member of the Society in 1984 and share certificate was issued.
82. DW-3 Sh. Sunil Arora, another Chartered Accountant, deposed during trial that he became a member of the Society in the year 1983 and that he became a member through Mr. P. S. Kohli under whom he had done article-ship of CA. He testified that he had informed Sh. Pawan Luthra (PW-5) about becoming a member of the Society and then Pawan Luthra made his family members naming the witnesses examined by the prosecution as PW-2, PW-6, PW-7, PW-8, PW-9 and PW-13 also members of the Society, which was in fact corroborated by PW-6 Usha Sachdeva during her evidence.
83. DW-3 Sh. Sunil Arora also deposed that when he deposited his payment qua the allotment of the land, then P.S. Kohli told him to ask Pawan Luthra to deposit the payment of his members. DW-1 and DW-2 denied that they were dummy members in the Society. There is no reason to accord any less evidentiary weightage to the testimonies of these witnesses vis-a-vis the testimonies of the prosecution's similarly placed witnesses especially when nothing to show that these witnesses were unduly supporting the defence came out in the cross-examination of these witnesses.
CBI No.215/19 Page 28 of 44CBI vs Vipin Aggarwal & Ors. DL00524
84. In such circumstances, investigating and examining the role if any of Sh. P. S. Kohli in the establishment and running of the Society and also preparation and maintenance of records of the Society was important to unearth the real conspiracy which the IO failed to do and which is a fatal defect in the CBI's case.
85. It seems that the IO proceeded in the investigation with the preconceived notion that the President, Vice President and Secretary of the Society of the contemporaneous period of his investigation i.e. the accused persons herein would be the persons involved in the alleged conspiracy and that too, the only persons involved, and the investigation appears to revolve around that very notion, which is a big fallacy and dents the CBI's case.
86. Next, it is relevant to note that on the aspect of original documents and photocopies, the IO/PW-46 Sh. N. S. Yadav in his chief examination dated 15.10.2014 deposed that during investigation majority of original documents were collected however some of the original documents could not be collected and in lieu of that, photocopies of those documents were collected. He deposed that inspite of best efforts, some of the original documents like resignation letters of members could not be collected. As to what were the efforts made, has not been disclosed by the IO. Admittedly, the IO had not visited the office of the Society and no seizure was effected therefrom. No notice U/s 91 Cr.P.C. has been proved on record regarding requisition of the original record.
87. Further, on the aspect of share certificates the IO/PW-46 Sh. N. S. Yadav admitted during his cross-examination dated 21.11.2015 that at the time of resignation the members had to CBI No.215/19 Page 29 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 deposit the share certificates with the Society. He was asked as to whether the share certificates of the members who had stated that they had not resigned were seized by him from the members, to which the IO/PW-46 Sh. N. S. Yadav responded that he had not seized any share certificate. PW-46 Sh. N. S. Yadav testified that some of them (members) may have shown the share certificate to him but the said fact had not been mentioned in the statement U/s 161 Cr.P.C. and case diaries.
88. PW-46 Sh. N. S. Yadav denied the suggestion that none of the members had shown him any share certificate because they had already surrendered the share certificate in the Society. In his further cross-examination dated 04.12.2015, PW-46 Sh. N. S. Yadav contradicted himself by deposing that certain share certificates of the members were seized during the course of investigation but they were not on record as CBI had not relied upon them. It further came out that the share certificates seized were genuine. Thereafter on 23.12.2015, PW-46 Sh. N. S. Yadav produced Mark PW46/DA i.e. receipt memo pertaining to original share certificates of Sh. Devinder Kumar Mittal, Ms. Meeta Mittal, Sh. Manik Mittal and Ms. Deepika Mittal. The original of Mark PW46/DA was stated by PW-46 to be untraceable and he testified that he did not remember whether any notice U/s 91 Cr.P.C. was issued to Devender Kumar Mittal for production of documents.
89. On the other hand, the accused persons in furtherance of their plea taken in S.A. that the members who had resigned surrendered their share certificates, examined DW-4 Sh. Naresh Chand Sharma in defence evidence who produced the original CBI No.215/19 Page 30 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 share certificates of 24 members who had allegedly resigned from the membership of the Society, attested copies of which were exhibited as Ex.DW4/A1 to Ex.DW4/A25 colly (OSR). In response to a suggestion put to DW-4 Sh. Naresh Chand Sharma regarding the genuineness or otherwise of the certificates, DW-4 deposed that he could not say if the documents were fake or fabricated or genuine and the documents had been given to him by the president and vice president and pointing to the accused persons.
