Delhi District Court
Cbi vs Narender Kumar Etc. (Ruchika Cghs) ... on 30 April, 2013
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
IN THE COURT OF SPECIAL JUDGEII
(PREVENTION OF CORRUPTION ACT, 1988) (CBI), ROHINI, DELHI
ID No. 02404R0436392006
RC : 14(E)/2005/EOWII/DLI
CC No. 43/2010
(Ruchika CGHS)
CBI Vs 1. Narender Kumar
S/o Late Sh. Ram Charan
R/o C741, Delhi Administration Flats,
Timarpur, Delhi.
2. Ramesh Chandra
S/o Late Sh. Agya Ram
R/o CD52F, DDA Flat, LIG,
Hari Nagar, New Delhi110054.
3. Narayan Diwakar
S/o Late Sh. Chatti Lal
R/o G30, Masjid Moth, GKII, New Delhi110048.
4. U. S. Bhatnagar
S/o Late Sh. Shiv Shankar Bhatnagar
R/o B479, TypeII, Delhi Administration Flats,
Timarpur, Delhi110054.
5. Faiz Mohd.
S/o Late Sh. Ghulam Mohd.
R/o 4794, Ahata Kidara, Pahari Dhiraj,
Delhi110006.
6. Sanjeev Bharti
S/o Sh. Mahinder Bharti Madan
R/o C4C, Pocket14, Flat No. 113, Janak Puri,
New Delhi58.
7. Gokul Chand Aggarwal
S/o Late Sh. Jagdish Prasad
R/o A603, Ashoka Apartments, Sector9, Rohini,
CC No. 43/2010 Page 1 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
New Delhi85.
8. Prahlad Kumar Thirwani
S/o Late Sh. Moti Ram Thirwani
R/o 348E, PocketII, Mayur Vihar, PhaseI,
Delhi91.
Date on which the final arguments were concluded : 16.4.2013
Date of judgment : 30.4.2013
JUDGEMENT
In CWP No. 2885/90 i.e. Kaveri CGHS Vs Union of India, High Court of Delhi passed an order dated 10.5.1991 to the effect that original date of registration of society with RCR Office was to be considered for establishing the seniority of the society for allotment of land by DDA. Delhi High Court in WP(C) No. 10066/2004 had passed an order, wherein it was observed that there appeared to be a nexus between the builders taking over the cooperative movement in Delhi in connivance with the officials of Registrar of Cooperative Societies. It was observed that land in Delhi is alloted at a predetermined rate and not on the basis of the market value of the land. These cooperative societies were formed in order to provide flats at affordable price to middle income group and lower income group. It was observed that its element of profit making in view of difference of market value of land and value on which the land is allotted to the society, which has resulted in nexus between the builders and officials.
CC No. 43/2010 Page 2 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 In view of the enormous amount of money invested and involvement of the accused persons, nature of crime and voluminous records, High Court directed CBI to formulate a special investigating team to investigate the whole matter. Preliminary enquiry in respect of the each society in all 135 societies was conducted and in appropriate cases, the regular cases were registered including the present one.
Prosecution case in brief is that during 197080 or thereafter, a large number of Group Housing Societies were registered. Most of the CGHS, which were registered during 1970's to 1980's, became dormant as DDA was not able to allot land due to the paucity of the same or the land offered for allotment was not acceptable to the societies. The members of such societies lost interest in the affairs of the society over a passage of time as the waiting period seemed endless. As a result, large numbers of such CGHS became non functional and were liquidated/wound up over a period of time by the Registrar Cooperative Societies under the provisions of Section 63(2) of DCS Act, 1972. The Section 63(3) of DCS Act, 1972 also provides for revival of the wound up society by the RCS and this provision was exploited by the builder mafia in criminal conspiracy with the corrupt officials of the RCS. In order to grab land at the reserve price fixed by the DDA for CGHS (1/6th to 1/7th of the market rate), they purchased the defunct societies from its Managing Committees along with the CC No. 43/2010 Page 3 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 entire records and got such societies revived taking recourse to above legal provisions in conspiracy with the officials of the RCS on the basis of false/forged records and affidavits. The officials of RCS and builder mafia thus entered into criminal conspiracy especially during, 2000 onwards with an object to revive such defunct societies in order to cause wrongful loss to DDA and corresponding wrongful gain to society mafia's.
Investigation revealed that staff of the Central Provident Fund Commissioner and Regional Provident Fund Commissioner, New Delhi formed a Group Housing Society and got it registered as EPF Staff Cooperative Group Housing Society Ltd. with Registrar of Co operative Societies, Delhi on 24.4.1972 with registration no. 127 GH. The address of the society was 1/6B, Pusa Road, New Delhi which was the office of Regional Provident Fund Commissioner, New Delhi. Sh. Raj Kumar was the first secretary of this CGHS Ltd. Initially there were 60 promoter members at the time of registration which was later on increased to 92 in the year 1976. The membership of the said society was restricted to the staff of the Provident Fund Commissioner, Delhi. Immediately after registration of the said society, Raj Kumar, the Secretary of society, vide his letter dated 28.7.1972 requested the Chairman, DDA, Indraprastha Estate, New Delhi for allotment of land. In response to this letter DDA vide their letter dated 8.9.1972 CC No. 43/2010 Page 4 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 informed the society that no society is to be considered for allotment of land in South Delhi and allotment of land can be considered in the area like Rohtak Road, Najafgarh Road and Shahdara etc. and also directed the society to submit the complete list of members along with waiting list, if any. Later on, S. M. S. Choudhary, Executive Officer (CS) DDA, Vikas Minar, I.P. Estate, New Delhi vide his letter dt. 16.11.1976 addressed to the Secretary, EPF Staff CGHS Ltd. 1/6B, Pusa Road, New Delhi informed that society can be considered for allotment of land in Paschim Puri and Pitam Pura Group Housing Pockets. He further informed the terms & conditions for acceptance of land and also directed the society for deposit of Rs.5000/ as earnest money, adjustable towards the cost of land. In reference to the said letter the then Secretary of the society Sh. J. M. Malik vide his letter dt. 28.12.1976 submitted the application for allotment of land along with a bank draft of Rs.5000/ as earnest money and also accepted the terms & conditions and agreed to allotment of land in Pitam Pura as its preference. Along with the said letter, he submitted list of total 92 members consisting of 69 old members and 23 new members. All the 92 members were the employees of the Provident Fund Commissioner Offices, Delhi. On receiving the necessary documents from the society, S. M. S. Choudhary, Executive Officer (CS) DDA, Vikas Minar, I.P. Estate, New Delhi vide his letter dated 1.4.1977 allotted the land ad CC No. 43/2010 Page 5 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 measuring 1.84 acres in Pitam Pura at the rate of Rs.45 per Square Yard with the direction to deposit 25% cost of land to the DDA by 15.4.77 and the balance was to be paid within 90 days from the date of issue of the demand letter and also endorsed the copy of said letter to Registrar Cooperative Society, Old Secretariat, Delhi. The total cost of the land worked out to be 1.84 x 4840 x 45 = Rs.400752/. J. M. Malik, the then Secretary of the society vide his letter dated 14.4.77 showed their inability for arrangement of 25% payment immediately, being all the members were salaried persons and requested for three months extension for deposit of 25% cost of land. Accordingly DDA vide its letter dated 2/4.6.77 conveyed the extension period upto 30.6.77 for deposit of 25% cost of land. Then, D. K. Jain, Vice President of the society vide his letter 17.6.77, wherein he brought out the facts that being a society of public servants, unable to arrange the demanded amount, and depending upon the loan, asked for further extension. The DDA extended the period many times for deposit of 25% cost of land till 25.3.1978 and ultimately cancelled the offer on 31.8.1978. Since the society could not arrange the 25% cost of land even after so many extensions granted to the society by DDA, ultimately Ashok Bakshi, the then Dy. Registrar, RCS Office vide his letter dated 47/127/78H/Coop./ 159197 dated 23.3.79 wound up the society under the provisions of Section 63 of DCS Act, 1972 and CC No. 43/2010 Page 6 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 put it under liquidation and appointed Sh. M. L. Ahuja as Liquidator of the society and endorsed the copy of said order to the all concerned including DDA, original copy endorsed to DDA is available in the file seized from DDA. Ashok Bakshi the then Dy. Registrar, RCS Office was fully competent to wind up the society as per power delegated to him by Lt. Governor, Delhi which was communicated by Sh. Ganga Dass, Special Secretary (Coop), Delhi Administration, Delhi vide letter dated 18.10.1977. Investigation has further revealed that since the society failed in their objectives and all the members became ineffective and lost their interest in the society called EPF Staff CGHS Ltd.
Investigation has further revealed that Sh. M. L. Ahuja who was appointed as Liquidator by Sh. Ashok Bakshi, the then Dy. Registrar, RCS Office vide his letter dated 23.3.79 could not complete the Liquidation proceedings. The said society was maintaining bank A/c in Delhi state Coop. Bank Ltd., Daryaganj Branch, New Delhi. Sh. Manish Sharma, Liquidator took over the A/c no. E - 2/6296 of society on dates 21.2.1989. He completed the liquidation proceedings of the society and payments to members were made by him through cheques as well in cash in the year 19891990 and finally A/c was closed on 11.12.19990 and thereafter all the documents regarding registration of the society as well as other records were cancelled and consigned to the record room situated at Old Secretariats, Delhi.
CC No. 43/2010 Page 7 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Hence, copy of Registration certificate, copy of ByeLaws submitted by the society at the time of revival are fake/forged, since originals were cancelled by liquidator.
Investigation has further revealed that Gokul Chand Aggarwal (A7) S/o Sh. Jagdish Prasad R/o A603, Ashoka Apartment, Sector9, Rohini, New Delhi85, whose main business was to get the defunct societies revived in criminal conspiracy with officers and officials of RCS, entered into a criminal conspiracy with Narayan Diwakar (A1), the then Registrar Cooperative Societies, Delhi and Ramesh Chandra (A2), the then Asstt. Registrar (East). In furtherance to this criminal conspiracy, he, by impersonating as Madan Lal S/o Sh. Mikhi Ram R/o H497, Sakurpur, New Delhi, self styled President of the society, submitted an application dated 1.10.2003 addressed to AR (East) requesting for cancellation of winding up order u/s 63 of the EPF Staff CGHS Ltd. registration No. 127(H), East Zone. The said request was submitted under the signature of Madan Lal, self styled President of the Society, on the letter head of EPF Staff CGHS Ltd., showing its address at C90A, Janta Garden, Pandav Nagar, Delhi110091. Along with the request, he also enclosed the photocopy of the winding up order of the society dated 23.3.1979. In the said request, he submitted that their society was registered on 24.4.1972, with Registration No. 127(H) but the same was wounded up by Dy.
CC No. 43/2010 Page 8 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Registrar on 23.3.1979 on the following grounds :
(i) The society failed to called Annual General Body Meeting.
(ii) The society failed to hold the election of the Managing Committee.
(iii) He has further brought out that election of the Managing Committee was conducted on 13.7.2003 and all the shortcomings have now been removed by the society.
However, he intentionally did not mention the following vital facts :
(a) He did not bring out that registration address of the society was 1/6B, Pusa Road, New Delhi and the said address falls under the jurisdiction of Central Zone of the office of the RCS, Delhi.
(b) He never brought out that the society was wounded up due to the fact that it failed to fulfill the objectives, for which it was formed, as land allotted to the said society was not availed by it and its claim for allotment of land was finally closed by DDA.
Investigation has further revealed that he intentionally addressed the letter for revival to the AR (East) and submitted it to the RCS, Delhi so that the RCS, Delhi must mark it to the AR (East), Ramesh Chandra with whom he had already entered into a criminal CC No. 43/2010 Page 9 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 conspiracy for revival of the said defunct society. Investigation has also revealed that the photocopy of the revival order dated 23.3.1979, which was submitted along with application of revival was, in fact, not the Society's copy but it was the office copy of the winding up orders, which was arranged by self styled President of the Society from the office files, which was intentionally shown as misplaced. GEQD has confirmed that Gokul Chand Aggarwal signed as Madan Lal on all the documents except the application dated 1.10.2003, on which no opinion could be formed.
Investigation has further revealed that said application was marked to the Joint Registrar (E) by Narayan Diwakar, on 3.10.2003, who further marked it to Ramesh Chandra, the then AR (E) on 6.10.2003. On the same day it came to Ramesh Chandra the then AR (E), who marked it to Narender Kumar (A1), dealing clerk on 28.10.2003 i.e. after a gap of 22 days. The application was processed by Narender Kumar on 28.10.2003, wherein he brought out that main file of society was not available with the zone and that a circular was required to be issued in this regard. Narender Kumar, Dealing Assistant arrived to the conclusion on the same day regarding non availability of the files without doing any efforts. Approval to issue of circular to trace the missing files was obtained by Ramesh Chandra from Sh. J. S. Sandhu the then JR (E) on 30.10.2003. Accordingly, a CC No. 43/2010 Page 10 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 circular was issued to all concern, to trace the file within a one week and got it received by hand from all the zones on 11.11.2003 itself, but in the circular it was misrepresented by Ramesh Chandra that said society pertains to his zone, whereas it pertains to Central Zone as per the Zonal Jurisdiction.
Investigation has further revealed that on 25.11.2003 Narender Kumar, Dealing Clerk and Ramesh Chandra, the then AR (East), both put up a note to JR (East) for reconstruction of the main file, from the record available with society, and appointment of U. S. Bhatnagar (A4), Gr.III as Inspecting Officer of the society u/s 54 of DCS Act, 1972 to verify/examine the records of the society to bring out the factual position of the society. But the note was not approved by the JR (East) and he directed that the file/record should be located first. But no efforts were made to locate the file. Neither they held any enquiry nor they lodged any complaint to police regarding misplacement of the files from the RCS, Delhi. Even they did not bother to contact the DDA, where the record of the said society was available. In the nutshell, there were so many sources from where, factual position could be ascertained. Instead of doing the efforts as directed by Sh. J. S. Sandhu (JR, East), again same note was put up on 4.12.2003. Sh. J. S. Sandhu (JR, East) on 15.12.2003, only approved the reconstruction of the file and not the appointment of U. CC No. 43/2010 Page 11 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 S. Bhatnagar, Gr.III as Inspecting Officer u/s 54 of D. C. S. Act, 1972. But Ramesh Chandra, (AR, East) on 16.12.2003 appointed U. S. Bhatnagar, Gr.III (A4) as Inspecting Officer u/s 54 of D. C. S. Act, 1972 without the approval of any senior officer and J. S. Sandhu (JR, East) was sidelined.
Investigation has further revealed that U. S. Bhatnagar, Gr.III, Inspecting Officer submitted his report to Ramesh Chandra, the then AR (East) on 23.12.2003, in which he stated to have visited the society's office on 22.12.2003 situated at C90A, Janta Garden, Pandav Nagar, Delhi110091 and met G. D. Aggarwal S/o Sh. R. K. Aggarwal, Secretary of the Society. U. S. Bhatnagar (A4) further reported that society had been functioning very well and that all the records were available with G. D. Aggarwal, Secretary of the Society. He further reported that Society had recently held a General Body Meeting on 13.7.2003 and unanimously resolved to change the name of the society to Ruchika Apartment CGHS Ltd. He also submitted the photocopies of the election conducted on 13.7.2003, photocopy of proceeding register, photocopy of list of 143 members, photocopy of winding up order dated 23.3.79, photocopy of registration certificate and photocopy of bye laws. All the photocopies were duly attested by G. D. Aggarwal S/o Sh. R. K. Aggarwal, self styled secretary of the society. GEQD has proved that Gokul Chand Aggarwal had signed as CC No. 43/2010 Page 12 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 G. D. Aggarwal on all these documents. It may also be mentioned here that though the first registered address of the society was 1/6B, Pusa Road, New Delhi yet Gokul Chand Aggarwal has given its address as 1/68, Pusa Road, New Delhi. Investigation conducted has revealed that in Delhi there was no 1/68, Pusa Road, New Delhi. It has been conclusively established that the society did not exist at its new address i.e. C90A, Janta Garden, Pandav Nagar, Delhi. From the above it is clear that these certificates are bogus and witnesses have proved these documents as fake and forged. Investigation has further revealed that no officer from RCS office ever visited at society's new address for inspection. U. S. Bhatnagar has submitted a false report and in fact collected the certified copies from Gokul Chand Aggarwal and not from G. D. Aggarwal. Promoter members have also proved that registration certificate and bye laws copies submitted at the time of revival are forged/fabricated.
Investigation has further revealed that in the election held on 13.7.2003 at C90A Janta Garden, Pandav Nagar, Delhi in the presence of Election Officer, Sh. Yash Pal S/o Sh. Suraj Bhan (MS32), who was appointed as Election Officer by the Managing Committee of the Society, the following officer bearers were shown as elected (in fact signature of Yash Pal S/o Sh. Suraj Bhan (MS32) on the affidavits is of Gokul Chand Aggarwal) : CC No. 43/2010 Page 13 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 S. Name & Address Post M S GEQD Opinion No. Father's Name No. confirmed that 1 Madan Lal H497, President 92 Gokul Chand S/o Mikhi Shakiur Pur, Aggarwal Ram New Delhi. impersonated as Madan Lal in the affidavits.
2 Bodh Prakash A2/30, Vice 72 Gokul Chand
S/o Paras Safdarjang President Aggarwal
Ram Enclave, New impersonated as
Delhi. Bodh Prakash in
the affidavits.
3 G. D. A12, Sant MCM 132 Gokul Chand
Aggarwal S/o Nagar, New Aggarwal
R. K. Delhi. imprsonated as G.
Aggarwal D. Aggarwal in the
affidavits.
4 Rajinder E1007, Sujan MCM 57 Gokul Chand
Kumar S/o Singh Park, Aggarwal
Roop Chand New Delhi. impersonated as
Rajinder Kumar in
the affidavits.
5 Ram Bhagat J175, Raja MCM 110 Gokul Chand
S/o Karan Garden, New Aggarwal
Singh Delhi. impersonated as
Ram Bhagat in the
affidavits.
CC No. 43/2010 Page 14 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
S. Name & Address Post M S GEQD Opinion
No. Father's Name No. confirmed that
6 Smt. Usha i)B30, MCM 61
Saxena W/o Kalkaji, New
Suresh Chand Delhi.
ii)4040, WEA,
Karol Bagh,
New Delhi.
7 Smt. Chander B86, Kalkaji, MCM 62
Kanta W/o B. New Delhi.
D. Tandon
Investigation has further revealed that all the said MC members included in the list of 143 members were found non existent. Promoter members also stated that list of members submitted at the time of revival is fake.
Investigation has further revealed that case was then processed in the file by Narender Kumar (A1), dealing clerk and Ramesh Chandra, AR (A2) on dated 24.12.2003, without raising any objection that address shown on the ByeLaws and registration certificate was fake, since it was not matching with the address shown on winding up order and even the names of the promoter members were not properly appearing on the byelaws, still file was directly submitted to Narayan Diwakar, the then RCS for revival of the society and approval of freeze list of 143 members for onwards CC No. 43/2010 Page 15 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 transmission to DDA for allotment of land. Reader to RCS put up the file on 29.12.2003 and Narayan Diwakar approved the summon to be issued to the President/Secretary of the Society on 13.1.2003 as purposed by the Reader.
Investigation has further revealed that on 13.1.2004, Ms. Rita Kaul, Advocate appeared before Narayan Diwakar, RCS on behalf of the Society and Narayan Diwakar marked the file to concerned zone for complete verification of the records with the direction that AR (East) should conduct physical verification of members on random basis and the matter was adjourned to 29.1.2004. However, Ramesh Chandra, AR (East) did not conduct the physical verification himself and appointed Faiz Mohd., GradeII for verification of members. Interestingly, the contents of the said order were noted by Gokul Chand Aggarwal by impersonating as G. D. Aggarwal, Secretary of the Society on 20.1.2004 itself on the noting side of the file (page 10/N). Ms. Rita Kaul, Advocate has also stated that she was engaged by Gokul Chand Aggarwal on a payment of Rs.3,000/ per hearing and that she appeared before the RCS on the said date. She has also stated that Gokul Chand Aggarwal informed her that he was the sole incharge of the said Society.
Investigation has further revealed that Faiz Mohd. (A5) submitted his physical verification report mentioning therein that he CC No. 43/2010 Page 16 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 had visited the addresses of 16 members during the period 22.1.2004 to 24.1.2004 and collected copies of share certificates and membership receipts etc. He further confirmed that the members contacted were the bonafide members of the society. However, during the course of investigation, all these 16 members have been found to be non existent. Further, GEQD has opined that Gokul Chand Aggarwal has forged the signatures of Bodh Prakash, Som Dutt Sharma and writing of Arvind Luthra.
Investigation has further revealed that on receiving the verification report from Faiz Mohd., Narender Kumar, Dealing Clerk and Ramesh Chandra, AR (East) put up a detailed note on dated 28.1.2004 regarding inspection reports submitted by U. S. Bhatnagar, and Faiz Mohd. It was further mentioned in the note that G. D. Aggarwal, Secretary of the Society appeared and submitted the record and which were examined by them. The following record was submitted and examined :
(i) Year wise unaudited A/c of the society signed by President, Secretary and Treasurer.
(ii) Affidavit of G. D. Aggarwal, Secretary of the society dated 22.1.2004 notarized by Sh. Arun K. Gupta, Notary Public appointed by Govt. of India having Registration No. 741/97. In the said affidavit he asserted that they will complete the audit, election, AGM etc. as per DCS Act, in future.
(iii) Affidavit of Madan Lal, President of the society dated 22.1.2004 notarized by Sh. Arun K. Gupta, Notary Public. In the CC No. 43/2010 Page 17 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 said affidavit he asserted that they will complete the audit, election, AGM etc. as per DCS Act, in future.
(iv) Affidavit of 143 members of the society dated 22.1.2004 notarized by Sh. Arun K. Gupta, Notary Public.
Investigation has revealed that in the said affidavits, no body mentioned that he belongs to EPF Organization. GEQD confirmed that 19 affidavits were signed by Gokul Chand Aggarwal by impersonating as different persons.
(v) Photocopies of membership cash receipts, photocopies of resignations of members time to time, photocopies of application for membership etc. All photocopies were self certified by one G. D. Aggarwal, Secretary of the Society. (GEQD confirmed that it was signed by Gokul Chand Aggarwal).
