Delhi District Court
Cbi vs . Sumer Chand Gupta Page No.1 Of 75 on 14 May, 2013
IN THE COURT OF SH.R P PANDEY: SPECIAL JUDGE (CBI)01
ROHINI COURTS:DELHI
RC2(E)/2006/CBI/EOUVII/N.Delhi
U/s120B/420/468/471 IPC & PC Act, 1988
CBI CASE No.65/08
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI
VS
1. Sumer Chand Gupta S/o Sh.M L Gupta
R/oC3/6, Prashant Vihar
Delhi
2. Sh.Yogi Raj S/o Sh.Girdhari Lal
R/oAP77, Shalimar Bagh
Delhi88
3. Faiz Mohammad S/o late Gulam Mohammad
R/oRoom No.2, Shivaji Nagar
Govandi, Mumbai
4. Narayan Diwakar S/o Chhatti Lal
R/oG30, Masjid More, New Delhi
CBI CASE NO.65/08
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5. Anna Wankhede
S/o Sh.Arjun G Wankhede
R/oH.No.148E/A, PhaseII
Mayur ViharIII, New Delhi
6. Sri Chand
S/o late Sh.Hari Singh
R/o274A, Pocket C
Mayur Vihar, PhaseII, New Delhi
7. Niranjan Singh
S/o late Sh.Babu Lal
R/o309, Government Flats
Karkardooma, Delhi
8. Surender Kumar Garg
S/o late Sh.Yuvraj Singh
R/oK P 17, Pitampura
Delhi88
9. Narender Singh Khatri
S/o late Lal Singh Khatri
R/o89B, Shakti KhandI
Indira Puram, Ghaziabad
UP
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10.R N Yadav
S/o late Sh.Chandgi Ram
R/oVPOKhera, Electric Pole No.8
New Delhi43
... ACCUSED
Date of institution 29.03.07
Date on which case
Reserved for order 06.05.13
Date of Order 14.05.13
CASE ID02404R0650142007
ORDER ON CHARGE:
1. As borne out from the record, the Martand Co
operative Group Housing Society Ltd (in short 'the said society')
was started by a group of officers of the Central Services ClassI
with 11 promoter members and it was registered on 10.06.70 with
the Registrar of Cooperative Societies, Delhi with registration no.
10(H) having its registered office at 25, Green Park, New Delhi.
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The society was liquidated vide order no.46/47/1078/Corp/H/72 to
77 dated 08.01.79 as it failed to achieve its objectives and comply
with provisions of the Act and Rules governing the societies.
2. During the course of investigation, it revealed that
Sumer Chand Gupta (A1) had visited the office of Sri Chand (A6)
in the beginning of year, 2003 and entered into a criminal
conspiracy with Anna Wankhede (A5), Sri Chand (A.6) and
Surender Kumar Garg (A.8) (private persons) and officials of
Registrar Cooperative Societies (in short RCS), Delhi, namely,
Yogi Raj (A2), Faiz Mohammad (A3), Narayan Diwakar (A.4),
Niranjan Singh (A.7), Narender Singh Khatri (A9) and R.N.Yada
(A.10) to take over the defunct Martand CGHS. In pursuance of
the said conspiracy, forged documents such as membership
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application forms, resignation letters, proceeding registers,
membership register, audit report and false election reports were
prepared to revive the society. Names of 11 promoter members
were used in the proceeding register, whose signatures were
forged on the instructions of accused/Sri Chand by accused/Anna
Wankhede.
3. An application dated 06.03.03 (page 65/C of D.2) was
submitted to the RCS for revival of said society in the name of
Chaman Lal, President of the society. Niranjan Singh, dealing
assistant in RCS office, processed the application and put up a
note dated 11.03.03 in the form of Dy.No.1000/AR(N/W/Dt.10.03.03
which is available at page 12/N (D.2) and he suggested to appoint
accused/Faiz Mohammad, GradeII Inspector for inspection of
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records/documents of the society. Said note was recommended
by A.2 Yogi Raj who was then AR (N/W) and then approved by A.
4 Narayan Diwakar and accordingly formal order was issued on
17.03.03.
4. Accused/Faiz Mohammad filed an inspection report
dated 20.03.03 (page 67 and 68/C of D.2) stating therein that he
visited the society at 1/2(8), Malik Pur Village, Model Town on
18.03.03 and met Chaman Lal, President of the society, who
produced all the documents/relevant records of the society and
also informed that there were 120 members existing in the society.
This inspection report of Faiz Mohd. was put up by accused
Naranjan Singh vide his note dated 20.03.03 for considering the
revival of the society and approval of list of its members for
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allotment of land. The same was recommended by accused Yogi
Raj AR (N/W) on the same day and directly put up to RCS/accused
Narayan Diwakar through his reader on the same day (page 14/N
of D.2), who directed issuance of notice to society through its
President Chaman Lal for hearing u/s 63 of DCS Act for 25.03.02.
Accused Narayan Diwakar, the then RCS,
finally approved revival of the said society vide order dated
04.04.03(page 71 & 72/C of D.2) and by the same order he also
directed that the audit be conducted within two months and also
appointed Narender Singh, Grade IV of his department to
conduct election of management committee of the society within
two months. R N Yadav had submitted false audit report and
Surender Gupta @ S K Garg had given his driver's address 1/2(8),
Malik Pur, Model Town, to be the address of the said society. In
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this way, accused persons, namely, Sumer Chand Gupta, Yogi Raj,
Faiz Mohammad, Narayan Diwakar, Anna Wankhede, Sri Chand,
Niranjan Singh, S K Garg, N S Khatri and R N Yadav allegedly
entered into a criminal conspiracy and accused public servants
abused their official position to obtain pecuniary advantage for
themselves and/or to private persons without any public interest.
