Delhi District Court
Cbi vs . Narayan Diwakar & Another on 29 August, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 21/11
RC No. BD 1/2005/E/0017/CBI/BS & FC
CBI Vs. Narayan Diwakar & another
(Bhartiya Vikas CGHS)
Reserved for order on : 08.08.2011
Date of Order : 29.08.2011
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Bhartiya Cooperative Group Housing Society (CGHS) Ltd was originally registered on 19.8.1971 under Registration No. 80 (H) with 16 promoter members by Registrar, Cooperative Societies (RCS), Delhi. The registered address of the society was 13, Malka Ganj, Delhi. However, after registration the society failed to function in accordance with provisions of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as 'the DCS Act') and Rules and byelaws framed thereunder and became defunct. An Inspection u/s 54 of the DCS Act was ordered by Sh. H C Joshi, the then Assistant Registrar, to conduct an Inspection of the society. During the course of aforesaid inspection conducted in 1977 & 1978, Smt Kamlesh Dhawan, Secretary of the aforesaid CBI Vs. Narayan Diwakar Page 1/17 and another (Bhartiya Vikas CGHS) society informed that the society was no longer functional and requested to issue a winding up/cancellation order. Since the society had become dysfunctional, it was ordered to be brought under liquidation vide order issued u/s 63 of the DCS Act under signatures of Sh. Ashok Bakshi, the then Dy. Registrar, Registrar Cooperative Societies (RCS) Office who was conferred with the Powers of the RCS in this regard.
2. Accused Narayan Diwakar, the then Registrar of Cooperative Societies (RCS), accused Jitender Singh Sharma, the then Assistant Registrar, South West Zone, office of the RCS; accused Raman Kumar Verma, the then UDC, South West Zone, RCS Office, accused Sushil Kumar Sharma, the then GradeIII, Audit Branch, RCS Office, accused Ram Narayan Yadav, the then Junior Auditor, RCS Office, accused Prem Narain Sharma, accused Arjun Singh, accused Narender Mann, accused Manish Malik and accused Sunil Kumar during the years 200203 entered into a criminal conspiracy with the object to fraudulently revive the Bhartiya CGHS which was a defunct society and to cheat the DDA for allotment of land to the said society at subsidized rates and, thereby, obtaining pecuniary advantage for themselves and/or others.
3. Acused Jitender Singh Sharma, accused Raman Kumar Verma, CBI Vs. Narayan Diwakar Page 2/17 and another (Bhartiya Vikas CGHS) accused Prem Narain Sharma and other accused persons fraudulently and dishonestly obtained possession of the RCS Office file relating to the Bhartiya CGHS Ltd even though the said file was required to be maintained in the North West Zone. Thereafter, they got inserted a false and forged letter dated 6.9.1971 purportedly issued by Smt Kamlesh Dhawan, the then Secretary of the society, showing that the Bhartiya CGHS Ltd had enrolled fresh members vide two proceedings purportedly held on 30.8.1971 and 5.9.1971 respectively and the total strength of members of the society became 102 after the aforesaid purported enrollment of members. Later, during the process of revival, the aforesaid figure of 102 members was further altered to 107 members by overwriting to make it appear that the society had 107 genuine members.
4. Investigation has further revealed that accused Prem Narain Sharma with the object to get processed the revival proceedings from the South West Zone, submitted a false letter dated 23.1.2003 which was signed by him as Shyam Lal, Secretary of the Bhartiya CGHS Ltd., vide which it was informed to the RCS office that the registered address of the Bhartiya CGHS Ltd was changed from 13, Malka Ganj, Delhi to Rangpuri, New Delhi. Thereafter, he submitted an application for revival of the CBI Vs. Narayan Diwakar Page 3/17 and another (Bhartiya Vikas CGHS) Bhartiya CGHS Ltd in the changed name of the Bhartiya Vikas CGHS Ltd before the RCS, New Delhi. The said application was signed by accused Prem Narain Sharma as "Shyam Lal", so called secretary of the society, who was, in fact, a fictitious and nonexistent person.