Investigation has further revealed that interestingly all affidavits of members, President, Secretary, have been attested by one Notary Public, Mr. Arun Kumar Gupta on one single date i.e. on 22.1.2004. All the affidavits were shown to be purchased on 19.1.2004 from Stamp Agent (Licence No. 489), SRII, Janakpuri, New Delhi58. In fact, Mr. Arun Kumar Gupta, Notary Public was appointed by Govt. of India, Regn. No. 741/97 and his certificate of practice as Notary was got renewed for a period of 5 years w.e.f. 21.4.2000. Investigation has further revealed that the said Sh. Arun Kumar Gupta expired on CC No. 43/2010 Page 18 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 15.1.2002 and as such, his signatures on the affidavits purportedly attested by him, have been forged. All the above said affidavits were purchased on 19.1.2004 by Gokul Chand Aggarwal from a stamp vendor namely Satvir S/o Dinesh Chand.
Investigation has further revealed that Narender Kumar, Clerk and Ramesh Chandra, AR (East) did not check the records and prepared a bogus noting, ignoring that copy of bye laws, copy of registration are fake and forged.
Investigation has further revealed that on 28.1.2004 itself, Ramesh Chandra, AR (E) marked the proposal of revival directly to the RCS, without routing it through Deputy Registrar and Joint Registrar concerned and recommended the following :
(i) Revival of the society u/s 63(3) of DCS Act, 1972.
(ii) Approval of the freeze list of 143 members for allotment of land.
(iii) Approval of amendment in the change of name from EPF staff CGHS Ltd. to Ruchika Apartment CGHS Ltd.
Investigation has revealed that on 29.1.2004, Ramesh Chandra AR (East) and Rita Kaul, Advocate appeared before Narayan Diwakar, in the revival case. Interestingly, it was the AR (E), who presented the case of revival vigorously and not Rita Kaul, Advocate. Thus, CC No. 43/2010 Page 19 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Narayan Diwakar, RCS ordered the revival of said society and change of its name. In the revival order he brought out that Ashok Bakshi had not applied his mind while winding up the society. He further brought out that he was not competent to wind up the society. In the last para of the revival order dt. 4.2.2004, Narayan Diwakar RCS, appointed Sanjeev Bharti (A6), GradeIII of RCS office, as Election Officer to conduct the election of the society within two months and he also directed that pending audit shall be got completed within two months times.
Investigation has further revealed that thereafter, Ramesh Chandra, AR (East) hastily sent the list of 143 members to the AR (Policy) for onward transmission to the DDA for allotment of land vide letter no. F.47/127/GH/E/Coop./2013 dt. 6.2.2004 (i.e. only after two days of revival), without knowing the result of audit and elections. The said list was received by AR (P) on 10.3.2004 and was sent to Dy. Director (GH), DDA Vikas Sadan, INA, New Delhi on 25.3.2004 for allotment of land to Ruchika Apartment CGHS Ltd. It would be worthwhile to mention here that GEQD has opined that Gokul Chand Aggarwal has forged the signature of Madan Lal, President, Bodh Prakash, Vice President and G. D. Aggarwal, Secretary on the said list of members sent to DDA for allotment of land.
Investigation has further revealed that Narayan Diwakar had CC No. 43/2010 Page 20 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 falsely/incorrectly mentioned in his order that Ashok Bakshi, the then Dry. Registrar was not competent to wind up the society. Investigation has further revealed that the elections were conducted by Sanjeev Bharti, GradeIII of RCS office on 14.3.2004, in the premises of the RCS office without issuing any agenda and wrongly mentioned in the proceedings register that agenda was issued on 14.2.2004. He falsely noted the proceeding under his own signature containing the names of 42 members and submitted the report to AR (East) on 14.3.2004 itself by showing following members of management committee elected : S. Name & Father's Name Address Post M S No. No. 1 Madan Lal S/o Milkhi H497, Shakur Pur, President 92 Ram New Delhi.
2 Bodh Prakash S/o Paras A2/30, Safdarjang Vice 72 Ram Enclave, New Delhi. President 3 G. D. Aggarwal S/o R. K. A12, Sant Nagar, New MCM 132 Aggarwal Delhi. 4 Rajinder Kumar S/o E1007, Sujan Singh MCM 57 Roop Chand Park, New Delhi. 5 Ram Bhagat S/o Karan J175, Raja Garden, MCM 110 Singh New Delhi. 6 Smt. Usha Saxena W/o i) B30, Kalkaji, New MCM 61 Suresh Chand Delhi. CC No. 43/2010 Page 21 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 S. Name & Father's Name Address Post M S No. No. 7 Smt. Chander Kanta B86, Kalkaji, New MCM 62 W/o B. D. Tandon Delhi.
GEQD has confirmed that Gokul Chand Aggarwal has forged their signatures.
Investigation has further revealed that audit of the society for the period from 197273 to 20022003 was conducted by Prahlad Kumar Thirwani (A8), Sr. Auditor (Audit Branch), Office of RCS, Delhi against the DCS Acts & Rules under which he cannot conduct an audit for more than three years at the stretch. P. K. Thirwani in his report wrongly stated that Society was having Rs.500/ with Delhi State Cooperative Bank. In the office copy of brief summary of the society submitted to audit branch under his signature in the column meant for signature of President, Secretary, Treasurer, he himself had made the signature of President, Secretary & Treasurer. Further, it was also confirmed by GEQD. He conducted the audit of the society in the office of Gokul Chand Aggarwal situated at 1003, 10th Floor, Akashdeep Building, Barakhamba Road, Connaught Place, New Delhi on 7.2.2004 to 9.2.2004. He prepared the audit reports at the instance of Gokul Chand Aggarwal. GEQD has further opined that Gokul Chand Aggarwal has also forged the signature of Madan Lal, CC No. 43/2010 Page 22 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 President; G. D. Aggarwal, Secretary and Rajinder Kumar, Treasurer on the audit report prepared and signed by P. K. Thirwani, which proves the conspiracy among themselves.
Investigation has further revealed that after the DDA returned the list of societies to the RCS Office for verification of their membership in September/October, 2004, RCS Office issued notices to all the members of all the societies to furnish fresh affidavits along with photograph, bank account and PAN No. etc. duly certified by a Gazetted Officer. However, in this case there is nothing on records to show that the notices were sent to individual members or not. It appears that in this case, no fresh affidavits were called for because it was very well with in the knowledge of the RCS Officials that the members were fake.
Ld. Public Prosecutor submits that in this manner Gokul Chand Aggarwal had got the society revived by submitting false/forged documents in connivance with the RCS officials with the aim to get the land allotted from DDA on reserve prices.
CHARGE On the above stated facts, charge sheet was filed, cognizance was taken and accused persons were summoned. After hearing arguments on charge, charge was framed under Section 120B read with Section 420 read with Section 511/419/468/471 IPC and CC No. 43/2010 Page 23 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Section 15 read with Section 13(2) read with Section 13(1)(d) of P. C. Act 1988 against all the accused persons.
Substantial charges under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of P. C. Act were framed against accused U. S. Bhatnagar (A4), Narender Kumar (A1), Ramesh Chandra (A2), Narayan Diwakar (A3), Faiz Mohd. (A5) and Sanjeev Bharti (A6).
Substantial charge under Section 420 read with Section 511 IPC, 419 IPC, 468 IPC and 471 IPC was framed against accused Gokul Chand Aggarwal.
A charge under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of P. C. Act 1988 and offences under Section 420 read with Section 511 IPC, 468 IPC and 471 IPC were framed against accused P. K. Thirwani.
All the accused persons had pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE ETC.
Prosecution examined 99 witnesses. During investigation, the Investigating Officer (PW93) had sent notices by registered post under Section 160 CrPC to the member of the societies as well as to the President/Secretary of Ruchika Apartment Group Housing Society Ltd. at the given addresses, which was available in the alleged fake list of members placed in the file of RCS (D4) as well as to CC No. 43/2010 Page 24 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 President/Secretary of EFPF Employees Cooperative Group Housing Society. PW2 to PW60, PW78, PW84, PW85 and PW86 are the postmen of the respective areas, who went to deliver the envelopes containing the said notices but found that either the addresses did not exist in the said area or the addressees did not reside at the given addresses. These witnesses proved the relevant endorsements to that effect on those envelopes and these envelopes were sent back to CBI office undelivered. In this manner, the prosecution proved that the list of fake members was furnished to the RCS for allotment of land.
PW1 Vidya Sagar testified that he was working in Employees Provident Fund Organization, where he joined as LDC in the year 1968. The staff members of this department formed a housing society in the name of EPFO CGHS, which was functioning from the address 1/6B, Pusa Road, New Delhi. This society was registered in April 1972 with registration no. 127GH. He testified that the land was allotted to the society but since the members could not arrange the money for making payment to DDA, the society was closed in the year 1979. He further testified that this society never functioned at C/90A, Janta Garden, Pandav Nagar, New Delhi.
PW61 Surinder Kumar Abrol, the Account Officer in Delhi State Cooperative Bank, Darya Ganj and PW62 Ms Shikha Verma, its Branch Manager, testified that they had handed over the photo copy of CC No. 43/2010 Page 25 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 specimen signature, statement of account for the year 1989 to 11.12.1990 along with closing statement of account no. CE2 of M/s Liquidator, EPF Staff Cooperative Group Housing Society Ltd. to CBI.
PW63 C. P. Kashyap testified that in the year 2005, he was posted as Assistant Registrar (East) in the Office of RCS, Parliament Street, New Delhi and he was looking after the files of the society having alphabets "A to F". he also testified that he had handed over two files pertaining to Ruchika CGHS to CBI.
PW64 T. D. Monga, PW66 Kanwal Nain Singh, PW68 Prem Prakash Taneja, PW69 N. B. Dass, PW 74 Tapan Kumar Basu, PW75 Dharmender Kumar Jain, PW76 Rajender singh Rana and PW77 Priyajit Chaudhary testified that they became the member of EPF Staff Employees CGHS in the year 1972. They testified that the office of the society never functioned at 1/68, Pusa Road, New Delhi.
PW65 Krishan Gopal Kashyap testified that in the year 2004, he was posted as Deputy Director in DDA. He provided the list of the societies, which was received from the office of RCS, which included the name of Ruchika Apartments having registration no. 127(GH). He also provided the list of 143 members of Ruchika CGHS received from the Assistant Registrar, Cooperative Societies, East Zone. He proved this list as Ex.PW65/B. He handed over the file containing correspondence regarding the allotment of land to EPF Staff CGHS.
CC No. 43/2010 Page 26 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 He proved the letter dated 1.4.1977 vide which the society was asked to deposit 25% of the cost of land by 15.4.1977 for allotment of 1.84 acres of land in Pitam Pura.
PW67 S.M.S. Chaudhary, the Executive Officer of DDA during the period 1971 to 1977 proved the file pertaining to allotment of land to EPF Staff CGHS as Ex.PW67/A. He proved the letter dated 16.11.1976 Ex.PW67/A1 vide which the offer of allotment of land was made to EPF Staff CGHS, 1/6B, Pusa Road, New Delhi and other letters.
PW70 Ashok Bakshi was Deputy Registrar in the office of RCS from September 1977 to October 1979. He proved his order dated 23.3.1979 vide which the EPF Staff CGHS having registration no. 127 was wound up. He testified that vide order Ex.PW70/B dated 18.10.1977, he was delegated with the powers of RCS by the Lt. Governor.
PW71 Manohar Lal Ahuja remained posted in the office of RCS w.e.f. 1975 to 1980 in different sections as Sub Inspector, Auditor, Liquidator etc. He testified that on winding up the society, Ashok Bakshi, Deputy Registrar, had appointed him as Liquidator of the society but liquidation proceedings could not be completed till 1980.
PW72 Manish Sharma was also an official in the office of RCS from 1988 to 1993. He testified that he had dealt with the file of EPF CC No. 43/2010 Page 27 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 CGHS as liquidator. He testified that he had refunded the amount to the members of the society and the account was closed on 11.12.1990. He proved that registration number, bye laws of the society and membership register were cancelled during the course of liquidation. In cross examination by Sh. S. K. Bhatnagar, adv., he testified that after completing the liquidation, he presented his report to Deputy Registrar (Liquidation). However the said report was not in the file.
PW73 Rakesh Gupta testified that he had been residing at C90A, Janta Garden, Pandav Nagar, Delhi91 for the last 10 years but no society by the name of EPF Staff or Ruchika CGHS had ever functioned at that place. He also testified that no person by the name of U. S. Bhatnagar or any other official from the office of RCS had visited in the year 2003. Even, no election on 13.7.2003 were ever held at the above stated address.
PW79 Jasvir Singh Sindhu was Jt. Registrar in the office of RCS w.e.f. August 2003 to March 2004. He testified that he had dealt with the file pertaining to EPF Staff CGHS/Ruchika Apartment CGHS during his tenure as Jt. Registrar in the office of RCS. He proved the various proceedings in the said file.
PW81 Rakesh Kumar Hasija was LDC in the office of RCS in the year 2001 and remained posted in East Zone till September 2005. He CC No. 43/2010 Page 28 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 proved the various proceedings in file D4 volumeII.
PW82 C. M. Sharma accorded the sanction to prosecute accused Narender Kumar (A1).
PW83 Abhimanyu Kumar is the hand writing expert. He proved his report. His testimony is relevant in respect of the hand writing/signatures of Gokul Chand Aggarwal (A7).
PW87 Gaurav Gupta testified that his father Arun Kumar Gupta was an advocate and was also a Notary Public. The license no. 741/97 of Notary was granted by Ministry of Law to him. His father died on 15.1.2002 and therefore this license was surrenderd to the Government of India vide letter dated 13.2.2002. On seeing the affidavits placed in file D3, he testified that the signatures appearing on point A of each affidavit do not pertain to his father. Even, the seal in the name of his father on each affidavit is not of his father.
PW88 Narender Singh Khatri testified that he joined the office of RCS in the year 2000 as LDC. He proved the various proceedings and approvals by Narayan Diwakar, RCS. He also proved a letter dated 30.12.2003 Ex.PW88/A. He proved the notings dated 13.1.2004 and 29.1.2004, wherein Narayan Diwakar, RCS, had shown the presence of Ms Rita Kaul, adv. on behalf of the society. He proved that though Vakalatnama of Ms Rita Kaul is not available on record, however she was appearing before the court of RCS regularly. He turned hostile on CC No. 43/2010 Page 29 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 one point on cross examination by Ld. Public Prosecutor, when he denied that he had given the letter Ex.PW88/A to accused Gokul Chand Aggarwal (A7).
PW89 Dalip Singh Verma, who was posted as Superintendent in the office of RCS from 2000 to 2006, testified that he had handed over the certified true copy of the order dated 18.10.1977 issued by Ganga Das, Special Secretary (Cooperative), Delhi Administration, Delhi in respect of Sh. Ashok Bakshi vide which the powers of Registrar were delegated to him by Lt. Governor.
PW90 R. Narayanaswami accorded sanction to accused P. K. Thirwani (A8).
PW91 Satvir is stamp vendor at DC Office, Kapashera Border. He testified that earlier he was working at Janak Puri as stamp vendor from 1994 to 2006. He testified that accused Gokul Chand Aggarwal (A7) used to purchase stamp papers from him. He came along with list of members for issuing the stamp papers for affidavits as per the said list. He proved that the stamp papers for the affidavits placed in file D3 were issued by him and his staff had made entries on the back of all the stamp papers for denomination of Rs.10/ each and he put his signatures at point X on each stamp papers. He also identified his stamp on these affidavits.
PW92 O. Venkateswarlu, Deputy Legal Advisor in the Ministry of CC No. 43/2010 Page 30 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Law and Justice. He testified that Arun Kumar Gupta was issued license for Notary Public, which was renewed for five years on 21.4.2000. However Sh. Arun Kumar Gupta had expired on 15.1.2002 as per records.
PW93 Inspector S. L. Garg is the Investigating Officer of this case.
PW94 V. K. Bansal remained posted as Assistant Registrar in the office of RCS. He proved the procedures and practices, which were being observed in the office of RCS.
PW95 G. S. Meena testified that he was posted as Jt. Registrar in the year 2005. he proved a letter dated 5.8.2005 vide which a list of 135 societies was provided to CBI, which was received from DDA. This included the name of Ruchika Apartments (former name EPF Employees CGHS).
PW96 Ms Rita Kaul, advocate, testified that she might have appeared before Narayan Diwakar, RCS, on behalf of EPF Employees/Ruchika CGHS and that she used to appear before him. She was declared hostile witness. In cross examination by Ld. Public Prosecutor, she denied that she was engaged by Gokul Chand Aggarwal (A7) as a lawyer to represent this society.
PW97 Vikas Kalia proved the sanction order to prosecute U. S. Bhatnagar and Sanjeev Bharti.
CC No. 43/2010 Page 31 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 PW98 Sushil Kumar Sharma remained posted as LDC and UDC in the office of RCS w.e.f. 1995 to 2003 in Personnel Branch and Audit Branch. He identified the signatures of accused P. K. Thirwani (A8) and J.S. Sharma on the records of audit of the society.
PW99 Vishwamitter Bhagi witnessed the specimen signatures of accused persons, which were taken by CBI.
Statements under Section 313 CrPC were recorded. Accused persons did not examine any witness in defence. However accused Sanjeev Bharti (A6) filed certified copies of the charge sheets filed in various CBI courts alongwith his written submissions at the stage of final arguments.
Before discussing the submissions of the parties, I would like to discuss some legal issues as under :
Kaveri CGHS Judgement of High Court of Delhi Ld. Public Prosecutor argues that in Kaveri Cooperative Group Housing Society Ltd. Vs Union of India (AIR 1991 Delhi 217), Delhi High Court had ordered the criteria of seniority of the society as per the date of their registration, so as to stop the bunglings in the office of RCS but the RCS officials were smart enough to defeat the purpose of that judgement and had invented a new trick by fraudulently reviving the defunct societies at the instance of builder mafia. This was done because the registration number of such society CC No. 43/2010 Page 32 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 would be high in seniority list on account of its date of registration.
For sake of understanding the logic of Hon'ble High Court of Delhi in Kaveri CGHS judgement, I would like to reproduce the relevant paragraphs from this judgement as under :
"Where in respect of allotment of land by the Delhi Development authority (DDA) to the Group Housing Societies, under the Delhi Development Authority (Disposal of Developed Nazul Land) Rules (1981) framed under S. 22 read with S. 56 of the Delhi Development Act (1957), an office memorandum was issued determining seniority on the basis of finalisation of list of members of such societies by the Registrar, Cooperative Societies, instead of earlier criteria of date of registration of such Societies, the said office memorandum was unreasonable and hence arbitrary. The main principle which has been set out in the said office memorandum is that the seniority is to be determined with effect from the date on which the papers of the Society have been found in order and approved by the office of the Registrar, Cooperative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so CC No. 43/2010 Page 33 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 filed. This criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of the Registrar of Cooperative Societies.
There may be cases, and they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which show that with no fault of the societies they have been relegated to a lower position in the seniority list, as there are societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list originally filed."
In this judgement it was specifically held that land was to be allotted to the society according to the seniority i.e. date of registration. The purpose of this judgement was to restrict the powers of RCS so that these powers are not abused. The facts of this case show that RCS officials and builder mafia joined hands and made most of the new criteria laid by Hon'ble High Court, by reviving the defunct/would up societies by creating fake members and fake documents.
CC No. 43/2010 Page 34 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Law in respect of Section 13(1)(d)(III) of Prevention of Corruption Act 1988 One of the main and most important submission on behalf of all these public servants is that they had done the work in routine manner and have relied upon the documents furnished by the society and they had no knowledge that the said documents were forged. It is, therefore, argued that they had acted in routine manner without having any knowledge of the forgery or without having any intention to abuse the official position. In view of these common submissions, the court is faced with the question as to whether the mens rea in form of intent or knowledge is a necessary ingredient of Section 13(1)
(d) of Prevention of Corruption Act.
It is argued by Ld. Public Prosecutor that till recently, no judgment had thrown any light on this aspect. Therefore, when this question arose before Hon'ble High Court of Delhi, Hon'ble Mr. Justice S. Muralidhar vide his order dated 24.09.2009 referred this issue to a larger Bench. Accordingly, this issue was considered by Hon'ble Mr. Justice S.Ravindra Bhat and Hon'ble Mr. Justice G.P. Mittal in CRL.A. 482/2002, CRL.A. 509/2002 and CRL.A.484/2002 i.e. Runu Ghosh, T.Rama Rao and Sukhram Vs CBI vide judgment dated 21.12.2011. I reproduce the relevant paragraphs of the judgment as under:
CC No. 43/2010 Page 35 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 "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 preexisting 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, 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."
.....................
"75. It would be profitable to emphasize the public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitute expected of them, both in the discharge of their duties, and otherwise. In the case of ministerswho are members of the council of Ministers (the Cabinet) in the Union and State Governments, as well as holders of other constitutional offices there is a requirement that before their appointment, each of them has to subscribe to an oath of office and secrecy according to the form set out in the Schedule, to the Constitution of India by which holders of such offices are required to take oath that he or she would discharge her or his duties in accordance with the Constitution and the law without fear or favour, affection or ill will. This requirement is a constant reminder to the holder of that office that she or he is a trustee and custodian of public interest,and all decisions taken in that capacity are to be based on that factor alone. Holders of other public offices, under the State (a compendious term) are equally bound by such a condition. To ensure that they are afforded the amulet protection and immunity, the Constitution has mandated some safeguards (in the case of members of a service or holders of office under a State or the Union, the protection from arbitrary loss of employment, under Article 311, and the protection of status accorded by virtue of rules or enactments made, pursuant to Article 309 of the Constitution of India). There is an added layer of immunity in the form of requirement of sanction under section 197 or other similar provisions, to protect public servants from needless CC No. 43/2010 Page 36 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 harassment. However, when the public servant acts in a manner that is devoid of public interest, not only would the action become suspect, then, having regard to the nature of his action, and the heightened degree of blameworthiness, he is said to have transgressed the bounds of protection afforded to his decisions, and is then exposed to prosecution."
"77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are infact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" without public interest" needs to be spelt out."
