Delhi District Court
Cbi vs Narayan Diwakar @ N Diwakar on 16 December, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 82/11
RC No. SU/2006/E001/EOUIV
CBI
Versus
1.Narayan Diwakar @ N Diwakar S/o Late Sh. Chhati Lal R/o G30, Masjid Moth, Greater KailashII, New Delhi38.
2. Sukhbir Singh S/o Sh. Ratan Singh R/o Village Balaur, P.O. & Tehsil Bahadurgarh, PS Sadar Bahadurgarh, Distt Jhajhar, Haryana.
3. Bhawna Chauhan W/o Praveen Chauhan R/o E16/3, Paryavaran Complex, (IGNOU Road), New Delhi30.
4. Sh. Sushil Prakash Saxena @ S.P. Saxena S/o Late Sh. Raja Bahadur Saxena R/o 664, Adarsh Purwal CGHS, Princess Park, Sector6, Dwarka, Delhi75 CBI Vs. Narayan Diwakar & others Page 1/17 (Citizen Welfare CGHS)
5. Sh. Ashwani Sharma S/o Late Sh. Ram Kishan Sharma R/o 291A, PocketC, Mayur Vihar PhaseII, Delhi91
6. Sh. Markanday Mishra S/o Sh. Raj Narayan Mishra R/o BI38A, Shalimar Bagh, Delhi88
7. Sh. Sita Ram Goyal @ S.R. Goyal S/o Sh. Ramdhari Goyal R/o 56A, Suraj Nagar, Azadpur, Delh
8. Sh. Prahlad Kumar Thirwani @ P K Thirwani S/o Sh. Late Moti Ram Thirwani R/o 348E, PocketII, Mayur Vihar, PhaseI, Delhi92. ....Accused Persons (Citizen Welfare CGHS) O R D E R O N C H A R G E:
1. The case of the CBI, in brief, is that the present case was registered on 02.01.2006 in CBI, SPE, EOUVI Branch, New Delhi u/s 120B r/w 419, 420, 467, 468, 471 & 511 of IPC and Section 13 (2) r/w 13 (1) (d) of PC Act, 1988 and substantive offences thereunder against accused Narayan Diwakar, the then Registrar Cooperative Societies (RCS), Delhi and others in the CBI Vs. Narayan Diwakar & others Page 2/17 (Citizen Welfare CGHS) matter of unauthorized/illegal revival and allotment of land to Citizen Welfare Cooperative Group Housing Society Ltd (Citizen Welfare CGHS Ltd.). After investigation a charge sheet was filed on 27.6.2007 in the court against accused persons since they were found involved in the commission of offences punishable under aforesaid sections of IPC and PC Act, 1988.
2. Investigation has revealed that Citizen Welfare CGHS Ltd was registered on 19.10.1983 with the Registrar of Cooperative Societies (RCS), Delhi vide Registration No. 763 with 93 promoter members having registered office at A8, Rana Pratap Bagh, Delhi. The aforesaid society was wound up vide order dated 03.04.1991 passed by Shri Satish Mathur, the then Deputy Registrar (GH), office of RCS, due to certain reasons.
3. On 20.02.2003, accused Ashwani Sharma impersonating himself as Jagdish Gupta, Secretary of the society, submitted an application to RCS accused Narayan Diwakar for revival of the society. Accused Markandey Mishra, the then Dealing Assistant put up a note dated 25.2.2003 proposing to obtain the records of the society and on the same day a letter was sent by Smt. CBI Vs. Narayan Diwakar & others Page 3/17 (Citizen Welfare CGHS) Shakuntala Joshi, the then Assistant Registrar, to the President/Secretary of the society to provide the necessary documents. Accused Markandey Mishra vide his note dated 30.4.2003 indicated that the photocopy of the records have been supplied by the society. Accused Sukhbir Singh, GradeIV, was asked to conduct the spot verification/inspection. On 16.6.2003, accused Sukhbir Singh submitted a false report mentioning that registered address of the society was found locked and during enquiry it was found that the office of the society had been shifted to Plot No. 5, Mefcon Plaza, Sector6, Dwarka, Delhi.
Accordingly, he went to this address of the said office and Shri Jagdish Gupta, Secretary of the society, made available of the records of society.
4. In pursuance of the said criminal conspiracy, accused Sukhbir Singh submitted his undated inspection report along with the records collected by him to accused Sita Ram Goyal who by this time had taken over the charge of Asstt. Registrar (N) from Smt. Shakuntala Joshi. On receipt of inspection report along with the record from accused Sukhbir Singh, accused Sita Ram Goyal marked the same to accused Markanday Mishra, the concerned dealing hand.
