Delhi District Court
Central Bureau Of Investigation vs A-1 N. Diwakar on 29 April, 2022
IN THE COURT OF SPECIAL JUDGE (P. C. ACT) (CBI-20)
FROM ROHINI COURT COMPLEX: NORTH : DELHI
CBI 50/19 (28/16)
(CNR No. DLCT11-000113-2019)
R.C No. DST/0010(S)/2005/STF/CBI/ND
U/s 120-B r/w 420/511/468/471 IPC
and U/S 13(2) read with Section 13(1)(d) & section 15 of the
Prevention of Corruption Act, 1988 and the substantive
offenses thereof.
Central Bureau of Investigation
5B, 3rd Floor, CGO Complex,
New Delhi.
VERSUS
A-1 N. Diwakar
S/o late Sh. Chhathi Lal
G-30, Masjid Moth,
Delhi 110 048 Accused No. 1
A-2 Sanjeev Bharti
S/o late Sh. Mohindra Bharti Madan
R/o Block C-4C, Pocket 14, Flat No. 113
Janakpuri,
New Delhi- 110 058. Accused No.2
A-3 Neeranjan Singh
(since deceased as per order dt. 02.03.2020)
S/o late Sh. Babul Lal
R/o H.No. 309, Delhi Govt. Flats,
Karkardhooma,
Delhi Accused No. 3
A-4 Prahlad Kumar Thirwani (P. K. Thirwani)
S/o Late Sh. Moti Ram Thirwani
R/o 348E, Pocket-II, Mayur Vihar,
Phase-I, Delhi 110 091. Accused No.4
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A-5 Sri Chand
S/o late Sh. Hari Singh
R/o H.No. 274-A, Pocket-C,
Mayur Vihar, Phase-II,
Delhi 110 091. Accused No.5
A-6 Sushil Kumar Sharma
S/o Madan Lal Sharma
R/o Vill. Lalsa, PO Dansa,
Tehsil Rampur, Distt. Shimla,
Himachal Pradesh. Accused No.6
A-7 Anna Wankhade
S/o late Sh. Parhuji
R/o 148E, Pocket A-2,
Mayur Vihar, Phase-III,
Delhi Accused No.7
Date of registration of FIR : 14.12.2005
Date of filing of Charge-sheet : 29.11.2006
Arguments completed on : 15.03.2022/13.04.2022
Date of judgment : 29.04.2022
Appearance
Sh. Pramod Singh, Ld. PP for CBI
Sh. Abhishek Prasad, Ld. Counsel for A-1, A-5, A-6 & A-7
Sh. Anil Kumar, Ld. Counsel for A-2
Sh. S.K. Bhatnagar, Ld. Counsel for A-4
JUDGMENT
Brief facts of the case:
1. Accused N. Diwakar (A-1) the then RCS, accused Sanjeev Bharti (A-2) the then Steno Grade III in the Office of Registrar Co operative Societies (RCS), Parliament Street, New Delhi, accused Neeranjan Singh (since deceased) (A-3), accused Prahlad Kumar Thirwani (A-4), the then Sr. Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 2 of 99 Auditor O/o RCS, accused Sri Chand (A-5), accused Sushil Kumar Sharma (A-6) and accused Anna Wankhade (A-7) were charge-sheeted by CBI pursuant to an FIR registered on 14.12.2005 against these accused persons following a Preliminary Enquiry on the basis of an order dated 02.08.2005 passed by Hon'ble High Court of Delhi in Civil Writ Petition no. 10066/2004.
2. The allegation against the accused persons as disclosed from charge sheet is that they were party to a criminal conspiracy whereby they agreed to do or cause to be done an illegal act or acts which are not illegal, by illegal means and with the object to cause wrongful gain to individuals and corresponding wrongful loss to DDA/Govt by way of facilitating allotment of land to "Narmad CGHS Ltd." from the DDA at highly subsidized rates, which was much below the market rates, by preparing forged documents and by abuse of official position of A-1 to A-4 as public servants.
3. Investigation conducted by CBI revealed that "Narmad CGHS" was registered with the Office of Registrar Co-operative Societies vide Order No. F.126(H)/AR(H)/8739 dated 24.04.1972. Since "Narmad CGHS"
was not functioning in accordance with the relevant rules and regulations, it was put under liquidation by the then Dy. Registrar, vide his order dated 18.12.1978. Subsequently, the liquidation proceedings were initiated against "Narmad CGHS" and Sh. Narinder Kumar was appointed Liquidator, Co-operative Societies. He sent various summons in the year 1990 to the President and Secretary Sh. C.R. Joshi of "Narmad CGHS" regarding liquidation proceedings U/s 63 of the Delhi Co-operative Societies Act, 1972 and summoned them but these letters were returned undelivered and the office bearers did not present Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 3 of 99 themselves before the Liquidator.
4. Investigation further revealed that vide letter dated 30.01.2003 purported to be written by the Secretary of "Narmad CGHS" Sh. Arvind Chauhan whereby he informed the Registrar, Co-operative Societies that lately it came to their notice that their Society had been under liquidation u/s 63 of DCS Act, 1972 without giving any opportunity to the Society. It was also stated that the Society was never served with any show cause notice u/s 63 of DCS Rules nor with any such order u/s 63 to wind up their Society and thus it was claimed that the Society was totally ignorant about such an order passed by RCS office. It was prayed to recall the order of liquidation u/s 63 of DCS Act, 1972, condonation was sought for irregularities due to lack of knowledge to run the Society and approval of and forwarding of final list of 120 members was requested. Sh. J. S. Sharma, Asstt. Registrar (South) issued Order No. F.47/126/GH/S/Coop/79-80 dated 11.02.2003 to Neeranjan Singh (A-3) and directed him to act as Inspecting Officer and bring out the factual position of the Society and other relevant documents and submit his report at the earliest. Accused Neeranjan Singh falsely reported that all the Society records were found under the custody of Sh. Arvind Chauhan, the Secretary of the Narmad CGHS and were in order.
5. Investigation also revealed that vide order No. RCS/126/GH/S/Coop/12601-06 dated 07.03.2003, N. Diwakar (A-1), in pursuance of the said criminal conspiracy cancelled the winding up order dated 18.12.1978, in exercise of the powers vested in him u/s 63(3) of the Delhi Co-operative Societies Act, 1972, subject to the condition that election of management committee and the pending audit should be got completed within two months time and the final list of 120 members Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 4 of 99 would be sent to DDA. N. Diwakar (A-1) also appointed Sanjeev Bharti (A-2) as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of the order. In his order dated 07.03.2003, N. Diwakar (A-1) falsely mentioned that "President and Secretary appeared and made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 06.02.2003 to this effect" whereas in fact only Smt. Rashmi Gulati, Advocate of Narmad CGHS had appeared before N. Diwakar and the President/Secretary of the Society did not appear before the RCS during the proceedings. Smt. Rashmi Gulati was appointed by accused Sri Chand (A-5) to represent the society.
6. Investigation further revealed that Prahlad Kumar Thirwani (A-4) was directed to conduct the audit of the "Narmad CGHS" for the period 1972-73 to 2001-2002 and he submitted his audit report for the said period. It was further revealed that Neeranjan Singh (A-3) did not visit the Regd. Office of "Narmad CGHS" shown to be located at E-20, Defence Colony, New Delhi on 13.02.2003 and submitted a fake report dated 14.02.2003 mentioning that he met Sh. Arvind Chauhan, Secretary of the society at E-20, Defence Colony, New Delhi and falsely mentioned that he found the records of the society under the safe custody of Sh. Arvind Chauhan.
7. Investigation further revealed that Sanjeev Bharti (A-2) did not conduct the election of the society at the registered office of the society at E-20, Defence Colony or elsewhere and he submitted false election report and proceedings bearing bogus signatures of the members/office bearers of the "Narmad CGHS" showing as if the election was conducted by him on 29.03.2003.
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8. Investigation further revealed that P.K. Thirwani (A-4) did not visit the society office for the purpose of conducting audit of the society nor any society office bearer came to him for the purpose of conducting of the audit of the society. He submitted forged documents and false audit reports about conducting audit of the "Narmad CGHS" for the period 1971-72 to 2001 to 2002.
9. Investigation further revealed that Sh. Krishan Lal Batra S/o late R.T.M Batra, Arun Batra s/o K.L. Batra and Smt. Meera Batra W/o Sh. Arun Batra owners/resident of E-20 Defence Colony, New Delhi never gave their house for use of any society including "Narmad CGHS" to anybody and such society never functioned from their said premises. No society meeting ever took place and no official from DDA, RCS office ever visited the premises for any enquiry or any other purpose. Election of Narmad CGHS were never held at the said premises. It is further revealed that Sh. Arvind Chauhan has neither been a member of the Narmad CGHS nor its office bearer. He had nothing to do with this society. He did not sign any of the documents pertaining to "Narmad CGHS" and never met any RCS officials/officer.
10. It is alleged that all the persons shown as office bearers of the society never remained office bearers of the society and their signatures have been forged on the relevant documents. The members added to initial original 50 members, are all fake and non-existent. They never became/remained members of the Narmad CGHS. They did not even fill their application forms or sworn affidavits. Their signatures have been forged on these documents. All the affidavits filed in the year 2003 do not bear the remarks of identification of the deponent before the notary and as such all these affidavits are invalid and could not have been taken Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 6 of 99 on record for the purpose of revival of Narmad CGHS.
11. The investigation further revealed that Anna Wankhade (A-7) and Sushil Kumar Sharma (A-6) worked with Sri Chand (A-5) in his office at Mayur Vihar and they were involved with Sri Chand (A-5) in preparing various forged documents of various societies. Ante-dated records of Annual General Meeting, Managing Committee Meetings, election records of the Narmad CGHS have been forged by Sri Chand (A-5), Anna Wankhade (A-7) and Sushil Kumar Sharma (A-6). They prepared the records to show as if the meetings and elections have taken place in normal course from time to time. In reality such Annual General Meetings, Managing Committee Meetings, Elections never ever took place in respect of the Narmad CGHS at any point of time. Further, registered letters were sent to all the 120 members of the Narmad CGHS and barring few all the letters returned unserved as the addressee member did not live at the given address or there was no such address. The addresses have been found to be false/non existent.
12. It was thus alleged that the accused Sanjeev Bharti (A-2), Neeranjan Singh (A-3), P.K. Thirwani (A-4), Srichand (A-5), Sushil Kumar Sharma (A-6) and Anna Wankhade (A-7) have committed the offence u/s 120 B IPC r/w section 420/511, 468 and 471 IPC and Section 13(2) r/w section 13(1)(d) of the PC Act, 1988. Accused N. Diwakar (A-1) Neeranjan Singh (A-3) and P.K. Thirwani (A-4) had committed the offences U/s 15 r/w section 13(1)(d) of the P.C. Act, 1988. Accused Sanjeev Bharti (A-2) has committed the offences u/s 420/511, 468, 471 IPC and section 15 r/w section 13(1)(d) of the PC Act, 1988. Besides, this the accused Sri Chand (A-5), Sushil Kumar (A-6) and Anna Wankhade (A-7) have also committed substantive offences u/s 420/411, 468 and 471 IPC.
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13. Sanction order for taking cognizance required u/s 19(1)(c) of PC Act, 1988 in case of Public Servants was obtained from the competent authority and was filed with the charge-sheet. No sanction was obtained qua accused N. Diwakar as he had already retired by the time present FIR was registered.
CHARGE
14. Ld Predecessor of this Court vide detailed order dated 18.02.2011 reached the conclusion that prima facie case is made out against all the accused persons. Accordingly, on 15.04.2011, all the accused persons were charged with the offenses punishable u/Sec. 120-B r/w Section 511/420, 468, 471 IPC and section 13(2) r/w Section 13(1)(d) of the PC Act. Accused Sanjeev Bharti (A-2) was also charged with offense punishable u/s 468 & 471 r/w section 468 IPC and U/s 511 r/w section 420 IPC and offense u/s 13(2) r/w section 13(1)(d) of the PC Act, 1988. Accused Sushil Kumar Sharma (A-6), Anna Wankhade (A-7) and Sri Chand (A-5) were also charged with offense punishable u/Sec. 468 & 471 r/w 468 IPC and U/s 511 r/w 420 IPC. Accused Neeranjan Singh (A-3) was also charged with offense punishable u/s 468 & 471 r/w 468 IPC and u/s 511 r/w 420 IPC and offense U/s 13(2) r/w section 13(1)(d) of the PC Act, 1988. Accused N. Diwakar (A-1) was also charged with offense punishable u/s 471 r/w 468 IPC and U/s 511 r/w 420 IPC and offense U/s 13(1)(d) of the PC Act, 1988. Accused P. K. Thirwani (A-4) was also charged with offense punishable u/s 468 & 471 r/w 468 IPC and u/s 511 r/w 420 IPC and offense u/s 13(2) r/w section 13(1)(d) of the P. C. Act, 1988.
DEATH OF AN ACCUSED
15. During trial accused Neeranjan Singh (A-3) expired and the proceedings Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 8 of 99 against him abated vide order dated 02.03.2020.
EVIDENCE OF PROSECUTION
16. In order to prove its case prosecution examined 82 witnesses. PW1 Sh.
Suresh Kumar, examined by prosecution, sought to prove that he neither become the member of Narmad CGHS nor had applied for its membership nor attended any General Body meeting of Narmad CGHS vide attendance sheet Ex.PW1/A {D-12(1)}, Ex.PW1/A {D-11(1)}, Ex.PW1/C {D-15(1)}, Ex.PW1/F {D-16(1)}, Ex.PW1/H (D-10). He further sought to prove that he had not executed the affidavit Ex.PW1/D {D-1 (97)} FILED in RCS office nor had he filed an application for membership for enrollment as member Ex.PW1/E {D-76(6)} nor had made any payment for his enrollment vide receipt dated 10.05.1984 Ex.PW1/G {D-3(120)}.
17. PW2 Smt. Kanta Sharma sought to prove that she never applied nor signed the application for membership of Narmad CGHS Ex.PW2/A {D- 3(119)} and never attended General Body Meeting of Narmad CGHS held on 25.12.2002 vide attendance sheet Ex.PW2/B (D-14). She further sought to disown Form E-2 Ex.PW2/C (D-20) vide which her name had been proposed as member of the society. She further sought to prove that she never attended General Body Meeting of Narmad CGHS held on 29.03.2003 Ex.PW2/D {(D-55(2)} and Sh. Rahul Rishi never remained her tenant as is shown in affidavit Ex.PW2/E {D-1(120)}.
18. PW3 Sh. Jeevan Kapoor, sought to prove that he neither become the member of Narmad CGHS nor had applied for its membership nor had attended any General Body meeting of Narmad CGHS vide attendance sheet Ex.PW1/A {D-12(1)}, Ex.PW1/A {D-11(1)}, Ex.PW1/C {D- 15(1)}, Ex.PW2/D {D-55(2)}. He further sought to prove that he had not Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 9 of 99 executed the affidavit Ex.PW3/A {D-1 (113)} nor had filed an application for membership for enrollment as member Ex.PW3/B {D- 13(113)} nor had made any payment for his enrollment vide receipt dated 10.05.1984.
19. PW4 Sh. Sushil Malik sought to prove that he never tendered any affidavit Ex.PW4/A {(D-1(93)} to RCS office at any point of time nor ever signed application for membership Ex.PW4/B {D-3(93)}. He further sought to prove that he never attended the General Body meeting vide attendance sheet Ex.PW1/A and Ex.PW1/C. He further sought to prove that he never proposed the name of Sh. Kanta Sharma for membership of Narmad CGHS vide application for proposal Ex.PW2/C.
20. PW5 Sh. Arun Malhotra sought to prove that he never tendered any affidavit Ex.PW5/A (D-109) to RCS at any point of time and never signed application for membership Ex.PW5/B (D-109). He further sought to prove that he never attended the General Body meeting vide attendance sheet Ex.PW1/A {(D-12(1)}, Ex.PW1/C {D-15(1)}, Ex.PW1/F {D-16(1)}. He further sought to prove that his brother Sh. Vivek Malhotra never tendered any affidavit Ex.PW5/C (D-58) to RCS office at any point of time. He further sought to prove that he did not know who had written the name of his brother and signed the same against the name of his brother at point C and A on General Body Meeting proceedings dated 29.03.2003 Ex.PW2/D {D-55(2)} and Ex.PW5/F (D-13). He further sought to prove that brief summary of society dated 01.04.1971 to 31.03.2002 Ex.PW5/D (D-25) and proposal (Form E-2) Ex.PW5/E (D-18) do not bear signature of his brother.
21. PW6 Sh. Vijay Malik sought to prove that brief summary of society dated 01.04.1971 to 31.03.2002 Ex.PW5/D (D-25) does not bear his Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 10 of 99 signature and that he never attended General Body Meeting dated 26.01.2003 Ex.PW1/C {(D-15 (1)}, dated 25.12.2002 Ex.PW2/B (D-14) and dated 29.03.2003 Ex.PW2/D {D-55(2)}. He further sought to prove that he never proposed the name of Anjali Gupta for membership of CGHS vide application for proposal Ex.PW6/A (D-17) and never tendered the affidavit Ex.PW6/B {D-1(107)}. He further sought to prove that he neither applied/filed nor signed the application for membership Ex.PW6/C {D-3(107)}.
22. PW7 Sh. Arvind Chauhan sought to prove that he neither signed any document pertaining to Narmad CGHS nor applied for any such membership. He further sought to prove that the IO of the case collected his specimen signature/handwritings Ex.PW7/A (D-86) (1 to 18) (S-130 to S-147) and Ex.PW7/B (D-86) during the investigation. He further sought to prove that he never attended the meeting of Narmad CGHS dated 25.12.2002 Ex.PW2/B (D-14), dated 26.01.2003 Ex.PW1/C (D-
15) and dated 29.03.2003 Ex.PW1/F (D-16). He further sought to prove that Form E-11 (D-17, D-18, D-19 and D-20) addressed to Election Officer pertaining to election of the office bearers of Narmad CGHS do not bear his signature and he never authorized Smt. Rashmi Gulati, Advocate to file vakalatnama Ex.PW61/C (D-21) on behalf of Narmad CGHS. He further sought to prove that inspection report Ex.PW7/C (D-
24), letter dated 30.01.2003 (D-27) Ex.PW7/D, letter dated 25.05.1995 {(D-28 (12)}, list of the members submitted on behalf of Narmad CGHS Ex.PW4/E (D-28)(2-11), letter dated 25.05.1995 Ex.PW7/F (D-28)(1), letter dated 20.05.1995 Ex.PW7/G (D-29), letter Ex.Pw7/H (D-54), affidavit dated 06.02.2003 Ex.PW7/J (D-57) and letter dated 30.01.2003 Ex.PW7/K (D-59) do not bear his signatures. He further sought to prove Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 11 of 99 that the documents Ex.PW50/C (D-12), Ex.PW2/B (D-14) and Ex.PW7/K-1 to Ex.PW7/K-14. He further sought to prove that 120 applications forms (D-3) Ex.PW7/L alongwith the subscription receipts for membership of Narmad CGHS by different applicants does not bear his signatures.
23. PW8 Sh. Vivek Malhotra sought to prove that he neither enrolled himself as member of Narmad Housing Society nor signed any documents nor permitted anyone to apply for any such membership. He never executed or signed the affidavit Ex.PW8/A and never gave any application Ex.PW8/B for the membership of Narmad Group Housing Society. He further sought to prove that the documents AD-25 (internal page-639) Ex.PW8/C, D-12 (internal page-703) Ex. PW50/C, D-12 (internal page-702) Ex. PW1/A, D-13 (internal page-650/C) Ex. PW5/F, D-14 (internal page-350/C) Ex. PW2/B, D-15 (internal page-338) Ex.