5. I have heard arguments advanced by ld.Public
Prosecutor and accused persons/their ld.counsels on charge and
perused the records carefully.
6. Dr.Sushil Gupta, Ld.Counsel for accused Narayan
Diwakar has argued that this was not a case in which the society
was wound up and so could not be revived. He has submitted that
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the society was under liquidation when it was revived by the orders
of RCS/accused Narayan Diwakar hence there was no
requirement of any documents for the purpose of revival of the
society as the registration of the society was not yet cancelled by
the date on which order of revival was passed by accused Narayan
Diwakar.
7. He has relied upon an order of Division Bench of
Hon'ble Delhi High Court in Vikas CGHS case to submit that it was
the duty of RCS to pass revival order when the application was
made by the society for its revival. He has relied upon Sections 6
and 78 IPC to submit that when a person is bound to do certain
acts as per the law or as per the Judgment/order of the court, he
cannot be held guilty of doing that act.
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8. He urged that RCS was supposed to pass a
mechanical order reviving the society as he was obliged to do so
under the law. He has submitted that in no case an application
for revival has been dismissed by the RCS and moreover, such an
order passed by the RCS was an appealable order against which
the appeal could be preferred to the Lt. Governor under Chapter
XI of DCS Act, 1972. He has thus urged that no illegality has
been committed by accused Narayan Diwakar for which a charge
can be framed against him.
9. It is pertinent to note that the order of revival passed by
the accused Narayan Diwakar is not being challenged before this
court. What is in question is his involvement in conspiracy with
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other accused in order to get revived Martand CGHS on the basis
of forged and fabricated documents and get the list of 120 fake
members of society, approved for the purpose of allotment of land
by DDA at cheaper rates.
10. Besides oral submissions by his ld.Counsel, accused
Narayan Diwakar has also filed an application by way of additional
plea u/s 227 of Cr.PC seeking discharge. He has submitted that
he was posted as Registrar of Cooperative Societies during the
relevant period, holding hearings and passing quasi judicial orders
as per provisions of DCS Act,1972. During the disposal of his
official duties as RCS, he was assisted by subordinate staff
including the senior officers such as Joint Registrar of Co
operative Society and Assistant Registrar of Cooperative Society
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who were further assisted by other subordinate staff including their
dealing clerks. The relevant enquiry under DCS Act was got
conducted through the subordinate staff and on furnishing reports
recommending revival of the society, he passed statutory orders
u/s 63(3) of DCS Act, 1972. He has drawn attention of the court
towards the provisions of rule 105 of DCS Rules, 1973 alongwith
Judgment of Hon'ble High Court in Vikas CGHS Vs. Registrar of
Cooperative Societies & Ors. (Civil Writ No.1767/96) dated
21.11.86.
11. On careful perusal of the provisions of rule 105 and the
order of Hon'ble High Court in Vikas CGHS case, I find that it is
laid down that on expiry of 3 years from the date of order for
winding up of the society, the liquidation proceedings are deemed
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to have been terminated and an order to that effect has to be
passed by the Registrar. In the instant case, no order was passed
by the RCS to that effect.
12. However, accused/Narayan Diwakar wants that the
court should accept that the purport of law laid down by Hon'ble
High Court is that on expiry of period of 3 years from the date of
winding up order, the society is automatically revived by virtue of
provisions of 105 as interpreted by Hon'ble High Court in Vikas
CGHS Case, unless it is liquidated within that period. However,
neither rule 105 nor the order of Hon'ble High Court lays down that
there would be automatic revival of the society if it is not liquidated
within a period of three years of passing of the winding up order.
Even if it is taken that the spirit of the aforesaid rule and order of
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Hon'ble High Court is that the society is deemed to be revived on
expiry of period of three years on the date of passing of the
winding up order, in that case RCS was not required to pass a
revival order more so in pursuance of criminal conspiracy and
based on the forged and fabricated documents/reports and
reviving the society with its strength at 120 as against 11 original
members, which was strength at the time of winding up order.
During investigation of the case by CBI, members, whose names
have been inducted in Martand CGHS, were not in fact its
members but they were members of NTO CGHS.
13. He has further submitted that as per the provisions of
Section 13(1)(d) of PC Act, 1972, it is required that the accused
public servant should be recipient of valuable thing or pecuniary
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advantage but in the instant case there is not even allegation to
this effect. The careful reading of provisions of Section 13 (1)(d)
would shows that it is not always necessary that the public servant,
should by corrupt or illegal means, obtain valuable things or
pecuniary advantage for himself only. It may be obtained 'for
himself or for any other person'. Thus there is no substance in the
submissions made by accused Narayan Diwakar by way of
additional plea.
