Delhi District Court
Been Placed On Esher Singh vs . State Of M.P. (2004) 11 Scc 585, on 25 January, 2016
State through CBI v. Srichand & others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 57/2008
ID No. : 02404R0004222008
FIR No. : RC 12(S)/2006/CBI/SCR-III/N.Delhi
U/Sec: 120B IPC r/w 420/468/471 IPC and
Section 13(2) r/w 13(1)(d) of PC Act 1988 &
and substantive offences thereto
Police Station: SCR-III/N.Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSES
1.SRICHAND S/o Late Sh. Hari Singh .........Accused No. 1 CBI No. 57/08 Page 1 of 45 State through CBI v. Srichand & others
2. MOHAN LAL S/o Late Sh. Ajmeri Lal .........Accused No. 2
3. BHUPINDER SINGH MANN S/o Sh. D. S. Mann .........Accused No.3
4. P.K.THIRWANI S/o Late Sh. Moti Ram Thirwani .........Accused No.4
5. ANNA WANKHEDE S/o Sh. Parnugi Wankhede .........Accused No. 5
6. GOPAL SINGH BISHT S/o Sh. Inder Singh Bisht .........Accused No.6
7. VED PAL SINGH S/o Late Sh. Kukum Singh .........Accused No. 7 CBI No. 57/08 Page 2 of 45 State through CBI v. Srichand & others
8. RAKESH BHATNAGAR S/o Late Sh. C.P.Bhatnagar .........Accused No. 8
9. NARAIN DIWAKAR S/o Late Sh. Chatti Lal .........Accused No. 9
10. AJIT SINGH S/o Sh. C.R.Dhiya .........Accused No. 10 Appearance : Sh. Harsh Mohan, Public Prosecutor for CBI Sh. Abhisekh Prasad, Advocate, counsel for A1, A2, A4, A5 and A9 Sh. Yatinder Singh, Advocate, counsel for A3 Sh. S. K. Bhatnagar, Advocate, counsel for A6 Sh. Anil Kumar, Advocate, counsel for A7 Sh. Vijay Bisnoi, Advocate, counsel for A8 Sh. Mohit Madhur, Sr. Advocate with Sh. Amish Dabas & Sh. Bader Mehmood, Advocates, counsel for A10 ORDER RESERVED ON : 07.01.2016 ORDER PRONOUNCED ON : 25.01.2016 CBI No. 57/08 Page 3 of 45 State through CBI v. Srichand & others ORDER ON THE POINT OF CHARGE :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That in pursuance of order passed by the High court of Delhi in Civil Writ Petition No. 10066/2004, FIR was registered after conducting preliminary inquiry.
(ii) It was alleged that the Group Housing Society namely 'Railway Line Staff Co-operative Group Housing Society Ltd.' (in short the Society) was registered on April 24, 1972 vide registration No. 121(H) having its registered office at Sabzi Mandi Railway Station, Delhi. It was alleged that the said Society was registered with 61 promoter members including the members of Managing Committee namely Mr. Prithvi Pal Singh, President; Mr. N.M.Bhagat, Vice-
President; Mr. L.K.Khanna, Secretary and Mr. Jagdish Singh, Treasure. It was alleged that the Society was not functioning and remained dormant since long.
(iii) It was alleged that during investigation it was revealed that during the year 2002, accused Srichand (A1) had entered into a criminal conspiracy with his co-accused Mohan Lal (A2), Bhupender Singh Mann (A3), Anna Wankhede (A5), Ajit Singh (A10) with an intention to get the said Society revived illegally, in conspiracy with the CBI No. 57/08 Page 4 of 45 State through CBI v. Srichand & others officials of the RCS office, Delhi namely P.K.Thirwani (A4), Gopal Singh Bisht (A6), Ved Pal Singh (A7), Rakesh Bhatnagar (A8) and Narain Diwakar (A9).
(iv) It was further alleged that in pursuance of the said conspiracy A1 had submitted a false letter dated May 15, 1980 to the Asstt. Registrar (Housing) intimating the detail of resigned and enrolled members of the Society.
(v) It was alleged that in pursuance of the said criminal conspiracy, accused Srichand (A1) got submitted another forged letter dated June 20, 1986 purported to be issued by Mr. R.K.Sharma, the then Secretary of the Society addressed to the Asstt. Registrar for change of address of the Society from Subzi Mandi Railway Station, Delhi to House No. 21-A, Gali No. 6-B, Molar Band Extn., Badarpur, Delhi-44. It was alleged that during investigation it was revealed that Mr. R.K.Sharma was a non-existent person.
(vi) It was further alleged that A1 with the help of his co- accused Mohan Lal (A2) and Anna Wankhede (A5) prepared forged proceedings register, membership register, resignation letters, receipts for refund of share money, membership applications for new members, affidavits of the resigned as well as new members. Subsequently, all the said records were submitted to the office of RCS for approval of freeze list of 116 members knowingly well that the said records were forged.
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(vii) It was further alleged that during investigation it was revealed that Mr. J.S.Sharma, Asstt. Registrar (Audit) vide letter dated November 21, 2002 informed Asstt. Registrar (South) that one Mr. R.K.Sharma, Secretary of the Society had applied for audit of the Society w.e.f July 1, 1973 to March 31, 2002. Mr. J. S. Sharma also requested the Asstt. Registrar (South) to confirm the present status of the Society for initiating further action in the matter.
(viii) It was alleged that in pursuance of the said criminal conspiracy, on receipt of the letter from J.S. Sharma, Gopal Singh Bisht (A6) dishonestly initiated a note on November 22, 2002 mentioning inter-alia that Society had not been functioning since long, thus he recommended for intimating the factual position to Asstt. Registrar (Audit).
(ix) It was alleged that on the said note Mr. Ved Pal Singh, Asstt. Registrar directed to intimate the Society to produce record. Accordingly, letter dated November 26, 2002 was issued to the Society. Thereafter, vide letter dated December 2, 2002 Society was requested to produce the record.
(x) It was further alleged that in response to the said letter, one R.K.Sharma, Honorary Secretary (the non-existing person) was shown to have produced/submitted the record for verification. Thereafter, A6 initiated a note mentioning that the records were submitted for verification by Mr. R.K.Sharma which were checked and verified and same were found in order. A6 also recommended for CBI No. 57/08 Page 6 of 45 State through CBI v. Srichand & others putting up the case before the competent authority for approval of the freeze list.
(xi) It was further alleged that on December 9, 2002, A6 initiated the note mentioning the detail of promoter members, resigned members and new inducted members and he further mentioned that Society had submitted the required documents in connection with the new enrolled members.
(xii) It was further alleged that A7 and A8 without verification of the authenticity of records recommended for approval of the freeze list, which was dishonestly approved by accused Narain Diwakar (A9) on December 10, 2002.