PW1/C, D-15 (internal page-337/C) part of Ex. PW1/C, D-15 (internal page-336/C) part of Ex. PW1/C, D-16 (internal page-726/C) Ex. PW1/F, D-18 (internal page-343/C) Ex. PW1/E, D-25 (internal page-335/C) Ex. PW1/D, AD-24 (internal page-338, 337, 336/C) Ex. as PW9/C, AD-24 (internal page-335/C) marked DW-15/A, AD-24 (internal page-334/C) Ex. PW8/C1, AD-24 (internal page-333/C) Ex. PW8/C2, AD-24 (internal page-332/C) Ex. PW8/C3, AD-24 (internal page-331/C) Ex. PW8/C4, AD-24 (internal page-328 to 330/C) Ex. PW8/C5, AD-24 (internal page-326/C) Ex. PW8/C6, AD-24 (internal page-325/C) Ex. PW8/C7 and AD-24 (internal page-120 C to 324 C) regarding income and expenditure, list of members, list of MC and GB meeting, list of Managing Committee Members, balance sheets and related document collectively as Ex. PW8/C8 (colly) do not bear his signature. He further Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 12 of 99 sought to prove that during the investigation of this case, his specimen signatures and writings Ex.PW8/D (D-85) (internal page 1 to 32) were taken by CBI officials.
24. PW9 Sh. Rahul Rishi sought to prove that he never applied for membership in any society in Delhi or signed any document in this regard. He further sought to prove that the documents i.e. affidavit Ex.PW2/E contained in file D-1 (12) at page no. 358C, application form Ex.PW9/A contained in the said file at page no. 518 and document no. 338/C Ex.PW9/C do not bear his signatures. He further sought to prove that he never had any address in Delhi or never deposited any money shown in receipt Ex.PW9/B (File no. D3 at page 478) and there was no occasion for him to have resided at Delhi C2/346, Janakpuri, Delhi or at E-20 Defence Colony, New Delhi. He further sought to prove that he never attended any meeting as shown in document no. 100/C Ex.PW9/D, 703/C Ex.PW9/E. He further sought to prove that he never applied for membership in the year 1984 as shown in document no. 639/C Ex.PW9/F.
25. PW10 Sh. Shanti Lal sought to prove that he and his brother had applied for membership of Narmad CGHS. He identified his affidavit on page no. 33C Ex.PW10/A and of his brother at page no. 32C Ex.PW10/B. He further identified his signature at point A and of his brother at point B on document page no. 5C Ex.PW10/C. He however denied his signatures at point A and of his brother at point B on document no. 337/C Ex.PW10/D. He further sought to prove that he never filed or signed affidavit dated 28.01.2003 Ex.PW10/E {D1(29) (page no. 449/C)}. He also denied the signature of his brother on affidavit dated 28.01.2003 Ex.PW10/F. He denied his signatures as well Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 13 of 99 as his brother on the documents at page no. 609/C and 610/C Ex.PW10/G and Ex.PW10/H. He further sought to prove that neither he nor his brother made any payment as shown in receipts 28 and 29 Ex.PW10/I Colly.
26. PW11 Sh. Shiv Charan Lal Malik, sought to prove that he had been resident of 36, Sainik Farm for years and he never heard any society with the name of Narmad CGHS and he did not know who prepared affidavit Ex.PW11/A {(D1(110) page 368/C}. He further sought to prove that he did not know any one with the name of Jyoti Aggarwal related to Sudhir Aggarwal and no such person resided/occupied in his house at 36, Sainik Farm.
27. PW12 Sh. Krishan Lal Batra, retired Assistant Commissioner, Central Revenue and owner of house No. E-20 Defense Colony, sought to prove that he had no connection with Narmad CGHS and did not know any person by the name of Arvind Chauhan nor received any letter pertaining to such CGHS or Arvind Chauhan at his address at Defence Colony nor he had he permitted user of his residence of Narmad CGHS nor Narmad CGHS had ever occupied the property in any capacity at nay point of time.
28. PW13 Sh. Arun Batra, sought to corroborate the testimony of PW12 stating that he had no connection with Narmad CGHS and at no point of time his house i.e. E-20, Defence colony or part of it was used or permitted to be used in connection with running Narmad CGHS. He further sought to prove that no meeting or election of any such CGHS ever took place in his house.
29. PW14 Sh. Dharambir Singh, joined audit branch office of RCS as clerk in 2002, sought to prove that accused P.K. Thirwani, Auditor, prepared Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 14 of 99 audit report (D-67) Ex.PW14/A and he countersigned it. He partly supported the case of the prosecution but resiled from incriminatory statement against accused P.K. Thirwani that he alleged made to IO.
30. PW15 Sh. Neeraj Kumar, Chartered Accountant, sought to prove that he compiled the documents of Narmad CGHS on the request of accused Sri Chand and handed over the same to Sri Chand. He further sought to prove that these documents were not signed by President, Secretary and Treasure of the society in his presence nor the stamp of the society was affixed on these documents in his presence. He further sought to prove that he had written the name of Vivek Malhotra, Arvind Chauhan and Vijay Malik on page no. 335/C Mark PW15/A at the instance of Sri Chand.
31. PW16 (also as PW61) Ms. Jyoti Dubey, stenographer in the office of Registrar of Co-operative Society, identified the photo-signature of Sanjeev Bharti on letter dated 31.03.2003 Mark PW16/A ( {D-55(1 to 6 pages)}, photo-signature of Sanjeev Bharti on proceedings/Minutes of Special General Body Meeting of the society for conducting election on 29.03.2003 Ex. PW/D {(D-55)(2) to D-55 (5)} and photo-signature of Sanjeev Bharti on the list of elected candidates of the said society Mark PW16/B. She further identified the signature of accused N. Diwakar on order dated 07.03.2003 {(D-56(2)} Ex.PW61/B. She further identified the initial of N. Diwakar on the vakalatnama of Sh. V.K. Gulati, Adv. and Smt. Rashmi Gulati Ex.PW61/C (D-21). She further sought to prove the signatures of N. Diwakar on note sheet dt. 21.02.2003 and 25.02.2003 Ex.PW61/D (AD 26 file) and note sheet dated 06.03.2003 Ex.PW61/E (AD 26 file.)
32. PW17 Sh. Sunil Sharma sought to prove that he never applied for Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 15 of 99 membership of Delhi Housing Society and did not know any member or office bearer of the society namely Narmad CGHS. He further sought to prove that he never attended the meeting dated 10.05.1995, 05.05.1994, 26.02.2003 and 29.03.2003 and never executed affidavit dated 28.01.2003 Mark PW17/PX. He further sought to prove that never filed application (D-3)(118) Mark PW17/PX-1 for obtaining membership and did not deposit Rs.110/- as shown at page no. 478 of RCS file Ex.PW9/B.
33. PW18 Sh. Iqbal Singh did not support the case of the prosecution and as such did not identify the signature of accused Neeranjan Singh on his Inspection Report u/s 54 DCS Rules 1972.
34. PW19 Sh. Amol Gandhi sought to prove that he had never been the member of Narmad CGHS or never attended any meeting of society dated 26.01.2003 and 29.03.2003. He further sought to prove that he never executed affidavit dt 28.01.2003 Mark PW19/PX {(D-1(98)} and never filed any application for membership dated 01.05.1994 mark PW19/PX1.
35. PW20 Sh. Anuprash Srivastav sought to prove that signature of accused Neeranjan Singh on letter dated 14.02.2003 with subject inspection report U/s 54 of DCS Act, 1972 of the Narmad Co-operative CGHS Ltd Ex.PW29/A (D-23) page 354/C.
36. PW21 Sh. Sukhram Pal was posted as Postman at Naraina Post Office and he sought to prove that he went to deliver a letter Ex.PW21/A {D51(97)} addressed to Sh. Lalit Gadhop S/o Sh. D.S. Sadhop R/o C-9, Naraina Vihar New Delhi but no person was found at the given address and therefore the said letter was returned undelivered with remarks "NSP".
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37. PW22 Sh. Jagdish Chand was posted as Postman at Palam and he sought to prove the letter Ex.PW22/A {D-51 (64))} addressed to Madhu Goyal S/o J.B. Goyal, WZ-415, Palam, New Delhi which returned undelivered with remarks "NSP".
38. PW23 Sh. Babu Lal was posted as Postman in Post Office Mayapuri, and he sought to prove the envelope Ex.PW23/A (D-78) addressed to Sh. Parmanand Gupta S/o late Shri D.L. Gupta R/o BE-174, Hari Nagar, New Delhi was returned undelivered with remarks "Addressee not found on repeated visit".
39. PW24 Sh. R.S.Dey sought to prove the endorsement in the handwriting of another postman Sh. Ramanand, bearing his signature at point B and on endorsement at point A on the letter Ex.PW24/A {(D-51)(91)} addressed to Sh. Pawan Kumar Tiwari S/o Uma Kant, DB-42, Hari Nagar, New Delhi returned undelivered with remarks "NSP".
40. PW25 Sh. Mahavir Singh who was posted as Postman in P.O. GPO, Kashmeri Gate, Delhi sought to prove the envelope Ex.PW25/A {(D-51) (39)} addressed to J.K. Dave S/o Mahi Lal Dave D-915, Tiraha (Kinari) Bazaar, Delhi, returned undelivered with remarks "Not Found".
41. PW26 Sh. Anil Kumar was posted as Postman in P.O Bharat Nagar, sought to prove that he went to deliver a letter Ex. PW26/A {(D-51) (81) in the name of Sh. Tarun Kumar S/o Sh.Kalyan Singh r/o 29, Bharat Nagar, New Delhi but the same could not be delivered as no such address existed and the said letter was returned. He further sought to prove that since there was another Bharat Nagar with Pin Code NO. 52, the letter Ex.PW26/A was sent through the concerned Post office in Bharat Nagar Pin Code No. 52 but that too was returned by the Postman vide his endorsement dated 04.03.2006 as no such address was also in Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 17 of 99 existence in the said Bharat Nagar.
42. PW27 Sh. Chandra Pal Singh, who was posted as Postman in Kalkaji Post office, sought to prove that he went to deliver letter Ex.PW27/A (D-
51) to Moti Bhai Joshi S/o Sh. G.D. Joshi R/o F-7, Kalkaji New Delhi but such person was found available.
43. PW28 Mohd. Abbas was posted as Postman in Pushpa Bhawan Post office and he sought to prove that he went to deliver letter Ex.PW28/A (D-51) (69) to Sobha Goel W/o Sh. B.P. Goel R/o 18/286, Dakshinpuri, New Delhi but returned undelivered with remarks "NSP".
44. PW29 Sh. Ranbir Singh was posted as Postman in Post Office Karol Bagh sought to prove that he went to deliver letter Ex.PW29/A addressed to Prem Chawla S/o Sh. Subhash Chawla, 68, MIG Flats, Prashad Nagar, New Delhi but he was informed that the addressee had gone out of station for a long time.
45. PW30 Sh. Mahesh Kumar was posted as Postman in Post Office Karol Bagh sought to prove that he went to deliver letter Ex.PW30/A (D51) (43) addressed to Jayanti Lal Parikh S/o Sh. Kika Bhai Parikh, 781, Deshbandhu Gupta Road, New Delhi but it was revealed that no such person mentioned in the letter was residing at the given address.
46. PW31 Sh. Ganga Ram was posted as Postman in Post Office Nizamuddin sought to prove that he went to deliver letter Ex.PW31/A (D51) (35) addressed to Smt. Minakshi Desai W/o Sh. Vogendra Desai, A-74, Nizamuddin, New Delhi but it was revealed that no such person mentioned in the letter was residing at the given address.
47. PW32 Sh. Dhan Singh was posted as Postman in Post Office SRT Nagar, New Delhi sought to prove that he went to deliver the letter Ex.PW32/A-D51 (68) addressed to Sumit Goel S/o Sh. D.D. Goel R/o Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 18 of 99 284, Paharganj, New Delhi but no such person was found residing at the given address.
48. PW33 Sh. Jai Singh was posted as Postman in Post Office SRT Nagar, New Delhi sought to prove that he went to deliver the letter EX.PW33/A-D50(66) addressed to Sh. Manish Gupta S/o late Sh. Anand Prakash R/o 1765, Paharganj, New Delhi but no such person was found residing at the given address.
49. PW34 Sh. Raghuvir Singh Garg was posted as Postman in Post Office Malkaganj sought to prove that he went to deliver the letter EX.PW34/A-D51(30) addressed to Bhanu Rai Babariya S/o Sh. Hem Chand Babariya R/o 7279, Prem Nagar, Kamla Nagar, Delhi but no such person was found residing at the given address.
50. PW35 Sh. Radhy Shyam Dubey was posted in Post Office Malviya Nagar. He sought to prove that he went to deliver the registered envelope Ex.PW35/A (D-51)(51) addressed to P. K. Singhal S/o Sh. Kola Singh, 131/47, Malviya Nagar, New Delhi but the said address was not found in existence.
51. PW36 Sh. Jai Narayan was posted in Ashok Vihar Post Office and he sought to prove the envelope Ex.PW26/A (D-51)(81) addressed to Tarun Kumar S/o Sh. Kalyan Singh 29, Bharat Nagar, New Delhi 110 065.
52. PW37 Sh. Umesh Manjhi was posted as Postman in Malviya Nagar Post Office. He sought to prove the envelope Ex.PW37/A (D-51)(76) addressed to Smt. Meenu Gupta D/o Parmanand Gupta, 50/12, Saket, New Delhi returned undelivered with remarks "Adressee not found on repeated visits".
53. PW38 Sh. Jagminder Singh was posted as Postman in Post Office Malkaganj. He sought to prove that he went to deliver the envelope Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 19 of 99 Ex.PW38/A, D-51 (45) addressed to Sh. Mathura Dass Shah S/o Chunni Lal Shah, 20E, Banglow, Delhi but could not delivered as the addressee had left.
54. PW39 Sh. Ashok Kumar who was Postman in Post Office Vasant Vihar sought to prove that he went to deliver the envelope Ex.PW39/A (D-51) (6) addressed to Sh. Keshav Lal Mehta S/o Bhura Lal Mehta r/o 13-B, Vasant Marg, New Delhi but it was found that addressee was not residing there.
55. PW40 Sh. Man Singh was posted as Postman in post office Rajender Nagar. He sought to prove that he went to deliver the envelope Ex.PW40/A (D-51)(13) addressed to Sh. Madhhusudan Shah S/o Mangal Dass Shah, 9-B, Bajar Marg, Rajender Nagar, New Delhi but he came to know that the addressee had left from the given address.
56. PW41 Sh. D.M. Shyam Kumar who was posted as Postman in Post Office Hauz Khas sought to prove that he went to deliver the envelope Ex.PW41/A (D-51)(14) addressed to Jayanti Lal Vyas S/o Tribhuvan Vyas, 54-I, Hauz Khas New Delhi but the letter could not be delivered as the address was incomplete.
57. PW42 Sh. Avinash Kumar Jain who was posted as Postman in Post Office Malkaganj sought to prove that he went to deliver the envelope Ex.PW42/A (D-51)(10) addressed to Devi Dayal Singhal S/o Kashmeri Lal 1040, Sohan Ganj, Subzi Mandi, Delhi 110 007 but the addressee had already left.
58. PW43 Sh. Daya Chand who was working as Postman in Post Office Jangpura New Delhi sought to prove that he went to deliver the envelope Ex.PW43/A (D-51)(42) addressed to Kishan Mehta S/o K.T. Mehta, 18, Link Road, Jangpura, New Delhi but the addressee had already left.
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59. PW44 Sh. Shyam Lal who was posted as Postman in post office Karol Bagh sought to prove that he went to deliver the envelope Ex.PW44/A (D-51)(61) addressed to Manoj Jindal S/o Sh. Sat Prakash R/o 3350, Karol Bagh, New Delhi but the addressee was not found residing at the given address.
60. PW45 Sh. Sunder Pal was posted as Postman in post office Vasundra Enclave sought to prove that he went to deliver the envelope Ex.PW45/A addressed to Nitin Aggarwal S/o Sh. Vijay Aggarwal R/o 565, Ghazipur, Delhi but no such address was found in existence and no such person was found residing at the such place.
61. PW46 Sh. Chattur Gun Pandey was posted as Post office Gole Dak Khana. He sought to prove that he went to deliver the envelope Ex.PW46/A (D-51) (90) addressed to Shh. Deepak Sen S/o Sh. D.K. Sen R/o 18, Dr. Lanes, Gole Market, New Delhi but no person was found residing at the said address.
62. PW47 Sh. Ram Kumar was posted as postman in post office Indraprastha Head Post Office, Bahadurshah Jafar Marg, New Delhi. He sought to prove that he went to deliver the envelope Ex.PW47/A (D-51) (63) addressed to Sh. Vinay Goel S/o Sh. J.B. Goel R/o E-86, Minto Road, New Delhi but the letter could not be delivered to the addressee as the address was incomplete.
63. PW48 Sh. Mahipal Singh who was posted as Postman in Post office Swami Ram Tirath Nagar, Delhi sought to prove that he went to deliver the envelope Ex.PW48/A (D-51)(88) addressed to Amt Kumar S/o Babu Ram R/o 2032, Chunamandi, Paharganj, New Delhi but the addressee was not found residing there.
64. PW49 Sh. Nawab Khan was posted as postman in post office Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 21 of 99 Nizamuddin. He sought to prove that he went to deliver the envelope Ex.PW49/A (D-51)(22) addressed to Randhir Jhavani S/o Sh. Kashtur Chand Jhavani R/o 57/40, Nizamddin, East, New Delhi but it was revealed that neither the address given on the envelope was in existence nor any such person was found. He further sought to prove that he went to deliver an envelope Ex.PW49/B (D-51)(23) addressed to Arvind Bhai Desai S/o Manibhai Desai R/o 58/69, Nizamuddin, East, New Delhi but it was revealed that neither the address given on the envelope was in existence nor any such person was found.
65. PW50 Sh. V.P. Sharma sought to prove that neither he nor his wife or his sons had ever been the members of Narmad CGHS or ever applied or filled up any form for Narmad CGHS. He further sought to prove that he had never worked with Sh. D.D. Beri and never gave any advice to him in respect of his business pertaining to societies. He further sought to prove that the affidavit Ex.PW50/A (D-1) (119) in the name of his wife Smt. Kanta Sharma was signed by someone else thereby forging the said affidavit. He further sought to prove that his wife Smt. Kanta Sharma did not sign on Ex.PW50/B (D-61, internal page 677), Ex.PW50/C (D-12) (1) and Ex.PW1/A (internal page D-12(3) and somebody else had forged her signatures.
66. PW51 Sh. Ramesh Kumar who was posted postman in post office Jangpura sought to prove that he went to deliver the envelope Ex.PW51/A (D-51)(55) addressed to Smt. Seema Mittal D/o Sh. R.K. Mittal R/o 175, Ashram, New Delhi but the addressee was not residing there.
67. PW52 Sh. Surender Pal was posted as postman in post office Indraprastha Head Office. He sought to prove that he went to deliver an Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 22 of 99 envelope Ex.PW52/A (D-51)(47) addressed to Sh. Hashmukh Parekh S/o Chandu Lal R/o 21-A, Daryaganj, Delhi but the addressee could not be traced due to incomplete address.
68. PW53 Sh. Jagmal Singh who was posted as LDC in RCS (Registrar of Cooperative Societies, Govt of NCT of Delhi) and was looking after the work in Audit Branch, sought to prove the photocopy of form (D-67) Srl. No. 2732 which had been filled in the name of The Narmad CGHS Ltd. and identified the signature of Sh. Jitender Singh, Asstt. Registrar (Audit) and P.K Tirvani, Departmental Auditor.
69. PW54 Shri Abdul Wazid who was posted as Post Man in Post Office, Sector V, R.K. Puram, New Delhi sought to prove that he went to deliver the envelope Ex.PW54/A (D-51) (67) addressed to Vinit Goel, S/o Shri D.D. Goel, 7/631, R.K. Puram, New Delhi but the addressee was not residing at the given address.
