Delhi District Court
Cbi vs Dilip Bhattacharya S/O Late Sh. M C ... on 13 August, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 130/11
RC No.55A/2006/CBI/ACB/New Delhi
(Seema CGHS)
CBI
Versus
1.Dilip Bhattacharya S/o Late Sh. M C Bhattacharya
2. Maheshwar Dutt Sharma S/o Late Sh. R S Sharma
3. Padam Dutt Sharma S/o Late Sh. J D Sharma
4. Gopal Dixit S/o Late Sh. R B Dixit
5. Tripit Prasad S/o Sh. Naubat Lal
6. Jeetpal Singh S/o Late Sh. Gopal Singh
7. B N Singh S/o Late Sh. Ramdhari Singh
8. A S Rana S/o Sh. Chander Bhan ....Accused Persons ORDER ON CHARGE:
1. The case of the CBI, in brief, is that Seema Co operative Group Housing Society Ltd. (in short 'CGHS') was registered with Registrar Cooperative Societies (in short 'RCS') on 06.12.83 vide registration No. 1009 (GHS) with 65 promoter members. In 1984 the society submitted a list of 225 members in the office of RCS, Delhi. There were certain discrepancies in the documents submitted by the society. Accordingly, society CBI Vs. Dilip Bhattacharya and others Page 1/22 (Seema CGHS) was called upon to get those documents rectified. Repeated reminders were issued by the office of RCS but the society failed to comply with it and, as such, the winding up proceedings were initiated against the society under Sections 63 and 66 of Delhi Cooperative Societies Act (in short the 'DCS Act'). Society was wound up w.e.f 17.06.97. However, liquidation order was not passed.
2. Investigation further revealed that in August, 1997 accused Tripat Prasad requested for revival of the society.
Accused Dilip Bhattacharya, the then Dealing Assistant in RCS office, wrote a note that a chance be given to the society since its members were employees of BSF. Accused Tripat Prasad submitted a fresh list of 222 members along with the documents which were put up by accused Dilip Bhattacharya on 05.09.1997 for consideration. In the meanwhile society filed an appeal before Financial Commissioner. The Financial Commissioner set aside the winding up order on 22.02.1998.
3. Investigation further revealed that on 27.02.1998 accused Tripat Prasad along with Sh. S S Ahuja and Attar Singh attended the office of RCS. Accused Tripat Prasad filed fake/forged record with the RCS. It has revealed that various members were shown to have resigned from the society and in CBI Vs. Dilip Bhattacharya and others Page 2/22 (Seema CGHS) their place various members were taken. Various members were transferred to the membership of IDC society. Without taking into account all these facts, accused Gopal Dixit, the then Registrar, ordered the revival of the society on 27.02.1998 on the date when application was moved in that regard. Neither the address nor the membership of the society were checked and verified.
4. Investigation further revealed that the activities of the society were taken over by accused A S Rana and he controlled it. He became the member of the society in April, 1997. On the dame day his brother also joined as a member. He attended the meeting in the office of RCS on 27.02.98 for revival of the society. Many transactions were done from the account of the society in the account of IDC society and vice versa.
5. Investigation further revealed that Sh. Sunil Prasad, Sh. Satya Pal, Sh. D C Raizada, Sh. Onkarnath and several other members never resigned from the society though in the society proceedings, the resignations of these members have been shown to have been accepted. Several persons have been shown to be members of the society. However, they stated that they had never applied for the membership of the society. It has CBI Vs. Dilip Bhattacharya and others Page 3/22 (Seema CGHS) been revealed that all these resignations and transfers were shown fraudulently by accused Tripit Prasad in connivance with accused A S Rana and accused B N Singh. Accused B N Singh also wrote proceedings of General Body Meetings in the proceeding register of Seema society which were never held. Accused Jeetpal Singh has forged the signatures of some members and GEQD has given positive opinion on it.
6. Investigation further revealed that accused M D Sharma, the then Assistant Registrar, in his earlier notings had proposed for taking action u/s 63 of DCS Act against society, connived with the office bearers of the society and without any change in compliance by the society, recommended for sending the freeze list to DDA for allotment of land. Accused M D Sharma falsely mentioned in his notes that detailed verification of the records has already been done whereas no document to this effect had been submitted by the society. Accused P D Sharma, the then Deputy Register, had held meetings with accused Tripit Prasad, Sh. S S Ahuja and accused A S Rana and put up contradictory notes supporting the society. He had mentioned in his note that the freeze list has been verified by the concerned zone but while concluding the note, he again mentioned that the society may be given a chance to produce its CBI Vs. Dilip Bhattacharya and others Page 4/22 (Seema CGHS) record for verification. Accused P D Sharma fraudulently put up his note in furtherance of a criminal conspiracy to get land for the society despite the fact that the society did not meet the statutory requirements under DCS Act and Rules. After completing investigation, charge sheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code, 1860 (IPC) and Prevention of Corruption Act, 1988 (PC Act).