14. Besides the additional written plea, accused Narayan
Diwakar has also filed additional written submissions dated
21.10.07 agitating that there was no specific or proper complaint to
this CGHS case. He has also raised objection that his prosecution
is illegal and unfair. There is nothing on record to show that
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prosecution of accused in this case is unfair or illegal. He has
submitted that various offences under DCS Act, 1972 are not
notified under Section 3 of DSPE Act, 1946 and hence he cannot
be tried for the same. In fact in this case the accused persons
have not been charge sheeted with any offence under DCS Act,
1972 and therefore, it cannot be said that he is being tried for an
offence which is not notified u/s 3 of DSPE Act. He has also
submitted that consent of State has not been obtained before
prosecuting him as per provisions of Section 6 of DSPE Act and
that there is no proper complaint on the basis of which this RC was
registered. In this respect it suffice to say that, whenever, in
exercise of constitutional power, a direction has been passed by
Hon'ble High Court or Hon'ble Supreme Court for investigation of
the case by CBI, there is no requirement that the consent of the
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Government should be obtained or that there should be some
specific complaint by a complainant in the case before enabling
the CBI to proceed with the investigation of the matter. The
Constitution Bench of Hon'ble Supreme Court in State of West
Bengal Vs. The Committee for Protection of Democratic
Rights, (2010) 3 SCC 571, specifically laid down
"When the Special Police Act itself provides that
subject to consent by the State, the CBI can take up
investigation in relation to the crime which was
otherwise within the jurisdiction of the State Police, the
court can also exercise its constitutional power of
judicial review and direct the CBI to take up the
investigation within the jurisdiction of the State. The
power of the High Court under Article 226 of the
Constitution cannot be taken away, curtailed or diluted
by Section 6 of the Special Police Act. Irrespective of
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there being any statutory provision acting as a
restriction on the powers of the Courts, the restriction
imposed by Section 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on
the powers of the Constitutional Courts. Therefore,
exercise of power of judicial review by the High Court,
in our opinion, would not amount to infringement of the
either the doctrine of separation of power or the federal
structure".
15. He has also submitted that no land was allotted by
DDA pursuant to the revival order passed by him and hence no
offence is committed by him or other accused persons even u/s
511 of Cr.PC. In this case all the steps were taken by accused
persons for getting allotment of land from DDA in the name of
society which had ultimately not fructified. Thus, though there may
not be elements to constitute a completed offence u/s 420 IPC and
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section 13(1)(d) r/w section 13 (2) of P.C.Act but the facts alleged
are sufficient to constitute offences of conspiracy and attempt to
commit offences u/s 420 IPC and section 13(2) r/w Section 13(1)
(d) P.C.Act, besides offence under section 468 and 471 IPC r/w
section 468 IPC. Accused Narayan Diwakar has also pointed out
that there is lack of evidence in the present case and that he was
not having a knowledge about the commission of offence which is
a necessary element to constitute an offence of conspiracy. In
this respect the evidence arrayed by the prosecution in this case is
prima facie showing that there is sufficient material to impute the
knowledge on the accused officials of RCS including accused
Narayan Diwakar to make out a prima facie case against all of
them.
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16. He has also filed other submissions by way of
application challenging the jurisdiction of this court to try the
present case. He has also relied upon the Judgment of Hon'ble
Supreme Court in A.Subair Vs. State of Kerala, 2009 Cri.LJ
3450 wherein the Hon'ble Supreme Court has held that a
presumption u/s 20 P.C.Act cannot be drawn where complainant
was not examined to prove the demand of bribe by the appellant
who was a clerk at Regional Transport Office and allegedly
demanded bribe for delivery of the driving license. It was held
that mere recovery of the currency notes was not sufficient proof of
demand and acceptance and hence conviction of the appellant
was improper. He has relied upon the observation made by
Hon'ble Supreme Court in para 10 of judgment, wherein it was
held that in the absence of proof of demand or request from public
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servant for a valuable thing or pecuniary advantage, the offence
under Section 13 (1)(d) cannot be held to be established. The
case before Hon'ble Apex Court was the trap case u/s 7 of P.C.Act
and Section 13(2) r/w Section 13 (1)(d) of P.C.Act, where
allegations of specific demand and acceptance of bribe was a
necessary element of the offence. The facts of the case in hand
are materially different from the facts of the case of A.Subair
(supra). Therefore, I am of the view that the accused Narayan
Diwakar cannot take shelter of Judgment of Hon'ble Supreme
Court in A.Subair(supra) for claiming discharge in the present
case, as the observation of the Hon'ble Supreme Court in
A.Subair's case (supra) were in the facts and circumstances
peculiar to that specific case.
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17. Accused Narayan Diwakar has further submitted that
he was Registrar of Cooperative Societies at the relevant time
when the alleged offence had taken place and the process of the
functioning of RCS is that the note is initiated and put up by
Dealing Assistant who submits his note to AR and then AR
submits note to DR and ultimately it reaches to the RCS. He has
submitted that if anything has been done at the lower level, he
cannot be held responsible for the same. The case of the
prosecution herein is that accused Narayan Diwakar, the then RCS
alongwith his other officials had entered into a conspiracy to
commit the crime as alleged in this case. And pursuant to that
conspiracy he had cancelled the winding up order of the society
and approved the list with all fake members. Hence the submission
of accused Narayan Diwakar that he was acting only on the basis
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of note given by his subordinate officials, is his defence plea which
cannot be considered at this stage. For an offence of conspiracy,
it is not necessary that there should be direct evidence as it is
derived from the circumstantial evidence as may be proved in trial.
It is also settled position of law that the charge can be framed even
on the basis of strong suspicion.
18. Besides arguments on charge, Sh.R P Shukla,
ld.counsel for A2/Yogi Raj and A7/Niranjan Sngh has also argued
on their applications u/s 197 Cr.PC. The ld.counsel for both the
accused has submitted that A2/Yogi Raj was transferred to the
office of RCS in the year 2000 as Assistant Registrar and he is a
public servant u/s 21 of IPC and as such protected u/s 197 Cr.PC
and hence in absence of any sanction for his prosecution by the
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appropriate authority, the prosecution can not be proceeded
against him.
19. Similarly, in respect of A7/Niranjan Singh, he has
submitted that A7/Niranjan Singh was transferred to the office of
RCS in the year 1999 as Gr.II and thus being public servant u/s 21
IPC, he is protected u/s 197 Cr.PC. He has submitted that both
these accused public servants were performing their duties for
which they have been charged in the present case and thus the
CBI has committed the error in not obtaining the sanction for
prosecution of both these accused persons.