70. PW55 Shri Bal Kishan was posted as Post Man in Post Office, Darya Ganj, New Delhi. He sought to prove that he went to deliver the envelope Ex.PW55/A D-51(85) addressed to Shri Rajan Jaisial, S/o Shri Harvinder Jaisial, 423, Ansari Road, Darya Ganj, New Delhi but since the address was incomplete, the letter could not be delivered to the addressee.
71. PW56 Shri Brahma Nand who was posted as Postman in post office, Sarojini Nagar, New Delhi sought to prove the letter Ex.PW56/A D- 51(59) addressed to Mukesh Jindal s/o Shri S.P. Jindal, L 130, Sarojini Nagar, New Delhi returned undelivered with remarks "NSP".
72. PW57 Shri Harsh Malhotra sought to prove that he had neither heard about Narmad CGHS Society nor became the member of the said society. He further sought to prove that he never submitted any Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 23 of 99 application form of Narmad CGHS Ex.PW57/A D-3 (106) nor instructed any one to submit any such application. He further sought to prove that he never attended any meeting of Narmad CGHS Ltd. and never signed any minutes or documents.
73. PW58 Shri Vikas Rakheja sought to prove that he had never been the member of Narmad CGHS Society Delhi either in the year 2003 or at any other point of time. He further sought to prove that he never signed any application form Ex.PW58/A (D-3 internal page 112), affidavit Ex.PW50/C (D-1 internal page 112) and general body meeting resolution dated 10.05.1995 Ex.PW50/C (D-12 internal page 1).
74. PW59 Sh. P.K. Sharma was the Assistant Director of Education (Vigilance) who forwarded the prosecution sanction of accused Sanjeev Bharti to CBI, sought to prove the same.
75. PW60 Sh. S.K. Khosla was the Deputy Secretary, Directorate of Vigilance who forwarded the prosecution sanction of accused Neeranjan Singh and Prahlad Kumar Thirwani, sough to prove the same.
76. PW62 Sh. M.P. Sharma, Assistant Registrar (South), Registrar of Co-
operative Societies, sought to prove the rules and regulations/procedure pertaining to the registration, liquidation and revival of Co-operative Group Housing Societies Delhi.
77. PW63 Mrs. Rashmi Gulati, Advocate, sought to prove that her vakalatnama dated 22.02.2003 Ex.PW61/C (D-21) filed by her on behalf of Narmad CGHS. She admitted having been engaged by Narmad CHGS but did not support prosecution so far as involvement of accused Sri Chand was concerned. She thus partly supported the case of the prosecution.
78. PW64 Sh. Vijay Kumar, Director, Directorate of Education was the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 24 of 99 competent authority in respect of appointment and removal of officials of rank of Stenographer Grade-III in Department of Education, Govt. of NCT of Delhi. He sought to prove that he granted sanction for prosecution of accused Sanjeev Bharti Ex.PW64/A (D-73).
79. PW65 Sh. R. Narayanaswami Chief Secretary, Govt of NCT of Delhi sought to prove that he granted the sanction for prosecution against accused Neeranjan Singh Ex.PW65A (D-73) (internal page 2 to 6) and accused Prahlad Kumar Thirwani (Ex.PW65/B (D-73) (internal page 7 to
11).
80. PW66 Ms. Jyoti Aggarwal sought to prove that she had neither been the member of Narmad CGHS nor gave any application Ex.PW66/C (D-3), affidavit Ex.PW11/A (110), form E-II Ex.PW66/D (D-19) or proceedings of general body meeting of Narmad CGHS Ex.PW1/A, Ex.PW50/C, Ex.PW5/F, Ex.PW2/B, Ex.PW1/C, Ex.PW1/F. She further sought to prove that she identified the specimen writings and signatures of her father Ex.PW66/A (D-89, S-212 to S-230) and specimen writings of her father Ex.PW66/B (part of D-89, running into seven pages.)
81. PW67 Sh. Mohan Lal sought to prove that he had seen accused Sushil Kumar and Anna Wankhade while working in the office of Naval Tec CGHS with accused Sri Chand and they had been preparing and typing the documents.
82. PW68 Sh. Rajesh Kumar, LDC in CBI, STF Branch sought to prove that the specimen signatures and handwritings of accused Anna Wankhade, Sanjeev Bharti, Sri Chand and Sushil Kumar were taken in his presence and he signed the sheets of specimen signatures and handwritings of these persons as a witness.
83. PW69 Sh. Bachan Singh who was posted as Head Clerk in STF, CBI, Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 25 of 99 New Delhi sought to prove that in his presence specimen signatures/handwritings of Anna Wankhade, Sushil Kumar and Sri Chand were taken.
84. PW70 Sh. Ghanshyam Dass who was posted as Sr. Clerk Steno in CBI, STF, New Delhi sought to prove that specimen signatures/handwritings of Sh. D.D. Berry, Sh. Arun Malhotra, Sh. Sunil Sharma, Sh. Harsh Malhotra, Sh. Vivek Malhotra and Sh. Arvind Chauhan were taken in his presence by IO.
85. PW71 Sh. Jagdish Rathore who was posted as UDC in CBI, STF Branch sought to prove that IO took the specimen signatures/handwritings of P.K. Thirwani and Suresh Kumar Bhasin in his presence.
86. PW72 Sh. Shyamal Majumder, sought to prove that he conducted the preliminary enquiry and during this enquiry, he took over the files relating/pertaining to the Narmad CGHS and handed over these documents to the IO of this case.
87. PW73 Sh. S.C. Gupta, Govt. Handwriting expert for GEQD, sought to prove that documents of this case were received in his office at Kolkatta and the questioned writings/signatures were examined carefully in all aspects of handwriting examination including detection of forgery and they were compared with their corresponding standard writing with the help of Scientific Instruments available. He further sought to prove his report/opinion Ex.PW73/C and supplementary report/opinion Ex.PW73/D.
88. PW74 Sh. Sudharashan Kumar Sethi sought to prove that he did not deal with the documents D-21 and D-22 and never dealt with the case of Narmad Group Housing Society.
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89. PW75 Sh. R.S. Rana, sought to prove that exhibits of this case were received in the laboratory and after imaging the relevant exhibits, he analyzed the images/the hard disk which could not be imaged and expressed his opinion/report Ex.PW75/B. (Hard Disk was never seized in the present case as deposed to by CW1 Sh Suraj Singh Bhati).
90. PW76 Sh. A.S. Tariyal, the IO of the case, sought to prove his investigation by stating interalia that he went through the contents of the FIR and during investigation, he seized/collected the file pertaining to Narmad CGHS from Majumdar, the then Inspector, EOW, CBI. He further sought to prove that he examined the witnesses, recorded their statements, took the specimen signatures and writings of the accused persons and some witnesses and sent them to GEQD alongwith requisite documents for comparison. He further sought to prove that the sanction for prosecution against accused Govt/Public Servants were taken up and their disciplinary authorities, competent to accord sanction for prosecution.
91. PW77 Sh. Ashwani Kumar, Judicial Assistant, in the Court of (the then) Sh Rajender Kumar Shastri, Ld Spl. Judge (PC. Act)(CBI), Rohini, brought Original Memo vide which IO amongst other has collected files pertaining to Narmad CGHS i.e. Volume I (correspondence)(pages 1 to
736) and II (noting)(pages 1 to 27).
92. PW77 (he should have been numbered as 78) Sh. Paras Nath, from the office of DDA, sought to prove that process of allotment of land to Narmad CGHS was underway and thus according sought to prove letter dated 12.03.2003 Ex.PW77/A, certified photocopy of letter Ex.PW77/B, photocopy of letter dated 04.09.2003 Ex.PW77/C, list of societies Ex.PW77/D, certified copy of letter dated 10.12.2003 Ex.PW77/E, Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 27 of 99 certified photocopy of list of societies Ex.PW77/F, photocopy of letter dated 14.10.2003 Ex.PW77/G, list of societies Ex.PW77/H and letter dated 03.05.2006 Ex.PW76/K.
93. PW78 ASI Dharamvir sought to prove that he had prepared a verification report Ex.PW76/U regarding the addressee of the persons mentioned in his report on 01.05.2006 in Narmad CGHS.
94. PW79 ASI (Retd.) Rajesh Kumar sought to prove that he prepared a verification report Ex.PW76/W regarding the addressee of the persons mentioned in his report on 26.04.2006 in Narmad CGHS.
95. PW80 Inspector Duli Chand Yadav sought to prove that after verification of the addresses, he had handed over the verification report to the IO.
96. PW81 Sh. Satya Prakash Sharma, who was posted as LDC in office of RCS sought to prove that he handed over documents namely Audit report Ex.PW14/1 in respect of Narmad CGHS to IO vide Ex.PW76/C-3.
97. PW82 Sh. Yogi Raj, Assistant Registrar in RCS, sought to prove that he had forwarded the freeze list of members of Narmad CGHS to DDA vide letter Ex.PW77/A.
98. Prosecution dropped two witnesses namely Smt. Meera Batra (shown at Sl. No. 21 in the list of witnesses) and Sh. Rajesh Kumar Thakur (shown at Sl. No. 24 in the list of witnesses) and closed prosecution evidence. Court Wintess
99. CW1 Sh Suraj Singh Bhati, Inspector, sought to prove that the hard disk as deposed to by PW72 was not seized in the present case. STATEMENT OF ACCUSED U/S 313 CrPC
100. After prosecution evidence stood completed, statements of all the Accused persons were recorded u/s 313 Cr.PC. The entire incriminating Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 28 of 99 evidences were put to the Accused persons. They denied the incriminating evidence against them and pleaded their innocence.
101. Accused N Diwakar (A-1) in his statement under Section 313 CrPC has denied all evidence against him either for want of knowledge or being wrong. However, in nutshell he stated that the present case has been registered and investigated against him by the CBI with a malicious attitude. The act(s) performed by him were done in absolute good faith, taking all the necessary steps as provided under the law. As per Rule 105 of the Delhi Cooperative Rules 1973 there is a provision for the deemed termination of the winding-up proceedings (maximum 3 years after the passing of the winding-up order) after which the Registrar is bound to cancel the winding-up orders by passing an order to this effect in view of the Judgement of the Division Bench of the Hon'ble Delhi High Court in Vikas CGHS v. RCS etc. CBI has neither obtained sanction to prosecute under section 197 Cr.P.C. nor under section 19 of the PC Act. The said two sanctions operate in distinct mechanism and were mandatory even for a retired public servant. The present case is devoid of merits and also suffers from the discrepancy due to the later amendments of 2018 which are applicable to the present pending case. As regards sanction u/s 19 of the amended PC Act 2018, CBI has already conceded before the Hon'ble Court that since sanction deals with procedure it will have retrospective effect. On this admission of CBI the Hon'ble Madras High Court in M. Soundararajan v. State Crl.A.(MD) No. 488 of 2018 held that by amending paragraph 8 in Part A of the Schedule to the Prevention of Money Laundering Act, 2002 certain offences under the prevention of corruption Act, 1988 are included to the PMLA, 2002. Since, offence analogous is already in statute prior to the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 29 of 99 amendment, Chapter IV A and section 19 of the Prevention of Corruption (Amendment) Act, 2018 alone will fall away from protection given under Article 20 (1) of the Constitution and therefore will have application to the pending cases either under investigation or pending trial after investigation. Same view has been held by the Hon'ble Delhi High Court in Shapoorji Pallonji And Co. Pvt. Ltd. v. Jindal India Thermal Power Limited (O.M.P.(MISC.) (COMM.) 512/2019 decided on 23.01.2020.) wherein the court was of the view that that amended Sections 23(4) and 29A(1) of the Arbitration and Conciliation Act, being procedural law, would apply to the pending arbitrations as on the date of the amendment.
102. Accused Sanjeev Bharti (A-2) has denied almost every evidences against him that was put to him. He stated that the witnesses have deposed only about the photocopy of the questioned documents which is not admissible piece of evidence and cannot be read in evidence. However, even as per the case of the prosecution, the conspiracy was for revival of the society on the basis of forged and false documents and it is the admitted case of prosecution that he did not have any role till revival of the society and till sending of the approved freeze list of members of the society to DDA for allotment of land. In this case, the society was revived on 07.03.2003 and the approved list of members was forwarded to DDA on 12.03.2003 whereas the said election was conducted on 29.03.2003. Hence, conduct of the election on 29.03.2003 was after the termination of alleged conspiracy in this case and the said election had no effect / concern at all on the revival of the society by RCS and allotment of land by DDA. He denied having committed any wrong.
103. Accused Prahlad Kumar Thirwani (A-4) denied all evidence against Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 30 of 99 him either for want of knowledge or being wrong. He stated that the audit of present society was assigned to him by the then AR (Audit) Sh. J S Sharma after he obtained the approval of RCS for the period from 1971-72 to 2001-02. He conducted the audit for the above said period on the basis of records produced by the society. He had raised serious objections in his Audit Report pertaining to Narmad CGHS which shows that he was not in collusion with any person of the society and question of any conspiracy didn't arise. There is no violation of DCS Act / Rules / Directives by which any favour has been shown to any person or corporate body. Auditor has no role in the revival of the society nor the list was sent to the DDA for land offer on the basis of Audit Report. The audit of the society can be done by the society through any of the office bearer or authorized representative. The auditor had no duty to verify and ascertain the genuineness of the members or of records. It is the admitted case of CBI that he did not have any role till revival of the society and till sending of the approved freez list of members to DDA for allotment of land and as such audit report had no effect at all on the revival of the society by RCS. The allegation against him in the charge sheet are wild and unsubstantiated. There are no provisions in the DCS Act for obtaining signatures of office bearers by the Auditor, on audit papers of the society during audit and there is no provision in the DCS Act / Rules to make investigation by the Auditor from the bank of the society. CBI has not obtained sanction for prosecution u/s 197 CrPC for IPC offences. As per section 95 of DCS Act 1972 no suit or prosecution shall be launched against the RCS officials. IO has carried biased and unfair investigation and manipulated the facts.
104. Accused Sri Chand (PW5) also denied each and every evidences Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 31 of 99 against him either for want of knowledge or for being wrong. He stated that the seizure of record is highly doubtful as documents are contradicting each other.
105. Accused Sushil Kumar Sharma (A-6) also denied each and every evidences against him either for want of knowledge or for being wrong. He admitted that he and Anna Wankhade was working in the office of Naval Tec CGHS. However, he denied having any concern with Narmad CGHS. He stated that his specimen signatures/writings were never taken by the IO in this case. The investigation is biased and there are manipulations on the part of CBI officials.
106. Accused Anna Wankhade (A-7) denied all evidence against him either for want of knowledge or for being wrong. Further he admitted that he was an employee in the office of Naval Tech and used to serve tea, coffee, water etc. to the members of the Naval Tech CGHS. However, he denied having any concern with Narmad CGHS. His specimen signatures/writings were not obtained by the CBI/IO and his alleged specimen writings have been manipulated. He further stated that the investigation was biased and full of manipulations. He neither was a member of society nor had ever received any benefit out of the said society.
DEFENSE EVIDENCE:
107. Defense examined three witnesses in defense.
108. D1W1 Sh. Saroj Chandra Pradhan examined on behalf of accused N. Diwakar (A-1). He was posted in the Office of the Registrar Co- operative Societies, New Delhi as System Analyst. His duties were to supervise entire software, hardware and networking of the computer systems in the Registrar Office. There was an official website of Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 32 of 99 Registrar Office i.e. rcs.delhigovt.nic.in. The details of every co- operative society including housing societies registered with the Registrar Office were uploaded on the website. The said website used to be regularly updated as and when any change occurred in the constitution and membership of the society. He stated that when this website was launched in the Registrar Office Narayan Diwakar was Registrar of Co-operative Society.
109. D2W1 Sh. Nitin Kumar Rohil was examined on behalf of accused Sanjeev Bharti (A-2). He sought to prove the file Ex.D2W1/A pertaining to prosecution sanction accorded by the Department in respect of Sanjeev Bharti.
110. D4W1 Sh. J.S. Sharma was examined on behalf of accused Prahlad Kumar Thirwani (A-4). He stated that any employee of the society including accountant, Manager, Office bearer or any member can produce the records of the society for audit, to the auditor. As per DCS Act, 1972 and DCS Rules 1973, the audit can be conducted at the office of the society concerned or at the office of the auditor (in the RCS office) by calling the records. The letter of appointment was issued to the auditor under the signature of AR audit duly approved by the Registrar. He sought to prove letter Ex.PW7/K-7 (D-67)(2) (Page no. 2). He countersigned the check list Ex.PW7/K-7 (D-67/1) for forwarding one copy of the same to the society and another to the Zonal Assistant Registrar. He further stated that the auditor has to conduct audit in accordance with the set proforma Ex.PW7/K7 and there was no separate instructions for the auditor for conducting audit of co-operative society. CONTENTIONS
111. Ld. PP for CBI as well as all the defense counsels have addressed the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 33 of 99 court orally and they have also filed respective written submissions. Noting in detail the respective contentions of Ld. PP for CBI and of all the defense counsels would make this judgment sufficiently long, hence their contentions are noted in extreme brevity though while appreciating and evaluating evidences contentions of respective parties have been taken into account.
112. In nutshell Ld. PP for CBI Sh. Pramod Singh while drawing attention of the Court to the testimonies of witnesses as well as to documents has contended that prosecution by oral and documentary evidence has successfully proved that society which applied on 30.01.2003 for recalling the order of liquidation dt 18.12.1978 was a fake society with name of original 50 members and 70 fake members and with none of the original members being active or interested in the running or revival of the society. In fact the society with original 50 members had stopped running and accused persons taking advantage of non finalisation of winding up proceedings of the Narmad CGHS conspired to revive the same in the eye of law with fake documents and fake membership and thus enable it to get land at subsidized rate from DDA in much preference to those societies which were active but were registered later than it. The public servants misconducted themselves in performing their respective official duties though cloaked in official duties as if to show that they were not party to the offense and had done their respective official duty in routine manner without any biasness. Hence, Ld. PP for CBI concluded that prosecution has successfully proved all the charges against the accused persons for which they were charged.
113. On the other hand Sh. Abhishek Prasad Ld. Counsel for accused N. Diwakar, Sri Chand, Anna Wankhade and Sushil Kumar Sharma; and Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 34 of 99 Ld. Counsel Sh. S. K. Bhatnagar for accused P. K. Thirwani and Sh. Anil Gupta Ld Counsel for accused Sanjeev Bharti have commonly contended that prosecution has miserably failed to prove the charges against the accused persons. Summarily there contentions is to canvass that there is either lack of sanction or defective sanction for prosecution or failure to prove sanction for prosecution u/s 19 of the P.C Act; no sanction at all under Section 197 CrPC; registration of FIR was illegal as no consent from competent authority was obtained; there is not a single evidence connecting accused persons with offenses alleged; relevant original documents not produced on record and only photocopies of the relevant documents have been relied upon; documents have not been proved as per law; public servants have done their respective job in routine manner and had no means to know that documents were forged or fabricated or members were not in existence; opinion of hand writing expert is based on photocopies of documents, therefore, opinion cannot be relied upon at all; and that investigation is faulty as real culprit Sh. D. D. Batra had been let off and accused persons had been embroiled unnecessarily.
ANALYSIS & APPRECIATION
114. Hon'ble Delhi High Court in Kaveri Cooperative Group Housing Society Ltd. v. Union of India (AIR 1991 Delhi 217) had ordered the criteria of seniority of the society as per the date of their registration for the purpose of allotment of land by DDA. There was large scale complaint regarding societies being taken over by Builder Mafia and that after allotment of land to Cooperative Housing Societies in certain cases, the society as a whole was purchased by Builders and thereafter members were changed on the basis of enmasse resignations, expulsions Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 35 of 99 and new members inducted by charging premium at market rates, taking advantage of loopholes in the Rules and Regulations. It was also noticed that to take advantage of Kaveri (supra) rulings many defunct societies were got revived by builders with fake members and thus Hon'ble High Court in W.P(C) No. 10066/2004 ordered probe following which Preliminary Enquiries were conducted by CBI. Following one such preliminary enquiry present FIR was registered and charge-sheet was filed against the accused persons herein.