(xiii) It was alleged that investigation revealed that Mr. R. K. Sharma was shown as Honorary Secretary of the Society by the accused persons whereas no such person was in existence. It was alleged that officials of RCS, Delhi dishonestly and fraudulently entertained the forged record of the Society and approved the list of 116 members, which was subsequently forwarded to DDA for allotment of land vide letter dated December 13, 2002, consequently, DDA had issued allotment letter dated December 31, 2002 through which plot No. 11, Sector 19, Dwarka, Delhi was alloted in favour of the said Society.
(xiv) It was alleged that P.K.Thirwani (A4) in pursuance of CBI No. 57/08 Page 7 of 45 State through CBI v. Srichand & others the said criminal conspiracy dishonestly prepared a false audit report, lists of management committee, cash in hand certificate, list of resigned and enrolled members, income and expenditure account for each year from 1974 to 2002, balance sheet from 1974 to 2002 etc which facilitated the approval of freeze list. It was alleged that A4 even did not visit the registered office of the Society and investigation established that the Society never functioned from the said address.
(xv) It was further alleged that during investigation it was revealed that in pursuance of the said conspiracy, Bhupender Singh Mann (A3) and Ajit Singh (A10) had played active role in depositing 35% cost of the land after approval of the said freeze list and in accepting the resignation of the 116 members and further enrollment of fresh 116 members after the approval of freeze list on the basis of forged resignation letters. It was also alleged that they had got forged proceedings register, resignation letters and other record of the Society with the help of P.R.Nair and Smt. Mariamma Raghu, but they had no knowledge about the said conspiracy and its purpose.
(xvi) It was further alleged that GQED in its report established the forgery of most of the documents such as resignation letters, membership forms, affidavits, proceedings register etc. by the respective accused persons. It was further alleged that most of the members had disowned their signature on the resignation letters/affidavits which were found to be forged.
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2. After completing the investigation, chargesheet was filed against A1 to A10 for the offence punishable under Section 120B read with 420/468/471 IPC and Section 13(2) read with Section 13(1)
(d) of PC Act, 1988 and substantive offence under Section 420 IPC against A1, A3, A5 and under Section 468 & 471 IPC against A1, A2 and A5 and under Section 13 (2) read with Section 13(1)(d) of PC Act 1988 against A4, A6, A7, A8 and A9 being public servants.
(i) Necessary sanction under Section 19 of PC Act was obtained against the public servants other then A7 and A9 as they had already retired from the service, thus no sanction was required against them.
Contentions relating to Gopal Singh Bisht (A6), Ved Pal Sinigh (A7) and Rakesh Bhatnagar (A8):-
3. Learned Public Prosecutor appearing for CBI vigorously contended that A7 and A8 were posted as Asstt. Registrar and Joint Registrar respectively in the office of RCS, Delhi and they recommended for approval of freeze list without verifying the authenticity of the records submitted by the Society. It was further astutely submitted that Gopal Singh Bisht (A6) was posted as dealing assistant at the relevant time. It was sagaciously argued that J.S.Sharma (PW56) in his statement specifically alleged that it was the duty of dealing Asstt. and Asstt. Registrar to verify the authenticity of the record. Despite that A6 and A7 had not verified the record CBI No. 57/08 Page 9 of 45 State through CBI v. Srichand & others before putting up the note and recommended for the approval of freeze list.
(i). It was further sagaciously contended that two letters dated June 20, 1986 and May 15, 1980 relating to change of address of the Society and resignation of original members of the Society respectively were dishonestly placed on record. It was argued that though the said letters were purportedly to have been sent to the RCS office in the year 1980 and 1986, but there is no reference of the said letters in any of the office noting in the file of said Society. It was urged that first time both the said letters were referred to in the noting dated November 22, 2002 by A6, thus it was argued that the said letters were dishonestly and deliberately placed on record by the dealing assistant, Asstt. Registrar and Joint Registrar to show that the Society had changed its address in 1986 and Society had informed the RCS office about the resignation letters of its members in 1980.
(ii) It was further contended that dealing Asstt. (A6) moved the noting on December 9, 2002 and on the very same day, the file was cleared by A7 whereas A8 cleared the file on the next date i.e. December 10, 2002. It was argued that promptness on the part of A7 and A8 in clearing the proposal prima-facie shows that they were acting under some conspiracy and due to that reason they had not raised any query why the Society remained non-functional during the period 1974 to 2002 which was their prime duty.
(iii) It was further contended that A6 in his note certified CBI No. 57/08 Page 10 of 45 State through CBI v. Srichand & others that Mr. R.K.Sharma, the then honorary Secretary of the Society appeared before him and produced all records of the Society for verification whereas during investigation, it was revealed that there was no such person in existence and the alleged record was produced by accused Srichand (A1). It was thus, argued that A6 had prepared the note at the behest of A1 with dishonest intention.
4. Learned counsel appearing for A6 contended that he was posted there as clerk-cum-typist and his job was to type the notes/letters and he typed the letter dated December 2, 2002 at the instance of Asstt. Registrar (South), which was signed by AR (South). It was further argued that similarly being the typist, A6 had typed the note dated December 9, 2002 at the dictation of AR (South) and when draft note was approved by AR(South), the same was put up before AR(South) for approval, who consequently approved the same and sent the note to JR for approval. It was further contended that CBI failed to file any circular/duty chart of the dealing assistant to show in which manner the dealing assistant should deal with the file relating to freeze list.
5. Learned counsel appearing for A7 refuted the contentions raised by learned Public Prosecutor for CBI by vigorously arguing that the entire prosecution case qua A7 is based on the statement of Mr. J.S. Sharma but he nowhere alleged that A7 had committed any wrongful act. It was vehemently argued that Mr. J.S.Sharma had nowhere alleged that it was the duty of A7 being the AR to verify the authenticity of the records produced by the Society. It CBI No. 57/08 Page 11 of 45 State through CBI v. Srichand & others was further sagaciously argued that even from the statement of Mr. J. S. Sharma and official notings dated December 2, 2002 to December 9, 2002, it is abundantly clear that verifications were done by the dealing assistant and not by AR. On the contrary, from the noting dated November 22, 2002, it is clear that A7 had directed the dealing assistant to intimate the Society about the status and further directed that strict action would be taken, if Society fails to comply with provision of DCS Act and DCS Rules. The said act rules out any conspiracy on the part of A7 either with dealing assistant or with any other accused persons.