5. Accused Raman Kumar Verma, Dealing Assistant got the said application diarised and put up a note dated 28.1.2003 in the RCS Office file of the Bhartiya CGHS Ltd. However, he deliberately did not mention as to how, he got possession of the said file which related to the North/North West Zone. The said note was put up to accused Jitender Singh Sharma. Since the society belonged to the North/North West Zone, accused Jitender Singh Sharma was duty bound to forward the said application, along with the RCS Office file relating to the said society to that zone, but he, dishonestly omitted to do so and concealed this fact in his note dated 29.1.2003.
6. A letter was issued by Shri Manmohan Singh to the President/Secretary of the society to produce the documents on or before 12.2.2003. Shri N S Khatri delivered the said letter by hand to accused Prem Narain Sharma and accused Arjun Singh who visited the RCS premises on 5.2.2003 to pursue the fraudulent revival of the society. On 7.2.2003 accused Prem CBI Vs. Narayan Diwakar Page 4/17 and another (Bhartiya Vikas CGHS) Narain Sharma impersonated as Shyam Lal, Secretary of the Society and attended the RCS office.
7. On 13.2.2003, accused Prem Narain Sharma again impersonated as Shyam Lal, so called Secretary of the society and appeared before accused Narayan Diwakar, RCS. Accused Narayan Diwakar issued directions to accused Jitender Singh Sharma, the zonal AR to verify the membership, election and audit position of the society and adjourned the matter to 18.2.2003. However, he deliberately ignored to pass orders for conducting Inspection of the society u/s 54 of the DCS Act and also did not order any physical verification of the purported members of the society even though the case for approval of their membership was forwarded to the RCS for the first time.
8. In pursuance of the aforesaid criminal conspiracy, accused Jitender Kumar Sharma and accused Raman Kumar Verma showed presence of the said Sh. Hari Shankar, a nonexistent and fictitious person, before them on 14.2.2003 and showed that he produced records of the Bhartiya CGHS Ltd and the Bhartiya Vikas CGHS Ltd including the MC Register and copies of the MC meetings purportedly held on 30.8.1971 and 5.9.1971 wherein applications of members were purportedly considered for enrollment.
CBI Vs. Narayan Diwakar Page 5/17 and another (Bhartiya Vikas CGHS)
9. The documents so filed by them or produced were, in fact, false and forged documents which was evident from the fact that the aforesaid documents showed that the society had taken a decision to make a representation to the RCS office against the order of winding up on 20.1.1977 which was contrary to the fact that the society was brought under liquidation only on 27.12.1978 and no decision in this regard could have been taken in 1977 i.e before the issue of the said order. The forgery of aforesaid documents was also evident from the fact that the signatures of the promoter members in the individual affidavits filed in February, 2003 as well as on the copies of proceedings submitted were at great variance with their genuine signatures available on the affidavits, application for registration and other documents filed by them at the time of registration of the society in 1971.
10. In the note recorded in RCS file on 14.2.2003, the number of the members was mentioned as 107 by accused Raman Kumar Verma and the same was endorsed by accused Jitender Singh Sharma whereas the said number was mentioned as 102 members in all the documents submitted as well as in note sheet till that time. In order to conceal this discrepancy, accused Jitender Singh Sharma and accused Raman Kumar Verma CBI Vs. Narayan Diwakar Page 6/17 and another (Bhartiya Vikas CGHS) dishonestly got altered the earlier figure of 102 members appearing in the application of revival and the false and forged letter dated 6.9.1971 to 107 members to facilitate the revival of the society with 107 members. Thus, the names of five new members including accused Narender Mann, accused Manish Malik and accused Sunil Kumar were added to the said list. As such accused Narender Mann, accused Manish Malik and accused Sunil Kumar fraudulently became members of the society in order to get the benefit of allotment of land. Accused Sunil Kumar also forged the signatures of Smt Sunita Sharma on the affidavit submitted in her name at this stage.
11. On 18.2.2003, accused Raman Kumar Verma prepared a detailed note giving the background of the society and falsely showed that the society had enrolled 91 new members in 1971 which was verified from the original records of the society. However, in pursuance of the aforesaid criminal conspiracy, he deliberately omitted to mention that at the time of the aforesaid purported enrollment, a majority of the aforesaid 91 purported members (51 out of 91) was not even born or was under the age of 18 years and were thus not qualified to become members of the society.