115. Under Criminal Jurisprudence, unless otherwise prescribed by law, prosecution shoulders the responsibility to prove the charges against the accused beyond reasonable doubt and therefore prosecution must examine such witness who could help prove the guilt of the accused. The direction of the testimonies of witnesses must be towards proving the guilt of the accused and testimonies of the witnesses must merge to point out that none other than the accused persons committed the offense respectively alleged against them.
116. In the present case there is no dispute that prosecution bears the responsibility to prove the charges against the accused persons beyond reasonable doubt. Prosecution, in all, has examined 82 witnesses (inadvertently two witnesses bears the same PW number and one witness bears two different PW number). It will be very useful to know the direction of testimonies of these witnesses that is to say what these witnesses attempted to prove.
117. Testimonies of 15 witnesses namely PW1 Sh. Suresh Kumar, PW2 Smt. Kanta Sharma, PW3 Sh. Jeevan Kapoor, PW4 Sh. Sushil Malik, PW5 Sh. Arun Malhotra, PW6 Sh. Vijay Malik, PW7 Sh. Arvind Chauhan, PW8 Sh. Vivek Malhotra, PW9, Sh. Rahul Rishi, PW17 Sh. Sunil Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 36 of 99 Sharma, PW19 Sh. Amol Gandhi, PW50 Sh. V. P. Sharma PW57 Sh. Harsh Malhotra, PW58 Sh. Vikas Raheja, PW66 Smt. Jyoti Agarwal, are directed towards proving that though their respective names have been shown as member of Narmad CGHS but none of them ever applied for membership or became member or signed and filed membership form, affidavits or participated in any meeting or election or ever held any post in the society. In the same line is the testimony of PW11 Sh. Shiv Charan Lal who deposed that he had been living at 36 Sainik Farm since 1978 and did not know any Jyoti Agarwal alleged resident of 36, Sainik Farm who allegedly became office bearer in the Narmad CGHS.
118. Testimony of one witness namely PW10 Sh. Shanti Lal who along with his bother namely Hansmukh Bhai Ray had been original member of the society, is directed towards proving that though he and his brother had become member of the society in 1971-72 but they never attended any of its meetings and had not signed any minutes of meeting attributed to them or signed/filled affidavits or other documents in 2003. Thus, testimony of PW10 stands in line with above stated 15 (plus one witness) to prove that Narmad CGHS in 2003 was fake.
119. Testimonies of 2 witnesses namely PW12 Sh. Krishan Lal Batra and PW13 Sh. Arun Batra, the owner/resident respectively of E-20, Defense Colony where the society was allegedly having office since 1976 to 2003, are directed towards proving that Narmad Society never occupied or operated from E-20, Defense Colony, New Delhi.
120. Testimonies of 34 witnesses namely PW21 Sh. Sukhram, PW22 Sh.
Jagdish Chand, PW23 Sh. Babu Lal, PW24 Sh. R. S. Dubey, PW25 Sh. Mahavir Singh, PW26 Sh. Anil Kumar, PW27 Sh. Chander Pal, PW28 Md. Abbas, PW29 Sh. Ranbir Singh, PW30 Sh. Mahesh Kumar, PW31 Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 37 of 99 Sh. Ganga Ram, PW32 Sh. Dhan Singh, PW33 Sh. Jai Singh, PW34 Sh. Raghubir Singh, PW35 Sh. Radha Shyam Dubey, PW36 Sh. Jai Narayan, PW37 Sh. Umesh Manjhi, PW38 Sh. Jagmohan Singh, PW39 Ashok Kumar, PW40 Sh. Manmohan Singh, PW41 Sh. D. M. Shya Kumar, PW42 Sh. Avinash Kumar Jain, PW43 Sh. Daya Chand, PW44 Sh. Shyam Lal, PW45 Sh. Sunder Pal, PW46 Sh. Chatur Gun Pandey, PW47 Sh. Ram Kumar, PW48 Sh. Mahipal, PW49 Sh. Nawab Khan, PW51 Sh. Ramesh Kumar, PW52 Sh. Surender Pal, PW54 Abdul Wazid, PW55 Sh. Bal Kishan and PW56 Sh. Brahmanand, all postmen, are directed towards proving that letters sent by CBI to the so called members of the freez list of members of the Narmad CGHS returned undelivered with report either "address incomplete" or "address does no exist" or "left without address" or "no such person", so as to prove that members shown in freez list of members of Narmad CGHS were fake.
121. Testimonies of 4 witnesses namely PW78 ASI Dharamvir (6 addresses), PW79 ASI (Retd.) Rajesh Kumar (17 addresses), PW80 Insp. Dulli Chand (60 addresses) and part testimony of IO PW76 DSP A.S.Tariyal (14 addresses) are directed towards proving that addresses of majority of members of the freez list of members of Narmad CGHS could not be verified which go to shows that members were fake.
122. Testimonies of 4 witnesses namely PW59 Sh. P. K. Sharma, PW60 Sh. S. K. Khosla, PW64 Sh. Vijay Kumar, PW65 Sh. R. Narayanswami are directed towards proving the "Sanction for Prosecution" granted in respect of public servants involved in the present case.
123. Testimonies of 4 witnesses namely PW68 Sh. Rajesh Kumar Gupta, PW69 Sh. Bachan Singh, PW70 Sh. Ghanshyam Dass, Sh PW71 Sh. Jagdish Rathore are directed towards proving the taking of specimen Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 38 of 99 signature/handwriting of accused persons and other persons.
124. Testimonies of 2 witnesses namely PW73 Sh. S. C. Gupta and PW75 Sh.
R.S. Rana are directed towards proving the CFSL reports regarding the questioned signature/handwriting and regarding forensic examination of a Hard disk allegedly seized from the office of accused Sri Chand but could not be produced in the court and as per testimony of court witness CW1 Sh. Suraj Singh Bhati, Inspector, Maalkhana, CBI, no hard disk was seized in this case. Hence, opinion of PW75 Sh. R. S. Rana stands discarded.
125. Testimonies of 2 (two) witnesses namely PW72 Sh. Shyamal Majumdar and PW76 Sh. A. S. Tariyal, the IO, are directed towards proving preliminary enquiry and investigation respectively. IO proves investigation and fairness and impartiality of the investigation.
126. Testimony of PW62 Sh. M.P. Sharma is directed towards making the court know about the rules and procedures followed in the Office of Registrar of Co-operative Societies in respect of registration of co- operative societies, their liquidation, revival, audit, election etc. His testimony is not accused specific nor directed towards showing that any violation in following the rules and procedures were committed by the public servants charge-sheeted.
127. Testimony of PW74 Sh. Sudarshan Kumar Seth (once working in the office of RCS) is of no use as he had not dealt with documents D-21 (Vakalatnama in favour PW63 Rashmi Gupta, Advocate) and D-22 (Notice of appearance Ex PW76/G issued to President, Secretary and Treasure of Narmad CGHS).
128. Testimony of PW77 Sh Paras Nath, the then dealing Assistant in Co-
operative Group Housing Society, DDA, is directed towards proving that Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 39 of 99 DDA was in the process of allotting land to Narmad CGHS at concessional rate after having received freez list of members of the said society from RCS office and accordingly sought to prove various documents and official noting/note-sheet in this regard.
129. Testimony of PW77 (wrongly numbered as PW77 instead of PW78) is limited to bringing on record one original receipt Ex PW72/A (D-71) from another case pursuant to FIR bearing No. RC 17(E)05-EOW-I. PW77 Sh. Ashwini Kumar was the Judicial Assistant in the Court then presided over by Sh. Rajender Kumar Shastri, the then Ld. Special Judge, (P. C. Act) (CBI), Rohini Courts, Delhi.
130. Testimony of PW81 Sh. Satya Prakash Sharma is limited to handing over some documents from RCS office to CBI vide seizure memos Ex PW76/C-3 and PW76/l (D-32) and handing over of Audit Report Ex PW14/1 {D-67(1 to 51)} vide Ex PW76/C-3.
131. Testimony of PW82 Sh. Yogi Raj, the then Assistant Registrar (Policy), Office of the RCS, is directed towards proving that after approval from RCS he had sent the freez list of members Ex PW82/A {D-65 (AD-27)} of Narmad CGHS to DDA through his letter Ex PW77/A (D-65).
132. Testimonies of above witnesses except handwriting expert PW73 Sh. S. C. Gupta are directed towards proving the commission of offense, preliminary enquiry, handing over of documents, rule/procedures, investigation etc. In other words, leaving the opinions of the handwriting experts PW73, testimonies of the above witnesses are not at all directed towards proving the guilt of the accused persons that is to say their testimonies are not directed towards proving that accused persons committed the offenses alleged against them. In other words, above named witnesses are not witnesses whose testimonies would help in Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 40 of 99 proving the guilt of the accused persons under trial. It is so because even if prosecution successfully proves that Narmad CGHS had fake members or fake President/Secretary or fake audit or election etc., it would not ipso facto make accused persons guilty. Evidences are required to link the accused persons with offense along with their guilty mind required for offenses under IPC and such conduct as required for offense u/s 13 of Prevention of Corruption Act (P. C. Act).
133. Thus, keeping aside the testimonies of the above witnesses, prosecution is left with the testimonies of PW14 Sh. Dharamvir Singh, PW15 Sh. Neeraj Kumar, PW16 (also examined as PW61) Ms. Jyoti Dubey, PW18 Sh. Iqbal Singh, PW20 Sh. Anuprash Srivastava, PW53 Sh. Jagmal Singh, PW63 Ms. Rashmi Gupta and PW67 Sh. Mohan Lal, along with expert witnesses PW73 to prove that crimes/offenses imputed to accused persons were in fact committed by accused persons.
134. Generally, in any criminal trial prosecution has to prove two things.
Firstly, commission of crime that is to say a offense or multiple offenses were committed and secondly offense or offenses were committed by accused person facing trial. If prosecution successfully proves both beyond reasonable doubt then it leads to conviction and sentencing of the accused persons facing trial. Merely proving commission of the offense would not serve the purpose, prosecution has also got to prove that crime/offense was committed by accused persons facing trial. Hence, in the factual back ground of the case as noted from charge-sheet following facts (expressed in question form) needed to be proved beyond reasonable doubt by prosecution.
Whether Narmad CGHS Ltd. was formed and registered with RCS in 1972? If so, how many members were there? Whether it Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 41 of 99 was ordered to be liquidated?
Whether there was a request to recall the order of liquidation of Narmad CGHS and whether said order of liquidation was recalled?
Whether Narmad CGHS Ltd. that approached office of RCS in 2003 with letter dt. 30.01.2003 was fake with fake members?
Whether the documents such as minutes of meeting, application for membership, attendance sheet, affidavits dt 28.01.2003 of all purported members, income-expenditure records etc. filed purportedly on behalf of Narmad CHGS with RCS in 2003 w.e.f 1972 to 2003 were forged?
Whether accused persons facing trial in the present case, are the persons who conspired to get the society under liquidation revived with the help of forged documents and whether the public servants were party to conspiracy and misconducted themselves in pursuance to said conspiracy?
135. Now it has got to be seen if prosecution has been successful in proving the above facts beyond reasonable doubt.
Whether Narmad CGHS Ltd. was formed and registered in 1972? If so, how many members were there? Whether it was ordered to be liquidated?
136. There is no oral testimony of any witnesses deposing about the formation of the Narmad CGHS Ltd. However, documents/records collected from the office of the Registrar of Co-operative Societies may help prosecution in proving the formation and registration of the Narmad CGHS but all defense Counsels have strongly contended that no witness has been examined to prove the alleged records from the office of the RCS and thus prosecution has failed to prove that any society was formed, registered with Office of RCS and was subsequently ordered to be liquidated.
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137. It is true that prosecution has not examined any witness to prove at least registration of a Narmad CGHS with the Office of Registrar or its order for liquidation, nevertheless, the contention of the defense Counsels particularly of public servants appears to be misplaced as all the public servants in the present case have taken defense that they have done their public duty in good faith in routine manner and they had no means to know that documents filed with prayer for recall order of liquidation and revival of the society were forged. If no society by the name of Narmad CGHS Ltd. was registered with RCS and was not ordered to be liquidated, there could not have been any need by the Office of RCS to entertain any prayer or application for recalling the order of liquidation of Narmad CGHS Ltd. and there could not have been any occasion for public servant to allegedly perform their respective public duty in routine manner while dealing with prayer for recalling the order of liquidation and revival of the Narmad CGHS. Hence, from the stand of the public servants itself it is evident that there is no dispute about the fact that a society by the name of Narmad CGHS Ltd. was registered with the Office of the RCS and was ordered to be liquidated. So far as private accused persons are concerned they also specifically did not dispute the above fact either by specifically setting up such case during cross examination of prosecution witnesses or by making their respective statement under Section 313 CrPC. Hence, contention of Counsels for defense is not tenable in law in the above circumstance.
138. On record there is a File marked as Mark-Y (colly) (Addl. Doc.-26) pertaining to Narmad CGHS Ltd. Aforesaid file Mark-Y (colly) was collected by PW72 Sh. Shyamal Majumdar from RCS office vide Memo Ex PW72/A (D-71) and was handed over to IO of the present case vide Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 43 of 99 Memo Ex PW72/B (D-72). PW72 Shyamal Majumdar categorically deposed that he had taken over files relating to the societies including the files pertaining to the Narmad CGHS and files pertaining to Narmad CGHS had been seized by him from the Office of RCS and same had been handed over to him by Sh L. R. Bali, the then Asstt. Registrar (South), Office of RCS, New Delhi. Objection with respect to mode of proof was raised qua the Memo Ex. PW72/A (D-71) as it was a photocopy, however, prosecution examined PW77 Sh Ashwani Kumar, Judicial Assistant from another Special Court of CBI, who produced the original of Memo Ex PW72/A from the case file pertaining to RC/DST/2005/S/0010, thus objection of the defense stands overruled. Vide memo Ex PW72/B files pertaining to many other societies were also seized and that's why original memo was placed in one of the case file.
139. This file pertaining to Narmad CGHS contains note-sheet of the office of RCS for period from 1971 to 2005. Signature of accused N. Diwakar on some of the note-sheets in this file had been identified by PW16 (PW61) Ms Jyoti Dubey who was Stenographer with him in the Office of the RCS and have not been disputed. The fact that File Mark-Y is from the office of the RCS and pertains to Narmad CGHS have also not been disputed by defense. Thus, contents of this file can be read in evidence. Perusal of this file shows that registration of a society named as Narmad CGHS Ltd was ordered on 19.10.1971 (on page No.4) and fair papers of Registration were placed for signature on 24.10.1972. Note dt 07.02.2003 (on page No. 11/N and 12/N) while recording brief history of the society records that Narmad CGHS was registered with RCS at Srl. No. 126(H) on 24.04.1972. Perusal of noting sheets in this file also Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 44 of 99 shows that initial members were 50 in numbers. It also shows that society was ordered to be liquidated vide order dt 18.12.1978.
140. As noted earlier that accused public servants have taken defense that while entertaining and acceding to the request for recalling the order of liquidation and revival of the society, all had acted in routine manner, also shows that they are not disputing the factum of registration of the Narmad CGHS Ltd. with RCS and that it was order to be liquidated. Hence, it stand proved on record beyond reasonable doubt that a society named as Narmad CGHS Ltd. was registered with RCS on 24.04.1972 with 50 members and same was ordered to be liquidated vide order dt 18.12.1978.
Whether there was a request to recall the order of liquidation of Narmad CGHS and whether said order of liquidation was recalled?
141. To answer the above query once again above said File mark Y (colly) will have to be looked into, although it has not been disputed by defense that a request was there from the purported Secretary of the Narmad CGHS to recall the order of liquidation dt. 18.12.1978, approve the freez list of members and forward the same to DDA for allotment of land and pursuant to that request, vide order dt 07.03.2003 order dt 18.12.1978 directing liquidation of the society was recalled and society was revived.
142. Perusal of note sheet at page No. 11/N and 12/N shows that a letter (PUC therein) was received from Arvind Chauhan purported Secretary of the society wherein it was stated that society had shifted its office from A-318, Defense Colony to E-20, Defense Colony during the year 1975-76 vide resolution of Managing Committee meeting dt.15.01.76 approved in General Body meeting on 20.12.1976. It was further stated that society had lately came to know about the liquidation order u/s 63 of the DCS Act but had not been served with show cause notice nor with Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 45 of 99 order directing liquidation and unaware of order of liquidation it had been continuing with increased members enrolled during its existence.
143. Note-sheets further shows that request for recalling was processed by the office of the RCS and final hearing was held on 06.03.2003 on which day order was reserved vide noting Ex PW61/E. Noting on page No. 25/N records that society was liquidated vide order F.46/47/126/78/GH/Coop./8282-91 dt. 18.12.198 and revived vide RCS order No. RCS/126/GHSociety/Coop./2601-2606 dt. 07.03.2003 by Sh. N. Diwakar, Ex-Registrar Co-operative Societies. Besides, PW16 (PW61) Ms. Jyoti Dubey identified the signature of accused N. Diwakar on order dt 07.03.2003 Ex PW61/B perusal of which shows that order dt 18.12.1978 directing liquidation was recalled and society was revived subject to conduct of Audit of its record within 2 months of the order.
144. Thus, perusal of File mark Y (colly) proves beyond reasonable doubt that there was a request to recall the order of liquidation of Narmad CGHS and said order of liquidation was recalled vide order dt 07.03.2003 passed by accused N. Diwakar the then Registrar of Co-operative Societies.
Whether Narmad CGHS Ltd. that approached office of RCS in 2003 with letter dt. 30.01.2003 was fake with fake members?
145. The fact that the society which approached Office of the RCS in 2003 was fake with fake members, is no longer in dispute and none of the accused persons have claimed that the society which approached RCS office in 2003 was a genuine society with genuine members. Their claim, particularly of public servants, is to the effect they were not able to know the fake nature of the society till they were made accused in the case. Be that as it may, prosecution has examined maximum numbers of witnesses in this regard which can be classified into four categories as Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 46 of 99 under:-
(a) Member who has been shown to have participated in act of the society in 2003 but was in fact inactive;
(b) Persons who have been shown members/office bearers but they were not member/office bearer or ever applied to become member of the society;
(c) Owner/resident of E-20, Defense Colony, New Delhi where society allegedly had its office since 1976 to 2003 to show that no society ever ran from there;
(d) CBI officials who verified the members by visiting the address of the members shown in the records of the society; and
(e) Postmen who went to deliver letter from CBI to persons shown members in the society but almost all letters returned undelivered with remarks either "addressee not found" or "address incomplete" or "No such Person" or "left".
146. PW10 Sh. Shanti Lal belong to category (a) witness. As per his testimony he and his brother namely Hasmukh Bhai Ray became members of the society in the year 1971 and after becoming member in the year 1971 neither he nor his brother ever attended any meeting of the said society. He also deposed that his brother Hasmukh Bhai Ray was settled in America even before 1970. He identified his affidavit Ex. PW10/A and affidavit Ex. PW10/B of his brother. Upon seeing the documents i.e. Affidavits dated 28.01.2003 Ex. PW10/E and Ex. PW10/F purported to be of his brother and his, he denied his signature and that of his brother on the said affidavits. He also denied signature of himself and his brother on applications Ex. PW10/G and Ex. PW10/H Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 47 of 99 respectively. He also clarified that name of his wife was Hansa Ben Ray and not Meena Ray as shown in Ex. PW10/G and name of his brother's wife is Kokila Ben Ray and not Geeta Ray as shown in document Ex. PW10/H. This witness was not cross examined by any of the accused persons and thus his testimony remained unchallenged. This witness categorically proved that although he and his brother had become members of the society in 1971 but neither of them had attended any meeting of the society nor had filed affidavits and application forms in 2003 nor had signed any proceedings of the meetings.