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5. In pursuance of the said criminal conspiracy, accused Markanday Mishra and accused Sita Ram Goyal accepted the above mentioned bogus, fabricated and forged records without conducting the verification of the membership and office bearers as well as the inspection report of accused Sukhbir Singh along with the records shown to be collected by him and brought these bogus fabricated and forged record on the concerned office file.
6. It is further alleged that in pursuance of the said criminal conspiracy accused Markanday Mishra and accused Sita Ram Goyal vide their notes dated 25.6.2003 forwarded the file to accused Narayan Diwakar through his Reader who gave a note on the file that as per Section 63 (3) of Delhi Cooperative Societies Act, 1972, the Registrar may cancel any order of winding up of a cooperative society at any time in any case where in his opinion the society should continue to exist and requested the RCS to issue a notice u/s 63 (3) of Delhi Cooperative Society Act, 1972 to the President/Secretary of the society for initial hearing on 17.7.2003.
7. Thereafter, on 01.09.2003, the society was revived by CBI Vs. Narayan Diwakar & others Page 5/17 (Citizen Welfare CGHS) accused Narayan Diwakar, Registrar of Cooperative Societies.
8. Accused P.K. Thirwani, AuditorOffice of RCS, submitted an audit report of the society for the year 200304 without conducting any audit. The signatories on the said audit report have denied their signatures on the same. One Shri Sanjay Kapasia admitted that he procured the audit reports on the direction of accused S.P. Saxena on his computer.
9. Shri Rajender Sharma, the founder Secretary of the society, has confirmed that accused Ashwani Sharma and accused S.P. Saxena impersonating themselves as Mr. Sharma and Mr. Gupta of RCS office visited his house in the winter of 2004 and collected original records of the society for official purpose.
10. Accused in criminal conspiracy with each other attempted to cheat the government to cause wrongful laws to the government and corresponding wrongful gain to themselves by way of allotment of land in favour of said defunct society from the DDA on the basis of fabricated, bogus and forged documents and thus deprived the genuine members of their rightful allotment of land/flats.
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11. The G.E.Q.D. Shimla has given positive opinion that many of the documents of the said society viz. Application dated 20.02.2003, minutes of meeting of managing committee, application for withdrawal from membership and for enrollment of membership, balance sheet, audit report, byelaws of the society, ledger account, list of 93 members, register of members, affidavit furnished by Secretary and affidavit furnished by Individual members, bear the forged signatures made by Ashwani Sharma and many of above mentioned documents have the text matching with the text found in the computers recovered from the premises of accused S.P. Saxena and accused Ashwani Sharma. After completing investigation, chargesheet 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).
12. I have heard Sh. A.P. Singh, Ld. PP for CBI ;
Sh. R.P. Shukla, Ld. Counsel for accused Markanday Mishra (A6) and accused Sita Ram Goyal (A7) and Sh. S K Bhatnagar, Ld. Counsel for accused P K Thirwani (A8).
I have also gone through the written submissions filed on behalf CBI Vs. Narayan Diwakar & others Page 7/17 (Citizen Welfare CGHS) of accused Narayan Diwakar (A1), accused S P Saxena (A4), accused Ashwani Sharma (A5) and accused Sita Ram Goyal (A7).
13. Sh. R P Shukla, Ld. Counsel for A6 and A7 contended that there is a difference between 'liquidation' and 'windingup'. 'Liquidation' means cancellation while 'windingup' means 'keeping in abeyance/suspension'. In other words, according to him, under the liquidation the registration of the CGHS is cancelled whereas in windingup the registration subsists. Ld. Counsel contended that there is nothing on record to suggest that accused No. 6 and 7 entered into a conspiracy with other accused persons or the documents were forged by them in connivance of the other accused persons. Ld. Counsel has drawn the attention of this court to documents 20/N, 22/N and 24/N in file D4. In support of his contention Ld. Counsel has relied upon judgments State of Maharashtra Vs. Som Nath Thapa, AIR 1996 SC 1722 and State vs. Navjot Sandhu, 2005(II) SCC 600.