20. The ld.Public Prosecutor for CBI has submitted that
sanction to prosecute a public servants u/s 197 Cr.PC are not
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required particularly in the facts and circumstances of the case as
it was not the part of the official duty of accusedapplicants to enter
into the criminal conspiracy with his other coaccused persons for
forging the proceedings register and other documents and then
approve the freeze list of 120 members and forwarding the same to
DDA for allotment of land to the society.
21. He has also relied upon judgment cited as Prakash
Singh Badal Vs. State of Punjab, (2007) 1 SCC 1 to contend that
the acts attributed to the accused can hardly be termed as part of
his administrative duties and the protection u/s 197 Cr.PC is only
meant for honest employees.
22. Answering to a reference, the full bench of Hon'ble
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Allahabad High Court in Smt.Neera Yadav Vs. CBI (Bharat
Singh) 2006(2) RCR (Crl.) 765 after discussing the judicial
precedents on the issue, concluded that the offence under the
Prevention of Corruption Act, 1988 as well as charge of Criminal
Conspiracy, can not be said to constitute acts in discharge of
official duty. (Para 127).
23. This well settled position of law has been reaffirmed by
Hon'ble Supreme Court in Raghunath Anant Govilkar Vs. State
of Maharashtra & Ors., 2008(1) RCR (Criminal) 1042, as under:
That apart, the contention of the respondent that for
offences under Sections 406 and 409 read with Section 120B sanction under Section 197 of the Code is a condition precedent for launching the prosecution CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.26 of 75 is equally fallacious. This court has stated the correct legal position in "Srreekantiah Ranatta Munnipslli Vs. State of Bombay, AIR 1955 SC 287 and Amrik Singh Vs. State of Pepsu, AIR 1955 SC 309" that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, 1972 (3) SCC 89 as follows: "66. The next point was with regard to consent or sanction. There is no doubt that in respect of B P Sinha consent was properly given by the Deputy Commissioner. So consent was also given in respect of N K Banerjee and Harihar Prasad by the Chief Secretary. This is not a case of sanction or consent under Section 196A of the Code of Criminal Procedure. On the question of the applicability of Section 197 of CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.27 of 75 the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli Vs. State of Bombay and Amrik Singh Vs. State of Pepsu was as follows:
"It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary."
The real question, therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.28 of 75 punishable under Section 120B read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they can not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
24. In State of M P Vs. Sheetla Sahai & Ors., 2009 Crl.LJ 4436, it was observed by Hon'ble Supreme Court that section 197 Cr.PC do not extend its protective cover to every act or omission done by public servant in service but restricts its scope of operation to only those acts or omissions which are done by the public servant in discharge of the official duty. Thus, where the CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.29 of 75 alleged act done by the public servant is merely a cloak for doing the objectionable act, the protection u/s 197 Cr.PC is not available.
25. Hon'ble Supreme Court in Choudhary Praveen Sultana Vs. State of Bengal & Anr., 2009 Crl. J, 1318 observed that if the office of a public servant is misused for doing things which are not otherwise permitted under the law, such acts can not claim the protection of Section 197 Cr.PC and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence in respect of prosecution for such excesses or misuse of authority no protection can be demanded by the public servant concerned.
26. Thus while considering the requirements of sanction as CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.30 of 75 contemplated by Section 197 Cr.PC, the court has to make the balance between the protection granted to the public servant and the safeguard available to the citizens against the excess of the erring public servants. The aforesaid acts of accused/Yogi Raj and Niranjan Singh by no stretch of imagination, can be said to be the acts done by them in the official discharge of their duties or purported to be acts in the discharge of their official duties.
27. Under a similar situation where the orders passed by the Special Courts (CBI) dismissing similar applications of the officials of RCS were assailed before Hon'ble High Court by filing revision petitions, the Hon'ble High Court, vide order dated 02.02.09, while dismissing the Criminal Revision Petition No. 593/08 (also nos.528/08, 556/08, 573/08, 574,08, 575/08, 576/09 CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.31 of 75 and 577/08) observed, as under: "9. In the considered view of this Court, there is no merit in each of these petitions. The essential charge against all these petitioners is for the offences of criminal conspiracy under Section 120B IPC. The judgments referred to by the petitioners do not come to the assistance at all. In Anjani Kumar, it was found that the complaint filed against the Government official was a counter blast to the action taken by him in his official capacity. The facts in the instant case are of course very different. The facts in Sankaran Moitra were also very different. In Bholu Ram the Supreme Court held, after referring to the judgment in Prakash Singh Badal Vs. State of Punjab that "offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.32 of 75 duty'." It was also pointed out that the question of mens rea could only be decided at the time of trial and that "a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case."
10. In the considered view of this Court the decision of the Supreme Court in Prakash Singh Badal and Bholu Ram is a complete answer to the contentions raised by the petitioners.
28. In view of the above discussion, I am of the opinion that prima facie the alleged acts of accused/Yogi Raj (A2) and Niranjan Singh (A7) were dehors their official duties and, therefore, they are not entitled to the protection u/s 197 Cr.PC. CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.33 of 75 Their applications are, therefore, dismissed. However, it is made clear that nothing said herein would have bearing on the merits of the case and if at the end of the trial, it is found that they were in fact performing their official duties only, then the effect of absence of sanction u/s 197 Cr.PC can be considered at that stage.
