Delhi District Court
State vs . Prem Narayan Sharma & Ors. on 22 December, 2022
IN THE COURT OF SPECIAL JUDGE (PC ACT) CBI17, ROUSE AVENUE DISTRICT COURTS, NEW DELHI State vs. Prem Narayan Sharma & Ors. C.C. No. : 16/19 I.D. No. : 171/19 CNR No. : DLCT110007462019 FIR No. : RC51 (A)/2006 Branch : CBI/ACB/New Delhi U/ss : Sec. 120B r/w Sections 420, 467, 468, 471 IPC and Section 13(1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988. Date of institution : 27.12.2007 Decision reserved on : 17.12.2022 Date of decision : 22.12.2022 In the matter of : State (through/Investigated by Central Bureau of Investigation, New Delhi) Versus A1 Prem Narayan Sharma S/o Late Sh. R.S. Sharma R/o Flat No. 231, PocketV, Mayur Vihar, PhaseI, Delhi. CC No.16/19 & ID No.171/19 Page 1 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 A2 B.M. Sethi S/o Late Sh. Hira Lal Sethi the then Assistant Registrar, Office of Registrar of Cooperative Societies, Parliament Street, New Delhi (Retired) R/o Flat No. 231, PocketV, Mayur Vihar, PhaseI, Delhi. (Since died on 02.08.2009, proceedings abated on 10.12.2009) A3 Mahavir Prasad Sharma S/o Sh. K.J. Singh the then SubInspector (Dealing Assistant), Office of Registrar of Cooperative Societies, Parliament Street, New Delhi R/o Flat No. 1 PH1, ATS Kocoon, Sector109, Gurugram. JUDGMENT
1. The present case FIR was registered on the basis of written complaint dated 18.12.2006 of Sh. Raja Chetarjee, Sub. Inspector/CBI/ACB/ New Delhi pursuant to directions of the Hon'ble High Court of Delhi vide order dated 02.08.2005 by which CBI was directed to investigate the matter relating to the Cooperative Group Housing Societies which were revived and allotted land by the DDA in view of unholy alliance among the builders, powerful persons in various departments and societies which had become defunct or lost interest in allotment for one reason or the other.
2. The case of the CBI as borne out from the charge sheet can be summarized as under : 2.1. A Society in the name of Neel Kanth Cooperative Group Housing Society was formed with its 60 promoter members in the year 1983. The functioning address of the CC No.16/19 & ID No.171/19 Page 2 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Society at that time was 20AIII, Shalimar Bagh, Delhi33. At that time, A1 Prem Narayan Sharma was the Chairman, Sh. B.K. Pandey was the President and Sh. Rakesh Kumar was the Secretary of the Society.
2.2. Sh. B.K. Pandey, the President of the Society applied to the Office of the Registrar Cooperative Societies, Delhi (in short "RCS, Delhi") for the registration of the Society, which proposal was received in the Office of RCS, Delhi on 16.08.1983. As a Society in the name of Neel Kanth Cooperative Group Housing Society was already existing on the records of RCS, Delhi, the name of the Society was changed to Karuna Vihar Cooperative Group Housing Society (in short "Karuna Vihar CGHS") (hereinafter referred to as "the Society"). It was registered with the Office of RCS, Delhi on 07.01.1984.
2.3. Since the Society had not submitted the final list of members for allotment of land, a Show Cause Notice was sent by the Office of RCS, Delhi through registered letter on 30.10.1986 which was returned with the remarks that no such Society existed at this address.
2.4. On 20.11.1986, Sh. J.N. Gupta, the then Assistant Registrar, New Group Housing (in short "NGH") directed the dealing assistant to visit at the available address and report by 27.11.1986. However, there was no further correspondence/action for about 17 months.
2.5. On 08.04.1988, the dealing assistant put up a proposal for approval to send a requisition to the Society for CC No.16/19 & ID No.171/19 Page 3 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 conducting its election under Section 30 of the Delhi Cooperative Societies Act (in short "DCS Act") as the election of the Society had not been held for a long time. The concerned circular regarding enrollment and resignation of members was sent to the Society on 15.04.1988. Thereafter, there was no further development in the file.
2.6. A1 P.N. Sharma, Secretary, Karuna Vihar CGHS vide letter dated 16.09.1988 informed the Office of RCS, Delhi about change of address of the Society to 2320, Gali Chhoti Pahar Wali, Dharampura from its previous address at Shalimar Bagh.
2.7. The dealing assistant vide note dated 18.11.1989 mentioned that the final list of members submitted by the Society on 20.09.1985 was not available in the office record and that the Society had been asked to submit the Management Committee resolution, NOC from landlord regarding change of office address, the concerned affidavits for approval of change of address and final list of members for allotment of land.
2.8. The then Assistant Registrar vide his note dated 15.03.1990 also commented that all concessions had been extended to the Society but there had been no compliance on their part. Meaning thereby the Society was not functioning properly.
2.9. As the Society did not furnish the list of members and the decision of its Managing Committee for approval for change of address etc., a Show Cause Notice dated 31.03.1990 CC No.16/19 & ID No.171/19 Page 4 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 under Section 63 of the DCS Act was issued to the Society by the Assistant Registrar directing it to furnish the complete records within 10 days from the receipt of notice failing which the Society would be brought under liquidation.
2.10. In response to the said Show Cause Notice dated 31.03.1990, A1 Prem Narayan Sharma, President and Sh. B.K. Pandey, Secretary appeared in the RCS Office but did not submit the original proceedings register, membership register, latest audit and election position; and undertook to furnish the same within 15 days starting from 08.05.1990 positively. However, the Society did not furnish the original records and documents by 08.05.1990.
2.11. A reminder was sent to the Society on 11.07.1990 which was received back with the remarks that the addressee was not available. Thereafter, the then Dy. Registrar ordered for putting up a Self Contained Note about latest position. On 08.06.1991, the Dealing Assistant put up a note that the final opportunity letter was received back with the remarks that receiver was not found available after making several visits.
2.12. Accordingly, Sh. J.N. Gupta, the then Assistant Registrar ordered to issue notice under section 63 (2) of the DCS Act vide his note dated 11.06.1991. The same was put up to Dy. Registrar on 11.06.1991 and the matter was also discussed with him. However, it appears that the office bearers of the Society were in touch with the Dealing Assistant and Assistant Registrar and accordingly the notice under Section 63 (2) of the DCS Act was not issued. Sh. J.N. Gupta, the then Assistant Registrar vide CC No.16/19 & ID No.171/19 Page 5 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 his note dated 24.06.1991 directed the Dealing Assistant to put up the latest position of audit of the Society.
2.13. The Dealing Assistant vide note dated 25.06.1991 reported that the audit of the Society till 31.03.1990 for seven years i.e. 1983 to 1990 was not complete. The last election was held on 21.12.1989 but the election file was not produced before the Auditor. During the period of audit, there were 22 new enrollments made by the Society which were not intimated to the RCS.
2.14. As the Society had not got verified the signatures on the bank account, the General Body Meeting was not held beyond 20.09.1991, the audit was pending since 01.04.1990, the list of members was pending verification due to non production of record, A3 M.P. Sharma, the then dealing hand proposed to initiate action under Section 63 (2) (b) of the DCS Act, for winding up the Society. However, A2 B.M. Sethi, the then Assistant Registrar (NGH) by twisting the proposal directed the Dealing Assistant to send a letter to the Society to produce the records of audit, election, membership to verify the enrollments/resignations etc. before initiating the action.
2.15. The letter was accordingly approved and signed on 03.07.1997 but was not dispatched. Sh. M.P. Sharma, the then dealing hand, however, mentioned that he had visited the registered address of the Society but no office bearer/record was there. He issued a letter to the Society to produce the records on 04.07.1997. The said letter was given to Sh. Ram Gopal, the father of Sh. Shyam Bihari Sharma, office bearer of the Society.
CC No.16/19 & ID No.171/19 Page 6 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 2.16. The Society vide letter dated 02.07.1997 duly signed by A1 P.N. Sharma, the then Secretary submitted a list of members of the Society for approval and onward transmission to Delhi Development Authority (in short "DDA"). M.P. Sharma vide his note dated 16.08.1997 reported that, "the records of the Society has been verified. There were 60 promoter members of the Society. Since then 34 have resigned and 50 members enrolled by the Society from time to time. The last election was held on 23.02.1997 and the audit is complete upto 03.03.1997"
and recommended the list for approval. The said list of 76 members was approved on 09.09.1997 by the then RCS Sh. Gopal Dixit. The said freeze list was sent to the DDA on 15.09.1997 duly signed by B.M. Sethi, the then Assistant Registrar.
2.17. Notices were sent to all 76 members mentioned in the freeze list out of which 25 members joined the investigation. 11 members, namely, Smt. Usha Anand, Sh. Surender Mohan, Sh. Dinesh Kumar, Sh. Balwinder Singh, Sh. Suresh Chand on behalf of Mamchand Rai Jain, Sh. Ashok Tejrana, Sh. G.P. Gautam, Sh. Kartar Singh. Sh. N.K. Suman, Sh. Raj Narayan Sharma & Sh. Gurvidner Pal Singh have denied their signatures on the resignations and refund receipts. It was revealed that their signature on the resignation letters were forged by P.N. Sharma, the then Secretary of the Society.
2.18. P.N. Sharma, the then Secretary of the Society manipulated the list of the members by showing resignations of the old members/promoters by forging their signatures showed CC No.16/19 & ID No.171/19 Page 7 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 resignation letters them approved in their General Body Meetings ("in short "GBMs") by creating false records of having conducted meetings. No intimation in this regard was sent to the office of RCS.
2.19. The GEQD, Kolkata vide opinion/report dated 24.10.2007 has confirmed the writings of P.N. Sharma, the then Secretary of the Society, thereby establishing the forgery.
2.20. The Society vide letter dated 03.12.1997 duly signed by P.N. Sharma, the then Secretary of the Society requested the RCS for approval of 25 resignations and 25 enrollments though no intimation was sent to the office of RCS in this regard. The request was processed in the office of RCS.
2.21. As the Society did not submit the required record of resignations/enrollments etc. in the Office of RCS, a Show Cause Notice under Section 32 of DCS Act, 1972 was issued to the Society on 03.11.1998 by then RCS Sh. Gopal Dixit. In response to the notice, office bearer of the Society appeared before the RCS on 10.12.1998 and submitted the reply to the Show Cause Notice only. Accordingly, notice was withdrawn on 30.12.1998.
2.22. Final list of members showing 69 resignations and 43 enrollments took place after the freeze list was approved by the RCS on 16.08.1999. It revealed that no action was taken against the Society as to why the intimation about accepting resignations was not sent to RCS during the relevant period of time.
2.23. M.P. Sharma, the then Dealing Assistant by writing CC No.16/19 & ID No.171/19 Page 8 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 favourable notings and B.M. Sethi, the then Assistant Registrar facilitated the fraudulent activities of the Society. It shows that the enrollments against the resigned members were made by arranging the resignations through illegal means.
2.24. The audit of the Society was not conducted regularly, the GBM was not held as desired and election was not conducted regularly and properly and the office bearers of the Society created false records in order to cheat the RCS office by showing proper elections, GBMs etc. The falsification and forgery of records has been confirmed by the expert opinion on the proceedings register and resignations of 11 members.
2.25. Investigation has revealed that the Society was not working properly and was required to be put under liquidation, however B.M. Sethi, the then Assistant Registrar and M.P. Sharma, the then dealing hand in criminal conspiracy with P.N. Sharma, the then Secretary of the Society allowed to continue the Society due to which the Society finally managed to get land allotted by DDA.
2.26. The Society was offered a plot of land by the DDA on 03.06.1998 and subsequently allotted a plot bearing No. 9 of land of 500 sq. meter in Sector18A, PhaseII, Dwarka by the DDA vide its letter dated 05.04.2000, possession of which was taken by Sh. S.K. Gupta, the then Executive member of the Society on 22.02.2001 on behalf of the Society. The construction of 76 quarters has since been completed and is pending for allotment. The Society in the month of October 2004 submitted proposal to the RCS for clearance of 76 members for Draw of CC No.16/19 & ID No.171/19 Page 9 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 lot/flat which is pending decision with the RCS office. Permission of resignations of 72 members was also sought in the said proposal.
2.27. During investigation from the facts mentioned above, it has been revealed that M.P. Sharma, the then Dealing Assistant and B.M. Sethi, the then Assistant Registrar, both Officers of RCS, Delhi conspired with P.N. Sharma, the then Secretary of Karuna Vihar CGHS and in furtherance of which they accepted the forged resignations of 11 members mentioned above facilitated the office bearer of the Society P.N. Sharma to arrange the documents of the Society like Proceeding Registers, Audit reports, Refund Receipt prepared and got them approved which were further got accepted by the Competent Authority.
2.28. These facts disclosed the commission of offence punishable under Section 120B IPC read with Sections 420, 467, 468, 471 IPC and Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988 by the accused persons.
2.29. It is further averred that B.M. Sethi has retired from service and M.P. Sharma has also resigned from the service and hence sanction for prosecution is not required. P.N. Sharma has acted in his private capacity and as such sanction for prosecution is not required in this case.
COGNIZANCE OF OFFENCE :
3. After perusing the chargesheet in the light of supporting documents and statement of witnesses recorded under CC No.16/19 & ID No.171/19 Page 10 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Section 161 Cr.P.C., Ld Predecessor of this Court took cognizance of offence against all the accused person as per the chargesheet and the accused persons were accordingly summoned vide order dated 18.02.2008.
4. Pursuant to service of summons, all the accused persons appeared before the Court and in compliance of the provisions of Section 207 Cr.P.C., the accused persons were supplied with the copy of chargesheet and documents relied upon by the prosecution.
ABATEMENT OF PROCEEDINGS QUA A2 B.M. SETHI :
5. During pendency of the proceedings, A2 B.M. Sethi had expired on 02.08.2009 before arguments on charge and proceedings qua him were abated vide order dated 10.12.2009.
CHARGE :
6. Submissions were made by Ld. Prosecutor and the Ld. Defence Counsels appearing for A1 P.N. Sharma and A3 M.P. Sharma on the point of charge and vide order dated
03.03.2011, the Ld. Predecessor disposed of their contentions forming an opinion that a prima facie case for commission of offence punishable u/s 120B read with Sections 420, 468, 471 of the Indian Penal Code (in short "IPC") and Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act (in short "PC Act"), 1988 was made out against both the accused persons.
CC No.16/19 & ID No.171/19 Page 11 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
7. The Ld Predecessor had also opined that a prima facie case against A1 P.N. Sharma punishable under Sections 420, 468, 471 read with Section 120 B IPC and a prima facie case against A3 M.P. Sharma punishable under Section 13 (2) read with Section 13 (1)(d) of the PC Act, 1988 being a public servant were also made out.
8. Accordingly, vide order dated 10.03.2011, requisite charge for the offence punishable under Section 120B read with Sections 420, 468, 471 of the IPC read with Section 13(2) read with 13(1)(d) of the PC Act, 1988 was framed against A1 P.N. Sharma and A3 M.P. Sharma.
9. Separate charge for substantive offences punishable under Sections 420, 468 & 471 read with Section 120B of the IPC was framed against A1 P.N. Sharma.
10. Separate charge for substantive offence punishable under Section 13 (2) read with Section 13(1)(d) of the PC Act, 1988 read with Section 120B of the IPC was framed against A3 M.P. Sharma.
11. The charges framed against both the accused persons were read over to them, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
12. In order to prove its case, the prosecution got examined 57 witnesses. The witnesses so examined by the CC No.16/19 & ID No.171/19 Page 12 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 prosecution can be broadly categorized as under: 12.1 Witnesses who became member of the Society and resigned from its membership on their own PW5 Sh. Gyan Parkash PW6 Sh. Rajesh Goel PW9 Sh. Jatinder Pal Singh PW10 Sh. N.K. Suman PW15 Sh. Suresh Chand Sharma PW18 Smt. Nirmala Gupta PW21 Sh. Shyam Lal Khurana PW23 Smt. Savita Aggarwal PW24 Smt. Renu Mangla PW26 Sh. Naresh Gupta PW32 Sh. Roshan Lal PW40 Smt. Neeru Aggarwal PW41 Dr. Rajeev Gupta PW42 Sh. Gaurav Gupta PW43 Sh. Jagdish Prasad Verma PW47 Sh. Arun Kumar PW48 Sh. D.R. Ginotra 12.2 Witnesses who became the member of the Society and never resigned from its membership but shown as resigned members PW7 Sh. Kartar Singh PW11 Smt. Usha Aanad PW12 Sh. Suresh Chand PW13 Sh. Surender Mohan CC No.16/19 & ID No.171/19 Page 13 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 PW16 Sh. Ashok Kumar Tajrana PW17 Sh. Kamlesh Kumar PW22 Sh. Raj Narayan Sharma PW35 Sh. Rakesh Kumar PW39 Sh. Gyan Prakash Gautam 12.3 Witnesses who became member of the Society and allotted flat in the Society PW4 Sh. Rajan Narula PW20 Sh. Raj Singh PW27 Sh. Manish Chopra PW34 Smt. Mansi Behl PW44 Dr. Vipin Chandra Kaw PW45 Smt. Jeevan Lata PW46 Sh. Vinay Kumar Chhabra PW51 Sh. Madhukar Ohri 12.4. Witnesses from the Office of RCS, Delhi : PW8 Sh. M.D. Sharma PW14 Sh. R.P. Kalra PW19 Sh. J.S. Jally PW25 Sh. Swaroop Singh PW33 Sh. Jhapru Ram Rasia PW36 Sh. N.K. Sharma PW37 Ms. Aruna Chaudhary PW38 Sh. M.S. Sharma PW50 Sh. Krishan Kumar PW53 Sh. Gopal Dixit CC No.16/19 & ID No.171/19 Page 14 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 PW57 Sh. Padam Dutt Sharma 12.5 Witnesses in whose presence specimen signatures of accused and of members of the Society were taken PW28 Sh. Kailash Chand PW29 Sh. M.C. Pandey PW30 Sh. Karamchand PW31 Sh. Shrikrishan PW55 Sh. Bhagwaan Das 12.6 Other witnesses PW1 Sh. Sumant Prasad Garg, Architect of Karuna Vihar CGHS PW2 Inspector Raja Chatterjee, Inspector, CBI, AC1,New Delhi (the complainant) PW3 Sh. R.K. Nemani, PW49 Sh. Tapan Mandal PW52 Sh. Krishan Kumar Sharma PW54 Sh. V.G.S. Bhatnagar (the GEQD) PW56 Sh. Manoj Kumar
13. The detailed testimony of the relevant witnesses shall be discussed at the later and appropriate stage of the judgment.
STATEMENT OF ACCUSED PERSONS
14. After completion of the prosecution evidence, CC No.16/19 & ID No.171/19 Page 15 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 statement of A1 P.N. Sharma & A3 M.P. Sharma were recorded under Section 313 Cr.P.C. individually in which entire incriminating evidence against them was put which was denied by them and they pleaded innocence.
15. In his statement recorded under Section 313 Cr.P.C., A1 P.N. Sharma while denying the prosecution evidence incriminating against him stated that he had never tendered his specimen writings and signatures to the CBI at any point of time during course of the investigation and further that the CBI did not bother to obtain his admitted handwritings/signatures for comparison with his disputed handwritings/signatures. He further stated that he had already tendered his resignation from the membership of Karuna Vihar CGHS in the year 1998 and thereafter he did not have any concern with the said Society and all its affairs were being managed by the successor managing committee who had got approved the resignations and enrollments of new members.
16. A3 M.P. Sharma in his statement recorded under Section 313 Cr.P.C. answered the question No. 1 to 285 as a matter of record. In his defence, he stated that he is innocent person and has been falsely implicated in this case and even no witness has deposed against him.
17. It is pertinent to mention here that additional statement of A1 P.N. Sharma and of A3 M.P. Sharma were recorded under Section 313 Cr.P.C. pursuant to examination of PW57 Sh. Padam Dutt Sharma who was allowed to be examined on an application moved on behalf of the prosecution under CC No.16/19 & ID No.171/19 Page 16 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Section 311 Cr.P.C., which was allowed by this Court vide order dated 27.10.2022.
18. In their respective additional statement recorded under Section 313 Cr.P.C., both A1 P.N. Sharma & A3 M.P. Sharma answered all the questions as a matter of record. In addition, A3 M.P. Sharma stated that he had never been appointed as dealing assistant.
DEFENCE EVIDENCE
19. Both the accused though chose not to lead evidence in their defence in their respective statement recorded under Section 313 Cr.P.C., but when the matter was proceeding for final arguments, an application was moved by A1 P.N. Sharma under Section 311 Cr.P.C. wherein he, inter alia, had prayed for summoning of some witnesses in order to prove his defence. The said application was disposed of vide order dated 25.11.2022 and A1 P.N. Sharma was allowed to summon three witnesses in order to prove his defence on record.
20. Accordingly, two witnesses, namely, Sh. Arjun Singh as DW1 and Sh. Ved Prakash Sharma as DW2 were examined by A1 P.N. Sharma whose testimonies shall be discussed at the later stage of the judgment.
ARGUMENTS MADE ON BEHALF OF THE PARTIES CC No.16/19 & ID No.171/19 Page 17 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
21. I have heard Sh. Raj Kamal, Ld. Public Prosecutor and Sh. Yogesh Verma & Sh. Bhavtosh Sharma, Ld. Counsels for A1 & A3.
22. The Ld. Prosecutor vehemently argued that A1 P.N. Sharma was the Secretary of Karuna Vihar CGHS and he in criminal conspiracy with A2 B.M. Sethi (since deceased), the then Assistant Registrar and A3 M.P. Sharma, the dealing assistant in the RCS, Delhi forged and manipulated the records of the Society including proceedings of the meetings of the Society to make it believe that the Society was working properly as per the rules and bye laws of the DCS Act & the Society which was not actually working as such for which show cause notices and various reminders were sent to the Society and A1 P.N. Sharma by submitting the forged records in the RCS, Delhi prevented the Society from being put under liquidation. He further argued that not only this, A1 P.N. Sharma by forging the signatures of some members of the Society on the resignation letters and refund of share money receipts showed them to have resigned from the membership of the Society who in fact had not resigned from the membership and new members were inducted against the so called resigned members and the fresh list of members for approval of the land was sent to the DDA through RCS office which led to the allotment of land to the Society by the DDA; and thus A1 P.N. Sharma cheated the RCS Office by inducing it to approve the freeze list on the strength of forged records of the Society as well as the DDA to allot the land on the basis of forged freeze list. He further argued that the GEQD has CC No.16/19 & ID No.171/19 Page 18 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 confirmed the forgery of signatures of the members on the proceedings of GBMs/Executive Body meetings as well as on the resignation letters committed by A1 P.N. Sharma. Ld. Prosecutor further contended that A3 M.P. Sharma who was the dealing assistant in the RCS, Delhi made favourable notes in conspiracy with co accused persons without verifying the records of the Society which facilitated the approval of forged freeze list submitted by A1 P.N.Sharma and, thus, he abused his official position as a public servant. He submitted that the prosecution has proved its case against accused persons namely, P.N. Sharma and M.P. Sharma beyond reasonable doubt and they are liable to be punished for the offences charged with.