7. I have heard Ld. PP for CBI; Sh. Rajeshwar Gupta Ld. Counsel for A1 Dilip Bhattacharya; Sh. S.K. Bhatnagar, Ld. Counsel for A2 Maheshwar Dutt Sharma; Sh. Ajay Burman Ld. Counsel for A3 P D Sharma; Sh. P.K. Dubey, Ld. Counsel for A4 Sh. Gopal Dixit; Sh. Vikram Panwar, Ld. Counsel for A5 Tripit Prasad and A7 B N Singh; Sh. R P Shukla, Ld. Counsel for A6 Jeet Pal Singh and Sh. Mohit Mathur, Ld. Counsel for A8 A S Rana. I have also gone through the written submissions filed on behalf of A1 Dilip Bhattacharya, A3 P.D. Sharma and A4 Gopal Dixit.
8. Sh. Rajeshwar Gupta, Ld. counsel for A1 Dilip Bhattacharya contended that the forgery, if any, was committed outside the office of RCS. There is no reason to disbelieve the genuineness of the documents submitted by the society and, as CBI Vs. Dilip Bhattacharya and others Page 5/22 (Seema CGHS) such, no conspiracy can be alleged to have been committed by A1. Ld. Counsel further contended that prosecution has failed to comply with the provisions of Sec. 197 Cr.P.C. In the DCS Act and DCS Rules, provisions are made for the offences, if any, committed by any person and, as such, where there is Special Act/Law, the provisions of General Law are excluded. Lastly, ld. Counsel contended that prosecution has failed to supply the relevant crucial documents and, consequently, the entire prosecution is vitiated and, as such, the accused Dilip Bhattacharya (A1) is liable to be discharged. In support of his contentions ld. Counsel has relied upon judgments 'Smt. Kalpana Ghosh Vs. State', 1996 Crl. L.J 1406 and 'Kamal Singh Vs. State of U.P', AIR 1998 Allahabad, 220.
9. Sh. S.K. Bhatnagar, Ld. Counsel for accused Maheshwar Dutt Sharma (A2) contended that A2 was the Assistant Registrar in the office of RCS. He was not named in the FIR which was lodged after conducting the preliminary enquiry. The winding up order of the society was set aside by the court of Financial Commissioner but the said order has not been placed on record by the prosecution. The revival of the society is not an offence. A2 performed his duties and there is no allegation that he flouted the provisions of DCS Act/DCS CBI Vs. Dilip Bhattacharya and others Page 6/22 (Seema CGHS) Rules. According to Ld. Counsel, accused Maheshwar Dutt Sharma is liable to be discharged in this case. In support of his contentions he has relied upon judgments 'State of Maharashtra Vs.Som Nath Thapa', 1996 Crl.L.J 2448; 'State of Maharashtra Vs. Lalji Rajshi Shah & others', AIR 2000 SC 937 and 'Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd & others', 2007 (5) SCALE 366.
10. Sh. Ajay Burman, Ld. Counsel for accused Padam Dutt Sharma (A3) contended that A3 has only written that the list of members has been verified by the concerned zone. He has not mentioned that the record of the society has been verified. It is the statutory duty of Asstt. Registrar of the concerned Zone to verify the list of members but the concerned Asstt. Registrar has been exempted from this allegation and A3 has been made an escape goat. According to Ld. Counsel, the winding up order was set aside by the Financial Commissioner and, therefore, the society remain alive for all the time and the charge of criminal conspiracy to revive the society does not stand and is baseless. Lastly, Ld. Counsel contended that the accused being a public servant, as defined u/s 21 of the IPC, and the alleged acts being the acts committed while performing his official duty, he is protected u/s 197 Cr.P.C. Ld. Counsel prayed CBI Vs. Dilip Bhattacharya and others Page 7/22 (Seema CGHS) that accused Padam Dutt Sharma is liable to be discharged.
