Delhi District Court
Cbi vs . Narayan Diwakar & Another on 14 September, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 32/11
RC No. BD 1/2005/E009/CBI/BS & FC/New Delhi
CBI Vs. Narayan Diwakar & another
(Indian Oil Employees CGHS)
Reserved for order :29.8.2011
Date of Order: 14.09.2011
ORDER ON CHARGE
1.The case of the CBI, in brief, is that Indian Oil Employees Cooperative Group Housing Society (CGHS) was registered on 24.04.1972 vide Registration No. 125 (GH) with 15 promoter members. Later on some more members were also enrolled in it. The registered office of the society was at Indian Oil Bhawan, Janpath, New Delhi. Due to nonobservance of statutory requirements, the society was wound up in the year 1979. Thereafter, since 1979 till August, 2003, the society remained defunct. During the year 2003, accused Narayan Diwakar, the then RCS, accused Yogi Raj, the then AR, accused Niranjan Singh, the then Dealing Assistant, accused Ram Nath, Inspector GrIII, accused Gokul Chand Aggarwal and accused Kamal Singh, LDCcumAuditor, entered into a criminal conspiracy to cheat DDA for allotment of land in the name of the aforesaid CBI Vs. Narayan Diwakar & Ors. Page 1/10 (Indian Oil Employees CGHS) society on the basis of false, forged documents and false list of members. Accused Gokul Chand Aggarwal impersonated himself as Sh. Ram Singh, Secretary of the society and fraudulently submitted an application dated 19.08.2003 to AR on forged letter head of the society requesting cancellation of winding up order. He forged signatures of Ram Singh on the documents viz list of 141 members, copy of byelaws, copy unaudited and audited accounts of the society, copy of Managing Committee minutes of the GBM dated 20.7.2003 etc. Said application was marked to accused Niranjan Singh on 21.08.2003 by accused Yogi Raj. Accused Niranjan Singh processed the application and put up a note on 21.08.2003, stating that main file of the society was not available in the branch and in first instance a circular be issued to all branches/zones requesting to trace the same and it found, it may be returned to that branch within 10 days. His suggestion for issue of circular was recommended by accused Yogi Raj and approved by accused Narayan Diwakar. Accordingly, a circular was issued on 09.09.2003. He again put up the file suggesting name of Sh. Ram Nath as Inspecting Officer which was endorsed by Sh. Yogi Raj and approved by Narayan Diwakar. Accused Ram Nath submitted a false report to the effect that he CBI Vs. Narayan Diwakar & Ors. Page 2/10 (Indian Oil Employees CGHS) visited office of the society, met Sh. Ram Singh, Secretary of the society, and verified records. Based on false and concocted report of Ram Nath, Niranjan Singh put up a note requesting the competent authority to consider revival of the society under the Act. Yogi Raj, AR, accordingly forwarded the note of Niranjan Singh to N.S. Khatri, the reader to RCS who put up the file before RCS on 15.10.2003. Accused Narayan Diwakar, the then RCS, approved the same on 16.10.2003 with direction to send the file to concerned zone for verification/examination of the membership and also to ascertain the audit/election position of the society.
2. On 24.10.2003, accused Yogi Raj issued a letter addressed to President/Secretary of the society to appear on 27.10.2003 along with original records of the society. On 27.10.2003, accused Gokul Chand Aggarwal, impersonating himself as Ram Singh, Secretary of the society, appeared and produced original records of the society before accused Niranjan Singh and accused Yogi Raj for verification. The documents were self attested and forged by accused Gokul Chand Aggarwal. Accused Kamal Singh submitted a false and manipulated audit report of the society. He clandestinely accepted the account documents viz balance sheet, receipts and CBI Vs. Narayan Diwakar & Ors. Page 3/10 (Indian Oil Employees CGHS) payments account, list of managing committee members, list of Managing Committee as on 30.06.1978, list of books of account, list of members resigned for the period 20022003 from accused Gokul Chand Aggarwal. Accused Gokul Chand Aggarwal was well known to accused Narayan Diwakar, accused Yogi Raj, accused Niranjan Singh and other officials of RCS. His impersonation as Ram Singh, Secretary of the society, makes it clear that Narayan Diwakar was in conspiracy with him and other officials of RCS and knowingly allowed accused Gokul Chand Aggarwal to use forged documents as genuine one and by placing reliance on those documents, he revived the society.