I also refer to a prior judgment in J. Jayalalitha Vs State (MANU/TN/1423/2001) decided on 4.12.2001 and I reproduced the relevant portions of the same as under : "...........The contention of the prosecution that mere exercise of power to confer pecuniary advantage to another person even without any dishonesty, can attract the penal provisions of the Prevention of Corruption Act, cannot be accepted, since if such a contention is accepted, any order passed by a public servant, which confers pecuniary advantage, can be prosecuted under the said Act. Section 13(1)(d) of the CC No. 43/2010 Page 37 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Prevention of Corruption Act, 1988 relates to the offence of criminal misconduct, whether it is under Clause (i) or (ii) or (iii) and therefore, the offence recognized under all the three clauses is only an offence of criminal misconduct. In my view, all clauses in Section 13(1)(d) of the Act require mens rea and it is an essential ingredient for the offence. The judgment of the Supreme Court in M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC 116), which was quoted with approval by the Apex Court in Major S. K. Kale v. State of Maharashtra (MANU/SC/0139/1976 : (1977) 2 SCC 394), shows that in order to come within the mischief of the Section, the abuse of position must necessarily be dishonest on the part of the accused. If the words "corrupt, illegal means or abuse" are not read into Section 13(1)(d)(iii) of the said Act, innocent persons will be harassed in the course of performance of their official duties."
The judgments referred to above show that what is sought to be punished under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is not mere misconduct but criminal misconduct and for criminal misconduct, the element of mens rea is essential and if there is no mens rea, the act does not by itself become punishable, except in certain cases, like Section 304A IPC as it provides punishment for rash and negligent act committed without mens rea.
CC No. 43/2010 Page 38 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 I have already extracted Section 13(1)
(d)(iii) of the Prevention of Crruption Act, 1988, and in that, the words, "without any public interest" (emphasis supplied) are found. The words, "without any public interest" used in the said Section show that for the offence under Section 13(1)(d)(iii), the prosecution must establish that the interest shown for obtaining pecuniary advantage or valuable thing, was private interest and even if the act serves one public interest and if the said one public interest is against another public interest, a person cannot be prosecuted, since the Section states emphatically that the act shall be done without any public interest. The word 'any' is therefore to be understood that there should be a zero public interest. The word 'any' is defined in Judicial Dictionary of words and Phrases (Fifth Edition by John S. James) as a word which excludes limitation or qualification. Therefore, the word 'any' used Section 13(1)(d)(iii) is absolute. The trial Judge has also conceded in his judgment that tourism involves public interest, but went on to hold that it cannot override another public interest, i.e. Ecological system. Therefore, it is not a case where we can fit in the words "without any public interest", To make out an offence of criminal misconduct, two requirements are necessary and they are, (1) the absence of any public interest whatsoever, and (2) the knowledge of the accused that his act is without any public CC No. 43/2010 Page 39 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 interest. The first requirement is the objective absence, as a fact, of any public interest and the second requirement flows from the legal maxim regarding mens rea.
If the accused acted bona fide without any public interest, believing that he is acting in the public interest, he is not guilty of the offence of criminal misconduct."
Regarding Jayalalitha judgement, I would say that when a judgement of our own High Court on the issue of Section 13(1)(d)(iii) of Prevention of Corruption Act is before this court, the same is binding upon this court. Moreover, a careful perusal of Jayalalitha judgement would show that this judgement is not contrary to the dicta of our own High Court in Runu Ghosh case, rather it supplements the same. The purport of this judgement of Hon'ble High Court is that the element of "mens rea" is applicable to Section 13(1)
(d)(iii) of Prevention of Corruption Act only to the extent that the public servant should also have the knowledge that his act is without any public interest. This observation has been admitted by Hon'ble High Court in Runu Ghosh case but in different words. In Runu Ghosh case in para 79 Hon'ble High Court has observed that "however it is only those facts done with complete and manifest disregard to the norms, and manifestly injurious to public interest which were avoidable, but for the public servant overlooking or disregarding CC No. 43/2010 Page 40 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 precautions and not heeding the safeguards he or she was accepted and which resulted in pecuniary advantage to another..........". To put it in different words, the judgement means that the if the public servant knew that his act of over looking or disregarding the precautions would be injurious to public interest, he would be covered under the mischief of Section 13(1)(d)(iii) of Prevention of Corruption Act 1988. Delhi High Court in Runu Ghosh also noted that the knowledge of the injury to public interest, however, has to be deduced from the note sheets because normally no other evidence would be available against such public servants. The conjoint reading of both the judgements would lead to the conclusion that when an issue affecting public interest comes before a public servant, it is natural that such public person would know that any disregard of the norms would harm the public interest. This knowledge of public interest has to be gathered from the facts of the case. For example in the present case allotment of land/plot to the society would be an act in public interest but if land is granted to a fake society, it would be injurious to the public interest. Needless to say that land is extremely expensive in NCT of Delhi.
There cannot be any scope of any disagreement on the point as raised by Ld. Defence Counsels that "obtaining pecuniary advantage for himself or any other persons" is the main ingredient of Section CC No. 43/2010 Page 41 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 13(1) (d) on Prevention of Corruption Act 1988. It is also true that prosecution has been unable to prove any evidence to show that if any public servant had obtained any pecuniary advantage for himself or for any other person. But it must be kept in mind that the charge against the public servants in this case is under Section 15 read with Section 13(1)(d) of Prevention of Corruption Act i.e. an attempt to obtain the pecuniary advantage for himself or for some other person. Since it is an offence of "attempt" only therefore there is no question of these public servants having actually obtained any pecuniary advantage to themselves or to the persons operating the fake society. Effect of approval of list of members by RCS The importance of this issue has been specified by Hon'ble High Court of Delhi in Kaveri judgment and I reproduce the relevant portion of the same as under: "It is open to the Registrar to fix a time limit within which the defects, if any, must be removed by the society so as to enable the Registrar to grant approval. If the defects are not removed within the stipulated time, then the society can have no grievance if the approval is not accorded. But once the approval is accorded the same must relate back to the date of the filing of the list.
What is the effect of approval? The effect of approval is that the Registrar recognises the correctness of the list as filed by the society."
CC No. 43/2010 Page 42 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Notings on the file In the 'Runu Ghosh case', it has also been decided that since the offences of corruption are done under the cloak of official duties and in a very clever and shrouded manner, the only evidence available is note sheets written or approved by public servants and the court would be fully justified to draw appropriate inferences from such note sheets. This court has to carefully peruse the note sheets to consider as to whether there has been any abuse of powers, as per Section 13(1)(d)(ii) or whether the public servant has acted without any public interest to obtain pecuniary advantage to any person, bringing the case under Clause (iii) of Section 13(1)(d) of Prevention of Corruption Act 1988.
Requirement of sanction u/s 197 CrPC u/s 19 of P.C. Act, 1988 It is argued by Ld. Defence Counsels that there is no sanction under Section 197 CrPC to prosecute accused persons though sanction under Section 19 of P. C. Act has been accorded. I may point out that since accused Narayan Diwakar, Ramesh Chandra and Faiz Mohd. had retired, there was no requirement for obtaining sanction under Section 19 of P. C. Act. Ld. Defence Counsels argue that for a prosecution under IPC, a sanction under Section 197 CrPC is required, irrespective of the fact as to whether the public servant is still serving CC No. 43/2010 Page 43 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 or has retired. I have considered the submissions of the accused persons. All the accused persons have argued that since there is no sanction under Section 197 CrPC, therefore they cannot be convicted under any IPC offence including under Section 120B IPC. Almost everyone of them has referred to R. Balakrishna Pillai Vs State of Kerala and another AIR 1996 SUPREME COURT 901 in their support. Therefore I would like to reproduce relevant paragraphs of this judgement as under :
"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a Criminal conspiracy. In support of his contention he placed strong reliance on the decision of this Court in Harihar Prasad v State of Bihar, 1972 CriLJ 707:(1972)8 SCC 89. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the concerned public servants, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the concerned public servant would depend on the facts of each case. There can be no general proposition that whenever CC No. 43/2010 Page 44 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 there is a charge of criminal conspiracy levelled against a public servant in or out office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197 (1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a threeJudge decision in S. B. Saha v. M. S. Kochar, (1979) 4 SCC 177 : (AIR 1979 SC 1841). The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed Section 197 (1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit and offence, and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The night approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence CC No. 43/2010 Page 45 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the coaccused while functioning as a Minister. The Criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the consent of the Government of Kerala which is an illegal act' under the provision of the electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegations is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs.
19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegations is that it was an illegal act in as much as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under Section 120B I.P.C. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract CC No. 43/2010 Page 46 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 the protection of Section 197(1) of the Act.
8. For the above reasons, we are unable to accept the view taken by the High Court of Kerala insofar as the requirement of sanction under Section 197(1) of the Code is concerned, in relation to the charge of criminal conspiracy. We, therefore, allow this appeal, set aside the decision of the High Court insofar as that charge is concerned and hold that sanction under Section 197(1) of the Code was a sine qua non. As pointed out earlier so far as the second charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act is concerned, the view of the High Court remains undisturbed. The appeal is allowed accordingly and will stand so disposed of."
A perusal of this case would show that Supreme Court of India has relied upon the criteria, which had already been held repeatedly by Supreme Court. This criteria is that while deciding the question of applicability of Section 197(1) CrPC, neither this provision can be interpreted too widely nor too narrowly and a balance has to be maintained by the court because if this provision is construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official duty to commit an offence and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in course of the same transaction in which the official duty is performed. The Apex Court held that right approach is to see that the meaning of the expression lies between two extremes.
CC No. 43/2010 Page 47 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Therefore the court will have to assess the facts and to take a decision as to whether the conspiracy charge is so intertwined with the discharge of the official duty that a sanction under Section 197 would be required, or, the official duty is discharged in such a fashion that the public servant becomes active stimulator of the conspiracy in question. In later case, the sanction under Section 197 CrPC would not be required. Therefore the aforesaid authorities can not be applied mechanically for or against the public servant.
In 'Dharambir Khattar Vs. CBI decided on 5.5.2009 in Criminal Revision Petition No. 340 of 2008, by the High Court of Delhi, it was observed that:
"There is a merit in the contention of the learned counsel for the CBI that sanction under Section 197 CrPC is actually not required when the often committed are under the PCA. It is submitted that a criminal conspiracy to commit an offence under the PCA cannot be cloaked with any immunity to indulge in criminal misconduct. Want of sanction under Section 197 of Code of Criminal Procedure is, therefore, no bar. The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3(1)
(d) "any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (I).
Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this CC No. 43/2010 Page 48 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject." Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."
Thus, the Delhi High Court in its above quoted order has categorically observed the offence under Section 120B IPC in chapter VA IPC would also become punishable under the Prevention of Corruption Act and hence once sanction under Section 19 of Prevention of Corruption Act has been obtained, no sanction under Section 197 CrPC would be required.
Similar is the law settled in 'Kaushal Kumar Vs. CBI, 2009 (1) LRC 56, Delhi.
The aforesaid legal proposition has been reiterated by Hon'ble Mr. Justice M. L. Mehta in C. K. Jaffer Sharief Vs. State (Through CBI) 2012 IV AD (DELHI) 214, wherein it was held that if there is a sanction under Section 19 of P. C. Act, the absence of sanction under Section 197 CrPC would not come to the rescue of an accused even if the public servant has been charged for IPC offences.
CC No. 43/2010 Page 49 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Hence, accused persons against whom sanction u/s 19 of P.C. Act have been obtained, cannot claim any benefit on the ground that there is no sanction under Section 197 CrPC.
But where there was no requirement of obtaining sanction u/s 19 of PC Act due to retirement of public servants, it is to be seen as to whether the prosecution is able to prove its charge against them under Section 120B IPC. I may point out that being in conspiracy with the persons who have committed the forgeries of various records of the society would be altogether a different act, which is not connected with performance of official duties. In this case the records of the society have been forged by the private person and presented in the office of Registrar Cooperative Societies. Therefore, it would be discussed in later part of the judgment, if the RCS officials hobnobbing with these offenders, went much beyond the scope of protection under Section 197 CrPC?
Powers of police to take handwriting sample during investigation and evidentiary value of the opinion of handwriting expert Ld. Defence Counsels have referred to Sapan Haldar & Anr. Vs. State 191(2012) Delhi Law Times 225 of High Court of Delhi decided on 25.5.2012 and submit that the Investigating Officer had no power to take/ specimen signatures. On the other hand, Ld. Public Prosecutor has referred to Ravinder Kumar @ Dara Singh Vs CC No. 43/2010 Page 50 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Republic of India AIR 2011 SC 1436 in which Supreme Court of India held that Investigating Officer had power to take specimen signatures during investigation.
I have considered the rival contentions. The Supreme Court of India, in State of Bombay V. Kathi Kalu Oghad & Ors. AIR 1961 Supreme Court 1808, considered this issue in detail and held that police does not require the permission of the Magistrate before taking the specimen hand writing of an accused during investigation. Relying upon the ratio of Kathi Kalu case, Supreme Court of India in a recent judgement Ravinder Kumar Pal @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, where a question was raised about the admissibility of the specimen signatures of the accused taken during investigation by police without permission of the Magistrate, has held that taking of specimen signatures/writings of accused for examination by expert during investigation, without permission of the Magistrate, is proper and report of expert based on such signatures/writings can be used as evidence against the accused. In this judgment, the Supreme Court had also noticed Section 311A CrPC, brought by a recent amendment of 2006. Relevant portion of para no. 35 of this judgment contain the rival submission put before it, which is reproduced as under :
"Another question which we have to consider CC No. 43/2010 Page 51 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10: AIR 1961 SC 1808. This larger Bench was constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M. P. Sharma & Ors. Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077:
(AIR 1954 SC 300)."
The Supreme Court of India then upheld the view of Orisa High Court which had held that police had power to take specimen signatures of accused during investigation. Thus, I find no illegality in taking of specimen signatures of the accused persons by the CBI CC No. 43/2010 Page 52 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 during investigation.
It is argued by Ld. Counsel for accused P. K. Thirwani (A8) as well as Gokul Chand Aggarwal (A7)that whether the opinion of hand writing expert can be the sole basis for convicting an accused. It is argued by Sh. S. P. Mehta, adv. that at the most it can be used as a corroborative piece of of evidence. Ld. Defence Counsel has drawn my attention to the testimony of PW Rita Kaul (PW96) and submits that she has denied that she was engaged by accused Gokul Chand Aggarwal (A7) as a lawyer to represent Ruchika CGHS before Narayan Diwakar (A3) RCS. Therefore, it is argued that there is no eye witness account to show that the accused Gokul Chand Aggarwal (A7) used to interact with the RCS official in respect of Ruchika CGHS. Therefore the sole evidence against accused Gokul Chand Aggarwal (A7) is the opinion of hand writing expert. It is submitted that convicting an accused on the opinion of hand writing expert would be a highly dangerous proposition. I would like to discuss the law on this issue.
Section 45 of the Indian Evidence Act lay down that when the court has to form an opinion as to the identity of hand writing or finger impressions, the opinions upon that point of the persons expert in that science are relevant facts. If the two hand writings match with each other, this itself is an evidence as per the Indian Evidence CC No. 43/2010 Page 53 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 act. To say it differently, the matching of two hand writings is itself a substantial evidence u/s 45 of Indian Evidence Act and the opinion of the hand writing expert is sought only to facilitate the court to form an opinion on this point. Therefore, to say that conviction can be or cannot be based solely upon the report of hand writing expert would be misleading. The appropriate interpretation of Section 45 of Indian Evidence Act is that court is competent to form its own opinion on the point of identity of hand writing and for that purpose the court may call for the report of a hand writing expert. Therefore, the relevant fact before this court is the matching or non matching of the hand writing of an accused with the questioned hand writing. If the hand writings match, there cannot be any hitch in convicting the accused even if further corroborative evidence is not available. I quote from the judgment dated 5.7.2011 passed by the division Bench of Hon'ble Mr. Justice S. Ravindra Bhatt and Hon'ble Mr. Justice G. P. Mittal in Jaipal Vs State Criminal appeal No. 137/98 and Rajendra Vs State Criminal Appeal No. 181/98 as under :
"it is true that except the handwriting Expert's report Ext.PW4/A there is no corroboration that the ransom letter Ext.PW12/A was in the handwriting of Appellant Jaipal. The question was dealt in detail by the Supreme Court in Murari Lal v. State of M. P., AIR 1980 SC 531. The Court observed that handwriting expert is not an accomplice and there is no justification for condemning his CC No. 43/2010 Page 54 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration."
It is pertinent to note that High Court of Delhi had relied upon Murari Lal v. State of M.P., AIR 1980 SC 531 wherein Hon'ble Supreme Court held that there was no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted upon, unless substantially corroborated. I would like to quote from this judgment extensively as under:
"An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion on a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnessthe quality of credibility or incredibility being one which an expert shares with all other witness, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for CC No. 43/2010 Page 55 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (para 4) Expert testimony is made relevant by S.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) to S. 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 is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells that 'A fact is said to be provided when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Further, under S. 144 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 S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
(Para 6) There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be CC No. 43/2010 Page 56 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. (Cases law discussed).
(Para 11) Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.
(Para 12) In view of the above stated law, I am of the opinion that when a case is being pressed by the prosecution solely on the basis of handwriting expert, the court should be very cautious and the reasons for the expert opinion must be carefully examined. In case where reasons for opinion are convincing and there is no reliable evidence throwing a doubt upon it, the testimony of handwriting expert may be accepted.
Narender Kumar (A1) Sh. S. K. Bhatnagar, adv. argues that CBI has not produced any CC No. 43/2010 Page 57 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 cancelled document and therefore it cannot be said that Narender Kumar (A1) had the knowledge about the society having been wound up and liquidated. Ld. Defence Counsel has drawn my attention to the revival application dated 1.10.2003 (Ex.PW79/A). It is submitted that this application was addressed to the Assistant Registrar and was given to the Registrar Cooperative Societies. Ld. Defence Counsel submits that it shows that this revival application was not directly given to Narender Kumar (A1) and therefore no nexus stands proved between Narender Kumar (A1) and the person, who moved this application. It is argued by Ld. Defence Counsel that the only role of Narender Kumar (A1) is that being a dealing clerk, he had only put up a note, which was further put up before J. S. Sindhu, Joint Registrar. It is argued that even JR did not point out any reregularity or illegality in this note. Ld. Counsel submits that whatever documents were annexed with the application, the same were taken by Narender Kumar (A1) and it was not his duty to minutely check if the reconstructed record contains an office copy. It is submitted as to from where the so called office bearers of the society got the copy of the record has not been proved by the prosecution. In fact, it is argued that there is no evidence that Narender Kumar (A1) had provided the same to the so called office bearers of the society. It is further argued that vide his note, Narender Kumar (A1) had only CC No. 43/2010 Page 58 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 proposed to issue a circular for tracing the file.
Ld. Defence Counsel has countered the prosecution arguments, wherein it was alleged that the file actually pertained to Central Zone, whereas it was taken up in East Zone without jurisdiction. Ld. Defence Counsel has drawn my attention to the address written in the letter and submits that this address pertains to East District and that is why Narender Kumar (A1) had rightly dealt with this file.
So far as the reconstruction of the record is concerned, Ld. Defence Counsel argues that the Joint Registrar had approved that the file of the society may be reconstructed from the records available with the society and therefore Narender Kumar (A1) had no reason to call the records from the DDA. It is further argued that the copy of revival order was sent to the society as per Section 63(4) of DCS Act. Prosecution did not collect any evidence that revival order was received back by Registrar, which means that society was working at the said address. Moreover CBI did not search the said premises where the revival order was sent. Therefore the prosecution evidence is deficient in establishing to the hilt that the office of the society was not working at the said address. It is further argued that Narender Kumar (A1) has no means to know that the documents furnished by the society were forged. Ld. Defence Counsel further submits that difference of address in byelaws is nothing but a matter of CC No. 43/2010 Page 59 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 negligence.
On the point of sanction, it is argued that the sanction should be issued by the authority, who had competence to issue such sanction in the office where the offence was committed. It is argued that since Narender Kumar (A1) was posted in the office of Registrar, only Registrar was competent to accord such sanction and therefore the present sanction to prosecute Narender Kumar (A1) has no value in the eyes of the law.
PW82 Sh. C.M. Sharma was working as Controller of Accounts in Principal Accounts Officer. Narender Kumar (A1), who was earlier working as Dealing Assistant in the office of the RCS was working as UDC in the Pay & Accounts Office No. 21, Shankar Road, Government of NCT of Delhi under him (i.e. PW82). He testified that after perusing the investigation report etc., he accorded the sanction to prosecute him and proved the sanction order as Ext.PW82/A. I have seen this order which is a speaking order. Therefore, the sole question would be as to whether he was competent to accord sanction u/s 19 of PC Act to prosecute the accused for the acts which the public servant had done while he was working in the office of Registrar. I have perused Section 19 of P.C. Act. As per Section 19 (1)(c), the sanction to prosecute a public servant is to be obtained from authority competent to remove him from his office.CC No. 43/2010 Page 60 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 PW82 has testified in cross examination that when Narender Kumar was posted in his office, he was vested with the powers to remove him from his post. Ld. Defence Counsel has drawn my attention to Section 19(2) of P.C. Act which states that when there is a doubt as to which authority should accord the sanction, such sanction shall be given by the authority which have been competent to remove the public servant from his office at the time when the offence was committed. I am of the opinion that recourse to Section 19(2) would be taken only in question of doubt. However, here there was no doubt as to who was competent to remove him from the service at the time when sanction was sought. Hence, sanction is proper and I do not find any illegality in the same.
I agree with the submissions of the Ld. Defence Counsel that CBI had not produced any canceled documents of the society which should have been done pursuant to the winding up of the society. However, it must be noted that in the letter dt. 01.10.2003 Ext.PW79/A which is the PUC in this case, it has been specifically written that society had been wound up vide order dt. 23.03.1979. I also agree with Ld. Defence Counsel that revival application was not given directly to A1. However, I disagree with the conclusion drawn by him that no nexus stand proved between Narender Kumar and other persons. Here, I would refer to the noting of dealing clerk dt.CC No. 43/2010 Page 61 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 16.12.2003 in which it is written "as approved fair letter is added for signature pls."
This noting is consequent to a noting dt. 04.12.2003 Ext.PW79/H which is written by Narender Kumar (A1) and signed by AR(E) but only "portion A" is approved by Sh. J.R. Sindhu, Jt. Registrar (East). I reproduce the same as under:
"May kindly see the observations of JRCs above. In this connection it is submitted that a circular was issued to all brances/zones of this office, with the request to serch/locate the main file of the society and found the same may be returned to this zone, but no response has been received from any branch/zone.
It is pertinent to mention here that all efforts have already been made to search/locate the main file, but the same has not been traced/located.
In view of the above stated facts, 'A' we may reconstruct the file from the record available with the society and appoint U.S. Bhatnagar, GdIII as Inspecting Officer u/s54 of DCS Act, 1972 to verify/examined the record of the Society to bring out the factual position of the society."
sd/ (AR East) JR(E) Only 'A' is approved at the moment.
