Delhi District Court
Cbi vs . Ajay Wahiwal Etc. on 16 August, 2010
IN THE COURT OF SHRI AMAR NATH : SPECIAL JUDGE:
CBI-II ROHINI DELHI
RC No. SIB/2006/E0002 CBI/EOU-V/N. DELHI
CC NO. 18/10
CBI Vs. AJAY WAHIWAL ETC.
ORDER ON CHARGE
As per the allegation in the PE registration report, certain Co-
operative Group Housing Societies registered with the RCS office, New
Delhi during the year 1980-90 were wound up by the RCS U/s 63(2) of
the Delhi Co-operative Societies Act. These societies were subsequently
got revived by the RCS in connivance with the officials of RCS and the
private persons on the basis of forged/fake documents with the fraudulent
intention to obtain land from Delhi Development Authority on
concessional rates/priority basis as the original date of registration of
society with the RCS office was considered as main criteria for
establishing the seniority of the society for allotment of the land by the
DDA. On the basis of finding of preliminary inquiry, this case was
registered vide FIR RC no. SIB 2006 E0002 dated 03.01.2006 in the
Economic Offence Unit-V branch, CBI, New Delhi.
I have heard the arguments on behalf of Ld. Defence counsels
as well as Ld. PP at length and have carefully perused the entire charge
sheet and statements of PWs recorded under Section 161 Cr.P.C. along
with documentary evidence.
Accused Narain Diwakar appeared in person, made submission
that there was nothing sinister about revival of the societies as winding up
of such CGHS and there subsequent revivals are provided in DCS Act.
He has done nothing wrong in as much as he had passed order for revival
of the Dream House CGHS pursuant to the inquiry reports from the
competent officers of the Office of the RCS. The RCS does not deal with
the land as the same is subject matter of DDA, who allots the land in
accordance with Rules framed under DDA Act, 1957 & Disposal of
Developed Nazul land Rules 1981. CBI had committed various
illegalities while investigation and then prosecuting the present case. He
placed reliance upon the judgment of Dr. R. R. Kishore Vs. CBI
Criminal Revision Petition 2006 I AD (Delhi) 545, wherein it was held
that if illegal investigation is brought to the notice of the Trial Court at the
initial stage, then the court ought not to proceed with the trial but should
direct the re-investigation in order to cure the defect in the investigation.
Accused Narain Diwakar pointed out the following illegalities :-
1.Consent of the State is not taken as required U/s 6 of the DSPE Act, 1946.
2. Absence of Notification U/s 3 of DSPE Act.
3. Registration of case under Indian Penal Code instead of Delhi Co- operative Group Housing Society's Act which is a Special Act.
Besides this, accused Narain Diwakar raised the issue of illegal & unfair prosecution. Chargesheet is not filed as per the provisions of Sec. 173(2) of the Cr.P.C which makes the chargesheet invalid. The investigation was not carried out by competent officer as required U/s 17 of the Prevention of Corruption Act.
On the other hand, Ld. PP Sh.Amrit Pal Singh refuted the entire submissions of the Ld. Defence Counsel contending that there are specific allegations of conspiracy hatched between the private persons and officials of RCS which cannot be ignored at this stage and prosecution has a sufficient evidence for prima facie view against the accused persons. Provision of Sec. 17 of the Prevention of Corruption Act have been fully complied with while conducting investigation of the instant case.
The first & foremost point raised by accused Narain Diwakar that he being a Registrar of the Co-operative Societies was a quasi judicial authority and per sub section 3 of the Section 93 of the Act, no order passed by him in such capacity could be questioned in any court on any ground whatsoever. He further argued that as per section 94 of the Act, he had all the powers of the Civil Court and hence no suit, prosecution or any other legal proceedings shall lie against him or any person sub- ordinate to him in respect of anything done in good faith or purported to have been done under this Act. He also urged that as per section 26 of IPC, a person is said to have reason to believe a thing, if he has sufficient cause to believe a thing but not otherwise. Once the list was approved by his sub-ordinate, he had every reason to believe that the list sent to him for approval was a correct and genuine one.
Undoubtedly, per Section 93 of the Act, the Registrar is a quasi judicial authority having the power of Civil Court; enjoys an immunity as per Sec. 95 but atleast accused Narain Diwakar has to prove that whatever he did was in good faith. On perusal the facts, it appears that a list of 60 members was sent to the DDA without complying its directions passed in the revival order dated 30.1.2003 wherein specifically mentioned that records regarding holding of society on 24.11.2002 were verified and found correct in accordance with law. But during investigation, the said statement was found false as neither any elections was held nor any promoter members ever participated in the said elections. The pending audit was to be completed within two months but said condition remained uncomplied with. Not only this, accused Narain Diwakar grossly abused his power and official position with an intention to get the society revived after the gap of ten years without ascertaining the authenticity and genuiness of the documents. Still, the acts of the official of the RCS were bonafide and in good faith is a question of fact which requires evidence.