29. Sh.S K Bhatnagar, ld.counsel appearing for accused/Faiz Mohammad (A3) has submitted that accused/Faiz Mohammad has done his statutory duty of carrying out inspection and verification on the basis of records which he found at the office of society. He has submitted that he had perused those documents which were produced by the society and thereafter given his report and hence can not be held criminally liable. His submissions about innocence of accused/Faiz Mohammad are CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.34 of 75 away from the facts which have been brought on record during the investigation as PW12/Rakesh Verma has clearly stated that his house has never been used as office of the society and no one has visited his house for any verification. It has also been revealed that Sh.Chaman Lal is a non existent person, hence there was no question of Chaman Lal meeting accused/Faiz Mohammad at the office of the society for producing any documents for his verification.
30. He has then submitted that there was statutory duty of CBI to conduct search at the premises of the society to find out the records of the society at its office but CBI did not conduct any search. In evidence it has come during investigation that there was no such office of society existing at the given address, CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.35 of 75 therefore, there was no question of conducting search by CBI at 1/2 (8), VillageMalikpur, Model Town, New Delhi. Ld.defence counsel has submitted that report of accused/Faiz Mohammad was not a prerequisite for revival of the society and the membership of a particular individual was the prerogative of the society and hence the RCS office had noting to do with it. In fact the case is that in order to get the society revived with names of 109 false members, all accused persons conspired together and hence a fake inspection was got conducted through accused/Faiz Mohammad in order to bring on record a false report along with forged and fabricated documents to lend the credence to the bid of private accused persons to revive the defunct Martand CGHS on the basis of those documents which were collected and put on record by accused/Faiz Mohammad in connivance with other CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.36 of 75 accused persons.
31. Sh.Abhishek Prasad, Advocate appearing for accused/Anna Wankhede (A5) has submitted that accused/Anna Wankhede has been falsely implicated in this case solely on the basis of a inadmissible report of handwriting expert and there is no other evidence against him. We will see in a short while that there is sufficient evidence against accused/Anna Wankhede besides opinion of handwriting expert.
32. As regards accused/R N Yadav (A10), Sh.Abhishek Prasad, Counsel has submitted that there is no evidence arrayed against him and accused/R N Yadav had given audit report of the accounts of the society after revival order was passed and the list CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.37 of 75 of approved members was already transmitted by RCS office to DDA for allotment of land. We find that the direction for carrying out audit was given by accused/Nrayan Diwakar, then RCS while passing the order dated 04.04.03 cancelling the winding up order which was subject to condition that the pending audit shall be got conducted within two months and pursuant to that order accused/R N Yadav, Departmental Auditor of RCS office had submitted false audit report for the period 1972 to 2002 i.e for 30 years which report is D23 in which he obtained signatures of Sh.Chaman Lal as President, Sh.Mohan Lal as Secretary and Sh.Vinay Kumar as Treasurer, who all are non existent persons. All the fake and forged financial statements of society were accepted by accused/R N Yadav for authenticating that everything was in order whereas even the bank account of the society was not opened and no CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.38 of 75 society office or its records were existing at 1/2 (8), Malikpur, Model Town, New Delhi and he never visited said house as stated by PW12/Rakesh Verma. Even if the audit report was submitted by accused/R. N. Yadav after the list of members was forwarded by RCS office to DDA for allotment of land, it merely suggest that accused officials of RCS office were very much confident that accused/R N Yadav will submit the audit report/financial statements as suits their purpose. Had he not submitted the bogus audit report or reflected the factual position, the fraud and forgery committed by remaining accused persons could be easily detected, which show his involvement in criminal conspiracy.
33. As regards accused/Sumer Chand Gupta (A1), his ld.counsel Sh.S K Bhatnagar has submitted that he has been CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.39 of 75 falsely implicated and he has further submitted that there is no evidence against accused/Sumer Chand Gupta. We will see the role of accused in detail on the basis of evidence collected by CBI. Ld.counsel for accused/Sumer Chand Gupta has further submitted that the revival of the society by RCS can not be interfered by this court as it is barred specifically u/s 93(3) of DCS Act. This provision of DCS Act has no bearing on the criminal prosecution of the accused person as here the revival order is not in challenge but the accused persons are being prosecuted for commission of different offence under IPC and PC Act.
34. Sh.R P Shukla, Counsel representing accused/Yogi Raj (A2); accused/Sri Chand (A6); accused/Niranjan Singh (A7); accused/Surender Kumar Garg (A8) and accused/Narender CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.40 of 75 Singh Khatri (A9), has submitted that there is no case made out against these accused persons. He has submitted that similarly situated persons, namely, Sh.S K Sharma and Sh.Mohan Lal have been examined as witnesses being PW16 and PW17 by CBI, although they were also the wrong doers. He has submitted that the CBI has wrongly made them as witnesses whereas similarly situated persons like Sri Chand has been implicated as accused in the case. He has relied upon judgment of A Devendran Vs. State of Tamilnadu, (1997) 11 SCC 720 to submit that power to direct tender of pardon lies with the court and not with the prosecuting agency and in this case no pardon was tendered by court to Sh.S K Sharma and Sh.Mohan Lal. S/Sh.S K Sharma and Mohan Lal have been arrayed as witnesses and not as accused in the case in view of the facts and circumstances as apparent from their CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.41 of 75 statements recorded by IO of the case. Further, arraying them as witnesses does not exonerate other accused persons from the criminal liability which they have incurred by committing various acts as alleged against them. Thus, the law laid down by Apex Court in A Devendran's case does not help accused in this case in any manner.
35. If we separately see the allegations against each of the accused persons along with the documentary and oral evidence available on record, we find that accused Sumer Chand Gupta (A.