(i). Learned counsel appearing for A8 refuted the contentions raised by learned Public Prosecutor for CBI by sagaciously arguing that file in question was placed before A8 being Joint Registrar only once i.e. on December 10, 2002. It was argued that investigating agency as well as prosecution failed to produce any rule or regulation to show that it was the duty of A8 being Joint Registrar to verify the authenticity of records submitted by the society. It was astutely contended that since the alleged records were verified by the dealing assistant and Assistant Registrar, there was no occasion for Joint Registrar to disbelieve his subordinates. It was further contended that dealing Assistant in its noting dated December 02, 2002, December 05, 2002 and December 09, 2002 categorically mentioned that he had verified the authenticity of record submitted by the Society. Dealing Asstt. further recited in his note that the original records were produced before him by Honorary Secretary Mr. R.K. Sharma. It was argued that mere fact that A8 being Joint Registrar CBI No. 57/08 Page 12 of 45 State through CBI v. Srichand & others had dealt with the file in discharge of his official duty is ipso-facto not sufficient to rope him in the alleged conspiracy. It was further contended that A8 in his noting clarified that the verification was done by Zone, which further shows that A8 had relied upon the verification done by his subordinates. It was further submitted that CBI failed to produce any incriminating evidence to show that A8 had any dishonest intention when he dealt with the file in question.
Contentions relating to accused P.K.Thirwani (A4):-
6. Learned Public Prosecutor vehemently contended that P.K.Thirwani (A4) was appointed as auditor to audit the accounts of the Society but since he was in conspiracy with the accused persons, he had submitted a false report in favour of the Society. It was argued that though it was mandatory on the part of auditor to conduct the audit at the registered office of the Society, but since he was in conspiracy he did not visit the said premises. Moreover, during investigation it was revealed that Society was not functioning from its alleged registered office. It was further sagaciously contended that the alleged record was produced by Mr. R.K.Sharma, the then Honorary Secretary, but during investigation, it was revealed that he was a fictitious person. It was urged that this further shows that A4 had not conducted any audit and submitted a false report being a member of the conspiracy.
(i). Per contra, counsel appearing for A4 refuted the said CBI No. 57/08 Page 13 of 45 State through CBI v. Srichand & others contentions by vehemently arguing that being auditor, A4 was not supposed to check veracity and authenticity of the documents. It was argued that A4 had conducted the audit on the basis of documents provided by the Society to him. It was further argued that there is no requirement that auditor is bound to conduct the audit at the registered office of the Society. It was further vigorously contended that there is nothing on record which may show that the audit report is false. It was further astutely contended that A4 had raised certain objections while conducting the audit, which shows that he was not in conspiracy with the accused persons otherwise he would not have raised any such objections. It was further contended that there is no evidence on record to show that he had gained any pecuniary benefit in lieu of the said report, which further rules out the possibility that he was in conspiracy with other accused persons.
Contentions relating to accused Narain Diwakar (A9):-
7. Learned Public Prosecutor sagaciously contended that the allegation against A9 is that he had dishonestly approved the freeze list which was sent by Ved Pal (A7) being Assistant Registrar and Rakesh Bhatnagar (A8) being Joint Registrar with their recommendations. It was further submitted that it was the duty of A9 to direct his subordinate staffs to physically verify the authenticity of records before approving the said freeze list. It was further contended that PW56 Mr. J.S.Sharma, in his statement stated before the CBI that verification of the genuineness of the record was essential before approving the freeze list, thus it was urged that A9 had not passed CBI No. 57/08 Page 14 of 45 State through CBI v. Srichand & others any order in this regard as he was in conspiracy with the accused persons and he had dishonest intention. It was further argued that since A9 had dishonest intention, he approved the list on the very next day and the promptness on his part shows dishonest intention on his part. Learned Public Prosecutor further submitted that under Rule 84 of the DCS Rules, auditor has no power to conduct the audit beyond the period of three years but in the instant case, audit was conducted from 1974 to 2002, which further shows that A9 had dishonest intention.
(i). Per contra, learned counsel appearing for accused Narain Diwakar (A9) refuted the said contentions by sagaciously arguing that the only allegation against A9 is that he had approved the freeze list dishonestly, which was forwarded to him by A7 and A8 being Asstt. Registrar and Joint Registrar without verification of the authenticity of the record. It was submitted that except that there is no other allegation against A9. It was vigorously argued that though CBI alleged that A9 had dishonestly approved the list, but during investigation, CBI failed to collect any evidence whatsoever to show prima-facie that A9 had approved the said list dishonestly. It was further contended that since A9 was working as Registrar of Co- operative Societies at the relevant time, it was his duty to take a decision on the file sent by his subordinates with recommendation. Mere fact that A9 decided to approve the said list on the basis of recommendation made by his subordinates is ipso-facto not sufficient to show any criminality even prima-facie on the part of A9. It was further argued that there is no iota of evidence to show that A9 was CBI No. 57/08 Page 15 of 45 State through CBI v. Srichand & others indulged in any kind of conspiracy with the accused persons. Mere fact that he had approved the list is not sufficient to show prima-facie that he was a member of any conspiracy. It was further contended that infact the name of A9 was not mentioned in the FIR and he has been falsely implicated in this case. It was further contended that even the statement of PW56 Mr. J. S. Sharma is not helpful to the prosecution to prove any dishonest intention on the part of A9 as PW56 has not uttered even a single word, which may show that A9 had any dishonest intention. Though PW56 told the CBI about some procedure but till date CBI failed to produce any rule or regulation or circular, which may show that Registrar should have ordered for verification of the genuineness of the records before approving the freeze list. Learned counsel further submitted that as per Rule 84 of the DCS Rules, the Society cannot get conducted the audit beyond three years but there is no restriction on the part of RCS. Moreover, it is admitted case of CBI that PW56 had appointed the auditor in this case to conduct the audit from 1974 to 2002 but CBI had not taken any action against PW56, which falsifies the contention of Ld. Public Prosecutor that auditor appointed by RCS cannot conduct the audit beyond the period of three years.
Contentions relating to accused Sri Chand (A1), Mohan Lal (A2) & Anna Wankhede (A5):-
8. Learned Public Prosecutor vigorously contended that there are ample evidence on record to show prima-facie that Anna Wankhede (A5) had forged the signature of numerous members on their affidavits etc. and this fact is prima-facie established from the CBI No. 57/08 Page 16 of 45 State through CBI v. Srichand & others GQED report, which certified that specimen writings of Anna Wankhede matched with the questioned signatures.
(i). Learned Public Prosecutor further submitted that Mohan Lal (A2) also committed forgery by preparing the false proceedings of various minutes of meetings of the said Society at the instance of Srichand (A1) and this is prima-facie established from the GQED report, which certified that specimen writings of Mohan Lal tallied with the various questioned writings.