23. Per contra, Ld. Counsel for A1 & A3 contended that there is no dispute to the fact that A1 P.N. Sharma was the member of Karuna Vihar CGHS and also remained its Secretary during relevant time, but A1 P.N. Sharma resigned from the membership of the above Society in the month of June 1998 and his resignation was accepted on 15.06.1998 and thereafter he had no concern with the affairs of the Society. Ld. Defence Counsel further submitted that during his tenure as Secretary of the Society, A1 P.N. Sharma sent a list containing names of 76 members to the RCS, Delhi for its approval and onward transmission to the DDA for allotment of land vide letter dated 02.07.1997; and the said list contained the names of the members whose resignations are alleged to have been forged by A1 P.N. Sharma and, therefore, the claim of the prosecution that A1 P.N. Sharma has submitted the forged list with RCS, Delhi is not CC No.16/19 & ID No.171/19 Page 19 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 sustainable. He further contended that a fresh list of members was sent by the new Managing Committee of Karuna Vihar CGHS for allotment of land to the RCS office to be sent to the DDA and it contained the names of those 11 members whose signatures are alleged to have been forged by A1 P.N. Sharma on the resignation letters, however since A1 P.N. Sharma had already resigned on 15.06.1998, it cannot be said that A1 P.N. Shamra had submitted the said list to RCS office nor he can be said to have forged the resignation letters.
24. The Ld. Defence Counsel further contended that the members, namely, Sh. Kartar Singh, Sh. N.K. Suman, Smt. Usha Anand, Sh. Mam Chand Rai Jain, Sh. Surender Mohan, Sh. Raj Narayan Sharma, Sh. Dinesh Kumar, Sh. Gurvinder Pal Singh, Sh. Balwinder Singh and Sh. G.P.Gautam who as per the case of the prosecution had not resigned from the membership had actually tendered their resignation from the membership of the Society and their resignations were also accepted by the Society for which proceedings were also drawn in the Proceeding Register of the Society and they were also refunded their respective share money which they had acknowledged vide refund receipts, however resignations placed on record by the prosecution of the said members were not the same resignations which were tendered by them and the said resignation letters as well as the refund receipts of share money have been manipulated and tampered with by the prosecution.
25. To buttress his argument, Ld. Defence Counsel has drawn the attention of the Court to the resignation letters placed CC No.16/19 & ID No.171/19 Page 20 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 on record by the prosecution of the members, namely, PW7 Sh. Kartar Singh, PW10 Sh. N.K. Suman, PW11 Smt. Usha Anand, Sh. Mam Chand Rai Jain, PW13 Sh. Surender Mohan, PW22 Sh. Raj Narayan Sharma and PW39 Sh. G.P. Gautam placed in file D13 whose resignations were shown to have been accepted by Secretary of the Society and he contended that said resignations do not bear the signature of A1 P.N. Sharma as Secretary of the Society and the same bear initial of someone whereas A1 P.N. Sharma never used to put his initial on the documents; and it shows that the said resignations are not the same resignations which were tendered by the members and which were accepted by A1 P.N. Sharma as Secretary of the Society . He also referred to the proceedings of meeting dated 16.09.1997 Ex.DW1/1 at page 85 of the Proceeding Register Ex.PW7/A wherein name of some of the above members find mentioned whose resignations had been received and accepted by A1 P.N. Sharma as Secretary of the Society, however the resignation letters produced on record by the prosecution are not the same resignation letters which were tendered by those members as shown in the meeting dated 16.09.1997 Ex.DW1/1.
26. Ld. Defence Counsel further referred to the refund receipt of share money of Sh. Dinesh Kumar Ex.DW1/4 and contended that date '16.10.97' is written in pencil in the said document. He further contended that in the application for withdrawal of membership of Sh. N.K. Suman Ex.PW10/A, the resignation accepted is shown on 16.09.97 and the year '97' has been written by overwriting the year '98'. He again pointed out CC No.16/19 & ID No.171/19 Page 21 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 that the resignation of Sh. M.C.Rai Jain Ex. PW12/B and of Raj Narayan Sharma Ex.PW22/B (also Ex.DW1/7) were not accepted by A1 P.N. Sharma as shown in the said resignation letters. He further vehemently contended that the resignation letters from 1997 to 2004 were not produced along with chargesheet and it shows that the same were placed in the judicial record mysteriously by the prosecution.
27. It is further contended by the Ld. Defence Counsel that the chargesheet is only figment of imagination and whole case of the prosecution is based on GEQD opinion, while examination of the documents by the handwriting expert is an imperfect science. He further contended that no prosecution witness has deposed that the proceedings were written by P.N. Sharma or that he was present when signatures were forged by P.N. Sharma or that he had seen accused P.N. Sharma writing and signing the alleged GBM proceedings and resignation letters. He further submitted that the testimony of GEQD is also not reliable for the reason that the CBI in advance had intimated the GEQD about the opinion which he was supposed to be given and the said fact is evident from the covering letter Ex. PW54/A sent by the CBI to GEQD whereby the GEQD has been requested to give the expert opinion about the forgery committed by P.N.Sharma and M.P. Sharma. Thus, the Ld. Counsel would argue that the investigating agency had already given an indication to the GEQD by disclosing the names of the accused persons as the writer of questioned signatures/writings. He further submitted that the expert has not sent the reasons for CC No.16/19 & ID No.171/19 Page 22 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 opinion along with the report and he has prepared the same after receiving the summons of the Court and therefore his report is not reliable. Ld. Counsel further submitted that the documents were examined by two experts and the prosecution has not explained as to why reasons for opinion has been given by only one expert. He further submitted that the characteristics of handwriting viz blind loop, hook, slant, shoulder, curve, tick etc. are the important part of examination of writing but the export did not observe these parameters while giving his opinion and hence his opinion is not reliable and he cannot be called an expert witness.
28. Ld. Defence Counsel further submitted that photocopy of resignation and receipt of Sh. Raj Narayan Sharma was exhibited in the Court, while Q mark has been put on original thereof and it shows that there were two set of documents, otherwise there was no reason for not having the Q mark on the photocopy of resignation and receipt of Raj Narayan Sharma which was exhibited and it again strengthens that the prosecution has tampered the record. He submitted that even the prosecution has not placed on record the complete record which is evident from the fact that Ashok Kumar Tajrana was not a member of the Society and no membership register was produced by the prosecution to prove his application for membership is placed in the said register.
29. He further submitted that the admitted writings and signatures of A1 P.N. Sharma of the relevant period were not sent to the GEQD for comparison with the questioned CC No.16/19 & ID No.171/19 Page 23 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 documents. He further submitted that some specimen sheets do not bear the signature of the IO and it again casts doubt on the authenticity of version of the prosecution that A1 P.N. Sharma had given his specimen signatures while he did not give his specimen signatures at any point of time. He further submitted that the prosecution has failed to prove that there was any meeting of mind between the accused persons and that A1 P.N. Sharma and A3 M.P. Sharma were in conspiracy with each other for the illegal acts. He submitted that the prosecution has failed to produce any witness to prove the charge of conspiracy among the accused persons. He further submitted that even the charge framed against P.N. Sharma is defective and no charge for substantive offence has been framed against him.
30. The Ld. Defence Counsel while arguing for A3 M.P. Sharma contended that A3 M.P. Sharma was not Dealing Assistant in the RCS office as claimed by the prosecution. He contended that A3 M.P. Sharma was posted as clerk in the RCS office and not as a Dealing Assistant though sometimes he also used to do the work of Dealing Assistant on the asking of his senior officers. He further submitted that A3 M.P. Sharma verified the documents as submitted to him and gave his report which is based on the documents received by him from the office and therefore he cannot be blamed that he made favourable notes in conspiracy with coaccused persons.
31. Ld. Defence Counsel has vehemently argued that the prosecution has failed to prove its case against A1 P.N. CC No.16/19 & ID No.171/19 Page 24 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Sharma and A3 M.P. Sharma beyond reasonable doubt and hence they are liable to be acquitted of the offences charged with.
ANALYSIS, APPRECIATION OF EVIDENCE AND FINDINGS
32. From the records of the Society & RCS office, testimonies of the witnesses, statement of accused persons recorded under Section 313 Cr.P.C. and submissions of Ld. Counsel of both the parties, it is not in dispute that a Society in the name of Neelkanth CGHS was formed with 60 promoter members in the year 1983 and since a society in the name of Neelkanth CGHS was already existing in the records of RCS, Delhi, the name of the Society was changed to Karuna Vihar CGHS and it was registered with the Office of RCS, Delhi on 07.01.1984 vide registered Serial No. 1270/GH. It is also not in dispute that at the time of registration, A1 P.N. Sharma was Chairman, Sh. B.K.Pandey was President and Sh. Rakesh Kumar was Secretary of the Society. A1 P.N. Sharma also remained Secretary of the Society for a substantial period during the relevant time upto his resignation in June 1998 which fact is also not in dispute.
33. The prosecution, however, has alleged that the Society was not working properly as per the rules and byelaws of the DCS Act & Society and was required to be put under liquidation, but A1 P.N. Sharma being Secretary of the Society in criminal conspiracy with A2 B.M Sethi, the then AR (since deceased) A3 M.P. Sharma, the then Dealing Assistant created CC No.16/19 & ID No.171/19 Page 25 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 false records of the Society like resignations of old members/promoter members, enrollments of new members, management committee proceedings, affidavits, proceeding register and other related documents in order to make the RCS, Delhi believe that the Society was functioning as per the rules and he submitted the said forged records to RCS, Delhi and induced it for approval of manipulated freeze list of members for onward transmission to the DDA for allotment of land to the Society. It is further claim of the prosecution that on the basis of said manipulated freeze list, the Society was allotted land by the DDA and, in this way, A1 P.N. Sharma by using the forged documents as genuine prevented the Society to be put under liquidation and cheated the RCS, Delhi as well as the DDA. A3 M.P. Sharma, the then Dealing Assistant in the RCS office is alleged to be in criminal conspiracy with A1 P.N. Sharma who in furtherance of said criminal conspiracy facilitated the approval of freeze list submitted by A1 P.N. Sharma by making favourable notes without verifying the records.
34. A1 P.N. Sharma has denied the aforesaid allegations leveled against him in his statement recorded under Section 313 Cr.P.C. and claimed that he had already retired in the year 1998 and thereafter he had no concern with the affairs of the Society done by the New Management Committee including submission of freeze list.
35. In view of the above factual background, let us first decide as to whether the prosecution has been able to establish its case of forgery against A1 P.N. Sharma.
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36. A1 P.N. Sharma is alleged to have forged the signatures of 11 promoter members on their purported resignation letters as well as on the share money receipts who actually had never resigned from the membership of the Society nor they were refunded the share money by the Society. It is also alleged that A1 P.N. Sharma has also forged signatures of some of the members on the proceedings of the meetings of the Society and showed the purported resignations of 11 promoter members approved in the said meeting. The 11 promoter members whose signatures are alleged to have been forged by A1 P.N. Sharma as per the chargesheet are (1) Smt. Usha Anand, (2) Sh. Surender Mohan, (3) Sh. Dinesh Kumar, (4) Sh. Balwinder Singh, (5) Sh. Mamchand Rai Jain, (6) Sh. Ashok Tajrana, (7) Sh. G.P. Gautam, (8) Sh. Kartar Singh, (9) Sh. N.K. Suman, (10) Sh. Raj Naraina Sharma and (11) Sh. Gurvinder Pal Singh. Out of the said 11 members, the prosecution has examined 8 members, namely, Sh. Kartar Singh as PW7, Sh. N.K. Suman as PW10, Smt. Usha Anand as PW11, Sh. Suresh Chand Jain on behalf of Sh. Mam Chand Rai Jain as PW12, Sh. Surender Mohan as PW 13, Sh. Ashok Kumar Tajrana as PW16, Sh. Raj Narain Sharma as PW22 and Sh. Gyan Prakash Gautam as PW39.
37. The prosecution has also examined other members of the Society, namely, PW5 Sh. Gyan Prakash, PW6 Sh. Rajesh Goel, PW9 Sh. Jatinder Pal Singh, PW10 Sh. N.K. Suman, PW15 Sh. Suresh Chand Sharma, PW18 Smt. Nirmala Gupta, PW21 Sh. Shyam Lal Khurana, PW23 Smt. Savita Aggarwal, PW24 Smt. Renu Mangla, PW26 Sh. Naresh Gupta, CC No.16/19 & ID No.171/19 Page 27 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 PW32 Sh. Roshan Lal, PW40 Smt. Neeru Aggarwal, PW41 Dr. Rajeev Gupta, PW42 Sh. Gaurav Gupta, PW43 Sh. Jagdish Prasad Verma, PW47 Sh. Arun Kumar and PW48 Dr. D.R. Ginotra who became the members of the Society and subsequently had voluntarily resigned from the membership of the Society. Therefore, testimonies of these witnesses will be of no help to the case of the prosecution and need is not felt to discuss their testimonies. Similarly, PW4 Sh. Rajan Narula, PW20 Sh. Raj Singh, PW27 Sh. Manish Chopra, PW34 Smt. Mansi Behl, PW44 Dr. Vipin Chandra Kaw, PW45 Smt. Jeevan Lata, PW46 Sh. Vinay Kumar Chhabra & PW51 Sh. Madhukar Ohri are the witnesses who became the members of the society and were allotted flat and hence their testimonies are also not required to be discussed. It would be relevant to discuss in detail the testimonies of above 8 witnesses whose signatures on the resignations and refund receipts have been allegedly forged by A1 P.N. Sharma.
38. PW7 Sh. Kartar Singh has deposed that he became member of Karuna Vihar CGHS and remained associated with the Society till 1997. He further deposed that he attended some of the meetings of the Society and also signed the proceeding register. Having seen the proceeding register of the Society Ex.PW7/A, he identified his signature at point A on the proceedings of the GBM held on 25.12.1983 Ex.PW7/A1. He deposed that he never resigned from the Society nor received any information regarding his resignation nor received any share money. He denied to have signed resignation Ex.PW7/D and CC No.16/19 & ID No.171/19 Page 28 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 receipt Ex.PW7/E and deposed that somebody has forged his signature on both the documents.
39. In the crossexamination of this witness, nothing material came out to contradict the aforesaid version of the witness that he never resigned from the membership of the Society and that his signature on the resignation and receipt have been forged by someone. Not a single suggestion was put to him that he had resigned from the membership of the Society voluntarily and also received his share money which he acknowledged vide receipt Ex.PW7/E.
40. PW10 Sh. N.K. Suman deposed that he became member of Karuna Vihar CGHS in the year 1983 and never attended any meeting of the Society nor signed any proceedings of the Society. He further deposed that he resigned from the Society in the year 1997. He identified his signatures at points A on the resignation letter and receipt Ex.PW10/A. He also identified his signature at point A against his name at Serial No. 39 on the proceedings of GBM dated 25.12.1983 Ex. PW7/A1. However, he denied to have attended the GBM dated 26.01.1991 and also denied his signature at point A against his name at Serial No. 19 on the proceedings of said GBM Ex. PW10/A1. He also denied to have attended the GBM dated 31.01.1992 and to have signed at point A against his name at Serial No. 28 on the proceedings Ex. PW10/B (Colly).
41. This witness was not crossexamined at all by accused persons.
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42. The next witness is PW11 Smt. Usha Anand who deposed that she became member of the Society but she never attended any meeting of the said Society. She further deposed that she never resigned from the membership of Karuna Vihar CGHS nor received refund amount from the Society. She denied to have attended the GBM of the Society dated 26.04.1984 and the signatures appearing against her name at point A on the proceedings of said meeting Ex. PW11/A. She further denied to have attended the GBMs of the Society dated 17.04.1988, 31.01.1992 & 23.02.1997 and also denied her signatures appearing against her name on the proceedings of the aforesaid GBMs Ex.PW11/B, Ex.PW10/B and Ex.PW11/C respectively. She also denied her signatures appearing at points A on the resignation cum receipt (only receipt is dated 24.12.1997) Ex.PW11/D.
43. In her crossexamination, nothing material could be extracted to impeach her aforesaid testimony. Even she was not suggested that she had resigned voluntarily or that she had received the refund money as shown in the refund receipt. Rather she has categorically stated that she cannot say as to who had signed the document already exhibited relating to Society against her name but she has not signed the said document.
44. PW12 Sh. Suresh Chand Jain deposed that initially his sister Vijay Laxmi was the member in the Society who expired in the year 1994 and, thereafter, his father Sh. Mam Rai Chand Jain became member in the Society. He further deposed that his father never resigned from the said Society nor received CC No.16/19 & ID No.171/19 Page 30 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 refund from the Society. He identified signatures of his sister on the bye laws of the Society along with list of members at point X 1 Ex. PW7/F. He denied signature of his father appearing on the resignation letter and receipt Ex.PW12/B and also stated that he or his father never authorized any other person to sign on his behalf. He stated that he accompanied his father once to attend the meeting of the Society at Nirman Bhawan as he was dependent upon him. He did not know who were the office bearers of the Society. His father never introduced him with any of the member of the Society.
45. In the crossexamination of this witness, there is nothing to impeach his version except a suggestion that his father resigned from the Society in the year 1997 which he denied.
46. Next witness is PW13 Sh. Surender Mohan. He deposed that he became member of Karuna Vihar CGHS in the year 198384 and he never resigned from the membership of the said Society nor he received any refund from the said Society. He identified his signatures on the bye laws of the Society along with list of members Ex. PW7/F. He also identified his signature on the Intensive inquiry proforma at point X Ex. PW13/A. He denied his signatures at points A on the resignation cum receipt (only resignation is dated 12.08.1997) which is Ex. PW13/B (Colly). Having seen the proceeding register Ex.PW7/A, he denied to have attended the GBMs dated 08.10.1983 Ex.PW13/D, 25.12.1983 Ex.PW7/A1, 26.04.1984 Ex.PW11/A and 25.08.1997 Ex.PW13/E (Colly). He denied his signatures CC No.16/19 & ID No.171/19 Page 31 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 appearing at point A against his name on the proceedings of the aforesaid GBMs.
47. In the crossexamination, nothing material came out to disbelieve his aforesaid version. He stated that he did not know any other Surender Mohan. He denied the suggestion that any other member in the name of Surender Mohan who would have attended the meetings dated 08.10.1983, 25.12.1983, and 12.08.1997 and would have signed the said proceedings. However, this is a vague suggestion as nothing has been brought on record by accused persons that any other member in the same name as of PW13 Sh. Surender Mohan existed and he had signed on the said meetings instead of PW13 Surender Mohan. The remaining crossexamination of this witness revolved around one Mr. Hans Batra on whose asking the witness became member of the said Society. He stated that he did not contact Mr. Batra prior to investigation by CBI. He admitted that neither CBI inquired nor he told the CBI that Mr. Has Raj Batra made him the member. He admitted that he did not name Hans Batra to the investigating officer. This part of crossexamination of the witness has got no relevance with the deposition made by the witness. It is surprising that the witness has not been suggested by the Ld. Defence Counsel that he had resigned from the membership of the Society voluntarily and also received the refund of his share money. Further, there is not a single suggestion that he had attended the GBMs dated 08.10.1983, 25.12.1986, 26.04.1984 and 25.08.1997. The testimony of the witness on these aspects has gone unrebutted.
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48. PW16 Sh. Ashok Tajrana deposed that he was promoter member in Neelkanth CGHS in the year 1983 and he never resigned from the membership of the said Society till date nor received any share money as a refund. Having gone through the proceedings dated 26.04.1984 which is Ex. PW11/A in the proceeding register Ex.PW7/A, he stated that he never resigned from the membership of Neelkanth/Karuna Vihar CGHS. His name in the said proceeding is appearing at serial No. 12 of the proceeding register.
49. In the crossexamination, he was put a suggestion that he had given his resignation to Mr. Raju which he denied. He volunteered that he had never given his resignation to anybody. He was again put suggestions that Mr. Raju had submitted his resignation with the Society; and that Mr. Raju had refunded him subscription money; and that Mr. K.C. Papne and Mr. Kartar Singh had advised him to submit resignation and on their advice, he had submitted his resignation, which suggestions were denied by the witness.
50. The next witness PW22 Raj Narayan Sharma deposed that he became member of Neelkanth CGHS and never resigned from the membership of the said Society nor received any refund from the said Society. He further deposed that he never authorized any person to become member in the said Society in place of him. Having seen the photocopy of resignation letter Ex.22/C, he denied his signatures appearing at point A on the said letter. He was shown membership register of the Society where his name appeared at Serial No. 58 which he CC No.16/19 & ID No.171/19 Page 33 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 admitted and the column 'date of termination' at page no. 006 is stamped "resignation accepted on 16.08.1997 against his name. He stated that he never resigned from the membership of the said Society. He further deposed that he never attended any meeting of the said Society. Having seen the proceedings of 5 th GBM of the Society shown to be held on 29.03.1986 Ex. PW22/E, proceedings of the Executive Committee Meeting shown to be held on 27.04.1986 Ex.PW15/A, proceedings of the meeting shown to be held on 27.07.1986 Ex.PW22/F, proceedings of the meeting shown to be held on 25.12.1986 Ex.PW15/C, proceedings of the meeting shown to be held on 24.03.1987 Ex.PW22/G, proceedings of the meeting shown to be held on 19.04.1987 Ex.PW15/B, proceedings of the Society shown to be held on 26.01.1991 Ex.PW10/A1, proceedings of the Society shown to be held on 01.12.1991 Ex.PW22/H, proceedings of the Society shown to be held on 31.01.1992 Ex.PW10/B, proceedings of the Society shown to be held on 30.06.1992 Ex.PW22/J, proceedings of the Society shown to be held on 25.02.1993 Ex.PW22/K, proceedings of the Society shown to be held on 31.01.1993 Ex.PW22/L, all placed in Procceding Register Ex.PW7/A, he denied his signatures appearing against his name in the said proceedings.
51. This witness was not crossexamined at all and the aforesaid testimony of PW22 has gone unrebutted and un controverted.
52. PW39 Sh. Gyan Prakash Gautam deposed that he became member of Karuna Vihar CGHS about 20 years back CC No.16/19 & ID No.171/19 Page 34 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 from the date of his examination in the Court. He further deposed that he never resigned from membership of aforesaid society and did not submit resignation letter Ex. PW39/B and the signatures in his name on this document are not of him. He also denied his signature on the receipt Ex.PW39/C at point A. He further deposed that he never attended any meeting of the said society. He denied his signatures on the proceedings of GBM held on 08.10.1983 Ex.PW13/D against his name at Serial No. 42 at point B and on the proceedings of GBM held on 25.12.1983 Ex.PW7/A1 against his name at Serial No. 26 at point B.
