Delhi High Court
Narayan Diwakar vs Central Bureau Of Investigation on 23 April, 2018
Equivalent citations: AIRONLINE 2018 DEL 324
Author: Anu Malhotra
Bench: Anu Malhotra
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on : 20th March, 2018
Date of decision : 23rd April, 2018
CRL.A 45/2018 & Crl. M. (Bail) 73/2018
NARAYAN DIWAKAR ..... Appellant
Through Dr. Sushil Gupta, Adv.
versus
CENRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Ms. Rajdipa Behura, SPP for
CBI with Mr. Philomon Kani,
Ms. Kriti Handa, Ms. Hansika
Sahu, Ms. Damini K., Advs.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
ANU MALHOTRA, J.
Crl. M. (Bail) 73/2018
1. The appellant/applicant seeks grant of interim suspension of the sentence imposed on him vide order on sentence dated 04.01.2018 of the learned Special Judge (PC Act) CBI-03, (North West District), Rohini Courts, Delhi in case no. CBI-102/2016 CNR no. DLNW-01- 000070-2006 whereby the appellant/applicant vide the impugned CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 1 of 20 judgment dated 22.12.2017 was convicted for the commission of the offences punishable under Sections 419/468/471 as well as 420 of the Indian Penal Code, 1860 r/w Section 120 B of the Indian Penal Code, 1860 and was sentenced to 3 years of Rigorous Imprisonment and a fine of Rs.1 lakh for offence punishable under Section 15 of The Prevention of Corruption Act, 1988 and in default of the payment of fine, to undergo 6 months Simple Imprisonment;
was sentenced to Rigorous Imprisonment for 5 years and fine of Rs.2 lakhs for the offence punishable under Section 420/120 B of the Indian Penal Code, 1860 and in default of payment of fine, to undergo 1 year Simple Imprisonment;
was sentenced to Rigorous Imprisonment of 3 years and a fine of Rs.2 lakhs for the offence punishable under Section under Sections 468/120B of the Indian Penal Code, 1860 and in default of payment of fine, to undergo 1 year of Simple Imprisonment. The appellant has been in custody for a period of four months and two days.
2. The period of detention undergone by the appellant was directed to be set off in terms of Section 428 of the Code of Criminal CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 2 of 20 Procedure, 1973.
3. At the outset, it is essential to observe that vide the impugned judgment, six accused persons including the appellant were convicted with two other co-accused Sunanda Malik and Gokul Singh Bisht having been acquitted. The appellant who was on bail as reflected vide order dated 22.12.2017 of the Trial Court during the trial was taken into custody on 22.12.2017 along with the co-convicts Gokul Chand Aggarwal, P.K. Thirwani, Faiz Mohammad, U.S. Bhatnagar and N.S. Khatri. The accused Maan Singh has expired.
4. The status report of the State was submitted pursuant to the orders of this Court dated 02.08.2015. The CBI submits that it had conducted a thorough investigation in the matter of 135 Co-operative Group Housing Societies involved in a scam of getting land allotted to them at pre determined rates and not on the basis of market value of the land and that 'The Service Officers CGHS', being one of such CGHS, was also enquired into along with other societies. A PE 3(E)/05/EOW-1/DLI is stated to have been registered against six societies including the Service Officer Co-operative Group Housing Society (CGHS) on 06.08.2005 by CBI/EOW-1/DLI. On the basis of CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 3 of 20 the enquiry report, the present case no. RC: 09(S)/05/SCB-II/ND was registered against Gokul Chand Aggarwal, Narayan Diwakar, the appellant herein and 10 other accused persons. The accused persons are thus alleged to have conspired to set a defunct society revived so that the land be allotted to it, at commercial rates and they may make money by selling membership of the society.