147. Fifteen (15) witnesses belonged to category (b) type of witnesses.
Testimony of theses 15 witnesses namely PW1 Sh. Suresh Kumar, PW2 Smt. Kanta Sharma, PW3 Sh. Jeevan Kapoor, PW4 Sh. Sushil Malik, PW5 Sh. Arun Malhotra, PW6 Sh. Vijay Malik, PW7 Sh. Arvind Chauhan, PW8 Sh. Vivek Malhotra, PW9, Sh. Rahul Rishi, PW17 Sh. Sunil Sharma, PW19 Sh. Anmol Gandhi, PW50 Sh. V. P. Sharma PW57 Sh. Harsh Malhotra, PW58 Sh. Vikas Raheja, PW66 Smt. Jyoti Agarwal, are directed towards proving that though their respective names have been shown as member in the society but none of them ever applied for membership or became member or signed and filed membership form, affidavit dt 28.01.2003 or participated in any meeting or election or ever held any post in the society. In the same line is the testimony of PW11 Sh. Shiv Charan Lal who deposed that he had been living at 36 Sainik Farm since 1978 and did not know any Jyoti Agarwal alleged resident of 36, Sainik Farm who allegedly became office bearer in the Narmad CGHS. Nothing could be brought out in the cross examination of these witnesses to impeach the testimonies of the respective witnesses.
148. In category (c) there are two witnesses namely PW12 Sh. Krishan Lal Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 48 of 99 Batra and PW13 Sh. Arun Batra, the owner and resident of E-20, Defense Colony respectively. In the letter dt. 30.01.2003 it was claimed that society had changed its address from A-381 Defense Colony to E-20 Defense Colony and had been functioning from E-20 Defense Colony since 1976. Both PW12 and PW13 deposed that E-20, Defense Colony was never permitted to be used by Narmad CGHS nor ever any society ran from E-20, Defense Colony nor ever any meeting/election of the Managing Committee was held at E-20 Defense Colony. Cross examination of these witnesses did not bring out any thing on record to make their claim unbelievable.
149. In category (d) there are three witnesses namely PW78 ASI Dharamvir, PW79 ASI (Retd.) Rajesh Kumar, PW80 Insp. Dulli Chand and part testimony of PW76 A. A.S.Tariyal who had conducted address verification of the members of the society and all of them deposed that they had visited at the address of members given to them and mentioned in their report and found that either address was wrong or the addresses was not found or the address was incomplete and thus, addresses of majority of members of the freez list of members of Narmad CGHS could not be verified which go to show that members were fake. Cross examination of these witnesses did not dent their respective testimony in examination -in-chief.
150. In category (e) there are 34 witnesses namely PW21 Sh. Sukhram, PW22 Sh. Jagdish Chand, PW23 Sh. Babu Lal, PW24 Sh. R. S. Dubey, PW25 Sh. Mahavir Singh, PW26 Sh. Anil Kumar, PW27 Sh. Chander Pal, PW28 Md. Abbas, PW29 Sh. Ranbir Singh, PW30 Sh. Mahesh Kumar, PW31 Sh. Ganga Ram, PW32 Sh. Dhan Singh, PW33 Sh. Jai Singh, PW34 Sh. Raghubir Singh, PW35 Sh. Radha Shyam Dubey, PW36 Sh.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 49 of 99 Jai Narayan, PW37 Sh. Umesh Manjhi, PW38 Sh. Jagmohan Singh, PW39 Ashok Kumar, PW40 Sh. Manmohan Singh, PW41 Sh. D. M. Shya Kumar, PW42 Sh. Avinash Kumar Jain, PW43 Sh. Daya Chand, PW44 Sh. Shyam Lal, PW45 Sh. Sunder Pal, PW46 Sh. Chatur Gun Pandey, PW47 Sh. Ram Kumar, PW48 Sh. Mahipal, PW49 Sh. Nawab Khan, PW51 Sh. Ramesh Kumar, PW52 Sh. Surender Pal, PW54 Abdul Wazid, PW55 Sh. Bal Kishan and PW56 Sh. Brahmanand, all postmen, whose testimonies are directed towards proving that letters sent by CBI to the so called members of the freez list of members of the Narmad CGHS returned undelivered with report either "address incomplete" or "address does not exist" or "left without address" or "no such person" so as to prove that members shown in freez list of members of Narmad CGHS were fake. Most of these witnesses were not cross examined and those who had been cross examined did not budge an inch from what they testified in their respective testimony.
151. Thus, the testimonies of above witnesses prove beyond doubt that the society Narmad CGHS which came forward in 2003 with prayer to recall the order of liquidation dt 18.12.1978 and revive the society, was in fact a fake society with fake members, though it also contained name of original members but none of them were actually active or participating or knew about any effort to revive the society.
152. Further, the fact that society that came forward in 2003 with name of Narmad CGHS was fake also stands established from the fact that till date no one has come forward either in the office of the RCS or DDA to claim that Narmad CGHS that came forward in 2003 was genuine/real with genuine members and that land be alloted to it.
153. Hence, prosecution has successfully proved that Narmad CGHS which Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 50 of 99 came forward in 2003 to get the order of liquidation dt 18.12.1978 recalled, to get approved the freez list of members and to get the freez list forwarded to DDA for allotment of land, was a fake society with fake members.
Whether the documents such as minutes of meeting, affidavits dt 28.01.2003 of all purported members, application for membership etc. filed purportedly by Narmad CHGS with RCS in 2003 w.e.f 1972 to 2003 were forged?
154. While making prayer for recalling the order of liquidation and reviving the society, the Narmad CGHS in 2003 had filed letter dt 30.10.2003 and further filed many documents such as proceedings of the society of various dates from 1972 onward to 2003 (Ex PW73/H, Ex PW76/B to 76/E, Ex PW1/A to ExPW1/C, Ex PW1/H, Ex WP50/C, PW5/F, ExPW2/B), 120 affidavits all dt 28.01.2003 of all fake members with other records such as Ex PW6/A, ExPW5/E, Ex PW66/D, Ex PW2/C, Ex PW7/ED to Ex PW7/H etc. showing that society was regularly running and functioning from 1972 onwards.
155. With the fakeness of the society that came forward in 2003 having been established/proved above, it naturally follows that all the documents that Narmad CGHS filed or shown in the RCS office in 2003 were forged and fabricated. Hence, it can safely be concluded that prosecution has successfully proved that the fake society which came forward in 2003 to get the order of liquidation dt 18.12.1978 recalled, forged documents and filed the same in the office of the RCS.
Whether accused persons facing trial in the present case, are the persons who conspired to get the society under liquidation revived with the help of forged documents and whether the public servants were party to conspiracy and misconducted themselves in pursuance to said conspiracy?
156. Now that prosecution has successfully proved beyond reasonable doubt Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 51 of 99 the taking place of the offense i.e. a fake society got itself placed in the shoes of a defunct society with the help of forged documents and placed itself ahead of many societies in the list of eligible societies for allotment of land from DDA at subsidized rate and thus attempted to cheat, it has got to be seen whether prosecution has also successfully proved beyond reasonable doubt that offenses with which each accused persons have been charged, were in fact committed by the accused persons facing trial in the present case.
157. It has already been noted above that except for testimony of PW14 Sh.
Dharamvir Singh, PW15 Sh. Neeraj Kumar, PW16 (also examined as PW61) Ms. Jyoti Dubey, PW18 Sh. Iqbal Singh, PW20 Sh. Anuprash Srivastava, PW53 Sh. Jagmal Singh, PW63 Ms. Rashmi Gupta and PW67 Sh. Mohan Lal and expert witnesses PW73 Sh. S. C. Gupta, testimonies of all other witnesses are mostly directed towards proving the happening of offense alleged in the charge-sheet that is to say directed towards proving commission of the offense(s) alleged and investigation etc.
158. Thus, only testimonies of PW14 Sh. Dharamvir Singh, PW15 Sh. Neeraj Kumar, PW16 (also examined as PW61) Ms. Jyoti Dubey, PW18 Sh. Iqbal Singh, PW20 Sh. Anuprash Srivastava, PW53 Sh. Jagmal Singh, PW63 Ms. Rashmi Gupta and PW67 Sh. Mohan Lal, along with expert witnesses PW73 are needed to be appreciated to know if prosecution has successfully proved the respective charges against the accused persons.
159. PW14 Dharamvir Singh was in the audit branch of the office of RCS as clerk in 2000-2003. He deposed that his job had been to countersign the audit report of the auditor/CA and send the same to AR Audit. Additionally, he also used to do other miscellaneous work of the office.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 52 of 99 He correctly identified the accused No.4 Sh. P. K. Thirwani in court and deposed that accused No.4 used to prepare audit report and he (witness) used to countersign the same. As per him accused P. K. Thirwani was auditor and he (accused No.4) used to keep audit reports with himself. As per him auditor was required to check the record of the society, its members, balance sheets and then used to prepare proper audit report. Upon seeing D-67 which is photocopy of audit report containing 222 pages, he deposed that check list at page No.1 was in the hand writing of accused P. K. Thirwani with his signature at page No.2 in encircled portion. He identified his own signature at point B on page No.1. He further deposed that page No.8 and 10-14 were in the hand of accused P. K. Thirwani bearing his (accused) signatures at point A. Entire file D-67 was exhibited as Ex PW14/A. On being cross examined by Ld. PP for CBI he deposed that he had not stated to CBI that P. K. Thirwani used to share bribe money at the rate of Rs. 50/- per year for audit with him. He also denied that he had told to CBI that accused P. K. Thirwani had given him Rs. 1500/- and had shared bribe money with UDC Sushil Sharma. He identified accused Sri Chand who as per him used to visit RCS office. In cross examination on behalf of accused No. 4 Sh. P. K. Thirwani, he admitted that number of people had been visiting RCS office during public hearing regarding their society and people used to visit audit branch in connection with audit of the society. He deposed that Sri Chand never met him in connection with Narmad CGHS. He admitted that he used to collect audit report from CA and auditor and one copy of audit report used to be given to the auditor to be kept in the record. He further deposed that copy given to the auditor was meant to be sent to the society officially as per the procedure. He admitted that Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 53 of 99 whenever audit report used to be received in his office he used to make an entry in the register kept for that purpose. He deposed that he had not handed over any such register to CBI. He further deposed that signature of accused P. K. Thirwani was not there in the first page of Ex PW14/A and admitted that Ex PW14/A was the photocopy of original office copy.
160. This witness, thus, sought to prove that Audit Report Ex PW14/A (D-67) regarding the Narmad CGHS was prepared by accused P. K. Thirwani. This fact is otherwise not in dispute as can be appreciated from the response of the accused P. K. Thirwani in his statement under Section 313 CrPC. Shri S.K. Bhatnagar, Ld Counsel for the accused P. K. Thirwani had contended that since original Audit Report was not placed on record and only photocopy thereof was placed, therefore, said report could not be read in evidence and prosecution could not be said to have proved the Audit Report.
161. It is true prosecution should have produced the original and proved the same, nevertheless, in the present case this Court is not in agreement with Sh. Bhatnagar for the reason that it is not the case of the defense that Sh. P. K. Thirwani had not audited the records of Narmad CHGS or that he had not prepared and filed audit report of Narmad CGHS or that photocopy of audit report is not the photocopy of the original report that he had prepared that is to say any or all of the contents of the photocopy are not there in the original or are different in the original. It is true that accused has right to remain silent but he starts speaking of his defense during the cross examination of prosecution witness. In the cross examination of PW14 Sh. Dharamvir, defense did not set up a case that audit report in question was not prepared by accused or was not the true copy of the original audit report etc. Be that as it may, this witness, Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 54 of 99 however, did not prove anything incriminating against accused P. K. Thirwani, beyond the point of proving that audit report Ex PW14/A was prepared by accused P. K. Thirwani (which is otherwise not in dispute) and countersigned by the witness.
162. PW15 Sh. Neeraj Kumar was a Chartered Accountant. He deposed that he compiled the documents of Narmad CGHS, E-20, Defense Colony, New Delhi at the request of Sri Chand. On seeing page No. 120/C to P335/C which were balance sheets, income expenditure, receipt & payments accounts and list of the members, cash-in-hand certificates in relation to Narmad CGHS for the period 1.04.1971 to 31.03.2002, he deposed that after compiling these documents, same were handed over by him to accused Sri Chand. He further deposed that these documents were not signed by the President, Secretary and Treasurer of the society in his presence nor the stamp of the society was affixed on these documents in his presence. He further deposed that names of Vivek Malhotra, Arvind Chauhan and Vijay Malik were in his hand writing on the photocopy page No. 335/C Ex PW15/A and were written at the instance of accused Sri Chand. He had got his fees for the work through Sri Chand in cash. He had never met any office bearer of the said society. He further deposed that accused Sri Chand had shown him ledger, cash book, list of members & members of the Managing Committee of the society at the time of compilation of the documents.
163. In cross examination on behalf of accused Sri Chand, he deposed that audit report mark X1 to X5 in D-67 was not prepared by him nor did they bear his signatures. He did not remember audit report or account details of how many societies were prepared by him at the instance of Sri Chand. He admitted that at the request of Sri Chand he had prepared Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 55 of 99 audit report/accounting statements for Cosmos CGHS and Naval Technical CGHS. He further deposed that at the request of accused Sri Chand he had prepared accounting statements of Narmad CGHS but had not prepared the audit report of the said society. When his attention was drawn towards the account statement forming part of D-67, he deposed that though he prepared account statement for Narmad CGHS but could not say if the account statement part of D-67 shown to him were the same accounts statement because they did not bear his signatures. He further deposed that generally audit reports were signed by him but the account statement which were not part of audits report were not signed. He admitted that generally account statements or audit reports were prepared by him on computers and CBI had not seized Hard disk of his computer.
164. Testimony of PW15 Neeraj Kumar proves that he knew accused Sri Chand and at the request of accused Sri Chand he had prepared account statement of Narmad CGHS and account statements/audit reports of two other societies Cosmos and Naval-Tech. His testimony to the effect that he compiled the documents of Narmad CGHS at the request of accused Sri Chand remained unshaken. Here also there was contention on behalf of defense to not read the document in evidence as original was neither produced nor shown. But contention of defense Counsel is not tenable in view of the categorically deposition both in examination-in-chief that he (PW15) compiled the documents and in cross examination that at the request of accused Sri Chand he had prepared the accounting statement of Narmad CGHS. The fact that witness had prepared accounting statement of Narmad CGHS at the request of accused Sri Chand and he knew accused Sri Chand, are the material facts and not the document Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 56 of 99 which he prepared at his request. So, even if documents is not looked into, the fact that he compiled documents of Narmad CGHS at the request of accused Sri Chand has got to be taken note of and which fact remained unshaken.
165. PW16 Ms. Jyoti Dubey (also examined as PW61) was working as stenographer in the office of the RCS. She in her testimony deposed that she worked as stenographer in RCS with accused Sh. N. Diwakar and accused Sh. Sanjeev Bharti was another stenographer working in the said office. She correctly identified both the accused in the court. She identified the photo-signature at point Q186A of Sanjeev Bharti on the photocopy of letter dt 31.03.2003 Mark PW16/A {D-55(1 to 6 pages)} addressed to Assistant Registrar (South), RCS, New Delhi regarding proceedings of election of Managing Committee of Narmad CGHS held on 29.03.2003. Along with the aforesaid letter was annexed proceedings/minutes of Special General Body Meeting of the society about conducting of election on 29.03.2003. She also identified the photo-signature of accused Sanjeev Bharti on photocopy document Ex PW2/D {D-55(2) to D55(5)} and letter Mark PW16/A and Mark PW16/B. She also identified the order dt 07.03.2003 Mark 16/C vide which winding up order dt 18.12.1978 was recalled/cancelled and vide which accused Sanjeev Bahrti was appointed Election Officer to conduct the election of Managing Committee of the society within two months of the issue of order but she failed to identify the signature appearing at point A & B on the last page of the document and initials on each page at point X.
166. Ms Jyoti Dubey who was earlier examined as PW16, was subsequently examined as PW61 and she deposed that accused Sanjeev Bharti was Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 57 of 99 posted and working as Stenographer Grade-III with her during the relevant period (2003) in the said RCS office. She and accused Sanjeev Bhati were performing the duty of Personal Assistant of accused Sh. N. Diwakar She identified the letter dt 31.03.2003 {D-55(1)} Ex PW61/A written by accused Sanjeev Bharti as Election Officer of Narmad CGHS addressed to Assistant Registrar (South) Office of RCS. She deposed that at point A on the said letter above the name of Sanjeev Bharti there were signatures which according to letter should be signature of accused Sanjeev Bharti but they were the full signatures which were not similar to the signature of accused Sanjeev Bharti made in attendance register. On seeing D-55(2) she deposed that same was minutes of General Body Meeting dt 29/03/2003 of Narmad CGHS but she could not identify the writings at portion A to A and B to B stating that she did not have any idea about the handwriting of accused N. Diwakar and accused Sanjeev Bharti. She volunteered that she had only seen their signatures and not their long handwriting.
167. In cross examination by Ld. PP for CBI she remained stuck to her stand about her inability to identify the handwriting of accused N. Diwakar and Sanjeev Bahrti. However, she identified the signatures of accused N. Diwakar a point A & B on the photocopy of Order dt. 07.03.2003 Ex PW61/B (D-56). She also identified the initials of accused N. Diwakar at point A on the vakalatnama Ex PW61/C (D-21) in favour of Sh. V. K. Gulati and Rashmi Gulati, Advocates. She also identified signatures of accused N. Diwakar on note sheets dt. 21/02/2003 and 25/02/2003 Ex PW61/D (AD-26 file) and on note sheet Ex PW61/E (AD-26 file). She was not cross examined by any of the accused persons, though objection were notified regarding the mode of proof of the aforesaid documents.
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168. PW16 @ PW61 Mrs. Jyoti Dubey proved signature of accused N. Diwakar on order dt 07.03.2003 Ex PW61/B and on Note sheets dt. 21.02.2003 and 25.02.2003 Ex PW61/D and Note Sheet Ex PW61/E. She also proved signature of accused Sanjeev Bharti on letter dt 31.03.2002 mark PW16/A vide which accused Sanjeev Bahrti had submitted report regarding conducting of election in the Narmad Society on 29.03.2003. Defense Counsels have raised objection that these documents cannot be read in evidence and witness cannot be said to have proved the signatures on the aforesaid documents. This court is not in agreement with contention of defense Counsel because it is not the case of defense that no order dt 07.03.2003 was passed by accused N. Diwakar or Sanjeev Bharti was not appointed Election Officer or that he did not get conducted Election of Managing Committee of Narmad CHGS or that these were not the photocopy of order dt. 07.03.2003 or Election report or office Notes (though office notes are original). Even otherwise these facts have not been disputed either by accused N. Diwakar or accused Sanjeev Bharti in their respective statement under Section 313 CrPC.
169. PW18 Sh. Iqbal Singh had worked in Policy Branch of RCS and was posted in North West Zone. He correctly identified accused Neerajan Singh (since deceased) in the court as both were colleagues in the said branch. He categorically deposed that he had never seen accused Neeranjan Singh writing and signing in the discharge of his official duty and as such he could not identify the writing and signature of accused Neerajan Singh. In cross examination by Ld. PP for CBI he stuck to his stand and went on to add that even before IO/CBI he had stated that he could not identify the signature of accused Neeranjan Singh. This Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 59 of 99 witness proved nothing except that accused Neeranjan Singh was his colleague in the office of Registrar Co-operative Society.