(ii). Learned Public Prosecutor further contended that there are ample evidence against the accused Srichand (A1) showing that he was mastermind of the conspiracy. It was argued that accused Srichand is the person, who engaged Neeraj Kumar, Chartered Accountant to get the account audited from him and he had paid the professional charges to him. Besides that he had also used the premises of PW31 as the registered office of the Society in order to get the freeze list approved. However, PW31 categorically stated that the said society had never functioned from his premises. It was further contended that during investigation, CBI had taken his specimen writings for comparison with the proceedings recorded in various registers of the society and GEQD certified that the said proceedings were recorded by accused Srichand, which further prima-facie proves that Srichand had recorded the said proceedings in order to get the freeze list approved. It was further argued that PW18 in his statement categorically stated that the said society was under the control of Srichand when the freeze list was approved by the office of RCS and CBI No. 57/08 Page 17 of 45 State through CBI v. Srichand & others Srichand approached PW18 for arrangement of finance to make the payment to DDA. Accordingly, it was argued that there are ample evidence on record to make out a prima-facie case against accused Srichand for the offences mentioned in the charge-sheet.
9. Learned counsel appearing for the above accused persons fairly conceded that there are sufficient evidence on record to make out a prima-facie case against the accused persons.
Contentions relating to accused Bhupinder Singh Mann (A3):-
10. Learned Public Prosecutor vehemently contended that there are sufficient evidence on record to show prima-facie that A3 was involved in the alleged conspiracy. It was argued that though A3 claimed that he was Secretary of the Society at the relevant time, but he did not make any effort to intimate members of the Society when DDA allotted the piece of land to the said Society and no effort was made by him to ask the members to deposit the amount to pay the cost of land to the DDA. Rather, he approached private person i.e. PW4 for arranging the amount to whom he refunded later on. There is nothing on record to suggest that even thereafter he had collected any amount from the members of Society. It was argued that there are evidence on record to show prima-facie that there were only three members in the Society when the land was allotted to the Society and due to that reason he had arranged the payment from private sources. It was contended that most of the members whose names were CBI No. 57/08 Page 18 of 45 State through CBI v. Srichand & others figured in the freeze list were found fake during investigation.
(i). Learned counsel appearing for A3 fairly conceded that prima-facie a case is made against A3 for the offences mentioned in the chargedsheet.
Contentions relating to accused Ajit Singh (A10):-
11. Learned Public Prosecutor appearing for CBI vigorously contended that Ajit Singh (A10) had played an active role in the entire conspiracy as he is the person at whose instance the freeze list was got approved and he is the person at whose instance the payment was made. It was further submitted that in this regard, the statement of various persons namely PW18, PW20, PW33, PW34 and PW42 are relevant. It was astutely argued that from the statement of PW34 and PW42 it is prima-facie established that at the instance of Ajit Singh various documents were prepared and from the statement of PW18 and PW33, it is also prima-facie established that at the instance of Ajit Singh, letter of allotment of land was collected from the office of DDA and from the statement of PW20, it is prima-facie established that the payment was deposited at his instance. It was sagaciously argued that though Ajit Singh was not even a member in the said Society, but despite that he was not only involved in preparation of record of the Society but also in collecting the allotment of land and making the payment of land to the DDA which shows that he was main conspirator behind the entire episode.
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(i). Per contra, learned Sr. Advocate appearing for A10 refuted the said contentions by sagaciously arguing that as per prosecution case, conspiracy was hatched in the year 2002 with an object to get the land alloted from DDA. It was urged that it is admitted case of CBI that freeze list was approved in the year 2002 and land was allotted to the Society on December 31, 2002, thus it was contended that the object of the said conspiracy was achieved in the year 2002 itself when the land was allotted to the Society. It was further astutely submitted that it is also admitted case of CBI that Ajit Singh came into picture some time in the year 2003 i.e. after achieving the object of conspiracy. It was vehemently contended that it is well settled law that if any unlawful or illegal act is conducted after achieving the object of conspiracy, the said act cannot be used for the purpose of conspiracy. In support of his contentions, reliance has been placed on Esher Singh vs. State of M.P. (2004) 11 SCC 585, Dilawar Balu Kurane vs. State of Maharashtra (2002) 2SCC 135, Indra Dalal vs. State of Haryana 2015 SCC online 523 and Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra (2008) 10 SCC
394.
(i) It was further submitted that though CBI had set up a case that payment was made at the instance of Ajit Singh, but PW4 Devender Kumar in his statement categorically stated that he had given a loan of ` 1,15,02,400/- to Bhupinder Singh Mann through pay order which was in favour of DDA and the said amount was refunded by Bhupender Singh Mann within a period of six months through five different cheques. It was urged that PW4 had not uttered even a CBI No. 57/08 Page 20 of 45 State through CBI v. Srichand & others single word against A10 that he had made the said loan at the instance of Ajit Singh, thus it was astutely contended that there is no substance in the allegation of CBI that Ajit Singh (A10) had played an active role in arranging the payment.
(ii) It was further submitted that though prosecution has placed strong reliance on the statement of PW34 and PW42 but no reliance can be placed on their deposition as either they themselves committed some offences or their statements are based on hear-say. Moreover, they corroborated the defence version that Ajit Singh came into picture after achieving the object of alleged conspiracy, if any.
(iii) It was further contended that PW34 clarified that he had prepared the documents for obtaining bridge loan of ` 2 crore from DCHFC and he had not uttered even a single word about arranging the alleged payment of 35% either from PW4 or from any other source. It was argued that the evidence produced by CBI is not sufficient to raise any grave suspicion against A10. Rather, the evidences collected by CBI are contradictory to each other, thus contended that in these circumstances, accused is entitled for benefit of doubts as it is well settled law that where two views are possible, the view favouring the accused shall prevail.
12. I have heard the rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
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13. Before dealing with the contentions raised by counsel for both the parties, I prefer to refer the principles laid down by the Apex Court on the point of framing of charge. In Prafulla Kumar Samal (1979) 3 SCC 4 and reiterated by the High Court of Delhi in Aruna Chadha versus State 2013 (6) LRC 306 (Delhi). The principles are as under:-
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2)Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3)The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4)That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case CBI No. 57/08 Page 22 of 45 State through CBI v. Srichand & others and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
(emphasis supplied)
14. In Aruna Chadha case (supra) it was held:-
"33. Thus, on the basis of the judgments relied upon by the parties and noting the language used in Sections 227 and 228 of the Code it can very well be stated that if on the basis of material placed before the Court the commission of offence appears to be probable, the Court shall be duty bound to frame the charge against the accused. To put it differently, if two views are possible and there is strong suspicion against the accused again the Court would be justified in framing the charge. As against this, if there is only a mere suspicion and two views are possible, the Court on the basis of mere suspicion should not proceed to frame the charge against an accused and should in the circumstances discharge him without making him undergo the ordeal of the trial.
(emphasis supplied)
15. Thus, it becomes clear that a charge will be framed only if prosecution succeeds either to show that collected materials are sufficient to make out a prima-facie that offence has been committed or there is strong suspicion against the accused persons. But if prosecution enables to show mere suspicion against the accused, accused persons shall be entitled for discharge as prayed by them.