AR(E) CC No. 43/2010 Page 62 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 This noting shows that J.R. Sindhu Jt. Registrar, East) had only approved the reconstruction of the file at that point of time and had not approved the appointment of U.S. Bhatnagar as inspecting officer. However, the fair letter prepared by Narender Kumar to be signed by Ramesh Chandra AR(E) placed at page 8/C show that without any approval from JR, RameshChandra had appointed U.S. Bhatnagar to verify the records of the society to bring out the actual position of the society. Simultaneously, a letter (placed at page 7/C of D4) Ext.PW83/A10, under the signatures of Ramesh Chandra was sent to the President/Secretary of EPF CGHS. Despite the fact that J.R. Sindhu, Jt. Registrar (E) had not yet approved the appointment of inspecting officer. Narender Kumar, the dealing clerk and AR(E) were eager to execute this plan and appointed U.S. Bhatnagar without approval. I would discuss later on as to how U.S. Bhatnagar had also abused his official position in this case, but, sufficient is to say that the eagerness to appoint him as an inspecting officer as reflected in noting dated 4.12.2003, even though the records were yet to be reconstructed and got authenticated, appears to be an act in execution of the conspiracy in question.
I may point out that the note sheet dt. 24.12.2003 Ext.PW79/N placed at page 6/N, 7/N & 8/N of D4, Narender Kumar has mentioned that as per records of the society, the society has shifted its CC No. 43/2010 Page 63 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 address from 1/68 Pusa Road Delhi to C90A, Janta Garden, Pandaw Nagar, Delhi which was approved by GBM dt. 13.07.2003. He did not raise the query as to why the society did not inform this fact to the RCS office and why this fact was not mentioned in the application (PUC) dated 1.10.2003 Ex.PW79/A. The detailed note was signed by the AR(E) has been prepared by Narender Kumarthe dealing assistant in which he has referred to the photocopies of the resignation letters P184/C to P213/C. But he did not point out as to why this society did not inform the RCS about such resignations. Thus, it is clearly seen that while preparing these notings and asking for preparing for reconstruction of the file and eagerness in preparing a letter appointing U.S. Bhatnagar as inspecting officer are clearly abuse of official position. His further role would be discussed along with the role of A2 because roles of A1 & A2 are intertwined.
Ramesh Chandra (A2) Sh. S. K. Bhatnagar, adv. has drawn my attention to Section 6(2) and Section 3(3) of DCS Act 1972 and submits that Assistant Registrar is appointed by Lt. Governor and his duty was to assist the Registrar. It is submitted that it was registrar, who had assigned the application of the society to AR East and AR East had no reason to believe that it did not pertain to his zone because in the letter of the society dated 11.11.2003 Ex.PW79/A placed at page 4/C of D4, the CC No. 43/2010 Page 64 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 address C90A, Janta Garden, Pandav Nagar is given which falls in East zone. Ld. Defence Counsel argues that as per Rule 2 (VIII) of DCS Rules, it is necessary that a society should be declared "defunct". However prosecution has not been able to show if there was any order declaring the society to be defunct. It is argued that in absence of such an order on record, it was not possible for Assistant Registrar East to presume that the society had become defunct. I disagree with this submission because one of the documents received by him during reconstructions of file was winding up order. It is further argued that prosecution has not led any evidence to show the meeting of mind of Ramesh Chandra (A2) with the other coaccused persons. Ld. Defence Counsel submits that Ramesh Chandra (A2) was dealing with large number of files and it was practice that if on the main letter, sent to any person, tea etc. falls or such main letter get mutilated, the office copy of the said letter is sent to the addressee. This might be the reason that the copy of the office copy of the letter meant for liquidator was filed by the office bearer in RCS office for the purpose of reconstruction. This submission of Ld. Defence Counsel is not acceptable because nothing has been proved by him to this effect. Ld. Defence Counsel further argues that there is no evidence on record to show that Ramesh Chandra (A2) had acted without public interest. It is submitted that had he not acted with sufficient speed in view of the CC No. 43/2010 Page 65 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 large amount of work, the cooperative movement would have been affected adversely. It is further argued that Ramesh Chandra (A2) had no means to know that society was a bogus society. Ld. Defence Counsel has drawn my attention to Section 82(1) and Section 86 of DCS Act, wherein a specific punishment has been provided for the person, who runs a bogus society. It is submitted that if a specific provision for punishing such society has been made, the Prevention of Corruption Act would not be applicable.
Ld. Defence Counsel further argues that it was Joint Registrar East, who had passed an order for reconstruction of file from the records of the society and Ramesh Chandra (A2) had only complied with the said order. It is further argued that the allegation of the prosecution that AR East had no power to appoint an inspector under Section 54 of DCS Act, is also incorrect rather an Assistant Registrar is fully empowered to appoint inspector as per rules. I would mention here that it is not to be decided here as to whether A2 had the power to appoint inspection officer U/s 54 of DCS, rather issue is as to why he was so eager to appoint U. S. Bhatnagar as inspection officer in his noting dated 4.12.2003 (quoted earlier), even though the file was yet to be reconstructed.
It is further argued that there is no evidence of meeting of minds between Ramesh Chandra (A2) and U. S. Bhatnagar (A4) because file CC No. 43/2010 Page 66 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 used to move through Dak. Ld. Defence Counsel has drawn my attention to the testimony of PW73, the owner of C90A, Janta Garden, Pandav Nagar. It is submitted that PW73 has testified that he works in Ghaziabad and returns only in the evening. CBI has not examined any other brother of PW73, who used to remain in the house to show that the society did not work at that place.
It is further argued that CBI also did not search that house to recover the copy of revival order, which was sent by RCS at this address. It is submitted that there is no evidence that revival order returned back to the RCS office, hence presumption is that it must have been delivered at C90A, Janta Garden, Pandaw Nagar. I disagree with this submission. PW73 has proved that no society ever had its office at this place. Therefore, if the copy of revival was sent to this address and has not returned back, it would lead to the conclusion that either it was not sent and was collected by the fake office bearer from the office, or it was only sham exercise. It is further argued that bonafides of Ramesh Chandra (A2) can be seen from the fact that he had even taken the signatures of the office bearer of the society on the margin of the note sheet, which shows his bonafides. It is further argued that Ramesh Chandra (A2) had no means to know that affidavits were forged and the bogus documents have been prepared.
CC No. 43/2010 Page 67 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 It is further argued by Ld. Defence Counsel that there is no substance in the arguments of the prosecution that AR skipped JR while sending the recommendations for revival. It is submitted that as per practice the recommendations for revival used to go directly to the registrar without being routed through the JR. Ld. Defence Counsel has argued that he was unable to find in the entire testimony of the witness as to how prosecution states that Ramesh Chandra (A2) had argued the case of revival vigorously before the Registrar.
I have already discussed the role of A1 Narender Kumar, the dealing clerk. All the notings written by the dealing clerk has been signed by Ramesh Chandra. He is responsible for appointing U.S. Bhatnagar as Inspector without the approval from JR. This shows his eagerness to get not only the records of the society reconstructed but also to get the man of his own choice for the purpose of inspecting the society, who has given false inspection report. It is pertinent to note that on the note vide which AR(E) appointed Faiz Mohd. as Inspector, Gokul Chand Aggarwal had singed on its margin as 'G.D. Aggarwal'. This indicates that Gokul Chand Aggarwal was having nexus with Ramesh Chandra and that is why there is no effort from Ramesh Chandra to seek any identity proof from this office bearer namely G. D. Aggarwal. He is now trying to get rid of his acts by submitting that he had infact ordered physical and spot verification twice by U.S. CC No. 43/2010 Page 68 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Bhatnagar as well as by Faiz Mohd. and that he is not responsible for their acts but Ramesh Chandra has to explain as to why he himself did not ask U.S. Bhatnagar to collect the residence proof of the society at C90A, Janta Garden, Pandaw Nagar, Delhi and why Faiz Mohd. did not ask for the identity documents of any of those persons whom he had physically verified. Thus, the collusion of AR(E) is all pervasive. Here, I would like to discuss the winding up order dated 23.3.1979 of Ashok Bakshi, Deputy Registrar vide which the EPF Staff CGHS 1/68, Pusa Road, New Delhi, registration no. 127, was wound up. For the purpose of reconstruction of the file, Gokul Chand Aggarwal (who has signed as G. D. Aggarwal) has been shown to have presented the copy of this order along with the copy of other documents as mentioned in the note dated 24.12.2003 at point "2" (page 6/N of D4). This copy of the order has been proved as Ex.PW70/A1. At the end of this order, the authorities, to which the copies of this order were sent, have been enumerated. These are seven persons/authorities and the copy of the order clearly reflects the tick mark on no.1, who was the liquidator namely Sh. M. L. Ahuja, an RCS official. Therefore, it is clear that this copy has been taken out from the office record of RCS and it is not the copy from the record of the society. I may point out that at no.2 of this order, the Ex. President/Secretary of EPF CGHS has been mentioned. Had the copy of this order been produced from CC No. 43/2010 Page 69 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 the records of the society, the tick mark would have been placed at no.
2. This fact is further borne out from Ex.PW70/A, which is placed at page no.26 of the file D6, which is collectively exhibited as Ex.PW67/A. This file was collected by CBI from DDA. Ex.PW70/A is the copy of the winding up order passed by Sh. Ashok Bakshi dated 23.3.1979, which was sent by him to DDA. This copy i.e. Ex.PW70/A is the exact replica of Ex.PW70/A1, which means that both are true copies of the winding up order. Sh. Ashok Bakshi, the Deputy Registrar, was examined as PW70 and has testified this fact. The only difference between the two copies is that whereas in Ex.PW70/A1 (placed in D4 pertaining to RCS), the tick mark is placed at point no. 1, which means that the copy was sent to the liquidator, in Ex.PW70/A (placed in D6 pertaining to DDA), the tick mark is placed at no.7, which means that the copy was sent to DDA.
Thus it stands proved beyond doubt that this copy of winding up order i.e. Ex.PW70/A1 was procured from the official records of RCS. This is a clear proof of the fact that file was very much available in the office of RCS and was not missing and that fake proceedings for reconstruction of the file were conducted not only by Narender Kumar, the Dealing Clerk, but also by Ramesh Chandra AR (East).
This copy of the order indicates another aspect, which is more CC No. 43/2010 Page 70 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 important so far as the role of Narender Kumar, the dealing clerk, and the role of Ramesh Chandra AR is concerned. If the copy of the winding up order is being sent to DDA by Ashok Bakshi, the Deputy Registrar, it means that some communications/correspondence with DDA was already being made by RCS. There can be only one communication of this type i.e. the sending of the freeze list to DDA for allotment of land. That was the reason that the fact of winding up of the society was necessarily to be communicated to DDA. Had Ramesh Chandra being acting honestly, for the purpose of reconstruction of the official file, he must have asked DDA to inform as to whether any records of the society like names and addresses of the members were available with them. In fact it was also necessary for him to ask as to whether any land has been allotted to the society in question, if in case any freeze list had been already sent to DDA. This was also necessary to prevent allotment of land twice to a society. All this was not done because the intentions were not honest. It is pertinent to note that only the copy of the proceeding register containing the minutes of meetings of society of the year 2003 were filed before Ramesh Chandra, AR (East). He knew that the society was formed in the year 1972 and was wound up in the year 1979. He did not ask the so called office bearers of the society as to where were the records of the proceedings of the society during that period. It is CC No. 43/2010 Page 71 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 no where represented by society that even their records of meetings etc. had been lost. Thus whatever was given by Gokul Chand Aggarwal was accepted and no effort was made to collect the relevant records from DDA or at least to verify as to whether any list of members was sent earlier to DDA. Had this information been asked, DDA would have also informed that the freeze strength of members was 92 (which would be in contradiction to 143 members shown in the new fake list). DDA would have also informed RCS that in fact land was offered to this society but the society could not arrange the required money for allotment of land.
It is further important to note that the copy of the winding up order was also sent to Secretary, Delhi State Cooperative Bank Ltd. 31 Netaji Subhash Marg, Darya Ganj, Delhi, who has been mentioned as point no.5 at the end of this order. Prosecution has examined PW71 M. L. Ahuja and PW72 Manish Sharma, the officials of RCS, who acted as liquidators. PW71 M. L. Ahuja testified that he was appointed liquidator of EPF Staff CGHS by an order dated 23.3.1979 of Sh. Ashok Bakshi, the then Deputy Registrar. However liquidation proceedings could not completed till 1980. PW72 Manish Sharma testified that he was posted in office of RCS as LDC/liquidator and had written to DDA vide letter Ex.PW72/A (placed in D6) for refund of the earnest money deposited by EPF Staff CGHS. He also testified CC No. 43/2010 Page 72 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 that the account of EPF Staff CGHS was opened by him, which was closed on 11.12.1990. He proved the said liquidator's account maintained in the name of EPF Staff CGHS, which is Ex.PW61/B. PW61 Surender Kumar Abrol, the Account Officer of the said bank, also proved that the account had been closed on 11.12.1990. PW72 Manish Sharma has testified that this statement Ex.PW61/B (D17) clearly reflects the refund of the amounts to the members of the society by him. Thus an inquiry could have been made from the aforesaid bank about the status of the society. In that case it would have been very clear that the society had been effective liquidated and funds had been refunded to the members. This exercise was not deliberately done. Otherwise it might not have been so easy for the RCS officials including Ramesh Chandra and Narayan Diwakar to revive the society. It is pertinent to note that P. K. Thirwani in his report Ex.PW83/A37 (page 156 of D11), in the column of main objections/suggestions mentions at point 8 that there is no transaction with the bank after 30.6.1974, however balance of Rs. 500/ lying with the D & C Bank Ltd. as on close of every year is subject to confirmation with the concerned bank and reconciliation for the same, if required, may be done. This shows that no account book was seen by P. K. Thirwani, who was supposed to do so. This report is dated 9.2.2004 (as reflected in column 1 of CC No. 43/2010 Page 73 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 page 160 of D11, Ex.PW83/A38). Had he seen this account book, he would have come to know that the bank account had already been closed as on 11.12.1990. Thus A1 & A2 have proceeded to reconstruct the file, which was actually not missing. They conspired with R.C.S. officials and Gokul Chand Aggarwal and got fake verification reports so that society is revived.
U. S. Bhatnagar (A4) Sh. S. K. Bhatnagar, adv. for this accused has strongly assailed the sanction to prosecute this accused. It is argued that sanction to prosecute accused was not proved by Sh. Vijay Kumar, who had accorded this sanction. Rather prosecution examined the language assistant posted in the Directorate of Education in order to prove the same. It is argued that the accused was deprived of cross examining Vijay Kumar, the then Director Education so as to find out as to whether he accorded the sanction mechanically or had actually applied his mind to the facts of the case. Hence it is argued that the sanction order does not stand proved. On the other hand, Ld. Public Prosecutor has drawn my attention to the order dated 18.5.2012 passed by this court, vide which this court had allowed the prosecution to examine Sh. Vikas Kalia, the subordinate of Sh. Vijay Kumar because Sh. Vijay Kumar was now posted in a foreign country and it was not possible to call him immediately. Therefore Vikas CC No. 43/2010 Page 74 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Kalia, who could identify his signatures, had been called to prove the sanction order Ex.PW97/A. PW97 Vikas Kalia has testified that he was working as Language Assistant to the Director Education since 2001 and had worked with Sh. Vijay Kumar, the then Director Education, for more than three years. He proved the sanction order dated 17.10.2006 Ex.PW97/A in respect of accused U. S. Bhatnagar and identified his signatures on the same.
I have perused the sanction order Ex.PW97/A and I find that it is detailed order in which facts of the case have been written, which shows proper application of mind by Sh. Vijay Kumar, the the Director Education. The competence of Sh. Vijay Kumar to accord sanction under Section 19 of P. C. Act has not been disputed by the accused.
I am of the opinion that for proving the application of mind, the court has to see the reasons given in the sanction order. I have perused the sanction order, it mentions the facts as well as the reasons as to why the sanction has been accorded. Therefore, the sanction does not suffer from non application of mind. I refer State of Rajasthan Vs Tara Chand AIR 1973 Supreme Court 2131 in which it was held by Hon'ble Supreme Court that fact of according sanction can be proved by a subordinate officer and if the sanction order is a speaking order, then the matter ends there.
CC No. 43/2010 Page 75 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Otherwise evidence should be adduced to prove that the sanctioning authority has perused material before according sanction. In the present case also the sanctioning authority had accorded the sanction, which is a speaking order. It mentions the facts and the reasons for according sanction. Hence, it cannot be said that there is non application of mind. Since the sanction order is a speaking order, there is no need for the prosecution to adduce further evidence on this point.
It is argued by S. K. Bhatnagar, adv. for this accused that PW73 Rakesh Gupta was examined by the prosecution to prove that no society existed at C90A, Janta Garden, Pandaw Nagar, Delhi110091. It is argued that in his testimony PW73 testifies that he has two brothers namely Ram Avtar Gupta and Abhay Gupta. Ram Avtar Gupta resides at C90A. In cross examination he (i.e. PW73) testifies that he leaves his house for his shop at Ghaziabad at about 9:00 am in morning and returns to home at about 10:00 pm in the night. Ld. Defence Counsel has drawn my attention to the cross examination of this witness, wherein he has testified that brother Ram Avtar Gupta runs a shop at the said address. It is argued that Ram Avtar Gupta was the best person to inform as to whether he allowed any person to use the said address as the registered office of the society. Ld. Defence Counsel submits that PW73 only comes late in the night and leaves CC No. 43/2010 Page 76 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 early in the morning for his shop and therefore he cannot be believed to know all the affairs or incidents at his residence. It is submitted that CBI should have examined Ram Avtar Gupta to prove that the office of the society never worked at that address. It is submitted that in absence of the best witness, it would be highly unsafe to rely upon the testimony of PW73, who hardly remains at his residence. I disagree this this submission. No person can remain present 24 hours a day in his house throughout the year. However it does not mean that the residents of a house would not know as to what is happening in their family or at the residence. He is a trustworthy witness and I am convinced that prosecution has proved that no such office of this society was running at this address.
Now it is for U. S. Bhatnagar to show as to where he went for inspection. I may point that Ramesh Chandra A. R. (East) had appointed U. S. Bhatnagar without any approval from the Joint Registrar/Registrar. Further in his order Ex.PW79/2 (placed at page 8/C of D4), wherein AR (East) appointed U. S. Bhatnagar as Inspection Officer under Section 54 of DCS Act 1972 to verify the record of the society to bring out the factual position of the society, the address of the society has been given as 188, Pratap Nagar, Delhi110091. In his report, Ex.PW83/A14, U. S. Bhatnagar (in para
1) specifically mentions that he visited the office of society at C90A, CC No. 43/2010 Page 77 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Janata Garden, Pandaw Nagar, Delhi110091 on 22.12.2003, where he met G. D. Aggarwal, the Secretary of the society. Apart from it, he also signed at point Q370 at the inspection report Ex.PW83/A13, which also shows the address as C90A, Janata Garden, Pandaw Nagar. U. S. Bhatnagar has been unable to explain to this court as to when as per the order the address of Pratap Nagar was given to him, how he reached C90A, Janta Garden, Pandaw Nagar. Moreover, PW73 Rakesh Gupta has also testified that no society functioned at the said address. This proves that his report Ex.PW83/A14 and the report Ex.PW83/A13 are fake reports. At Q369, on the inspection report Ex.PW83/A13, the office bearers of the society as signed as "G.D. Aggarwal". As per the GEQD report, this tallies with the specimen signatures of Gokul Chand Aggarwal. This aspect would be further elaborated while discussing the role of Gokul Chand Aggarwal. Sufficient it to say that not only prosecution has been able to prove that the proceeding of inspection shown to have been conducted by U. S. Bhatnagar are totally fake and that he was very much in conspiracy with Gokul Chand Aggarwal (A7).
Narayan Diwakar (A3) Dr. Sushil Kumar Gupta, adv. argues that as per charge sheet, the society was wound up on 23.3.1979. It is argued that this is not a correct averment and that in fact on this date the winding up CC No. 43/2010 Page 78 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 proceedings were initiated. Ld. Counsel has drawn my attention to an averment in the charge sheet, wherein it is stated that on 21.2.1989, the liquidator wound up the society. It is argued that in fact even on this date the liquidation proceedings were not complete. My attention has been drawn to Section 19(5) of DCS Act, which deals with the cancellation of the society and dissolution of the society. It is argued that the Registrar, in this case, did not proceed under Secti8on 19(5) of DC Act rather he proceeded under Section 63(2)(b) of DC Act and that the Registrar had cancelled the winding up order in exercise of the powers under Section 63(3) of DCS Act. Ld. Defence Counsel argues that Section 66(3) of DCS Act provides for filing of an appeal against winding up order made by Registrar under Section 63 of DCS Act, which means that when Registrar passes an order of winding up and when he passes an order of cancellation the winding up order, he acts under judicial/quasi judicial powers. My attention has been drawn by Ld. Defence Counsel to Section 6 of Indian Penal Code as well as to illustration (b) of it, which is reproduced as under :
6. Definition in the Code to be understood subject to exceptions. Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled CC No. 43/2010 Page 79 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration.
(a)..........
(b) A, a policeofficer, without warrant, apprehends Z, who has committed murder.
Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that "nothing is an offence which is done by a person who is bound by law to do it".
It is argued that once a society is not liquidated within three years, the society automatically revives and winding up order losses its steam. Therefore, it is argued that Narayan Diwakar (A3) had no option but to revive such a society. It is argued that in none of the cases, Narayan Diwakar (A3) had rejected application for revival as he was bound to revive the society by the mandate of law and therefore Section 6 of IPC comes to the protection of Narayan Diwakar (A3), as, has been clarified in illustration (b) of this Section. By further elaborating this issue, Ld. Defence Counsel has drawn my attention Rule 105 of DCS Act 1972, which is reproduced as under :
105. Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the CC No. 43/2010 Page 80 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 period is extended by the Registrar.
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
It is submitted that as per the rules the winding up proceedings shall be closed within one year from the order of winding up unless the period is extended by the Registrar. It is submitted that the Registrar can extend this period for three years and shall immediately after the expiry of three years from the date of the order of winding up society, deem for liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings.
Thus not only Registrar was within his rights to cancel the winding up order but it would be more appropriate to say that he was bound by the law quoted above to cancel the winding up order and revive the society.
