Delhi District Court
Central Bureau Of Investigation vs . on 30 October, 2012
IN THE COURT OF SH.R P PANDEY:
SPECIAL JUDGE-01 (CBI) : ROHINI COURTS:DELHI
CBI No.04/08
RC-11(S)/2005/CBI/SCB-I/N.DELHI
U/S 120-B, 420, 511, 468, 471 IPC & PC ACT 1988
ID NO.02404RO437282006(SHIV PURI CGHS)
Central Bureau of Investigation
Vs.
1.Narayan Diwakar s/o Late Chatti Lal r/o G-30, Masjid Modh, Greater Kailash Part-II, New Delhi-48
2. Gokul Chand Aggarwal s/o Late Sh.Jagdish Prasad r/o A-603, Ashoka Apartments, Sector-9 Rohini, Delhi-85
3. Maan Singh (Since expired) s/o late Devi Singh r/o-RZ-73, Subash Park, Uttam Nagar New Delhi-59 CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.1 of 65
4. Ram Nath s/o late Kishan Lal r/o-1/92, Gali No.9, West Guru Angad Nagar Laxmi Nagar, New Delhi
5. Faiz Mohammad s/o Sh.Gulam Mohammad r/o 4794, Ahata Kedara, Pahari Dheeraj Near Sadar Bazaar, Pahari Dhiraj, Delhi-6
6. Prahlad Kumar Thirwani s/o late Mati Ram r/o-348E, Pocket-2, Mayur Vihar, Phase-I Delhi-91
7. Narender Singh Khatri s/o late Lal Singh Khatri r/o-89-B, Shakti Khand-I Indirapuram, Ghaziabad, UP Date of filing charge sheet : 20.12.06 Reserved for Order : 17.10.12 Date of Order : 30.10.12 ORDER ON CHARGE:
1. Accused/Narayan Diwakar (A-1); Gokul Chand Aggarwal (A-2); Maan Singh (A-3); Ram Nath (A-4); Faiz CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.2 of 65 Mohammad (A-5); Prahlad Kumar Thirwani (A-6) and Narender Singh Khatri (A-7) have been charge sheeted by CBI to face trial for the offences punishable u/s 120B r/w Section 420, 468 & 471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, besides for the substantive offences u/s 420/511/468/471 IPC and Section 15 r/w Section 13(1)(d) of PC Act.
2. After filing of charge sheet accused/Maan Singh (A-3) has expired and proceedings qua him stand abated, vide order dated 22.09.09.
3. Arguments on charge as advanced by Ms.Shalini Jain, Ld.Public Prosecutor for CBI and accused persons/their ld.counsels have been heard. Besides, the written arguments as filed by accused Narayan Diwakar (A-1), Gokul Chand Aggarwal (A-2) and P K Thirwani (A-6) have also been perused along with the records of the case. The written arguments/additional CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.3 of 65 written arguments on charge as filed by accused/Narayan Diwakar (A-1) is composite in respect of three different applications filed by him while the matter was pending for arguments on charge and, therefore, his applications are also simultaneously taken up for disposal by the instant order.
4. As borne out of record, Shri Shiv Puri Co-operative Group Housing Society (for short 'Shiv Puri CGHS' or 'the society') was registered on 04.06.83, vide registration no.578 (GH) with its registered address at B-53/C, Kailash Colony, New Delhi. The society was wound up by then Dy.Registrar. On 01.01.04, K P Singh, President of the society, had moved an application under section 63 of the Act for cancellation of winding up order and for revival of the society. In the application, it was mentioned that the society was wound up on 13.03.89 on account of the fact that Annual General Body Meeting was not called. It was agitated therein that shortcomings resulting in CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.4 of 65 winding up order of the society were removed and winding up order may be cancelled.
5. Accused Maan Singh, Assistant Registrar (South) got said letter put up to himself vide note dated 05.01.04 of the dealing assistant. It was stated therein that main file of the society was not traceable. It was proposed that circular for searching the file within 15 days may be issued to all zones and thereafter it would be presumed that file was not traceable. The note was forwarded by accused Maan Singh through JR(South) to Narayan Diwakar, RCS, who approved it on 07.01.04. On 12.01.04, a circular was issued by Maan Singh to all zones to trace the file. On the same date, Ram Nath was appointed as inspecting officer to ascertain factual position of the society and to obtain relevant documents. Ram Nath submitted his undated report detailing therein that he visited office of the society, where Secretary Hem Raj produced all relevant records before him. CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.5 of 65 List of 149 members, collected by Hem Raj, was also enclosed. He also wrote that as per approval of General Body Meeting dated 28.09.03, society had shifted its office from B-53/C, Kailash Colony, New Delhi to 110, Sri Niwas Puri, New Delhi. He also enclosed unaudited accounts of society, proceedings of meeting dated 30.09.03 and papers of elections dated 28.09.03. List enclosed by him was purportedly signed by Secretary/President and Vice President of the society. However, during course of investigation, it revealed that Gokul Chand Aggarwal had signed that list in the capacity of Secretary, Vice President and President of the society. Similarly, proceedings, bye-laws of the society, list of M C members, registration certificate of the society and accounts of the society were certified by Secretary, President, Vice President of the society, which signatures were later on found to have been appended by Gokul Chand Aggarwal. Even signatures of election officer, namely, Ram Avtar, signatures of candidates, namely, R G CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.6 of 65 Gupta and Asha Devi on their nomination forms were made by Gokul Chand Aggarwal. The members referred above were found to be non-existent.
6. Ram Nath submitted copy of registration certificate of the society dated 04.06.83 and winding up order dated 13.03.89. Copy of registration certificate of the society was fraudulently certified by Gokul Chand Aggarwal as Secretary and Joint Registrar. Winding up order was also found to be forged one, since Sh.Satish Mathur denied his signatures over it. Signatures of office bearers of the society on the report of Ram Nath were found to have been made by Gokul Chand Aggarwal. The report of Ram Nath was put up by dealing assistant on 04.02.04 with a note that main file of the society was not traceable and if agreed, the documents submitted with report of Ram Nath may be taken on record, in order to reconstruct the file. Maan Singh forwarded the note to RCS on the same date and Narayan Diwakar CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.7 of 65 approved it.