Next plea of the accused is that DCS Act being Special Law shall prevail upon the General Law i.e. Indian Penal Code. Allegations as set out in the charge sheet are touching the business of the society furnishing false information to RCS by filing false and forged documents, thus, offence U/s 82(3) DCS Act is clearly attracted, therefore the provisions of Indian Penal Code cannot be invoked. He further contended that offence U/s 82(3) of Delhi Cooperative Societies Act has not been notified by Delhi Government as required by Delhi Special Police Establishment Act. The allegations of giving false recommendations and filing of false and forged documents in the office of Registrar of Cooperative Societies pertaining to the business of Registrar of Cooperative Societies are specifically covered U/s 82(3) of Delhi Cooperative Societies Act but the same has not been invoked.
It is further agitated that since the matter is covered under the provisions of Sec.82(3) of DCS Act which completely debars the prosecution without the opportunity of being heard as well as previous sanction of RCS. It is also agitated that offence alleged to have been committed by the accused is punishable under the provisions of Special law, hence the 'provisions' of Indian penal Code being general law cannot be invoked. He also placed reliance upon following judgments :-
1. State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR SC Page 937,
2. Suresh Nanda VS. CBI Criminal Appeal no. 179/2008,
3. Greater Mumbai Co-operative Bank Ltd Vs. United yarn Textile & Ors. 2007 (5) SCALE 366,
4. Dr. R. R. Kishore Vs. CBI Criminal Revision Petition 2006 I AD (Delhi) 545.
On the other hand, it is argued by Ld. PP Sh. Amrit Pal Singh for CBI that DCS Act and Rules are provisions for administration of Co- operative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. Hence, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law. He has placed reliance upon the judgment of H. N. Risbud Vs. State of Delhi AIR 1955 Supreme Court 196, (FULL BENCH) wherein, it was held that irregularities in investigation do not go to the root of justice, so does not make the chargesheet illegal, therefore it cannot be said that cognizance taken by the court is bad in law.
The aforesaid decision delivered by Full Bench of Hon'ble Supreme Court was followed/affirmed by the Apex Court in Union of India Vs. Prakash P. Hinduja (2003) 6 SCC 195. The judgments of Suresh Nanda Vs. CBI & Greater Bombay Co-operative Bank are not applicable as different issues were involved in these cases. It is submitted that the observation of the Hon'ble Supreme Court in case of Greater Bombay Co-operative Bank Ltd was given in the limited perspective regarding the recovery of dues by co-operative Bank on the matter, whether co-operative banks come in the definition of Company or not. Whereas in the case of Suresh Nanda Vs. CBI, it was held that the Passport Act is special enactment, therefore provision of Cr.P.C do not apply.
Hon'ble Apex Court has also dealt with point raised by the accused persons in the matter of State of M.P. Vs. Rameshwar & Ors.
2009 V AD(SC) 37, their Lordships were pleased to make following observations while dealing with aforesaid contention.
Mr. Tankha took us through the MP Co-
operative Societies Act, 1960, in support of his submissions. He submitted that the said Act was a complete self contained Code by itself and provided for different eventualities relating to the administration of Co-operative Societies.
While dealing with these arguments, Hon'ble Supreme Court has observed as follows:-
"Mr.Tankha's submissions, which were echoed by Mr. Jain, that the M.P.Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P.Co- operative Societies Act, 1960, to take resort to the provision of the general criminal law, particularly when charge under the Prevention of Corruption Act 1988 are invoked."
While dealing with similar contention Hon'ble Supreme Court in K. Ashoka Vs. N.L.Chandrashekar and Ors.(2009) 5 Supreme Court Cases 199 has held as follows:
"D.Cooperative Societies - Karnataka Cooperative Societies Act, 1959 (11 of 1959) - Ss. 111 and 109
- Bar to criminal proceedings, under - Applicability
- Held, there is no statutory embargo on court to take cognizance of an offence under the provision of IPC - If allegations in complaint petition or in FIR make out a case under IPC, bar under S.111 of 1959 Act is not applicable - Bar under the section applicable only for offences committed under 1959 Act - Criminal proceedings."
It is further observed in para no.23 of this authority which is as follows:-
"Section 109 of the Act provides for commission of offences under the said Act. Therein, no statutory embargo has been placed for a Court to take cognizance of an offence under the provision of IPC. If the allegations made in the complaint or in the first information report make out a case under IPC, Section 111 of the Act to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore cannot be extended in regard to commission of an offence under the other Act."