Stressing the point that the Narayan Diwakar (A3) was acting in CC No. 43/2010 Page 81 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 judicial capacity, Ld. Defence Counsel has drawn my attention to Section 77, 78 and 79 IPC, which are reproduced as under :
77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
78. Act done pursuant to the judgment or order of Court - Nothing which is done in pursuance of, or which is warranted by the judgment or order of, aCourt of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
My attention has also been drawn to Section 76(j) of DCS Act, which provides appeal against the winding order under Section 63 of DCS Act. Ld. Defence Counsel has drawn my attention to Section 19 IPC, which defines judge. I reproduce the same as under :
CC No. 43/2010 Page 82 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
19. "Judge". The word "Judge" denotes not only every person who is officially designatred as a Judge, but also every persons, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.
I have considered the submissions of Dr. Sushil Kumar Gupta, adv. for accused and I find no substance in this submission. To say that while exercising the powers under Section 63(3) of DCS Act in cancelling of winding up order of a society, the Registrar was acting CC No. 43/2010 Page 83 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 judicially has not been accepted by Delhi High Court in Narayan Diwakar Vs CBI 129 (2006) DLT decided on 7.3.2006. This petition was filed by this accused raising same pleas and claiming the protection available to a judge under Section 19 IPC and Section 2 of Judges (Protection) Act 1985. Hon'ble Mr. Justice R. C. Jain of Delhi High Court rejected the said pleas of this accused and opined as under
:
"15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Cooperative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large ramifications in the society.
Thus, it is clear that he cannot avail the protection of being a judge while passing the revival order, if prosecution is able to prove 'bad faith' on his part.CC No. 43/2010 Page 84 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Ld. Defence Counsel for accused has further argued that Registrar had taken all the precautions before passing the revival order. My attention has been drawn to the fact of the note sheet dt. 13.01.2004 wherein he directed the AR(East) to conduct physical verification of members as well as spot verification at random. Ld. Defence Counsel has drawn my attention to the noting of AR(East) dt. 20.01.2004 (Ext.PW79/Q) wherein he appointed Faiz Mohd. for conduct of the physical verification of members as well as spot verification at random. It is argued that when favourable reports have come and the members were verified, Narayan Diwakar had no reason to believe that the fake members have been created in this society. In order to understand the submissions of Ld. Defence Counsel, I reproduce the relevant note sheets as under:
(10/N) 13012004 Mrs. Rita Kaul, Adv. representing the Society present. Reader is directed to send the file to the concerned zone for verification of records pertaining to membership, audit and election, etc. Besides, AR concerned is directed to conduct a physical verification of members as well as spot verification, at random.
In view of the above, proceedings adjourned for 2912004.
CC No. 43/2010 Page 85 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
Ext.PW79/P (N.DIWAKAR)
R.C.S.
As approved Sh. Faiz Mohd., GdII of
NW Zone may be deputed for conduct of physical
verification of members as well as spot verification at random. Further society may also be directed produce the complete original record pertain ing to membership, election, audit etc. for verification.
Ramesh Chandra 20.01.2004 (AR East) Ext.PW 79/Q Ld. Defence Counsel has drawn my attention to the detailed note sheets with the heading "Verification of Records of EPF Staff CGHS Ltd." placed at page 11/N to 19/N Ext.PW79/R vide which the records were checked in the office of AR(East) and he made recommendation for revival of the society u/s 63(3) of DCS Act, 1972. My attention has been drawn to the order of Narayan Diwakar dt. 29.01.2004 wherein he has dealt with the submissions of advocate for CC No. 43/2010 Page 86 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 the society as well as the AR of the concerned zone and thereafter had passed a reasoned order. Here, I would like to point out that the prosecution has tried to find the malafide in this order because in this order it has been mentioned that the Dy. Registrar who had passed the winding up order was not delegated with the powers of Registrar by the competent authority. Ld. Public Prosecutor has drawn my attention to the statement of Ashok BakshiDy. Registrar (PW70) who has testified and proved that such powers were indeed delegated upon him. In answer to this argument, Ld. Defence Counsel argues that in the winding order of Dy. Registrar, he has nowhere referred to the notification vide which the powers of Registrar were delegated upon him. Therefore, it is argued that Narayan Diwakar committed a genuine mistake and therefore his order dt. 29.01.2004 cannot be termed as malafide on this count.
I would like to reproduce this order which is Ext.PW79/S which is as under:
29012004 Mrs. Rita Kaul, Adv. representing the Society present. The concerned zonal AR is also present and stated that an inspection u/s 54 of the DCS Act, 1972 was done by an Inspector of the Department who has given his favourable report. He further stated that he has checked up and verified each and every paper submitted by the Society. The Society has also submitted list of CC No. 43/2010 Page 87 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 members as on date. The documents regarding holding of election are also scrutinized and found the same in order and as per DCS Act and Rules. He further stated that the Society has prepared its books of accounts and submitted unaudited accounts till 31032003. The concerned zonal officer finally recommended the case for the revival of the Society.
The winding up order passed by the then Dy. Registrar shows that proper procedure was not followed while winding up the Society as the reasons given were not adequate for initiating such an extreme step for winding up the Society. If there was any mis management in the Society, it was appropriate to initiate action u/s 32 for setting the right working of the Society and then restoring the cooperative management. Such orders for winding up without proper application of mind is not conducive for revitalization and restrengthening of the cooperative movement in Delhi.
During the course of arguments, the counsel of the Society also mentioned that Dy. Registrar who had passed order u/s 63 of DCS Act, 1972 was not competent to decide the matter u/s 63.
There is nothing on record that such powers u/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time order was passed, large number of societies were wound up without any valid and convenient reasons. It also appears that the Society was not given sufficient opportunity either to reply to the SCN issued or to rectify the shortcomings mentioned in the notice issued by the RCS.
In view of the above, case is reserved for orders.
Ext.PW79/S (N.DIWAKAR)
R.C.S.
CC No. 43/2010 Page 88 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
Ld. Defence Counsel has drawn my attention to the order dt. 04.02.2004 passed by Narayan Diwakar and submits that he has considered the submissions of the parties in detail and while reviving the society, he took further step to order election in the society by appointing Sanjeev Bharti, a GradeIII clerk in his office as Election Officer. I would like to reproduce the entire order as under:
IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW DELHI110001.
Case No. RCS/173/03/16873 Dated: February, 4th, 2004 Ext.PW70/DA ORDER Whereas, the E.P.F. STAFF COOP. GROUP HOUSING SOCIETY LTD., (Now RUCHIKA APARTMENT COOPERATIVE GROUP HOUSING SOCIETY LTD.) (Regd. No.127/GH), C90A, Janta Garden, Pandav Nagar, Delhi110091, was issued a Show Cause Notice, on the following grounds, as per the report of AR(East):
1) The Society failed to achieve its objects.
2) The Society failed to fulfill the statutory obligations as provided under DCS Act and Rules & registered byelaws of the Society framed there under.
3) The Managing Committee of the Society and other members did not take interest in the affairs of the Society.
And whereas, the Society failed to respond to the above mentioned Show Cause Notices u/s 63(2) (b) of the DCS Act, 1972, the Society was put up under Liquidation vide this office order No.F.47/127/78/H/Cop./159197 dated 23031979.
CC No. 43/2010 Page 89 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 And whereas, the Society vide its letter dated 01102003, requested for revival of the Society u/s 63(3) of the D.C.S. Act, 1972 and has requested the Registrar Cooperative Societies for the withdrawal of winding up order dated 23031979.
And whereas, Mrs. Rita Kaul, Adv. representing the Society appeared before this court on the dates fixed and stated that in the Special General Body Meeting held on 13072003, elections for the Managing Committee of the Society were got conducted strictly in accordance with the provisions of law. It is also stated that the list of 143 members as on date has been drawn up in the prescribed proforma on the basis of the record of the Society and has been submitted for verification. As regards Audit, it is mentioned that all the pending accounts are ready for Audit and filed photocopies of the unaudited accounts of the society till 31032003. The President and Secretary of the Society made oral commitments to fulfill all the statutory liabilities in future and also filed affidavits dated 2212004 to this effect. They were directed to file all original records before the Asstt. Registrar concerned for verification.
An whereas, the Asstt. Registrar (East) has mentioned the followings in his report:
1) that the original records were produced by the society and got verified.
2) that the society has submitted a list of 143 members as on date and un audited accounts till the period ending 31032003.
3) that the records regarding holding of election of M.C. of the Society on 1372003 have been verified and found in accordance with the provisions of the cooperative law.
4) that the application forms, share money receipts and resolution of M.C. Of newly enrolled members have also been verified from the original records.
5) that fresh affidavits in respect of all 143 members of the society have also been filed by the Society.
6) that an inspection u/s 54 of DCS Act, 1972 was conducted to ascertain the existence and functioning of the Society and the Inspector, who conducted the statutory inspection u/s 54 of the DCS Act, 1972 has reported that the Society is very much in existence.
7) That a physical verification of members, at random was also conducted by an Inspector of this Department, who h as given his favourable report.
8) that the society has tried to remove the shortcomings on the basis of which CC No. 43/2010 Page 90 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 the society was put under liquidation.
9) that the M.C. of the society was continuously managing the affairs of the society and was instrumental in its effect to revive the society.
Apart from the above, during the course of proceedings, the concerned zonal AR appeared and stated that in absence of finalization of liquidation proceedings, action initiated u/s 63 of D.C.S. Act, 1972 has become a nullity and recommended the case of the Society for revival.
I have gone through the submissions made and affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (East). It was mentioned during the course of proceedings that the winding up order passed by the then Dy. Registrar, was not in accordance with the laid down procedure, while winding up the Society as the reasons given were not adequate for initiating such an extreme step leading to the winding up of the Society. If there was any mis management in the Society, it was appropriate to first initiate action u/s 32 of DCS Act, 1972 for placing the Society under supercession for setting right the working of the Society and then restoring the cooperative management. Such orders for winding up of a Society without proper application of mind is not conducive for revitalization and restrengthening of the cooperative movement in Delhi. Moreover, during the course of arguments, the counsel of the Society also mentioned that Dy. Registrar, who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such an order as only the Registrar is competent to decide the matter u/s 63. There is also nothing on record to show that such powers u/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time this order was passed, a large number of Societies were wound up in a mechanical manner without any valid and convincing reasons. It also appears that the Society was not given sufficient opportunity either to reply to the SCN issued to the Society or to rectify the shortcomings mentioned in the notice issued by the RCS.
In support of the above contention, it is pertinent to add t hat vide his Order No. PA/RCS/2000/733745 dated 782003, my Ld. Predecessor had issued a detailed instructions regarding the revival of those societies which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons pointed out in the said order. He has further observed in the said order that the societies have been liquidated on veryvery trivial matters like non attendance in the office of the society's representatives or non production of records and thereafter CC No. 43/2010 Page 91 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 liquidation proceedings have been taken up unilaterally. In some cases even communication to societies has not been sent. It is further observed that all such proceedings u/s 19, liquidation and revival u/s 63 and supercession u/s 32 need to be taken up in a more reasoned manner and after following due process of law, i.e. by giving an opportunity of showing cause to the concerned Managing Committee of the Society and the speaking order has to be passed. In view of this, he directed that "henceforth, all the proceedings u/s 19 & 63 of the DCS Act, 1972 should be taken up in the Court of R.C.S."
Besides, on 18121991, while disposing of an appeal against the winding up order of the Registrar, Cooperative Societies in respect of New Inderprastha CGHS Ltd., u/s 76 of the Delhi Cooperative Societies Act, 1972 (Mrs. Balwinder Kaur and Ors., Appellants Vs RCS and Ors.), the Hon'ble Lt. Governor had observed as under: "I am inclined to agree with the submissions made by the Ld. Counsel for the appellants that the winding up of a Society is an extreme step and it should be used as a last resort. In the present case, a liberal view needs to be taken and the Society may be afforded another opportunity for its revival. The Society may be revived under the directions of the Registrar, Cooperative Societies, if necessary, under an Administrator."
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I. N. Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 23031979 issued to the E.P.F. STAFF COOP. GROUP HOUSING SOCIETY LTD.,(Now RUCHIKA APARTMENT COOPERATIVE GROUP HOUSING SOCIETY LTD.) (Regd. No. 127/GH), in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the E.P.F. STAFF COOP. GROUP HOUSING SOCIETY LTD.,(Now RUCHIKA APARTMENT COOPERATIVE GROUP HOUSING SOCIETY LTD.)(Regd. No. 127/GH), is hereby revived with immediate effect, as the concerned Asstt. Registrar has already verified the list of 143 members, submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Sanjeev Bharti, Gr.III of this department as Election Officer to conduct the election of the Managing Committee of the Society CC No. 43/2010 Page 92 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 within two months of the issue of this order. The President/Secretary of the Society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the Society as per law.
Announced.
(N.DIWAKAR) REGISTRAR COOP. SOCIETIES Copy to:
1. The President/Secretary, E.P.F. Staff CGHS Ltd., (Now Ruchika Apartment CGHS Ltd.)
2. Joint Registrar (East)
3.√ Asstt. Registrar (East)
4. Asstt. Registrar (Audit)
5. Sh. Sanjeev Bharti, Gr.III, Election Officer
6. Order file.
(N.DIWAKAR) REGISTRAR COOP. SOCIETIES It is, therefore, argued by Ld. Defence Counsel that the act of accused Narayan Diwakar was in judicial capacity and under bonafide belief that all the records of the society were correct. It, therefore, argued that accused Narayan Diwakar may be acquitted.
I have considered the submissions, made on behalf of Narayan Diwakar (A3) which, to my mind, are specious. The arguments of Ld. Counsel that the original records were verified by the Assistant Registrar (East), inspection under Section 54 of DCS Act 1972 had already been conducted by Inspector and a random physical CC No. 43/2010 Page 93 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 verification of the members has also been done by the inspector of the department, therefore, he had no reason to believe any bungling in the whole affairs. However, he has been unable to explain that a society, which has been wound up as early as in 1979, how its officer bearers are coming to the RCS after lapse of about 24 years. The winding up order Ex.PW70/A1 clearly mentions that Sh. M. L. Ahuja was appointed as liquidator. Therefore, it is clear that about 24 years before the application came for revival, winding up order had been passed and liquidation proceedings had started. This court is not inclined to go into the question as to whether the registrar had the powers to revive the society or not, simply because this court is not sitting in appeal over the said order. Similarly this court must not enter into the question of legality or illegality of the order. In fact, Ld. Public Prosecutor as well as Ld. Defence Counsels have fallen in error in arguing as to whether the registrar had the powers and jurisdiction to revive the society, which had already been wound up. To my mind, this is not the scope of this trial. The job of this court is to draw appropriate inference from the notings and the orders passed by the public servants, which this court is entitled to as per the dicta in Runu Ghosh case. Therefore the complex work which is required to be done is to explore as to whether revival order Ex.PW70/DA dated 4.2.2004 (Ex.PW79/T) indicates bonafides or malafides.
CC No. 43/2010 Page 94 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 First of all, it was a matter of immediate attention that the society is coming after 24 years of this winding up order. It is such a long time that the grave suspicion must arise to any ordinary officer. What compounded the situation was that the file of the RCS was stated to be missing. When a copy of winding up order was seen by Registrar in which a liquidator had been appointed, a natural inquiry would have been to inquire from the liquidator as to what happened to the society and its members. Further more, when the office file was being reconstructed by taking the documents from the persons, who were representing the society, no officer in ordinary course of official business could have ignored these facts. I may point out that it was a matter of importance because the Registrar was to recommend to DDA the allotment of land to this society. How costly is the land in Delhi does not need any speculation. In such situation, the first and foremost and a normal act on behalf of RCS was to ask his subordinates to seek documents of identity of, at least, the office bearers, who were coming to the RCS office, if not the identity proofs of all the members. A random verification of the members by Faiz Mohd. also shows that only the copy of share certificate and the copy of receipt of membership fee of Rs.110/ was placed along with his verification certificate but copy of identity card, election card etc. of none of the members was taken by Faiz Mohd. This basic work was CC No. 43/2010 Page 95 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 not done by any person starting from the dealing clerk upto the Registrar. It is clear that it was not done because none existed. The most important aspect is that the society was formed by the staff members of EPF Department. None of the RCS officials asked for any proof from the members to show the documents that they were staff members of EPF Department. I may point out that the freeze list of 92 members (Ext.PW62/B placed in D6) had already been sent to DDA in the year 1976 and many members have come to testify in this court and have stated that society was formed by the employees of Provident Fund Organization (EPF). Whereas not even a single member of the new list approved by RCS was found to be genuine. No RCS official including Registrar issued a direction to show the proof if the members and office bearer were EPF employees. This means that they knew that all the members were fake. Hence this exercise was not conducted. In fact this is the reason that name of EPF Staff CGHS was changed to Ruchika CGHS with a view to conceal as to who were the actual members of the society.
The first hearing before Narayan Diwakar was held on 13.1.2004, wherein reader was directed to send file to the concerned zone for verification of the records pertaining to membership, audit and election etc. The Assistant Registrar deputes Faiz Mohd. for conducting physical verification of the members as well as spot CC No. 43/2010 Page 96 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 verification at random of the society and it was also directed to produce the complete original records pertaining to membership etc. I may point out that AR (East) wrote a detailed note dated 28.1.2004 Ex.PW79/R in which he mentions that G. D. Aggarwal, Secretary of the society, had submitted that the election of Managing Committee was held on 13.7.2003. However Ramesh Chandra also does not seek for any identity card or copy of it. Thereafter, on 29.1.2004, Narayan Diwakar gives a hearing in this case and Ms Rita Kaul, adv. represent the society. I have already reproduce the order dated 29.1.2004 as above, which is Ex.PW79/S (placed at page 20/N of D4). A few important facts appear from this note sheets. First, the zonal Assistant Registrar recommends the case for revival of the society. Second, Registrar opines that the winding up order passed by this Deputy Registrar was mechanical and third, Deputy Registrar was not competent to exercise powers under Section 63 of DCS Act because there was nothing on record to show that such powers was delegated to him by the competent authority. It is pertinent to note that CBI had already proved by examining Sh. Ashok Bakshi (PW89) that actually Lt. Governor had delegated the powers of Registrar to Deputy Registrar. The tone and tenor of the order dated 29.1.2004 shows that the entire order is aimed at finding faults in the winding up order and no one including the RCS had looked into the basic question as to CC No. 43/2010 Page 97 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 how society has suddenly woken up after 24 years and coming to the RCS specially in this circumstances when the original file of the RCS was stated to be missing. This proves the malafide on part of Narayan Diwakar in passing of order. Further the revival order dated 4.2.2004 reflects that although Narayan Diwakar has gone through the affidavits filed by the President and Secretary of the society but he does not even think of asking the identity of the persons, who were submitting the said affidavits. No inquiry was made as to whether they were members of EPF organization. The entire order would show that Narayan Diwakr is playing with the provisions and finding fault with the Deputy Registrar as to why he had not first initiated the action under section 32 of DCS Act. Further, he has noted that vide an order dated 8.7.2003, the previous Registrar had issued instructions that earlier the societies were liquidated on very trivial matters without issuing any notice to the concerned society and therefore in the matters of the revival of the society a more reasoned view should be taken. In this long detailed order, the Registrar was discussing at length that the winding up order was not correct and therefore he is reviving the society but he even did not note that in the letter Ex.PW79/A, the address of the society i.e. C90A, Janta Garden, Pandaw Nagar, Delhi110091 is mentioned but nowhere it is mentioned in the letter that it had changed its earlier address i.e. CC No. 43/2010 Page 98 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 1/68, Pusa Road, New Delhi. The copy of resolution of Special General Body Meeting dated 13.7.2013 resolves the change of address from EPF CGHS to Ruchika Apartments CGHS but no inquiry from any side including RCS raised any objection as to why the change of address was not intimated to the society in its letter dated 1.10.2013. It is pertinent to note that in cross examination by Ramesh Chandra, the Investigating Officer has testified that the file does not contain the noting that though file pertains to Central Zone but how the file is being dealt in East Zone.
All these facts i.e. the application for revival of the letter coming after 24 years of winding up, missing of the original records, not seeking any documents of the identity at least of the office bearers if not of all the members, the laboured approach of Narayan Diwakar in finding fault in the winding up order mentioning the wrong facts that the Deputy Registrar was not delegated with the powers under Section 63 of DCS Act, no inquiry from liquidator and Delhi State Cooperative Bank about the status of society, all lead to the conclusion that Narayan Diwakar was hobnobbing with his subordinate staff as well as with the office bearers of the society, who wanted to get the society revived at all cost. I would discuss later on as to how inspection report, physical verification report etc. were just made to fill the belly of the file and there was no conscious and honest effort CC No. 43/2010 Page 99 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 to verify the genuineness of the members of the society.
Sanjeev Bharti (A6) Sh. Anil Kumar, adv. for this accused has strongly assailed the sanction to prosecute this accused. The arguments of Ld. Defence Counsel are same as that of U. S. Bhatnagar (A4). The sanction (Ex.PW97/B) was accorded by Sh. Vijay Kumar, the Director of Education to prosecute A6 as per Section 19 of the Prevention of Corruption Act. Since Sh. Vijay Kumar was posted Geneva during the trial, the aforesaid sanction was proved by his subordinate namely Vikas Kalia (PW97).
I reject the submissions of Ld. Defence Counsel on the same grounds, which have been mentioned by me while dealing with the role of accused U. S. Bhatnagar (A4).
I have perused the sanction order Ex.PW97/B and I find that it is detailed order in which facts of the case have been written, which shows proper application of mind by Sh. Vijay Kumar, the the Director Education. The competence of Sh. Vijay Kumar to accord sanction under Section 19 of P. C. Act has not been disputed by the accused.
I am of the opinion that for proving the application of mind, the court has to see the reasons given in the sanction order. I have perused the sanction order, it mentions the facts as well as the reasons CC No. 43/2010 Page 100 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 as to why the sanction has been accorded. Therefore, the sanction does not suffer from non application of mind.
Sh. Anil Kumar, adv. for accused Sanjeev Bharti (A6) argued that the society was revived on 4.2.2004 and the freeze list was sent to DDA on 6.2.2004. Ld. Counsel has drawn my attention to the letter dated 14.3.2004 Ex.PW83/A9 (placed at page no. 288/C of the file D4, collectively exhibited as Ex.PW63/C). It is submitted by Ld. Counsel that the offence, if any, was complete the day when freeze list was sent by RCS on 6.2.2004, whereas the election was held by accused Sanjeev Bharti (A6) on 14.3.2004 in the office of RCS. Therefore, it is argued that the election in question is beyond the scope of extent of the conspiracy, which came to end when its purpose was achieved by sending the freeze list.