7. On 05.02.04, reader to RCS issued a letter to President/Secretary of the society to appear before RCS on 12.02.04 along with all original records. Note dated 12.02.04 of Narayan Diwakar showed presence of Mrs.Rita Kaul, Advocate, representing the society, before him. He directed South Zone for verification of records pertaining to membership, audit and election, besides directing AR(South) to conduct spot verification of membership and to submit report on next date. On 20.02.04, accused Maan Singh ostensibly appointed Faiz Mohd., Grade-II, as inspecting officer for physical verification as well as for door to door survey of members of the society, functioning at 110, Sri Niwas Puri, New Delhi. Faiz Mohammad was given 10 days time to submit his report, who submitted it on 25.02.04, stating therein that random physical verification was conducted by him and photocopies of relevant documents taken from members of the CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.8 of 65 society were enclosed with the report. Documents enclosed by him, included copies of certificate of membership, receipt for share money and admission fee of Rs.110/- and share certificates of 17 members viz M S Nos.71, 79, 88, 98, 106, 116, 126, 136, 142, 145, 155, 163, 171, 180, 192, 206 and 217. Copies of share certificates of all members bear signatures of Secretary, President and Treasurer of the society. GEQD has opined that all these signatures have been made by accused Gokul Chand Aggarwal. During investigation, it revealed that none of 149 members are available on the addresses given in list of members, as most of addresses were non-existent and on remaining addresses given in the list, no person of given name/parentage ever resided there. Thus, it is apparent that application for revival and reports of Ram Nath and Faiz Mohammad were without any verification. On 20.02.04, accused Maan Singh had also issued letter to President/Secretary of the society to furnish original records of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.9 of 65 the society for verification on or before 27.02.04. Note dated 26.02.04 of the Dealing Assistant shows that Hem Raj, Secretary of the society, attended RCS office along with record/documents of the society. However, Ms.Sunanda, dealing assistant, clearly states in her statement recorded under section 161 of the Code that she wrote said note only on the direction of Maan Singh. She further sated that neither Hem Raj nor Gokul Chand Aggarwal had appeared before her with documents of the society.
8. Note dated 01.03.04 of dealing assistant was forwarded by Maan Singh without making even a single query on the said note of dealing assistant, though revival of the society was a crucial issue in the circumstances when file was missing and application for revival was made about 20 years after winding up. Processing of such matter was of great importance and caution at that time. Note dated 04.03.04, written by CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.10 of 65 Narayan Diwakar, clearly shows presence of Mrs.Rita Kaul, Advocate for the society. No vakalatnama of Ms.Kaul was available in the file. She did not even sign the note sheet either on 12.02.04 or on 04.03.04. She denied her appearance on said dates before Narayan Diwakar. Narayan Diwakar also falsely written that documents regarding holding of election were found in order and as per the Act and rules framed thereunder. However, provisions of the Act gives no cognizance to any meeting or election of the society, once it has been wound up.
9. Accused Narayan Diwakar had stated in his note dated 04.03.04 that proper procedure was not followed at the time of winding up of society. During investigation, no documents could be made available by RCS office. He had also referred in his note regarding incompetence of Dy.Registrar, who had passed winding up order without delegation of power under section 63 of the Act as exercisable by Registrar. However, CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.11 of 65 investigation reveals that power to wind up societies under section 63 of the Act were delegated to Dy.Registrar, vide office order dated 23.01.86 of then Registrar/Sh.G P Sewalia. At the end of the note dated 04.03.04, Narayan Diwakar reserved the case for orders, which was passed by him on 10.03.04, when revival of society was done. While passing the order of revival, Narayan Diwakar had put certain conditions on the society, viz pending audit shall be got completed within two months and appointed Narendra Singh Khatri, Gr.IV as election officer to conduct election of the managing committee within two months. P K Thirwani submitted his audit report for the period 1983-84 to 2002-03, which was prepared at the instance of Gokul Chand Aggarwal. Thus, it is alleged that the aforesaid accused persons, connived with each other and revived the society and approved its list of members to cheat DDA for allotment of land.
10. Accused/Narayan Diwakar (A-1), Maan Singh (A-3) CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.12 of 65 and Faiz Mohammad (A-5) had retired before filing of the charge sheet and, therefore, no sanction for their prosecution was required u/s 19 of the PC Act. However, sanction for prosecution of remaining accused public servants Ram Nath (A-4), P K Thirwani (A-6) and N S Khatri (A-7), has been obtained u/s 19 of P C Act and placed with charge sheet.
11. Accused/Narayan Diwakar (A-1) besides advancing arguments on the point of charge, also argued his three applications, which have been taken up for their disposal together with arguments on charge. His applications are about non-existence of specific and proper complaint, seeking appropriate direction for invoking doctrine of parity in view of the policy decision of the CBI and objecting to the jurisdiction of this court to try the present case with reference to the judgment of Hon'ble Supreme Court in A Subair Vs. State of Kerala, 2009, Cri.LJ 3450. He has also filed composite written arguments and CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.13 of 65 additional arguments on charge as well as his pending applications.
12. It has been argued by him that CBI had illegally investigated this case and the court should not proceed with the trial as a mute spectator and be party to the illegal investigation. He has relied upon judgment of Hon'ble Delhi High Court in R R Kishore Vs. CBI, 2006 VIII AD(Delhi) 545 in which it was held by Hon'ble Delhi High Court that if no objection is taken at the initial stage and trial proceeds then the same can be set aside only if it has resulted in miscarriage of justice. It was further observed by Delhi High Court that if the illegal investigation is brought to the notice of trial court at the initial stage then the court ought not to proceed with the trial and direct re- investigation so that defect in investigation is cured. It has been argued by accused/Narayan Diwakar (A-2) that the CBI has launched an illegal and unfair prosecution against him. This CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.14 of 65 court does not find any illegality in the investigation of the case and law does not confer a right on an accused to seek the direction for re-investigation of a case.