11. Sh. P.K. Dubey, Ld. Counsel for accused Gopal Dixit (A4) contended that no sanction u/s 197 Cr.P.C. has been taken by the CBI for the purpose of taking cognizance of the offences alleged against A4. There is no material on record to suggest that A4 has caused wrongful gain to himself and wrongful loss to any person any point of time. The ingredients of sections 420/468/471 IPC are not attracted against A4. There is no material to suggest the commission of offence u/s 13 (2) r/w Sec. 13 (1) (d) of DCS Act. According to Ld. Counsel A4 is liable to be discharged in this case. In support of his contentions, Ld. Counsel has relied upon judgments 'Jayasing vs. K.K. Velayutham', (2006) 9 SCC 414; 'S. Moitra vs. S.Das', (2006) 4 SCC 585; 'R.K. Mishra vs. State of Bihar', (2006) 1 SCC 557; 'R.L. Jain vs. Naginder Singh Rana', (2006) 1 SCC 294; 'N.K. Sharma vs. Abhimanyu', (2005) 13 SCC 213; 'State of Orissa vs. Ganesh Chandra', (2004) 8 SCC 40; 'Goondla Venkateshwarlu vs. State of A.P.', (2008) 9 SCC 613; 'P.K. Choudhary vs. Commandru', 2008 AIR SC 1973; 'State of Madhya Pradesh vs. Sheetla Sahai', (2009) 8 SCC 617; 'R.Balakrishna Pillai vs. State of Kerala', (1996) 1 SCC 478 and 'B.Saha vs. M.S. Kochar', (1979) 4 SCC 177.
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12. Sh. Vikram Pawar, Ld. Counsel for accused Tripit Prasad (A5) and B.N. Singh (A7) contended that GEQD opinion is not against A5. Ingredients of offences u/s 120(B)/420/468/471 IPC are not attracted against both the accused persons. Ld. Counsel has drawn the attention of this court towards file D6 and D29 in this regard. According to him, both these accused have been falsely implicated in the present case by the CBI.
13. Sh. R.P. Shukla, Ld. Counsel for accused Jeetpal Singh (A6) fairly conceded that prima facie case is made out against A6.
14. Sh. Mohit Mathur, Ld. Counsel for A8 contended that there is nothing on record to connect the accused A8 with the alleged offences. In support of his contention Ld. Counsel has relied upon judgment 'John Pandian Vs. State', 2011 (1) JCC, 193.
15. On the other hand, Ld. PP for CBI contended that prima facie case is made out against all the accused persons.
16. Before proceeding further it is pertinent to mention here that on 01.09.2011 Investigating Officer of the case requested for two months time for filing the supplementary chargesheet. The same was not filed till 02.07.2012 and, CBI Vs. Dilip Bhattacharya and others Page 9/22 (Seema CGHS) consequently, on 02.07.2012 this court passed the following order: "02.07.2012 Present : Dr. Padmini, Ld. PP for CBI.
All accused on bail except A4 who is permanently exempted through counsel.
Sh. Amish Dabas, Ld. Counsel for A5, A7 and A8. Supplementary charge sheet has not been filed in this case despite several opportunities having been granted to the CBI for filing of the same.
On 6.1.2012 Sh. Anurag Ahluwalia, Ld. Counsel for the accused drew the attention of this court towards the order dated 1.9.2011 passed by Ld. Predecessor of this court whereby IO requested two months time for filing supplementary charge sheet. On that day Ld. Counsel further stated that supplementary charge sheet has not been filed yet. Thus, the matter was adjourned to 2.2.12.
On 2.2.12 Ld. PP filed the application stating therein that Inspector Manish Kumar Upadhyay required sufficient time to go through the records and at least 45 days time be granted for filing supplementary chargesheet. The matter was adjourned to 15.3.2012.
On 15.3.2012 again supplementary charge sheet was not filed whereupon this court was constrained to issue bailable warrants against the IO for 12.4.2012. On 12.4.12 Ld.PP again requested for two months time for filing supplementary charge sheet which was allowed by this court and matter was adjourned to 31.5.2012.
On 31.5.2012 IO requested for a date on the ground that he had to appear before the court of Sh. A K Mehndiratta, Ld. Special Judge, CBI, Tis Hazari Courts, Delhi whereupon the matter was adjourned for today.
Ld. PP states that she has not received any instructions from IO/CBI department regarding the filing of supplementary charge sheet in this case. She further states that matter may kindly be proceeded further for arguments on charge on the basis of material placed on record or it may be adjourned sine die.
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Vide letter No. 423432/DHC/Gaz./G
X/Instructions/2012 dt. 25.1.2012, directions have been issued to all CBI Courts to make efforts for the expeditions disposal of the cases under P.C.Act. Further directions have been issued that cases pending for more than 5 years be disposed of within a period of six months.
Recently vide order dated 10.5.2012, the Apex Court in "CBI Jaipur Vs. Saurin Rasiklal Shah & ors." has directed Presiding Officers of the Special CBI Courts to make an endeavour to finally dispose of the pending cases within six months. Our High Court of Delhi has also issued a circular bearing No. 1137 dated 29.5.2012 in this regard.