After applying the ratio of judgments of Apex Court (s), I do not find any force in the aforesaid contention of the Ld. Defence counsel that offences are liable to be tried under DCS Act only by invoking the provisions of the said Act, therefore, the matter requires to be referred for reinvestigation/fresh investigation. It needs to be noticed that there is no bar to take resort to the provision of General Criminal Laws in DCS Act also. In this case, accused persons including the applicant were chargesheeted for the commission of offences of criminal conspiracy, cheating, forgery for the purpose of cheating, using as genuine a forged document and criminal misconduct. These offences are nowhere defined or dealt with in DCS Act nor did the provisions of the said Act put a bar to proceed under the IPC & PC Act, if omission and commission on the part of an accused attracts penal provisions under these Acts. Even otherwise under section 26 of the General Clauses Act, the accused could be booked for the provisions of any other Law attracted.
Further in view of State of Maharashtra Vs. Laljit Rajsi Shah & Ors. 2000 Supreme Court AIR page 937 and 'Anil Bhai M. Patel Vs. Surya Pur Bank Agent 2007 Vol. III AD (SC) 773, it is urged that the Co-operative Society Act 1972 is a complete self contained statue, so the provisions of the said Act have to followed and that the provisions of Indian Penal code cannot be adhered to. He further urged that the Delhi Co-operative Societies Act 1972, provides a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal. I have gone through the judgments cited by the accused. The facts and the contexts in which such judgments were delivered are entirely different than the present context, hence, the plea qua non-applicability of Indian Penal Code is misconceived. Suffice to say that the Delhi Cooperative Societies Act itself also does not impose any bar to take resort in the provisions of General Criminal Laws.
The plain reading of the Delhi Co-operative Societies Act makes clear that the Act has been enacted by the Parliament with a view to provide for registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co-operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Lt. Governor of Delhi is also empowered to hear appeal and revisions against the orders passed by the Registrar or Tribunal as the case may be. Offences which are coined, provide for instances of deviations from the provisions of the Act. As indicated above, those abrasions are minor offences, for which prosecution can be launched before Magistrate of first class with previous sanction of the Registrar. Offences defined under the Act do not encompass human behaviour, which had been made penal under provisions of the Indian Penal Code as well as under Prevention of Corruption Act. Suffice to say that the Delhi Co-operative Society Act itself does not impose any bar to take resort in the provision of General Criminal Laws.
Another plea of the accused is that the non-compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec. 3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is urged that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government U/s 3 of the Act and such offences as notified are mentioned in DSPE Act 1946. It is further urged that offences covered by the Sec. 3 of the Act do not include the offences under the Co-operative laws. Thus, the investigation done by the CBI for the co- operative societies is in violation of Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
Another line of argument of the accused is that investigation is bad in law for non-compliance of Sec.6 of the DSPE Act 1946. The consent of the government of the State is required to exercise the power and jurisdiction in any area in State. It is argued that there is no state within the meaning of Sec.6 of DSPE Act 1946 and as such the CBI had no jurisdiction to conduct the investigation in the absence of Sanction U/s 6 of the Act. The sanction of Delhi Government is not necessary as investigation of this case has been referred to CBI by the Hon'ble High Court of Delhi vide Civil Writ Petition no. 10066/2004 directing CBI to conduct a thorough investigation into the matter relating to 135 Co-operative Group Housing Society. Investigation has been carried out by the CBI only pursuant to the order of the Hon'ble High Court. Section 6 of the Act does not apply when the court directs CBI to conduct investigation as held in catena of judgments of Hon'ble High Courts as well as Apex Court.
Larger Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition in State of West Bengal & others Vs. Committee for protection of Democratic Rights 2010 III AD (SC) 45. Relevant portion is reproduced as follows:-
(B) - Delhi Special Police Establishment Act, 1946-
Sec.4, 5 and 6 - Complaint along with a large number of a party workers killed - Doctrine of Separation of Powers - Power of judicial review conferred on the High Court - Issue - Whether the High Court, in exercise of its jurisdiction under Article 226 of the constitution of India, can direct CBI to investigate a cognizable offence, which is alleged to have taken place with in the territorial jurisdiction of a State, without the consent of the State Government- HELD-Yes-Power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the poers of the Constitutional Courts with regard to the enforcement of fundamental rights- Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure-Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act-Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
Similar view has already been taken in the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh.S.N.Dhingra in Criminal MC No. 2784 of 2007 wherein his Lordship was pleased to make the following observations:-
"The investigation was referred to CBI in this case by the High Court. One investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
In Cherrian Vs. Union of India (1992) 1 SCC 397, the Hon'ble Supreme Court directed CBI to take up the investigation of particular case without directing the Sate concerned to accord consent.
The plea of Ld. Defence Counsel is that Section 63 of the Act provides winding up order may be cancelled at any time and further that as per Rule 105 of the DCS Rules, 1973, there is automatic revival of the society, if liquidation proceedings are not completed within the period of three years, though do not call for any comments but it cannot be ignored more particularly when recalling of the liquidation order(s) is based on the allegations of conspiracy.