170. PW20 Sh. Anuprash Srivastav was working in the RCS office and he correctly identified accused Neeranjan Singh (since deceased) and P. K. Thirwani in the court who were working with him in the RCS office. Being acquainted he identified signature of accused Neerajan Singh (since deceased) on the letter dt 14.02.2003 (D-23) with subject Inspection report u/s 54 of DCS Act, 1972 of Narmad CGHS and same was exhibited as Ex PW20/A. He was not cross examined. He thus proved the photocopy of Inspection Report Ex PW20/A under Section 54 of DCS Act, 1972 of Narmad CGHS filed by accused Neerajan Singh. His testimony was not disputed by way of cross examination even by suggesting that Ex PW20/A was not the photocopy of the Inspection report filed by accused Neeranjan Singh. Even otherwise said fact is undisputed and so the objection that it should not be read in evidence being photocopy is not tenable.
171. PW53 Sh. Jagmal Singh was posted as LDC in the establishment of RCS. One of his duty was to sell audit forms which were being taken (purchased) by CA, the Departmental Auditors of Society, Office bearers of the society for the audits of the society. He deposed that when the forms were sold, entries were made in a register with Form number and the person who came to get the Form was required to sign in the register. He was unable to tell if the photocopy of page No. 87 of the register was the photocopy of the same Form Sales Register mark PW53/A-1 and he was unable to identify the signatures against entry No. 2732 at point encircled at point X. He however identified signature of Sh. Jitender Singh, Asst. Registrar (Audit) at point B and that of accused P. K. Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 60 of 99 Thirwani at point A on the photocopy of Form mark PW53/A-2 bearing serial No. 2732 in the name of Narmad CGHS. Though, he was not cross examined by any of the accused persons but documents were ordered to be read in evidence only on production of their respective originals.
172. Originals of documents referred to in the testimony of PW53 Jagmal Singh, have been not produced. As the said order was passed by Ld. Predecessor of this Court and remained unchallenged, therefore since original of the concerned documents have not been produced in the court, said documents cannot be read in evidence. Even if read in evidence, it at best proves that Audit form for Narmad CGHS was taken by accused P. K. Thirwani which fact does not affect accused P. K.Thirwani as much as he did not dispute auditing the records of the Narmad CGHS.
173. PW63 Mrs. Rashmi Gulati, a practicing Advocate and who had represented Narmad CGHS at revival proceedings before the RCS, on seeing Vakalatnama dt 22.02.2003 (D-21) Ex PW61/C deposed that it bore her signature at point encircled B and same was filed by her on behalf of her client Narmad CGHS which was signed either by the President or the Secretary of the said CGHS but she did not remember the name of the person. She further deposed that it was a case for revival of Narmad CGHS and during the proceedings all the records were to be produced before the Assistant Registrar for his verification. She further deposed that only after production and verification of records, there could be order in respect of Narmad CGHS, however, she did not remember the final outcome of the above mentioned proceedings of Narmad CGHS. She deposed that she appeared in the said matter once or twice but due to lapse of time she was unable to tell number of her Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 61 of 99 appearance before RCS (in the said matter). She did not remember who contacted her on behalf of Narmad CGHS with the records. She volunteered that either the President or the Secretary of CGHS (would have contacted her).
174. PW63 Mrs Rashmi Gulati was cross examined by Ld. PP for CBI as she had allegedly resiled from her earlier statement on material point. In her such cross examination she admitted that she was interrogated by CBI during investigation and that her statement was recorded by CBI. She however denied having made statement to the effect that Sri Chand had met her in the RCS office and on his asking she had filed Vakalatnama in the court of RCS. She further denied that documents relating to society (for revival) was given to her by Sri Chand and same were returned to Sri Chand after the order of revival by the RCS. She was confronted with statement u/s 161 CrPC Ex PW63/A from A to A where it was so recorded. She further denied having made statement to the effect that no President/Secretary of the society appeared ever in the court in respect of Narmad CGHS proceedings along with her in the proceedings in the court of RCS and she was confronted with her statement Ex PW63/A where it was so recorded. She further deposed that generally the President or Secretary of the CGHS appeared with the advocate before the Court of RCS but she did not recollect whether President or Secretary of Narmad CGHS had appeared with her on 07.03.2003 before the court of RCS when order for the revival of said CGHS was passed. She further deposed that there was no hard and fast rule in the office of RCS for marking attendance of the petitioners/respondents. She deposed sometime attendance were marked in the order-sheet and sometimes not. She further deposed that the proceedings before RCS were in the nature Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 62 of 99 of quasi-judicial.
175. PW63 Rashmi Gulati denied the suggestion that in judicial or quasi judicial proceeding there was always procedures of recording attendance of parties and advocates except in the case of exemption. She deposed that she did not remember name of any of the officer of Narmad CGHS and volunteered that it was the incident of 2003 so it was difficult to recollect the details of each and every case. She denied the suggestion that accused Sri Chand met her and handed over the documents of the case to her or that she was deposing falsely to save the accused Sri Chand who had been her client. She neither admitted nor denied that neither President nor Secretary of Narmad CGHS appeared with her before the RCS on the day when order for revival of said society was passed by RCS. She categorically deposed that Vakalatnama Ex PW61/C was signed in her presence but due to lapse of time she did not remember the name of the person who signed on behalf of client. She did not remember exactly about the nature of record but she must have gone through the file before appearing in the court of RCS. She was unable to identify any of the accused except accused N. Diwakar, the then RCS. Even after pointing out towards the accused Sri Chand she categorically deposed that she had never met him in any capacity. She was not cross examined by any of the accused persons.
176. It could be seen that PW63 Rashmi Gulati, a practicing Advocate, a star witness of the prosecution did not support the case of the prosecution entirely but she was not declared hostile. Prosecution through her wanted to prove that she was engaged on behalf of Narmad CHGS by accused Sri Chand, that Sri Chand had given her record which she returned to him after revival order of the society and that neither President nor the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 63 of 99 Secretary of the Society had appeared before RCS on the day of hearing. She completely exonerated accused Sri Chand and left big question mark about the claim of the prosecution that none of the office bearer appeared in the Court. She neither admitted nor denied that neither President nor Secretary appear before RCS. Her testimony further highlight that some other persons were dealing on behalf of the society and they had records of the Narmad Society as well.
177. PW67 Sh Mohan Lal was posted in Naval Head Quarter in year 1986.
He deposed that Sh. A. M. S. Chhabra who was president of Naval-Tech CHGS approached him for becoming member of the said society. He knew accused Sri Chand (correctly identified accused Sri Chand in the court) who was member of the above mentioned society i.e. Naval-Tech. Subsequently, he (witness) became member of the Naval Tech CGHS and in the year 1986 he (witness) was elected President of the said society whereas accused Sri Chand was elected as Vice President of the said society. As per him the office of the Naval Tech CGHS was located at house No. 304A, pocket C, Mayur Vihar, Phase-II, Delhi and accused Sri Chand was residing at house No. 274A, Pocket C, phase-II, Mayur Vihar, Delhi which was opposite to office of Naval-Tech CGHS. He knew accused Anna Wankhade and correctly identified him in the court and deposed that accused Anna Wankhade was working in DDA as UDC and due to some departmental enquiry he was suspended. He further deposed that Anna Wankhade came to him in search of a work therefore he introduced him to accused Sri Chand. He further deposed that as and when he visited in the society on Sunday and holidays accused Sri Chand and Anna Wankhade used to meet him in the society. He further deposed that he knew accused Sushil Kumar and identified him correctly Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 64 of 99 in the court. He deposed that accused Sushil Kumar was employee of Naval Tech CGHS and he had seen Sushil Kumar and Anna Wankhade while working in the office of Naval Tech CGHS with Sri Chand and they had been preparing and typing documents.
178. Testimony of PW67 Sh Mohan Lal proves that he knows Sri Chand, Anna Wankhade and Sushil Kumar and that both Anna Wankhade and Sushil Kumar was working with accused Sri Chand and had seen them working, preparing and typing documents in the office of Naval-Tech CGHS which fact can hardly be considered incriminating against accused persons named by him. He did not testify that he had seen all three preparing and typing documents concerning Narmad CHGS or forging any particular document used in the present case.
179. Opinion of Handwriting expert PW73 Sh. S. C. Gupta is against the accused Sri Chand, Anna Wankhade and Sushil Kumar. As per opinion of PW73 Sh C. S. Gupta contained in his report Ex PW73/C and Ex PW73/D, questioned signature/writings Mark Q-1, Q-2, Q-4 to Q-25, Q- 25/1, Q-26, Q-26/1, Q-27 to Q-31, Q-31/2, Q-32 to Q-35, Q-35A, Q-36, Q-37 and Q-39 to Q-46 (all on photocopies of minutes of meetings/proceedings of the society) and Q-108 (on original affidavit dt. 28.01.2003 of C.K.Joshi) have all been opined to be written by one and same person who wrote the specimen signature/writing Mark S-1 to S-
51. The specimen writing/signature Mark S-1 to S-51 is stated to be of Anna Wankhade. It has been further reported that questioned writing/signature Mark Q-58 to Q-92 (all on photocopies of minutes of meetings/proceedings of the society) have all been written by the person who wrote the specimen signature/writing mark S-52 to S-82. The specimen writing/signature S-52 to S-82 is stated to be of accused Sushil Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 65 of 99 Kumar Sharma. It has been further opined that questioned signature/writing Mark Q-101A, Q-102, Q-103, Q-104 and Q-106 (all on photocopies of minutes of meetings/proceedings of the society) have all been written by the person who wrote the specimen signature/writing Mark S-83 to S-101. The specimen signature/writings Mark S-83 to S- 101 is stated to be of accused Sri Chand. PW-68 Rajesh Kumar Gupta, PW69 Bachan Singh are witness to the taking of specimen signature/writing of accused Anna Wankhade (S-1 to S-51), accused Sushil Kumar Sharma (S-52 to S-82) and accused Sri Chand (S-83 to S-
101). Evidentiary value of expert opinion shall be discussed later on.
180. Leaving the testimonies of Handwriting expert, with the help of testimonies of PW14 Sh. Dharamvir Singh, PW15 Sh. Neeraj Kumar, PW16 @ PW61 Mrs Jyoti Dubey, PW18 Iqbal Singh, PW20 Sh. Anuprash Srivastava, PW53 Sh. Jagmal Singh, PW63 Mrs. Rashmi Gulati and PW67 Sh. Mohan Lal, following facts stands proved beyond reasonable doubt:-
(i) that accused Neeranjan Singh (since deceased) had prepared and filed inspection report Ex PW20/A after undertaking inspection of Narmad CGHS under Section 54 of the DCS Rules 1972;
(ii) that at the request of accused Sri Chand account statement of Narmad CGHS was prepared and financial documents of Narmad CGHS were compiled by CA Neeraj Kumar (PW15);
(iii) that Mrs. Rashmi Gupta had represented Narmad CGHS as an advocate on behalf of the society in the proceedings for revival of the same before RCS and accused Sri Chand was not the one who had given her the records of the society and someone either the President or the Secretary of the society had signed her Vakalatnama in her presence. It remained unconfirmed that neither the President nor the Secretary of the Society had appeared before RCS on 07.03.2003.
(iv) that order dt 07.03.2003, whereby Narmad CGHS was ordered to be revived, was passed by accused N. Diwakar, the then RCS and accused Sanjeev Bharti was appointed Election Officer to Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 66 of 99 conduct election of Management Committee of the Narmad CGHS;
(v) that Election of the Management Committee of Narmad CGHS was got conducted by Sanjeev Bharti as an Election Officer vide proceedings attached with his letter/report marked Ex PW16/A; and
(vi) that records of the Narmad CHGS was audited by accused P. K. Thirwani vide Audit Report Ex PW14/A (D-67).
181. With fake members and fakeness of the society having been proved above, whether the above mentioned proved facts are sufficient to return findings of guilt of the all or any of the accused persons? Allegation of the prosecution is that all accused persons in conspiracy with each other got in place a fake society in the shoes of a society under liquidation by recalling the order of liquidation based on forged documents, sham quasi-judicial proceedings, false inspection u/s 54 of DCS Act, 1972, false election and false audit report. Hence, role of each accused in the light of above proved facts have to analyzed to find if all or any of them are guilty or not.
Role of N. Diwakar
182. There is no dispute that he was the Registrar of Cooperative Societies and had passed the order dt 07.03.2003. He has been substantively charged u/s 471 r/w 468 IPC, 420 r/w 511 IPC and u/s 13(2) r/w 13(1) of P. C. Act besides 120-B r/w 511 r/w 420, 468, 471 IPC and u/s 13(2) r/w 13(1) of P. C. Act. It is not the case of prosecution that accused N. Diwakar was not competent to pass such order nor is its case that such order could not have been passed even if society had been genuine and had made genuine claim. Thus, if the society had been genuine with genuine claim, act of the accused N. Diwakar could not have been called into question. When act of public servant N. Diwakar is otherwise Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 67 of 99 unquestionable but for fakeness of the society discovered subsequently, then to bring home charge against the public servant for the same act, prosecution has got to bring evidence more than mere proving that society was fake with fake members and forged documents. It has got to bring some material to conclude that accused N. Diwakar had knowledge of the fakeness of the society or could have known the fakeness of the society with due care or by employing tools/means prescribed under law or some other evidence which could enable the court to draw irresistible conclusion about the involvement of the accused in the offense.
183. There is no evidence on record that accused N. Diwakar was in contacts with private accused persons or other persons either prior to offense or after the offense. There is no evidence that accused N. Diwakar had knowledge of the society being fake and was filing forged documents and despite these he allowed the prayer of the society. There is no evidence that N. Diwakar had gained pecuniary advantage in passing the order dt 07.03.2003. There is no evidence that accused N. Diwakar had amassed huge properties/wealth disproportionate to his known source of income. There is no evidence that any of his near or distant relative were shown member of the society and to provide advantage to such members accused N. Diwakar performed his duty ignoring the realty. There is no evidence that accused N. Diwakar violated any of the rules or guidelines in allowing the prayer of the society which has turned out to be fake. There is no evidence that he deliberately did not employ the means or tools available at disposal or prescribed by law/rules which could have helped him discover the truth. Nothing has been brought on record that accused N. Diwakar was personally required to visit the office of the society and verify each member personally and record of the society.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 68 of 99 Merely because society had turned out to be fake, guilt of accused N. Diwakar will not get automatically established particularly when it has come in evidence that society was represented by a lawyer and somebody other than private accused person (Sri Chand) had engaged the said advocate to represent the society. Prosecution has to rule out the possibility that accused N. Diwakar himself was not cheated or deceived or befooled by fake society and its fake Secretary/President. In other words, prosecution has to rule out that accused N. Diwakar himself was not the victim of fraud played by scrupulous person.
184. Perusal of File Mark-Y (colly) shows that upon receipt of letter dt 30.01.2003 from the purported Secretary of the Society a note was prepared on 07.02.2003 and below the said note AR (South) had noted to the effect that the society under liquidation had requested for its revival and liquidator appointed had sent several letters on the address of the society but all such letter had returned undelivered with remarks that address was not correct. He in the circumstance proposed that before proceeding further it would be appropriate if inspection was ordered under Section 54 of the DCS Act, 1972 to bring out the factual position of the society and other relevant documents and he proposed the name of accused Neeranjan Singh to conduct inspection u/s 54 of the DCS Act, 1972. Said note of AR (South) was approved by accused N. Diwakar as is apparent from the signature attributed to accused N. Diwakar identified on another page by PW16 Mrs. Jyoti Dubey.
185. Further perusal of the file Mark-Y (colly) shows that accused Neeranjan Singh furnished his Inspection Report dt. 14.02.2003 on the basis of which noting dt. 20.02.2003 was prepared by dealing assistant whereby concluding on the basis of Inspection Report dt 14.02.2003 that society Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 69 of 99 appeared to be functional as on said date but had failed to submit the final list of members for allotment of land and to get the audit done as per DCS Rules. Subject to approval he suggested putting up file to worthy RCS for consideration of revival of society u/s 63 of DCS Act, 1972 and for initiating further proceedings in a quasi judicial manner. On the same day on this noting AR (South) marked the file to Reader to RCS while noting that Inspection report was self explanatory and revival u/s 63 might be considered.
186. On 21.02.2003 there is noting to the effect that proposal for the revival of the Narmad Coop. G/H society had been forwarded by AR (South) under Section 63 of DCS Act, 1972 and if approved notice might be issued to the society for initial hearing u/s 63 of DCS before the court of RCS on 25.02.2003. On 25.02.2003 Mrs Rashmi Gulati, Advocate (PW63) representing the society appeared and filed her vakalatnama and Reader was directed to send the file to the concerned zone for verification of membership and to ascertain the election/audit position by the concerned Zonal Officer and adjourned the matter for 06.03.2003.
187. Perusal of File Mark-Y (colly) further shows that in terms of the order dt 25.02.2003, a detail note was prepared wherein after recording brief history of the society, contents of letter dt 30.01.2003, Inspection report and order of RCS dt. 25.02.2003, it has been noted that pursuant to direction of the RCS, the Secretary of the society had produced/submitted the original records and documents pertaining to membership, audit and election etc. for verification on 03.03.2003 which was counter checked/verified and had been found in order. Thereafter, it records that society had submitted a list of 120 members for approval and onward submission to DDA for allotment of land. It records that Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 70 of 99 society was registered with Department (RCS) with 50 promoter members and had enrolled 70 more members prior to 30.06.1986 with no resignation of members till 30.06.1986 and then it enlist the names of all 70 subsequent members.
188. It further records that since all the above mentioned enrollments were made prior to freeze date i.e. 30.06.1986, therefore, there was no need of any verification of records though society had submitted photocopies of application for membership from 70 enrolled members, photocopy of receipt of share money from 70 enrolled members, photocopies of minutes of managing committee meetings in which enrollments were approved and affidavits in original of 70 enrolled members. Finally, it records the names of all 120 members and about the fact that Secretary of the society had certified that no inspection u/s 54 and enquiry u/s 55 & 59 and no court case were pending against the society. It records other declaration of the Secretary regarding the genuineness of Managing Committee of the society, about filling of unaudited accounts of the society till March 2002, about election of Management Committee on 27.10.2002 and again on 27.01.2003 and about filling of declaration vide affidavit of President and Secretary and then it records that the original records of the society were called for verification of membership, Audit, Election etc. and same were checked and found in order and as per the provisions of DSC Act and Rules framed thereunder.
189. This noting at the end proposes that in view of the above explained position the worthy RCS may be requested to consider the request for revival of the society u/s 63(3) of DCS Act, 1972, approve the freeze list of 120 members for allotment of land and freeze list be forwarded to DDA subject to audit of accounts of the society up to 31 March 2002.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 71 of 99 This noting prepared by dealing assistant was approved by AR (South) and marked to Reader to RCS.
190. Based on this report/detail noting, submission and affidavits of the President and Secretary of the society, accused N. Diwakar, the then RCS passed the order dt 07.03.2003 cancelling the winding up order dt. 18.12.1978 in exercise of power vested in him u/s 63(3) of DCS Act, 1972 with immediate effect. Consequently, the society was revived with immediate effect subject to condition that pending audit should be got completed within two months time. By this order he also appointed accused Sanjeev Bharti to conduct election of the Managing Committee of the society within two months of order.