1) had visited the office of Sri Chand in the beginning of year 2003 and hatched a conspiracy with him to take over the said defunct society and revive it with the help of accused/Sri Chand (A.6) and his associate accused/Anna Wankhede (A5) (all private persons) CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.42 of 75 and pursuant to that conspiracy, accused/Sri Chand had conspired with accused/Niranjan Singh (A7), Yogi Raj (A2), Faiz Mohammad (A3), Narender Singh Khatri (A9), R.N.Yadav and Narayan Diwakar (A4), officials of RCS to revive the said society on the basis of forged documents such as membership application forms, resignation letters, proceeding registers, membership register, audit report and false election report, etc. Accused/Sri Chand in pursuance to his conspiracy with accused Sumer Chand Gupta also conspired with accused/Anna Wankhede and officials of RCS and others to show undue favour and create false and fictitious record in the form of proceeding registers, membership registers, affidavits, audit reports and election reports and other relevant documents so as to facilitate the revival of the said society. The affidavits of managing committee members such CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.43 of 75 as Madan Lal and Chaman Lal were found to be forged with the seal and signature of the Notary Public/Sh.C B Arya, (examined by IO as PW13) who has stated that the seals and signatures of these affidavits in his name, are forged.
36. In connivance with accused/Sumer Chand Gupta and accused/Anna Wankhede, accused/Sri Chand moved an application in the name of Chaman Lal, President of said society dated 06.03.03 addressed to RCS, Delhi requesting under sub section 3 of Section 63 of DCS Act, 1972 for revival of said society and approval of the final list of the members. It has been found that signature in the name of Chaman Lal appearing on the said application dated 06.03.03 available at page 65/C of D.2 (Q472 &
473) were made by accused/Anna Wankhede and GEQD opinion CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.44 of 75 is available in this respect. During investigation, it was found that Chaman Lal is a fictitious/non existing person.
37. Investigation has revealed that the names of fictitious and non existent persons like Chaman Lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudarshan Kaur were purposely used as office bearers of the society at the time of revival of the society by accused/Sri Chand and accused/Sumer Chand Gupta so that once the society was revived, it would facilitate the easy take over of the society by accused/Sumer Chand Gupta and enable him to insert the names of the persons of his choice in the management committee of the society, which he did subsequently. Accused/Sumer Chand Gupta, after taking over the control of the said society from accused/Sri Chand inducted his close relatives CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.45 of 75 as management committee members of the said society.
38. It has been revealed in the investigation that after revival, in place of Chaman Lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudershan Kaur , names of Sh.Vijay Kumar Bansal, A N Gupta, Shashi Gupta, Shweta Gupta and Satish Chand Sharma were inserted as new office bearers of the management committee of the society vide proceedings of the register written by accused/Anna Wankhede on 20.10.03. It was also found that accused/Sumer Chand Gupta had signed as Vijay Kumar and A N Gupta.
39. Prosecution has examined Sh.Ajay Kumar Gupta (PW40), Shweta Gupta (PW41), Shashi Gupta (PW42), who all CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.46 of 75 are relatives of accused/Sumer Chand Gupta , besides Sh. S P Sharma, (PW.43) , who is his priest and Sh.Narender (PW44), who is his driver. PW33 to PW39 have been examined to show that Chaman lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudershan Kaur are all fictitious persons. Sh.Satish Chand Sharma has been examined as PW9, who is an advocate. He has also stated that he has been falsely got inducted in the society without his consent or knowledge. It was accused/Sumer Chand Gupta, who had allotted the membership of said society to Vijay Kumar Bansal (his brotherinlaw), Ajay Narain Gupta (soninlaw), Shashi Gupta (wife), Shweta Gupta (daughterinlaw), Satish Chand Sharma (Advocate), besides Surya Prasad Sharma, Mrs.Kamlesh and Sh.Nrender, who are other persons, acquainted/associated with him.
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40. It is also revealed in the investigation that accused/Sumer Chand Gupta had filled up affidavits and Form60 in the names of Shashi Gupta (wife), Shweta Gupta (daughterin law), V K Bansal, Narender, Mrs.Kamlesh and Sh.Narender in respect of which GEQD opinion is available.
41. Investigation has also revealed that accused/Sri Chand, in criminal conspiracy with accused/Anna Wankhede created false records to show that the election of the management committee was held in the general body meeting dated 02.03.03 with following members of the committee: CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.48 of 75 Sl.No. Membership No. Name of the M C Member Post Held 01 116 Chaman Lal President 02 109 Smt.Sudershan Kaur Vice President 03 117 Sh.Madan Lal Secretary 04 120 Sh.Vinay Kumar Treasurer 05 118 Smt.Anjana Kaul Member
42. It was accused/Sri Chand, who had utilized the services of Ms.Rashmi Gulati, Advocate to represent the society in this case before RCS and vakalatnama purportedly signed by Chaman Lal was handed over to her by him to represent the society. Ms.Gulati had appeared before RCS on 25.03.02 and submitted her vakalatnama. Ms.Gulati also appeared on 03.04.03. She was examined by IO as PW15 in which she has stated that she had been hired by accused/Sri Chand through Niranjan Singh of RCS office. It was accused/Sri Chand, who had told her that she had to represent one Chaman Lal, as advocate and it was CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.49 of 75 accused/Sri Chand, who had paid her fee. She specifically stated that she did not know any Chaman Lal and she knew only accused/Sri Chand and Niranjan Singh and on request of accused/Sri Chand, she had appeared before RCS.
43. The statements of PW1 to PW8 and PW19 to PW30 are available on record, who have been examined by IO to the effect that they were the members of Naval Technical Officers Society (in short NTO) and their names have been used and inducted in membership of Martand CGHS without their knowledge. The list of members of the said society also included the names of certain other persons, who were not even aware that they have been made as members of said society and also the persons who were already expired but their affidavits have been CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.50 of 75 submitted by forging their signatures even after their death.