One of the line of the arguments of Ld. Defence counsel is 'unfair prosecution'. It is argued that the public prosecution appearing on behalf of CBI has no locus standi to appear as they are not validly appointed/notified as per the procedure under section 24 and 25 of the Code of Criminal Procedure. It is further argued that the prosecutors are subordinates and under the strict control of the CBI and that dual functioning of the CBI of investigating as well as prosecuting agency is against the mandate of constitution as well as Code of Criminal Procedure. It is also argued that Hon'ble High Court of Delhi has admitted a Writ Petition (Criminal) No. 1038/2008 titled as Narayan Diwakar vs Union of India & CBI vide its order dated 27.3.2009. On the other hand, Ld. PP for the CBI made submission to contrary submitting that they are not under the legal control of CBI and that they are appointed by Central Govt. on the recommendation of UPSC. Hence, the very contention that they are appointed by CBI is false. Their promotions are also undertaken by a committee, though the Director (CBI) is the Chairman of the said committee but the Director (Prosecution ) is also one of its member.
I am told that prosecution has been made a separate Deptt. within the CBI after the pronouncement of judgment 'S.B.Shaney & Ors. Vs. State of Maharastra & Anr. 1995 Supp. (3) SCC 37' and that the Director of prosecution is made the head of the prosecution department in the CBI. Although the general Superintendence may be with Director CBI but for all practical purposes the public prosecutors are answerable to the Director of prosecution and hence, it cannot be said that they are under the direct influence of the Director CBI.
Needless to say that directions passed in S. B. Shawney's case ought to be followed by the concerned authorities in true spirits but so long as such directions are not fully enforced, the present set up cannot be changed by this court as neither this court has such power in its command nor it can issue any such like directions. Hence, the accused cannot be permitted to raise this point before this forum.
I am coming to the next plea of the accused that the chargesheet is not filed as per provisions of 173 of Cr.P.C as it bears the signatures of Public Prosecutor apart from the signature of Superintendent of Police and the Investigating Officer. He laid a great stress that the prosecutor in the present case was a part of the investigation and had presented the charge sheet contrary to the provisions of the Code of Criminal Procedure. He heavily emphasized that per sub section 2 of Section 173, it is the officer in charge of the police station who has to forward the chargesheet to the court of Magistrate upon completion of investigation.
Reference is made to R.Sarla Vs. T.S.Velu AIR 2000 SC 1731 (2000 CRI.L.J. 2453) where it was held that investigation and prosecution are two different facets in the administration of criminal justice. The Role of the public prosecutor is inside the Court, whereas the role of investigation is outside the Court. Normally, the role of the public prosecutor commences after investigation agency presents the case in the Court on the culmination of investigation. Involving the public prosecutor in investigation is injudicious as well as pernicious in law... The Investigation Officer cannot be directed to consult the public prosecutor and submit a charge-sheet in tune with the opinion of the public prosecutor... Public Prosecutor is appointed for conducting any prosecution, appeal or proceedings in the Court. He is an officer of the Court. The public prosecutor is to deal with a different field n the administration of justice and cannot be involved in investigation."
On reading the aforesaid judgment, it makes clear that the investigating officer cannot be directed by the court to consult the Public Prosecutor and submit a charge sheet in tune with the opinion of the Public Prosecutor. The aforesaid judgment does not put a bar upon investigating officer to seek an opinion but it only clarifies that the IO is not bound by the opinion of the Public Prosecutor. Hence, the judgment cited has no relevance to the context of the case. Even otherwise, the chargesheet is filed at the end of the investigation and if the Public Prosecutor has signed the charge sheet, his act cannot be said to be an interference in the investigation as the investigation is already completed.
It is further argued by accused Narain Diwakar that no offence against him is made out U/s 13 of the Prevention of Corruption Act as there are no allegations of demand or request of valuable things of pecuniary advantage from any of the public servant in the present case. This fact is neither shown in the chargesheet nor any of the statement of witnesses so recorded. He referred to State of M.P. Vs. Sheetal Sahai & Ors. (2009) 3 RCR (Criminal) 835 wherein while awarding the additional tender the accused persons allegedly put to loss the government to the extent of Rs.1,2,46,200/- but the Hon'ble Supreme Court held in their favour stating interalia that the said award of contract was the need of the hour and that besides the fact that accused has caused wrongful gain to the third party, Sec. 13(1)(d) of the Prevention of Corruption Act shall still not attracted as it requires that an award of the contract given by the accused was by abusing his position as a public servant.