CBI No. 57/08 Page 23 of 45State through CBI v. Srichand & others Findings qua accused Sri Chand (A1), Mohan Lal (A2) and Anna Wankhede (A5):-
16. As per chargesheet, A1 got submitted a forged letter dated June 20, 1986 purportedly to have been signed by Mr. R. K. Sharma, the then Secretary of the Society to Assistant Registrar for change of address of the Society from Subzi Mandi to Badarpur. It was also alleged that A1 also got submitted a false letter dated May 15, 1980 to the Assistant Registrar (Housing) intimating the details of resigned and enrolled members of the Society. It was further alleged that A1 with the help of his co-accused i.e. A2 and A5 prepared forged proceedings register, membership register, resignation letters, receipts for refund of share money, membership applications for new members, affidavits of the resigned as well as new members and all these records were subsequently submitted to the office of RCS for approval of freeze list of 116 members.
(i) During investigation, CBI had obtained specimen handwritings of above said accused persons. The specimen writings of accused Anna Wankhede (A5) is marked S1 to S308; specimen writings of accused Sri chand (A1) is marked S563 to S846 whereas specimen writings of accused Mohan Lal (A2) is marked as S847 to S879.
(ii) During investigation the above specimen writings/signatures along with numerous questioned writings/signatures were sent to GQED for opinion.
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(iii) As per the report of GQED, the specimen writings of accused Sri Chand tallied with numerous questioned writings and signatures. Perusal of the questioned writings Marked Q5086 to Q5529 prima-facie reveals that he had recorded various proceedings in the proceedings register of the Society. Besides recording of the various proceedings in the said register, he had also forged the signature of Mr. P. P. Chopra and the said signatures are marked Q5135, Q5141 and Q5150.
17. Similarly, as per GQED report, the specimen writings of accused Mohan Lal matched with numerous questioned writings, which prima-facie reveals that accused Mohan Lal had made entries at numerous places in the membership register of the Society. The questioned writings in the said register are marked Q4939 to Q5085. During examination, certain questioned writings of A2 were tallied with the specimen writings which prima-facie shows that he had made entries in the said register.
(i) Besides that his specimen writings also tallied with some of the questioned signatures, which are marked Q5086 to Q5529. Perusal of the questioned signatures reveals that he had also forged the signature of as many as four members namely Mr. C. M. Gupta, Mohan Lal, Mr. R.K.Sharma and Mr. Parmod Kumar. His handwritings is also found on the application form for membership of various persons.
18. Perusal of GQED report reveals that accused Anna CBI No. 57/08 Page 25 of 45 State through CBI v. Srichand & others Wankhede had forged the signatures of numerous persons on the affidavits. Besides that he also forged the signatures of numerous persons in the register of membership.
19. Apart from the GQED report, there are also oral testimony of witnesses to show prima-facie that they were involved in the preparation of the above said forged and fabricated documents for the purpose of getting approval of the freeze list of the Society and the said documents were submitted in the office of RCS for seeking approval of the freeze list.
20. Since, the above accused persons committed forgery of the signatures of various persons for the purpose of cheating with the RCS, prima-facie a case is made out against them for the offence punishable under Section 468 IPC.
(i) Since accused Sri Chand had used the said documents knowingly well or having reasons to believe that the said documents were forged and fabricated, prima-facie a case is made out against accused Sri Chand (A1) for the offence punishable under Section 471 IPC.
(ii) Similarly, since there are evidence that accused Sri Chand had submitted the documents in the office of RCS for the purpose of seeking approval of RCS of the freeze list of 116 members, the said act of accused Sri Chand also attracts prima-facie the offence punishable under Section 420 IPC as on the basis of forged and CBI No. 57/08 Page 26 of 45 State through CBI v. Srichand & others fabricated documents he induced the RCS office to approve the freeze list as desired by him.
(iii) From the above discussion prima-facie it also becomes clear that the above said accused persons had entered into an agreement to commit an illegal act i.e. forgery and fabrication of above documents to get the approval of freeze list and to obtain the land from DDA at subsidized rate in the name of Society, thus prima-facie a case is made out against all of them for the offence punishable under Section 120 B IPC.
Findings qua accused P.K.Thirwani (A4):-
21. As per allegations, A4 had submitted a false audit report.
(i) As per chargesheet, the Society had made an application to the RCS for change of its address from Subzi Mandi, Railway station to House No. 21-A, Gali No. 6-B, Molar Band Extn., Badarpur, Delhi-44. As per Section 53 of the DCS Act, the auditor is supposed to conduct the audit at the registered office of the Society unless and otherwise directed by the RCS. Admittedly, in the instant case RCS had not directed A4 to conduct audit at any other place other than at its registered office. PW31 Dinesh Kumar Sharma is the owner of the said premises and he testified before the CBI that his premises was never used as registered office by the Society. In these circumstances the onus is shifted upon A4 to explain where he had CBI No. 57/08 Page 27 of 45 State through CBI v. Srichand & others conducted the said audit.
(ii) As per chargesheet, Mr. R. K. Sharma, Honorary Secretary of the Society had produced all record before the dealing assistant and he also produced the said record before the auditor being Secretary. However, during investigation Mr. R. K. Sharma was found a fictitious person, thus onus is shifted upon A4 to explain who produced the record before him to conduct the audit. As per allegations, the alleged record was got prepared by accused Sri Chand from PW12 Neeraj Kumar and produced the same for the purpose of so called audit and infact no audit was conducted by A4.
(iii) As per allegations numerous persons such as President, Secretary and Treasurer signed the numerous documents before A4. As already discussed that Mr. R. K. Sharma was found a fictitious person during investigation and even there are evidence on record that A1, A2 and A5 had forged the certain signatures, which further requires explanation from A4.
(iv) In view of the above discussion, it can safely be culled out that there are sufficient evidence to make out a prima-facie case that A4 had submitted an audit report in furtherance of conspiracy otherwise he had no occasion to submit the audit report without visiting the registered office and meeting with the Honoary Secretary of the Society i.e. Mr. R.K.Sharma, thus prima-facie he is liable for the offence punishable under Section 120B IPC and for other offences as mentioned in the chargesheet with the aid of Section 120B IPC.
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(v) Since, A4 had submitted a false audit report, prima- facie a case is also made out against him for the offence punishable under Section 13(2) Prevention of Corruption Act, 1988 read with Section 13(1)(d)(ii) and 13(1)(d)(iii) of P.C. Act.