12.Investigation has further revealed that 86 out of the aforesaid 91 CBI Vs. Narayan Diwakar Page 7/17 and another (Bhartiya Vikas CGHS) members were fictitious and nonexistent at their given addresses and their signatures on the applications for enrollment and affidavits submitted in their names were forged by accused Prem Narain Sharma and accused Arjun Singh who also forged the signatures of the 16 promoter members of the society on the affidavits submitted in their names for getting the society fraudulently revived.
13.Investigation has further revealed that in utter disregard to the provisions of the DCS Act, Rules and existing guidelines and in pursuance of the criminal conspiracy to defraud DDA, accused Jitender Singh Sharma recommended the case of revival of the society and for forwarding the list of aforesaid 1207 members to DDA for allotment of land vide his note dated 19.2.2003. He falsely recorded that all the documents submitted by the society were verified and were in order.
14. On 20.2.2003 accused Narayan Diwakar passed orders for revival of the society. While passing the said order, accused Narayan Diwakar deliberately ignored the various forgeries which were evident from the contradictions appearing in the documents submitted by accused Prem Narain Sharma and accused Arjun Singh visavis the information and documents available in the original RCS office itself. In the said revival CBI Vs. Narayan Diwakar Page 8/17 and another (Bhartiya Vikas CGHS) order, he also directed that audit in the society would be completed within a period of two months from the date of order and also appointed accused Sushil Kumar Sharma, GradeIII as Election Officer to conduct the elections of the society within two months from the date of order. Investigation has revealed that accused Sushil Kumar Sharma prepared and submitted a false election report showing that he had conducted the elections in Bhartiya Vikas CGHS Ltd in which 27 purported members of the society were shown present. However, no member actually attended the proceedings and accused Sushil Kumar Sharma prepared and submitted a false election report without conducting any election with the object to make Bhartiya CGHS Ltd functional.
15.Investigation has further revealed that even before the conduct of the aforesaid audit and elections, accused Jitender Singh Sharma forwarded the list of 107 members of the Bhartiya/Bhartiya Vikas CGHS Ltd to the Assistant Registrar (Policy) for onward submission to DDA for allotment of land which was delivered to accused Prem Narain Sharma by the dispatcher under instructions of accused Jitender Singh Sharma.
16. The handwriting expert has confirmed the forgeries committed CBI Vs. Narayan Diwakar Page 9/17 and another (Bhartiya Vikas CGHS) by accused Prem Narain Sharma, accused Arjun Singh and accused Sunil Kumar on the false and forged documents submitted for fraudulent revival of the society. After the investigation, chargesheet was filed in the court against all the accused for committing offences under Indian Penal Code, 1860 (IPC) and Prevention of Corruption Act, 1988 (PC Act).
17. I have heard Sh. Akhilesh, Ld. PP for CBI, Sh. S K Bhatnagar, Ld. Counsel for accused Raman Kumar Verma. I have also gone through the written submissions filed on behalf of accused Narayan Diwakar and accused J S Sharma.
18.Accused Narayan Diwakar contended that he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545 wherein it was held that if illegal investigation is brought to the notice of the trial court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan CBI Vs. Narayan Diwakar Page 10/17 and another (Bhartiya Vikas CGHS) Diwakar has 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 provisions of IPC instead of DCS Act which is a Special Act.
19. The contention of accused Narayan Diwakar 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 this view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
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 CBI Vs. Narayan Diwakar Page 11/17 and another (Bhartiya Vikas CGHS) 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 cooperative 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. Accused J S Sharma has placed reliance upon the order dated 26.5.2010 in WP (C) No. 1877/2010, order dated 9.9.10 in WP (C) No. 5164/2010 and order dated 23.5.2011 in WP (C) No. 2441/2011 all passed by High Court of Delhi. Accused J S Sharma has also placed reliance upon judgments A P Narang Vs. CBI, Crl. Rev. P. Nos. 397/2010 dated 17.1.2011 and Tilak Upbhokta Sahkari Store Ltd. Vs. Registrar Cooperative Societies and others, AIR 2003 Delhi 1. I have gone through these judgments/orders. These judgments/orders are not applicable to the facts and circumstances of the present case.