13. He has argued that the ld.Public Prosecutor has no locus standi as his/her appointment is not validly notified u/s 24/25 Cr.PC and urged that on this account, he has been deprived of fair prosecution as the prosecutors of CBI are subordinate and under strict control of CBI and have been assigned with the dual function of investigating as well as prosecuting which is against the mandate of Criminal Procedure Code.
14. The procedure and manner of appointment of public prosecutor is contained in Section 24 of Cr.PC and it is no where stated in that section that the Public Prosecutors are appointed by the Director of CBI, as they are recruited through Union CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.15 of 65 Public Service Commission (UPSC) and appointed by the President of India.
15. It has been submitted by ld.Public Prosecutor that after pronouncement of judgment in S B Sahaney and Others Vs. State of Maharashtra and Anr., 1995 SUPP (3) SCC 37, the prosecution department of CBI has been made a separate department and the Director of Prosecution is made the head of department and public prosecutors are answerable to him. She has then submitted that under these circumstances, it can not be said that the prosecution department is under the direct influence of Director CBI.
16. Since the Public Prosecutors of CBI are appointed u/s 24 of Cr.PC by the order of Hon'ble President of India, therefore, there is no substance in the submission of accused that Public Prosecutors are appointed by the Director CBI and CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.16 of 65 work under his direct control.
17. It has been submitted by the accused that the charge sheet has not been filed as per the provisions of Section 173 of Cr.PC as it bears the signature of ld.Public Prosecutor besides the Superintendent of Police (SP) and Investigating Officer (IO) of the case. Hence, it is urged by him that in the present case the prosecutor, who is involved in the investigation, can not fairly prosecute as he/she has become the part of the investigation. In this case, I find that there is no signature of Public Prosecutor on the charge sheet and furthermore even when the charge sheet is endorsed by the Public Prosecutor, it does not violate the mandate of Hon'ble Supreme Court in R Sarla Vs. T S Valu, AIR 2000 SC 1731, wherein the Hon'ble Supreme Court had laid down as under:-
" that the investigation and prosecution are two different facets in the administration of criminal CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.17 of 65 justice. The role of public prosecutor is inside the court and whereas the role of the investigating officer to investigate the case is outside the court. Normally, the role of the public prosecutor commences after the investigating agency presents the case in the court on the culmination of investigation. Involving the public prosecutor in investigation is in-judicious as well as pernicious in law. The investigating officer can not be directed to consult the public prosecutor and submit a charge sheet in tune with the opinion of the public prosecutor."
18. In fact the observation of Hon'ble Supreme Court in above referred case clarifies that the IO can not be directed by the court to consult the public prosecutors and submit a charge sheet in tune with the opinion of the public prosecutor. However, in case IO finds some difficulty during the investigation, he is not precluded from seeking opinion of the public prosecutor. Thus, I find that there is no such mandate of the court of law that the public prosecutor can not be consulted by the IO. Recommendation, if any, of the public prosecutor on the charge sheet may not amount to any interference with the investigation CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.18 of 65 because by that time the investigation is already complete as only before filing charge sheet the endorsement of public prosecutor may be obtained in some cases. In my view, it does not violate the mandate of law or result into any prejudice to the accused.
19. It has been further argued by accused/Narayan Diwakar (A-2) that he being Registrar of Co-operative Societies was acting as quasi judicial officer u/s 3 of DCS Act, 1972 and, therefore, order, if any passed by him, could not be questioned in any court of law on whatsoever grounds. He has argued that as per Section 94 of the DCS Act, he had all the powers of civil court and hence as per Section 95 of the same Act, no suit or prosecution or any other legal proceedings would lie against him or any person subordinate to him in respect of anything done in good faith or purported to have been done under this Act. CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.19 of 65
20. In this respect, I find that role assigned to the applicant in the charge sheet is that he, in conspiracy with other accused persons, including his subordinate officials and private public person dishonestly and fraudulently revived Shiv Puri CGHS on the basis of forged and fabricated documents submitted by accused/Gokul Chand Aggarwal (A-2) and he further falsely and dishonestly shown the presence of one Ms.Reeta Kaul, Advocate of the society. These acts on his part can not be called as doing the same in good faith or in due discharge of his duty, hence not protected u/s 95 of DCS Act.
21. It has been further argued by accused no.1 that no offence is made out u/s 13 of the PC Act as the prosecution has to prove that he had accepted either any bribe or any pecuniary advantage which is neither shown in the charge sheet nor statement of any of the prosecution witnesses recorded by IO. He has relied upon judgment cited as State of M P Vs.Sheetla CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.20 of 65 Sahai & Ors., (2009) 3 RCR (Crl.) 835, wherein while awarding the tender, the accused public servants had allegedly put the Government to the loss to the extent of Rs.1,02,46,200/-. However,Hon'ble Supreme Court held that the said award of contract was the need of the hour and that besides the fact that the accused had caused wrongful gain to the third party, section 13(1)(d) of PC Act shall still be not attracted as it requires that the award of the contract, given by the accused public servant was by abusing his position as a public servant. In Sheetla Sahai's case (supra), Hon'ble Supreme Court, after going through the facts of the case, had observed that decision of the accused therein at the relevant time, was rather in the interest of State. But in the present case, I find that the land was sought to be allotted to the society having all 149 fictitious members whereas the society had allegedly been liquidated, which do not show that the act was in the interest of State, rather it was detrimental to the interest of State. Thus, the facts of Sheetla CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.21 of 65 Sahai's case could not be compared with the facts of the present case and as such the ratio of law propounded by Hon'ble Supreme Court in that case is not applicable to the facts & circumstances of the present case.
22. Accused/Narayan Diwakar (A-1) has also relied upon judgment titled as A Subair Vs. State of Kerala, but I find that the said case was primarily the case of illegal gratification where no demand could be proved. Since instant case is not the case involving illegal gratification, therefore, there is no force in the submission of accused that demand should have been one of the ingredients of the offence alleged against him, which is lacking. Thus, he can not claim parity with the accused in A subair's case (supra).