Ld. Defence Counsel has drawn my attention to the charge sheet, wherein it is written that accused Saneev Bharti (A6) did not issued any agenda. Refuting this allegation, Ld. Defence Counsel submits that prosecution did not examine any witness to prove that the election agenda was not issued. None of the witnesses, who were the members of this society, testify not having received any such agenda. Ld. Defence Counsel has drawn my attention to the above stated letter dated 14.3.2004 written by accused Sanjeev Bharti (A6) to AR (East), wherein it is specifically mentioned that agenda notice CC No. 43/2010 Page 101 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 dated 16.2.2004 was issued. My attention has also been drawn to page 286/C, which are proceedings of the election in which he has specifically stated that he had issued agenda notice dated 16.2.2004 to all the members of the society by UPC, as per the list of members provided by the society. Therefore, it is argued that the elections were held after sending the notices and accused Sanjeev Bharti (A6) did not have any reason to disbelieve that the persons, who had attended the meeting, were not the members. It is argued that the election was conducted in the office of RCS and every thing was done in the good faith by Sanjeev Bharti (A6).
Ld. Defence Counsel has drawn my attention to the charge sheet, wherein it is stated that GEQD report shows that the signatures of the members were forged by accused Gokul Chand Aggarwal (A7). Ld. Public Prosecutor admits that this fact is not substantiated by GEQD report. Ld. Defence Counsel further submits that holding of election was not a precondition for revival of the society.
My attention is drawn by Ld. Defence Counsel to the proceedings of election of the society held in the year 2003 and submits that even the list of members, provided to the election officer, contained the same members, which have been mentioned in the list of the members, who had taken part in the election of 2003.
I would point out that A6 in his letter dated 14.3.2004 CC No. 43/2010 Page 102 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Ex.PW83/A9 (placed at page no. 288/C of D4) to Assistant Registrar (East) specifically mentions that the copies of the minutes of special general body meeting in which the office bearers were elected was annexed along with the letter. Along with this application, the photo copies of the proceedings register dated 14.3.2004 is attached. Apart from it, a separate list of the elected candidates (which is Ex.PW83/A34) was prepared by this accused to be placed on the notice board of the society and notice board of the election officer. I reproduce the list of elected members as signed by Sanjeev Bharti as under :
"S.No. Name of Candidate MS No. For the post of President(One) 1. Sh. Madan lal 92 For the post of Vice President(One) 1. Sh. Bodh Prakash 72 For the posts of Managing Committee Members(Three) 1. Sh. G. D. Aggarwal 132 2. Sh. Rajender Kumar 57 3. Sh. Ram Bhagat 110 For the posts of women Managing Committee Members(Two) 1. Smt. Chander Kanta 62 2. Smt. Usha Saxena 61 (SANJEEV BHARTI) Election Officer Ruchika Apartment Coop. G/H Society Ltd.
The copy of the proceedings register annexed with the letter Ex.PW83/A9 are placed at 287/C and 286/C of D4, which shows 42 members having taken part in the said election. However CC No. 43/2010 Page 103 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 investigation has proved that all these 42 member, who have been shown to have attended the general body meeting are non existent as proved by the prosecution because the letters sent by CBI containing the notices to them have either returned with the report that no such person resided at the said address or have returned back with the report that no such address exists. It is pertinent to note that although as per this election, G. D. Aggarwal has been shown to have been elected as a member of managing committee but in the proceedings, his name does not figure in the list of members shown to have attended the meeting. The letter Ex.PW83/A9 is being reproduced as under :
To:
The Asstt. Registrar (East) O/o registrar Coop. Societies, Govt. of NCT of Delhi.
Parliament Street, New Delhi - 110001 Sub : Election of Managing Committee of the Ruchika Apartment Coop. Group Housing Society Ltd.
Sir, The undersigned was appointed as Election Officer vide order No. RCS/173/03/16873 dated 422004 to hold the election of the Managing Committee of the Ruchika Apartment CGHS. Accordingly, the agenda notice dated 16022004 was issued for holding election of One Post of President, One Post of Vice President and Five Posts of MC Members, out of which Two Posts were reserved for Women Members of the society. The meeting was called on 14032004 in the premises of the O/o R.C.S., Old Court's Building, Parliament Street, New Delhi1 and the results of the same were declared on the same day. Minutes of the Special General Body Meeting were recorded. Copies of the minutes of the CC No. 43/2010 Page 104 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Special General Body Meeting and Certificate in respect of the elected (unanimously) Managing Committee members are enclosed for information and necessary action at your end.
Thanking you, Yours faithfully, (SANJEEV BHARTI) Election Officer The Ruchika apartment CGHS, Ltd.
Copy to : The President/Secretary of the Society along with Proceeding Register (in original) and Certificate of elected members.
(SANJEEV BHARTI) Election Officer The Ruchika Apartment CGHS Ltd.
This letter mentions following facts:
a) Agenda notice dated 16.2.2004 was issued for the holding of the elections.
b) The meeting for the election was called in the premises of office of RCS.
c) The result of unanimous election were declared on that very day.
No copy of agenda notice has been placed along with this letter by Sanjeev Bharti. No nomination forms filed by any of the candidates was annexed. Sanjeev Bharti argued that he has sent the agenda notice by UPC. If so where are the postal receipts and why the same were not annexed with the letter. I have already discussed that CC No. 43/2010 Page 105 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 no such members exists. Therefore, had A6 sent the agenda notice through UPC, the notice must have returned back undelivered, which is not the case here. I may mention here that along with his letter Ex.PW83/A9, he has only annexed the photocopy of minutes of special GBM dated 14.3.2004 and list of elected members. I also do not find any substance in the arguments that the proceeding register was kept and whosoever came, he signed the same and that he had not business to ask for the identity of those members. I am of the opinion that at least he should have asked for the identity documents of the officer bearers. On the point as to how G. D. Aggarwal has been shown to have been elected in his list Ex.PW83/A34 despite the fact that his attendance has not been shown in the proceeding register, it is argued by him that the copy of the proceeding register at page 287/C and 286/C has not been proved by prosecution. I disagree with this submission. This copy of the proceeding register is part of the letter by Sanjeev Bharti, which is exhibited as Ex.PW83/A9. Even if it is presumed that this letter is not proved as per law, he must explain as to where is the copy of the minutes of special general body meeting, which has been referred to by him in this letter.
Therefore the material before this court is that all the office bearers, shown in the list Ex.PW83/A34, are fake, all the members CC No. 43/2010 Page 106 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 shown in the copy of proceedings attached by Sanjeev Bharti along with his letter Ex.PW83/A9, are non existent. No copy of agenda notice dated 16.2.2004 as stated in this application is annexed with this letter. It is also strange that at least he does not check the identity proof of the candidates, who applied for the post of office bearers. No nomination forms were available on record of election officer i.e. A6. Moreover, it is interesting to note that normally such election should have taken place at the registered office of the society but instead it is shown to have been conducted at the office of RCS. As per the proceeding register as well as the record of RCS, the society had changed its address to C90A, Janata Garden, Pandaw Nagar, Delhi. The prosecution has examined PW73 namely Rakesh Gupta, who resides at this address. This witness has proved that the society never worked at this place. This appears the reason as to why Sanjeev Bharti had shown the venue of the general body meeting of the society at the RCS office.
Accordingly I am fully convinced that this is a bogus report and the election of the office bearers is a sham proceedings.
I also disagree with the submissions of Ld. Defence Counsel that his act is beyond the purview of conspiracy. It must be kept in mind that conspiracy is a continuing offence (ref. AIR 1993 Supreme Court 1637). In the present case the conspiracy did not end with the revival CC No. 43/2010 Page 107 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 order dated 4.2.2004, nor it ended with sending of the freeze list on 6.2.2004. Rather it continued beyond it. As per the revival order dated 4.2.2004, the Registrar had appointed Sanjeev Bharti to conduct the election of the society within two months of the said order. The sham election, conducted by Sanjeev Bharti, was in compliance and continuation of the said order and by this fake election, Sanjeev Bharti gave a stamp of genuineness to falsely show that the society was actually in operation.
Faiz Mohd. (A5) Sh. S.K. Bhatnagar, Adv. has argued that A5 had visited the addresses of 16 members during the period 22.01.2004 to 24.01.2004 and had verified them. It is argued that prosecution has not led any evidence to that effect and has not examined any witness to prove that A5 did not. It is further argued that as per the charge sheet, these 16 members were actually nonexistent and their signatures had been forged by Gokul Chand Aggarwal. It is argued that there is no rule or law that Faiz Mohd. (A5) was under an obligation to visit the address of 16 members for their verification. It is argued that his duty is to verify the 16 members from the records of the society by going to the spot i.e. the office of the society. It is argued that A5 had only verified the 16 members from the records of the society at its office. It is argued by Sh. S.K. Bhatnagar, Adv. that A5 was not supposed to CC No. 43/2010 Page 108 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 personally meet the members at their addresses. My attention has been drawn by Ld. Defence Counsel to Section 93 of DCS Act wherein it is specifically written that no court can question the acts of officials of Registrar. It is argued that act of A5 was in the direction of promotion of cooperative movement and he had acted in the spirit which has been mentioned in Rule 3 of DCS Rules, 1972. It is argued that house of Faiz Mohd. was searched by CBI but nothing incriminating was found against him. No telephonic records showing his complicity with other accused persons were collected by the CBI.
I do not find any substance in the arguments of Ld. Defence Counsel. This court is not examining the legality of the action of Faiz Mohd. Rather this court is examining as to whether the action of Faiz Mohd. was abuse of his official position and was part of the conspiracy in question. Hence the protection given under DCS Act would not come to his rescue. True that no telephonic records showing Faiz Mohd. contacting Gokul Chand Aggarwal had been collected by CBI, which to my mind also a deficiency in investigation, but this itself would not vitiate the prosecution case, specially when very cogent evidence is coming on record.
The defence argument that Faiz Mohd. verified the members from the records of the society at the office of the society falls flat in view of the cogent evidence that the office of society never existed at CC No. 43/2010 Page 109 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 C90A, Janta Garden, Pandaw Nagar, Delhi. This aspect has already been discussed by me in earlier part of the judgement. Further more, the Investigating Officer had sent the letters to all the members (including the 16 members verified by Faiz Mohd.) shown in the new list at their addresses given in the said list, returned back undelivered. The prosecution has examined the postman to prove this fact that either the person did not exist at the address or the address did not exist. Hence Faiz Mohd. has given a certificate of genuineness to 16 fake members. Further more, the GEQD report also proves that Gokul Chand Aggarwal had forged signature of one member and had done some writing works in respect of the particulars of another member. This shows that accused Faiz Mohd. was very much in collusion with Gokul Chand Aggarwal. However this aspect and GEQD report would be discussed by me in the role of Gokul Chand Aggarwal.
P.K. Thirwani (A8) Ld. Defence Counsel argues that the signatures of the office bearers or balance sheets were not put in presence of A8 and that A8 does not know as to whether the said signatures of the office bearers were genuine or forged. Regarding the "BRIEF SUMMARY OF THE SOCIETY", Ld. Defence Counsel submits that at Q1058, Q1059, Q 1060 have not been forged by A8, rather he had only written the names of the President, Secretory and Treasurer for sake CC No. 43/2010 Page 110 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 of record. I disagree with his submissions. There signatures are placed on the "BRIEF SUMMARY OF THE SOCIETY" which is Ex.PW83/A37 (D11) in end of this proforma. There is a heading " signatures"and below this heading, "PRESIDENT", SECRETARY" & "TREASURER" are printed. Below it the names of Madan Lal, G.D. Aggarwal and Rajinder Kumar are written in the form of signatures. It is clear the P.K. Thirwani has forged these signatures. Other wise, there is no reason as to why he should write the name under the column of signature. I point out that the column of names of managing committee members is very much available in the middle of this proforma. It has been left vacant by this accused. I am convinced that P.K. Thirwani was very actively in collusion with Gokul Chand Aggarwal who had also forged the signatures of office bearers on the balance sheet. Report of GEQD in respect of P.K. Thirwani would be discussed in the role of Gokul Chand Aggarwal. It is further important to note that A8 has shown to have conducted Audit at C90A, Janta Garden, Pandav Nagar, where the society never existed. I have already discussed while dealing with the role of Ramesh Chandra, A8 did not even see the Account Book of the society. It is obvious that it could not have been available with the person managing the fake society, because the account of the society with Delhi Cooperative Bank had already been closed.
CC No. 43/2010 Page 111 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Gokul Chand Aggarwal (A7) I have already discussed that the specimen hand writing/signatures taken by Investigating Officer from Gokul Chand Aggarwal are admissible in evidence. Now this court is to see as to whether the opinion of the hand writing expert namely Abhimanyu Kumar (PW83) can be relied upon or not. I reproduced the concerned portion of the testimony of PW83, which is relevant to Gokul Chand Aggarwal (A7) as under :
"I examined the Q11 Ext.PW79/Q, Q20 to Q22, Q24 to Q26, Q28 to Q30, Q32 to Q34, Q36 to Q38 Ext.PW79/W; Q42 & Q43 Ext.PW83/A42; Q44, Q45 Ext.PW83/A43; Q46, Q47 Ext.PW83/A44; Q48 to Q54 Ext.PW83/A45 (Colly); Q363, Q364 already exhibited as Ext.PW83/A31; Q367 already exhibited as Ext.PW83/A32; Q369 already exhibited as Ext.PW83/A13; Q372 to Q405 Ext.PW83/A46 (Colly); Q406 & Q407 already exhibited as Ext.PW70/A1; Q408 Ext.PW83/A47; Q409 to Q424 already exhibited as Ext.PW66/B; Q432 to Q625 (D3 already exhibited as Ext.PW63/B); Q627 & Q628 Ext.PW83/A48; Q633 & Q634 Ext.PW83/A49; Q636 & Q637 Ext.PW83/A50; Q639 & Q640 Ext.PW83/A51; Q654 & Q655 Ext.PW83/A52; Q657 & Q658 Ext.PW83/A53; Q660 & Q661 Ext.PW83/A54; Q672 & Q673 Ext.PW83/A55; Q675 & Q676 Ext.PW83/A56; Q678 & Q679 Ext.PW83/A57; Q687 & Q688 Ext.PW83/A58; Q690 & Q691 Ext.PW83/A59; Q696 & Q697 Ext.PW83/A60; Q699 & Q700 Ext.PW83/A61; Q705 & Q706 Ext.PW83/A62; Q750 & Q751 Ext.PW83/A63; Q810 & Q811 Ext.PW83/A64; Q864 & Q865 Ext.PW83/A65; Q873 & Q874 Ext.PW83/A66; Q930 & Q931 Ext.PW83/A67. All the aforesaid questioned writing and signatures were compared with the standard writings and signatures S41 to S827 (D29) purported to be of Gokul Chand Aggarwal, which are collectively exhibited as Ex.PW83/A68. It bears the seal of GEQD at points A on each page thereof, which I identify. The above marked signatures were all written by one and the same person. The same has been mentioned in my opinion/report (D30) at para 7 of the Ex.PW83/A2.
I examined the Q1054 (D11) Ext.PW83/A69; Q1056 already exhibited as Ext.PW83/A36; Q1067 to Q1069 already exhibited Ext.PW83/A39; Q1071 to Q1073 already exhibited as Ext.PW83/A40. All the aforesaid questioned writing and signatures were compared with the standard writings and signatures S41 to S51 & S57 to S69 (D29) purported to be of Gokul Chand Aggarwal, which are collectively exhibited as Ex.PW83/A68. It bears the seal of GEQD at points A on each page thereof, which I identify. The above marked signatures were all written by one and the same person. The same has been mentioned in my opinion/report (D35) at para 2 of the Ex.PW83/A5.CC No. 43/2010 Page 112 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Apart from the above questioned/writings and signatures, it has not been possible to express any opinion regarding the authorship on the rest of the items."
I would also like to reproduce the relevant portion of the cross examination by Sh. S. P. Mehta, adv. on behalf of A7 as under :
16.5.2012 ".......
Q Whether documents i.e. S41 to S51 are the specimen signatures of Madan Lal? A S41 to S51 are not the specimen signatures of Madan Lal. Rather, the same are the specimen handwriting of Gokul Chand Aggarwal as per the heading of those documents. Q Whether you got the specimen handwriting of S41 to S51 with the questioned signatures of Madan Lal marked as Q20 on Ext.PW79/10 page 282/C, Q24 page 281/C, Q28 page 280/C, Q32 page 279/C and Q46 & Q47 page 278/C? A The specimen handwriting in the name of Madan Lal (which is actually of Gokul Chand Aggarwal as per the information provided on the header) is also on S763 to S767 and S412 to S416 which was also verified alongwith S41 to S51 with the aforesaid signatures of Madan Lal, as mentioned in the question.
Q Is it correct that the commencing stroke of 'M' in the specimen handwriting of S41 to S51 is different from the questioned signatures marked as Q20 to Q36?
A It is incorrect.
It is correct that there are 18 specimen handwritings in the name of Madan Lal on document S41.
Q Is it correct that in all the specimen handwritings in the name of Madan Lal on document S41 to S51 the commencing stroke of letter 'M' is not similar and not in the same habit of writing as of Q20, Q24,Q28 and Q32?
A It is correct that the commencing stroke of letter 'M' of the word 'Madan Lal' is not similar in the document mark S41 to S51. (Voltd. But the same were observed on the other specimen document.)"
Cross examination dated 26.6.2012 "Q Is it correct that para 7 of your report with its reasons on page nos. 4 and 5 related to such para are not specific of specific questioned signatures with specific specimen signatures? A. I have examined those questioned signatures with all the specimen handwriting/signatures S41 to S827 altogether and my report and reasons are not specific as per questionnaire and my opinion is as a whole of that person concerned. Q Is it correct that the reasons of your report as mentioned at page 4 and 5 are w.r.t. few of the words of questioned signatures and sample signatures and not all the specific questioned signatures with specific specimen signatures? A. It is correct that my reasoned report is w.r.t. few of the words belonging to those questioned signatures /writings and specimen writing/signatures and it is also mentioned in the reasons.
Q Is it correct that all the specimen signatures sent to you for comparison by CBI bearing no. S41 to S827 were not bearing signatures of Gokul Chand Aggarwal at any place on those sheets of specimen signatures.
A. It is correct that all the said sheets do not bear the signatures of Gokul Chand CC No. 43/2010 Page 113 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Aggarwal but heading of all the specimen signature sheets as per writing of CBI, those were purported to be of Gokul Chand Aggarwal as I have to examine the handwriting characteristics only.
Q Is it correct that the alignment of writing and slant are major characteristics of writing habits and the same can't be changed easily? A. Alignment and slant of any writing is individual writing characteristics and habit. The person may try to disguise but in the long writing they give these writing habits. Q Is it correct that the signatures of Madan Lal in questioned signatures Q20, 24, 28, 32, 36, 46, 47, 1071, 810, 811, 1067, 1071, 1054 are hesitantly written?
A. It is incorrect. Q Is it correct that in the aforesaid questioned signatures of Madan Lal, inter consistency lacks? A. It is incorrect that inter consistency are lacking in the aforesaid questioned
signatures. (Voln. because handwriting is executed through hand and precision like machine by hand is not possible as such there is natural variation) Q Is it correct that questioned signatures of Madan Lal are written with finger cum wrist movement?
A. It is correct that questioned signatures of Madan Lal are written with finger cum wrist movement combined with forearm.
It is incorrect to suggest that the questioned signatures of Madan lal in questioned signatures are written with only finger cum wrist movement and not combined with forearm. Q Is it correct that writing skill in the questioned signatures of Madan lal is average?
A. It is correct. Q Is it correct that the speed of writing in questioned signatures of Madan lal is slow to medium? A. The speed of writing in questioned signatures of Madan lal is above medium. Q Is it correct that there is erratic movement in the questioned signatures of Madan Lal? A. It is correct. Q Is it correct that the line quality of questioned signatures of Madan Lal is defective? A. It is incorrect. Q Is it correct that the start of questioned signatures of Madan Lal, starting with word "M" is to the left of perpendicular? A. It is incorrect that in all the questioned signatures, the slant of start of word "M" is left to perpendicular. Q Is it correct that the spacing in the questioned signatures of Madan Lal is irregular? A. Spacing in the questioned signatures of Madan Lal is varying but it is as natural
variation bound to occur in a handwriting executed by hand. Q Is it correct that alignment in the questioned signatures of Madan Lal is mixed? A. Alignment in the questioned signatures of Madan Lal is varying but it is as natural variation bound to occur in a handwriting executed by hand. Q Is it correct that relative size and proportion of letters and their combinations in the questioned signatures of Madan Lal is irregular, i.e., 1 = 4 ? A. The relative size and proportion of different small letters in the questioned signatures are varying as per their over and upper loop.CC No. 43/2010 Page 114 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Q Is it correct that the nature of commencing and terminal strokes of questioned signatures of Madan Lal are blunt/irregular in the beginning and ending of the strokes? A. The commencing and terminal strokes of questioned signatures of Madan Lal are blunt/irregular in the beginning and ending of the strokes as it is natural variation bound to occur in a handwriting executed by hand.
Q. Is it correct that formation of characters and their combinations in the questioned signatures of Madan lal is unsymmetrical/irregular? A. It is correct formation of characters and their combinations in the questioned signatures of Madan lal is unsymmetrical/irregular as it is natural variation bound to occur in a handwriting executed by hand.
Q. Is it correct that pen pressure in the questioned signatures of Madan lal is medium to heavy?
A. It is correct that pen pressure is medium. (Voln. The pressure can only be assessed and cannot be measured) Q. Is it correct that size of questioned signatures of Madan lal is expanded?
A. It is correct. Q. Is it correct that the specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal are freely written? A. It is correct. Q. Is it correct that there is inter-consistency between the specimen signatures bearing
no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal?
A. It is correct. Q. Is it correct that the movement of specimen signatures bearing no. S 41 to S 51 and
S 412 to S416 in the name of Madan Lal are wrist predominated with forearm combined?
A. It is correct. Q. Is it correct that skill of specimen signatures bearing no. S 41 to S 51 and S 412 to
S416 in the name of Madan Lal is higher than average? A. It is incorrect. (Voln. Writing skill of specimen writing mentioned above is average.) Q. Is it correct that speed of writing of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is fair degree and slow?