5. The allegations levelled against the appellant were to the effect that he was the Registrar of Co-operative Societies (RCS) and along with some officers of the RCS abused their official positions and , in collusion with Gokul Chand Aggarwal and others, fraudulently revived the Service Officers (CGHS) on the basis of forged and false documents without proper enquiry / verification and recommended the case for allotment of land to the DDA.
6. The Service Officers Group Housing Society was registered with the office of the Registrar, Co-operative Societies on 23.11.1973 vide registration no. 162-H, with the address as C/o Major T.S. Sethi, Kashmir House, DHQ, New Delhi and remained dys-functional for several years and was ordered to be wound up vide order 2007/2118 dated 16.05.1979 passed by the then Dy. Registrar, Co-operative CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 4 of 20 Societies, Delhi and it was found that the society was non-functional and it had failed to achieve its aims and objects and there was no chance that it would succeed in the near future and that a Liquidator was appointed, who wrote a letter to the Secretary and President of the society, asking them to hand over the charge of liabilities and assets of the society and as no response was received and after waiting till November, 1979, it was assumed that the society had no assets or liabilities and the society was finally closed. On 19.09.2003, a letter dated 16.09.2003 was received in the office of the RCS, written in the name of Sh. Mahavir Prasad, stated to be Secretary of the said society with request to cancel the winding-up order dated 16.05.1979 under Section 63 of The Delhi Co-operative Societies Act, 1972 stating that the society had removed the shortcomings, like failure to call Annual General Meetings (AGM) and to hold elections of the Management Committee and it was stated that the elections had been held on 29.06.2003 and that the then Registrar, Co-operative Societies namely Sh. Narayan Diwakar i.e. the present appellant/applicant vide order dated 03.02.2004 had allowed the application and directed revival of the society.
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 5 of 20
7. The applicant with other co-accused persons had been charged for the offences punishable under Section 120B r/w Section 419/420/468/471 and under Section 13(2) r/w 13(1) (d) of The Prevention of Corruption Act, 1988 and under Section 15 r/w 513(1)(d) and Section 513(2) of the PC Act. The applicant contended that the case was registered by the CBI against him falsely maliciously and that it was not his responsibility and rather it was the responsibility of the Managing Committee of the society to furnish the correct and true particulars while approaching the Registrar seeking revival and that he had performed his duty in good faith and had taken necessary steps in precaution and contended that in terms of Rule 105 of DCS Act, he was duty bound to revoke the winding up of all proceedings.
8. The appellant who is in custody as per the charge-sheet, who had directed the accused Man Singh Assistant Registrar to conduct physical verification as well as door to door survey of members of the society. Vide his order dated 03.02.2004, the appellant Narayan Diwakar was Registrar of the Co-operative Group Housing Society ordered for revival of the society holding that the Dy. Registrar was CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 6 of 20 not competent to pass winding up order and no proper procedure had been followed and the prosecution contended that this winding up order was apparently incorrect and had been passed by Sh. Ashok Bakshi the then RCS on 16.05.1979 after giving sufficient opportunities to the society and no such findings could have been given by the applicant as the original file was missing and no complaint was lodged to the police and no action was initiated against any official for the loss of the file and that the society was not functional and ordered to be wound up vide order dated 16.05.1979 of the then Deputy Registrar, Co-operative Societies and that no complaint was registered and no action was taken to audit, nor was any inquiry conducted as to why no general body meeting or any meeting was conveyed between 16.05.1979 to 29.06.2003 and ignoring all these facts, the appellant/applicant Narayan Diwakar had appointed N.S.Khatri, (a co-convict) as an Election Officer to conduct the elections of the management committee within two months and N.S. Khatri is stated to have submitted a fictitious report verifying elections to have been conducted in the office of the RCS on 14.03.2004. The senior auditor co-convict P.K. Thirwani in conspiring CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 7 of 20 with the appellant/applicant herein is stated to have conducted the audit of the society and submitted a false report without seeking any record of the society and the co-convict Gokul Chand Aggarwal forged affidavits as well as the applications seeking revival of the society by putting signatures in the name of the persons, who were not in existence and the accused P.K. Thirwani accompanied the accused Gokul Chand Aggarwal in signing the name of officer bearers of society.