23. The accused has further submitted that CBI has not adhered to the CBI Crime Manual and he has also relied upon CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.22 of 65 judgment cited as Shashi Kant Vs. CBI, AIR 2007 SC 351 and P Sirajudeen Vs. State of Madras, AIR 1971 SC 520, to contend that the Central Government has laid down certain procedures for conducting the investigation including the mode and manner in which the preliminary inquiry should be conducted by CBI which can later on be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence.
24. It is further argued that as soon as it is decided to register a PE, the SP of CBI will take action to get the PE registration report prepared, which will invariably be vetted by him and it can even be drafted by him in case of important inquiries. It is submitted that in the present case, the CBI Crime Manual was not adhered to as neither the approval from the director of CBI was obtained for registration of PE nor the SP of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.23 of 65 CBI converted the PE into a regular case.
25. In the instant case, the charge sheet shows that pursuant to the directions of Hon'ble Delhi High Court, vide order dated 02.08.05 passed in writ petition (Civil) No.10066/04, the CBI conducted a thorough investigation in the matter of 135 Co- operative Group Housing Societies. A preliminary inquiry was registered and subsequently a regular FIR was registered pursuant to findings of preliminary enquiry. The charge sheet does not disclose any such deviation of procedure by the CBI while registering or investigating the instant case.
26. It has then been submitted by accused that requirement of Section 3 of DSPE Act has not been fulfilled by CBI as the offences under DCS Act, 1972 are not at all notified by the Government for investigation by CBI. In this respect, it suffice to observe that the accused is not being prosecuted for CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.24 of 65 any offence under the DCS Act and, therefore, there can not be any issue regarding non notification of offences under DCS Act, 1972.
27. Accused/Narayan Diwakar (A-1) has further submitted that the consent of State has not been obtained before commencing the investigation which is violative of Section 6 of DSPE Act.
28. In this respect, I fully agree with the submissions of ld.Special Public Prosecutor for CBI that the issue was answered by Hon'ble High Court in Crl.M C No.2784/07 dated 17.09.07, wherein it was observed as under:-
" The investigation was referred to CBI in this case by the High Court. Once investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI.
CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.25 of 65 Investigation is done by police under Cr.PC. There is no such thing as investigation under Delhi Co- operative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the charge sheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
29. In this respect the matter stands finally settled by the Judgment of Constitution bench of Supreme Court in State of West Bengal & Others Vs. Committee for Protection of Democratic Rights CA No.6249-50/2001 decided on 17.02.10 wherein Hon'ble Supreme Court has observed as under:-
44.Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:-
CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.26 of 65
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.27 of 65 granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution , the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed.
Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.28 of 65 is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of " the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review" .
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.29 of 65 the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.30 of 65 judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of the either the doctrine of separation of power or the federal structure.
45. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.31 of 65 Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
30. Thus, I find that there has been no violation and Section 3 & 6 of DSPE Act by the CBI as claimed by accused/Narayan Diwakar (A-1).
31. It has also been submitted by accused/Narayan Diwakar (A-1) that there was no illegality in the order of setting aside the winding up of the society because as per the judgment of Hon'ble Delhi High Court in Vikas CGHS Vs. Registrar of Co- operative Societies & Ors (Civil Writ No.1767/96) and as per Rule 105 of DCS Act, 1972, the winding up proceedings of a CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.32 of 65 society has to be closed within one year from the date of winding up unless the period is extended by Registrar as proviso to Sub Rule 1 of Rule 105 provides that Registrar can extend the period not exceeding six months at a time and the extension can only be granted for a period of three years. It was observed by Hon'ble High Court that in their view it has to be assumed that the order passed u/s 63 of DCS Act was cancelled and the society continues to exist. Thus, it has been submitted by accused/Narayan Diwakar (A-1) that even without his order the society in question was deemed to be existing and thus there was no impact of revival order passed by him. The facts and circumstances of Vikas CGHS case are entirely different from instant case, as in that case the winding up order was passed after allotment of land to the society by DDA and part payment of cost of land, whereas in the instant case the allegations against accused/Narayan Diwakar (A-1) are very clear that he passed the order of cancellation of winding up of the society in CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.33 of 65 conspiracy with other accused persons for the purpose of obtaining for himself or for private accused persons a valuable thing or pecuniary advantage i.e allotment of land by DDA at cheaper rate and thus he abused his position as a public servant without any public interest while holding office as a public servant.
32. Arguing his application to invoke the doctrine of parity, it has been submitted by accused/Narayan Diwakar (A-1) that as per circular no.02/2010 dated 11.03.10, a policy decision was taken by CBI clarifying that employees of National Agricultural Co-operative Marketing Federation of India Limited (NAFED) are not public servants under P C Act, 1988, hence there would be no requirement of seeking permission of the Government u/s 6A of DSPE Act, 1946 or sanction of the Government for prosecution u/s 19 of the PC Act, 1988. Accused/Narayan Diwakar (A-1) was working as a Registrar of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.34 of 65 Co-operative Societies and he was not an employee of a society registered under DCS Act, hence he or other employees of RCS can not claim parity with employees of NAFED, who may be employees of that society. Thus, I find that none of the legal submission and applications of accused/Narayan Diwakar (A-1), as discussed above, hold any merits, hence liable to be dismissed.
33. Accused Narayan Diwakar has also relied upon judgment of Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar reported as 1979, Cri, LJ 154, wherein it was held by Hon'ble Supreme Court that while considering the question of framing of charge, the court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and if two views are equally possible and the judge is satisfied that the evidence produced CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.35 of 65 before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. Accused/Narayan Diwakar (A-1) has also sought discharge in view of order passed by Sh.Dharmesh Shrma, Spl.Judge (CBI), New Delhi on 20.07.11 in another case. But I find that the order of ld.Spl.Judge in that case was altogether under different set of facts and circumstances and hence does not help accused in any manner.