22. All the accused have raised the contention that the DCS CBI Vs. Narayan Diwakar Page 12/17 and another (Bhartiya Vikas CGHS) 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 which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offences alleged to have been committed by the accused are punishable under the provisions of Special law and, therefore, the provisions of Indian Penal Code, being general law, cannot be invoked. In support of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
23. On the other hand, it is contended by Ld. PP Sh. Akhilesh 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, CBI Vs. Narayan Diwakar Page 13/17 and another (Bhartiya Vikas CGHS) it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
24. 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 chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
25. Accused Narayan Diwakar has relied upon judgment Vikas CGHS Vs. RCS, CWP No. 1767 of 1986 decided on 21.11.1986 by the High Court of Delhi. The said judgment is not applicable to the facts of the present case. After the judgment of Vikas CGHS (Supra), a direction was passed by the High Court of Delhi in CWP No. 10667/04 on 2.8.2005 directing CBI to investigate the present matter and other similar matters where group housing societies were fraudulently got revived. If there CBI Vs. Narayan Diwakar Page 14/17 and another (Bhartiya Vikas CGHS) was no need of passing an order for setting aside the liquidation proceedings of Bhartiya CGHS, then there was no necessity for accused Narayan Diwakar to pass an order in the year 2003 for revival of the society. Accused Narayan Diwakar, therefore, cannot claim the applicability of the judgment Vikas CGHS (supra) to the present controversy.
26. According to accused Narayan Diwakar, he was discharging his quasijudicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application moved for revival of the society. In my opinion, the facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. The society which was not in existence was revived in the garb of being under liquidation on the strength of order dated 27.12.1978. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA. CBI Vs. Narayan Diwakar Page 15/17 and another (Bhartiya Vikas CGHS)
27. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Accused Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of Office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. The accused persons did everything they could do in furtherance of the conspiracy entered into between them and just because land was not alloted to society is not a ground to discharge the accused persons.
28. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the Office of RCS and DDA.
29. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Narayan Diwakar (A1), accused Jitender Singh Sharma (A2), accused Raman Kumar Verma (A3), accused Sushil Kumar Sharma (A4), accused Ram Narain Yadav (A5), accused Prem Narain CBI Vs. Narayan Diwakar Page 16/17 and another (Bhartiya Vikas CGHS) Sharma (A6), accused Arjun Singh (A7), accused Narender Mann (A8), accused Manish Malik (A9) and accused Sunil Kumar (A10) for committing offences U/s 120B r/w U/s 420/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) of PC Act, 1988.
(ii) Primafacie case is made out against accused Narayan Diwakar (A-1) accused Jitender Singh Sharma (A2), accused Raman Kumar Verma (A3), accused Sushil Kumar Sharma (A4) and accused Ram Narain Yadav (A5) u/s 15 r/w 13 (1)
(d) of PC Act, 1988.
(iii) Primafacie case is made out against accused Prem Narain Sharma (A6) and accused Arjun Singh (A7) u/Ss. 419/420/511/468/471 IPC.
(iv) Primafacie case is made out against accused Sunil Kumar (A10) u/Ss. 420/511/468/471 IPC.
(v) Primafacie case is made out against accused Narender Mann (A8) and accused Manish Malik (A9) u/Ss. 420/511 IPC.
Announced today in open (PRAVEEN KUMAR) court on 29.8.2011. Special Judge, PC Act CBI3, Rohini Court, Delhi.
CBI Vs. Narayan Diwakar Page 17/17 and another (Bhartiya Vikas CGHS) Sh. R.P. Shukla, Ld. Counsel for accused Nos. 4 & 9 has relied upon judgment P. Vijayan v. State of Kerala 2010(2) SCC CBI Vs. Narayan Diwakar Page 18/17 and another (Bhartiya Vikas CGHS)