Accused Narain Diwakar made submission contending that his case stands on a better footing then that of Sheetal Sahai. This argument of the accused Narain Diwakar does not hold good water and the same is rejected. In Sheetal Sahai's case, the Hon'ble Supreme Court after going through the facts of the case had observed that the decision of the accused was in the interest of State at the relevant time rather than against the State. In the present case, the land was sought to be allotted to the society having fictitious & non-existent members and the society had already become defunct and sought to be revived on the basis of forged and fabricated documents using forged documents as genuine and forgery for the purpose of cheating after the gap of ten years. In this case, the accused persons were charge sheeted for the commission of offence of criminal offence, cheating, forgery for the purpose of cheating, using as a genuine forged documents and criminal misconduct. The facts of Sheetal Sahai's case prima facie could not be related to the facts of the present case. Even otherwise, in such like scam cases, overall act of the official has to be kept in mind. This type cases generally fall under Sub Clause(iii) of Clause(d) of Sec. 13 of the Prevention of Corruption Act, 1988 wherein if a public servant obtains any valuable thing for any person without any public interest would be said to have committed the offence.
The decision of Apex Court in A.Subair Vs. State of Kerala is not applicable to the facts of the present case as the Hon'ble Supreme Court in this case basically decided the issue of expression "obtainment" as appearing in Section 7 of the Act and 13(1)(d) of the Prevention of Corruption Act 1988 particularly in reference to demand of bribe and acceptance of the same. The facts of the case show that the case was primarily U/s 7 of the P.C.Act for the demand of bribe and acceptance of the same, though passing reference was made to the provision of Sec.13(1)(d)of the Act. There is no dispute with regard to the propositions of law laid down by Hon'ble Supreme Court but regard must be had to the fact that in the said case the matter had gone to the Hon'ble Supreme Court after conviction when all the facts were proved /disproved during the trial. In case of obtainment, the initiative vests in the person who receives and in that context a demand will be primary requisite for an offence under Section 7 of the PC Act. This legal position was upheld by the Hon'ble Supreme Court in answer to a core question i.e. whether there is sufficient legal evidence on record to bring him the guilt of the accused under Section 13(1)(d) read with Section 13(1)(2), however, in the present case there is no question of appreciation of evidence at all as the such situation has not been arisen yet because the matter is at the stage of hearing on the point of charge.
At this stage, the court has not to see the actual proof of demand being there or not, when the case built up by the prosecution under Section 13(1)(d) apart from the sections of Indian Penal Code. Prima facie, there appears to be allegations of conspiracy against the accused that he in his official capacity ignored the various statutory rules and regulations while reviving the society and recommended the allotment of the land to the DDA and had obtained pecuniary advantage for the private persons without any public interest. The court is required to be considered as to whether the public servant is acting against public interest and had obtained the pecuniary benefit even for any other person than himself like private person involved in this case.
In section 13 (1) (d), it is not necessary to prove that valuable thing or pecuniary advantage had been obtained or inducing any public servant. Section 13 (d) envisages obtaining any valuable thing to pecuniary advantage taking of any gratification "whatever". Explanation
(b) of Section 7 is also relevant. The word gratification is not restricted to pecuniary gratification or to estimable in money. Moreover, allegations of malafide intention specifically applied in the charge sheet by the prosecution and the same are to be proved during the course of trial. It is true that the allegations of conspiracy may be established by adducing cogent evidence which is the subject matter of trial.
Accused Narain Diwakar drew my attention upon a circular no. 21/9/2010-PD/759 dated 11.03.2010 of the CBI where the employees of NAFED were excluded from the definition of public servant in view of Laljit Shah's case.
However, at this stage, it would not be possible for me to interpret the circular referred to above as neither the circumstances under which the said circular issued were disclosed before me nor explained as to why the said circular is not made applicable to the officials of office of the Registrar Co-operative Societies, thus it is a question to the subject matter of trial, more so, when the CBI being aware of Laljit's case had not extended the said benefit to the officials of the Registrar, Co-operative Societies. It is important to mention here that each of the accused is raising a finger of acusation against another while exonerating himself on the ground that he/she may have been negligent but was never an accomplice. The plea of the accused to be negligent/carelessness or commits of some mistakes in discharging the duties or an accomplice is again a question of fact which needs trial.
ALLEGATIONS QUA ACCUSED AJAY WAHIWAL Dream House Co-operative Group Housing Society was registered with the office of Registrar, Co-operative Societies, Delhi on 04.01.1984 vide registration no. 1238(GH) having its address at 23/1, Hari Niwas, Shakti Nagar, Delhi with 60 original/promoter members. The said society was wound up in the year 1993 being non-functional and remained dormant till 1.1.2003. Dharmender Singh Rana(since deceased) got details about non-functional status and held some documents relating to this property. Ajay Wahiwal was keen to purchase Co-operative Group Housing Society contacted the said Dharmender Singh Rana and knowingly obtained the details about the non-functional status and some documents of the society from him with malafide intention to complete documentation work for revival of the society on the basis of false documents with a sole intention to get land from DDA at a cheaper rate.