34. It has been submitted on behalf of accused/Gokul Chand Aggarwal (A-2) that ingredients of Section 420 IPC are not fulfilled as there was no valuable security or property and the complainant, who was to be deceived in this case. This is not a case in which the land was actually allotted by the DDA to Sri Shiv Puri CGHS. This is the case where an attempt was made by the accused to cheat office of RCS and DDA for the allotment of land after getting the society revived on the basis of fake and CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.36 of 65 forged documents and fictitious/bogus members. The FIR was registered on the directions of Hon'ble High Court after the matter was enquired into by the CBI by conducting a preliminary enquiry. It is also submitted by accused that GEQD report is the only evidence against him which is not admissible in view of judgment of Hon'ble High Court in Sapan Halder & Anr Vs. State [Crl.Appeal No.804/01, 191 (2012) DLT 225 (FB), decided on 25.05.12]. While going through the evidence arrayed by the prosecution against accused/Gokul Chand Aggarwal (A-2), we will see that there is not only GEQD opinion but also the other evidence which has to be considered.
35. As regards accused/Ram Nath (A-4) and Faiz Mohammad (A-5), ld.counsel for accused persons has stated that these accused persons have done only their duty as assigned to them and, therefore, they can not be charged with any of the offences. He has submitted that giving the report by CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.37 of 65 these accused persons is not a illegal act. It is correct that carrying out inspection and giving report is per se not an illegal act but submitting a false/bogus report along with forged documents in conspiracy with other accused persons attracts the penal provisions of law. He has also agitated some of the legal issues which have been addressed while discussing the arguments advanced by accused Narayan Diwakar (A-1).
36. Accused/P K Thirwani (A-6) has filed written arguments stating therein that he has been falsely implicated in this matter. He has submitted that he was not named in the FIR but charge sheet has been filed against him. It is not required under the law that the name of an accused should necessarily appear in the FIR and, therefore, at the time of filing of charge sheet, only the adequacy of evidence against a particular accused had to be seen by the IO. Accused has also submitted that his statement u/s 164 Cr.PC was obtained by IO of the case CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.38 of 65 under inducement and threat. These submissions are to be seen at the time of trial and not at the stage of framing of charge.
37. As regards accused/N S Khatri (A-7), it has been submitted by his ld.counsel that there is no evidence at all to support the case of the prosecution. It has been submitted by ld.counsel for accused/N S Khatri that accused has been implicated only on the basis of conjunctures and surmises and without any material/evidence.
38. Now, I shall proceed to look into the role assigned to each accused in view of the documents and oral evidence arrayed by the prosecution to prove the case against each of them.
39. Accused/Narayan Diwakar (A-1) acting as RCS, approved a note put up to him on 07.01.04, thereby approving CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.39 of 65 the course of action suggested by dealing assistant and accused/Maan Singh, AR(S) that since the main file of Sri Shiv Puri CGHS with registration no.578(GH) was not traceable hence circular to all zones and branches of RCS to search the file of Sri Shiv Puri CGHS within 15 days be issued and also providing therein that if it is not searched out within 15 days, it will be presumed that no such file is lying with zone/branch and simultaneously to inspect the said society u/s 54 of the DCS Act, 1954. Accused/Maan Singh (A-3) working as AR(S) issued the circular on 12.09.04, copy of which is available at page no.4/C (D-4). Said note is appearing at page no.1/N (D-4), which has been approved by A-1 without raising any query or making any effort to fix the staff side responsibility for missing of the file from RCS office, which strengthens a reasonable doubt that the RCS and staff working under him, were active in deliberately misplacing the file, so that whatever documents are produced by the private accused person, be accepted without any objection CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.40 of 65 and the order for revival as desired by private accused person, namely, Gokul Chand Aggarwal, is passed.
40. The letter of Sri Shiv Puri CGHS written under signatures of President/K P Singh dated 01.01.04 is available at page no.2/C (D-4) and the GEQD had opined that the signature in the name of Sh.K P Singh, President/Secretary of the society has been forged by accused/Gokul Chand Aggarwal (A-2).
41. Accused/Ram Nath (A-4), Gr.II, was appointed as Inspecting Officer in the matter by accused/Maan Singh, AR(S) on 08.01.04 as per the note appearing on page no.1/N (D-4) and the letter appearing at page no.5/C (D-4). It appears that appointment of accused/Ram Nath (A-4) as Inspecting Officer by AR(S) was part of a larger conspiracy to obtain a favourable report because when accused Ram Nath (A-4) had inspected the records of the society, he made a favourable forged and CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.41 of 65 fabricated report which is available at page no.136/C of D-4 enclosing with it the copies of forged documents apparently certified by the office bearers of Sri Shiv Puri CGHS i.e accused Gokul Chand Aggarwal by assuming different names.
42. In his report accused/Ram Nath had mentioned that he had inspected the office of the society at 110, Sri Niwaspuri, New Delhi and met Sh.Hem Raj, Secretary of the society, who produced all the relevant records of the society and informed him that there are 149 members existing in the society and the list of members has not yet been approved. He obtained a list of 149 members of the society as certified by President and Secretary of Sri Shiv Puri CGHS. All the signatures as opined by GEQD, have been made by accused/Gokul Chand Aggarwal (A-2), who had singed under assumed name of Sh.Hem Raj as Secretary and Sh.K P Singh as President. In the report, accused/Ram Nath (A-4) also stated that the society has shifted its office from CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.42 of 65 B-53/C, Kailash Colony, New Delhi-48 to 110, Sri Niwaspuri, New Delhi, which has been approved by Governing Body Meeting dated 28.09.03. He enclosed the copy of said Governing Body Meeting wherein again forged signatures of accused/Gokul Chand Aggarwal (A-2) are appearing in the name of Secretary of the society. Accused/Ram Nath (A-4) also certified that membership register was complete, accounts of society were unaudited since registration and the accounts were upto date which were ready for audit. He also enclosed copy thereof with his report. Besides, as per the documents filed by accused/Ram Nath (A-4) with his report the last meeting of the society was held on 30.09.03 and election of the managing committee of the society was held on 28.09.03 as per the DCS Act and Rules and all the records of the society were found in safe custody of Sh.Hem Raj, Secretary of the society. He also enclosed the certified copies of minutes of holding election on 28.09.03 and other records of the society with his report. He CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.43 of 65 reported that it was revealed that the society was put under liquidation vide order dated 13.03.89 as it had failed to achieve its object, fulfill its statutory obligations, managing committee not taking interest in the affairs of the society and impossibility of the society achieving its object in near future.