9. Vide the impugned judgment, the Trial Court has observed to the effect that : -
"79. The order passed by Sh. Narayan Diwakar (Registrar) dated 03.02.2004 through which winding up order dated 16.05.1997 was set aside with immediate effect and consequently the society was revived, is based on wrong facts and is apparently false. Contentions which suited for such order are noted by the registrar in name of Ms. Sweta Advocate. Some excerpts of this order, are scribed here, for ready reference.
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 8 of 20 Ms. Sweta Advocate representing the society appear before this Court on date fixed and stated that in the Special General Body meeting held on________, the election of the management committee of the society were got conducted specially in accordance of provision of law. It is also stated that list of 147 members as on date has been drawn or in the prescribed performa on the basis of record of society...............
All pending accounts are ready for audit and filed photocopies...............
The president and secretary of the society made oral commitment to fulfill all the statutory law in future and also filed affidavit dated 08.12.2003. In these facts, they are directed to file all original record. 1 have gone through the submissions made and affidavits filed by the President and Secretary of the society............... The registrar agreed with the contentions that "winding up order passed by the then Deputy Registrar was not in accordance with the laid down procedure while winding CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 9 of 20 up of society as the reasons given were not adequate for initiating such an extreme steps laid leading to the winding up of the society. If there was any mismanagement in the society it was appropriate to first initiate action u/s 32 of DCS Act, 1972, for placing the society under suppression............... Such order for winding up of the society without proper application of the mind is not conducive for revitalization and restrengthening of cooperative movement in Delhi...............
The deputy registrar who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such order as only registrar is competent to decide the matter u/s 63 of DCS Act. There is nothing on record to show that such power u/s 63 of DCS Act exercisable by the registrar were delegated to the deputy registrar............... It appears that during the time this order was passed, a large number of society were wound up in mechanical manner without any valid and convincing reasons. It also CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 10 of 20 appears that society was not given sufficient opportunity either to reply to the SCN issued to the society or to rectify the shortcomings mentioned in the notice issued to the RCS."
10. The said Advocate Ms. Sweta has testified before the Trial Court that she did not appear before the Registrar, Co-operative Societies in any case but despite the same, her presence had been marked for 03.02.2004 and also on previous dates. The President and Secretary of the society are also mentioned to have made oral commitment to fulfill all statutory obligations in future and are also stated to have filed affidavit dated 08.12.2003 despite the factum that there was no person in existence shown President or Secretary of the society.
11. The Trial Court also observed that the Registrar i.e. the appellant/applicant herein had not clarified as to how the winding up order passed by the Dy. Registrar was not in accordance with the laid down procedure and that the Dy. Registrar had given the following reasons in support of his order : -
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 11 of 20
"a) The society failed to achieve its objective and was not likely to achieve the same in near future.
b) The society failed to act in accordance with Delhi Cooperative Society Rules 1973 and provision of registered bye laws of the society.
c) The managing committee and the members of the society did not show interest in the functioning of the society.
d) That there is no reason to keep the society alive any further for any profit and objective."
and that no response having been received by the Dy. Registrar after serving notice to society through its President and Secretary, the society was not found being run anywhere.
12. Vide para 204, it was observed in the impugned judgment to the effect : -
"204. Accused other than Gokul Chand Aggarwal who were registrar and officials of RCS office sent list of members of society which was fake, to DDA for allotment of land, apparently to mislead or misguide those officials CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 12 of 20 of DDA, believing the same to be true and thus inducing them dishonestly to allot land. When list of members, complete in all form was submitted to DDA, it was enough to induce that authority to deliver property i.e. land. All this amounted cheating and dishonestly inducing delivery of property i.e. land to society, punishable u/s 420IPC. A party to conspiracy acts as an agent of other parties to it (conspiracy)."