Ajay Wahiwal posing himself as President/Secretary of Dream Housing Co-operative Group Housing Society Ltd. submitted an application for revival of the society under his signatures to the Registrar, Co-operative Societies for revival of the aforesaid Group Housing Society. Along with this application, series of documents such as copies of Annual General Body Meeting purportedly held on 24.11.2002, copy of the audit report for the year 1990-91; Copy of unaudited account of the society w.e.f. 01.04.1991 to 31.3.2002, copy of freeze list of 60 members; copy of membership register; copy of resignations from membership in respect of original/promoter members, copy of receipt towards refund of share money in respect of promoter member shown to have resigned, copy of minutes of Managing Committee Meeting showing resignation and enrollment of members, affidavit in respect of newly enrolled members, copy of receipt towards amount received in respect of enrolled members, copy of member ship form in respect of enrolled members, copy of statutory affidavit executed by Ajay Wahiwal mentioning therein details of members resigned and member enrolled, copy of certificate of society certifying that no land has been offered to the society by DDA till date were also filed.
In his application for revival of the society, he mentioned that an election of Managing Committee was conducted in annual General Body Meeting held on 24.11.02 and as per record he was managing committee member only. As per their own documents, he was not President/Secretary of the society. Specimen signatures/hand writings of Ajay Wahiwal was obtained and same were sent to Government examiner on questioned documents for expert opinion. Report received from GEQD confirmed signature/hand writing of Ajay Wahiwal on application for revival of the society, individual affidavit as well statutory affidavit furnished by him at the time of revival of the society. In his application, he has falsely claimed resignation of various members and tendered their forged resignation who had never resigned from the membership of the society. He also submitted false proceedings of the society in pursuance of criminal conspiracy hatched amongst between Ajay Wahiwal, Narain Diwakar, Markandey Mishra and Shakuntala Joshi. Ajay Wahiwal submitted false proceedings of the Managing Committee of the society in his writing showing resignation of original members during the occupancy period of founder managing committee members of the society. The official of Registrar, Co-operative societies with criminal intention knowingly and deliberately failed to take the notice of the important aspect of non-referring of enrollment of member to the Cooperative Group Housing Societies by accepting the validity of submission. Several members claimed to have been enrolled before the wounding up order, actually signed their membership forms during the year 2002-03.
Investigation also revealed that signatures of original members were forged in second membership register purported to have been maintained by Ajay Wahiwal, the xerox copy of which was shown at the time of consideration of revival of the society. Signatures of original members were also forged on receipt to be shown of refund of share money to the original members at the time of consideration of the revival of the society. Investigation established that a very crucial annual general body meeting purportedly held on 24.11.2002 i.e just prior to revival of the society in which original/promoter members were shown to have attended, was actually not held. In this meeting founder managing committee was shown to have been replaced by new committee by conducting election in the meeting but infact, no such meeting was ever held in the matter of Dream House CGHS. Ahay Wahiwal through this meeting was shown member of Managing Committee of the society. It was done subsequently with the criminal intention to revive the society and fraudulently secure the land from DDA on priority basis. Original member namely Ram Pyari was also shown to have attended the meeting dated 24.11.2002 whereas she had already expired in the year 1994. The members who were shown to have been enrolled in the year 1993, it became the members of the society at the instance of Ajay Wahiwal somewhere in the year 2002-03 and not in 1993. Forged proceedings registrar of the society was shown to have been maintained by Ajay since its inception in which the details of "non-existing" proceeding from 1983- 2002 were drawn.
Investigation revealed that minutes of managing committee meeting during the year 1993 was drawn by Ajay Wahiwal in his own hand writing by showing himself inducted as member in the society through approval of Managing Committee Meeting. He had also drawn proceedings of managing committee in his hand writing for the year 1991- 92 i.e prior to his induction. Two important notices relating to Annual General Body Meeting dated 24.11.2000 seized from his residential premises during the house search which were also found forged. Investigation has also revealed that even after revival of the society, Ajay Wahiwal with pre-planned act and criminal intention started weeding out original members from the membership of the society and forged resignations of several original members within short span of time were brought on record created without their knowledge to obtain complete control affairs of the society by resorting to fraudulently means.
Ajay Wahiwal prepared forged proceeding register, without holding any GBM and MC Meeting fraudulently removed the names of original members without their knowledge and introduced new members fraudulently and prepared forged documents which has been confirmed by GEQD.