191. From the perusal of record/File Mark-Y (colly) no fault could be found with accused N. Diwakar. He got done everything that was possible. Neither the dealing assistant nor AR (South) are accused in the present case. IO had not explained as to why dealing assistant and AR(South) was not responsible if N. Diwakar was responsible for the same act. Noting dt 05.03.2003 gives impression that Secretary of the Society personally produced the original records of the society, but IO made no attempt to record the statement of dealing assistant nor IO made the dealing assistant identify the person who produced the record before him as Secretary of the society. It has already been notice that there is no evidence beyond the file Mark-Y (colly) which could show involvement of accused N. Diwakar but contents of File Mark-Y do not have any incriminating evidence against accused N. Diwakar. Thus, neither from record/file nor from any other extraneous sources any evidence have been produced on record of the court which could directly or indirectly connect the accused N. Diwakar with crime. Accused N. Diwakar had Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 72 of 99 acted on the basis of record produced before him and nothing has been brought on record to show that he did not do what he was required to do or did what he was not required to do. Nothing has been brought on record that he had knowledge of the fakeness of the society or its members or forgery of the documents or had any means/tools to know about the same but he deliberately did not apply the same. Merely because he did not look for reason as to why the society was not in contact with RCS for 25 years from 1978 to 2003, it cannot be said that he was hand-in glove with persons trying to revive the fake society fraudulently. To not look for reason for non connection of the society with the office of the RCS for 25 years may be a serious lapse on his part but only on the basis of said lapse accused N. Diwakar cannot be held guilty of offense alleged against him.
192. Ld. PP for CBI had contended that accused N. Diwakar had noted in his order that the President and Secretary of the society had "appeared and made oral commitment to fulfill all the statutory liabilities in future", whereas neither President nor Secretary appeared before him and this recording of attendance of the President and Secretary shows that he was party to the offense. Contention of Ld. Counsel for CBI is liable to be rejected because firstly making of oral commitment is not preceded by word "appeared" in the order. Secondly, CBI could not categorically proved that on 07.03.2003 (on which day no proceedings have been recorded in the file Mark-Y) neither President nor Secretary appeared before the RCS as PW63 Rashmi Gulati neither admitted nor denied the same. Thirdly, order dt 07.03.2003 does not specifically talk about appearance of the President or Secretary before RCS and having made oral commitment before RCS. Fourthly, perusal of order dt. 07.03.2003 Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 73 of 99 shows that observation regarding making of oral commitment was made in reference to noting dt. 05.03.2003 wherein it was recorded that President and Secretary had given declaration vide affidavits to abide by the statutory liabilities casts upon them whereafter original records of the society were called on for verification. In the order dt 07.03.2003 immediately after noting of oral commitment there is mention that they (President and Secretary) were directed to file original records before the Asst. Registrar for verification. This fact lends support to the view that observation regarding making of oral commitment was made in reference to noting dated 05.03.2003. Fifthly, making of oral commitment was not a sine qua non for passing the order dt 07.03.2003. Even if it was noted in the order it alone does not make accused N. Diwakar guilty of having committed the offense he has been charged with. Hence, it can safely be concluded that there is absolutely no evidence qua accused N. Diwakar that he was party to the conspiracy or committed offense u/s 420 r/w 511 or 471 r/w 468 IPC or u/s 13(2) r/w 13(1)(d) of P. C. Act.
Role of Sanjeev Bharti
193. Accused Sanjeev Bharti has been substantively charged u/s 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(2) r/w 13(1) of P. C. Act besides 120-B r/w 511 r/w 420, 468, 471 IPC and u/s 13(2) r/w 13(1) of P. C. There is no dispute that accused Sanjeev Bharti was appointed Election Officer to conduct election of the Managing Committee of the Society within two month of the order dt 07.03.2003 and he got conducted the election of the Managing Committee of the society and filed his Report dt 31.03.2003 (D-55) qua the conducting of election along with proceedings and list of elected candidates (D-77).
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 74 of 99 Letter/report dt 31.03.2003 has been marked as PW16/A, election proceedings has been marked as Mark PW50/C (Ex PW2/D) also (exhibited as PW1/F) and list of elected candidates has been marked as Mark PW16/B (also exhibited as Ex PW73/R).
194. It has been contended strongly by Sh. Anil Kumar, Ld. Counsel for accused Sanjeev Bharti that although his appointment as an Election Officer to conduct the election of the Managing Committee is not disputed but prosecution has miserably failed to produce the report and prove it according to law of evidence. It has been contended that prosecution had produced only photocopy of his letter dt 31.03.2003 without explaining as to where the original was. Secondly, proceedings of the election is a photocopy which is not admissible in evidence in the absence of original. It has been contended that originals of these documents were neither produced nor witnesses were confronted with the originals. Hence, it has been contended that these documents cannot be read in evidence and thus prosecution has failed to prove that election proceedings were fake or false as alleged.
195. Perusal of court record shows that original Letter/Report dt. 31.03.2003 is available as document No. D-77(6) photocopy of which is marked as Mark-PW16/A. Similarly, original list of selected candidates is also available in the court record as documents No. D-77(5) photocopy of which has been marked as Mark-PW16/B. Perusal of Mark PW16/A show that along with said report only copy of election proceedings were submitted, hence, there cannot be original thereof in the office of RCS. Thus, objection that only photocopies of the election proceedings were produced is not sustainable. So far as issue of non confronting the witness (PW16) with original is concerned same seems to be Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 75 of 99 unnecessarily stretched because PW16 Jyoti Dubey was not cross examined by any of the accused. If at all accused persons had any objection with respect to confrontation with photocopy an objection to that effect could have been raised then and there and prosecution then could have confronted the witness with the original which was readily available on the court record. Once a party allows a procedure to be followed he cannot be permitted to raised objection qua the procedure followed. Hence, it can be said that these documents are undisputed and can be read in evidence.
196. Perusal of proceedings Mark PW50/C (Ex PW2/D) (also exhibited as PW1/F) shows that election of the Managing Committee of Narmad CGHS was held at E-20, Defense Colony on 29.03.2003 which started at 10.00 AM. In the report sixty-one (61) members are stated to have participated and unanimously elected Sh. Vivek Malhotra as President, Ms. Jyoti Aggarwal as Vice President, Sh. Arvind Chauhan, Sh. Vijay Malick and Ms. Kanta Sharma as members of the Managing Committee.
197. Vivek Malhotra (PW8), Ms Jyoti Agarwal (PW66), Arvind Chauhan (PW7), Vijay Malick (PW6), and Kanta Sharma (PW2) all entered witness box and denied having become member of Narmad CGHS or having participated in any meeting or election of the society or having got elected in any Managing Committee of Society. Similarly, PW3 Sh. Jeewan Kapoor and PW58 Sh. Vikas Raheja who have been shown to have participated in the election proceedings, have also denied having ever become member of the society or have ever participated in the election proceedings of the society. PW12 Sh. K. L. Batra and PW13 Sh. Arun Batra have deposed that Narmad Society never ran or operated from or used or any election was held at E-20, Defense Colony at any Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 76 of 99 point of time.
198. In cross examination both PW2 and PW3 deposed that they did not know about the meeting dt 29.03.2003 as they had not attended the same. PW6 Vijay Malick in his cross examination deposed that he could not say as to whether any other person attended the GBM on 29.03.2003 on his behalf as he had not attended the same. PW7 Arvind Chauhan, PW8 Vivek Malhotra and PW66 Jyoti Agarwal were not cross examined by accused Sanjeev Bharti. Further, no dent could be caused to the claim of PW12 and PW13 that no society ever ran or operated from or existed at E-20 Defense Colony.
199. Accused Sanjeev Bharti has not led any evidence in his defense. It has been contended on his behalf that by examining above witnesses or other witnesses who claimed that they never applied to become member or ever become members of the society, prosecution cannot be said to have proved that no election was conducted on 29.03.2003. It has been contended that there is no evidence on record against Sanjeev Bharti that he knew the alleged mastermind Sri Chand or had previous or subsequent hobnobbing with him. It has been contended that Sanjeev Bharti cannot be expected to know the members personally. He further submits that when election is generally unanimous, the alertness regarding participation of fake members etc. become less and he cannot be expected to have inkling that entire society and its members were fake. He has further drawn attention of the court to Rule No. 58 of DCS Rules, 1973 to contend that accused Sanjeev Bharti had not violated any of the direction contained therein. Hence, he has contended that accused Sanjeev Bharti is entitled to be acquitted of all accusation.
200. Per Contra Ld. PP for CBI contended that prosecution has successfully Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 77 of 99 proved that no society ran at or operated from E-20, Defense Colony nor any election took place there nor any member existed, hence election was fake and false report of election was filed by accused Sanjeev Bharti and therefore, he contended that prosecution has successfully proved all the charges against the accused Sanjeev Bharti.
201. As noted above there is no dispute that accused Sanjeev Bharti was appointed Election Officer to conduct the election of the Managing Committee of the society vide order dt 07.03.2003. It has also been noted above that accused Sanjeev Bharti conducted the election of the Managing Committee of the Society on 29.03.2003 and filed report dt 31.03.2033 Mark-16/A with election proceedings Mark PW50/C (Ex PW2/D) (also exhibited as PW1/F) and list of elected members Mark PW16/B (also exhibited as Ex PW73/R). Some of those who allegedly participated in the election and some of those who were allegedly elected in the election have un-shakenly deposed that they never become member or ever participated in the election or ever became office bearer. Similarly, owner and resident of E-20, Defense Colony PW12 Sh. K. L. Batra and PW13 Sh Arun Batra respectively deposed that no society ever ran or operated from the premise or used by the society for any purpose at any point of time. Election proceedings shows that election was conducted on 29.03.2003 at E-20, Defense Colony. It was then for accused Sanjeev Bharti to lead evidence to prove that election did take place at E-20, Defense Colony but he had not led any evidence and therefore it stands established beyond reasonable doubt that accused Sanjeev Bharti filed false report Mark PW16/A. Filling of false report by a public servant amounts to acting not only without public interest but also against the public interest and by filling false report he supported Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 78 of 99 those persons who were making effort to get a fake society placed ahead in the queue of allotment of land by DDA. Thus accused Sanjeev Bharti is guilty of offense under Section 13(1)(d) {particularly 13(1)(d)(iii)} r/w/13(1) of P.C. Act, 1988.
202. So far as charges under Section 468 IPC is concerned, prosecution though successful in proving that report was false but cannot be said to have proved that it was accused Sanjeev Bharti who forged the name and signature of the members who participated in the false election. No opinion on questioned handwriting/signature mark Q-38, Q-93, Q-94, Q- 95 and Q-96 on election proceedings Mark PW50/C (Ex PW2/D) (also exhibited as PW1/F) could be given by handwriting expert. Four candidates proposal forms Ex PW6/A (D-17), ExPW5/E (D-18), Ex PW66/D (D-19) and Ex PW2/C (D-20) are on records and no opinion has been given on questioned writing/signature marked Q-97 on Ex PW6/A , Q-49 to Q-53 on Ex PW5/E and Q-54 to 57 on ExPW2/C. Questioned signature/writings marked Q-39 to Q-48 are stated to be in the hand of accused Sanjeev Bharti but merely by filling the proposal form accused Sanjeev Bharti cannot be held guilty as no opinion on the signature of proposer Dr. Madhu Goel or of candidate Jyoti Agarwal was sought. There was no requirement in law that form should be filled either by the proposer or by the candidate in his or her own hand. Had the signature of Dr Madhu Goel or Jyoti Agarwal had been opined to be in the hand of accused Sanjeev Bharti then things would have been different. There is also no opinion that said writing of names and signature against the names on the attendance sheet/proceedings are of one person. Thus, prosecution has failed to prove forgery on the part of the accused Sanjeev Bharti. It cannot be assumed that since report was Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 79 of 99 false so it was forged. Hence, accused Sanjeev Bharti is acquitted of charge under Section 468 IPC. Once forgery on the part of the accused is not proved and there is no evidence that he knew that it was a forged document, he cannot be held guilty of offense under Section 471 r/w 468 IPC.
203. So far as being party to the conspiracy is concerned, there is no evidence on records to hold him guilty of being party to conspiracy noted above. There is weight in the argument of Ld. Counsel for accused that Election report had nothing to do with revival of the society. Society was already revived, freez list of members of the society were already sent vide letter dt. 12.03.2003 Ex PW77/A (testimonies of PW77 Paras Nath and PW82 Yogi Raj are relevant in this regard) and order of revival was not subject to conduct of election as was the case with pending audit of the society, therefore, his act cannot be made part of attempt to cheat. Hence, accused Sanjeev Bharti is acquitted of offense under Section 511 r/w 420 IPC and of offense under Section 120-B r/w 468, 471 r/w 420, 511/r/w 420 IPC and 13(1)(d) r/w 13(2) of P. C. Act, 1988.
Role of Neeranjan Singh
204. Accused Neeranjan Singh was appointed to conduct inspection of the society under Section 54 of the DCS Act. He did inspection and filed his inspection report u/s 54 DCS Act, 1972 Ex PW20/A which has turned out to be a false inspection report. He died during the trial of the present case and as such proceedings against him abated vde order dt. 02.03.2020.
Role of P. K.Thirwani
205. Accused P.. Thirwani conducted audit of the records of the society and filed his audit report Ex PW14/A. He has been substantively charged u/s Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 80 of 99 468, 471 r/w 468 and 511 r/w 420 IPC and u/s 13(2) r/w 13(1) of P. C. Act besides 120-B r/w 511 r/w 420, 468, 471 IPC and u/s 13(2) r/w 13(1) of P. C.
206. First question that comes to mind is whether Audit Report Ex PW14/A can be termed as forged documents prepared for the purpose of cheating. To hold someone guilty under Section 468 IPC, it has got to be seen whether prosecution has been successful in bringing the ingredients of Section 464 IPC besides the ingredients required under Section 468 IPC. It is settled that pre-condition for the offense under Section 468 IPC is commission of forgery and pre-condition for forgery is making of false documents as explained in Section 464 IPC.
207. In Md. Ibrahim & Ors. v. State of Bihar (Crl. Appl. No. 1695 of 2009 decided on 04.09.2009) Hon'ble Supreme Court held as under:-
"10. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:-
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 81 of 99
11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
208. In the present case it is not the case of the prosecution that Audit Report prepared by accused P. K. Thirwani was prepared with intent to cause it to be believed by all that it was prepared by someone else or with the authority of someone else where there was no such authority. Audit Report in question is prepared by accused P. K. Thirwani in his own name by him and it no where shows that it purported to represent to have been prepared by some one else. Thus, audit report Ex PW14/A cannot be termed as false document amounting to forgery on the part of the accused P. K. Thirwani. Once audit report does not fall in the category of forged document in terms of ingredient of Section 464 IPC as explained above by Hon'ble Supreme Court, accused P. K. Thirwani cannot be held guilty under Section 468 IPC for the said document and for the same reason he cannot be held guilty for offense under Section 471 r/w 468 IPC.
209. Now, can his act be called as an attempt to cheat so as to be guilty under Section 511 r/w 420 IPC? Hon'ble Supreme Court in Dalip Kaur and Others v. Jagnar Singh and Anr, 2009 (14) SCC 696, noticed the ingredients of Section 420 IPC in following words:
"9.The ingredients of Section 420 of the Penal Code are:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 82 of 99
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
210. Deception in general means to make a person believe what is false to be true or to make a person disbelieve what is true to be false by using words or by conduct. Now keeping the meaning of deception in mind, it has got to be seen if accused P. K. Thirwani practiced deception. He had audited the records of the Narmad CGHS. PW63 Rashmi Gulati in her testimony categorically deposed that she had gone through the records of the society before representing the society in the court and she also testified that vakalatnama in her favour was signed either by the Secretary or President of the society in her presence. She categorically denied that accused Sri Chand had handed over the records of the society. Thus, it is the case of the prosecution itself that record of the society did exist, though it was a false record but existence of record stand established.
211. Section 53 of Delhi Co-operative Societies Act, 1972 prescribes for audit as under:-
"53. Audit.--(1) The Registrar shall audit or cause to be audited by a person authorised by him by general or special order in writing in this behalf, the accounts of every co-operative society at least once in each year.
(2) The audit under sub-section (1) shall include an examination of overdue debts, if any, the verification of the cash balance and securities, and a valuation of the assets and liabilities of the society. (3) The person auditing the accounts of a co-operative society shall have free access to the books, accounts, papers, vouchers, stock and other property of such society and shall be allowed to verify its cash balance and securities.
(4) The directors, managers, administrators and other officers of the society shall furnish to the person auditing the accounts of a co-
operative society all such information as to its transactions and working as such person may require.
Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 83 of 99 (5) The Registrar or the person authorised by him under sub-section (1) to audit the accounts of a co-operative society shall have power where necessary-- (a) to summon at the time of his audit any officer, agent, servant or member of the society, past or present, who he has reason to believe can give valuable information in regard to transactions of the society or the management of its affairs; and (b) to require the production of any book or document relating to the affairs of, or any cash or securities belonging to, the society by any officer, agent, servant, or member in possession of such books, documents, cash or securities and in the event of serious irregularities discovered during audit, to take them into custody.
(6) If at the time of audit the accounts of a society are not complete, the Registrar or the person authorised by him under sub-section (1) to audit, may cause the accounts to be written up at the expense of the society.
(7) Audit fee, if any, due from any co-operative society shall be recoverable in the same manner as is provided in section 75".
212. Section 53(1) and 53(2) of DCS Act, 1972 is relevant as per which the Registrar shall audit or cause to be audited the accounts of every co- operative societies. Audit under sub-section (1) shall include an examination of overdue debts, if any, the verification of the cash balance and securities, and a valuation of the assets and liabilities of the society. Thus, the auditor is mainly concern with the financial dealing of the society and its representation to the RCS office. Auditor has to check and verify financial documents of the society to confirm that accounts of the society are maintained in accordance with settled principles of accounting and is duly supported by relevant and necessary documents such as voucher, receipt, bills etc. Auditor is a watchdog and not a bloodhound.
213. Accused P. K. Thirwani checked and verified the record what was shown to him. As per Rule 84(5) of DCS Rule, 1973, unless otherwise directed auditor has to conduct audit at the registered office of the society. But if Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 84 of 99 someone does not do so, will that amount to offense or make auditor party to crime being played by someone else who might have successfully managed audit at the RCS office itself or just guilty of dereliction of duty? Society did have records as deposed to by PW63 Rashmi Gulati, accused P. K. Thirwani audited the said records of the society and filed his audit report Ex PW14/A. Since PW3 Rashmi Gulati also deposed that vakaltanama in her favour was signed either by President or Secretary of the society go to show that President and Secretary of the society although fake one did exist and they put their respective signature on the audit report. Signature of the President or Secretary on the Audit reports has not been shown to be of one person or of any of the private accused persons. Thus, it cannot be said that accused P. K. Thirwani knowingly obtained fake signatures. Thus, there is nothing on record to hold that accused P. K. Thirwani represented to be true which was false to his knowledge. Though he may be careless, negligent or guilty of dereliction of duty but prosecution has not been able to prove that there was deception played on his part. As noted above since auditor are not bloodhound, he cannot be expected to have discovered fake records with efforts.
214. It must be kept in mind that Public Servants are not supposed to assume every public person a cheat, forger or fraud or impostor etc. He is not expected to hold public office with a mind set that every public person approaching him is a cheat, fraud or impostor etc. Of course with every detection of cheating, forgery, fraud, misrepresentation etc., more and more care and caution are introduced in public office and procedures. Simply because, society had turned out to be fake it cannot be assumed that accused P. K. Thirwani was party to it. In any case, since one of the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 85 of 99 necessary ingredient of Section 420 i.e. deception is missing, it is not possible to hold that accused P. K. Thirwani is guilty of attempt to cheat.
215. So far as offense under Section 13(1)(d) r/w 13(2) of P. C. Act is concerned, nothing has come on record that accused obtained any valuable thing or pecuniary advantage either for himself or for any other person, thus application of Section 13(1)(d)(i) and (ii) of P. C. Act is ruled out. As far as 13(1)(d)(iii) of P C Act is concerned, it cannot be said that act of the public servant was without any public interest, if the society and its members had turned out to be genuine. Act of accused P. K.Thirwani becomes questionable only when it is known that society and its members were fake, therefore, to hold accused guilty under this section it was necessary for the prosecution to prove that accused P. K. Thirwani knew of the fakeness of the society and its members any time before, during or after embarking on audit of the record of the society. As held earlier since accused himself could not detect fakeness of the society or did not visit the registered office of the society for audit, he cannot be held guilty of being party to all the offense discovered later, though by not visiting the registered office of the society he is guilty of dereliction of duty. However, it cannot be said that accused P. K. Thirwani knowingly acted against the public interest and thus cannot be held guilty under Section 13(1)(d) r/w 13(2) of the P. C. Act.