A. It is incorrect. Q. Is it correct that the impulse at places in specimen signatures bearing no. S 41 to
S 51 and S 412 to S416 in the name of Madan Lal is of uniform movement?
A. It is correct. Q. Is it correct that line quality of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is good? A. Line quality of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in
the name of Madan Lal is of free, smooth and normal. Q. Is it correct that slant of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is right of the perpendicular? A. It is correct but the slant of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is also varying at some places. Q. Is it correct that the spacing in the specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is normal?
A. It is correct.
CC No. 43/2010 Page 115 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013
Q. Is it correct that the alignment in the specimen signatures bearing no. S 41 to S 51
and S 412 to S416 in the name of Madan Lal is even with ascending tendency? A. The alignment in the specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is varying as hand cannot act with machine like precision and natural variations bound to occur.
Q. Is it correct that relative sizes and proportion of letters and their combinations in specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is normal, i.e., 1:2?
A. It is correct at places the ratio of words is 1:2 but at places it is more than 1:2 (Voln.The relative sizes and proportion of letters and their combinations in specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is varying upon the writing of the individual letters in the word of the signatures.) Q. Is it correct that nature of commencing and terminal strokes in specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is sharp commencing and terminal strokes, flying start and tapering terminals?
A. It is incorrect. Q. Is it correct that the formation of characters and their combinations in specimen
signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal are symmetrical and regular?
A. It is correct. Q. Is it correct that size of signatures in specimen signatures bearing no. S 41 to S
51 and S 412 to S416 in the name of Madan Lal is normal?
A. It is normal and somewhere expanded also. Q. Can you tell me which specimen signature out of S41 to S51, you are claiming expanded? A. As per my opinion, the signatures at point A, B, C, D and E are in expanded forms on S41 and S42 and S412 Q. Is it correct that the pen pressure of specimen signatures bearing no. S 41 to S 51
and S 412 to S416 in the name of Madan Lal is graduated? A. Pen pressure of specimen signatures bearing no. S 41 to S 51 and S 412 to S416 in the name of Madan Lal is of medium nature because pen pressure can only be assessed and cannot be measured.
Q. Is it correct that that the letter "M" in questioned signatures of name of Madan Lal in Q20, 24, 28, 32, 36 are irregular and commencing strokes makes a "V" like initial structure but in specimen signatures the letter "M" is traditional? A. Commencing stroke of letter "M" in questioned signatures of name of Madan Lal in Q20, 24, 28, 32, 36 have a "V" like initial structure and in specimen signatures too this structure found.
Cross examination dated 27.6.2012 ".............
Q. Is it correct that questioned signatures 1054,1067 and 1071 were in the name of Madan Lal and were sought to be compared with S41 to S51 by CBI?
A. It is correct. Q. Is it correct that terminal stroke of letter d in questioned signatures 1054,1067 and 1071
draws downwards - abnormal, makes loop straight on its top and makes eyelet at its start? A. The terminal stroke of letter d in questioned signature 1054, 1067 and 1071 have CC No. 43/2010 Page 116 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 downward finish makes upper loop and eyelet at its start. Q. The terminal stroke in sample signatures S41 to S51 is normal to the right and the letter d traditional and slant to its right?
A. The terminal stroke of letter d in sample signatures is normal to the right as well as straight at places and the slant of the finish is downward at places and also to its right at places. Q. Is it correct that letters 'a, n' are traditional in the specimen signatures S 41 to S51 whereas in questioned signatures 1054,1067 and 1071 it is only like a staff? A. It is correct that letter 'a' and letter 'n' are traditional at places as well as like a staff at places in specimen signatures. The execution of letter 'a' and letter 'n' as well as its joining are observed similar with similar variation in both sets of writing.
It is wrong to suggest that in specimen signatures the words 'a' and 'n' are not the staff at places.
Q. Is it correct that the strokes/curves/angles in questioned signatures in the name of Madan Lal are blunt edges of strokes, broad/ illdefined curves and connections whereas in specimen signatures in the name of Madan Lal there are fine edges of strokes, narrow well defined curves and connections ?
A. It is incorrect.
It is incorrect to suggest that the questioned writings/signatures which were subject matter of report Ex.PW 83/A2 and PW83/A5 did not contain the similar qualities of freely written, natural variation and interconsistency among them like specimen writings comparable to those questioned signatures. It is also wrong to suggest that the questioned signatures being part of my reports Ex.PW 83/A2 and Ex.PW 83/A5 were not agreeing in general writing habits like movement of wrist predominent with forearm combined, skill higher and average speed medium, impulses at places, line quality free, smooth and normal, slant, spacing, alignment, relative size and proportion of letters and their combinations, nature of commencing and terminal stroke etc. with the specimen handwriting S41 to S827 as were sent for comparison by the CBI. Q. Is it correct that the letter 'R' in the questioned signatures 1069 and 1073 contain broad, large top bulb whereas in specimen handwriting the word 'R' contain narrow, small, top bulb? A. The letter 'R' in the questioned signature contain broad, large top bulb and the same was observed in the specimen writing.
It is incorrect to suggest that the word 'R' in specimen writing contain large top. Q. Is it correct that the word 'K' in questioned signatures 1069 and 1073 is simplified looks like letter 'V' whereas in specimen signatures S67 and S 69 the word 'K' is traditional? A. It is correct that the word 'K' in questioned signature is simplified looks like letter 'V' and observed similar with similar variations in specimen signatures.
It is incorrect to suggest that letter 'K' in specimen writings was similar to letter 'K' in questioned signatures 1069 and 1073.
Q. Is it correct that letter 'U' and 'M' in questioned signatures 1069 and 1073 are having wide shoulders whereas in specimen writings the word 'U' and 'M' are traditional?
A. It is correct that the word 'U' and 'M'' in questioned signature are having wide shoulders and observed similar with similar variations in specimen signatures.
It is incorrect to suggest that letters 'U' and 'M' in specimen writings were similar to letter 'U' and 'M' in questioned signatures 1069 and 1073. Q. Is it correct that the letter 'P' in questioned signatures 657 and 658 is too elongated and narrow whereas in specimen writings S137 and S138 the word 'P' contain the body CC No. 43/2010 Page 117 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 bulb small and traditional?
A. It is correct that the letter 'P' in the questioned signatures is elongated and narrow and observed similarly in the specimen writings It is incorrect to suggest that letter 'P' in specimen writings were similar to letter 'P' in questioned signatures Q 657 and Q658.
Q. Is it correct that in the letter 'r' in questioned signatures Q657 and Q658 the butterfly is with large enlongated eyelet and last letter 'r' is to simplified to look like a stroke only whereas in specimen signatures the butterfly of the letter 'r' is small with retrace turning of stroke or blind/eyelet?
A. It is correct that in letter 'r' in questioned signatures Q657 and Q658 the butterfly is with large enlongated eyelet and last letter 'r' is to simplified to look like a stroke only and it observed similarly in the specimen writings also.
It is incorrect to suggest that the letter 'r' in questioned signatures Q657 and Q658 are not similar to specimen writings S 137 and S138. Q. Is it correct that the letter 'u' in questioned signatures Q 657 and Q658 is simplified to look like letter 'v' or 'a' whereas in specimen writings S137 and S138 the word 'u' is traditional?
A. It is correct that the letter 'u' in questioned signatures Q 657 and Q658 is simplified to look like letter 'v' or 'a' and observed similarly in the specimen writings.
It is wrong to suggest that the letter 'u' in questioned signatures Q657 and Q658 is not similar to the specimen writings S137 and S138. Q. Is it correct that the letter D' in questioned signatures Q678 and Q679 is simplified horrizental and staff perpendicular whereas in specimen writing S181 and S182 the letter 'D' is traditional rising axis staff tilted to left?
A. Letter 'D' in questioned signatures Q678 is in one operation and Q679 is in two operations and both the variations are observed similarly in the specimen writing S181 and S182.
It is incorrect to suggest that letter 'D' in specimen writings S181 and S182 is not similar to letter 'D' in Q678 and Q679.
Q. Is it correct that the letter 'e' in questioned signatures Q678 and Q679 is enlarged, elongated look like inclined to left whereas in specimen writing S181 and S182 is traditional round eyelet type.
A. It is correct that the letter 'e'in questioned signatures Q678 and Q679 is enlarged, elongated look like inclined to left and it is similarly observed in specimen writings S181 and S182.
It is incorrect to suggest that the letter 'e' in specimen writings S181 and S182 is similar to questioned signatures Q678 and Q679. Q. Is it correct that the letter 'R' in questioned signatures Q678 and Q679 contains long,elongated oval bulb and the terminal stroke large and branches from middle of the staff in Q679 and missing in Q678 whereas the terminal stroke is short and branching from top of staff in specimen writing S181 and S182 and top bulb is short and round? A. It is correct that the letter 'R' in questioned signatures Q678 and Q679 contains long,elongated oval bulb and the terminal stroke large and branches from middle of the staff in Q679 and missing in Q678 and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'R' in specimen writings S181 and S182 is similar to questioned signatures Q678 and Q679.CC No. 43/2010 Page 118 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Q. Is it correct that the letter 'a' in questioned signatures Q678 and Q679 is simplified to look like letter 'u' whereas in specimen writing S181 and S182 it is traditional, small circular ?
A. It is correct that the letter 'a' in questioned signatures Q678 and Q679 is simplified to look like letter 'u' and it is similarly observed in the supplied specimen writings.
It is incorrect to suggest that the letter 'a' in specimen writings S181 and S182 is similar to questioned signatures Q678 and Q679. Q. Is it correct that the word 'Ramdhan' in questioned signatures Q627 and Q628 lacks fluency and impulses in places is erratic and spacing therein is irregular/sign as one word?
A. It is incorrect. Q. Is it correct that the letter 'R' in questioned signatures Q627 and Q628
is large, broad, straight ahead and double stroke/staff whereas in specimen writings S73 and S75 it is traditional elongated, inclined head?
A. It is correct that the letter 'R' in questioned signatures Q627 and Q628 is large, broad, straight ahead and double stroke/staff and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'R' in specimen writings S73 and S75 is similar to questioned signatures Q627 and Q628. Q. Is it correct that the letter 'a' in questioned Q627 and Q628 is body circular upright whereas in specimen writing it is body oval inclined? A. It is correct that the letter 'a' in questioned Q627 and Q628 is body circular upright and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'R' in specimen writings S73 and S75 is similar to questioned signatures Q627 and Q628. Q. Is it correct that the letter 'd' in Q627 and Q628 is large round body bulb, long staff in Q628 and Q627 staff missing whereas in specimen writing S73 and S75 it is traditional?
A. It is correct that the letter 'd' in Q627 and Q628 is large round body bulb, long staff in Q628 and Q627 staff missing and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'd' in specimen writings S73 and S75 is similar to questioned signatures Q627 and Q628. Q. Is it correct that the letter 'N' in questioned signatures Q654 and Q655 is double left stroke forming a broad loop whereas in specimen writing S131 and S132 it is traditional with middle stroke curved?
A. It is correct that the letter 'N' in questioned signatures Q654 and Q655 is double left stroke forming a broad loop it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'd' in specimen writings S131 and S132 is similar to questioned signatures Q654 and Q655. Q. Is it correct that the letter 'a' in questioned signatures Q654 and Q655 is simplified like letter 'e' or 'u' whereas in specimen writing S131 and S132 it is traditional body oval inclined, terminal stroke takes off from top downwards ? A. It is correct that the letter 'a' in questioned signatures Q654 and Q655 is simplified like letter 'e' or 'u' and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'a' in specimen writings S131 CC No. 43/2010 Page 119 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 and S132 is similar to questioned signatures Q654 and Q655. Q. Is it correct that the letter 'k' in questioned signatures Q654 and Q655 is simplified buckle like letter 'e' and terminal stroke curved whereas in specimen writing S131 and S132 it is traditional, terminal stroke horrizental ? A. It is correct that the letter 'k' in questioned signatures Q654 and Q655 is simplified buckle like letter 'e' and terminal stroke curved and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'k' in specimen writings S131 and S132 is similar to questioned signatures Q654 and Q655. Q. Is it correct that the letter 'a' in word Chand in questioned signatures Q654 and Q655 is only a retrace and missing in Q655 whereas in specimen writing S131 and S132 it is traditional. ?
A. It is correct. Q. Is it correct that in the letter 'B' in questioned signatures Q21,
Q29, Q33,Q37 the commencing stroke too far off to the left of staff and no loop in terminal stroke whereas in specimen writing S53, S55, S313 and S315 is traditional and terminal stroke makes a loop ?
A. It is correct that in the letter 'B' in questioned signatures Q21, Q29, Q33,Q37 the commencing stroke too far off to the left of staff and no loop in terminal stroke and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'B' in specimen writings S53, S55, S313 and S315 is similar to questioned signatures Q 21, Q29, Q33,Q37. Q. Is it correct that in the letter 'd' in questioned signatures Q21, Q29, Q33,Q37 the the body staff tilting to left, terminal stroke sharply curved upwards, body oval like letter 'e' in Q21 and it is 't' instead of 'd' whereas in specimen writing S53, S55, S313 and S315 is traditional, inclined staff body oval, short terminal? A. It is correct that in the letter 'd' in questioned signatures Q21, Q29, Q33,Q37 the body staff tilting to left, terminal stroke sharply curved upwards, body oval like letter 'e' in Q21 and it is 't' instead of 'd' and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'd' in specimen writings S53, S55, S313 and S315 is similar to questioned signatures Q 21, Q29, Q33,Q37. Q. Is it correct that in the letter 'R' in questioned signatures Q636 and Q637 is large oval/circular head and double stroke/staff whereas in specimen writing S92 and S94 it is narrow elongated oval head inclined to the right? A. It is correct that in the letter 'R' in questioned signatures Q636 and Q637 is large oval/circular head and double stroke/staff and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'R' in specimen writings S92 and S94 is similar to questioned signatures Q 636 and Q637. Q. Is it correct that in the letter 'i' in questioned signatures Q636 and Q637 is simplified to an eyelet/traced stroke without any overhead dot whereas in specimen writing S92 and S94 it is traditional with a dot?
A. It is correct. Q. Is it correct that in the letter 'u' in questioned signatures Q636 and
Q637 is simplified construction in continuation of stroke from previous letter to subsequent letter and like letter 'v' whereas in specimen writing S92 and S94 it is traditional construction with pen CC No. 43/2010 Page 120 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 lifts?
A. It is correct that in the letter 'u' in questioned signatures Q636 and Q637 is simplified construction in continuation of stroke from previous letter to subsequent letter and like letter 'v' and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'u' in specimen writings S92 and S94 is similar to questioned signatures Q 636 and Q637. Q. Is it correct that in the letter 'm' in questioned signatures Q636 and Q637 the construction continued with stroke from previous letter and commencing stroke moves upwards whereas in specimen writing S92 and S94 it is traditional construction with penlifts and a commencing stroke moves downwards?
A. It is correct that in the letter 'm' in questioned signatures Q636 and Q637 the construction continued with stroke from previous letter and commencing stroke moves upwards and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'm' in specimen writings S92 and S94 is similar to questioned signatures Q 636 and Q637. Q. Is it correct that in the letter 'd' in questioned signatures Q696 and Q697 the terminal is angular whereas in specimen writing S216 and S217 the terminal is curved? A. It is correct that in the letter 'd' in questioned signatures Q696 and Q697 the terminal is angular and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'd' in specimen writings S216 and S217 is similar to questioned signatures Q 696 and Q697. Q. Is it correct that in the letter 'h' in the word 'Radha' in questioned signatures Q696 and Q697 has well formed hump whereas in specimen writing S216 and S217 the hump is simplified looks like the letter 'L'?
A. It is correct that in the letter 'h' in the word 'Radha' in questioned signatures Q696 and Q697 has well formed hump and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'h' in specimen writings S216 and S217 is similar to questioned signatures Q 696 and Q697. Q. Is it correct that in the letter 'i' in questioned signatures Q696 and Q697 is simplified angular stroke whereas in specimen writing S216 and S217 it is traditional? A. It is correct that in the letter 'i' in questioned signatures Q696 and Q697 is simplified angular stroke and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'i' in specimen writings S216 and S217 is similar to questioned signatures Q 696 and Q697. Q. Is it correct that in the letter 'm' in questioned signatures Q687 and Q688 the terminal stroke curved long whereas in specimen writing S198 and S200 the terminal stroke short?
A. It is correct that in the letter 'm' in questioned signatures Q687 and Q688 the terminal stroke curved long and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the letter 'm' in specimen writings S198 and S200 is similar to questioned signatures Q 687 and Q688. Q. Is it correct that in the letter 'l' in questioned signatures Q690 and Q691 has the long loop with long terminal whereas in specimen writing S204 and S206 it has narrow loop and short terminal?
A. It is correct that in the letter 'l' in questioned signatures Q690 and CC No. 43/2010 Page 121 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Q691 has the long loop with long terminal and it is similarly observed in supplied specimen writings.
It is incorrect to suggest that the questioned signatures being form of my report Ex.PW 83/A2 and Ex.PW 83/A5 are not similar to their comparative specimen signatures/writings. It is also wrong to suggest that I had given the reports Ex.PW 83/A2 and PW 83/A5 as per requirement of the CBI. It is further wrong to suggest that my both aforesaid reports are wrong."
The long cross examination of the expert witness by Ld. Defence Counsel on each and every point was withstood by the expert witness with aplomb. He gave proper reasons and explained every point raised by Ld. Defence Counsel. I have also perused the reasoning given by him in his report and the explanation given during cross examination as well as the questioned and specimen signatures/handwritings and I have no hesitation in holding that I fully agree with his report.
In order to understand as to how the GEQD report connects the accused persons, I would like to discuss under following heads:
1. The questioned handwritings/signatures on the documents prepared by accused Faiz Mohd.
Accused Faiz Mohd. (A5) was directed to physically verify the members at random of the EPF Staff CGHS vide order dt. 20.01.2004 of Ramesh ChandraAR(East). In his letter Ext.PW83/A16, written by accused Faiz Mohd. to AR(East) [placed at page 105/C of D4], Faiz Mohd. has written that he has enclosed the list of members who CC No. 43/2010 Page 122 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 were physically verified by him at random during spot verification. The certificates Ext.PW83/A31 & Ext.PW83/A32 have been given by the persons purporting to be Somdutt Sharma and Arvind Luthra. In these certificates, they have certified that they are the bonafide members of EPF CGHS. Below it, Faiz Mohd. has written "physically verified and found correct." This certificate is purported to have been signed by one Somdutt Sharma and Arvind Luthra at Q363 & Q366. As per the handwriting expert's report (Ext.PW83/A2), the signatures of Somdutt Sharma Q363 and the name and address written in pen at Q364 have been written by the person whose specimen signatures are S41 to S827. These specimen handwritings are that of Gokul Chand Aggarwal, as per the testimony of IO and the same have been witnessed by an independent witness namely Vishwamitter Bhagi. As per this report dt. 10.07.2006 at point no. 7, the handwriting at Q367 matches with the aforesaid specimen signatures. Q367 is the handwriting in pen by which the name and address of Arvind Luthra have been written on the certificate Ext.PW83/A32. This proves that Faiz Mohd. has given a false report and infact these handwritings were written by Gokul Chand Aggarwal. It is pertinent to mention here that infact Somdutt Sharma and Arvind Luthra were not found because of the incomplete or incorrect address, as per the report of the postmen on the envelopes to those persons by the investigating CC No. 43/2010 Page 123 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 officer. The envelope of Somdutt Sharma returned back with the report 'Incomplete address' whereas envelope of Arvind Luthra containing notice sent by CBI returned back with the report 'No such person resides at the given address.' I may point out that there is no opinion as to who has signed at Q366 as Arvind Luthra, but, now it is for Gokul Chand Aggarwal as well Faiz Mohd. to state as to who was the person who signed as Arvind Luthra. Thus, it stands proved that not only Gokul Chand Aggarwal and Faiz Mohd. were in touch with each other, but, Faiz Mohd. was giving a false report that he had physically verified Somdutt Sharma and Arvind Luthra.
2. Questioned handwritings/signatures on the documents prepared by P.K. Thirwani.
P.K. Thirwani was appointed as Auditor and he conducted the audit of Ruchika CGHS. The check list for submission of the audit report is Ext.PW83/A69. This report has been received by one Madan Lal, whose signatures are present at Q1054. It is pertinent to note that Madan Lal has been shown in the audit reports as the President of the Ruchika CGHS. This check list for submission of audit report is Ext.PW83/A69 which is countersigned by J.S. Sharma. As per the handwriting expert's report dt. 31.07.2006 at point 2, the handwriting expert has opined that Q1054 tallies with the specimen CC No. 43/2010 Page 124 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 handwriting S41 to S51. I have seen the specimen handwriting which is Ext.PW83/A68 (colly), in which Gokul Chand Aggarwal has written as "Madan Lal". And I agree with the GEQD report in this regard.
Prosecution has proved one auctioncumappointment letter Ext.PW83/A36 (placed at page 165 of D11). This document is a proforma wherein the Secretary of the society has to certify that the facts filled up on the proforma are correct. This proforma is signed by Secretary of the society as 'G.D. Aggarwal' at Q1056. As per handwriting expert's report dt. 31.07.2006 Ext.PW83/A5, the questioned handwriting/signatures at Q1056 tally with S41 to S51 and S57 to S69, which are the specimen handwriting given by Gokul Chand Aggarwal in which he has written as 'G.D. Aggarwal'. EPF Staff CGHS had submitted to P.K. Thirwani the audit document/balance sheets at page 155 of D11, signatures of President Madan Lal are appearing at Q1067 and signatures of G.D. AggarwalSecretary are present at Q1068. Similarly, the same is the case in further balance sheets in Q1071 and Q1072 which is placed at page no. 154 of D11. As per point no. 2 of the report, the signatures of Madan Lal and G.D. Aggarwal tally with the specimen handwriting S41 and S51 & S57 to S69. Furthermore, the signatures of Treasurer at Q1073 of the balance sheet Ext.PW83/A40 which is placed at page no. 154 of D11 CC No. 43/2010 Page 125 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 tally with the specimen handwriting at S65 to S69 wherein he has signed as Rajender Kumar/R.Kumar.
It is pertinent to note that another document signed by P. K. Thirwani is "BRIEF SUMMARY OF THE SOCIETY" which is Ex.PW83/a37 (D11) bears the signatures of Madan Lal as President, G.D. Aggarwal as Secretary and Rajender Kumar as Treasurer at Q1058, Q1059 and Q1060 respectively. All these signatures, as per the GEQD report Ext.PW83/A5 matched with S836 & S837, which are the specimen signatures of P. K. Thirwani. It shows that P.K. Thirwani was also signing as President, Secretary and Treasurer in the brief summary. This proves beyond reasonable doubt the hobnobbing between the two.