53. In view of aforesaid testimonies of the prosecution witnesses, it has emerged that out of 8 witnesses examined by the prosecution who were amongst the 11 members who had claimed during the investigation that they had not resigned from the membership of the Society, 7 members have supported the case of the prosecution and only one witness i.e. PW10 Sh. N.K. Suman did not support the case of the prosecution during his statement recorded in the Court and he has admitted his resignation from the membership of the Society and receipt of share money vide resignation cum receipt Ex.PW10/A.
54. From the testimonies and crossexamination of the remaining 7 witnesses, namely, PW7 Sh. Kartar Singh, PW11 Smt. Usha Anand, PW12 Sh. Suresh Chand Jain on behalf of Sh. Mam Chand Rai Jain, PW13 Sh. Surender Mohan, PW16 Sh. Ashok Tajrana, PW22 Sh. Raj Narayan Sharma and PW39 Sh. Gyan Prakash Gautam, it has been established that they had never resigned from the membership of the Society nor received CC No.16/19 & ID No.171/19 Page 35 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 the refund of share money nor they attended the meetings of the Society and their signatures have been forged on the resignations and on the receipts as well as on the proceedings of GBMs/Executive Body meetings as shown in the proceeding register of the Society Ex. PW7/A.
55. Now, it has to be seen if the statement of aforesaid 7 witnesses has also been corroborated by the scientific evidence in the form of GEQD opinion and, if so, the next question would arise as to who had forged their signatures on the resignations, refund receipts and on the proceedings of the GBMs/ Executive Body meetings of the Society.
56. The prosecution has examined handwriting expert Sh. V.G.S. Bhatnagar as PW54 who during the year 2007 was working as Government Examiner of Questioned Documents in the office of Government Examiner of Questioned Documents, Calcutta. He had received the original documents of this case including the questioned documents encircled and marked in red pencil Annexure 'A' and specimen writings/signatures encircled and marked in blue pencil from the CBI through a forwarding letter Ex.PW54/A and he was requested to compare the questioned documents with the specimen writings/signatures and to give his expert opinion.
57. PW54 Sh. V.G.S. Bhatnagar, the GEQD during his examination in the Court has identified the specimen signatures/writings received by him for comparison with the questioned documents. He identified the specimen signature and handwriting of A1 P.N. Sharma from S1 to S53 Ex.PW54/D CC No.16/19 & ID No.171/19 Page 36 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 (Colly), from S61 to S73 Ex.PW54/F (Colly) and from S82 to S103 Ex.PW54/H (Colly); specimen signature and handwriting of Sh. Kartar Singh from S139 to S151 Ex.PW7/G (Colly); specimen signature and handwriting of Smt. Usha Anand from S104 to S113 Ex.PW11/F (Colly) & S126 to S128 Ex.PW54/I (Colly); specimen signature and handwriting of Sh. Surender Mohan from S114 to S125 Ex.PW13/F (Colly); specimen signature and handwriting of Sh. Raj Narayan Sharma from S 129 to S133 Ex.PW22/M (Colly) and specimen signature and handwriting of Sh. G.P. Gautam from S170 to S172 Ex.PW39/D and from S173 to S179 Ex.PW29/A (Colly). He also identified the Proceeding Register Ex.PW7/A and the file D13 containing questioned documents received by him for comparison with the specimen handwriting and signature.
58. It is relevant to mention here that in addition to the above specimen handwriting and signature of aforesaid members and of A1 P.N.Sharma, specimen handwriting and signature of other members of the Society were also received by PW54 Sh. V.G.S Bhatnagar for comparison with the questioned documents but in view of testimonies of 7 witnesses as noted above, who have claimed that their signatures on the resignations and on the receipts have been forged, the expert opinion is required to be discussed only in respect of specimen handwriting and signature of the said 7 witnesses.
59. PW54 Sh. V.G.S. Bhatnagar, the GEQD after thorough and careful examination of the original documents of this case with the help of scientific instruments available in his CC No.16/19 & ID No.171/19 Page 37 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Calcutta office prepared his opinion/report dated 24.10.2007 Ex.PW54/B.
60. After comparing the specimen handwriting and signature of A1 P.N. Sharma (from S1 to S53, S61 to S73 and from S82 to S103), he opined in his report Ex.PW54/B in para 11 as under: "The person who wrote the blue enclosed writings stamped and marked S1 to S53, S61 to S73 and S82 to S103 also wrote the red enclosed writings similarly stamped and marked Q3, Q5, Q7, Q13, Q15, Q17, Q19, Q22, Q28, Q33, Q35 to Q39, Q42 to Q50, Q55, Q60, Q60A, Q61, Q62, Q68, Q70 and Q73 to Q76."
61. As such, as per GEQD opinion Ex.PW54/B, A1 P.N. Sharma is author of the aforesaid questioned documents which are detailed as under: Q3 Signature of Raj Narayan Sharma on proceedings of GBM dated 26.04.1984 Ex.PW11/A (in proceeding register Ex.PW7/A) Q5 Signature of Raj Narayan Sharma on the proceedings of Executive Committee Meeting dated 26.06.1984 (in proceeding register Ex.PW7/A) Q7 Signature of Raj Narayan Sharma on proceedings of Executive Committee Meeting dated 25.09.1984 (in proceeding register Ex.PW7/A) Q13 Signature of Raj Narayan Sharma on proceedings of GBM dated 29.03.1986 Ex.PW22/E (in proceeding register Ex.PW7/A) Q15 Signature of Raj Narayan Sharma on CC No.16/19 & ID No.171/19 Page 38 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 proceedings of Executive Body Meeting dated 27.04.1986 Ex.PW15/A (in proceeding register Ex.PW7/A) Q17 Signature of Raj Narayan Sharma on proceedings of Executive Body Meeting dated 27.07.1986 Ex.PW22/F (in proceeding register Ex.PW7/A) Q19 Signature of Raj Narayan Sharma on proceedings of Management Committee Meeting dated 24.03.1987 Ex.PW22/G (in proceeding register Ex.PW7/A) Q22 Signature of Raj Narayan Sharma on proceedings of GBM dated 19.04.1987 Ex.PW15/B (in proceeding register Ex.PW7/A) Q28 Signature of Raj Narayan Sharma on the proceedings of GBM dated 17.04.1988 Ex.PW11/B (in proceeding register Ex.PW7/A) Q33 Signature of Sh. S.B. Sharma on the proceedings of Executive Body Meeting dated 30.07.1990 (in proceeding register Ex.PW7/A) Q35 Signature of Raj Narayan Sharma at Q35 and & Signature of Sh. Shyam Bihari Sharma at Q36 Q36 on the proceedings of GBM dated 26.01.1991 Ex.PW10/A1 (in proceeding register Ex.PW7/A) Q37 Signature of Raj Narayan Sharma at Q37 and & Signature of Sh. Shyam Bihari Sharma at Q38 Q38 on the procedings of Executive Body Meeting dated 01.12.1991 Ex.PW22/H (in proceeding register Ex.PW7/A) Q39 Signature of Raj Narayan Sharma on the proceedings of GBM dated 31.01.1992 Ex. PW10/B (in proceeding register Ex.PW7/A) Q42 Signature of Shyam Bihari Sharma at Q42 & & Signature of Raj Narayan Sharma at Q43 on Q43 the proceedings of Executive Body Meeting CC No.16/19 & ID No.171/19 Page 39 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 dated 30.06.1992 Ex.PW22/J (in proceeding register Ex.PW7/A) Q44 Signature of Shyam Bihari Sharma at Q44 & & Signature of Raj Narayan Sharma at Q45 on Q45 the proceedings of Executive Body Meeting dated 25.02.1993 Ex.PW22/K (in proceeding register Ex.PW7/A) Q46 Signature of Shyam Bihari Sharma at Q46 & & Signature of Raj Narayan Sharma at Q47 on Q47 the proceedings of General Body Meeting dated 31.03.1993 Ex.PW22/L (in proceeding register Ex.PW7/A) Q48 Signature of Shyam Bihari Sharma on the proceedings of Executive Body Meeting dated 30.06.199) (in proceeding register Ex.PW7/A) Q49 Signature of Shyam Bihari Sharma on the proceedings of Executive Body Meeting dated 20.02.1995 (in proceeding register Ex.PW7/A) Q50 Signature of Shyam Bihari Sharma on the proceedings of General Body Meeting dated 31.03.1995 (in proceeding register Ex.PW7/A) Q55 Signature of Sh. Dinesh Kumar on resignation letter dated 01.09.1997 Ex.DW1/4 (in file D13 Ex.54/M (Colly) Q60 Signature of Sh. Surender Mohan on & application for withdrawal of membership Q60A dated 12.08.1997 & receipt Ex.PW13/B (in file D13 Ex.54/M (Colly) Q61 Signature of Sh.Mam Chand Rai Jain on & application for withdrawal of membership Q62 dated 12.08.1997 & receipt respectively Ex.PW12/B (in file D13 Ex.54/M (Colly) Q68 Name of Smt. Usha Anand in the handwriting & of P.N. Sharma on resignation letter dated Q70 10.10. & receipt dated 24.12.1997) Ex.PW11/D (Colly) (in file D13 Ex.54/M CC No.16/19 & ID No.171/19 Page 40 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 (Colly) Q73 Signature and name of Sh. Raj Narayan Sharma & on resignation letter dated 06.09.1997 Q74 Ex.DW1/7 (in file D13 Ex.54/M (Colly) Q75 Signature and name of Sh. Raj Narayan Sharma & on receipt (in file D13 Ex.54/M (Colly) Q76
62. Similarly, after comparing the specimen handwriting and signature of PW7 Sh. Kartar Singh (from S 139 to S151) with the questioned documents, PW54 opined in para 9 as under : "The person who wrote the blue enclosed signatures stamped and marked S139 to S151 did not write the red enclosed writings and signatures similarly stamped and marked Q65 and Q66".
63. As such, as per GEQD opinion, PW7 Sh. Kartar Singh did not sign the resignation letter dated 06.09.1997 at point Q65 which corroborates his statement that the signature appearing on the said resignation is not of him. Similarly, receipt by which he was shown to have received the share money does not bear his signature at point Q66. It is, thus, apparent that someone has forged the signature of Sh. Kartar Singh on the resignation as well as on the receipt of share money. Though there is no finding of the expert that the signatures of Sh. Kartar Singh at points Q65 & Q66 have been forged by A1 P.N. Sharma.
CC No.16/19 & ID No.171/19 Page 41 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
64. PW54 GEQD has further opined in his report Ex.PW54/B in para 5 after comparing the specimen handwriting and signature of Smt. Usha Anand (from S104 to S113 & from S126 to S128) with the question documents as under : "The person who wrote the blue enclosed signatures stamped and marked S104 to S113 & S126 to S128 did not write the red enclosed signatures similarly stamped and marked Q23, Q29, Q51, Q67 and Q69"
Q23 Purported signature of Smt. Usha Anand on the proceedings of meeting of the Management Committee dated 19.04.1987 Ex.PW15/B (in proceeding register Ex.PW7/A)2 Q29 Purported signature of Smt. Usha Anand on the proceedings of GBM dated 17.04.1988 Ex.PW11/B (in proceeding register Ex.PW7/A) Q51 Purported signature of Smt. Usha Anand on the proceedings of GBM dated 23.02.1997 Ex.PW11/C (in proceeding register Ex.PW7/A) Q67 Purported signature of Smt. Usha Anand on Receipt dated 24.12.1997 (in file D13 Ex.PW54/M (Colly) Q69 Purported Signature of Smt. Usha Anand on Resignation letter dated 10.10.1997 (in file D 13 Ex.PW54/M (Colly)
65. Thus, GEQD opinion corroborates the testimony of PW11 Smt. Usha Anand that she did not resign from the CC No.16/19 & ID No.171/19 Page 42 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 membership of the Society nor received the refund of share money and that she did not attend any meeting of the Society. However, the GEQD has not opined that signatures of Smt. Usha Anand on the above proceedings of GBMs as well as on the resignation and receipt were forged by A1 P.N. Sharma. Though he opined that the name of Smt. Usha Anand at points Q68 & Q70 on the resignation and on the receipt has been written by A1 P.N. Sharma.
66. Similarly, the GEQD, on comparison of specimen signature and handwriting of Sh. Mam Chand Rai Jain from S 152 to S157 with the questioned documents found that latter did not sign or write his name on the application for withdrawal of membership dated 12.08.1997 Ex.PW12/B at point Q61 and receipt of share money also does not bear his signature and handwriting at point Q62 and the same have been forged by A1 P.N. Sharma.
67. The signatures appearing at points A (points Q60 & Q60A) on the application for withdrawal of membership cum receipt (only resignation is dated 12.08.1997) Ex.PW13/B shown in the name of PW13 Sh. Surender Mohan were not of him as deposed by him. As per GEQD opinion, purported signatures of Surender Mohan at points Q60 & Q60A have been forged by A1 P.N. Sharma.
68. PW16 Sh. Ashok Kumar Tajrana though has denied to have resigned from the membership of the Society, but no specimen signatures or handwriting of this witness were taken CC No.16/19 & ID No.171/19 Page 43 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 for comparison with his purported signatures and hence there is no GEQD opinion.
69. GEQD opinion Ex.PW54/B also corroborates the testimony of PW22 Raj Narayan Sharma who has denied to have resigned from the membership of the Society and also denied to have attended any meeting of the Society. As per GEQD opinion, A1 P.N. Sharma has forged the signatures of PW22 Raj Narayan Sharma in the proceedings of various meetings of the Society as well as on the resignation and on the receipt as noted hereinabove.
70. With regard to purported signatures of PW39 Sh. Gyan Prakash Gautam, the GEQD has opined in para 6 of his report Ex.PW54/B as under: "The person who wrote the blue enclosed signatures stamped and marked S170, S171, S173, S175 & S179 did not write the red enclosed signatures similarly stamped and marked Q24, Q63 and Q64.
Q24 Purported signature of G.P. Gautam on the proceedings of meeting of the Management Committee dated 19.04.1987 Ex.PW15/B (in the proceeding register Ex.PW7/A) Q63 Purported Signature of G.P. Gautam encircled in red on resignation letter dated 01.09.1997 Ex.PW39/B Q64 Purported Signature of G.P. Gautam encircled in red on Receipt of share money Ex.PW39/C CC No.16/19 & ID No.171/19 Page 44 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
71. However, the GEQD has not opined that the signatures of PW39 Sh. G.P. Gautam have been forged by A1 P.N. Sharma at the aforesaid points.
72. In view of the aforesaid GEQD opinion Ex.PW54/B, it is transpired that though the GEQD has corroborated the case of the prosecution that the signatures of aforesaid members (except Sh. Ashok Tajrana whose specimen handwriting and signature were not taken by the prosecution for comparison) on the resignations and share money receipts as well as on the proceedings of Executive Body Meetings/GBMs have been forged, but there is no definite finding as to who forged their signatures on the said questioned documents except in respect of signatures of Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma whose signatures have been forged by A1 P.N. Sharma which opinion was given by the GEQD after comparing the specimen handwriting and signature of aforesaid members of the Society and of A1 P.N. Sharma with the purported handwriting and signatures on the questioned documents.
73. A1 P.N. Sharma, however, in his statement recorded under Section 313 Cr.P.C. has denied to have given his specimen handwriting and signatures to the CBI at any point of time during course of the investigation. During course of the arguments, Ld. Defence Counsel has also vehemently argued that A1 P.N. Sharma had never given his specimen handwriting and signature to the CBI. In view of the same, it is to be seen if the specimen handwriting and signature of A1 P.N. Sharma and of CC No.16/19 & ID No.171/19 Page 45 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 aforesaid three members, namely, Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma whose signatures have been forged by A1 P.N. Sharma as per the GEQD opinion had been obtained by the prosecution and if the report of the GEQD is reliable who formed this opinion after comparing the specimen handwriting and signature of A1 P.N. Sharma and of aforesaid members with the questioned documents.
74. Specimen signatures of Sh. Mam Chand Rai Jain could not be taken as he had expired which is transpired from the forwarding letter dated 20.07.2007 Ex.PW54/A sent by Sh. N.M. Singh, SP CBI to the Director, GEQD, Kolkata to compare the questioned writings with the specimen writings and signature and to give expert opinion in respect of queries attached with the said letter. The query no. 9 reads as follows: "Whether the person who has written specimen writing/signature marked as S152 to S157 is the author of the questioned writing/signature marked as Q61 to Q62. That the person who has written portion Q61 to Q62, had expired, it is not possible to take specimen/writing but the carbon copy of the sale deed is treated as original and marked as S152 to S157."
75. So, it is clear that signature of Sh. Mam Chand Rai Jain on the Sale Deed were treated his specimen writing and signature as he had expired which fact has not been disputed by the accused persons in the crossexamination of PW54 Sh.V.G.S. Bhatnagar.
76. PW13 Surender Mohan deposed in his examinationinchief that he had given his specimen signatures CC No.16/19 & ID No.171/19 Page 46 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 from S114 to S125 in the CBI Office which are Ex.PW13/F (Colly). This deposition of the witness was not disputed by the accused persons in his crossexamination.
77. Furthermore, the prosecution has examined PW31 Sh. Shrikrishan in whose presence specimen signatures of PW13 Sh. Surender Mohan were taken. Having seen the specimen signatures sheets placed in file D41 to D56 running into 12 pages 128 to 139, PW31 deposed that these sheets contain specimen signatures of Sh. Surender Mohan who had given his specimen signatures in his presence voluntarily without any pressure. He identified the same from S114 to S125 and also his signatures at point A on all the sheets which are Ex.PW13/F (Colly).
78. This witness was not crossexamined at all by Ld. Defence Counsel and his aforesaid testimony has gone unrebutted. Hence, it can be concluded that there is no dispute that PW13 Surender Mohan had given his specimen signatures voluntarily from S114 to S125 Ex.PW13/F (Colly).
79. PW22 Raj Narayan Sharma deposed in his evidence that he had given specimen signatures from S129 to S 133 on the specimen signature sheets D50 from pages 105 to 109 and his specimen signatures are from S129 to S133 which he had given in the CBI office voluntarily without any pressure. He further deposed that he had also written date as 06.09.97 at sheet no. S130 to S133 and all these five sheets are Ex. PW22/M (Colly). This witness was not crossexamined at all and this deposition of the witness has gone unrebutted.
CC No.16/19 & ID No.171/19 Page 47 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
80. The prosecution in order to prove that specimen handwriting and signature of A1 P.N. Sharma were taken during course of investigation has examined PW28 Sh. Kailash Chand who deposed that he was called by the CBI somewhere in the year 2007 and specimen signature/handwriting of P.N. Sharma was taken in his presence in CBI office. He further deposed that P.N. Sharma had given specimen signatures/ handwritings voluntarily without any pressure from any person whatsoever. He further deposed that after P.N. Sharma had given the specimen signatures, he signed as a witness on the specimen sheets from pages 26 to 48. Having seen specimen signature sheets placed in file D41 to D56, he has identified the specimen signatures/handwriting of P.N.Sharma from S26 to S48, which are Ex.PW28/A (Colly) and from S69 to S73 on the specimen signature sheets placed in file D41 to D56 from pages 72 to 76 which are Ex.PW28/B (Colly) and his signatures at point A on all the sheets.
81. In the crossexamination, this witness stated that in the year 2007, he was working as Assistant Superintendent at A3, Janakpuri Post Office, New Delhi58. He made his signatures on the specimen sheets Ex. PW28/A at point in CBI office at CGO complex, New Delhi. He further stated that he was called by CBI officials through official communication and he reached CBI Office at about 1010:15. He stated that he had been directed orally by the Senior Superintendent, Post Office to attend the CBI office and he came to know about the purpose only when he reached CBI office. He did not remember if he CC No.16/19 & ID No.171/19 Page 48 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 visited his office first before visiting CBI office. He got free from CBI at about 5.00 pm on that day and thereafter he went to his residence. He did not remember as to who had written portion above the specimen signatures/handwritings encircled in S26. He further stated that when he reached CBI office, he met CBI Inspector who told him that he had to witness the specimen handwriting/signatures of some persons. He categorically stated that the specimen signatures/handwritings were taken in his presence and prior to that said sheets were blank. He did not remember as to how many persons were asked to give specimen signatures/handwriting. He further stated that he had not seen P.N. Sharma writing and signing prior to that day he was called to CBI office. He admitted that on 7 sheets (S26 to S32), the word 'Raj Narayan Sharma' (in Hindi) is mentioned. He further admitted that signatures of P.N. Sharma are not appearing on all the specimen sheets. He stated that CBI had not told him that the name of Prem Narayan Sharma is Raj Narayna Sharma. He further stated that he was informed by the CBI that P.N. Sharma would be giving specimen signatures and handwriting. He denied the suggestion that Prem Narayan Sharma had never given his specimen handwriting and signatures on Ex.PW28/A and Ex.PW28/B in his presence. He further denied the suggestion that as he is a Govt. servant, he is deposing due to fear and under pressure in order to favour CBI.
82. Thus, it can be seen that nothing material could be extracted from crossexamination of this witness to impeach his testimony and he remained stuck to his stand firmly that A1 CC No.16/19 & ID No.171/19 Page 49 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 P.N. Sharma had given specimen signatures/handwritings in his presence voluntarily without any pressure.
83. Another witness examined by the prosecution is PW55 Sh. Bhagwan Dass in whose presence specimen signatures/handwritings of A1 P.N. Sharma were taken by the CBI. The witness deposed that he was posted as LDC, Vigilance Department MCD in the year 2007 and he was called by the CBI to witness the taking of the specimen handwriting/handwritings of one or two persons who had given the specimen handwritings with their free consent. Having been shown signatures/handwritings of P.N. Sharma at S1, S3, S16, S17, S18, S25, S61, S62, S63, S64, S65, S66, S67, S68, S99, S100 & S101 Ex.PW54/D (Colly) (Part of D41 to D46) to the witness, he stated that the same were taken in his presence.
84. In the crossexamination, he stated that the CBI has sent a letter to CVO to depute some person and accordingly he was asked by CVO to report to CBI. He further stated that he had not seen the letter which was received by CVO. CVO had given him the order in writing to report to CBI. He had not attended his office and had gone straightaway to CBI Office as he was directed to report to CBI. He did not remember at what time he had reached CBI Office, however, he stated that it was before lunch. He did not remember the address where the CBI Office was situated. He stated that the address of the CBI Office was mentioned in the order given to him by CVO. He had visited the CBI Office once pertaining to this case. He did not remember how much time he remained in the CBI Office qua the present CC No.16/19 & ID No.171/19 Page 50 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 case. He stated that he did not attend his duty in the office on the said date. He did not remember at what time he reached to his house on that day. He stated that he was sitting very close when the said handwritings were taken by the CBI Office. He could not tell as to who had written the headings/titles on the above documents but he stated that the same was written in his presence. He did not remember as to how many persons were present in the room and whether the said writing was made on the dictation or by showing some document. He also did not remember whether the IO had signed the documents when he signed those documents and whether the persons present in the CBI Office were already there or they were called after his reaching there and whether the person who made the writings in blue circle in the above documents was already present there or he was called after his reaching there. He did not observe any pressure to make the writing on the person who gave their specimen writings and as such he can say that they had given the specimen handwriting with their free consent. He denied the suggestion that the above documents were not prepared in his presence and that due to the said reason, he was not answering the questions and deliberately stating that he was not remembering.