14. Accused S P Saxena has relied upon order dated 21.11.1986 in Civil Writ Petition No.1767/1986 titled as Vikas CGHS Vs. CBI Vs. Narayan Diwakar & others Page 8/17 (Citizen Welfare CGHS) Registrar Cooperative, passed by High Court of Delhi; judgment A P Narang Vs. CBI, Crl. Rev. P No. 397/2010 dated 17.1.2011; order dated 21.4.2011 in WP (C) No. 1645/2011 titled as Jai Bhawani Cooperative Group Housing Society Ltd. Vs. Registrar, Cooperative Societies; order dated 23.5.2011 in WP (C) No. 2441/2011 and CM No. 5219/2011; judgment Balbir Vs. State of Haryana & another, 1999 STPL (LE) 26858; judgment Sanjay Vs. State, WP (Crl) 582/2008 and Crl. M.A. 5393/2008 dated 17.03.2009 passed by High Court of Delhi; order dated 25.8.1964 in Crl. Appeal No. 42 of 1963 titled as Avtar Singh Vs. State of Punjab; judgment Union of India & Ors Vs. Sadha Singh, 1999 STPL (LE) 26852 SC; Prabha Mathur Vs. Pramod Aggarwal, 2008 (13) SCALE 71; judgment State of Maharashtra Vs. Laljit Rajshi Shah & Ors., 2000 STPL (LE) 27618 SC and order dated 26.3.2010 in Crl. Appeal No. 42/2010 titled as Salamat Ali Vs. State passed by High Court of Delhi.
15. I have gone through the judgments cited before me. These judgments are not applicable to the facts of the present case.
16. According to accused Narayan Diwakar, he has done nothing CBI Vs. Narayan Diwakar & others Page 9/17 (Citizen Welfare CGHS) 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 Diwakar and accused S P Saxena 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.
17. 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 CBI Vs. Narayan Diwakar & others Page 10/17 (Citizen Welfare CGHS) 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 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
18. 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.
19. All the accused have raised the contention that the DCS Act, is CBI Vs. Narayan Diwakar & others Page 11/17 (Citizen Welfare CGHS) 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 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 State of Maharashtra Vs. Laljit Rajshi Shah (supra) and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd., 2007(5) SCALE 366.
20. 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. CBI Vs. Narayan Diwakar & others Page 12/17
(Citizen Welfare CGHS)
21. 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 sheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
22. According to accused Narayan Diwakar, he was discharging his quasi judicial 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.
23. The facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused CBI Vs. Narayan Diwakar & others Page 13/17 (Citizen Welfare CGHS) 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. 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.
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 2.8.05 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 CBI Vs. Narayan Diwakar & others Page 14/17 (Citizen Welfare CGHS) 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.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
25. It is contended on behalf of accused S P Saxena that Shri A P Singh, Ld. PP for CBI is representing in other 12 cases pending before this court and his representation in other cases is prejudicial to the accused for getting free and fair trial as judicial treatment in one case will be further forwarded in other cases. In support of his contention accused S P Saxena has relied upon judgment Balbeer Singh (Supra). I have gone through this judgment. The judgment is not applicable to the facts of the present case. Even otherwise, the Ld. PP for CBI Sh. A P Singh has been transferred to other court and Dr. Padmini is representing the CBI in the cases before this court. Hence, there is no CBI Vs. Narayan Diwakar & others Page 15/17 (Citizen Welfare CGHS) question of any prejudice to be caused to the accused.
26. 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.
27. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Narayan Diwakar (A1), Sukhbir Singh (A2), Smt. Bhawna Chauhan (A3), Sushil Prakash Saxena (A4), Ashwani Sharma (A5), Markanday Mishra (A6), Sita Ram Goyal (A7) and Prahlad Kumar Thirwani (A8) for committing offences U/s 120B IPC r/w U/s 419/420/467/468/471 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 (A1), Sukhbir Singh, A2, Smt. Bhawna Chauhan, A3, Sh. Markanday Mishra, A6, Sita Ram Goyal, A7 and accused Sh. Prahlad Kumar Thirwani A8 u/s. 15 r/w 13(1)(d) of PC Act;
(iii) Primafacie case is made out against accused Sushil Prakash Saxena (A4) U/s 419/511, 420/511 and 471/511 of IPC CBI Vs. Narayan Diwakar & others Page 16/17 (Citizen Welfare CGHS) and
(iv) Primafacie case is made out against accused Ashwani Sharma (A5) u/S 419/511, 420/511, 467, 468 and 471 IPC.
Announced today in open (PRAVEEN KUMAR) court on 16.12.2011. Special Judge, PC Act CBI3, Rohini Court, Delhi.
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