3. The questioned handwriting on the note sheets relevant to Ramesh Chandra.
D4 Ext.PW63/C is the file which contains the notings of the proceedings. There is a noting dt. 20.01.2004 written by Narender Kumar and Ramesh Chandra vide which Faiz Mohd. was appointed to physically verify the members at the spot. On the margin of it, the person handling society has written "Noted" and has signed as G.D. Aggarwal on 20.01.2004. The signatures as 'G.D. Aggarwal' are Q11. As per GEQD report Ext.PW83/A2 (D30) at point 7, it has been CC No. 43/2010 Page 126 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 opined by the handwriting expert that Q11 tallies with the specimen handwriting S41 to S827. I have also seen the signatures and I agree with the report that Q11 tallies with the specimen handwriting of Gokul Chand Aggarwal from S57 to S64 wherein Gokul Chand Aggarwal has given specimen signatures of G.D. Aggarwal.
4. Questioned signatures on Ext. PW79/W (from page 278/C to 282/C placed in file D4)relevant to Ramesh Chandra.
This is a document which was prepared by the person handling the Ruchika Apartment CGHS. This document consists of five pages and this is the list of 143 members which were submitted by the society to RCS office for onward transmission to DDA for allotment of the land. On each page, signatures of Madan LalPresident, Bodh PrakashVice President, G.D. Aggarwal as Secretary, Rajender Kumar as Treasurer and Ramesh ChandraAR(Cooperative Societies) are present at Q20, Q21, Q22, Q24, Q25, Q26, Q28, Q29, Q30, Q32, Q33, Q34, Q35, Q37 & Q38. As per the report Ext.PW83/A2, the same also tally with the specimen signatures given by Gokul Chand Aggarwal from S41 to S827. The signatures of Ramesh Chandra are also present on each page which is not in dispute. This shows that Gokul Chand Aggarwal was signing as President, Vice President as well as Secretary in present of Ramesh CC No. 43/2010 Page 127 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Chandra who had also signed each page of it. It is argued by Ramesh Chandra that office bearers had not signed in his presence and that this list, already signed by the office bearers. was presented to him. Even this plea of Ramesh Chandra is accepted, the circumstances of the case and his conduct of not inquiring about the records from 1972 to 1979 from the so called society office bearers show that at least he knew that these signatures of the office bearers on the list were forged.
5. AFFIDAVITS Three affidavits Ext.PW83/A42, Ext.PW83/A43 and Ext.PW83/A45 (placed at page 269/C and 268/C of D4) were furnished by the person purporting to be G.D. Aggarwalthe Secretary of EPF CGHS. At Q42, Q43, Q44, Q45 and Q48 to Q54, the affidavits have been signed in the name of G.D. Aggarwal and one affidavit Ext.PW83/A44 (placed at page 267/C in D4) has been signed by person purporting to be Madan Lal. The signatures of Madan Lal at Q46 to Q47 are present on this affidavit. As per GEQD report Ext.PW83/A2 at point 7, it has been specified that the same tally with S41 to S827 which are the specimen handwritings of Gokul Chand Aggarwal. Thus it proves that Gokul Chand Aggarwal was signing as Madan Lal as well as G. D. Aggarwal.
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6. The questioned signatures on the documents prepared by U.S. Bhatnagar.
U. S. Bhatnagar was appointed as Inspector by Ramesh Chandra vide his order dt. 16.12.2003, office copy of which is placed at page 8/C of D4 Ext.PW79/N. The inspection report prepared by U.S. Bhatnagar is placed at page 68/C of D4 and has been proved as Ext.PW83/A13. The signatures of U.S. Bhatnagar are at Q370 which is not disputed by him. However, at Q369, the signatures of the office bearer of EPF Staff CGHS as 'G.D. Aggarwal' are present at Q369. The GEQD report Ext.PW83/A2 at point 7 deals with the specimen handwriting of Gokul Chand Aggarwal. This shows that Gokul Chand Aggarwal indulged in forgeries at every stage and was also hobnobbing with U.S. Bhatnagar. I may add here that U.S. Bhatnagar in report has mentioned that all the records were found in the safe custody of G.D. AggarwalSecretary of the society, which as per the discussion above is none other than Gokul Chand Aggarwal.
7. Copies of resolutions of EPF Staff CGHS filed in the office of RCS.
Prosecution alleges that Gokul Chand Aggarwal had also filed the photocopies of proceedings register of the Special General Body Meeting of EPF Staff CGHS purporting to have taken place on CC No. 43/2010 Page 129 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 13.07.2003 at C90A, Janta Garden, Pandav Nagar, Delhi. My attention is brought to the original signatures present on each page of the photocopy of the register which are from page 39/C to 34/C. The person purporting to be the office bearer of the society has signed as G.D. Aggarwal from Q384 to Q390. As per the report Ext.PW83/A2 at point 7, this signatures also tally with the specimen signatures of Gokul chand Aggarwal showing that it was Gokul Chand Aggarwal who had furnished these documents in RCS.
8. Questioned signatures of Secretary on the election of EPF Staff CGHS purporting to have been held on 13.07.2003.
These papers are collectively exhibited as Ext.PW83/A46 at page 51/C. The list of managing committee of members has been given in which G.D. Aggarwal had been shown as treasurer. Below it, G.D. AggarwalSecretary of EPF CGHS are present at Q372. There is a photocopy of election schedule showing the original signatures of G.D. Aggarwal at Q373. Similarly on other documents pertaining to this election from Q374 to Q383, the signatures of G.D. Aggarwal as Secretary of the society are present in ink. As per the aforesaid handwriting expert's report, the same had been signed by Gokul Chand Aggarwal.
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9. List of Members Given at the time of reconstruction of the file.
The society gave a list of 143 members at the time of reconstruction of the file which has been signed by Madan Lal President, Bodh RajVice President and G. D. AggarwalSecrtary on all the five pages starting from 32/C to 28/C of D4 and these signatures are from Q391 to Q405. All these signatures match with the specimen handwriting of Gokul Chand Aggarwal as per report Ext.PW83/A2. This shows that it was accused Gokul Chand Aggarwal who was getting the file reconstructed.
10. Questioned handwritings/signatures on the further documents filed by the society with RCS for the purpose of reconstruction.
For the purpose of reconstruction, the society filed Ext.PW70/A1 which is the copy of winding up order (placed at page 27/C and 26/C). It is pertinent to note that this copy is marked to M.L. Ahujathe Liquidator of the society which shows that this copy has been procured from the office record of RCS. At page 25/C, a copy of registration number of the society which is Ext.PW83/A47 is present, copy of the Byelaws of the society Ext.PW66/B. These documents are from page 28/C to 9/C of D4 and each page is signed CC No. 43/2010 Page 131 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 by 'G.D. Aggarwal' at Q406, Q424 which as per the GEQD report tally with the handwriting of Gokul Chand Aggarwal. This proves that it was Gokul Chand Aggarwal who was actively involved in reconstruction of the record but also the copies of this records were actually taken from the official records available in RCS office. Similarly, in D3 which is collectively exhibited as Ext.PW63/B, the documents from page 337/C to 144/C were furnished by the EPF staff CGHS for the purpose of reconstruction and at each page of documents the signatures of G.D. Aggarwal are present from Q432 to Q625 which as per the GEQD report Ext.PW83/A2 tally with G.D. Aggarwal.
11. Affidavits of the fake members.
The affidavits of the fake members namely Ram Dhan Singh, Suresh Chander, Raghuvinder Kumar Bhasin, Anand Kumar Jain, Nanak Chand, Prem Kumar, Ms. Satish Chaudhary, Gurbachan Singh, Yashpal, Devraj Sethi, Ram Singh, Dharma Pal Sharma, Radha Singh, Rakesh Kumar, Rajender Kumar, Bodh Prakash, Madan Lal, Ram Bhagat, Yashpal, G.D. Aggarwal have been signed from Q627, Q628, Q633, Q634, Q636, Q637, Q639, Q640, Q654, Q655, Q657, Q658, Q660, Q661, Q672, Q673, Q675, Q676, Q678, Q679, Q687, Q688, Q690, Q691, Q696, Q697, Q699, Q700, Q705, CC No. 43/2010 Page 132 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Q706, Q750, Q751, Q810, Q811, Q864, Q865, Q873, Q874, Q930 & Q931.
As per GEQD report, these signatures have been put by Gokul Chand Aggarwal. Though, I agree that Rita Kaul, Adv. has turned hostile and h as not testified against accused Gokul Chand Aggarwal, but, since profuse evidence has been discussed above which shows that Gokul Chand Aggarwal was in full control of the documents of the society, was making fake members, creating forged documents, representing himself as President/Secretary and Treasurer of the society and he himself was appearing in the office of RCS as clear from his signatures as G.D. Aggarwal on the margin of the note sheet of Ramesh ChandraAR(East) leaves me in no doubt that it was he who had engaged her to represent the society.
Ld. Defence counsel has argued that PW91 Satbirthe stamp vendor has not been able to prove that Gokul Chand Aggarwal himself had purchased these very stamp papers because he has testified that many a times some boy from Gokul Chand Aggarwal used to come and take these stamp papers. It is further argued that even if Gokul Chand Aggarwal has purchased stamp papers in bulk, it is not proved that those very stamp papers, sold by PWSatbir, were presented in this particular case by Gokul Chand Aggarwal. This stand falls flat in CC No. 43/2010 Page 133 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 view of the fact that on these affidavits, Gokul Chand Aggarwal has forged the signatures of the members of the society, as per GEQD report discussed above. Therefore, ocular evidence of Satbirstamp vendor that Gokul Chand Aggarwal had purchased the stamp papers from him is further fortified by GEQD report that the affidavit on the stamp papers were got written and signatures of large number of members were forged by Gokul Chand Aggarwal which were presented by him in RCS office. Hence, I have already discussed that the profuse evidence is coming on record that Gokul Chand Aggarwal had not only committed large scale forgeries, as discussed above but has also actively colluded with RCS officials and was successful in getting the society revived and sending the list of fake members to DDA for allotment of land.
I may point out that the purpose of changing the name from EPF Staff CGHS to Ruchika CGHS is clearly aimed at disassociating the society from the employees of EPF Department. It is very clear that had land been alloted in the name of EPF Staff CGHS, there was all likelihood of the original members coming to know of allotment of land by DDA which may result in exposing the fraud. Hence, was the necessity for changing of the name of the society from EPF Staff CGHS to Ruchika CGHS.
CC No. 43/2010 Page 134 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 Accordingly, I hold that prosecution has been able to prove that accused Gokul Chand Aggarwal has committed substantial offences u/s 420/468/471 IPC. It also stands proved that he was in conspiracy with the RCS officials and was successful in getting the society revived and in sending the list of members for allotment of land to DDA. It has been argued by the Ld. Defence Counsel as to who has been cheated. I would say that though the officials of this department were fully acting in collusion with this accused, but, the office of RCS is a separate entity than its employees and I have no hesitation in holding that Department of RCS office has been cheated by the acts of Gokul Chand Aggarwal. Further prosecution has also been able to prove that he was the central figure of this conspiracy involving all other RCS officials.
Overall Scenario Since the evidence of conspiracy is hard to find, the prosecution can only prove certain facts from which it is to be seen as to what was the nature and extent of the conspiracy and as to who were the conspirators. Sometimes the role of an accused would appear to be very innocent but if it is seen in the overall circumstances, his role would become very important and he would be found to be active actor in the conspiracy. I refer to Lemard Schussler Vs Directorate CC No. 43/2010 Page 135 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 of Enforcement, AIR 1970 SC 548, where the Constitution Bench of Supreme Court held as under :
"It appears to us that this is not a justifiable contention, because what has to be sen is whether the agreement between A.1 and A.2 is a conspiracy to do or continue to do something which is illegal and, if it is, it is immaterial whether the agreement to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve."
Therefore, the role of each accused has to be seen in the backdrop of all the attending facts and circumstances. It was a society formed by the employees of Provident Fund Organization in the year 1972. It had sent the list of its members to DDA through RCS and DDA had even offered land to this society. But since the members could not arrange the money, the society could not get the land. In the year 1979, Sh. Ashok Bakshi passed a winding up order and after a few years in the liquidation proceedings, the funds were refunded to the members of the society by the liquidator in the year 1990. After about 24 years, one application for revival comes to the RCS. The file CC No. 43/2010 Page 136 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 was falsely stated to be missing by Narender Kumar (A1) and process of reconstruction of file starts. In this reconstruction proceedings only a few documents i.e. copy of registration certificate, copy of winding up order and copy of the proceedings register of the year 2003 etc. are furnished and the same are accepted by Narender Kumar (A1) and Ramesh Chandra (A2). It is interesting to note that A1, who was the dealing clerk and A2, who is the AR (East), were very quick to recommend the inspecting officer namely U. S. Bhatnagar (A4) to inspect the society even though the file was yet to be reconstructed. J. R. Sindhu, the Joind Registrar, only approved the reconstruction of the file at that point of time but it appears that A1 and A2 were very eager to appoint U. S. Bhatnagar to inspect the society. When for the purpose of reconstruction of the file, the copies of the documents are presented to A1 and A2, none of them raises an objection as to where are the proceeding registers of the society and its minutes of meeting etc. from the year 1972 to 1979. No one raises objection as to why the society did not inform the RCS about the resignations of any member or enrollment of new members and if so, where are the copies of such intimations. No one asked for the identity of the G. D. Aggarwal, who had signed on the margin of the note dated 20.1.2004 (Ex.PW79/Q). Without approval from the Joint Registrar, Ramesh Chandra appoints U. S. Bhatnagar, who states in his report that he has CC No. 43/2010 Page 137 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 visited the office of society at C90A, Janta Garden, Pandaw Nagar, Delhi, where the office of the society never existed. In fact the society was shown to have shifted its address to Pandaw Nagar vide the resolution of the society dated 13.7.2003 but neither A1 nor A2 had raised any objection as to why the information of change of address was not made within the required period of 30 days as per Section 84 of DCS Act 1972. The report of U. S. Bhatnagar Ex.PW83/A13 bears the signatures of G. D. Aggarwal, which has been put by Gokul Chand Aggarwal. Faiz Mohd. in his report also shows that he had visited the office of the society at C90A, Janta Garden, Pandaw Nagar, Delhi and one of the certificates Gokul Chand Aggarwal has signed as Somdutt Sharma and in another certificate the particulars of Arvind Luthra have been written by him as discussed earlier. Prosecution has proved that all the members of the society in the new list approved by Ramesh Chandra and sent to DDA are fake. Its office bears are fake. The verifications are fake. The election report by Sanjeev Bharti (A6), Election Officer, is bogus. The address of the society is changed. The audit report filed by P. K. Thirwani is fake and is shown to be at a place where it never worked. No one raised eyebrow as to how after 24 years of this winding up the society has woken up. The entire efforts right from A1 to A6 are in the direction of authenticating the forgeries and no action whatsoever was taken substantially about the CC No. 43/2010 Page 138 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 actual status of the society. No one had made inquiries from the liquidator about the status of the society. Despite the fact that copy of winding up order was sent to the liquidator. No one made an effort to seek the records of the society from DDA, where there was all the possibility of the list of the members being available as has been discussed by me in earlier part of the judgement. In the entire order of revival, Narayan Diwakar has concentrated his mental faculties to declare the 24 years old winding up order invalid without paying any attention to the details of the file as to who were the members and who were the office bearers of the society. None asked for any identity proof of any office bearers. These circumstances also clearly show that Gokul Chand Aggarwal was directly in contact with Faiz Mohd., P. K. Thirwani, U. S. Bhatnagar, Narender Kumar, Ramesh Chandra and Sanjeev Bharti. Reviving of the society was not an ordinary matter because consequence of reviving the society was that the list of members would be sent to DDA for allotment of land. It is pertinent to note that the copy of winding up order, which was under
the consideration of Narayan Diwakar clearly reflects that its copy was sent to DDA. Narayan Diwakar has written a long and detailed order on the winding up order being unreasonable but has conveniently closed his eyes from the fact that if the copy of winding up order has gone to DDA, it means that some freeze list of members had earlier CC No. 43/2010 Page 139 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 been sent to DDA. Behind veil of such a long order, the abuse of official position by him with a view to obtain pecuniary advantage to Gokul Chand Aggarwal, who was managing the entire society has become very clear.
In these circumstances, I convict all the accused persons under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988 against all the accused persons.
I also convict accused Narender Kumar (A1), Ramesh Chandra (A2), Narayan Diwakar (A3), U. S. Bhatnagar (A4), Faiz Mohd. (A5), Sanjeev Bharti (A6) and P. K. Thirwani (A8) under Section 15 read with Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act.
I further convict accused Gokul Chand Aggarwal (A7) and P. K. Thirwani (A8) under Section 468/471 IPC and under Section 511 IPC read with Section 420 IPC.
Announced in the open court on 30.4.2013.
(Vinod Kumar) Special JudgeII, CBI, Rohini Courts, Delhi.CC No. 43/2010 Page 140 / 145
CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 IN THE COURT OF SPECIAL JUDGEII (PREVENTION OF CORRUPTION ACT, 1988) (CBI), ROHINI, DELHI ID No. 02404R0436392006 RC : 14(E)/2005/EOWII/DLI CC No. 43/2010 (Ruchika CGHS) CBI Vs 1. Narender Kumar S/o Late Sh. Ram Charan R/o C741, Delhi Administration Flats, Timarpur, Delhi.
2. Ramesh Chandra S/o Late Sh. Agya Ram R/o CD52F, DDA Flat, LIG, Hari Nagar, New Delhi110054.
3. Narayan Diwakar S/o Late Sh. Chatti Lal R/o G30, Masjid Moth, GKII, New Delhi110048.
4. U. S. Bhatnagar S/o Late Sh. Shiv Shankar Bhatnagar R/o B479, TypeII, Delhi Administration Flats, Timarpur, Delhi110054.
5. Faiz Mohd.
S/o Late Sh. Ghulam Mohd.
R/o 4794, Ahata Kidara, Pahari Dhiraj, Delhi110006.
6. Sanjeev Bharti S/o Sh. Mahinder Bharti Madan R/o C4C, Pocket14, Flat No. 113, Janak Puri, New Delhi58.
7. Gokul Chand Aggarwal S/o Late Sh. Jagdish Prasad R/o A603, Ashoka Apartments, Sector9, Rohini, CC No. 43/2010 Page 141 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 New Delhi85.
8. Prahlad Kumar Thirwani S/o Late Sh. Moti Ram Thirwani R/o 348E, PocketII, Mayur Vihar, PhaseI, Delhi91.
Order on Sentence 1.5.2013 The arguments on sentence are heard. The circumstances of the case show that had the conspiracy been successful and had the land been alloted to the society, the precious land would come in the hands of the Gokul Chand Aggarwal solely and he would have reaped huge benefit from it. In my judgement, I have already mentioned that he was central figure of the conspiracy. Hence he deserves a higher doze of sentence than the other convicts, who are public servants. Further, I agree with the submission of Ld. Public Prosecutor that since convicts Ramesh Chandra (A2), Narayan Diwakar (A3), Faiz Mohd. (A5) and Prahlmad Kumar Thirwani (A8) have already been convicted by this court in CBI Vs. Sri Chand (Rangmahal CGHS) CC No. 45/2010, they are required to be awarded higher sentences than the public servants, who would have been convicted for the first time. Accordingly, I proceed to sentence the convicts as under :
Ramesh Chandra (A2), Narayan Diwakar (A3), Faiz Mohd. (A5) and Prahlad Kumar Thirwani (A8) Considering all facts and circumstances, I sentence the aforesaid convicts to rigorous imprisonment for one year and three months and a fine in the sum of Rs.1000/ each under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988. In default of payment CC No. 43/2010 Page 142 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 of fine, they shall further undergo simple imprisonment for one month each.
I further sentence the aforesaid convicts for rigorous imprisonment for one year and three months and a fine in the sum of Rs.1000/ each under Section 15 read with Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act 1988. In default of payment of fine, they shall further undergo simple imprisonment for one month each.
In addition to the aforesaid sentences, I further sentence the convict P. K. Thirwani (A8) to rigorous imprisonment for one year and a fine in the sum of Rs.1000/ under Section 468 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
I further sentence the convict P. K. Thirwani (A8) to rigorous imprisonment for one year and a fine in the sum of Rs.1000/ under Section 471 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
I further sentence the convict P. K. Thirwani (A8) to rigorous imprisonment for one year and a fine in the sum of Rs.1000/ under Section 511 read with Section 420 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
All the sentences shall run concurrently.
Narender Kumar (A1), U. S. Bhatnagar (A4) and Sanjeev Bharti (A6) I sentence all the aforesaid convicts for rigorous imprisonment for one year and a fine in the sum of Rs. 1000/ each under Section CC No. 43/2010 Page 143 / 145 CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 120 IPC read with Section4 20/468/471 IPC read with Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988. In default of payment of fine, they shall further undergo simple imprisonment for one month each.
I further sentence the aforesaid convicts for rigorous imprisonment for one year and a fine in the sum of Rs.1000/ each under Section 15 read with Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act 1988. In default of payment of fine, they shall further undergo simple imprisonment for one month each.
All the sentences shall run concurrently.
Gokul Chand Aggarwal (A7) Considering all facts and circumstances, I sentence this convict to rigorous imprisonment for three year and a fine in the sum of Rs. 1000/ under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988. In default of payment of fine, he shall further undergo simple imprisonment for one month .
I further sentence the convict to rigorous imprisonment for three year and a fine in the sum of Rs.1000/ under Section 468 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
I further sentence the convict to rigorous imprisonment for three year and a fine in the sum of Rs.1000/ under Section 471 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
CC No. 43/2010 Page 144 / 145CBI Vs Narender Kumar etc. (Ruchika CGHS) Judgment dt. 30.4.2013 I further sentence the convict to rigorous imprisonment for one year and a fine in the sum of Rs.1000/ under Section 511 read with Section 420 IPC. In default of payment of fine, he shall further undergo simple imprisonment for one month.
All the sentences shall run concurrently.
Benefit under Section 428 CrPC be given to all the convicts. Copy of judgement be supplied free of cost to all the convicts. File be consigned to record room.
Announced in the open court on 1.5.2013.
(Vinod Kumar) Special JudgeII, CBI, Rohini Courts, Delhi.
CC No. 43/2010 Page 145 / 145