85. The aforesaid crossexamination of the witness shows that not much could be extracted by the Ld. Defence Counsel which has materially contradicted the statement of the witness made in his examinationinchief. Though the witness could not recollect that at what time he reached the CBI office CC No.16/19 & ID No.171/19 Page 51 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 but he stated that it was before lunch. Further, he could not remember the address where the CBI office was situated but he clarified that it was mentioned in the letter given to him. Nothing adverse can be read against him if he did not remember at how much time he remained in the CBI office and at what time he reached the home. Though he also did not remember certain facts as to how many persons were there, whether the said writing was made on the dictation or by showing some document, whether IO had signed the documents when he signed those documents, whether the persons present in the CBI Office were already there or they were called after his reaching there, whether the person who made the writings in blue circle in the above documents was already present there or he was called after his reaching there, but those facts are not material as the specimen handwriting and signatures were taken way back in the year 2007 and due to lapse of time the witness could not remember those facts. But the fact of the matter remains that testimony of this witness that P.N. Sharma had given his specimen handwriting and signature in his presence without any pressure could not be impeached. The witness categorically stated that he was sitting very close when the handwritings were taken by the CBI officers and he did not observe any pressure on the persons who gave their specimen writings and as such he could say that they had given the specimen writings with their free consent.
86. The prosecution, thus, has successfully proved on record from the testimonies of aforementioned two witnesses, namely, PW28 Sh. Kailash Chand and PW55 Sh. Bhagwan Das CC No.16/19 & ID No.171/19 Page 52 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 that the specimen handwriting and signature of A1 P.N. Sharma had been taken by the CBI which were given by him in the presence of said two independent witnesses voluntarily and without any pressure and the argument of the Ld. Defence Counsel that A1 P.N. Sharma had not given his specimen signatures/handwritings during investigation at any point is not sustainable.
87. So, it is apparent that the specimen handwriting and signatures of A1 P.N. Sharma and of three members of the Society namely, Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma were obtained by the CBI and the same were sent to the GEQD for comparison with the questioned documents.
88. As already noted herein above that the specimen signatures of Sh. Mam Chand Rai Jain from S152 to S157, of Sh. Surender Mohan from S114 to S125 Ex.PW13/F (Colly) and of Sh. Raj Narayan Sharma from S129 to S133 Ex.PW22/M (Colly) were compared with the questioned documents by the GEQD and he found the questioned documents not matching with the specimen signatures of these members. However, the specimen signatures of A1 P.N. Sharma from S1 to S53 Ex.PW54/D (Colly), S61 to S73 Ex.PW54/F (Colly) and S82 to S103 Ex.PW54/H (Colly) were compared with the questioned documents and the same were found matching with questioned documents.
89. The expert opinion/report Ex.PW54/B submitted by PW54 V.G.S. Bhatnagar, the GEQD has been highly assailed by CC No.16/19 & ID No.171/19 Page 53 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 the Ld. Defence Counsel during course of final arguments as noted herein above. In view of the same, it would be appropriate to discuss the testimony of PW54 Sh. V.G.S. Bhatnagar minutely and in detail.
90. PW54 deposed that he passed M.Sc (Physics) and took his initial training in the science of handwriting examination in the laboratory of Government of India at Calcutta for 6 years. He was declared by Government of India as document expert through Govt. Gazette Notification in 1976 and since last 40 years, he has been examining the forensic documents and expressing his independent opinions. He further deposed that the original documents of this case were received in his Calcutta office on 24.07.2007 from S.P. CBI, ACB New Delhi for examination and report and the documents were received through a forwarding letter dated 20.07.2007 Ex.PW54/A. He further deposed that during 2007, he was working as Government examiner of questioned documents in the office of Government examiner of questioned document Calcutta. He has examined the original documents of this case with the help of scientific instruments available in his Calcutta office. For the purpose of identification, he has stamped and marked all the original documents examined by him. The questioned documents were encircled by Red Pencil and marked in Q series and the standard document were encircled by Blue pencil and marked in S series. He further deposed that after thorough and careful examination of the original documents of this case, he prepared his opinion Ex.PW54/B and the same bears his signature as well as the CC No.16/19 & ID No.171/19 Page 54 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 signature of Sh. A.K. Singh, the then AGEQD Calcutta who had also examined the original documents of this case and agreed with his opinion.
91. The Ld. Defence Counsel vehemently argued that since this witness has got retired from the service, the official documents which were brought by him on the day of his examination in the Court are highly doubtful as after retirement he was not supposed to be in possession of those documents. In this regard, the Ld, Defence Counsel has crossexamined the witness at length and the same is required to be noted here.
92. In the crossexamination, PW54 stated that the forwarding letter seeking opinion by the investigating officer is addressed to office and not to the examiner in his personal capacity. This Court has seen the forwarding letter dated 20.07.2007 Ex. PW54/A and the same was addressed to the Director, GEQD Kolkata by Sh. N.M. Singh, SP, CBI for examination of the documents and expert opinion. The witness further stated that the documents so received by the GEQD becomes the government property. He further stated that so long he is entrusted with the job of examining the documents by the department, the documents remains in his custody. The forwarding letter remains with the file and if the documents are entrusted to the examiner, the forwarding letter also goes to the examiner. He further stated that at the time of retirement, all the official documents are left in the office including the forwarding letter. He further stated that the forwarding letter which he had brought on the day of his examination in the Court is the CC No.16/19 & ID No.171/19 Page 55 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 government document. Voluntarily, the witness stated that he had requested the office to provide him the forwarding letter for the purpose of his evidence and the same was provided to him by his office. He explained that he had sent the said request to the office through email. The said email was sent to the Director, CFSL Kolkata. He stated that he had received Ex.PW54/A through post. He did not preserve the envelope which was containing the documents. He had sent the email to the Director, CFSL after receipt of the first summons from this Court. He did not remember when he received the summons. He had not sent the copy of summons to the Director along with his request.
93. So, from the aforesaid crossexamination, it cannot be said that the documents has been brought by the witness surreptitiously. Though he has got retired from the service but he had obtained the documents from his office as he was expert and had worked in the said office and had examined the documents. PW54 has explained in his further crossexamination when he stated that after retirement he has been seeking the documents from the Director, CFSL through email for his evidence besides on few occasion he personally collected the documents.
94. PW54 further stated that he has given his expert opinion in about 3000 cases and has tendered his evidence in about 600 cases. He could not count that in how many times he has appeared in the court for his evidence after his retirement. He admitted that he has appeared in more than 10 cases after his retirement. After retirement, he had been seeking the documents from the Director CFSL through email for his evidence besides CC No.16/19 & ID No.171/19 Page 56 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 on few occasion he personally collected the documents. The said request for providing the documents is accepted by the Director CFSL. Some record is maintained at CFSL office that the documents has been given to him. The one set of the documents of Ex. PW54/A remains in the CFSL office and one set which he had brought today is placed in the court record. Both the sets of the documents are original.
95. PW54 further stated that for handwriting examination opinion, it is better if the original documents are supplied but it is not mandatory and sometimes the opinion is also given on the basis of photocopy documents. He further stated that in this case, he has considered the photocopy of documents also for giving his opinion. The Ld Defence Counsel could not show any authority that the handwriting expert opinion could be given only on the original documents and not on the photocopy.
96. The Ld. Defence Counsel also argued that Ex.PW54/B is the supplementary opinion and the prosecution has withheld the first opinion. This submission is made by Ld. Counsel on the ground that on Ex.PW54/C, at page no. 2 the word supplementary opinion is written. But the witness has clarified the same in his crossexamination that the word "supplementary opinion" is a typographical mistake and Ex. PW54/C (it should be Ex.PW54/B) is the final report and not supplementary. No contrary evidence has been led by the defence that there existed any other opinion in this case.
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97. PW54 further stated that he and other Examiner Sh. A.K Singh had examined the documents independently. Ex. PW54/B was prepared by him and same was agreed by Sh. A.K Singh. Sh. A.K Singh had signed on Ex. PW54/B after going through the same and he had done stamping on each and every document which he examined. He admitted that at page 2 of Ex. PW54/B, word 'PNS' is written with pencil in para no. 11. He stated that he did not know who had written the same.
98. The Ld. Defence Counsel has taken an exception on the word 'PNS' written in pencil at page no. 2 of Ex. PW54/B in para no. 11 and argued that it shows that the report is manipulated. However, no malafide can be attributed to the prosecution only because in pencil word 'PNS' is written.
99. A question was put to the witness that if he had mentioned in his report that he had collectively examined all the specimen writing and questioned documents to which PW54 replied that he had not expressed his opinion by examining individual specimen writing of a person and as such there is no question of mentioning collectively as the report is related to all the specimen writing relating to an individual person altogether. Another question was put to the witness whether he was able to identify the questioned writing and specimen as to which specimen especially compared with special or several questioned writing and he find similarities between/among them. The witness answered that all the significant handwriting characteristics appearing in the questioned writings are found similar at one or the other place in the specimen writings. It is not CC No.16/19 & ID No.171/19 Page 58 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 possible for him to pin point one to one examination of specimen and questioned writing. Again a question was put to PW54 whether he compared particular Alphabet to Alphabet or word to word among the specimen writing and questioned writing when he prepared his opinion. The witness answered that he had examined and compared the handwriting characteristics appearing in the letters, words and their combinations.
100. The witness could not say if alphabet and letter are one and same. He stated that letter denotes 'dots' 'comma' 'spacing' 'punctuation marks' etc. He further stated that he has examined the specimen handwritings interse. The appearance of letter 'S' in S12 is capital and written individually while the same letter in S24 Ex.PW54/D (Colly) is in small and written in combination with other letters so the design is different. He further stated that the appearance of letter 'S' in S24 is in small form combining with other letters while the same letter in S61 and S65 is in capital form. The appearance of 'S' in S24 is, therefore, different than the appearance of 'S' in S61 and S65 while the appearance of 'S' in S65 and S61 are similar. He further stated that his examination is not only based on the appearance of individual one to one letter but he has based his opinion on the detailed reasons of examination of handwriting characteristics. The detailed reasons which he prepared at the time of his examination and typed later on are in two sheets which he has brought today. The said reasons bears his signatures at point A on both the sheets and the same is Ex. PW54/DX1. He stated that the reasons Ex. PW54/DX1 is CC No.16/19 & ID No.171/19 Page 59 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Government record. He admitted that Ex. PW54/DX1 does not bear signature of Sh. A.K Singh. He denied the suggestion that Ex.PW54/DX1 does not bear signature of Sh. A.K Singh because he has prepared the same after receipt of the summons from the court. He categorically stated that he had prepared the reasons Ex. PW54/DX1 at the time of examination of the documents in rough note sheets and same were typed later on and one copy of opinion and the reasons was kept in the office of GEQD Calcutta. As per their office procedure, the copy of Reasons for Opinion was not sent to CBI. He did not remember if Mr. A.K Singh also prepared rough notes of Reasons for Opinion. He stated that he has not seen the typed reasons prepared by Mr. A.K Singh.
101. A question was put to the witness if environmental conditions, mental status of writer, pen pressure, quality of papers are the factors which may effect the variation in the handwriting and signature of an individual to which he replied that it may or may not be and it depends on the situation from case to case basis.
102. The witness further stated that he had used stereo microscope, video spectral comparison apart from lenses, lighting arrangement and UV lamps. He admitted that there is no address of the office or any office seal on Ex. PW54/DX1. He had examined the documents in the laboratory and not at his residence. He had not taken the documents for examination to his residence. He had typed the reasons for opinion Ex. PW54/DX1 himself after his retirement. He could not recall as to how much prior of conducting the examination of documents, he got CC No.16/19 & ID No.171/19 Page 60 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 calibrated the equipments but they were calibrated as usual. He denied the suggestion that Ex. PW54/B is supplementary report as is evident by Ex. PW54/C. He further denied the suggestion that same is not a typographical mistake as deposed by him above. He further denied the suggestion that he has sent one report prior to Ex. PW54/B in which he had not given any opinion and that subsequently under the pressure of CBI, he gave adverse report against the accused persons.
103. If the aforesaid crossexamination of PW54 is seen in its entirety, it will reveal that Ld. Defence Counsel could not impeach and demolish the credibility of the witness as an expert in the field of handwriting examination. PW54 has given the detailed reasons for his opinion.
104. Though during course of the arguments, Ld. Defence Counsel has argued that the detailed reasons which the witness had brought on the day of his examination could not be considered as the same were got prepared after receiving of the summons from the Court. However, the witness has categorically stated that the reasons Ex. PW54/DX1 is a government record. He stated that he had prepared the reasons Ex.PW54/DX1 at the time of examination of the documents in rough note sheets and the same were typed later on. He has also stated that he has examined the documents in the laboratory and not at his residence
105. The Ld. Prosecutor has also clarified that before the year 2011, as per the normal practice and procedure, the GEQD did not use to send the reasons for opinion along with their report CC No.16/19 & ID No.171/19 Page 61 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 but thereafter the GEQD started sending the reasons for opinion along with their report to the forwarding prosecuting agency. This was the reason that the reasons for opinion was not filed along with the chargesheet in this case as in this case the documents were examined in the year 2007.
106. In view of the aforesaid submissions made by the Ld. Prosecutor for not submitting the reasons for opinions along with the charge sheet, no malafide or fabrication can be imputed to the prosecution in not filing the reasons for opinion along with chargesheet and it cannot be accepted that the reasons for opinion brought by the witness are manipulated, more so when the witness has categorically stated that the reasons for opinion were prepared in rough notes at the time of examination of the documents but same were typed later on.
107. Ld. Defence Counsel also submitted that the witness has not examined the following handwriting characteristics viz. Blind loop, loop, hook, slant, shoulder, curve, tick and these parameters were not observed by the expert. However, these handwriting characteristics argued by Ld. Defence Counsel which as per him had not been observed by the witness were not put to the witness during his crossexamination for his response. Therefore, it will not render the expert opinion unreliable.
108. The another contention of the Ld. Defence Counsel is that the investigating agency had already indicated to the GEQD about the opinion to be given by disclosing the name of A1 P.N. Sharma and others in the covering letter Ex.PW54/A and the opinion given by the GEQD is only a sham and eye CC No.16/19 & ID No.171/19 Page 62 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 wash. This submission is based on the contents of letter Ex. PW54/A. The said letter is addressed by SP, CBI to the Director, GEQD Kolkata. The subject title of the said letter reads as :
"Request for examination of documents and expert opinion thereon in case RC 51(A)/2006/DLI (Karuna Vihar CGHS Ltd. scam case). Thereafter, it is mentioned that Sh. P.N. Sharma, President and Sh. Shyam Bihari Sharma, office bearer of Karuna Vihar CGHS, Dwarka, New Delhi along with others dishonestly falsified the enrollments/resignations of members by way of forgery and it was required to give expert opinion of documents in respect of questioned document encircled and marked in red pencil by comparison with the specimen handwriting encircled and marked in blue pencil. The questioned documents as per list Annexure A, signatures writings as per separate list were sent for the comparison and for giving the expert opinion in respect to the queries in the form of questionnaire from para no. 1 to 12".
109. I do not find anything wrong and it cannot be said that the forwarding authority had already indicated the name of the persons against whom the expert opinion was solicited. Annexure A is the questioned documents which provides description of documents with Q number. Annexure B is the specimen handwriting/signatures of the witnesses, accused persons and other persons. So, it cannot be said that the GEQD was specifically asked to give any particular opinion against any particular person. Had that been the case, the GEQD would have returned the findings against A1 P.N. Sharma in respect of all the questioned documents as the writer/author, but that is not the CC No.16/19 & ID No.171/19 Page 63 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 case here. The expert was required to give the opinion after comparing the questioned writing/signature with the specimen writing/ signature. Hence, this argument of Ld. Defence Counsel that GEQD was indicated in advance to give opinion against A1 P.N. Sharma is liable to be rejected.
110. Now, the question arises that what is the evidentiary value of the opinion of a handwriting expert?
111. Law regarding evidentiary value of the opinion of handwriting expert or to what extent reliance can be placed on the opinion of handwriting expert has been laid down in many judgments of the Hon'ble Apex Court and one such judgment was rendered in the case titled as "Magan Bihari Lal vs. 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 possible 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.PW10/A was that of 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 CC No.16/19 & ID No.171/19 Page 64 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 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 of internal and eternal 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 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) AIR 1967 SC 1326 (5) 1822, 5B & Old 330 Foger's Will (1). The Supreme Court of Michigan pointed out in the last mentioned case:
CC No.16/19 & ID No.171/19 Page 65 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 "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 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."
112. 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 Baneerjee v. Subhodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 and S. CC No.16/19 & ID No.171/19 Page 66 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 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 emphasized 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 referring to Section 46 of the Evidence Act, this Court reiterated the observation in Murari Lal (supra) and stressed that the CC No.16/19 & ID No.171/19 Page 67 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 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.
113. In view of above pronouncements by the Hon'ble Apex Court, it can be deduced that the opinion of handwriting expert may be relied upon to convict an accused if it is supported by detailed and convincing reasons. In other words, opinion of handwriting expert must be a reasoned one in order to pass the test of reliability and credibility. The prosecution must also prove that the specimen of the accused on the examination of which the expert opinion has been rendered were given by him voluntarily and in presence of an independent witness.
114. In the present case, it has been proved that A1 P.N. Sharma had given his specimen signatures voluntarily and in presence of two independent witnesses, namely, PW28 Sh. Kailash Chand & PW55 Sh. Bhagwan Das. The testimony of PW54 V.G.S. Bhatnagar, the expert witness and the answers given by him during course of crossexamination demonstrate CC No.16/19 & ID No.171/19 Page 68 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 that he is well versed with the science of handwriting examination and is aware about all the necessary characteristics of the handwriting which needs to be examined before giving the opinion. He has clearly explained the basis upon which he has reached to various conclusions and has given satisfactory reply to the questions put to him during his crossexamination. PW54 has stood firmly to the test of crossexamination and there is nothing to impeach his testimony or to discard his opinion. Nothing has come out from the crossexamination to suggest that he had not compared the questioned as well the specimen signatures/writings correctly or that he has given a false opinion. His opinion undoubtedly appears to be plausible, credible and trustworthy. In the light of the principles laid down by the Hon'ble Apex Court in the judgments cited supra regarding the evidentiary value of expert opinion, it goes without saying that such opinion should be corroborated by other evidence direct or circumstantial.
115. In this case, there is not only the expert opinion but direct evidence is also available in the form of testimonies of the members namely, PW12 Suresh Chand Jain on behalf of Sh. Mam Chand Rai Jain, PW13 Surender Mohan and PW22 Raj Narayan Sharma to suggest that their signatures on the resignation letters and receipts of share money and signatures of PW22 Sh. Raj Narayan Sharma on the GBMs/Executive Body meetings have been forged and, therefore, the opinion of PW54 is also corroborated by the direct evidence and hence it can be safely relied upon.
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116. The Ld. Defence Counsel has also vehemently argued that the opinion of the expert cannot be relied upon as the specimen signature/handwriting of A1 P.N. Sharma have been taken without the permission of the Court and there is no provision in the Code of Criminal Procedure which authorizes the investigating officer to take the specimen handwriting/signature of accused. Thus, the Ld. Defence Counsel would argue that the specimen signature/handwriting of A1 P.N. Sharma cannot be relied upon at all.
117. I do not find any merit in this contention. It has been held in Rekha Sharma vs. CBI in Crl. Appeal No. 124/2013 by the Hon'ble High Court of Delhi vide order dated 05.03.2015 that, "Expert evidence in the form of report on handwriting and signature specimens is not barred from consideration on the ground that they were obtained without permission of the Court." The Hon'ble High Court of Delhi has further observed as follows: "The investigating officer in a criminal case is empowered under Section 2 (h) Cr.P.C. to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 has endorsed this view and held that the term "investigation" includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to exhaustively catalogue such steps taken during investigation in a code like Cr.P.C. Thus, CC No.16/19 & ID No.171/19 Page 70 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 absence of a specific provision enabling a particular step under investigation does not imply that the investigation agency is disabled from taking that step under its power/duty (power coupled with duty) to conduct investigation.
118. It has been held by the Hon'ble Supreme Court in State of Bombay vs. Kathi Kalu Oghad & Ors., AIR 1961 SC 1808 that, "the giving of finger impression or of specimen writing or of signature by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness" (against himself)".
119. The Ld. Defence Counsel in support of his contention though has relied upon the judgment in case titled as Sukhwinder Singh & Ors vs. State of Punjab, but the same is not applicable as the said case pertained to the opinion formed by the Court itself on comparison made of the disputed writings with the admitted or specimen writings under Section 73 of the Indian Evidence Act.
120. In this case, the expert opinion has been given under Section 45 of the Indian Evidence Act and it has been duly proved that A1 P.N. Sharma had given his specimen signature and handwriting without any pressure in the presence of two independent witnesses and there is no scope to doubt that A1 P.N. Sharma had not given his specimen handwriting and signature which were examined and compared by the GEQD.
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121. Although in order to rebut the said evidence of forgery of signature of PW22 Raj Narayan Sharma on the proceedings of the GBMs/Executive Body meetings and of the signature of Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma on the resignations and share money receipts, A1 P.N. Sharma has examined two witnesses in his defence which is required to be discussed here.
122. DW2 Ved Prakash Sharma examined by A1 P.N. Sharma deposed that he became member of Karuna Vihar CGHS around the year 1990 and remained the member of the above Society up to 1998. He was Treasurer in the year 1991 and Executive Member in 1995, 19971998 of the Society. He stated that the meetings of the Society used to be drawn in writing. The members present in the meeting used to put their signatures in the proceedings and he can identify his signatures on the proceedings if shown to him. The witness was shown the proceedings of meeting dated 16.09.1997, 18.04.1991, 01.12.1991 Ex. PW22/H, 31.03.1995, 31.12.1995, 20.01.1997, 23.02.1997, 15.05.1997, 20.11.1997, 24.12.1997 and 20.01.1998 and he identified his signature on the aforesaid meetings contained in the proceeding register Ex.PW7/A (Colly). He further stated that he can identify the signatures of the other members who used to attend the meetings with him. He claimed that he knew Sh. Raj Narayan Sharma, Sh. Shyam Bihari Sharma, Sh. Arjun Singh, Sh. P.N. Sharma, Sh. N.K. Suman, Sh. G.P. Gautam, Sh. Surender Mohan, Ms. Usha Anand as they used to attend the meetings.