43. He recommended that the present managing committee has maintained the records as per statutory requirements and is instrumental in its efforts for revival of the society for providing dwelling units to its members for having shelter of their own. This report was submitted by him for further action. The annexures of his report are available at page no.6/C to 135/C of D-4 which all are forged by accused/Gokul Chand Aggarwal (A-2) in the name of Secretary/Hem Chand, who is non existing person.
44. Although, the report of accused/Ram Nath does not CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.44 of 65 bear the date on any of the pages 136/C to 138/C (D-4) but the note put up by dealing assistant at page 2/N to 3/N (D-4) states that the inspection report is dated 29.01.04. The note was put up by dealing assistant to the AR(S) i.e. Maan Singh, wherein accused/Maan Singh, AR(S) had recommended that the documents may be taken on record in order to reconstitute the file of the society and the request of the society for its revival under section 63(3) of the DCS Act, 1972 may be considered by initiating quasi judicial proceedings in this regard.
45. The proposal was submitted by accused/Maan Singh, AR(S) to the RCS directly through his reader and not through his immediate superior i.e DR & JR, as is shown at page no.3/C (D-4). On receiving the proposal dated 04.02.04, accused/Narayan Diwakar (A-1), who was then RCS had signed the same on 04.02.04 itself (Page 3/C).
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46. A note is appearing on page no.4/C (D-4) dated 12.02.04 in which accused/Narayan Diwakar, RCS had shown presence of Ms.Rita Kaul, Advocate representing the society and directed the reader to send the file to the concerned zone for verification of records pertaining to membership, audit and election and also directed AR to conduct spot verification of membership and submit his report on next date of hearing i.e. 04.03.04. On receipt of the file, accused/Maan Singh, AR(S) appointed accused/Faiz Mohammad (A-5) as Inspecting Officer for physical verification of members as is shown at page no. 4/C(D-4) and his order dated 20.02.04 available at page no. 141/C (D-4). By the said order, accused/Faiz Mohammad, Gr.II (A-5) was directed to carry out physical verification as well as door to door survey of members of Sri Shiv Puri CGHS.
47. In response to this order, accused/Faiz Mohammad (A-5) submitted his physical verification report dated 25.02.04 CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.46 of 65 appearing at page no.208/C stating that the list of members of Sri Shiv Puri CGHS, has been physically verified at random by him during the spot verification as directed vide order dated 20.02.04 enclosing with it the photocopies of relevant documents taken from the members of the society. The list of members along with certificate, copy of money receipts and copy of share certificates obtained from S/Sh.Jiwan Dass, S Mahajan, Parkash Sethi, Raj Kumar, Lekh Raj,Vinod Kumar, Smt.Kalpana Rani, Smt.Sarita, Ms.Asha Devi, Ran Singh, S N Bhatia, G P Bagga, ML Anand, Md.Akram, M R Arora, K L Kapoor and Ms.Urmila Jain, are enclosed with the report of accused/Faiz Mohammad (A-5) which are available at page no.152/C to 203/C. All the names mentioned in the list of members enclosed with his report have been found to be fictitious during investigation and the witnesses have been examined by CBI about the verification of the members at the given addresses. All these documents have been found to be forged bearing certification by accused/Gokul CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.47 of 65 Chand Aggarwal (A-2), which bear his signatures as office bearer of the society, as opined by GEQD.
48. Thus, it is clear that accused/Faiz Mohammad (A-5) had submitted forged and fabricated report along with forged documents as provided to him by accused/Gokul Chand Aggarwal (A-2) without doing any physical verification which also shows that his appointment as inspecting official was part of conspiracy hatched between accused persons that he will give a favourable report as desired by the remaining accused persons. On receipt the report of accused/Faiz Mohammd (A-5), a detailed report was put up by dealing assistant on 01.03.04 through AR(S)/Maan Singh which is available at page no.5/N to 16/N (D-4).
49. Before putting up that note, the dealing assistant had recorded presence of Sh.Hem Raj, Secretary of the society on CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.48 of 65 26.02.04 along with the documents/records of the society, which were taken on record and thereafter the dealing assistant had sought permission for putting up the detailed proposal as per the directions of RCS. At the left side margin of the note dated 26.02.04, the signatures of Sh.Hem Raj, Secretary of the society have been obtained. The said Hem Raj is stated to be assumed name of accused/Gokul Chand Aggarwal (A-2), who had represented himself as Secretary of society. The documents submitted by him are available in D-4 from page nos.142/C to 151/C, which are the affidavits of the society verifying the facts, as prepared by accused/Gokul Chand Aggarwal (A-2).
50. The detailed note of dealing assistant dated 01.03.04, which was got prepared by accused/Maan Singh (A-3) through dealing assistant (page 5/N to 16/N of D-4) shows that initially the society was registered with 70 promoter members and subsequently prior to 30.06.86, 149 members were enrolled CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.49 of 65 and by that date 70 members (i.e all promoter members) had resigned, thus leaving behind present strength of 149 members whose names and membership numbers are mentioned at page no.12/N to 15/N. On the basis of this detailed note, the proposal was put up by accused/Maan Singh (A-3) directly to RCS through his reader for consideration.
51. The matter was taken up by RCS i.e A-1 on 04.03.04, wherein he observed that inspection was carried out u/s 54 of DCS Act by the Inspector of the department, who has given a favourable report, who has checked and verified each and every paper submitted by the society and the society has submitted list of members as on date. He observed that the documents regarding holding of elections are scrutinized and found in order as per the DCS Act and Rules. He further stated that the society had prepared its books of accounts and the concerned zonal officer recommended the case for revival of the CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.50 of 65 society. He has observed that winding up order was passed by then Dy.Registrar which shows that proper procedure was not followed while winding up the society as reasons given were not adequate for initiating such an extreme step for winding up of society. He observed that such order for winding up of society without proper application of mind is not conducive for the co- operative movement in Delhi. He noted that during the course of arguments, the counsel for the society also mentioned that the Dy.Registrar, who had passed the order u/s 63 of the DCS Act was not competent to decide the matter. He observed that there is nothing on record that such powers u/s 63 which are exercisable only by the Registrar, were deleted to the Dy.Registrar by the competent authority and, therefore, it appears that the order was passed in large number of societies without any authority and convenient reasons. He also observed that it appears that the society was not given sufficient opportunity either to reply to the show cause notice issued or to CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.51 of 65 rectify the shortcomings mentioned in the notice issued by the RCS. He thus reserved the matter for orders and subsequently the detailed order was passed by him on 10.03.04.