Findings qua accused Gopal Singh Bisht (A6):-
22. A6 was dealing assistant at the relevant time.
(i) As per chargesheet, two letters dated May 15, 1980 and June 20, 1986 were found in the file of the Society. As per letter dated May 15, 1980 Society intimated the RCS office about the detail of resigned and enrolled members whereas letter dated June 20, 1986, which was purportedly signed by Mr. R. K. Sharma intimated the RCS office about the change of the address of the Society from Subzi Mandi to Badar Pur, Delhi. Though as per said letters the same were submitted by the Society in the office of RCS in the year 1980 and 1986 respectively, yet there is no reference of said letters in any of the notings made in the file of Society. Though there is no reference of the said letters in any of the notings of the file of the Society, yet A6 in his noting dated November 22, 2002 referred to the above said letters. In these circumstances, onus is shifted upon him to explain in which circumstances he referred to the said letter in his noting. As per allegations, the said letters were placed dishonestly by A6 being the dealing assistant in furtherance of the conspiracy with A1 and others to show that the Society had changed its address in 1986 and Society CBI No. 57/08 Page 29 of 45 State through CBI v. Srichand & others had intimated the detail of members who resigned and enrolled in the year 1980 itself whereas no such intimation was given by the Society.
(ii) Similarly, during investigation it was revealed that Mr. R. K. Sharma is a fictitious person but A6 mentioned in his noting dated December 5, 2002 that Mr. R. K. Sbharma had produced the original record of the Society before him and said Mr. R. K. Sharma had also signed on the noting file to this effect. Since Mr. R.K.Sharma was a fictitious person, onus is shifted upon A6 to explain who produced the said record. As per the allegations the alleged record was produced by Sri Chand (A1).
(iii) In view of aforesaid discussion, it can safely be culled out that there are sufficient evidence on record to make out a prima- facie a case that A6 had acted in furtherance of the conspiracy, thus prima-facie a case is made out against him for the offence punishable under Section 120B IPC and the offence punishable under Section 13(2) P.C Act read with Section 13(1)(d)(ii) and 13(1)(d)(iii) of P.C.Act and other penal offences as mentioned in the chargesheet with the aid of Section 120B IPC.
Findings qua Ved Pal (A7), Rakesh Bhatnagar (A8) and Narain Diwakar (A9):-
23. At the relevant time, A7 was working as Assistant Registrar (South), A8 was working as Joint Registrar whereas A9 was working as Registrar of Co-operative Societies.
CBI No. 57/08 Page 30 of 45State through CBI v. Srichand & others
(i) The allegations against the above said accused persons are that they were in conspiracy with A1, A2, A3 and A5. A7 and A8 had recommended for approval of the freeze list without verification of the authenticity of the record and A9 dishonestly approved the same.
(ii) In order to substantiate its allegations, CBI has placed strong reliance on the statement of PW56 J. S. Sharma, the then Assistant Registrar (Audit). I have gone through his entire statement but to my mind, the said statement is insufficient to prove any criminality on the part of above said accused persons.
(iii) PW56 J. S. Sharma in his statement alleged that A7 instructed the dealing assistant to put up a note for approval of freeze list of members of the Society. Accordingly, dealing assistant put up a note on December 9, 2002. He further testified that dealing assistant verified all the record and found the same in accordance to Delhi Co- operative Societies Rules and further clarified that believing upon the verification conducted by dealing assistant, A7 forwarded the same to Joint Registrar (A8) on the same day i.e. December 9, 2002. He further testified that A8 recommended the case for approval and forwarded the file to RCS (A9) on December 10, 2002, consequently, A9 approved the list of 116 members on the same day i.e. December 10, 2002. Besides that he also told the CBI about the procedure and his experiences wherein he stated that before approving the freeze list, verification of genuineness of all the record should be conducted; genuineness of R. K. Sharma should be ascertained and question should also be raised regarding non-functioning of the Society since CBI No. 57/08 Page 31 of 45 State through CBI v. Srichand & others 1972; genuineness of letters dated May 15, 1980 and June 20, 1986 should also be ascertained and query should also be raised in respect of original members, who enrolled subsequently. To my mind, the said precautions are mere opinion of PW56 and in respect of the same, CBI has failed to produce any documentary evidence or rules or regulations to show that the above accused persons were required to take any such step.
(iv) Further, it is admitted case of CBI that as per the note put up by dealing assistant, the record was verified by the dealing assistant and it was found in order. It is also admitted case of CBI that as per the note of dealing assistant, Mr. R. K. Sharma, the so called Honorary Secretary produced the record before him and he obtained the signature of said Mr. R. K. Sharma on the note sheet. In these circumstances, it cannot be said that the statement of PW56 is sufficient to impose any criminal liability on the above said accused persons mere on the ground that they had forwarded, recommended or approved the freeze list of 116 persons.
24. Though during investigation CBI has examined as many as 106 witnesses, yet no other witness except PW56 has uttered even a single word against the above said accused persons. As already stated that the statement of PW56 is not sufficient to impose any criminal liability on the above said accused persons.
25. Now coming to the notings of the above said accused persons.
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(i) As per the noting file, dealing assistant put up a note on November 22, 2002 with the following recommendations:-
"Keeping in view of the above, it appears that the Society is not functioning since long, if agreed, the same may be intimated to Assistant Registrar (Audit). Accordingly, fair is added for signature please".
(ii) On the said note, A7 being the Assistant Registrar (South) passed the following order:-
" Also intimated the Society about the status & strict action under provision of DC Act & Rules may be taken, if fail to comply".
26. Thereafter, the dealing clerk again put up the file on December 2, 2002 with the following recommendations:-
"If agreed we may ask the Society to produce original record of the Society for verification. Accordingly, fair is added for signature please".
27. The said note was approved by A7 being Assistant Registrar (South) on December 2, 2002.
28. To my mind, the above two notes are not sufficient in any manner to attract any kind of criminal liability upon A7.
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29. Thereafter, on December 5, 2002 dealing assistant put up another note certifying that Mr. R. K. Sharma, the Honorary Secretary of the Society produced the documents/record in original for verification. The records have been counter checked and verified and found in order and he also obtained the signature of Mr. R. K. Sharma on the ordersheet. Thereafter, he made the following recommendations to the Assistant Registrar:-
"Keeping in view of the above if agreed, we may put up the case for approval of freeze list of members of the Society to the competent authority."
30. The said note was approved by Assistant Registrar by putting his signature.
31. To my mind there is nothing in the said note which may be sufficient in any manner to impose any kind of criminal liable upon A7 as there is nothing on record to show that A7 was aware that Mr. R. K. Sharma was a fictitious person or the record was produced by Sri Chand before the dealing assistant and not by Mr. R. K. Sharma or that dealing assistant had falsely put up a note that he had countered checked and verified the record and same was found in order.