90. The IO/PW-46 Sh. N. S. Yadav had conceded that the statements U/s 161 Cr.P.C. of the witnesses did not mention that the share certificates were seized. Had the IO carried out proper investigation on the aspect of original share certificates, as to whether they were in possession of the members who claimed that they had not resigned, the suggestion put to DW-4 regarding the genuineness or otherwise of the share certificates produced in defence evidence would have been of consequence to the prosecution's case, but the fact is that the IO chose not to examine this aspect and ascertain whether the members who stated they had not resigned were having the original share certificates or not, including whether they had at all been issued to the members. DW-1 Sh. Anil Kumar Gupta who deposed about being a member since 1984, categorically deposed in his cross-examination conducted by Ld. APP for the CBI that he had the share certificate issued by the Society. In such circumstances, the fact that the purported original share certificates were produced by the accused persons in defence evidence does create a reasonable doubt in the CBI's case. It is apparent that the CBI No.215/19 Page 31 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 investigation conducted in the present case leaves much to be desired.
91. Next, the prosecution argues that the opinion of the Government Examiner of Questioned Documents (GEQD) Ex.PW45/1 supports the deposition of the prosecution's witnesses who have denied their signatures on the documents of the Society and the supplementary opinion Ex.PW45/2 is positive qua the signatures of the accused persons Vipin Aggarwal and Praveen Kumar Jain on various incriminating documents of the Society.
92. The FSL report Ex.PW45/1 reflects that the comparison of the specimen signatures of the members/non-member witnesses was apparently done by the GEQD/PW-45 Sh. A. K. Singh with questioned signatures which were all photostat reproductions. In his cross-examination dated 01.08.2014, PW-45 Sh. A. K. Singh admitted that only photostat copies of the disputed signatures Q20-23, Q26, Q11-Q16, Q5-Q8, Q1, Q2 and Q29-Q42 were supplied to him for examination and he had never seen the original questioned documents. PW-45 Sh. A. K. Singh denied the suggestion that the photostatic signatures on photocopies of the questioned documents on the basis of which he had given his opinion were dim, unfit and illegible for comparison and had no forensic value however went on to admit that pen pressure, line quality, pen position and shading and kind and quality of writing instrument could not be examined from the photostatic signatures.
93. In the case titled Bheri Nageswara Rao Vs Mavuri Veerabhadra Rao & Ors AIR 2006 AP 314 on the issue of whether a handwriting expert can give opinion on the basis of CBI No.215/19 Page 32 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 photocopies it was observed by Hon'ble Andra Pradesh as follows-
"The opinion of a handwriting expert involves analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of view, at which it may have been subscribed. These analyses would become possible only vis-a-vis an original signature, and the signature mark on a xerox copy of a document can never constitute the basis."
94. The handwriting expert PW-45 Sh. A. K. Singh conceded in his cross-examination about certain important aspects for opinion on signatures which cannot be examined from photostatic signatures. In light of this admission of PW-45 and also in view of the ratio of the judgment of Bheri Nageswara Rao (supra), placing reliance on the report Ex.PW45/1 would be highly unsafe and accordingly, much evidentiary value is not accorded to the report Ex.PW45/1.
95. Coming to the report Ex.PW45/2, it does given a positive opinion in relation to certain signatures on questioned documents as belonging to the accused persons Vipin Aggarwal and Praveen Kumar Jain but admittedly, those questioned signatures are not the alleged forged signatures of the members and non-members. In so far as the opinion is sought to be given based on photostatic reproductions of signatures, same is necessarily to be discarded in view of the discussion above.
96. Regarding the rest of the questioned signatures, it shall have to be seen whether they actually constitute 'incriminating material' sufficient to foist liability for the offences upon the accused persons and I shall discuss on this aspect in detail CBI No.215/19 Page 33 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 hereunder. It would also be useful to keep in mind the settled legal position on the evidentiary value of opinion of handwriting expert as reiterated by the Hon'ble Supreme Court in SPS Rathore Vs CBI & Anr. AIR 2016 SC 4486 wherein it was held that evidence of a handwriting expert is only opinion evidence and not conclusive and it cannot be relied upon, unless corroborated by clear, direct evidence or by circumstantial evidence.
97. The positive opinion of the GEQD in relation to the accused persons Vipin Aggarwal and Praveen Kumar Jain is in relation to certain proceedings registers, vouchers of refund, account books, audited balance sheets, verification of membership of Society for sending the list of members of DDA, correspondences with government departments on behalf of Society etc. The copies of the receipt vouchers pertaining to refunds made to members on alleged resignations apparently seem to be attested by the accused Vipin Aggarwal at the time of handing over the same to the RCS Office as same were provided vide Ex.PW4/A to PW-4 SI Anupam Mathur by Assistant Registrars, RCS and it is not the case that the photocopies of the vouchers bear the signatures of the accused Vipin Aggarwal as issuing authority of the vouchers.