Role of Sri Chand
216. Accused Sri Chand is a private person. He has been substantively charged u/s 511 r/w 420 IPC, 468 IPC and 471 r/w 468 IPC besides 120- B r/w 511 r/w 420 IPC and u/s 13(2) r/w 13(1) of P. C. Act. The only evidence against him is the testimony of PW15 Neeraj Kumar and opinion of handwriting expert vide his report Ex PW73/C. As already Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 86 of 99 noted before, the testimony of PW69 Mohan Lal is not at all incriminating either against Sri Chand or Anna Wankhade or Sushil Kumar Sharma. PW63 Ms Rashmi Gulati, Advocate, did not support the case of prosecution so far as accused Sri Chand is concerned.
217. Testimony of PW15 Neeraj Kumar, the Chartered Accountant proves that at the request of accused Sri Chand he had prepared account statement of Narmad CGHS and had received Rs 11,000/- as fee through him. His testimony to this extent remained intact and unshaken. His testimony proves involvement of accused Sri Chand in the activity of the fake society but not clear as to how and in what way he was involved.
218. Handwriting expert PW73 S.C. Gupta vide his report Ex PW73/C has opined that questioned signature/writings marked Q-101A, Q-102 , Q- 103 and Q-104 on photocopy of minutes of proceedings dt. 5.5.84 Ex PW1/H (D-10) and Q-106 on photocopy of minutes of proceedings dt 5.06.1984 Ex PW7/H (D-54) are of the same person who wrote specimen signature/writings marked S-83 to S-101 which are stated to be of accused Sri Chand.
219. Before appreciating the opinion of handwriting expert it will be worthwhile to note that questioned writing/signatures marked Q-101A, Q-102 , Q-103, Q-104 and Q-106 have been taken from photocopy of the documents i.e. proceedings of the Managing Committee. The handwriting expert in his report specifically mentions that the opinion on the photostatic impression are based on the assumption that they represent their original truly.
220. What is the evidentiary value of the opinion of a handwriting expert?
Law regarding evidentiary value of the opinion of handwriting expert or Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 87 of 99 to what extent reliance be placed on the opinion of handwriting expert has been laid down in many judgements of the Hon'ble Apex Court and one such judgement was rendered in the case titled as Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210 wherein it was held as under:-
"7. In the first place, .................... It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time. It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings Ex. 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State (1) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa (2) that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar (3) where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by Circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State (4) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands (5) and Matter of Alfred (1) AIR 1957 SC 381. (2) AIR 1963 SC 1728 (3) AIR 1964 SC 529 (4) AIR1967 SC 1326 (5) 1822, 5B & Qld 330 Fogter's Will(1). The Supreme Court of Michigan pointed out in the last mentioned case:
"Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship-- Opinions are necessarily received, and may be valuable, but at Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 88 of 99 best this kind of evidence is a necessary evil."
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offense." [underlining done by this Court]
221. Constitution Bench of Hon'ble Supreme Court in Chennadi Jalapathi Reddy v. Baddam Pratappa Reddy & Anr. (2019) 5 SCC 220 held as under:-
"10. By now, it is well settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy v. State of Andhra Pradesh, (1996) 4 SCC 596.
11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
12. On the other hand, in Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Indian Evidence Act, 1872 (hereinafter "the Evidence Act") expressly makes opinion evidence open to challenge on facts. In Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21, without Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 89 of 99 referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal (supra) and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence.
13. In our considered opinion, the decisions in Murari Lal (supra) and Alamgir (supra) strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal (supra) and Alamgir (supra) do not go against the proposition stated in Shashi Kumar Banerjee (supra) that the evidence of a handwriting expert should rarely be given precedence over substantive evidence.
[Underlining done by this Court]
222. Recently Hon'ble Supreme Court in Basheera Begum v. Md. Ibrahim & Ors. (2020) 11 SCC 174 relying upon its own judgement in Murari Lal v. State of M.P. has said following about the opinion of a handwriting expert:-
"184. The appellants have relied on the evidence of PW-34, a handwriting expert, to prove that the accused had taken part in a conspiracy at the Malar Lodge Hotel on 21.6.1990. Evidence of experts is not always conclusive. As observed by this Court in Murari Lal v. State of Madhya Pradesh (5) there is hazard in accepting the opinion of an expert, not because an expert is not reliable as a witness, but because human judgement is fallible. While the science of identification of finger-prints has attained perfection, with practically no risk of an incorrect opinion, the science of identification of handwriting is not so perfect. In this case the evidence of PW-40, manager of Malar Lodge Hotel contradicts the evidence of PW-34." [Underlining done by this Court]
223. Since the report itself give its finding/opinion based on assumption that photocopy represents the original truly. The original obviously could not be produced. Now, is it safe to rely on opinion based on assumption that photostatic impression represents their original truly? In the opinion of this court it is not safe to rely solely upon the opinion of handwriting expert which is based on assumption to condemn accused Sri Chand against whom except for testimony of PW15 Neeraj Kumar no other evidence is available. Testimony of PW15 Neeraj Kumar that accused Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 90 of 99 Sri Chand got prepared accounting statement of Narmad CGHS from him proves nothing except that accused Sri Chand was either the person himself who was involved or was in touch with the person who were involved in placing a fake society revived as if genuine original society was in existence since its registration.
224. Getting prepared accounting statement from CA on behalf of other in itself is not an offense but it will make that person guilty if it is shown beyond reasonable doubt that said person already knew or had reason to know that no such society ever existed. Even if it is believed that accused Sri Chand helped the person who were fraudulently trying to get the fake society revived, there is no evidence that accused Sri Chand knew or had reason to believe that society was fake. Hence, accused Sri Chand is entitled to benefit of doubt. Consequently, accused Sri Chand is acquitted of all charges.
Role of accused Anna Wankhade and Sushil Kumar Sharma
225. Accused Anna Wankhade and Sushil Kumar Sharma have been alleged to have helped accused Sri Chand in forging documents i.e. minutes of proceedings of the society and other documents. It was alleged that both Anna Wankhade and Sushil Kumar Sharma were working with Sri Chand and were party to the criminal conspiracy and have forged documents such as ante date proceedings of the society.
226. There are testimonies of only two witness i.e. PW67 Sh. Mohan Lal and PW73 Sh. S. C. Gupta throwing light on the role of above named both accused persons. Testimony of PW-67 Sh. Mohan Lal is not all incriminating except the fact that accused Anna Wankhade and Sushil Kumar Sharma were working with accused Sri Chand. So far as opinion of handwriting expert PW73 Sh. S. C. Gupta is concerned, in the report Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 91 of 99 Ex. PW73/C (colly.) it has been reported that questioned writing/signature Mark Q-1, Q-2, Q-4 to Q-25, Q-25/1, Q-26, Q-26/1, Q- 27 to Q-31, Q-31/2, Q-32 to Q-35, Q-35A, Q-36, Q-37 and Q-39 to Q-46 were all written by one and same person who wrote the specimen signature/writing Mark S-1 to S-51. The specimen writing/signature Mark S-1 to S-51 are stated to be of Anna Wankhade. It has been further reported that questioned writing/signature Mark Q-58 to Q-92 has been written by the person who wrote the specimen signature/writing mark S- 52 to S-82. The specimen writing/signature S-52 to S-82 is stated to be of accused Sushil Kumar Sharma. In the supplementary opinion report Ex. PW73/D it has been opined that signature marked as Q-108 on the affidavit of C.K. Joshi is of the same person who wrote/signed Mark S-1 to S-51 i.e. Anna Wankhade. PW-68 Rajesh Kumar Gupta, PW69 Bachan Singh are witness to the taking of specimen signature/writing of accused Anna Wankhade (S-1 to S-51), accused Sushil Kumar Sharma (S-52 to S82) and accused Sri Chand (S-83 to S101).
227. Handwriting experts in Report Ex PW73/C and PW73/D itself gives its finding/opinion based on assumption that photocopy represents the original truly original of which could not be produced, question arises- is it safe to rely on opinion based on assumption that photostatic impression represents their original truly? It has already been noted above that in the opinion of this court it is not safe to rely solely upon the opinion of handwriting expert to condemn accused persons. Apart from expert opinion there is no other evidence against accused Anna Wankhade as well as accused Sushil Kumar Sharma. It is true that in the supplementary opinion questioned signature Mark Q-108 is taken from original affidavit but again only on the basis of one single report in the Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 92 of 99 absence of any other corroboration it will not be safe to condemn accused Anna Wankhade not because handwriting expert is not reliable but because human judgment is fallible. As held above while the science of identification of finger-prints has attained perfection, with practically no risk of an incorrect opinion, the science of identification of handwriting is not so perfect.
228. As noted above apart from opinion of handwriting expert PW73 there is no other evidence against Anna Wankhade and Sushil Kumar Sharma about their involvement in the offence, hence, it can safely be concluded that prosecution has miserably failed to prove any of the charges against accused Anna Wankhade and Sushil Kumar and thus both accused Sushil Kumar Sharma and Anna Wankhade are acquitted of all offense they were respectively charged with.
ISSUE OF SANCTION FOR PROSECUTION
229. Counsels for accused N. Diwakar, Sanjeev Bharti and P. K.Thirwani has raised issued of sanction for prosecution under Section 19 of the P. C. Act and under Section 197 of CrPC. It was contended on behalf of the accused N. Diwakar that neither sanction under Section 19 of the P. C. Act nor under Section 197 of CrPC were taken against the public servant accused N. Diwakar. Similarly, it was contended on behalf of accused Sanjeev Bharti and P.K. Thirwani that prosecution has only obtained sanction under Section 19 of P.C. Act but no sanction was taken under Section 197 CrPC in respect of offense under Indian Penal Code. In nutshell it was contended that separate sanction u/s 19 of P.C. Act and u/s 197 CrPC were required for offenses under P. C. Act and under Indian Penal Code respectively. It has been contended that even sanction under Section 19 of the P.C. Act is defective.
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230. It has long been settled that once Sanction under Section 19 of the P.C. Act is granted by Appropriate authority there is no need for separate sanction under Section 197 of CrPC for the same set facts constituting offense either under P.C. Act or Indian Penal Code or under both. This is the correct position of law because protection to public servants were afforded to protect them from frivolous harassment. Once Competent Authority has applied its mind on the material which shows commission of offense by public servants either under P. C. Act or under Indian Penal Code or under both or under any other law and granted sanction for prosecution of public servants, matter ends.
231. Since accused N. Diwakar has been acquitted of all charges this court is not embarking upon discussion about the requirement or non- requirement of Sanction for prosecution in respect of him. Similarly, since accused P. K. Thirwani has also been acquitted of all charges, this court is not going into question as to whether sanction for prosecution in respect of him is defective or not.
232. So far as accused Sanjeev Bharti is concerned, he has been found guilty of offense under Section 13(1)(d) r/w 13(2) of P. C. Act and admittedly there is Sanction Order Ex PW64/A (D-73) under Section 19 of the P.C. Act. It has been contended that aforesaid order is defective as the same was not granted by Competent Authority. It has been contended that at the time of alleged offense accused In the Office of RCS but Sanction has been granted by the directorate of Education, Govt. Of NCT where accused Sanjeev Bharti was posted at the time of investigation of the case. It has been contended that Directorate of Education was not competent to remove accused Sanjeev Bharti from the Office of RCS, hence Sanction was defective. Accused Sanjeev Bharti himself Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 94 of 99 summoned the sanction file from Directorate of Education. Further, it has been contended on his behalf that sanction was accorded mechanically without application of mind.
233. Bare perusal of sub-section (1) to Section 19 of P. C. Act makes it clear that sanction can be accorded by the Central Government, if the concerned employee is employed in connection with the affairs of the Union. If the concerned employee is employed in connection with the affairs of the State, sanction qua such employee can be accorded by the State Government. In respect of other employees, sanction can be accorded by the authority competent to remove such persons from their office. There is nothing in sub-section (1) to Section (19) of the Act that the Government or the authority must be competent to remove such employee on the date of commission of alleged offences. It is sufficient if Central Government or the State Government or the authority as the case may be, is competent to remove such employee from his present post. However, in case of any doubt; whether sanction qua such employee should be accorded by Central Government or State Government or any other authority, in such a case sanction should be accorded by the government or the authority, which was competent to remove such employee from his office at the time of commission of the alleged offence. In other words, the competence of authority is required to be looked into where there is a dispute about the competence of Government or the authority qua any particular employee. Hence, the contention that it was not accorded by Competent Authority of the day of commission of offense is not tenable.
234. In the present case admittedly sanction order ExPW64/A (D-73) is on record and same was proved by none other by concerned authority Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 95 of 99 PW64 Sh. Vijay Kumar himself. He appeared in the witness box proved sanction order Ex PW64/A and deposed categorically that Directorate of Education processed the request of CBI along with material sent by them and put up the matter before him for his consideration and he had gone through the material sent by CBI i.e. the report of SP, CBI, calendar of evidence including oral and documentary evidence, analysis of evidence and gist of statements of witnesses etc. He further deposed that after consideration of the entire material and application of his independent mind, in his opinion, there was sufficient material against the accused Sanjeev Bharti for grant of sanction for prosecution and accordingly, he granted sanction for prosecution. There is, thus, nothing that there was any non-application of mind or that he was not competent. Hence, it is held there is no defect in the prosecution sanction Ex PW64/A (D-73). DEFECT IN INVESTIGATION
235. Attention of the court has gone to the fact that PW4 Sh. Shushil Malick and PW6 Sh. Vivek Malick are real brother. PW13 Sh. Arun Batra is husband of their (Sushil and Vivek Malick) first cousin Mrs. Seema Batra. PW13 Arun Batra is Saadu (brother-in-law) of Sh. D. D. Berry. PW12 Sh. K. L. Batra is father of PW13 Sh. Arun Batra. Thus, Shushil Malick, Vivek Malick, Arun Batra and K. L. Batra are relative of Sh. D. D. Berry. Further, PW5 Sh. Arun Malhota, PW8 Sh. Vivek Malhotra, PW57 Sh. Harsh Malhotra are real brothers. Nikhlesh Malhotra one of the purported members of the society is cousin of Arun Malhotra, Vivek Malhotra and Harsh Malhotra who are nephews of D. D Berry. Thus, Nikhlesh Malhotra, Arun Malhotra, Vivek Malhotra and Harsh Malhotra are relative of D. D. Berry. PW66 Mrs. Jyoti Agarwal the purported Vice-President of the society is real daughter and PW58 Vikas Raheja is Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 96 of 99 real son-in-law of D. D. Berry. PW2 Kanta Sharma is wife of PW50 Sh. V.P. Sharma who is known to D. D. Berry as his son-in-law was into the same plastic business as their son. PW9 Rahul Rishi is known to PW50 Sh. V. P. Sharma. PW3 Jeevan Kapoor is maternal uncle of wife of PW8 Vivek Malhotra. PW19 Amol Gandhi is son-in-law of Mausi of PW8 Vivek Malhotra. Rajat Saxena, PW7 Arvind Chauhan are all known to Vivek Malhotra, Arun Malhotra and Harsh Malhotra.
236. It is, thus, seen that all this purported members are related to D.D. Berry and it cannot be a co-incident. If one has to put on record names of persons with address, he would generally gives either names which shall be entirely fake or he would give names of his friends/relatives. There is no evidence that accused Sri Chand is connected with any of the purported members or with D. D. Berry. It has also come in evidence that D. D. Berry was in the business of constructing buildings in societies etc. There is no investigation on this point. How this escape the attention of Investigating officer has not been explained?
237. Secondly, there is no attempt on the part of IO to send letter dt 30.01.2003 purportedly written by Secretary Arvind Chauhan to CFSL for opinion of handwriting expert to know who is the author of the said letter. No opinion was also sought about the signature of purported President, Secretary or treasurer on the supporting documents with audit report. Similarly, no attempt was made to identify the person who was dealing with RCS office with assumed name of Arvind Chauhan. No attempt was made by the IO to record the statement of Dealing Assistant, who recorded the note dt 05.03.2003, about the person who produced the records before him or made him identify the person Sri Chand, if it was he who had produced the record. There was no explanation as to why Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 97 of 99 Dealing Assistant and the Asst. Registrar (South) was not made accused when for acting on the their report/noting accused N. Diwakar was made accused.
CONCLUSIVE FINDINGS
238. In view of above discussion and reasoning as discussed above, accused N. Diwakar (A-1) is hereby acquitted of all offense under Section 471 r/w 468 IPC, 511 r/w 420 IPC & offense u/s 13(1)(d) r/w 13(2) of the P. C. Act and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(1)(d) r/w 13(2) of the P. C. Act.
239. Accused Sanjeev Bharti (A-2) is hereby convicted of offense under Section 13(1)(d) r/w 13(2) of P.C. Act and acquitted of offense under Section 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(1)(d) r/w 13(2) of the P. C. Act.
240. Accused Neeranjan Singh (A-3) (since deceased) died during the pendency of the trial, hence proceeding against him abated.
241. Accused P. K. Thirwani (A-4) is hereby acquitted of offense under Section 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC & u/s 13(1)(d) r/w 13(2) of the P. C. Act and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(1)(d) r/w 13(2) of the P. C. Act.
242. Accused Sri Chand (A-5) is hereby acquitted of offense under Section 468 IPC, 471 r/w 468 IPC & 511 r/w 420 IPC and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(1)(d) r/w 13(2) of the P. C. Act.
243. Accused Sushil Kumar Sharma (A-6) is hereby acquitted of offense under Section 468 IPC, 471 r/w 468 IPC & 511 r/w 420 IPC and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s Case No. 50/19 (28/16) CBI v. N. Diwakar & Ors. (Narmad CGHS Ltd.) DOJ 29.04.2022 Page No. 98 of 99 13(1)(d) r/w 13(2) of the P. C. Act.
244. Accused Aanna Wankhade (A-7) is hereby acquitted of offense under Section 468 IPC, 471 r/w 468 IPC & 511 r/w 420 IPC and under Section 120-B r/w 468 IPC, 471 r/w 468 IPC, 511 r/w 420 IPC and u/s 13(1)(d) r/w 13(2) of the P. C. Act.
245. Bail bond and surety bond of all the acquitted accused persons are hereby discharged. Original documents of such surety be returned to them as per rules.
246. Needless to say that all the acquitted accused persons are required to submit, if not already submitted, personal bond of Rs. 25,000/- with one surety of equal amount, in terms of Section 437A CrPC. Additional Information
247. Before parting with judgment, it is important to mention here that undersigned was posted as Special Judge (P. C. Act) (CBI-20), Rouse Avenue Court, New Delhi, when final argument in the matter was heard and judgement was reserved but nine (9) days before the day of pronouncement of this judgement, undersigned was transferred vide Order No. 13/G-I/Gaz.IA/DHC/2022 dt. 20th April 2022 and was posted as Addl. District Judge-02, North, Rohini Delhi. Aforesaid transfer order authorised and called upon the undersigned to pronounce judgement in the matter notwithstanding the transfer. Pursuance to aforesaid authorisation, present judgement has been announced.
Digitally signed by HARISH HARISH KUMAR
KUMAR Date: 2022.04.29
15:29:31 +0530
(Harish Kumar)
Special Judge (P. C. Act)(CBI-20)
(Presently posted as ADJ-02, North, Rohini)
Delhi/29.04.2022
Announced in the open Court.
(Judgment contains 99 pages)
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