32. Thereafter, on December 9, 2002 dealing assistant had put up a detail note. The operating part of the note reads as under:-
"All the original records pertaining to the elections of the Managing Committee of the Society held on May 19, 2002 in the AGB meeting were called for CBI No. 57/08 Page 34 of 45 State through CBI v. Srichand & others verification. The same were verified and found in accordance to DCS Act and Rules. The Secretary's affidavit under r/o enrollment, resignation and approval of freeze list of 116 members for onward transmission to DDA for allotment of land is placed at P895/C to P910/C Keeping in view of the above, if agreed, the freeze list of 116 members may be approved for onward transmission to DDA for allotment of land subject to the condition that, if any, resignation(s)/enrollment
(s) is/are found fake the Managing Committee of the Society will be held responsible (refer Secretary's affidavit at P894/C in this regard)".
33. On the said note A7 being Assistant Registrar (South) made the following noting:-
'A' Above for kind approval please.
34. Mere fact that A7 being Assistant Registrar (South) decided to forward the file to the competent authority through proper channel for approval is not sufficient in any manner, in the absence of any other cogent evidence, to draw an inference that he had acted dishonestly or he forwarded the same in furtherance of any conspiracy. Thus, to my mind there is no sufficient evidence on record to make out a prima facie a case against A7 Ved Pal Singh.
35. A8 being Joint Registrar came into picture first time on December 10, 2002 when he dealt with the said note. He made the following recommendations:-
CBI No. 57/08 Page 35 of 45State through CBI v. Srichand & others Notes from page 7/N may kindly be seen w.r.t clearance of membership in the Society for forwarding to DDA for allotment of land. The proposal has been examined as per directive on the subject. It has been informed that no enrollment or resignation had taken place after 30.06.1986. The relevant record have been verified by the Zone and freeze-strength may accordingly be fixed at 116.
In view of the position as above may kindly like to consider proposal as at "A" on 17/N for approval please."
36. To my mind the said note is totally insufficient in the absence of any other cogent evidence on record to show even prima- facie that either A8 had acted dishonestly or he acted so in furtherance of any conspiracy. As already stated that though CBI has examined as many as 106 witnesses, yet none except PW56 had uttered even a single word against the above said accused persons. As already discussed even the statement of PW56 is not sufficient to impose any criminal liability upon the said accused persons. In these circumstances, I am of the considered opinion that there is no sufficient evidence on record to make out even a prima-facie case against A8.
37. A9 being the Registrar of Co-operative Societies dealt with the file in question first time on December 10, 2002 when it was sent to him with the recommendation by A8 for approval of the list.
38. From the note put up before A9, it is clear that there is no adverse remark against the proposal. If, in such circumstances, A9 CBI No. 57/08 Page 36 of 45 State through CBI v. Srichand & others decided to approve the list, is itself not sufficient to impose any criminal liability unless and until there is some other cogent evidence on record. But there is no other cogent evidence on record against A9. Even none of the witnesses except PW56 has uttered even a single word against A9. As already stated that even the testimony of PW56 is not sufficient to impose any criminal liability against A9. Thus, to my mind the evidence collected by CBI are totally insufficient to make out a prima-facie case against A9 for the offences mentioned in the chargesheet.
(i) I also do not find any substance in the submission of learned Public Prosecutor that under Rule 84 of the DCS Rules, 1973 RCS has no power to direct the audit of the Society beyond the period of three years. I have gone through the said Rule carefully. Perusal of the Rule makes it clear that the limit of three years is prescribed for the Society. As per the said Rule, Society cannot get audited its accounts beyond of period of three years from the panel auditors. But there is no such restriction on the jurisdiction of Registrar. Moreover, the role of Registrar comes into picture when Society fails to get its account audited within the prescribed period. Further, in the instant case, the auditor was appointed by PW J.S. Sharma for conducting the audit of the accounts of the Society for the period 1974 to 2002. If in terms of Rule 84, Registrar has no power to direct the auditor to conduct the audit beyond the period of three years, CBI should have taken appropriate action or at least sought explanation from PW56 why he had directed to conduct the audit for such a long period. But no such action was taken against PW56, this further shows that the CBI No. 57/08 Page 37 of 45 State through CBI v. Srichand & others Registrar has ample power to direct the audit even for the period beyond three years.
(ii) I also do not find any substance in the contention of learned Public Prosecutor that since A8 & A9 showed promptness in clearing the file, it shows dishonest intention on their part. Mere fact that A8 & A9 cleared the file on the same day or on the next day is not sufficient, in the absence of any other cogent evidence, to impose any criminality.
39. In view of the aforesaid discussion, I hereby discharge accused Ved Pal (A7), Rakesh (A8) and Narain Diwakar (A9) from all the charges mentioned in the charagesheet.
Findings qua accused Bhupinder Singh Maan (A3):-
40. Though learned counsel appearing for A3 fairly conceded that prima-facie a case is made out against him, yet I deem it appropriate to examine his case also.
(i) As per record, A3 approached RCS through his letter dated 11.1.2004 wherein he submitted certain records including the election held on 10.01.2004. In the said election A3 was elected as Secretary. Surprisingly, election notice was issued by Mr. R. K. Sharma, the then Honorary Secretary, who was found a fictitious person. Further election was conducted under the supervision of Mr. Devender Maan, who is none else other than brother of A3. As per the CBI No. 57/08 Page 38 of 45 State through CBI v. Srichand & others oral evidence available on record, it appears that no election was conducted on such date and even as per the statement of PW42 there were only three members in the said Society and all other members were fake. Similarly, there are oral evidence on record to show that most of the proceedings were recorded by PW34 at the instructions of A3 and A10.
(ii) Thereafter, A3 approached RCS through his letter dated 16.1.2004 wherein he informed the RCS that the Society had shifted its registered office from Bara Khamba Road to F-4/32-33, Second Floor, Sector 16, Delhi.
(iii) Though A3 claimed himself as Secretary of the Society but surprisingly when DDA offered the allotment of land to the said Society, he did not call meeting of members of the Society asking them to deposit their contribution to enable the Society to deposit the cost of land with DDA. Rather, he approached Mr. Devender Kumar (PW4) and took a loan of ` 1,15,02,400/-from him and later on he repaid the said amount through five post dated cheques. Needless to say that the land was offered to the Society to construct flats for members of the Society and it was not alloted to A3 in his personal capacity. Even there is nothing on record to show that members of the Society had ever paid the cost of land to the Society which was used towards repayment of alleged loan. This, prima-facie indicates that the members in the Society were fake as deposed by PW42. Further, there are oral evidence on record to show that Mr. Bhupinder Singh Mann used to obtain the signature of various persons on the CBI No. 57/08 Page 39 of 45 State through CBI v. Srichand & others proceedings or minutes of the meetings of the Society despite the fact that no such meetings had ever been held.
41. From the above discussion, it can safely be culled out that A3 was one of the main architects of the alleged conspiracy, thus prima facie a case is made out against him for the offences as mentioned in the chargesheet.