ALLEGATION QUA MARKANDEY MISHRA Markandey Mishra while posted as Grade-I (Dealing Assistant) in the office of RCS during the year 200203 entered into criminal conspiracy with Ahay Wahiwal, Dharmender Singh Rana(since expired) both the private persons, Shakuntala Joshi(the then AR), Narain Diwakar, the then RCS and knowingly accepted false and forged documents submitted by Ajay Wahiwal. He dishonestly/fraudulently and willfully put a favourable note for revival of the society on the basis of false and forged documents without checking the genuiness of the documents, knowing fully well that documents so submitted were not genuine. He never proposed for any inquiry or inspection of the society under any provision of DCS Act. He also gave a note that he had verified the record of the society from originals. He did not willfully highlight the irregularities/illegalities committed by the office bearers of the society in respect of records put by it. He being dealing assistant put up a detailed note on 27.01.2003 and submitted the forged deal on file in the form of inventory of verified document for revival of the society. He did not carry out any inquiry about the resignation/enrollment of 17 members shown to have been accepted during the occupancy period of previous managing committee for which no intimation at any point of time was given to RCS. He willfully neglected and avoided summoning of any member of previous managing committee to verify the authenticity of the above resignation and enrollment. He knowingly and deliberately ignored in the capacity of dealing assistant, the complaint filed by Paramjeet Singh, founder Secretary of the society about fake revival of the society on the basis of forged and false document which was marked to him. He sat over the complaint without any specific reason and thereby allowed Ajay Wahiwal and Narain Diwakar to get away with the conspiracy of the revival of the society. Paramjeet Singh and another founder member of the Managing Committee met several times with request to take appropriate action on their complaint, even then he did not respond. Then, Paramjeet Singh was forced to file another complaint with Economic Offence Wing, Crime Branch, Delhi because of the inaction on the part of Markandey Mishra.
ALLEGATIONS QUA NARAIN DIWAKAR The society Dream House CGHS was sought to be revived by accused Ajay Wahiwal in the year 2003, who impersonated himself as President/Secretary of the society by submitting an application dated 2.01.2003 under his signatures to accused Narain Diwakar, the then RCS.
He in his order dated 30.01.2003 revived the Dream House Society with the condition that the pending audit shall be completed within two months and the final list of 60 members be sent to the DDA but accused Shakuntala Joshi, the then Assistant Registrar (North), sent the final list of the society to AR(Policy) for onwards transmission to DDA. Accused Narain Diwakar revived the society after the gap of ten years without ascertaining the authenticity and varacity of the documents by abusing his powers and official position. In furtherance of conspiracy, false noting and attempts were made to wipe out the complaint of Paramjeet Singh, Founder Secretary of the Society which could have exposed the falsification of documents as well as conspiracy hatched by accused Ajay Wahiwal. He pressed Paramjeet Singh to withdraw his complaint instead of taking any action in that regard.
Investigation also revealed that accused Narain Diwakar in his noting dated 21.1.2003 mentioned that Dr. Ram Singh was the president of the society appeared before him while during the investigation it was revealed that there was no person in the name of Dr.Ram Singh, President of the society. Infact, Sh.Ram Singh was President who never appeared before accused Narain Diwakar, the then RCS or before any official of Registrar, Co-operative Societies. Even accused Narain Diwakar did not mention qua verification/examination of original records of the society in the revival order.
Investigation further revealed that in revival order dated 30.1.2003, accused Narain Diwakar made a reference that records regarding holding elections of the society on 24.11.2002 were found correct after verifying the same in accordance with law. But during investigation, no such elections were found to have been held, even no promoter members ever participated in the said alleged elections. Not only this, accused Narain Diwakar had mentioned the filing of fresh affidavits in respect of the 60 members of the society in his revival order. But none of the original members were found to have filed their affidavits. Nor the original members were considered for revival of the society as per the investigation.
ALLEGATIONS QUA SHAKUNTALA JOSHI Smt. Shakuntala Joshi while working as Asst. Registrar North during the year 2002-2003 entered into a criminal conspiracy with accused Ajay Wahiwal, Dharmender Singh Rana now deceased (both private persons), Markandey Mishra, the then UDC in the office of Registrar Co-operative Societies and Narain Diwakar, the then Registrar dishonestly/fraudulently did not take any action for verification/enquiry about the society or its members as required U/s 54 & 55 of the DCS Act, 1972 before sending the file to Registrar, Co-operative Societies for revival and approval of freeze list without checking the genuiness of resigned members and newly enrolled members.
Investigation further revealed that Smt. Shakuntala Joshi willfully allowed accused Ajay Wahiwal for submission of forged papers to Ajay Wahiwal without appropriate verification. She was fully aware of the fact that regarding non-functional status of the last society for ten years. She simply endorsed the recommendation of UDC(Dealing Assistant) with any remark for revival & approval of freeze list by ignoring the aforesaid fact.