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123. When the witness was shown the proceedings Ex. PW10/A, he stated that it bears signatures of Sh. Raj Narayan Sharma at Q36, of Sh. Shyam Bihari Sharma at point C, of Sh. Suresh Chand Mishra at point D and of Sh. N.K. Sharma at point E. Similarly, he stated that the proceedings dated. 01.12.1996 Ex. PW22/H bears signature of Sh. Raj Narayan Sharma at point A, Sh. Suresh Chand Mishra at point C and Sh. Shyam Bihari Sharma at Q38. He further stated that the proceedings dated 31.01.1992 already Ex. PW10/B bears signatures of Sh. Raj Narayan Sharma at point A, Sh. Kartar Singh at point B and Ms. Usha Anand at point X1. He further stated that the resignations used to be verified by Sh. Shyam Bihari Sharma and Sh. P.N. Sharma. He further stated that the resignations of Sh. Dinesh Kumar, Sh. N.K. Suman, Sh. Surender Mohan, Sh. M.C. Rai Jain, Sh. Gyan Prakash Gautam, Sh. Kartar Singh, Ms. Usha Anand, Sh. Gurvinder Pal Singh, Sh. Raj Narayan Sharma (D
13) do not bear signature of Sh. Shyam Bihari Sharma and Sh. P.N. Sharma. He further stated that he has identified the above signatures as they had signed in his presence in the meetings. He also claimed that the membership register, already Ex. PW10/C bears his name at page 9 against serial no. 85 but it does not bear his signature. The address is also incorrectly mentioned therein and Ex.PW10/C is not the same register.
124. Thus, it can be seen that A1 P.N. Sharma through this witness has tried to rebut the case of the prosecution that the members who have been shown to have attended the meetings used to put their signatures against their names and the signatures CC No.16/19 & ID No.171/19 Page 73 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 of Raj Narayan Sharma, Shyam Bihari Sharma, Kartar Singh, Usha Anand are the genuine signatures thereby falsifying the testimony of Raj Narayan Sharma that he had never attended any GBM/Executive Body Meeting or that the signatures on the proceedings of the GBMs/Executive Body meetings in Ex.PW7/A are not his signatures.
125. Though DW2 has identified the signatures of Raj Narayan Sharma at Q35 on Ex.PW10/A1 and on the proceedings dated 01.12.1991 Ex.PW22/H at point A (Q37), on the proceedings dated 31.01.1992 Ex.PW10/B at point A (Q39), while PW22 Raj Narayan Sharma has denied his signatures on the said proceedings.
126. Similarly, as per PW54 Sh. V.G.S. Bhatnagar, the signatures of Raj Narayan Sharma at Q35 on Ex.PW10/A1, at Q37 on the proceedings Ex.PW22/H and at Q39 on the proceedings Ex.PW10/B have been forged by A1 P.N. Sharma.
127. Now, it has to be seen whether the testimony of DW2 Sh. Ved Prakash Sharma is credible.
128. In his crossexamination, when DW2 was confronted the meeting dated 23.02.1997 Ex.PW11/C and was shown signatures at Serial No. 1, 2, 3, 6, 7, 8, 9, 10, 11, 13, 15, 19, 20 and 21, he could not identify them. Similarly, he was shown the signatures at Q52 at Serial No. 24, he could not identify the same. The witness was again shown the meeting dated 01.12.1991 Ex.PW22/H and he was asked to identify the signatures appearing at Serial No. 1 & 2, which he could not CC No.16/19 & ID No.171/19 Page 74 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 identify, while he has claimed in his chief examination that he had attended the said meeting and bears his signatures at point B. He was further shown the meeting dated 31.01.1992 Ex.PW10/B and was asked to identify the signatures at Serial No. 1, Q40, 19 and 28 which he again could not identify. He was also shown the meeting dated 31.03.1993 Ex.PW22/L and was asked to identify the signatures against the name at Serial No. 23 which he could not identify.
129. The aforesaid statement of the witness shows that he had identified the signatures of the members during his chief examination only when he was shown the full name of the members against the signatures and this is apparent when DW2 voluntarily stated during his crossexamination that he could not identify the signature as the Ld. Prosecutor had folded the page and did not show the name of the said members. DW2 further categorically stated that he can identify the signatures if their names are also shown to him against which signatures have been put. He further stated that he remembers the names of twofour members of the Society and does not recollect all the names and signatures of the members of the Society as it is 25 years old matter and he voluntarily went on to say that even his signature has changed now. If that is the case, then the claim of the witness during his chief examination that he can identity the signatures of the other members who used to attend the meeting with him is falsified. Even as per this witness since it is 25 years old matter and he can recollect the names of 24 members of the Society only and even his signature has changed then it is beyond CC No.16/19 & ID No.171/19 Page 75 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 imagination that how he could identify the signatures of Raj Narayan Sharma, Surender Mohan and others. The credibility of this witness is also doubtful as at the first instance in the chief examination he claimed that he can identify the signatures of P.N. Sharma besides others. When this witness was shown the resignation of Dinesh Kumar, N.K. Suman, Surender Mohan, M.C. Rai Jian. Gyan Prakash Gautam, Kartar Sigh, Usha Anand, Guvinder Pal Singh and Raj Narayan Sharma, he stated that the said resignations do not bear signatures of Shyam Bihari Sharma and A1 P.N. Sharma. But during his crossexamination, he stated that he cannot identify the signatures of A1 P.N. Sharma and he can identify the same if pointed out to him.
130. There is another aspect of the matter. PW13 Surender Mohan and PW22 Raj Narayan Sharma besides others have denied to have attended the meetings of the Society and their signatures on the proceedings of the GBMs/Executive Body meetings and the testimonies of PW13 and PW22 have gone unrebutted on this aspect as PW13 has not been crossexamined on this count though there is no GEQD opinion that signature of PW13 Surender Mohan on the proceedings of the GBMs has been forged by A1 P.N. Sharma. Testimony of PW22 Raj Narayan Sharma has gone completely unrebutted and unchallenged which is also corroborated by the GEQD opinion that the signatures of Raj Narayan Sharma on the proceedings of the GBMs/Executive Body meetings as noted herein above in detail have been forged by A1 P.N. Sharma. Therefore, in the teeth of such overwhelming evidence, A1 P.N. Sharma cannot CC No.16/19 & ID No.171/19 Page 76 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 claim through the testimony of DW2 that the GBMs/Executive Body meetings were attended by PW22 Raj Narayan Sharma and he had also put his signatures against his name on the proceedings of the GBMs/Executive Body meetings or that PW 22 Raj Narayan Sharma has wrongly denied his signatures or attending of the GBMs/Executive Body meetings or that GEQD opinion is unreliable.
131. A1 P.N. Sharma has also tried to create doubt on the genuineness of the membership register Ex.PW10/C through the testimony of DW2 as DW2 claimed that Ex. PW10/C is not the same register because he had signed in the membership register but entry against his name at Serial No. 85 does not bear his signature. The genuineness of the membership register Ex.PW10/C was sought to be assailed through the testimony of DW1 also and he has also claimed in his examinationinchief that the said register is not the same register as deposed by DW2.
132. It is pertinent to note that genuineness of the membership register Ex.PW10/C has not been disputed during entire trial of the case by A1 P.N. Sharma and this theory has been propounded during the final arguments and thereafter when he was allowed to lead defence evidence pursuant to the application under Section 311 Cr.P.C.
133. PW7 Kartar Singh during his chief examination stated that the membership register D40 of Karuna Vihar CGHS and at page 004 of the register, his membership number is shown as 32/22 and the details contained at this relevant entry pertained CC No.16/19 & ID No.171/19 Page 77 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 to him and are correct and the relevant entry was exhibited PW7/B in the said register. This witness was not crossexamined by the accused person on this aspect at all that the said membership register was a forged and manipulated register and it was not the same which was maintained in the society office (Karuna Vihar CGHS).
134. The membership register was exhibited during the testimony of PW10 N.K. Suman when he stated that his name in the said register is appearing at Serial No. 38 with his name and other particulars and date of resignation and the register D40 containing the list is Ex.PW10/C. This witness was not cross examined at all. Meaning thereby, the accused did not dispute the genuineness and correctness of the membership register Ex. PW10/C.
135. The membership register was put to PW24 Smt. Renu Mangla and after seeing the membership register, she admitted her name appearing along with her membership No. 197/164 and confirmed her resignation letter Ex. PW24/C on 20.12.2001 and page no. 25 in the membership register Ex.PW10/C was exhibited as Ex.PW24/E. Again A1 P.N. Sharma has not crossexamined this witness on the genuineness and authenticity of the membership register Ex.PW10/C which carries her entries at page No. 25.
136. PW26 Sh. Naresh Gupta was shown the membership register Ex.PW10/C and he identified his signature at point A against the entry on page no. 28 at serial no. 213 and the said page was Ex.PW26/B. This witness was not cross CC No.16/19 & ID No.171/19 Page 78 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 examined at all on the genuineness and authenticity of the membership register Ex.PW10/C.
137. Membership register was put to PW27 Manish Chopra and after seeing at page no. 20 at serial No. 165, he identified his signature at point A and the particulars to be correct and the said entry was Ex.PW27/B in the membership register Ex.PW10/C. This witness was not crossexamined at all.
138. Membership register Ex.PW10/C was further put to PW42 Sh. Gaurav Gupta and he was shown page no. 15 of the register at point X against serial no. 130 reflecting his name, father's name, address, age, occupation, name of nominee and his signature at point S to S1. During his crossexamination, again the genuineness of the said membership register was not disputed.
139. PW43 Sh. Jagdish Prasad Verma was shown the membership register Ex. PW10/C from folder D40 at page 28 and he identified his name and other particulars against Serial no. 215 to be correct though it was not bearing his signature. This witness was not crossexamined at all on the genuineness and authenticity of the membership register Ex.PW10/C.
140. So, it is apparent that at no stage of the trial, A1 P.N. Sharma took any objection regarding genuineness and authenticity of the membership register Ex.PW10/C. No such plea was taken by A1 P.N. Sharma at the time when his statement under Section 313 Cr.P.C was recorded. It is more surprising as A1 P.N. Sharma was the founder chairman of the CC No.16/19 & ID No.171/19 Page 79 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 present Society and had remained Secretary of the Society for a considerable period from registration of the Society in the year 1983 to 1998 when he resigned from his membership. In that scenario, it cannot be accepted that A1 P.N. Sharma was not aware whether the membership register Ex.PW10/C produced by the prosecution and put to the several prosecution witnesses was not genuine and fabricated. It is quite evident that A1 P.N. Sharma has tried to make out a case of fabrication of records by the prosecution through the testimonies of DW1 & DW2 which is totally unfounded, an afterthought and is liable to be rejected.
141. The other witness examined by A1 P.N. Sharma is DW1 Arjun Singh who has deposed that he became member in Karuna Vihar CGHS in the year 1996 and remained the member of the above Society up to 1998 and resigned in 1998 as he could not meet out the financial demand from the Society. He further deposed that he was also Treasurer of the above Society in the year 1997 to 1998 and as a Treasurer his duty was to maintain the money received from the members and to return the money to the members who resigned from their membership. He further deposed that one Munim of Sh. Shyam Bihari Sharma also used to manage the affairs of maintaining the money matters of the Society. He further deposed that the proceedings were drawn in the proceeding register as and when any money was returned to the member of the Society.
142. The witness was shown the meeting dated 16.09.1997 in the proceeding register of the Society Ex. PW7/A and he identified his signatures on the said proceedings at point CC No.16/19 & ID No.171/19 Page 80 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 A and A1 and the said meeting was Ex.DW1/1. He stated that the contents of the meeting dated 16.09.1997 are correct and he had returned the money to the members whose names are shown in the said meeting as resigned. He further stated that the Committee had accepted the resignations on 16.09.1997 of the members who gave their resignations and the resignations were accepted by Sh. P.N. Sharma who was Secretary of the Society. He stated that at the time of refunding the money, the receipt was taken from the member along with his share certificate.
143. He was also shown resignation letters of Sh. Dinesh Kumar Ex. DW1/4, Sh. N.K. Suman Ex. PW10/A, Sh. Surender Mohan already Ex. PW13/B, Sh. M.C. Rai Jain Ex. PW12/B, Sh. Gyan Prakash Gautam Ex. PW39/B, Sh. Kartar Singh Ex. DW1/5, of Usha Anand Ex. PW11/D, Sh. Gurvinder Pal Singh Ex. DW1/6, of Sh. Raj Narayan Sharma Ex. DW1/7 and he stated that the said resignations letters are not the same resignation letters which were submitted by these persons during his tenure because on these resignations there is no signature of Sh. P.N. Sharma who was the Secretary of the Society to verify the said resignation letters.
144. DW1 further deposed that the proceedings of the minutes used to be written by Munshi Ji of Sh. Shyam Bihari Sharma and the records were used to be kept in the factory of Sh. Shyam Bihari Sharma in which Society office was situated. He stated that he had signed in the membership register of the Society when he became member of the Society.
145. As such, it can be seen that through the statement of CC No.16/19 & ID No.171/19 Page 81 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 this witness, A1 P.N. Sharma has tried to make out a case that the members whose resignations were accepted in the meeting dated 16.09.1997 Ex.DW1/1 had actually tendered their resignations for which the proceedings were drawn and the share money was also refunded to them. Further, that the resignation letters of Dinesh Kumar Ex.DW1/4, N.K. Suman Ex.PW10/A, Surender Mohan Ex.PW13/B, M.C. Rai Jain Ex. PW12/B, Gyan Prakash Gatuam Ex. PW39/B, Kartar Singh Ex. DW1/5, Usha Anand Ex.PW11/D, Gurvinder Pal Singh Ex. DW1/6, Raj Narayan Sharma Ex. DW1/7 are not the same resignation letters which were submitted by these members during the tenure of DW1 Arjun Singh when he was treasurer of the Society.
146. During his crossexamination, DW1 stated that he is the client of Sh. Yogesh Verma, Advocate who is the advocate of accused persons in this case. He stated that Sh. Shyam Bihari Sharma was the President in the meeting on 16.09.1997. The said meeting bears the signature of Sh. P.N. Sharma at point B. He categorically stated that the members who have been shown as resigned in the meeting dated 16.09.1997 were not present in the said meeting. He further admitted that the Secretary Sh. P.N. Sharma had informed the members of the committee that certain members have resigned from their membership whose names have been mentioned in the meeting dated 16.09.1997 and also reflected in the proceedings of the meeting dated 16.09.1997.
147. From this statement, it is apparent that the members shown to have resigned in the proceedings of the meeting dated 16.09.1997 Ex.DW1/1 were not present in the said meeting nor CC No.16/19 & ID No.171/19 Page 82 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 they had tendered their resignations in presence of this witness. The proceeding dated 16.09.1997 Ex.DW1/1 shows that the secretary had informed the committee members regarding resignation of certain members as also admitted by DW1 Arjun Singh.
148. So far as the claim of this witness that he had returned the money to the members whose names are shown in the meeting dated 16.09.1997 Ex.DW1/1 as resigned members is concerned, it is relevant that he has stated in the chief examination that the proceedings were drawn in the proceedings register as and when any money was returned to any member of the Society. But proceedings of the meeting dated 16.09.1997 Ex. DW1/1 does not record any such fact that the share money has been refunded to the members who have been informed by the Secretary to have resigned from the membership. Even the stand of DW1 is wavering on the aspect that the proceedings were drawn in the proceeding register as and when any money was returned to the member of the Society. During his cross examination, he stated that no proceedings were drawn separately regarding payment of share money to the member who has resigned. When the witness was asked regarding his contradictory statement on this aspect in his chief examination and crossexamination and to state which statement was correct, he stated that when the resignations were accepted in the meeting, the money was returned to the members and no separate proceedings used to be recorded. However, this explanation is not found to be satisfactory in view of his clear statement in chief CC No.16/19 & ID No.171/19 Page 83 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 examination that the proceedings were drawn in the proceeding register as and when money was returned to any member and it only shows that the witness has improved his version in his crossexamination. Furthermore, perusal of proceeding register of the Society Ex.PW7/A shows that as and when any money matter was involved, the proceedings were drawn which can be seen from the proceedings of GBMs/Executive Body meetings of the Society on various dates.
149. DW2 Ved Prakash Sharma during his cross examination stated that he cannot say as to whether the money was refunded to the members who were shown to have resigned in the meeting dated 16.09.1997. If the version of DW1 is accepted that the resignation letters of the members were approved in the meeting dated 16.09.1997 and thereafter money was refunded to them but no proceeding were drawn regarding the refund of share money, then it is not understandable that how and in what manner and in whose presence, the said share money was refunded to those members. Moreso, when DW2 was one of the total 4 members in the said meeting when the resignations were accepted then he should have affirmed and corroborated the version of DW1 that share money was refunded to the members whose resignations were approved in the said meeting. DW1 has only made a bald assertion which is not corroborated with any proceeding in the proceeding register nor any such record has been brought on record which could have substantiated the version that share money was refunded to the members whose resignations were shown to have been approved in the meeting CC No.16/19 & ID No.171/19 Page 84 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 dated 16.09.1997 Ex.DW1/1.
150. DW1 has also claimed that the resignation letters shown to him are not the same resignation letters which were submitted by those resigned members shown in meeting dated 16.09.1997 during his tenure. As such, A1 P.N. Sharma through the evidence of DW1 has tried to make out a case that the resignation letters in file D13 Ex. PW54/M (Colly) are the different resignation letters and D13 is the different file. This plea is not sustainable as PW10 N.K. Suman in his chief examination has identified his signature at point A on resignation letter and receipt of share money Ex.PW10/A contained in file D
13. This witness was not crossexamined and suggested that the said resignation letter is not the same resignation which was tendered by him to the said Society or that D13 was some different file.
151. PW7 Kartar Singh stated that the photocopy of resignation letter dated 06.09.97 placed in file D13 page 57/C and photocopy of receipt of share money at page 56/C has been forged by someone by forging his signature and the signature appearing at point A are not his signatures. The original of the said resignation letter was exhibited during the evidence of DW1 as Ex.DW1/5 which he claimed that the same was not the same resignation letter submitted by this witness. But again PW7 was not suggested that he had resigned from the membership and had submitted the resignation letter which was different than shown to him during his chief examination or that D13 was some different file than maintained by the Society.
CC No.16/19 & ID No.171/19 Page 85 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
152. PW12 Suresh Chand Jain has stated that the letter regarding withdrawal of membership cum receipt Ex.PW12/B in the file D13 does not bear signature of his father and the same are forged and his father neither resigned from the membership nor received refund of Rs. 100/ from the Society. Again, he was not suggested that the resignation cum receipt was not the same which was tendered by his father or that D13 was some different file.
153. PW13 Surender Mohan was shown the resignation cum receipt in file D13 Ex.PW54/M (Colly) to which he stated that he never resigned from the membership of the Society and the signatures appearing at point A on resignation cum receipt Ex.PW13/B are not his signatures. This witness was not cross examined at all that the said resignation letter cum receipt is not the same resignation letter cum receipt which was presented by him to the Society or that D13 was some different file.
154. Similarly, PW11 Usha Anand stated that resignation letter and receipt Ex.PW11/D does not bear her signature and she had never resigned from the membership of Karuna Vihar CGHS nor received any refund of Rs.100/ as share money from Karuna Vihar CGHS. Again, she was not suggested that resignation cum receipt Ex.PW11/D is not the document which was tendered by the witness to the Society or that the file D13 was some different file other than the one which was maintained by the Society.
155. PW22 Raj Narayan Sharma stated that he has never resigned from the membership of the society. He did not receive CC No.16/19 & ID No.171/19 Page 86 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 any refund from the society and the signature on the resignation letter and the receipt Ex.PW22/C and Ex.PW22/D do not bear his signature. This witness was not crossexamined at all and his version has gone unrebutted and uncontroverted.
156. PW39 Gyan Prakash Gautam stated that that he has never resigned from the membership of the society. He did not submit any resignation and did not execute any receipt and his signature on the resignation letter Ex.PW39/B and on the receipt of payment Ex.PW39/C are not his signatures. This witness was not suggested that the resignation letter Ex.PW39/B was not the same resignation letter which was submitted by him and the receipt of payment Ex.PW39/C was also not the same receipt which was given to him or that there was some different file which contained the resignation letter and share money receipts maintained by the Society other than the file D13 Ex. PW54/M (Colly).
157. As noted earlier, that A1 P.N. Sharma was the chairman of the Society in its first meeting when it was founded in the year 1983 and remained Secretary upto 1998 for a substantial period, therefore it cannot be accepted that he did not know that the resignation letters and refund receipts in file D13 are not the same resignation letters and refund receipts as propounded through the testimony of DW1. Had the resignation letters and share money receipts been the different documents submitted by the prosecution in file D13 Ex.PW54/M (Colly), then A1 P.N. Sharma would not have remained a mute spectator and he would have taken the said objection during the CC No.16/19 & ID No.171/19 Page 87 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 examination of prosecution witnesses when said resignation letters and share money receipts contained in file D13 Ex.PW54/M (Colly) were exhibited and shown to them. The story propounded by A1 P.N. Sharma through evidence of DW 1 that the resignation letters which were submitted by above persons are not the same resignation letters which are lying in file D13 Ex. PW54/M (Colly) is an afterthought to wriggle out from the complicity in forging the above documents. Furthermore, A1 P.N. Sharma has not produced on record any other resignation letters which were genuinely submitted by these members and the share money receipts which were executed by the Society on returning the share money to the members nor any such thing has been indicated that there existed any other resignation letters and share money receipts of these members apart from lying in file D13 Ex.PW54/M (Colly). It appears that as PW7 Kartar Singh, PW11 Usha Anand, PW12 Suresh Chand Jain, PW13 Surender Mohan, PW22 Raj Narayan Sharma and PW39 G.P. Gautam denied their signatures on the resignation letters and share money receipts and further denied that they had never resigned from the membership of the Society and to escape from the forgery of above resignation letters of M.C. Rai Jain, Surender Mohan and Raj Narayan Sharma, a story has been propounded by A1 P.N. Sharma through statement of DW1 that the resignation letters of the above members are not the same which is neither tenable nor plausible and hence is liable to be rejected.
158. The Ld. Defence Counsel also drew the attention of CC No.16/19 & ID No.171/19 Page 88 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 the Court to the list of the promoter members at the time of registration of the Society and contended that the name of certain members as per the said list are missing in the membership register Ex.PW10/C and it shows that the membership register is a manipulated document.