The charge sheet was filed in March, 2008 and charges have not been framed yet. In these circumstances, I am not inclined to further delay the trial of the case as it appears that CBI is not interested in filing the supplementary charge sheet.
Put up for arguments on charge on 17th, 18th and 19th July, 2012. A copy of this order be sent to concerned SSP for information." (Emphasis supplied)
17. After the arguments on charge were heard at length on 18th and 19th July, 2012, Inspector Manish Kumar Upadhyay filed an application on 25.07.2012 for filing original documents. The relevant portion of the order passed on 25.07.2012 by this court is reproduced hereunder:
"Inspector Manish has filed an application for filing original documents. It is stated that files D3, D66 and D67 are not traceable and the efforts are going on to locate the same. There are directions from the Apex Court as well as Delhi High Court for expeditious trial of CBI and PC Act cases. The said fact has been mentioned by this court in order dated 2.7.2012. Arguments on charge have been heard at length by this court on 18th and 19th July, 2012 also. It is clarified that the order on charge will be announced on the material available CBI Vs. Dilip Bhattacharya and others Page 11/22 (Seema CGHS) on record. However, the present application is allowed. Documents be taken on record." (Emphasis supplied)
18. It is contended that if illegal investigation is brought to the notice of the trial court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused have pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
19. The contention that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.09.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
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20. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences, as notified, are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the co operative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
21. All the accused have raised the contention that the DCS Act is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act CBI Vs. Dilip Bhattacharya and others Page 13/22 (Seema CGHS) which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments 'Laljit Rajshi Shah' (supra) and 'Greater Bombay Coop. Bank Ltd.' (supra).
22. On the other hand, it is contended by Ld. PP for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
23. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been charge CBI Vs. Dilip Bhattacharya and others Page 14/22 (Seema CGHS) sheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
24. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 02.08.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.CBI Vs. Dilip Bhattacharya and others Page 15/22
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25. These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation.
26. Prosecution has cited 53 witnesses in support of its case. However, the statements U/s 161 Cr.P.C of PW1 to PW9, PW15, PW19, PW23, PW27 to PW32, PW39 to PW47 and PW49 to PW51 were not recorded by the Investigating Officer during the investigation of the case. Ld. PP for CBI conceded that statements of the aforesaid witnesses have not been recorded U/s 161 Cr.P.C by the CBI and they are not on record. Prosecution has also failed to produce before the court original files D3, D66 and D67.
27. File D3 is a relevant file as it relates to the Notings/Proceedings concerning the Seema CGHS in the office of RCS but the same has not been produced by the CBI. There is no oral evidence also on record against accused No.1 to 4 to connect them with the commission of the alleged offences. Hence, they are discharged.
28. As regards A5 Tripit Prasad, indisputably GEQD opinion is not against him. In the GEQD opinion/report No. DXC 245/2007 dated 19.09.2007 it has been categorically mentioned that "it has not been possible to express any opinion on rest of the items on the basis of material at hand". A5 was the President of Seema CGHS. He filed CBI Vs. Dilip Bhattacharya and others Page 16/22 (Seema CGHS) fake/forged record with the RCS. Even though, GEQD opinion/report is not against A5 Tripit Prasad, there is oral evidence against him as PW12, PW13, PW16 and others have deposed against him. Thus, there is sufficient material for framing of charge against him.
29. So far as A6 Jeet Pal Singh is concerned, GEQD opinion is against him vide report no. DXC245/2007 dated 19.09.2007. He forged the signatures of some of the members of Seema CGHS. Ld. Counsel Sh. R. P. Shukla has fairly conceded that prima facie case is made out against accused no.6. Thus, there is sufficient material for framing charge against A6 Jeet Pal Singh.
30. As regards A7 B.N. Singh, even though, there is no oral evidence against him, but the fake proceedings in the register (file D6) from 18.06.2000 to 03.03.2002 concerning Seema CGHS were found to be in his handwriting. GEQD opinion in this regard is on record. Thus, there is sufficient material against him for framing of charge.
31. In Judgment 'Vijyan @ Rajan v. State of Kerela', AIR 1999 Supreme Court 1086, it was held by the Apex Court as under:
"To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be CBI Vs. Dilip Bhattacharya and others Page 17/22 (Seema CGHS) reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy."