44. PW14/Kulwant Kaur has been examined, who has stated that she had sold two stamp papers on 02.04.03 in the names of Chaman Lal and Madan Lal which have been used for forging two affidavits and the affidavit of Chaman Lal has been prepared on the stamp paper sold to Madan Lal and viceaversa.
45. PW16/Sushil Sharma has been examined by CBI, who stated that he was employee of accused/Sri Chand till 2003. He identified the writings of accused/Anna Wankhede (A.5) and Mohan Lal (PW17), who had written the proceedings in his presence on dictation of accused/Sri Chand. He stated that accused/Anna Wankhede had also forged the signatures of most CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.51 of 75 of the members in the proceeding register and on the affidavits. He also stated before IO that all the affidavits were purchased by accused/Anna Wankhede on the instructions of accused/Sri Chand. He stated that the names of 65 members of Martand CGHS were taken from Naval Technical Officers ( NTO) CGHS which was being run by accused/Sri Chand and all the 65 members were removed on one pretext or the other from NTO CGHS, of which Sh.Mohan Lal was President. He identified that the writing about the change of address from 25, Green Park to 1/2(8), Malik Pur Village is in the handwriting of accused/Sri Chand himself and that it was done few weeks before the revival of the society. He also stated that Niranjan Singh (accused no.7dealing assistant) of the RCS office was one of the key men of accused/Sri Chand who got the inspection report from Sh.Faiz Mohammad and CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.52 of 75 he (PW16) was present at RCS office when accused/Niranjan Singh got appointed Sh.Faiz Mohammad as Inspecting Officer of the society through accused/Yogi Raj and that accused/Sri Chand himself, was present along with accused/Anna Wankhede at that time. He stated that accused/Sri Chand used to visit house of accused/Narayan Diwakar, Yogi Raj, Narender Singh Khatri and Sanjeev Bharti, PA to then RCS/accused Narayan Diwakar. He also stated that accused Sri Chand used to pay to the RCS officials like accused/Narayan Diwakar, Yogi Raj, Narender Singh Khatri and Sanjeev Bharti , personally.
46. The testimony of PW17/Mohan Lal is crucial in respect of explicating the role of accused, mainly the private accused persons. He stated that he came into contact with accused/Sri CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.53 of 75 Chand in the year 1986 while posted in Naval Headquarters at Sena Bhawan as accused/Sri Chand was one of the member of NTO CGHS which was being run by one Mr.A M S Chabra, who was President and working in the Navy as a civilian and that he (witness) also became member of said society in year 1986. Mr.Chabra was known to accused/Sri Chand, who was also made member in the said society and accused/Sri Chand was made advisor of the society and later on became its Vice President. In 1987, he (witness) was made President of the NTO CGHS and accused/Sri Chand remained as its Vice President and land was allotted to NTO CGHS by the DDA. He used to visit accused/Sri Chand at his residence/office at 304A, Pocket C, Mayur Vihar, PhaseII, Delhi which was the office address of NTO CGHS having been hired by it at a rent of Rs.8,000/ p.m which was CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.54 of 75 being paid by NTO CGHS.
47. He also produced the old list of original members of NTO CGHS before IO of CBI and after matching the same with the list of members of Martand CGHS, he stated that 65 names of the members of Martand CGHS have been taken from old list of members of NTO CGHS. He specifically stated to the CBI that this was done by accused/Sri Chand with intention to sell off these 65 memberships to one Sumer Chand Gupta who wanted to purchase the society for a good price only if the society was got revived. The names of 65 members of NTO CGHS were incorporated in Martand CGHS on the instructions of accused/Sri Chand in his (witness) presence and signatures/affidavits and applications were forged by accused/Anna Wankhede. D29 and 30 contains the list CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.55 of 75 of members of NTO CGHS as seized by CBI from Mohan Lal.
48. He stated that names of Anjana Kaul, Sudershan Kaur, Vinay Kumar, Chaman Lal and Madan Lal were given by accused/Sumer Chand Gupta to accused/Sri Chand in his presence, who were non existent persons so that accused/Sumer Chand Gupta could do whatever he wanted to do with the society. He stated that accused/Sumer Chand Gupta used to come to the office of accused/Sri Chand to enquire about the status of the revival of the society and also used to meet him (witness) on those days when he (witness) used to be there on holidays. He stated that he knew Sh.S S Chawla, property dealer, a known person of accused/Sri Chand, who had brokered the deal of Martand CGHS with accused/Sumer Chand Gupta in the beginning of year 2003. CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.56 of 75
49. He stated that after the society was revived, accused/Sumer Chand Gupta had signed as Vijay Kumar on one or two pages of the proceeding register in his presence and body portion of the proceeding was written by accused/Anna Wankhede. He identified that some of the portions of the register of Martand CGHS were written by him and some were written by accused/Anna Wankhede by forging signatures of the individual members from S.no.1 to 120. He stated that accused/Anna Wankhede had forged the signatures of Sh.Chaman Lal, Madan Lal and Vinay Kumar in his presence in the office of accused/Sri Chand, about few weeks of revival of society. He identified that the proceedings and affidavits were signed by accused/Anna Wankhede in his presence and he had forged the signatures of CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.57 of 75 President/Secretary of the society.