Findings qua accused Ajit Singh (A10):-
42. First question arises from the submissions advanced by learned Sr. Advocate for the accused whether the role attributed to A10 is after achieving the object of conspiracy?
(i) As per chargesheet, the conspiracy was hatched with an object to get land alloted in the name of Society at subsidized rate from DDA. To achieve the object of conspiracy, it was executed in two parts. In first part, the defunct Society was got revived by producing forged and fabricated documents. In this regard, the main role was played by other accused persons as discussed earlier. When the Society was revived and the list of members was approved by the RCS, DDA offered the allotment of land to the Society. Thereafter, the payment was arranged from private persons and paid to the DDA. The object of the conspiracy was achieved when the land was actually alloted by the DDA by accepting the payment made by the Society. Mere getting the offer letter for allotment of land was not the object of the conspiracy. Rather, its object was to get the land and it was CBI No. 57/08 Page 40 of 45 State through CBI v. Srichand & others achieved when the payment was actually made to the DDA. Thus, I do not find any substance in the contention of learned Sr. Advocate that the object of the conspiracy was achieved in December 2002 when land was alloted by the DDA by sending the offer letter for allotment of land.
(ii) There are overwhelming evidence on record to show prima-facie that when the offer was made by the DDA to allot the land, A10 had played an active role in arranging the payment. No doubt, there are some lapses in the case of CBI because PW4 categorically deposed that he had given the loan to Mr. Bhupinder Singh Mann (A3) and Bhupinder Singh had already refunded the loan amount by giving five post dated cheques. But the said lapse is only relevant at the stage of trial and not at the stage of framing of charge. It is further pertinent to state that there are evidence on record to show prima- facie that the payment was arranged at the behest of A10.
(iii) PW42 Sunil Kumar in his testimony categorically alleged that A10 used to do Society related work such as preparation of forged papers; enrollment and resignation of members; revival of Societies. In this work, brother of A10 was also used to assis him. He further testified before the CBI that they were indulged in formation of various Societies including the present Society. He further alleged that they asked him to enroll fake members in the society and further alleged that when DDA sent the offer letter for allotment of land and asked the Society to deposit 35% of the cost of land, there were only three members in the Society and due to that reason, fund was got CBI No. 57/08 Page 41 of 45 State through CBI v. Srichand & others arranged from Devender Goel. PW42 further alleged that at the instruction of A10, an account was got opened in the Overseas bank in the fake name of the Society. He further testified before the CBI that no election was held in January 2004 in which A3 was elected as Secretary whereas Satbir Singh and Raju Gupta were elected as President and Treasure respectively. He alleged that proceedings were got recorded at the behest of A10 from PW P.R.Nair (PW34), who was an expert in recording the minutes of the meeting of Society.
(iv) PW34 P.R.Nair corroborated the version of PW42 by alleging that he had prepared various documents such as proceedings register, membership register enrollment forms at the behest of A10 and others and further testified before the CBI that A10 and his brother approached him to complete the record of Society when they came to know about his expertise in this field. He further alleged that he had mentioned the name of some of his employees and relatives in the membership register. It shows that their names had been mentioned in the register to show them members falsely.
43. From the combined reading of the statement of PW34 and PW42 it can safely be culled out that their statements are sufficient to show prima-facie that A10 also played an active role in preparation of the record of the Society and at his instance fake members were inducted in the Society; proceedings were got fabricated and false election proceedings were got recorded. Further, from the statement of PW33 prima-facie it is clear that PW33 had collected the offer letter for allotment of land from the office of DDA at CBI No. 57/08 Page 42 of 45 State through CBI v. Srichand & others the instance of A10. As per his statement, A10 had sent authority letter in favour of him (PW33) which was duly signed by the President Sohan Pal; Secretary R.K.Sharma; Treasure Mohan Lal; Vice President Neeta Parkash and executive member Kaushlaya Jain. As already discussed that R. K. Sharma was a non existent person. No doubt that there are some discrepancies in the case of CBI as pointed by learned senior Advocate but the said discrepancies are relevant at the time of trial not at the time of framing of charge.
(i) Further, PW18 Sushil Prakash Saxena corroborated the testimony of PW42 by stating that he asked A10 to help Sri Chand (A1) in arranging the payment and accordingly A10 arranged the payment of 35% of the cost of land which was deposited with the DDA. PW20 alleged that he had deposited the payment with the DDA at the instruction of A10.
44. In the light of foregoing discussion, at this stage, it is seldom to state that A10 came into picture only after achieving the object of conspiracy as argued by learned Sr. Advocate. I also do not find any substance in the contention of learned Sr. Advocate that the evidence collected by the CBI are only sufficient to raise some suspicion and not grave suspicion, thus accused is entitled for discharge. To my mind, the evidences led by CBI are sufficient to raise grave suspicion against A10, thus prima-facie a case is made out against him.
45. In view of the aforesaid discussion, I am of the CBI No. 57/08 Page 43 of 45 State through CBI v. Srichand & others considered opinion that the evidences collected by CBI are sufficient to show prima-facie that A10 was a member of conspiracy and he played an active role at different stages in order to achieve the ultimate object i.e to get the land at subsidized rate from DDA of the conspiracy, thus prima facie a case is made out against him for the conspiracy punishable under Section 120B IPC and other offences with the aid of Section 120 B IPC Conclusion:-
46. Pondering over the ongoing discussion, I am of the considered opinion that :-
(a) Prima-facie a case is made out against Srichand (A1), Mohan Lal (A2), Bhupinder Singh Mann (A3), P.K.Thirwani (A4), Anna Wankhede (A5), Gopal Singh Bisht (A6) and Ajit Singh (A10) for the offence punishable under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with 13(1)(d)(ii) and 13(1)(d)(iii) of the Prevention of Corruption Act, 1988.
(b) Prima-facie a case is also made out against Srichand (A1) for the offence punishable under Section 420/468/471 IPC.
(c) Prima facie a case is also made out against accused Mohan Lal (A2) and Anna Wankhede (A5) for the offence punishable under Section 468 IPC.CBI No. 57/08 Page 44 of 45
State through CBI v. Srichand & others
(d) Prima-facie a case is also made out against P. K. Thirwani (A4) for the offence punishable under Section 13(2) read with 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988.
(e) Prima-facie a case is also made out against Gopal Singh Bisht (A6) for the offence punishable under Section 13(2) read with 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988.
47. However, the collected evidences are not sufficient to make out a prima-facie case against Ved Pal (A7), Rakesh Bhatnagar (A8) and Narain Diwakar (A9) for any of the offences as mentioned in the charge-sheet, thus I hereby discharge them from all the charges.
Announced in the open Court on this 25th day of January, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/s/sv CBI No. 57/08 Page 45 of 45