3. Sanctions for prosecution of accused Yogi Raj, the then Asstt Registrar, accused Niranjan Singh, the then Dealing Assistant, accused Ram Nath, then GradeII, Inspector, accused Kamal Singh, the then LDC/GradeIV as required u/s 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act') were obtained from the competent authority as they are public servants. After the investigation, chargesheet was filed in the court against the accused for committing offences under Indian Penal Code, 1860 (IPC) & PC Act.
4. I have heard Sh. Akhilesh, Ld. PP for CBI and Sh. S.K. CBI Vs. Narayan Diwakar & Ors. Page 4/10 (Indian Oil Employees CGHS) Bhatnagar Ld. Counsel for accused Yogi Raj. The written arguments of accused Narayan Diwakar are on record. The other accused were granted liberty to file written arguments on or before 06.9.2011. However, they did not file the written submissions.
5. According to accused Narayan Diwakar he has done nothing wrong while discharging his functions and has not violated the provisions of DCS Act & the Rules framed thereunder. He has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) As per Section 95 of the DCS Act, the RCS and its subordinate officials are indemnified from Civil Suits, prosecution of other legal proceedings in respect of anything done in good faith.
(c) Registration of case under provisions of IPC instead of DCS Act which is a Special Act.
8. 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 CBI Vs. Narayan Diwakar & Ors. Page 5/10 (Indian Oil Employees CGHS) 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.
9. It is further contended 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 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 IPC, being general law, cannot be invoked. In support of this contention, Ld. Counsel has relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors., AIR 2000 SC 937; CBI Vs. Narayan Diwakar & Ors. Page 6/10 (Indian Oil Employees CGHS) and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors., 2007(5) SCALE 366.
10. 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, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
11. 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.
12. Next, it is contended that the noncompliance of Sec.3 of CBI Vs. Narayan Diwakar & Ors. Page 7/10 (Indian Oil Employees CGHS) 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 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.
13. 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. 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 CBI Vs. Narayan Diwakar & Ors. Page 8/10 (Indian Oil Employees CGHS) of the society and they forwarded the letter to DDA for allotment of land. Therefore, primafacie case of cheating is also made out against the accused persons.
14. The facts and circumstances of the present case prima facie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. The society which was not in existence in the name of service officers CGHS was revived in the garb of being under liquidation on the strength of order dated 6.2.1979. 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. 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.
15. In view of the above discussion, I am of the opinion that:
(i) primafacie case is made out against accused Narayan Diwakar, accused Yogi Raj, accused Niranjan Singh, accused Ram Nath, accused Gokul Chand Aggarwal, and accused CBI Vs. Narayan Diwakar & Ors. Page 9/10 (Indian Oil Employees CGHS) Kamal Singh for commission of offences U/s 120B r/w Sec. 419/420/468/471 IPC and Section 13(2) r/w Section 13(1) (d) of PC Act, 1988.
(ii) Prima facie case is made out against accused Narayan Diwakar, accused Yogi Raj (A2), accused Niranjan Singh (A3) and accused Kamal Singh (A6) u/s 15 r/w Section 13(1)
(d) of P.C.Act, 1988.
(iii) Prima facie case is made out against accused Gokul Chand Aggarwal u/s 419, 420, 511, 468, 471 IPC.
Announced today in (Praveen Kumar) open court on 14.9.2011. Special Judge, PC Act, CBIIII, Rohini Courts, Delhi.
CBI Vs. Narayan Diwakar & Ors. Page 10/10 (Indian Oil Employees CGHS)