98. A perusal of the proceedings registers shows that the purported resignations and new enrollments used to be presented before the Managing Committee in its meetings and used to be considered and accepted vide resolutions passed by the Managing Committee so it was not a case that accused persons Vipin Aggarwal and Praveen Kumar Jain were exclusively CBI No.215/19 Page 34 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 dealing with accepting the resignations and enrollments of members.
99. There is no evidence on record to suggest that the accused persons used to control the meetings and force the other members of the Managing Committee to accept the resignations and new enrollments. Furthermore, the alleged forgery of signatures of the members/non members on the membership register, affidavits, resignation letters and vouchers not being attributed to the accused persons Vipin Aggarwal and Praveen Kumar Jain, either through any eye witness statements or even expert opinion on handwriting, the offence of forgery for the purpose of cheating U/s 468 IPC is not at all established against either of them and these documents per se cannot be considered as incriminating evidence against them. Reference in this regard is made to the judgment of Hon'ble Supreme Court in Sheila Sebastian vs R. Jawaharaj & Ors (supra) wherein it was observed that a charge of forgery cannot be imposed on a person who is not the maker of the same.
100. The prosecution was then required to adduce cogent evidence to establish that the accused persons Vipin Aggarwal and Praveen Kumar Jain had knowledge or reason to believe the documents to be forged ones. If on the basis of proceeding registers reflecting the minutes of meetings wherein the accused persons/either of them had participated in which the members' resignations and enrollments were accepted, the prosecution wants an inference to be drawn that they were having the knowledge regarding the resignations letters/enrollments being forged then why and how should the other members of the CBI No.215/19 Page 35 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 managing committee not be presumed to have the knowledge of the documents being purportedly forged and why were only the present accused persons arraigned as accused out of all the members of the Managing Committee? That is nowhere explained by the CBI. The IO/PW-46 was clueless about how many members were there in the executive of the Society, volunteering that the affairs were being managed by the accused persons only. The basis of the aforesaid voluntary statement of the IO is not forthcoming from the evidence on record.
101. The affidavits annexed to the various membership forms were never put to the concerned witnesses during trial to check their genuineness nor has the IO bothered to examine the concerned notary public/oath commissioner before whom the affidavits were notarized/alleged to be notarized to check their veracity. Where were the stamp papers for the affidavits purchased from, when they were so purchased, who purchased them and under whose instructions has not been investigated at all. The photocopies of the vouchers of refund which are on record eg. Ex.PW3/3, Ex.PW11/C, Ex.PW23/C, Ex.PW8/B, Ex.PW9/B, Ex.PW2/3, Ex.PW7/B, Ex.PW6/B, Ex.PW19/B, Ex.PW18/2, Ex.PW17/2, Ex.PW21/B and Ex.PW12/C all appear to be bearing the photostatic signature of an accountant of the Society but the investigation is totally mum on whether said accountant was made to join the investigation. In any case, no such witness has been cited and examined by the CBI who could depose regarding the preparation of said vouchers, as to when, how and on whose instructions they were so prepared.
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102. The official from the RCS i.e. PW-1 Sh. S. P. Singh Bhati who proved the certificate of registration issued to the Society dated 21.01.1984 as Ex.PW10/6 admitted the fact that the certificate was issued after proper verification and on the basis of report submitted to him by the junior officers. He also admitted that at the time the certificate was issued he did not find any irregularity in the functioning of the Society. Importantly, the document Ex.PW24/A i.e. proposal containing the list of members on which the GEQD gave positive opinion regarding the signatures being of accused Avinder Kohli and Vipin Kumar reflected at points Q-626 and Q-343 respectively, containing a statement attributed to accused Vipin Kumar to the effect that the members had signed in his presence and were known to him, has not been put to any of the prosecution witnesses, either members or alleged non-members, during trial, nor was opinion regarding the signatures of members thereon sought from the GEQD. Thus, prosecution has failed to show that this particular document Ex.PW24/A which could have been specifically relevant qua the accused Vipin Aggarwal bore fake signatures of persons shown as members and so this document also cannot be considered as an incriminating evidence against the present accused persons.