159. The Ld. Public Prosecutor has submitted that the membership register Ex.PW10/C is properly paginated, intact and in serial. He submitted that the name of certain members as found in the list of the Society at the time of registration are missing in the membership register Ex.PW10/C and this was because some members had died and in their place the nominee of such member had been enrolled and name of such nominee of deceased member has been shown in the membership register and some members had resigned, some members were defaulters, membership of some members was transferred and due to all these reasons, their names were left out in the membership register Ex.PW10/C. The proceeding register of the Society Ex.PW7/A records about the demise of the member and in their place induction of the nominee of such deceased member, defaulter member and the members who had resigned and this may be the reason that name of some members as found in the intensive proforma submitted at the time of registration of the Society are not included in the membership register Ex.PW10/C, and, therefore it cannot be said that membership register Ex.PW10/C is fabricated.
160. This Court has also seen the membership register Ex.PW10/C and the same does not appear to be fabricated. The CC No.16/19 & ID No.171/19 Page 89 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 membership register is properly paginated and serialized There appears to be no tampering and manipulation and the register is intact.
161. At this stage, it is also relevant to refer the testimony of DW2 Ved Prakash Sharma. In his examinationinchief, he stated that he had tendered his resignation but he cannot tell about the others, while DW2 was the member of the committee and had attended the meeting dated 16.09.1997 Ex.DW1/1. He further claimed that in the meeting dated 16.09.1997, the agenda was put up and the resignations were approved by the secretary of the Society and thereafter on deliberation the said resignations were approved by the committee and the money was refunded to said resigned members. If that was the case, then it is not understandable that why he could not take a firm stand that the members who were informed to have resigned by the secretary had actually resigned and why he simply stated that he cannot tell about the resignation of others. It again belies the statement of DW1 Arjun Singh.
162. The Ld. Defence Counsel has also pointed out that PW16 Ashok Kumar Tajrana has claimed to be member of the Society while he was not the member of the society as there is no application form on the record nor his name is shown in the membership register Ex.PW10/C and, therefore, Ld. Defence Counsel would argue that the prosecution has fabricated the records.
163. Sh. Ashok Kumar Tajrana has been examined by the prosecution as PW16 and he stated that he was promoter CC No.16/19 & ID No.171/19 Page 90 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 member in the society and he never resigned from the membership of the Society. He did not receive any share money.
164. In the crossexamination, he was suggested that he had given his resignation to Mr. Raju to which he denied. He stated that he had never given resignation to anybody. He was further suggested that Mr. Raju had refunded him his subscription money which he again denied. He further denied the suggestion that Mr.K.C. Papne and Mr. Kartar Singh had advised him to submit resignation or on their advice he submitted his resignation. He admitted that his name is not mentioned in the list/bye laws Ex.PW7/F.
165. The aforesaid crossexamination would suggest that the accused is not disputing that he was member of the society but dispute was raised that he was not the promoter member of the society. Had that not been the case, the accused would not have given the suggestions to the witness that he had given his resignation to Mr. Raju or Mr. Raju submitted his resignation to the Society or he had submitted his resignation on the advice of Mr. Papne and Mr. Kartar Singh. If a person is not a member of the society, then how the question of his submitting the resignation or getting refund of share money would arise. Therefore, the contention made by Ld. Defence Counsel is contrary to the suggestions put to PW16 Ashok Kumar Tajrana. Though there is no application form of membership of PW16 on the record but he is shown as a member in the proceedings register of the society on page No. 15 at Serial No. 12 on the meeting held on 26.04.1984 and the said proceeding register is CC No.16/19 & ID No.171/19 Page 91 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 not disputed by A1 P.N. Sharma. In any case, the testimony of this witness will not help the case of the prosecution as his specimen signatures were not taken nor there is opinion of the GEQD that his signatures have been forged by A1 P.N. Sharma.
166. It is apposite to note here that theory of fabrication of records and submission of two set of documents has surfaced during course of the final arguments. The Ld. Defence Counsel submitted that on inspection of the record he found that the prosecution had surreptitiously submitted the documents and he went on to allege to the extent that the CBI had filed two charge sheet and documents in this case. This contention was based on the premise that the chargesheet was filed on 27.12.2007 before Ld. ASJ, New Delhi. Vide order dated 27.12.2007, Ld. ASJ, New Delhi directed to put up the file before the special designated Court for CBI for 03.01.2008 for consideration. The ordersheet dated 03.01.2008 reads that, "New chargesheet has been filed". On the basis of aforesaid two ordersheets dated 27.12.2007 and 03.01.2008, the Ld. Defence Counsel would infer that two set of chargesheet had been filed by the CBI. However, that is fallacious argument. On 27.12.2007, fresh chargesheet was filed before Ld. ASJ, New Delhi and vide order dated 28.12.2007, the Ld. ASJ directed the file to be put up before special designated court of CBI and the Ld. Special Judge, CBI when received the file on 03.01.2008 noted that new chargesheet has been filed and directed it to be checked and registered. Therefore, it cannot be said by any stretch of imagination that there were two charge sheet filed, one filed before Ld. ASJ, New Delhi and other before CC No.16/19 & ID No.171/19 Page 92 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Ld. Special Judge, CBI. This is a very feeble argument and liable to be rejected as at no point of time, the accused/Ld. Defence Counsel agitated that there were two chargesheets filed in the present case. Further, no other chargesheet other than the present one has seen the light of the day nor any such evidence even remotely direct or indirect has been shown or adduced that there existed any other chargesheet than the present one.
167. So far as the contention that the CBI has filed the documents surreptitiously or different set of documents, is concerned, the said contention is based on the premise that vide order dated 28.12.2007, the documents mentioned at Serial No. 1, 5, 8, 11, 14,16, 17, 19, 20, 21, 22, 23, 25, 27, 29, 30, 31, 32, 36, 40 to 56 were filed and remaining documents were undertaken to be produced before the concerned court. As such, Ld. Defence Counsel would argue that the documents in D13 which contained the resignation letters and refund receipts were not filed along with the chargesheet as is evident from the ordersheet dated 28.12.2007 and D13 and other documents have been filed by the CBI behind the back of the accused and without notice of the Court. This aspect was also raised in the application moved by A1 P.N. Sharma under Section 311 Cr.P.C. and it was dealt with by observing that an application was moved by A2 B.M. Sethi (since deceased) on 25.09.2008 for supplying deficient copies which included D1 to D6, D8, D11 to D14, D17 to D30 and D40 to D57. The said deficient copies were supplied to A2 B.M. Sethi (since deceased) vide order dated 28.01.2009 and the copies of remaining two accused A1 P.N. CC No.16/19 & ID No.171/19 Page 93 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Sharma and A3 M.P. Sharma were reported to be complete. Therefore, it could not be said that these documents were filed by the prosecution surreptitiously or without notice of the Court. At no stage of the trial, accused raised any such contention that he had not received the said documents which were supplied to A2 B.M. Sethi (since deceased). The documents which A1 P.N. Sharma has claimed to have been filed unauthorizedly by the prosecution has been exhibited during the statement of prosecution witnesses but no such objection was taken at that time also.
168. Further, while perusing the record, it has transpired that vide order dated 28.12.2007, the Ld. ASJ, New Delhi directed to put up the matter before Ld. Special Judge, CBI for 03.01.2008 for consideration and to produce the remaining documents before the concerned Court. On the left margin of the ordersheet dated 03.01.2008, there is a noting dated 16.02.2008 of the Ahlmad staff which reads as "the documents and PWs statements received, list attached in chargesheet". It appears that before 18.02.2008, when the Ld. Special Judge, CBI on receipt of chargesheet vide order dated 03.01.2008 had directed the documents to be filed and put up the matter for 18.02.2008, the IO/prosecution had submitted the remaining documents with the Court staff for which a noting has been made by the court staff on the left margin of the ordersheet dated 03.01.2008. As such, on the basis of the records and documents, the Court took cognizance of the offences vide order dated 18.02.2008 and summoned the accused persons. Therefore, the contention of Ld. CC No.16/19 & ID No.171/19 Page 94 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Defence Counsel cannot be accepted that the prosecution has submitted two set of chargesheet and two set of documents surreptitiously and without the knowledge of the Court or that the same were not supplied to A1 P.N. Sharma.
169. Even it is surprising that not only A1 P.N. Sharma took any such plea in his statement recorded under Section 313 Cr.P.C. that the membership register Ex.PW10/C is forged and some different register. Similarly, the file containing the resignation letters and share money receipts D13 Ex.PW54/M (Colly) are not the same resignation letters and share money receipts as sought to be set up through the evidence of DW1 & DW2 but when register of members D40 Ex.Pw10/C and file D13 Ex.PW54/M (Colly) was put in his statement, he stated the same to be a matter of record. It clearly shows that the plea set up through the statement of DW1 & DW2 that register of members D40 Ex.PW10/C and file D13 Ex.PW54/M (Colly) containing the alleged resignation letters and receipts are not the same record is an afterthought, concocted and malafide.
170. The Ld. Defence Counsel has also taken an exception that during statement of PW22, the photocopy of resignation letter and receipt were exhibited as Ex.PW22/C and Ex.PW22/D respectively and the said resignation letter did not contain Q mark, while the original thereof bears the Q mark and it suggests that there were two set of documents. During the statement of PW22, photocopy of resignation letter dated 06.09.1997 placed in file D13 running page 55/C was exhibited as PW22/C. The said photocopy does not bear Q mark while the CC No.16/19 & ID No.171/19 Page 95 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 alleged resignation letter of PW22 Raj Narayan Sharma in file D13 Ex. PW54/M (Colly), there is Q mark i.e. Q73 & Q74. The Ld. Prosecutor has stated that the Q mark is put by the Investigating Officer at the time of forwarding the documents to the GEQD for expert Opinion and the photocopy of the said resignation letter dated 06.09.1997 was made before sending it to the GEQD and therefore it did not bear Q mark and further inadvertently the photocopy of resignation letter Ex.PW22/C was shown to PW22 while original resignation letter Ex.DW1/7 was also on record. I find justification in the above submission of Ld. Prosecutor. The original resignation letter Ex.DW1/7 (D13) purported to be of PW22 Raj Narayan Sharma bears Q73 against his signature and Q74 against his name and there is a seal of Govt. Examiner Questioned Documents. It is quite possible that the photocopy of resignation letter Ex.PW22/C was made by the IO before sending it to the GEQD for expert opinion and, therefore, the photocopy Ex.Pw22/C did not bear the Q mark and at the time when the original resignation letter Ex.DW1/7 was sent to the GEQD, the IO put the questioned mark on the signature and name of Raj Narayan Sharma which was to be compared with the specimen signature of Raj Narayan Sharma. This Court has seen the photocopy of Ex.PW22/C i.e. resignation letter of PW22 Raj Narayan Sharma and the original Ex.DW1/7 which has been exhibited during the evidence of DW1 Arjun Singh and the same are identical documents.
171. The other contention of Ld. Defence Counsel is that date 16.10.97 is written on the refund receipts of Dinesh Kumar, CC No.16/19 & ID No.171/19 Page 96 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 G.P. Gautam, Kartar Singh and Raj Narayan Sharma (D13) in pencil and hence the same are fabricated, but I do not find that if the date 16.10.1997 is written in these refund receipts in pencil, how they will ipso facto become fabricated by the prosecution and to be the different refund receipts other than lying in the case record of the Society i.e. D13. Similalry, mere overwriting in Ex.PW10/A regarding the date against the stamp of resignation accepted where there is overwriting in the year 1997 as earlier it was written 98 and thereafter 8 was overwritten by 7 making it to be 16.09.97 would not make out a case of fabrication of the record, more so when PW10 N.K. Suman has stated that he had resigned from the membership of the Society vide resignation letter dated 06.09.1997 Ex.PW10/A.
172. The Ld. Defence Counsel has also argued that the resignation letters of the members placed in file D13 Ex.PW54/M (Colly) bears a stamp of Hony. Secretary showing the date of resignation accepted under the initial of Hony. Secretary. He would argue that on 16.09.1997, since A1 P.N. Sharma was the Secretary of the Society, therefore if he had accepted the said resignations, his signatures should have been there on the stamp of resignation accepted. But it bears initials of someone and it shows that the said resignation letters are not the same resignation letters which were tendered by the members shown to have resigned in the meeting dated 16.09.1997. In this regard, Ld. Defence Counsel has also referred to the testimony of DW1 & DW2. DW1 has stated in his chief examination that the resignations were accepted by A1 P.N. Sharma who was the CC No.16/19 & ID No.171/19 Page 97 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 secretary of the Society on 16.09.1997. DW2 has stated that resignation used to be verified by Shyam Bihari Sharma and A1 P.N. Sharma and he stated that resignations letters filed in D13 do not bear signature of Shyam Bihari Sharma and A1 P.N. Sharma.
173. DW1 was crossexamined by Ld. Public Prosecutor and in his crossexamination he stated that he cannot identify initials of A1 P.N. Sharma as he did not put initials in his presence. He volunteered that he used to put full signatures. He further stated that he knows A1 P.N. Sharma because they both were associated with the society and apart from the same he had no connection with him. He could not say if A1 P.N. Sharma used to put initials also else where.
174. In view of the aforesaid statement of DW1, it is not proved that A1 P.N. Sharma did not use to put his initials and the initials on the resignation letters contained in file D13 Ex.PW54/M (Colly) as an acknowledgement of acceptance of resignation do not belong to A1 P.N. Sharma.
175. Similarly, statement of DW2 that the resignations of the members contained in file D13 Ex.PW54/M (Colly) do not bear signatures of Shyam Bihari Sharma and A1 P.N. Sharma is not reliable because in the crossexamination when he was shown meeting dated 16.09.1997 and was confronted with the signatures at point B, he stated that it might be of A1 P.N. Sharma. As such, this witness was even not sure about the signature of A1 P.N. Sharma on the meeting dated 16.09.1997. Furthermore, he stated in the later part of his crossexamination CC No.16/19 & ID No.171/19 Page 98 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 that he will not be able to identify the initials of A1 P.N. Sharma and he could identify if there is full signature of A1 P.N. Sharma. He further stated that he cannot identify the initials put on the resignation letters. He further stated that Initials on the resignation letters are not of A1 P.N. Sharma and he used to put full signatures.
176. The aforesaid statement of DW2 shows that at one hand the witness is not able to identify the signatures of A1 P.N. Sharma even when the signatures were full and on the other hand he claims that A1 P.N. Sharma used to put full signatures and therefore the initials on the said resignation letters are not of A1 P.N. Sharma. He was also not in a position to identify initials of A1 P.N. Sharma. Thus, it cannot be said that A1 P.N. Sharma has been able to establish that he did not use to put initials and for that reason only the resignation letters in the file D13 Ex.PW54/M (Colly) do not bear his signatures or are the different resignation letters which were actually submitted by the above members.
177. Be that as it may. There is no conclusive evidence that initials on the resignation letters contained in file D13 Ex. PW54/M (Colly) are of A1 P.N. Sharma. Furthermore, even if the said resignation letters were not accepted by A1 P.N. Sharma as shown to be, it cannot be said that the case of the prosecution is falsified that the signatures of the members on the resignation letters and refund receipts have been forged by A1 P.N. Sharma in view of the clinching evidence discussed hereinabove. Initials on the stamp mark "resignation accepted"
CC No.16/19 & ID No.171/19 Page 99 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 on the resignation letters contained in file D13 Ex.PW54/M (Colly) of the above members may or may not be of A1 P.N. Sharma and in the absence of any concrete evidence and GEQD opinion, though no definite finding can be given but that will not make a dent to the case of the prosecution that the signatures of Mam Chand Rai Jain, Surender Mohan and Raj Narayan Sharma on the resignation letters and refund receipts have been forged by A1 P.N. Sharma.
178. Hence, the contention of Ld. Defence Counsel that two set of documents or charge sheet were filed by the prosecution or that the membership register Ex.PW10/C and resignation letters contained in file D13 Ex.PW54/M (Colly) are different documents is without any basis and liable to be rejected.
179. In view of aforesaid discussions, the prosecution has successfully proved that A1 P.N. Sharma has forged the signatures of PW22 Raj Narayan Sharma on the proceedings of the GBMs/Executive Body meetings and also on the resignation letters and share money receipts of Sh.Mam Chand Rai Jain, Surender Mohan and Raj Narayan Sharma.
180. Now, it has to be seen that what had transpired in the proceedings of the GBMs/Executive Body meetings so manipulated by A1 P.N. Sharma by forging the signatures of PW22 Raj Narayan Sharma and what was its impact on the functioning of the Society.
181. In the General Body meeting dated 26.04.1984 Ex.PW11/A at point Q3, the signature of Raj Narayan Sharma CC No.16/19 & ID No.171/19 Page 100 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 has been forged by A1 P.N. Sharma. In the said meeting, share certificates were handed over to the members who had attended the said meeting.
182. In the Executive Committee meeting dated 26.06.1984 at point Q5, the signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, it was decided to add the names of new members as per the applications received and to increase the executive members of the Society so that the allocation of the Society work may be distributed properly. It was also decided that the treasurer of the Society Chander Prakash would prepare the cash balance and expenditure statement of the year and the same will be maintained in the ledger and cash book for necessary audit etc.
183. In the Executive Committee Meeting dated 25.09.1984, signature of Raj Narayan Sharma at point Q7 has been forged by A1 P.N. Sharma. In the said meeting, address of the Society was changed to 2320, Gali Chhoti Pahar Wali, Dharampura, Delhi.
184. In the General Body Meeting dated 29.03.1986 Ex.PW22/E at point Q13 signature of Raj Narayan Sharma at point Q7 has been forged by A1 P.N. Sharma. In the said meeting, decisions regarding election and audit of the account of the Society were taken. 1/3rd managing committee members were elected. Raj Narayan Sharma was shown to have been elected as executive member.
185. In the Executive Body Meeting dated 27.04.1986 CC No.16/19 & ID No.171/19 Page 101 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Ex.PW15/A at point Q15, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, transfer of membership of Sh. B.K. Pandey in favour of his elder brother Sh. R.K. Pandey was accepted. Other decisions were taken regarding stationery and pursuing the matter with RCS office regarding approval of list of members.
186. In the Executive Body Meeting dated 27.07.1986 Ex.PW22/F at Q17, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, decisions taken in the last meeting were approved unanimously. The members to be approached to submit the annual subscription of Rs. 25/ per member to meet the miscellaneous expenditure of the Society and it was decided to hold the next executive managing committee meeting in the last week of December 1986.
187. In the Management Committee Meeting dated 24.03.1987 Ex.PW22/G at Q19, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, it was decided to conduct the election on 19.04.1987. P.N. Sharma was appointed as Election officer. Cashier was authorized to keep Rs. 300/ with him to meet the unforeseen expenditure of the Society.
188. In the General Body Meeting dated 19.04.1987 Ex.PW15/B at Q22, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, election was shown to have been conducted by election officer P.N. Sharma. Audit of the account was also approved upto date. It was agreed to subscribe the funds for the Society @ Rs. 150/ per member to CC No.16/19 & ID No.171/19 Page 102 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 meet the general expenditure.
189. In General Body Meeting dated 17.04.1988 Ex.PW11/B at Q28, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, Sh. Raj Narayan Sharma was shown as Election Officer. The members decided to continue with the present Managing Committee.
190. In General Body Meeting dated 26.01.1991 Ex.PW10/A1 at Q35, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, decision taken in previous meetings were approved. Resignations of previous executive body members were accepted and new members were elected unopposed. Sh. Raj Narayan Sharma was shown to have been elected as one of the executive members.
191. In Executive Body Meeting dated 01.12.1991 Ex.PW22/H at Q37, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, it was decided to hold general body meeting on 31.01.1992 to elect new executive body.
192. In the General Body Meeting dated 31.01.1992 Ex.PW10/B at Q39, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, election was shown to have been conducted by which new executive body was elected. Raj Narayan Sharma was appointed as Chairman to hold the election.
193. In Executive Body meeting dated 30.06.1992 Ex.PW22/J at point Q43, signature of Raj Narayan Sharma has CC No.16/19 & ID No.171/19 Page 103 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 been forged by A1 P.N. Sharma. In the said meeting, it was decided to submit list of members in the office of Registrar for onward submission to DDA.
194. In Executive Body meeting dated 25.02.1993 Ex.PW22/K at point Q45, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In the said meeting, it was decided to retire 1/3rd member of executive body including Raj Narayan Sharma. The resolution for the audit for the year 1992 93 of the account was passed and the Treasurer was asked to get the account audited at the earliest for the last three years.
195. In General Body Meeting dated 31.03.1993 Ex.PW22/L at point Q47, signature of Raj Narayan Sharma has been forged by A1 P.N. Sharma. In this meeting, the resolution passed by the executive body during the last financial year was approved. The General Body passed the account tabled by the Treasurer. Protem President was nominated for conducting fair election of three executive members retired in rotation.
196. Now, it has to be seen that what is the impact of forgery of GBMs/Executive Body meetings.
197. The Ld. Prosecutor has vehemently contended that A1 P.N. Sharma cheated the RCS office and the DDA in two phases. Firstly, at the time when he forged the GBMs/Executive Body meetings. by forging the signatures of members showing them to have attended the said meetings which in fact they had not done so; and in second phase when A1 P.N. Sharma sent the forged list of enrollments and resignations vide letter dated CC No.16/19 & ID No.171/19 Page 104 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 03.12.1997 Ex.PW7/C and thus induced the RCS office to forward the manipulated list of members to the DDA for allotment of land on the basis of which finally the DDA allotted the land to the Society. He contended that as per DCS Act, 1972 and rules framed thereunder, a Cooperative Group Housing Society is required to hold GBMs/Executive Body meetings. from time to time, conduct election, audit the accounts annually. He further contended that by forging the signature of members of the executive committee of the Society, A1 P.N. Sharma induced the RCS office to believe that the Society was properly working, the elections were held regularly, financial condition of the Society was sound as the accounts were audited properly and duly passed and approved in the GBMs/Executive Body meetings and thus cheated the RCS office to forward the list of members to the DDA for allocation of land. He further contended that had the RCS office not been induced by the aforesaid acts, the Society would have been brought under liquidation under Section 63 (2) (b) of the DCS Act,1972. Ld. Prosecutor further submitted that A1 P.N. Sharma used the forged documents as genuine i.e. the records of meetings, audit report, proceeding register etc. which he submitted to the RCS office and thus A1 P.N. Sharma committed offences punishable under Section 420, 468 & 471 of the IPC.
198. Before proceeding further, it would be relevant to discuss relevant provisions of the Delhi Cooperative Societies Act, 1972 and the Delhi Cooperative Societies Rules 1973; under the Indian Penal Code and the Prevention of Corruption Act, CC No.16/19 & ID No.171/19 Page 105 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 1988.