52. It is worthwhile to mention that presence of Ms.Rita Kaul, Advocate was shown by accused/Narayan Diwakar (A-1) in his order dated 12.02.04 and 04.03.04 but Ms.Rita Kaul, Advocate, who has been examined by CBI has stated that she never appeared in this matter before RCS and has not filed any vakalatnama. Her signatures were not obtained on any of the order sheets to show her presence on behalf of the society.
53. The discrepancies of the order passed by accused/Narayan Diwakar (A-1) have been detailed in para no. 12 of the charge sheet which need not be repeated again for the shake of brevity. While canceling the winding up vide order dated 10.03.04, accused/Narayan Diwakar (A-1) had put up two CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.52 of 65 conditions i.e pending audit shall be got completed within two months and he also appointed Sh.Narendra Singh, Gr.II as election officer to conduct the election of the managing committee of the society within two months from the date of his order. But before any of those two conditions could be complied with, accused/Maan Singh (A-3) on 11.03.04 approved the note of the dealing assistant for forwarding the list of 149 members of Sri Shiv Puri CGHS to AR (Policy) for onward submission to DDA for allotment of land and AR(Policy) had forwarded the list to DDA vide his letter dated 25.03.04 along with the list of 35 societies.
54. As regards accused/P K Thirwani (A-6), it is alleged that he had filed a consolidated audit report for 20 years i.e from 1983-84 to 2002-03 after showing that he conducted the audit on 14.03.04 and enclosed with his report a receipt of his audit fee dated 15.03.04 i.e. subsequent to the audit report. The office of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.53 of 65 the society in the audit report has been shown as 110, Sri Niwaspuri, New Delhi, whereas during investigation it was found to be incomplete and non existing address. In the statement made by accused/P K Thirwani u/s 164 Cr.PC before Ld.MM (available as D-23), he has admitted that he had prepared the audit report at the instance of accused/Gokul Chand Aggarwal (A-2) at the later's office on receipt of Rs.10,000/- as illegal gratification. He further confirmed that he never visited the office of the society nor did he meet any office bearers of the society. He himself signed as President, Secretary and Treasurer of the society at the bottom of page no.92 of his audit report.
55. The said forged and fabricated audit report is contained in file D-21 and GEQD opinion is there in respect of the signatures on the audit report. The specimen signatures of accused persons and other persons are available as D-19 which CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.54 of 65 comprise of the specimen signatures/writings of S/Sh.Satish Mathur, Gokul Chand Aggarwal, Niranjan Singh, Narayan Diwakar, N S Khatri, Faiz Mohammad, Ram Nath, Maan Singh, Mohit Saxena, P K Thirwani, Sri Chand, Ashwani Sharma, G S Bisht, S P S Bhatti, S P Saxena, Sanjay Kumar Kapasiya, Ashok Kumar Johri and Ashutosh Pant.
56. Accused/Gokul Chand Aggarwal (A-2) had forged signatures in the name of Sh.K P Singh, President. He had submitted all the forged signatures by signing as President/Secretary/Vice President, signed as Ram Avtar, Election Officer of the society and made signatures of other members. He had signed and certified the registration certificate of the society which is available at page 105/C (D-4). He had signed the share certificates collected by accused/Faiz Mohammad (A-5) bearing signatures of President/Secretary/Treasurer and also in the name of Ms.Sarita CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.55 of 65 and Ms.Asha on the certificates purportedly given by them. Winding up order is placed at page no.106/C (D-4), Sh.Satish Mathur has stated to CBI that the signature appearing on the winding up order is not his signatures (Q-286) and GEQD has also given opinion about the same.
57. Accused/Narendra Singh Khatri (A-7) who was then posted as Reader to RCS, was appointed election officer to conduct election of Sri Shiv Jyoti CGHS within two months of the issue of order dated 10.03.04. It is alleged that he conducted election of the managing committee of the society, he could have brought the actual position of the society to the record. His name finds mentioned in the order dated10.03.04 (page no. 216/C, D-4).
58. Besides the documents as mentioned in the list comprising of 34 files/documents the prosecution has arrayed CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.56 of 65 162 witnesses to prove the allegations, out of which statements of 120 witnesses as examined by IO u/s 161 Cr.PC, are available on record. Sh.V K Bansal (PW-1) has explained the procedure for registration of society, GBM, audit, election, winding up, liquidation and revival of wound up societies. He was shown the files of Sh.Shiv Puri CGHS and after seeing the same he said that all the 70 initial members who got the society registered, have been shown resigned and 149 new members have been shown enrolled during 1983-86. Sh.Satvir Singh (PW-2) is a stamp vendor from whom the stamp papers, on which affidavits are made in this case, were purchased by accused/Gokul Chand Aggarwal (A-2). He also identified accused/Gokul Chand Aggarwal (A-2) in CBI office. Smt.Sunanda (PW-3), who was posted in RCS office during March, 2003 to March, 2005 had dealt with the files in this case and identified her signatures/initials of the same for different dates during January to March, 2004. She stated that she had no idea of working at CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.57 of 65 the said seat so she used to write notes after seeing the similar notes from the other files and as guided by accused/Maan Singh (A-3), AR(S). She identified the signatures of various officials involved in this case on the noting file and other documents.