103. As per PW-29 Sh. Vijay Kumar, who was posted as UDC in RCS office from July 2001 to August 2005 and had dealt with the file of the Society, on the basis of records presented by the Society, resignation of 61 members was accepted however with regard to enrollment though names of 61 members were given by the Society, only 30 members were approved and with regard to remaining 31 members, there were deficiencies in the documents CBI No.215/19 Page 37 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 and they were not approved. PW-29 Sh. Vijay Kumar admitted that the approval with regard to resignation of the members was given as the documents supplied by the Society were found to be in order. Similarly PW-35 Sh. S. S. Gaur who worked as Assistant Registrar Cooperative Society with effect from August 2003 to 28.02.2006 and had dealt with the file of the Society deposed that they accepted the 61 resignations of the members and 31 enrollments of new members on the basis of due verification made on the basis of documents so produced by the Society. He admitted that he had not conducted any physical verification as, to his knowledge, there was no complaint.
104. The IO/PW-46 admitted that the office bearers of the Society used to send the list of members to RCS for verification but deposed that the list of members was not sent timely in this case and RCS had objected to late filing of the list. However he admitted that the delay was duly condoned by the RCS as per procedure. He also admitted that no complaint was received by the CBI from any member against the accused persons.
105. Thus, neither any member nor alleged non-member ever made any complaint to the RCS or the CBI regarding their signatures on the Society's documents being forged.
106. The Auditor of the Society who prepared the audit reports Ex.PW31/A to Ex.PW31/F, PW-31 Sh. Din Dayal Agarwal, deposed in cross-examination that as per his knowledge the audit reports reflected the true and fair accounts of the Society and to his knowledge there was no complaint. PW-36 Smt. Rajinder Kaur, who was posted in the Audit Branch of RCS admitted receiving the audit report for the year 2004-2005 Ex.PW31/F and CBI No.215/19 Page 38 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 in cross-examination deposed that Ex.PW31/F was filed as there was no discrepancy in the audit report seen by her.
107. The testimonies of PW-31 and PW-36 establish that no financial irregularity was found in the audits of the Society.
108. It is not the allegation in the charge-sheet that the RCS officials were in connivance with the Society to get undue benefit for the Society. Although IO/PW-46 deposed that he could not say whether any builder mafia had invested money in the Society or not, but he admitted that there was no evidence on record that Society was ever sold or purchased by any builder mafia at any point of time and also conceded that the Society was never declared defaulter. The present case was thus not an instance of nexus of builder mafia and officials of RCS.
109. The IO/PW-46 Sh. N. S. Yadav testified during trial that the president accused Avinder Kohli was having a plot of 400 sq. yards at Tilak Nagar but the fact was not brought to the notice of RCS. He however deposed that he had not filed the document with respect to said plot on court record, volunteering that the document was sent to RCS. Further, he testified that he prepared the seizure memo of said documents but it was not on record. Thus, the aforesaid allegation is not substantiated by documentary evidence regarding the alleged property documents.
110. As regards the proceedings registers, it is worthwhile to note that the prosecution's own witness PW-44 Sh. Baij Nath Gupta has testified to the veracity of the proceeding sheets (identifying his signatures thereon) regarding meeting held the following dates 18.10.09 Ex.PW44/B, 16.08.1991 Ex.PW44/C, 17.09.1991 Ex.PW44/D. PW-44 Sh. Baij Nath Gupta also CBI No.215/19 Page 39 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 identified the signatures of accused persons Avinder Kohli on Ex.PW44/C and Vipin Kumar on Ex.PW44/D and on the executive meeting dated 23.02.1992 Ex.PW44/E.
111. The testimony of PW-44 Sh. Baij Nath Gupta is relevant because he was, as per his testimony (which is not controverted), a founder member of the Society and later his wife also joined as a co-member. He also identified his name on the membership register at serial no. 12 on Ex.PW44/A. He deposed that the accused Avinder Kohli was the president, Praveen Jain the vice president and Vipin Aggarwal was the secretary of the Society. He also identified the signatures of the accused persons on a number of other documents. He went on to depose in his cross- examination that he was allotted a flat by the Society in the year 2011 and did not have any grievance against the Society or the accused persons.
112. DW-3 Sh. Sunil Arora in his cross-examination by Ld. APP for the CBI was shown Ex.PW46/3B i.e. a list of members of the year 1983 and after going through the list, DW-3 deposed that his name and signature were mentioned at serial no. 14. He denied the suggestion of the CBI that he had not attended any meeting of the Society and also produced receipts of payments made by him to the Society which were exhibited as Ex.DW3/P1 colly (OSR). DW-1 Sh. Anil Kumar Gupta while admitting in his cross-examination that he did not attend the meetings on 06.05.1984, 20.08.1988, 18.10.1989 and 18.05.1998 but he deposed that he attended the meeting on 16.08.1991.