The Delhi Cooperative Societies Act, 1972 Annual General Meeting of the Society As per Section 28 of Delhi cooperative Societies Act, 1972, every cooperative society shall within a period of six months since date fixed for making up its account for the year call a general meeting of its members for the purpose of :
approval of programme of activities for the ensuring year election of managing committee consideration of audit report and the annual report disposal of the net profit and consideration of any other matter Elections of Management Committee As per Section 31 of the DCS Act, a society is required to conduct election of the members of the managing committee of the society, at least once in every three years. As per Section 28, managing committee is the final authority to vest in the general body of the members but where the byelaws, permit, a smaller body of delegates of members, elected or selected in accordance with the byelaws, shall exercise such powers of general body as prescribed in Schedule 2 of DCS Rules 1973 wherein it is mentioned that the committee in office shall meet 45 days in advance of the date of expiration of its term and by a resolution determine the date, time and place for conveying a GBM for the conduct of election.CC No.16/19 & ID No.171/19 Page 106 of 145
State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Audit of the Society Every year audit of the society is mandatory to be conducted either by RCS or a person authorized by him. Account of each CGHS is required to be audited at least once in a year as per Section 53 of the DCS Act, audit is conducted either by RCS himself or by a person authorized by him by general or special order in writing. Audit report gives the position regarding receipt of all required information, explanation, balance sheet and profit and loss account prepared in conformity with the law giving therein the true account of state of affairs of the society and material impropriety or irregularity, if any, in the expenditure.
Winding up of the Society In case of non adherence and non abiding of the aforesaid provisions regarding audit, elections and GBM by a cooperative society for many years, it is treated as defunct and proceedings under Section 63 (2) for winding up of the society are initiated. Rule 94 of the DCS Rules provided for procedure of issuance of winding up order. Under this procedure, the Register is required to give an opportunity to society to show cause against the winding up order. Such notice should also to give the ground on which the order under Section 63 is proposed to be made. After 15 days of issue of such notice, if no reply is received from the society, the Registrar shall proceed to pass the winding up order u/s 63 of DCS Act. After the issue of this order, a liquidator is appointed under Section 66 of the Act which concludes the liquidation proceeding and finally winds up the society as CC No.16/19 & ID No.171/19 Page 107 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 mentioned in Section 67.
Provisions under the Indian Penal Code Section 120A IPC [criminal conspiracy] (1) there should be an agreement between the persons (who are alleged to conspire), and (2) the agreement should be
(a) for doing of an illegal act, or
(b) for doing by illegal means an act which may not itself be illegal.
(3) some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
For the proof of criminal conspiracy The essence of criminal conspiracy is an agreement to do an illegal act such an agreement can be proved by direct evidence or by circumstantial evidence or by both. The direct evidence to prove conspiracy is rarely available. Therefore, circumstances proved before, during and after the occurrence have to be considered to decide on the complicity of accused.
Section 420 IPC reads as under : "Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
199. As such, the necessary ingredients which are CC No.16/19 & ID No.171/19 Page 108 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 required to be fulfilled to prove the offence punishable under Section 420 IPC are:
(i) deception of any person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted
(ii) such person acted upon on such inducement in consequence of his being deceived by the accused.
(iii) the accused acted fraudulently or dishonestly when so induced that person.
(iv) the person so induced suffered wrongful loss and correspondent wrongful gain to the accused Section 468 of the IPC provides as under: Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either for a description for a term which may extend to seven years, and shall also be liable to fine.
200. Thus, the necessary ingredients for proving the offence punishable under Section 468 IPC are
(i) that the document is a forged,
(ii) the accused forged the document
(iii) he did, as above, intending that the forged document would be used for the purpose of cheating.
CC No.16/19 & ID No.171/19 Page 109 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Section 471 IPC reads as under: Using as genuine a forged document or electronic record - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
201. Thus, the necessary ingredients for proving the offence punishable under Section 471 IPC are
(i) fraudulent or dishonest use of a document or electronic record as genuine.
(ii) knowledge or reasonable belief on the part of the person using the document or electronic record that it is a forged one.
The Prevention of Corruption Act, 1988 Sec 13(1)(d) of the Prevention of Corruption Act 1988 Criminal misconduct by a public servant Section 13(1)(d)(i) if Public Servant by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or Section 13(1)(d)(ii) if Public Servant by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or Section 13(1)(d)(iii) if Public Servant while holding office as a public servant, obtains for any person any valuable CC No.16/19 & ID No.171/19 Page 110 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 thing or pecuniary advantage, without any public interest. [N.B (1) All the three clauses are independent and distinctive to constitute ingredients of offence u/s 13(1)(d), the acts (I) or (ii) above need not be in discharge of his duties.]
202. Perusal of the RCS file containing official note sheets and documents pertaining to Karuna Vihar CGHS (D16) Ex.PW25/A shows that vide note dated 29.10.1986, the then Dealing Assistant placed a Show Cause Notice for signature of JRCS to be issued to the Society for non submission of final list of members for its onward transmission to the DDA for allotment of land and put up the said note to then AR (NGH) who approved the Show Cause Notice on 29.10.1986 and marked the same to JR (NGH) who approved the same on 30.10.1986. Vide note dated 20.11.1986, the then Dealing Assistant sought further orders from the then AR (NGH) as Show Cause Notice issued to the Society was received back unserved with remarks "No such person in this address" and the then AR (NGH) directed the Dealing Assistant to visit the available address of the Society and to report by 27.11.1986. It is further transpired from the note dated 18.01.1989 put up by the Dealing Assistant to the AR (NGH) that the Secretary of the Society informed the RCS Office about the change of address of the society vide letter dated 20.09.1985 and submission of final list of members in the RCS office on 20.09.1985 for allotment of land by DDA, but the copies of the final list of the members were not found in the office record of the RCS. It is further revealed from the said note CC No.16/19 & ID No.171/19 Page 111 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 that Sh. G.K. Pandey, the Secretary of the Society attended the RCS Office and promised to submit MC resolution, NOC from landlord regarding change of the office address and duly filled affidavit by Secretary of the Society for approval of change of address and final list of members for land allotment within 15 days i.e. upto 02.02.1989. The then Dealing Assistant vide note dated 15.03.1990 put up to AR (NGH) informed that the requisite record was not submitted by the Secretary of the Society as promised and proposed to send a letter to the Society asking them to appear in the RCS office for record verification regarding change of office address and approval of final list of members. The AR (NGH) vide his note dated 15.03.1990 observed that the Society has failed to comply the directions of the RCS office to submit the requisite records despite all concessions extended to it and proposed the then DR (GH) to either issue show cause notice or to give final opportunity to the Society to submit the requisite records. The DR (GH) on 16.03.1990 directed to give final opportunity to the Society to submit the requisite records. Accordingly, a Show Cause Notice was proposed to be issued to the Society through registered post which was allowed to be issued by DR/GH on 31.03.1990.
203. Further note dated 23.04.1990 reveals that A1 P.N. Sharma and Sh. B.K. Pandey, President/ Secretary of the Society attended the RCS office in response to the office letter No. 1193 dated 31.03.1990 regarding approval of final list of members. They also produced registered byelaws, certificate, applications, intensive report, previous election papers. It was recorded in the CC No.16/19 & ID No.171/19 Page 112 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 said note that the Society did not produce the original proceeding register, membership register, latest audit and election position and President Sh. B.K. Pandey and Secretary Prem Narayan promised to produce the original records of the Society with the latest audit and election information along with necessary enclosures within 15 days from 08.05.1990 positively and if they failed to produce the complete original records, it was recommended to initiate liquidation proceedings immediately. The said note dated 23.04.1990 also bears the signatures of A1 Prem Narayan Sharma as Secretary and Sh. B.K. Pandey as President of the Society on the left margin of the said note. The said note was approved by AR (GH). The note dated 09.07.1990 of the then Dealing Assistant, however, reveals that none came forward from the Society to produce the original records by 08.05.1990 as promised by the President and the Secretary of the Society who had personally appeared on 23.04.1990 and the Dealing Assistant sought further orders from AR (NGH) who granted final opportunity to the Society vide his order dated 09.07.1990 to submit the requisite records. Accordingly, final reminder was proposed to be issued to the Society by the then Dealing Assistant vide note dated 10.07.1990, which proposal was allowed by the then AR (NGH) on the same date. Note of Dealing Assistant dated 27.09.1990 further reveals that the reminder issued to the Society for appearing on 27.07.1990 was received back with remarks that receiver was not available and the Dealing Assistant sought further orders from AR (NGH) who on 04.10.1990 ordered the Dealing Assistant to make out a self contained note about latest position.
CC No.16/19 & ID No.171/19 Page 113 of 145State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022
204. The further note of then Dealing Assistant dated 27.02.1991 shows that the then AR (NGH) allowed the final reminder to be issued to the Society for verification of record and requesting for election. However, the said reminder also received back with postal remarks that receiver was not found available after making several visits as per note of the Dealing Assistant dated 08.06.1991 and he sought further orders. The then AR (NGH) vide his note dated 11.06.1991 made a proposal to DR (GH) to issue notice under Section 63 (2) of the DCS Act to the Society, however DR (GH) vide his note dated 24.06.1991 ordered the Dealing Assistant to put up the latest position of audit of the Society. Accordingly, the Dealing Assistant vide his note dated 25.06.1991 reported that, "Audit of the Society is complete upto 31.03.1990 as report placed on the file. The accounts were audited for 7 years i.e. 198390. From the report, it reveals that last election was held on 29.12.89. But it is mentioned in the report by the auditor that election file was not produced at the time of his visit. During the period of audit there was 22 new members made by the society but society had not informed about the same." The then AR (NGH) directed the Dealing Assistant vide his note dated 27.06.1991 to issue final reminder to the society at its both addresses. Accordingly, reminders were issued to the Society.
205. Vide note dated 12.09.1991 of the Dealing Assistant, it was observed that the letter issued to the Society at its Pitampura address was received back with the remarks that 'No such person at the given address after making several visits CC No.16/19 & ID No.171/19 Page 114 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 and the letter addressed at Dharampura, Delhi6 was delivered and received as AD slips is placed on the file but no reply received from the society till date. The Dealing Assistant also reported that audit of the society is completed upto 31.03.1990, the accounts were audited for first time i.e. 7 years 198390 and there is no information about election in the file since registration and he proposed to initiate action under Section 63 (2)(b) of the DCS Act. However, the then AR (NGH) ordered the Dealing Assistant to indicate the financial position of the Society and accordingly the Dealing Assistant vide note dated 08.10.1991 informed that as per audit report placed on file, financial position of the Society is very poor.
206. Further note dated 28.10.1991 reveals that copy of agenda notice was submitted by the Society vide Diary No. 4939 in which it is mentioned that GBM will be held on 20.09.1991 & election of the management committee will be held in the same. It was proposed to issue a letter to the Society asking submission of relevant papers regarding election which proposal was accepted by AR (NGH) on 29.10.1991.
207. It is further transpired from the note dated 22.05.1992 of the then Dealing Assistant that a letter vide Diary No. 1407 dated 04.05.1992 was received from the Secretary of the Society whereby he submitted election documents in response to letter dated 30.10.1991 issued by the RCS Office whereby the Society was directed to produce the same. It was further noted that another letter vide Diary No. 1409 dated 04.05.1992 was received from the Secretary of the Society CC No.16/19 & ID No.171/19 Page 115 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 informing that name of the Society was changed from Neelkanth CGHS to Karuna Vihar CGHS and the suspense account of the society is required to be changed/transferred in the name of Karuna Vihar CGHS and accordingly the bank account opening form was enclosed along with the said letter along with resolutions, list of MC for its attestation. The Dealing Assistant accordingly placed account opening form for its attestation and the then AR (NGH) vide his note dated 22.05.1992 ordered to call the concerned office bearer of the Society.
208. Thereafter, there was no development in the file for about 5 years and then there is a note dated 18.06.1997 of the then Dealing Assistant who as per the prosecution was A3 M.P. Sharma and he recorded that the then AR vide his order dated 22.05.1992 had ordered to call the concerned office bearer to verify the signature of bank account, the last GBM was held on 20.09.1991, the audit is pending since 01.04.1990, the list of members is also lying unverified for default on the part of the society in non production of records and hence he proposed to issue show cause notice to the Society under Section 63 (2) (b) of the DCS Act for winding up of the Society. However, the then AR (NGH) who as per the case of prosecution was A2 B.M. Sethi (since deceased) vide his note dated 20.06.1997 directed the Dealing Assistant to send a letter to the Society for production of records of audit, election and membership to verify the enrollments/resignations before initiating the action under Section 63(2)(b). The letter was accordingly placed by the Dealing Assistant on 01.07.1997 and the same was approved by CC No.16/19 & ID No.171/19 Page 116 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 AR (N) and signed on 03.07.1997. The Dealing Assistant vide his further note dated 04.07.1997 reported that he visited the registered address of the society on 03.07.1997 but no office bearer was found there and accordingly he issued a letter to the society asking them to produce the record on 04.07.1997 and he proposed that letter dated 03.07.1997 may not be issued for some days.
209. Further note of the then Dealing Assistant dated 05.08.1997 shows that a letter vide diary No. 638 dated 04.07.1997 was received from the Secretary of the Society whereby he enclosed the list of members for verification and onward transmission to DDA for allotment of land. The then AR (North) ordered the Dealing Assistant to check the list carefully and report. The Dealing Assistant accordingly vide note dated 16.08.1997 reported that, "records of the society have been verified. There were 60 promoter members in the society. Since then 34 members have resigned and 50 members have been enrolled by the society from time to time. The last election was held on 23.02.97 and the audit is complete upto 31.03.97. Present strength of society is 6034+50=76". The Dealing Assistant has also mentioned the name of those 76 members and further reported that, "The list of resigned and enrolled members is flagged. The signatures of resignee have been tallied and are in order. All the resignee have been paid back their deposit by cash." The Dealing Assistant accordingly proposed to send the list of 76 members to DDA for allotment of land. The then DRCS (North) vide his note dated 29.08.1997 directed the AR CC No.16/19 & ID No.171/19 Page 117 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 (North) to report (1) if the GB Meetings are regular and as per procedure; (2) whether audit of the society is being done regularly; (3) confirm that audit objection have been removed; (4) the resignee member have been refunded their money in time and in a prescribed manner and (5) there is no membership dispute and any court case pending against the society.
210. The note dated 01.09.1997 of the Dealing Assistant records in detail about the compliance of the queries raised by DRCS vide his note dated 29.08.1997.
211. The note dated 05.09.1997 reveals that the list submitted for approval and to be forwarded to DDA proposed by Dealing Assistant was approved by the RCS Gopal Dixit on 09.09.1997.
212. The note dated 20.03.1998 reveals that a list was received from Secretary of the society regarding approval of 25 resignations and 25 enrollments. The Dealing Assistant proposed to ask the Society to attend the office for verification of record on 06.04.1998. The same was approved by AR (North).
213. The note dated 30.04.1998 of the Dealing Assistant records that the society was called on 06.04.1998 for verification of record regarding resignation / enrollment but none appeared. AR (North) directed to issue reminder to the society. There is another note dated 21.05.1998 by the Dealing Assistant which records that nobody turned up on 20.05.1998 for verification of record. List of members as on 31.03.1998 is also not sent by society. The election is due w.e.f 23.02.1998. It was proposed to CC No.16/19 & ID No.171/19 Page 118 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 issue a requisition, final reminder for production of record and also to file list of members as on 31.03.1998. Thereafter, further note reveals that for some dates none appeared for the society. The note dated 08.10.1998 records that one Roshal Lal Secretary of the society has appeared on 08.10.1998 and produced some documents which were called vide letter dated 08.09.1998. There was still some deficiency and it was proposed by Dealing Assistant to call for further report. The said proposal was approved by AR (SW). Thereafter, Roshan Lal Secretary of the society appeared on 02.02.1999, 08.02.1999, 10.02.1999 and submitted the records but still the same was not complete. Vide the note dated 23.03.1999 of the Dealing Assistant it was proposed to give one more opportunity before closing the matter which was approved by AR (SW). The matter was kept urgent thereafter on few more dates and on 12.04.1999 Sh B.K. Goyal President of the society appeared alongwith original records. Since the same was not complete, he again appeared on 10.05.1999 and again on 28.06.1999 and ultimately Dealing Assistant put up a detailed noted dated 06.09.1999 showing the resignation cases, enrollment cases and ultimately it was recommended that only 43 enrollment cases be considered for allotment of flats as per the details on page 39/N of the noting file and same was approved.
214. As noted above, note dated 23.04.1990 at page 7/N records that A1 P.N. Sharma and B.K. Pandey, Secretary and President of the society attended the RCS office regarding approval of final list of members. On the said date, they had not CC No.16/19 & ID No.171/19 Page 119 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 submitted original proceeding register, membership register, latest audit and latest election position and 15 days time was granted and they were directed to appear on 08.05.1990 with the said records failing which the liquidation proceedings was to be initiated. The noting file further shows that the said record was not submitted and reminders and final opportunities were granted and vide note dated 18.06.1997, the dealing assistant A3 M.P. Sharma proposed to issue show cause notice under Section 63 (2)
(b) of the DCS Act, 1972 for winding up the society.
215. As such, it can be seen that there is only one note dated 23.04.1990 at page 7/N in which A1 P.N. Sharma had appeared before the RCS office and undertook to submit the complete records of the society. Thereafter, for about 5 years there is nothing to show that what happened and there is no concrete evidence that how and in what manner the documents were submitted to the RCS Office by the Society because the note dated 16.08.1997 records that the Dealing Assistant has verified the records of the Society but there is nothing on record in the noting file Ex.PW25/A maintained with the RCS office that which of the office bearer of the society had submitted the records of the Society which was verified by the Dealing Assistant as per note dated 16.08.1997. There is missing link and in the absence of any concrete evidence, it cannot be inferred that A1 P.N. Sharma as Secretary of the Society had submitted the forged records of the society which contained manipulated proceedings of the GBMs/Executive Body meetings.
216. In order to attract provisions of Section 420 IPC, CC No.16/19 & ID No.171/19 Page 120 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 one of the essential ingredients is that there should be an inducement by the accused to the person so induced to deliver the property or to do or omit to do something which he had not done otherwise unless so induced and the person so induced has acted upon on such inducement. As there is no evidence that it was A1 P.N. Sharma who had submitted the said records which contained manipulated GBMs/Executive Body meetings, it cannot be said that A1 P.N. Sharma had induced the RCS office to believe that the society was working properly and to get away from the process of winding up of the society under Section 63 (2) (b) of the DCS Act, 1972.
217. Though the Ld. Public Prosecutor submitted that since A1 P.N. Sharma was the Secretary of the Society, therefore it can be presumed that he had submitted the forged records. In this regard, statement of DW1 is relevant. During his crossexamination, DW1 has stated that noting at page 7/N part of D16 Ex.PW25/A bears signature of A1 P.N. Sharma at point A. He further stated that the President, Secretary and any other executive member used to communicate with RCS office and it was not necessary that only the Secretary of the society used to communicate with the RCS office. In view of the same, it was for the prosecution to prove by cogent and clinching evidence that the said records which contained forged and manipulated GBMs/Executive Body meetings and verified by the Dealing Assistant vide his note dated 16.08.1997 was produced by A1 P.N. Sharma. But no such oral or documentary evidence has surfaced and in the absence of same, it cannot be inferred that A CC No.16/19 & ID No.171/19 Page 121 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 1 P.N. Sharma being the Secretary of the Society had submitted the said records. Therefore, essential ingredients of Section 420 IPC are not fulfilled.
218. Similarly, as per provisions of Section 471 IPC, a person should use the forged documents as genuine which he had knowledge or reasons to believe the same to be forged one. Again in the absence of any evidence that A1 P.N. Sharma had submitted the said records containing the forged and manipulated GBMs/Executive Body meetings, he cannot be fastened with the liability of using the forged documents as genuine.
219. Now, coming to the second limb of argument of Ld. Prosecutor that A1 cheated the RCS office and the DDA when he submitted the list of forged members vide letter dated 02.07.1997 Ex.DW1/PX1 (Colly) and 03.12.1997 Ex.PW7/C.
220. Vide Ex.DW1/PX1 (Colly) which is the letter dated 02.07.1997, A1 P.N. Shamra had submitted the list of members for verification and onward transmission to DDA for allotment of land to the Registrar of Cooperative Society, Delhi. Along with the said letter, list of members is filed which contained 76 names and in the said list the names of those 11 members which the prosecution claimed to have denied their resignations letters are also included. Thus, it cannot be said that vide letter dated 02.07.1997 Ex.DW1/PX1 (Colly), A1 P.N. Sharma had submitted the forged list.
221. Vide letter dated 03.12.1997 Ex. PW7/C, A1 P.N. Sharma had submitted a list of 25 members who have resigned CC No.16/19 & ID No.171/19 Page 122 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 from the membership and another list of 25 members who were enrolled against the accruing vacancies to the RCS and requested to approve the list.
222. The Ld. Prosecutor has vehemently contended that after forging the resignation letters of the members, A1 P.N. Sharma has excluded their names from the list and falsely shown them as resigned and cheated the RCS Office in approving the said list which was a forged and manipulated list.
223. The list annexed with the letter dated 03.12.1997 Ex.PW7/C shows resignation of members which contains the names of Sh. Gyan Prakash Gautam at Serial No. 6, Sh. Dinesh Kumar at Serial No. 7, Sh. Raj Narayan Sharma at Serial No. 19, Sh. Kartar Singh at Serial No. 20 and Sh. N.K. Suman at Serial No. 22. While it has already been established that Sh. Gyan Prakash Gautam and Sh. Kartar Singh have not resigned from their membership and their resignation letters are forged, though GEQD did not opine that their signatures on the resignation letters were forged by A1 P.N. Sharma. However, the resignation letters and share money receipts in respect of Sh. M.C. Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma have been proved to be forged by A1 P.N. Sharma. But the question here is as to whether by submitting the said list vide letter dated 03.12.1997 Ex.PW7/C the RCS Office or DDA was induced and it led to approval of final list of members by RCS and consequently allotment of land by the DDA.
224. Perusal of the file D17 further reveals that when A1 P.N. Sharma vide letter dated 02.07.1997 Ex. DW1/PX1 CC No.16/19 & ID No.171/19 Page 123 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 (Colly) had submitted the list of 76 members of the society for verification and onward transmission to DDA for allotment of land and vide letter dated 15.09.1997, A2 B.M. Sethi, Assistant Registrar (North) (since deceased) had sent the said list to the Deputy Director (GH), DDA to the effect that the society has submitted a list of 76 members and after examination of the records, the said list was approved by the RCS office and further action regarding allotment of land may be taken by DDA. There is nothing on record that any fresh list was sent by A1 P.N. Sharma pursuant to the forgery of resignation letters, share money receipts and submission of list of 25 members vide letter dated 03.12.1997 Ex.PW7/C. It is also transpired from the noting file of the RCS Office Ex.PW25/A that vide note dated 21.05.1998 the then Dealing Assistant had recorded that nobody turned up on 20.05.1998 for verification of records, list of members as on 31.03.1998 had also not been sent by the society, the election is due w.e.f. 23.02.1998 and he proposed to issue final reminder for production of records and also to file list of members as on 31.03.1998. It is not in dispute that A1 P.N. Sharma had resigned from the membership of the Society on 15.06.1998 and thereafter new management committee had taken over the affairs of the Society. The note dated 08.10.1998 further shows that Sh. Roshan Lal, Secretary of the Society submitted the records in the RCS office and again he appeared and placed the records on various dates as noted hereinabove. Further, Sh. B.K. Goel, President of the Society produced the record on various dates as noted above and finally the list was approved on 06.09.1999 and was sent to DDA for allotment of land. Thus, it CC No.16/19 & ID No.171/19 Page 124 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 cannot be said that the RCS office was induced to approve the final list of members for allotment of land on the basis of the letter dated 03.12.1997 Ex.PW7/C and consequent to that, the land was allotted to the Soceity by the DDA. Rather the above proceedings would show that after A1 P.N. Sharma had resigned from his membership on 15.06.1998, new management committee had taken over and was producing the requisite records to the RCS office from time to time and thereafter the final list was approved by the RCS office and transmitted to DDA for allotment of land. Hence, it cannot be said that A1 P.N. Sharma has induced the RCS office for approving the final list of members on the strength of letter dated 03.12.1997 Ex.PW7/C and resultantly the allotment of land by the DDA to the Society.