13. The status report submitted by the State is to similar effect apart from submitting that the appellant the then Registrar of the Co- operative Group Housing Societies has since been convicted in 12 other cases, which are to the effect: -
S. Case Details Date of Decision Relevant Sections No. Judgment and Sentence
1. 'Ashoka Hotel 14.07.2014 Conviction Sec 420/511 r/w Karamchari CGHS' 120-B IPC : One year with fine of Rs.
RC- S18/2006/E0001- 5,000/-.
CBI/EOU-IV/Delhi Sec. 15 PC Act r/w
120-B IPC: One year
with fine of
Rs.5,000/-.
Sec.468 IPG r/w
120-B IPC :
One year and fine of
Rs.
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 13 of 20
5,000/-.
Sec. 471 IPC r/w
120-B IPC :
One year with fine
of Rs.
5,000/-
2. 'Hindustan Steel 16.08.2017 Conviction Sec. 120-B IPC r/w
CGHS' Sec. 15 PC Act: RI
One year with fine
RC 02 2006 EOU IX of Rs.10,000/-.
CBI / New Delhi
Sec. 120-B IPC r/w
Sec. 13(2) r/w 13 (1)
(d) PC Act:
RI One year with
fine of Rs.10,000/-
Sec.419/468/471/420
r/w 511 IPC :
RI One year with
fine of Rs.10,000/-.
Section 15 read with
Section 13(2) r/w 13
(1) (d) PC Act:
RI Two years with
fine of Rs.20,000/-
3. National Building 31.05.2013 Conviction 120B IPC r/w sec.
CGHS 418/468/471 IPC r/w
RC Section
BD1/2005/E/002/ 13(2) & 13(1) (d) PC
CBI/BS&FC/ND Act:
Rl for One year with
a fine in
the sum of Rs. 100/-
15 r/w Section
13(1)(d)of PC
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 14 of 20
Act:
Rl 1 ½ year with fine
of Rs.
100/-
471 IPC:
Rl Three years with
fine of Rs.
100/-
4. Anand CGHS --- Conviction One year and with
RC: SI8-2006- fine of Rs.
E0002 30,000/-
5. Maruti Mahaima --- Conviction Two year and fine of
RC: No. DAI-2005- Rs.
A0067 15,000/-
6. Radhey Kunj --- Conviction One year and fine of
CGHS Rs.
RC: 7(E/2005/EOUVIII/ 2,000/-
ND
7. Siemens CGHS --- Conviction One year and fine of
RC:3(AP/2006/ACU
-IV/CBI/ NO Rs. 200/-
8. Sartaj CGHS --- Conviction Three years and fine
RC: of Rs.
10(E)/2005/EOW- 8,000/-
1/ND
9. Rangmahal CGHS --- Conviction One year and fine of
RC:22(E)/2005/E0 Rs.
W-II/ND 2,000/-
10. Shreyas CGHS --- Conviction One year and fine of
RC:16(A)/2005/CBI Rs.
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 15 of 20
/SCR-II/ND 12,000/-
11. Ruchika CGHS --- Conviction One year and 3
RC:14(E)2005/EO months and
W-II/ND fine of Rs. 2,000/-
12. Service Officers --- Conviction 5 years and fine of
CGHS Rs. 5
RC: lakhs.
09/95/CBI/SCBlll/
ND
14. On behalf of the respondent during the course of the submissions made, reliance has been placed on the following verdicts of : -
a. State of Maharashtra Vs. Madhukar Wamanrao Smarth in Criminal Appeal Nos. 520-521/2008 a verdict of the Hon'ble Supreme Court to contend that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. Gravity of the offence, the sentence imposed and several other similar factors need to be considered.
b. Kishori Lai Vs. Rupa and Ors. AIR 2005 SC1481 to contend that the appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of sentence and grant of bail. The CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 16 of 20 mere fact that during the trial, they were granted bail and there was no allegations of misuse of liberty is really not of much significance. The effect of bail granted during trial looses significance when on completion of trial, the accused persons have been found guilty.