Investigation also revealed that Smt. Shakuntala Joshi the then Asst. Registrar forwarded a detailed note put up by Markandey Mishra, UDC on 27.1.2003 and dealt the file with an intention to get the society revived. She willfully did not carry out any enquiry about resignation and enrollment of 17 members shown to have been accepted during the occupancy period of previous managing committee for which no intimation at any point of time was communicated to RCS. Further she willfully neglected and avoided summoning any member of previous managing committee to verify authenticity of resignations and enrollment. She misrepresented the fact regarding the filing of fresh affidavit by all the 60 members before the Registrar, Co-operative Societies which formed the part of said revival order. The copy of the said revival order was forwarded to Smt. Shakuntala Joshi, accused but even then she failed to take notice of the number of affidavits available in the file. Investigation has also revealed that fresh affidavits by all the 60 members were never filed. Investigation has also disclosed that the revival order dated 30.1.2003, of Dream House CGHS was subject to the condition that the pending audit shall be got completed within two months time and the final list of 60 members would be sent to DDA but she willfully sent the final list of the society to Asst. Registrar North(Policy) for further submission to DDA prior to completion of audit of the society.
On reading the Section 227 and 228 of the Code of Criminal Procedure, it is clear that at the beginning and at the initial stage of trial, the court is not required to be meticulously judged the truth, the veracity and effect of the evidence which the prosecutor purposes to adduce, nor any weight is attached to the probable defence of the accused persons. It is not obligatory for the judge at the stage of the trial to consider in detail and weigh in sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The Trial Court at the stage is not to see whether there is sufficient ground for conviction or whether the trial is sure to end in the conviction of the accused and the only thing to be seen is whether there is strong suspicion which leads the court to think that there are grounds for presuming that the accused had committed the offence.
In State of Orissa Vs. Debender Nath Padhi as reported in 2005(1) JCC 109 comprising of three judges, it has been observed as under :-
"Constitution of India, Art.21, Art.14 - Framing of charge - Materials/document filed by accused - Cannot be considered at that stage - Material produced by prosecution alone is to be considered - Depriving accused to produce material of sterling quality at stage of framing charge - Not violative of Arts. 21, 14 - Since roving/fishing inquiry and mini trial at stage of framing charge - Is not permissible
- Expression "record of case" and "hearing of submissions of accused" occurring in S. 227 - Meaning of.
Satish Mehra V. Delhi Administration (1996) 9 SCC 766, Overruled.
In Kanti Bhadra Shah Vs. State of West Bengal 2001 1 AD (SC) 1, Hon'ble Supreme Court held that if trial court decides to frame charge there is no legal requirement that the trial court should pass an order, specifying the reasons as to why it opts to do so.
During investigation, sufficient evidence has come on record to establish the facts qua forgery, fake documents and illegal revival order. Accused Narain Diwakar was in the knowledge of complaint dated 21.03.2003 filed by Paramjeet Singh who was Founder Secretary of the society which was endorsed by accused Narain Diwakar. On finding no response, no option left with Sh. Paramjeet Singh but to file a complaint with EOW, Crime Branch, Delhi Police. Ajay Wahiwal and his associates contacted Paramjeet Singh and agreed for a compromise with the condition that he and his associates shall resign from the society and the documents in possession of accused Ajay Wahiwal were handed over to Paramjeet Singh.
By abusing her official position, accused Shakuntala Joshi, the then AR misrepresented the fact regarding filing of fresh affidavits by all the 60 members before the RCS which formed the part of revival order. Copy of the said order was forwarded to her but she willfully avoided to take notice of number of affidavits available in the file.
Accused Markandey Mishra by abusing his official position, in furtherance of criminal conspiracy dishonestly/fraudulently and willfully put up favourable note on the basis of false/forged documents without checking their genuiness for the revival of the society knowing fully well that the documents so submitted were non-genuine.
In view of the aforesaid discussions, I am of the considered view that there is prima facie material exists on the record to presume the commission of offence against the accused persons Narain Diwakar, Ajay Wahiwal, Markandey Mishra and Shakuntala Joshi for the offence punishable U/s 120-B read with Sec. 420/511/468/471 of Indian Penal Code & Sec.13(2) read with Sec. 13(1)(d) r/w Section 15(1) of the Prevention of Corruption Act, 1988.
Further, accused Narain Diwakar, accused Shakuntala Joshi & accused Markanday Mishra are liable to be charged for substantive offences U/s 13(2) read with Section 13(1) read with Section 15 of Prevention of Corruption Act.
Accused Ajay Wahiwal is liable to be charged further for the substantive offences under section 420/511/468 & 471 of Indian Penal Code. Charges be framed accordingly.
To come up for framing of charge on 25.08.2010.
Announced in the Open Court on this 16th day of August, 2010.
(Amar Nath) Spl. Judge, CBI-II Rohini Delhi