59. Sh.Niranjan Singh (PW-4), who worked in RCS office as Head Clerk from May, 1999 to 13.11.03 has stated, after seeing the winding up order dated 13.03.89, that the same is not genuine as signature thereon is not of Sh.Satish Mathur, the then Dy.Registrar and that there was no mention of the liquidation proceedings to be followed up after winding up. Sh.Satish Mathur himself has been examined as PW-5, to the same effect. PW-Niranjan Singh also said that while passing order cancelling winding up, accused/Narayan Diwakar (A-1) could have collected genuine order from DR(Liquidation) to whom the order in file is shown as marked or from P&S Section, Office order file or from AR(Audit) and that the cancellation of CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.58 of 65 winding up order could not have been done as per Section 76(2) of DCS Act and appeal could be filed against winding up only within two years and under DCS Rules the liquidation proceedings are presumed to be over after 3 years from the date of winding up order.
60. Smt.Reeta Kaul, Advocate (PW-6) has been examined to the effect that she did not appear in this matter before RCS on 12.02.04 or 04.03.04. She also stated that she knew Gokul Chand Aggarwal as he had been approaching her for some work relating to cooperative societies and she had helped him professionally on few occasions. PW-7 to PW-25, 28, 33 to 120 & 124 are about verification of names of various members of the society which have been found as fictitious. PW-26 Sh.Gaurav Gupta is son of late Arun Kumar Gupta, Notary Public, who stated that his father was bed ridden during August, 2001 to January, 2002 when he died on 15.01.02. He CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.59 of 65 stated that the affidavits of Sh.K P Singh, Hem Raj and 149 members of Shivpuri CGHS all dated 23.02.04 shown notarized by his father are false and forged.
61. PW-27/Sh.Panchanand Joshi, PW-121/S P Sharma and PW-125/S K Sharma have been examined about the illegality committed by accused/P K Thirwani in conducting audit of society. PW-29/Mr.Rajiv Navani is LDC in RCS office who was posted in South Zone of RCS during February, 2003 to December, 2004. Besides identifying signatures of various officials of RCS on file, he also stated that accused/Gokul Chand Aggarwal (A-2) used to visit Maan Singh (A-3). PW-31/Sulekh Chand Sharma is inspector of G K Post Office, who stated that he verified the address and gave a report that H.No.B-53/C never existed in Kailash Colony. PW-32/Jeet Ram, Postman has also stated same facts.
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62. PW-125/Sushil Kumar Sharma, besides telling about the role played by A-6/P K Thirwani, also stated that P K Thirwani (A-6) along with Gokul Chand Aggarwal (A-2) had come to Sh.J S Sharma, AR(Audit) who received two copies of the audit report in question from Sh.J S Sharma and gave acknowledgment by signing as H.Raj. PW-126/J K Baswala has been examined about the power delegated to Dy.Registrar on 23.01.86 for winding up of societies and cancellation of registration under DCS Act and Rules.
63. PW-127/Naveen Kaushik has identified that signatures in the name of Sh.K P Singh, Sarita, H.Raj besides signatures of candidates and members on various documents have been made by accused/Gokul Chand Aggarwal. PW-128/S P Singh Bhatti, Ex.JR has been examined about forgery of the registration certificate of Sri Shiv Puri CGHS as submitted to RCS office.
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64. Thus, the above discussion of facts and evidence would show that there is sufficient documentary and oral evidence as against accused/Narayan Diwakar (A-1); Gokul Chand Aggarwal (A-2); Ram Nath (A-4); Faiz Mohammad (A-5) and Prahlad Kumar Thirwani (A-6) to frame charge. AS regards accused/N S Khatri (A-7), I do not find any documentary or oral evidence to draw a prima facie opinion that he was involved in the alleged offences.
65. Ld.Public Prosecutor has drawn attention of the court towards the testimony of PW-123/Yogi Raj, who had stated that had accused/N S Khatri (A-7) conducted election of the society, the facts could have been brought on record. The appointment of accused/N S Khatri (A-7) as election officer to conduct election of Managing Committee of the society was one of the conditions in the revival order dated 10.03.04 subject to which CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.62 of 65 winding up order was cancelled. But the order was to be got noted from him for compliance. The election was to be completed within two months from the date of order. However, there is no evidence available on record that the said order was got noted from accused/N S Khatri (A-7) or that he had received the copy of order.
66. Even if it is presumed for the shake of arguments that the order, was received by him, mere non compliance of the order could only amount to a dereliction of duty, making him liable for disciplinary proceedings but not a criminal action because mere doubt can not form the basis of an assumption that he was also involved in the conspiracy hatched between remaining accused persons. I accordingly discharge accused/N S Khatri (A-7) for want of sufficient evidence.
67. In view of above discussion of facts and evidence, I CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.63 of 65 find that a prima facie case to frame charge u/s 120 B r/w Section 420/468/471 IPC and Section 13 (2) r/w 13 (1) (d) of P.C.Act, 1988 is made out against accused Narayan Diwakar (A.
1), Gokul Chand Aggarwal (A-2), Ram Nath (A.4), Faiz Mohd.(A.
5) and P K Thirwani (A-6). Besides, a prima facie case to frame charge for substantive offence u/s 15 r/w Section 13 (1)(d) of PC Act, 1988 is made out against accused public servants Narayan Diwakar (A.1), Ram Nath (A.4), Faiz Mohd.(A.5) and P K Thirwani (A.6). Additionally, the prima facie case to frame charge for substantive offences u/s 420 r/w 511, 468, 471 r/w Section 468 IPC is made out against accused accused/Gokul Chand Aggarwal (A-2) and for substantive offences u/s 468 and 471 r/w 468 IPC is made out against accused Ram Nath (A.4), Faiz Mohd. (A.5) and P K Thirwani (A-6). I, therefore, direct that the charge be framed against accused persons accordingly. Accused N S Khatri (A.7) stands discharged and therefore, his bail bond is cancelled and surety stands discharged. CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS) Page No.64 of 65
68. It is clarified that nothing in this order shall be taken as comment on the merits of the case.
Announced in the open ( R.P.PANDEY )
Court on 30.10.12 SPL.JUDGE, CBI (01)
ROHINI COURTS, DELHI
CBI No.04/08 CBI Vs. Narayan Diwakar & Ors. (Shiv Puri CGHS)
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