c. Manoj Kumar Mishra Vs. CBI a verdict of the High Court of Delhi in Crl. A. No.1177/2016 to contend that suspension of sentence was not allowed, in Bhagwan Rama Shinde Gosain & Ors. vs. State of Gujarat (1999) 4 SCC 421 and that pertinently, the sentence of the appellant had not been suspended either at the stage when the appeal was filed before the High Court, or even when, subsequently, the application to seek suspension of sentence was moved. The High Court also declined to hear the appeal expeditiously. Thus, as the appellant had already undergone a part of the sentence and there was no hope of the appeal being heard in a time bound manner, it was in this background that the Supreme Court suspended the sentence of the appellant' during pendency of the appeal before the High Court.
d. Sukhbir Singh Vs. State a verdict of the High Court of Delhi in Crl. MB 382/2011 decided on 10.03.2011 to contend that the cases relating to PC Act cannot be treated as ordinary cases, where sentence ought to be suspended just for the asking.
e. Braham Pal Vs. State NCT of Delhi a verdict of the High Court of Delhi in Crl. MB No. 410/2011 decided on CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 17 of 20 18.03.2011 to contend that the Court should not hold a roving enquiry into evidence at the time of suspension of sentence. It is required to see if in it's prima facie opinion, there was such patent illegality arbitrariness or perversity in the impugned judgment as to warrant grant of suspension of sentence.
f. Prithivi Raj Arora @ Netaji Vs. CBI a verdict of the High Court of Delhi in Crl. MB 1374/2007 decided on 07.11.2017 to contend that a bare perusal of Section 389 Cr.P.C. would show that suspension of sentence during the pendency of an appeal is not the absolute right of the convict.
15. During the course of the submissions that have been made on behalf of the appellant, it has been submitted that the appellant had been acquitted for the offence punishable under Section 511 r/w Section 419 of the Indian Penal Code, 1860, and thus as charges were also framed for the commission of an offence punishable under Section 15 (2) of the PC Act, 1988, the charges for the substantive offence could not have been held to have been proved. It has further been submitted on behalf of the applicant that there are several infirmities in the impugned judgment, and thus the applicant is entitled to be released on bail during the pendency of the appeal. It is further submitted that the applicant is 74 years of age suffering from severe CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 18 of 20 ailments and so is his wife and that he has never misused the grant of bail during the trial.
16. On a consideration of the rival submissions and taking into account the factum that the applicant is indicated to have been convicted for the commission of the offences punishable under Sections 419/468/471 as well as 420 of the Indian Penal Code, 1860 r/w Section 120 B of the Indian Penal Code, 1860 and for the offence punishable under Section 15 r/w Section 13(1)(d) of the POC Act, 1988 for attempt to commit a criminal misconduct punishable therefrom, taking into account the repeated acts of the appellant in his capacity as Registrar of the Co-operative Group Housing Societies in allowing the registration of the fake societies for allotment of land to them and taking into account the factum that there are twelve convictions against the applicant in similar nature of cases, there is no ground for grant of suspension of sentence to the appellant during the pendency of the appeal inasmuch as the offences for which the appellant has been convicted inter alia of corruption are serious, grave and corroding the society. The Crl. M. (Bail) 73/2018 is thus dismissed.
CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 19 of 20
17. Nothing stated hereinabove shall tantamount to expression of the opinion on the merits or demerits of the case.
18. The matter be re-notified for 23.05.2018 along with connected appeals, i.e., CRL.A.129/18, CRL.A.144/18, CRL.A.138/18, CRL.A.46/18 & CRL.A.45/18.
ANU MALHOTRA, J APRIL 23rd, 2018/mk CRL.A 45/20187 & Crl. M. (Bail) 73/2018 Page 20 of 20