32. In Judgment 'John Pandian' (supra) it was held by the Apex Court as under:
"It is significant at this stage to note the observations in V.C. Shukla (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, Pasayat, J. in Esher Singh v. State of A.P., 2004(11) SCC 585 observed that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy."CBI Vs. Dilip Bhattacharya and others Page 18/22
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33. The Apex court in case 'State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru' 2005(3) JCC 1404 held that to constitute the offence of conspiracy, mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for doing any illegal act or an act by illegal means . From the facts in hand, some act more than mere knowledge should be attributable to the alleged accused.
34. In 'Som Nath Thapa' (supra), charge against accused Abu was that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds. It was contended on behalf of the state that the financial assistance by accused Abu would attract the mischief of Section 3(3) of TADA. Apex court discharged accused Abu and observed as under:
"We may state that as framing of charge affects a person's liberty substantially, as pointed out in Muniswamy's case (AIR 1977 SC 1489) (supra), the materials on record must satisfy the mind of the Court framing the charge that the commission of offence by the accused in question was probable. We do not find a conclusion can reasonably be drawn only from the above noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being no material to frame individual charge under Section 3(3) of TADA, we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets."CBI Vs. Dilip Bhattacharya and others Page 19/22
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35. As regards accused No. 8, Ld. Counsel vehemently contended that the allegations made against A8 in the chargesheet are not substantiated by oral/documentary evidence on record. According to him, in the chargesheet it is mentioned that "on 27.02.1998 Sh. Tripit Prasad alongwith Secretary Sh. S.S. Ahuja and Attar Singh, member attended the RCS office and this Attar Singh is the same as A.S. Rana who was a builder and who ultimately constructed the flats in the name of the company floated in his wife's name." However, A8 A.S. Rana never appeared in the office of RCS on 27.02.1998 and the prosecution has falsely stated so in the charge sheet.
36. I have gone through the file. There is neither documentary nor oral evidence on record to prove that on 27.02.98 A8 appeared in the office of RCS with Tripit Prasad and S.S.Ahuja.
37. PW52 Rajesh Verma and PW53 K.N. Pandey have alleged that A8 A.S. Rana was managing/controlling the society Seema CGHS. PW53 K.N. Pandey in his statement u/s 161 Cr.P.C dated 01.01.08 has stated as under:
"Being in the field of Architects and builders I had heard that Rana builder had purchased this society. I cannot give any proof or link but I know that this society has been taken/controlled by Attar Singh Rana. Sh. Tripit Prasad and S.S. Ahuja are involved in the this deal. As these two persons were active at the time of revival".
(Emphasis supplied) CBI Vs. Dilip Bhattacharya and others Page 20/22 (Seema CGHS)
38. It is the settled law that presumptions, howsoever strong, cannot take place of proof. Merely on the basis of hearsay evidence/bald statements made by PW52 and PW53, no charge can be framed against A8 A.S. Rana.
39. Accused A.S. Rana (A8) was neither the office bearer of the Seema CGHS nor its contractor for the construction of flats. The contract for the construction work was awarded to M/s S.K. Construction company on 12.08.2000. This company is in the name of the wife of A8 A.S. Rana. Merely because the contract for construction was awarded to M/s S.K. Construction Company or on the basis of bald statements made by PW52 and PW53, no charge of conspiracy can be framed against A8 A S Rana. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established which the prosecution has failed to establish. The evidence on record is too scanty and meager to bring in application of sec. 120(B) IPC against A8 A.S. Rana. Ingredients of Section 420/468/471 IPC are also not attracted against him. As there is neither oral nor documentary evidence on record to connect A8 with the alleged offences, he is discharged.
40. Our Apex Court in 'Union of India v. Prafulla Kumar Sqamal', (1979) 3 SCC 4, has held that the Court has power to sift and weigh the evidence - although for the limited purpose of finding out CBI Vs. Dilip Bhattacharya and others Page 21/22 (Seema CGHS) whether a prima facie case against the accused has been made out or not. In 'Prafulla' (supra), it has also been held that where materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the facts and circumstances of the present case, this court is of the view that the case has emerged in favour of the accused Nos.1, 2, 3, 4 and 8 rather than in favour of the prosecution and, consequently, accused Nos. 1, 2, 3, 4 and 8 are discharged. Thus, from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against accused Nos.5, 6 and 7 of having entered into a criminal conspiracy to cheat the Offices of RCS and DDA.
41. In view of the above discussion, I am of the opinion that prima facie case is made out against accused Nos. 5, 6 and 7 for committing offences punishable under Sections 120B, 420, 468, 471 IPC and substantive offences thereof.
Announced in the open court (PRAVEEN KUMAR) on dated 13.8.2012. Special Judge, PC Act, CBI3, Rohini Courts, Delhi.
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