225. For the similar reasons, as vide letter dated 03.12.1997 Ex.PW7/C, A1 P.N. Sharma had submitted only the list to the RCS office showing the names of resigned and enrolled members and at that time it did not contain the forged resignation letters and share money receipts of Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma, it cannot be said that A1 P.N. Sharma used the forged documents as genuine to attract the provisions of Section 471 IPC.
226. In view of the aforesaid discussions, the prosecution has not been able to prove its case against A1 P.N. Sharma for commission of offence punishable under Section 420 & 471 IPC.
227. As it has been held in the foregoing discussions that A1 P.N. Sharma has forged the signatures of PW22 Sh. Raj CC No.16/19 & ID No.171/19 Page 125 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Narayan Sharma on the proceedings of the GBMs/Executive Body meetings and also forged the signatures of Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma on the resignation letters and share money receipts, the charge of forgery is proved. This Court is conscious of the fact that charge under Section 420 IPC is not proved against A1 P.N. Sharma but for attracting the provisions of Section 468 IPC for which A1 P.N. Sharma has been charged, the conviction under Section 420 IPC is not a condition precedent. In other words, an accused can be convicted for the offence punishable under Section 468 IPC i.e. forgery of a document for the purpose of cheating even if he has not been found guilty for the offence punishable under Section 420 IPC.
228. As noted above, the necessary ingredients for attracting the provisions of Section 468 IPC are that there should be a forgery of a document and it should be done with the intention that the forged documents shall be used for the purpose of cheating.
229. In this case, as A1 P.N. Sharma was the Secretary of the Society and the GBMs/Executive Body meetings were manipulated to cheat the RCS office to induce that the Society was working properly as per provisions of the DCS Act, 1972 and rules framed thereunder and thus to prevent the Society from being put under liquidation under Section 63 (2) (b) of the DCS Act, 1972 and further the resignation letters and share money receipts were forged to cheat the RCS and the DDA to approve the final list of members by excluding the names of the genuine CC No.16/19 & ID No.171/19 Page 126 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 members who had not tendered their resignations and had not received their share money. Therefore, it can be definitely said that forgery of signature of Sh. Raj Narayan Sharma in the GBMs/ Executive Body meetings and forgery of signatures of Sh. Mam Chand Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma on the resignation letters and share money receipts were done by A1 P.N. Sharma with an intention to use the said documents for the purpose of cheating.
230. Section 468 IPC does not require that the accused has committed the offence of cheating and requirement of the Section is that the accused must have committed the forgery with the intention to use the forged documents for the purpose of cheating. Hence, the charge under Section 468 IPC is duly proved and A1 is held guilty for commission of offence punishable under Section 468 IPC.
231. The Ld. Defence counsel has argued that the charges framed in this case are defective. He submitted that no charge for substantive offences punishable u/s 420, 468, & 471 IPC has been framed and only the charge has been framed for criminal conspiracy punishable under Section 120 B IPC in respect of aforesaid offences.
232. However, this is a fallacious argument. This contention is based on the premise that A1 P.N. Sharma & A3 M.P. Sharma have been charged u/s 120 B read with 420, 468, 471 IPC r/w 13 (2) read with 13(1) (d) of the PC Act. A1 P.N. Sharma has been separately charged for the offence punishable u/s 420, 468, 471 read with 120B IPC. A3 M.P. Sharma has CC No.16/19 & ID No.171/19 Page 127 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 been separately charged for the offence punishable under Section 13 (2) read with 13(1) (d) of the PC Act read with Section 120 B IPC.
233. The Ld. Defence Counsel has formed the opinion that no charge for substantive offences has been framed against both the accused because in the substantive charge i.e. qua Sections 420, 468 & 471, Section 120B has also been added to be read with the substantive offences. Similarly, in the substantive charge under Section 13 (2) read with 13(1) (d) of the PC Act qua A3 M.P. Sharma, Section 120B has been added to be read with substantive offences. Had all the charges been for only criminal conspiracy punishable under Section 120B IPC as argued by Ld. Defence Counsel, then there was no need to frame the charge for the offences punishable u/s 420, 468, 471 qua A1 P.N. Sharma and separate charge qua A3 M.P. Sharma under Section 13 (2) read with 13(1) (d) of the PC Act because a combined charge qua both the accused persons for the offence punishable under Section 120B IPC was already framed. Moreover, the substance of the body portion of the three charges i.e. one combined charge qua A1 P.N. Sharma & A3 M.P. Sharma under Section 120B IPC read with Sections 420, 468, 471 IPC read with Section 13 (2) read with 13(1) (d) of the IPC Act and separate charges qua A1 P.N. Sharma under Sections 420, 468, 471 r/w Section 120B IPC and qua A3 M.P. Sharma under Seciton 13 (2) read with 13(1) (d) of the PC Act read with Section 120 B shows that the combined charge is for the criminal conspiracy qua both the accused in respect of commission of CC No.16/19 & ID No.171/19 Page 128 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 other offences and the separate charges qua A1 P.N. Sharma and A3 M.P. Sharma for substantive offences. Hence, the above contention that the charges are defective and the accused cannot be convicted for substantive offences is misconceived argument and is liable to be rejected.
234. Now, coming to the role of A3 M.P. Sharma in the commission of alleged offence.
235. At the outset, Ld. Defence Counsel has vehemently argued that A3 M.P. Sharma was posted as clerk in the RCS office, Delhi and he was not appointed as Dealing Assistant. He further submitted that Senior officers in the RCS Office used to take the work of dealing assistant from A3 M.P. Sharma and thus Ld. Counsel would argue that as and when A3 M.P. Sharma worked as dealing assistant, the same was only on the directions of the senior officers but A3 cannot be fastened with the duties and liabilities of a dealing assistant in the absence of his appointment as dealing assistant.
236. It would be relevant to discuss the statement of PW 2 Inspector Raja Chatterjee who has conducted the preliminary inquiry in this case and on his complaint, the FIR was registered. In his crossexamination, he stated that he did not remember what post A3 M.P. Sharma was holding at the time of his inquiry. He categorically stated that during his inquiry, the witnesses/officials of the office of cooperative societies told him about the role of dealing assistant accused M.P. Sharma. He did not remember whether from the records it was revealed that A3 M.P. Sharma has recommended the winding up of Karuna Vihar CC No.16/19 & ID No.171/19 Page 129 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 CGHS.
237. It is pertinent to note that during entire cross examination of PW2, no suggestion was given to the witness by the Ld. Counsel for A3 M.P. Sharma that A3 M.P. Sharma was not a dealing assistant in the RCS Office or during his inquiry the witnesses/officials from the RCS office had not told him about the role of Dealing Assistant A3 M.P. Sharma.
238. The prosecution has also examined PW57 Sh. Padam Dutt Sharma who got retired from the post of Deputy Registrar in the RCS office. He has identified the signatures of A3 M.P. Sharma on the note dated 18.06.1997 at page 17/N in the file D16 Ex. PW25/A (Colly). The Ld. Defence counsel has also not disputed the signature of A3 M.P. Sharma in the said note. Perusal of the same would reveal that A3 M.P. Sharma has made the said note in the capacity of Dealing Assistant. The Ld. Defence Counsel has also not disputed that the work of dealing assistant was taken from A3 M.P. Sharma by his senior officers and he has also not disputed the signature of A3 M.P. Sharma on the several notes during the period 19971998. Even if for the sake of arguments, it is accepted that A3 M.P. Sharma was only a clerk in the RCS office but not appointed as dealing assistant and as and when he was asked by the senior officers, he used to perform the duties of dealing assistant, he cannot escape from the duties and obligations of the dealing assistant when he was working in that capacity. Therefore, contention of Ld. Defence Counsel that A3 M.P. Sharma cannot be expected to perform the acts and duties as that of dealing assistant because he was not CC No.16/19 & ID No.171/19 Page 130 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 appointed as Dealing Assistant is neither plausible nor logical and hence rejected.
239. Now, coming to the allegations in the chargesheet against A3 M.P. Sharma that he made a favourable note dated 16.08.1997 at page 19/N that records has been verified while the records were manipulated and as such in criminal conspiracy with co accused persons he gave favourable recommendation which led to approval of the final list and allocation of land by the DDA to the Society.
240. At this stage, it would be relevant to note here again that vide note dated 18.06.1997, A3 M.P. Sharma recorded that GBM was held on 20.09.1991, the audit is pending since 01.04.1990, the list of members is also lying unverified for default on the part of the society in non production of record and he proposed to issue show cause notice u/s 63 (2) (b) of DCS Act for winding up the society. However, the said proposal was put in abeyance by A2 B.M. Sethi (since deceased) vide his note dated 20.06.1997. Vide note dated 04.07.1997, A3 M.P. Sharma further recorded that he visited the office address of the society but no office bearer or record was found there. Note dated 05.8.1997 made by A3 M.P. Sharma reads that a PUC from Secretary of society is received enclosing list of members for verification and onward transmission to DDA for allotment of land and A3 M.P. Sharma sought permission to examine the said record. A2 B.M. Sethi (since deceased) vide note dated 07.08.1997 approved to check and report. Thereafter, vide note dated 16.08.1997 at page 19/N and 20/N, A3 M.P. Sharma has CC No.16/19 & ID No.171/19 Page 131 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 submitted that the records of the society has been verified. The said note is the bone of contention and on the basis of said note, the prosecution has alleged in the chargesheet that A3 M.P. Sharma has given a favourable recommendation without verifying the records in conspiracy with coaccused persons and failed to find out the forgery of the documents. However, there is nothing on record to suggest that A3 M.P. Sharma was directed to physically contact the members, make field inspection, physically verify the records in the society. He was supposed to verify the records i.e. list of members submitted by the Secretary of the Society and received vide Diary No. 638 dated 04.07.1997 as recorded in the note dated 05.08.1997. There is also nothing to suggest that the said records were handed over to him by secretary or any other office bearer of the society in person to infer any malafide.
241. In this regard, statement of PW36 Sh. N.K. Sharma may be referred. He was joint registrar in the office of RCS from October 1997 to January 2000. He deposed that as a joint registrar, his duties were to look after the administrative channel but without specific delegation regarding disposal of matters independently. He stated that verification of records of group housing societies used to be done by the dealing staff of concerned zone under the supervision of Assistant Registrar.
242. In the crossexamination, he could not say if there is any written rule/circular as how verification of record of a group housing society is done. He stated that staff of RCS office did this verification with the help and assistance of office bearers of CC No.16/19 & ID No.171/19 Page 132 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 the society concerned who was bound to produce the records of the society meant for verification. He further stated that the office bearer of the society concerned used to produce the record of that society in the concerned zone in the RCS office. He further stated that it is not necessary that copies of such records were already available in the RCS Office. It depended upon the record to be verified. Verification of records included verification of the members who resigned and enrolled in the society. In case of resignation by some members, Inspector could be sent by the Zone concerned for verification if such member has actually resigned from the membership or not. Such inspector was to be appointed by the AR of Zone concerned. Personal verification was done about 10% at random of members who resigned from membership through Inspector. He did not remember if there was any written rule/notification in this regard. He categorically stated that there was no forensic tool available to the dealing assistant to check veracity of documents produced by the society in the RCS office. He admitted that duty of dealing clerk is to assist Assistant Registrar.
243. The other witness is PW37 Ms. Aruna Chaudhary who worked as Assistant Registrar from April 2006 to September 2007. She deposed that as AR, her duties were to receive the audit report from group housing societies registered in Delhi. In the crossexamination, she stated that panel of auditor used to audit account of group housing societies. None from these auditors used to be employee of RCS office. The auditor used to visit premises of the society concerned. Audit was not done CC No.16/19 & ID No.171/19 Page 133 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 while sitting in the office of RCS. A list of members used to be affixed along with the audit report by the auditor. It was duty of auditor to verify correctness of that list. That list included list of members who have already resigned and names of members who were newly admitted. She further stated that their duty was only to see if the documents are complete and not the correctness of report. Auditor were not working under her, they were independent. If the auditors found wrong they used to write their objections.
244. Another witness is PW38 Sh. M.S. Sharma who was posted as AR in the office of RCS from 31.01.2004 to December 2007. He had dealt with file of Karuna Vihar CGHS from 21.10.2004 to 08.06.2005 as he was having the additional charge of Assistant Registrar, North Zone. In his cross examination, he stated that no officer except dealing assistant worked under him as Assistant Registrar. He stated that it was not necessary for him to approve every noting made by dealing assistant. He used to see previous noting as well as earlier correspondence before making any further noting. He categorically stated that no scientific instrument was given to him to see correctness of any document.
245. From the aforesaid testimonies of prosecution witnesses, it can be deduced that office bearers of the society used to produce records of that society in the RCS office. It was not necessary that copy of such records used to be available in the RCS office. Even the staff of RCS office used to verify the records of the society with the help of the office bearer of the CC No.16/19 & ID No.171/19 Page 134 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 society concerned. No forensic tool was provided to the dealing assistant to check the veracity of the documents and the Inspectors could be sent for verification of resignation of some members. There was panel of Auditors who used to audit account of group housing society and their duty was to verify the list of members which are used to be affixed along with audit report and the list of members who had resigned and newly admitted.
246. In this case, there is nothing in the noting file Ex.Pw25/A (Colly) D16 that A3 MP. Sharma was appointed as Inspector to verify the resignation of the members or records of the society physically by visiting the office of the Society or the members of the Society. He has verified the records as submitted by the Society and there was no forensic tool available with him to check the veracity of the documents. Even as per PW37, there used to be auditors who were independent from the RCS office and their duty was to verify the correctness of the list containing names of members who have resigned and who were admitted. PW37 even went on to say to the extent that it was not their duty to see the correctness of the record but they were supposed to see if the documents are complete.
247. So in view of the aforesaid discussions, it cannot be said that A3 M.P. Sharma made favourable notes in conspiracy with other accused persons. A3 M.P. Sharma has only verified the records produced to him by the society. Even A3 M.P. Sharma vide his note dated 18.06.1997 pointed out the deficiencies in the working of the Society and proposed to issue show cause notice under Section 63 (2) (b) for winding up of the CC No.16/19 & ID No.171/19 Page 135 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 Society, though the said proposal was not approved by A2 B.M. Sethi (since deceased). Again vide note dated 04.07.1997, A3 M.P. Sharma recorded that he visited the registered address of the society on 03.7.1997 but no office bearer/record was there. So, it cannot be said that he concealed any fact or made any favourable recommendation. In the absence of any evidence directly or indirectly that A3 M.P. Sharma was in touch with office bearers of the society or that he knowingly received the forged records and thereafter made the favourable recommendations for any pecuniary gain for himself or for some other person, the charge of criminal misconduct and abuse of official position as public servant punishable under Section 13 (2) read with 13 (1) (d) of the PC Act, 1988 cannot be said to be duly proved.
CRIMINAL CONSPIRACY
248. The crucial question now arises for consideration is whether forgery in the records of the society was done by A1 P.N. Sharma in pursuance to any conspiracy as alleged by the prosecution and whether there was any connection between A1 P.N. Sharma & the officials of RCS namely A2 B.M. Sethi (since deceased) & A3 M.P. Sharma.
249. An agreement to commit an offence or an illegal act between two persons or more is the essence of conspiracy. Such an agreement is designated as criminal conspiracy. For appreciating the nuances of Section 120A r/w Section 120B of CC No.16/19 & ID No.171/19 Page 136 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 IPC which makes criminal conspiracy punishable in law, it is necessary to deal with various terms, used in Section 120A IPC.
250. The important words used in Section 120A are "agreement" between two or more persons, "offence" which is defined in Section 3(38) of the General Clauses Act, 1897 to mean any act or omission made punishable by any law for the time being in force. "Offence" is also defined in Section 2(n) of the Code of Criminal Procedure, to mean any act or omission made punishable by any law for the time being in force. Further the term used in Section 120A IPC is " illegal" which has been defined in Section 43 of IPC to the effect that the word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action, and a person is said to be "legally bound to do" when it is illegal for him to omit. Further, Section 32 & 33 of IPC defines an "act" means a series of acts and also includes illegal omission..."
251. A combined reading of the above makes it clear that to attract a criminal liability for the offence of criminal conspiracy under Section 120A r/w Section 120B of IPC, the following are to be proved: that two or more persons agreed to do, or cause to be done an illegal act (which is an offence or which is prohibited by law, or which furnishes ground for a civil action, OR an act which is not illegal but by illegal means (which is an offence or which is prohibited by law, or which CC No.16/19 & ID No.171/19 Page 137 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 furnishes ground for a civil action) Such agreements are designated as criminal conspiracy and if such an agreement is entered to commit an offence (any act or omission made punishable by any law for the time being in force), then that such agreement is also an independent offence.
252. In Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 (known as Indira Gandhi murder case) it was held:
"...Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can undoubtedly be proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.CC No.16/19 & ID No.171/19 Page 138 of 145
State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 It is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there is no need to be any express verbal agreement, it being sufficient that there was a "tacit understanding between the conspirators as to what should be done..."
253. In the case of State of Maharashtra & Ors. v. Somnath Thapa & Ors., (1996) 4 SCC 659, the Hon'ble Supreme Court observed that for a person to conspire with another, he must have knowledge of what the conspirators wanted to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve end or facilitate its accomplishment.
254. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394, it was held :
"... Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal CC No.16/19 & ID No.171/19 Page 139 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 agreement. (emphasis supplied)..."
255. In the case of Baliya v. State of MP (2012) 9 SCC 696, it was held:
15..........The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/ performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed....
17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can CC No.16/19 & ID No.171/19 Page 140 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
256. In the case of CBI v. K. Narayana Rao (2012)9 Scale 25), it was held: "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in the matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not CC No.16/19 & ID No.171/19 Page 141 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 supported by cogent and acceptable evidence."
257. From the proposition of law laid down in the aforesaid judgments, it comes out that in order to prove the conspiracy, prosecution is not required to prove the agreement and to adduce direct evidence of conspiracy that the parties came together and agreed to pursue the unlawful object. It is not necessary to prove that there was an express verbal agreement but what is necessary to show is that there was some sort of tacit understanding between the conspirators as to what should be done.
258. Keeping the aforesaid principles in mind, it has got to be seen if all accused persons or two or more of them were in criminal conspiracy to commit the offences involved in the present case.
259. In the present case, no doubt A1 P.N. Sharma was the office bearer of the Society since inception till his resignation from the membership of the Society in the year 1998. It has also been established that he forged the proceedings of Executive Committee Meetings/GBMs by forging the signatures of Raj Narayan Sharma and also forged the resignation letters and share money receipts of Sh. M.C. Rai Jain, Sh. Surender Mohan and Sh. Raj Narayan Sharma. As it has already been held that the prosecution has not been able to prove that A3 M.P. Sharma made any favourable recommendations in favour of the Society without verifying the records, therefore the prosecution was required to prove that there was prior meeting of mind in CC No.16/19 & ID No.171/19 Page 142 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 committing the forgery of documents by A1 P.N. Sharma or that he has forged the said documents in connivance with A2 B.M.Sethi (since deceased) & A3 M.P. Sharma, the RCS officials so that any favour can be obtained for the Society.
260. The circumstances in a case if taken together on their face value should indicate the meeting of mind between the conspirator for the intended object for committing an illegal act or an act which is not illegal but by illegal means. A few bits here and a few bits there on which the prosecution has relied cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts were done in furtherance of the object of conspiracy hatched. As it has already been noted that A1 P.N. Sharma along with B.K. Pandey had appeared in the RCS Office on 23.04.1990 for submitting the documents, but the records of the society were not complete and they sought further time to submit the same. Thereafter, the said record was not submitted within the stipulated time and there is nothing on record to show that A1 P.N. Sharma appeared in the RCS office and submitted the records to A3 M.P. Sharma. There is nothing on record to show that there was any meeting of mind or connection between them. There is also nothing to suggest that there was any pecuniary advantage or monetary gain involved in making the recommendation by A3 M.P. Sharma which he had made in the normal course of discharge of his official duties as Dealing Assistant. Therefore, in the absence of any incriminating evidence that there was any prior meeting of mind in commission CC No.16/19 & ID No.171/19 Page 143 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 of illegal act between the accused persons, the offence of criminal conspiracy cannot be said to be duly proved. Hence, charge for commission of offence of criminal conspiracy punishable under Section 120B read with Sections 420, 468, 471 IPC read with Section 13 (2) read with 13 (1) (d) of the PC Act is not proved against A1 P.N. Sharma and A3 M.P. Sharma.
CONCLUSION
261. As a sequel to my findings, A1 P.N. Sharma is convicted for the offence punishable under Section 468 IPC. However, he is acquitted for the offence punishable under Section 120B read with Sections 420, 468, 471 IPC read with Section 13 (2) read with 13 (1) (d) of the PC Act and substantive offences punishable under Sections 420 & 471 IPC read with Section 120B IPC.
262. A3 M.P. Sharma is acquitted of all the offences charged with i.e. offence punishable under Section 120B read with Sections 420, 468, 471 IPC read with Section 13 (2) read with 13 (1) (d) of the PC Act and substantive offences punishable under Section 13 (2) read with 13 (1) (d) of the PC Act read with Section 120B IPC.
263. Bail bonds furnished by the accused persons under Section 439 Cr.P.C. stand cancelled and their sureties are discharged.
264. A3 M.P. Sharma is required to furnish fresh bail CC No.16/19 & ID No.171/19 Page 144 of 145 State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022 bonds in compliance of Section 437A Cr.P.C. in the sum of Rs.25,000/.
Digitally signed by BALWANT BALWANT RAI BANSAL
RAI Date:
2022.12.23
Announced in the open Court BANSAL 14:29:02
+0530
on 22nd December, 2022
(Balwant Rai Bansal)
Special Judge (PC Act), CBI17,
Rouse Avenue Courts, New Delhi
CC No.16/19 & ID No.171/19 Page 145 of 145
State vs. Prem Narayan Sharma & Ors. Judgment dt. 22.12.2022