113. Thus, although there are statements of prosecution's witnesses to the effect that they became members but never CBI No.215/19 Page 40 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 resigned or that they never became members at all, however on the other hand, there are statements of witnesses including the prosecution's own witness PW-44 Sh. Baij Nath Gupta who have corroborated the factum of their memberships and attendance in proceeding registers in minutes of meetings.
114. Further, the purported resignations and enrollments were accepted not by individual executive members but in the general body meetings of the Society by way of resolutions passed for the same and intimated to the RCS, albeit with delay which was condoned, which was why in Ex.PW24/K undertaking, it was stated that the information regarding pending resignations and enrollments was correct and as per records of the Society and if information was found wrong/false, then the 'Society' would be responsible in future. Though Ex.PW24/K was signed by accused Avinder Kohli as president and Vipin Kumar as secretary, it cannot be argued that the term 'Society' be construed as President and Secretary only, the Society being a separate legal entity. Of course, it has to be sued through its office bearers but then if the resignations/enrollments were found to be fake then the role of each and every office bearer who was party to the meetings in which such resignation/enrollments were considered, should have been examined to conclude who all had the knowledge or reasonable belief regarding the resignation letters/enrollments being purportedly fake. Moreover, the fact that the purported original share certificates of members who deposed that they had not resigned which should have been in possession of the members had been adduced by the accused persons in defence CBI No.215/19 Page 41 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 evidence qua which the IO did not do any proper investigation, is a circumstance against the prosecution's case.
115. To sum up, in the present case, the forger is unknown, no complaints from any member were received regarding illegal removal from the Society etc. and there is no cogent piece of evidence on record to show that the accused persons Vipin Aggarwal and Praveen Kumar Jain had knowledge or reasonable belief regarding the documents i.e. resignation letters, membership documents and vouchers being purportedly forged, when these were accepted in the meetings of the Society. It is nowhere established that the minutes were ante-dated especially when the prosecution's own witness PW-44 deposed to having attended some of the meetings. There is also no convincing evidence on record to show that the accused persons Vipin Aggarwal and Praveen Kumar Jain had the mens rea for committing any fraudulent or dishonest act of inducing the government department to allot land on subsidized rates to the Society by presenting forged documents. As such, when it is not proved beyond reasonable doubt that the accused persons knew or had reasons to believe the documents so presented to be forged then the dishonest or fraudulent intention of using such alleged documents for inducing the government department to allot land at predetermined/subsidized rates to the Society is not disclosed against them. The prosecution could not establish any motive eg. accrual of extra benefit to the accused persons Vipin Aggarwal and Praveen Kumar Jain or other such motive for cheating the government department by intentionally and fraudulently using forged documents for getting the allotment.
CBI No.215/19 Page 42 of 44CBI vs Vipin Aggarwal & Ors. DL00524
116. It is true that a conspiracy is always hatched in secret and it is impossible to adduce direct evidence of the same and it can be proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design (see in this regard: Shivanarayan Laxminarayan Joshi Vs State of Maharashtra AIR 1980 SC
439), however in the present case the circumstantial evidence does not form a complete chain of events as the role of Sh. P. N. Kohli remained entirely unprobed, roles of other managing committee members were not sought to be clarified, proper search of office of the Society and seizure of relevant documents was not done and the investigation in relation to alleged forgery of resignation letters as to who had done so and on whose instructions, was next to zilch. The FSL opinion does not tie the present accused to the alleged forged signatures of the members non-members. Inference drawn from such an incomplete chain of evidence would only be presumptions and suspicion and it is settled law that suspicion however grave it may be, can never be treated as a substitute for proof. In the case of Bhagwan Singh & Ors. vs State of MP (2002) 4SCC 85, the Hon'ble Supreme Court reiterated a fundamental principle of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be adopted.
117. Consequent to the aforesaid discussion, it is held that the prosecution has failed to complete the chain of evidence and to establish the guilt of the accused persons for the offences alleged CBI No.215/19 Page 43 of 44 CBI vs Vipin Aggarwal & Ors. DL00524 beyond reasonable doubt. Hence, the accused persons Vipin Aggarwal and Praveen Kumar Jain are acquitted for the offences alleged.
Announced in the Court (ANJANI MAHAJAN)
on 30.11.2022 CMM/RADC/30.11.2022
ANJANI Digitally signed by
ANJANI MAHAJAN
MAHAJAN Date: 2022.11.30
16:55:17 +0530
Certified that this judgment contains 44 pages and each page bears my signatures.
(ANJANI MAHAJAN) CMM/RADC/30.11.2022 Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date: 2022.11.30 16:55:05 +0530 CBI No.215/19 Page 44 of 44 CBI vs Vipin Aggarwal & Ors. DL00524