50. He stated that election officer/N S Khatri (A9) had signed the proceedings in the register of the society (D.18 page 56 and 57 & D.19) in his presence and the said register was created by accused/Sri Chand in connivance with accused/Anna Wankhede and accused/N S Khatri. Page Nos. 54 to 58 contain minutes of Special general body meeting dated 04.05.03 purportedly held at Village Malikpur address of society, got conducted by accused N.S.Khatri as election officer, in which fictitious persons namely Chaman Lal, Madan Lal, Vinay Kumar, Smt.Anjana Kaur and M.S.Sudershan Kaur were shown elected as office bearers of the society. He identified that writings/signatures on the register (D20), were forged by accused/Anna Wankhede. CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.58 of 75 In respect of the document (D21) (M.No.607/06), he stated that he could identify the writings on it, to be of accused/Sri Chand. On the list of members of Martand CGHS submitted to RCS for allotment of land, he identified the signatures of President and Secretary, namely, Chaman Lal, Madan Lal and Vinay Kumar, to have been made by accused/Anna Wankhede. He identified that on vakalatnama of Ms.Rashmi Gulati, Advocate (Page 70/C of D2) signature in the name of non existing person i.e Chaman Lal have been forged by accused/Anna Wankhede and on inspection report he also identified that the signatures in the name of Chaman Lal have been forged by accused/Anna Wankhede. He identified handwriting of accused/Sri Chand on some documents.
51. Thus, there is direct evidence available about forging CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.59 of 75 records/documents of Martand CGHS by accused/Sumer Chand Gupta (A1), Anna Wankhede (A5) and Sri Chand (A6) and they being in league with accused public servants.
52. Besides, accused/Sumer Chand Gupta, Anna Wankhede and Sri Chand, one Surender Kumar Gupta @ S K Garg is another private accused person. As regards him, the role alleged in the charge sheet is that in pursuance to the conspiracy between the accused persons, he had facilitated the revival of Martand CGHS and had given the address of his driver/Rakesh Verma, to be used as address of Martand CGHS and he had instructed Sh.Rakesh Verma to hand over correspondence of RCS/DDA to him or accused/Sri Chand, if and when received. When we see the statement of PWRakesh Verma (PW12), we CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.60 of 75 find that Sh.Rakesh Verma has stated that at no point of time the office of Martand CGHS was located at his address and he does not know why and how his address i.e. 1/2(8) Village Malik Pur Village, Model Town, Delhi has been given as address of Martand CGHS.
53. Thus, it is seen that there is nothing in the testimony of PWRakesh Verma that he was driver of Sh.S K Garg or S K Garg had ever instructed him to give his address as office address of Martand CGHS. He did not even take name of accused S.K.Garg. He is the only witness arrayed against accused S.K.Garg but I find that he has not stated any fact against him. There is no other material against accused S.K.Garg that he was instrumental in getting the said society revived.
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54. It is further alleged in the charge sheet that accused S K Gupta @ S K Garg was running construction business which was constructing NTO CGHS of accused/Sri Chand. This fact, stand alone, even if taken as correct, does not lead to any inference that accused/S K Gupta @ S K Garg was in league with accused/Sri Chand or any other accused persons for revival of Martand CGHS.
55. Accused Niranjan Singh (A.7) was the dealing Assistant who had put up the letter dated 06.03.03 purportedly signed by the President of the society without verification of the facts and without taking into consideration that the file was last dealt by his department on 01.02.79 when society was wound up CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.62 of 75 and thereafter suddenly this letter dated 06.03.03 was received seeking revival of the society. He himself suggested name of Sh.Faiz Mohammad GradeII Inspector for carrying out inspection u/s 54 DCS Act which was approved by accused No.2 Yogi Raj, then Assistant Registrar, whose duty as Desk Officer was to check and verify all the facts, particularly when from previous notings of the file it is clear that society was registered with only eleven (11) members who all were of ClassI Officers of Civil Services and as per the noting available at page No.7/N, the society had provided in its Byelaws that only ClassI Officers of All India Civil Services shall be entitled to become members of the society. They had deliberately accepted the documents from the society in which the bye laws were changed by removing first page which was removed by the accused persons in order to admit the members of non CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.63 of 75 Central Services ClassI, into the membership of the society. It was clear from the previous notings in the same file that the General Body Meeting of the society on 08.04.70 had already passed as its Resolution No.1 that only a classI officer of All India Civil Services could be admitted as member of the society. Statement of PWMohan Lal has already been discussed in respect of conspiracy hatched by accused persons.
56. The name of the officer for ascertaining the factual position of the society and verifying its records was suggested by accused Niranjan Singh himself and obviously with the consent of accused Yogi Raj (A.2), the then AR. Accordingly the name of accused Faiz Mohammad GradeII Inspector has been mentioned in the note sheet available at page no.12/N of D.3 and said Faiz CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.64 of 75 Mohammad pursuant to his appointment submitted a false and fabricated report which is available as D.5 stating therein that he visited the office address of the society at 1/2(8), Malik Pur village, Model Town, Delhi on 08.03.03 and met Sh.Chaman Lal, President of the society, whereas there is no such person as Chaman Lal and the office of the society never used to run at 1/2(8), Malik Pur Village, Delhi. Sh.Rakesh Verma (PW12) who is owner of the said house has been examined by CBI and he has stated that at no point of time any office of Martand CGHS was located at his house and no officer from RCS office has ever visited his place for carrying out any verification or inspection.
57. In such circumstances, it is clear that accused Faiz Mohammad was got appointed by accused Yogi Raj (A.2) in CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.65 of 75 conspiracy with accused Niranjan Singh (A.7) and RCS/Narayan Diwakar in order to take on record a false and fabricated report alongwith forged documents. When the file was put up to accused Narayan Diwakar, then RCS, alongwith forged and fabricated report and documents, he approved the noting of his Reader that President Sh.Chaman Lal be called for initiating hearing u/s 63 of DCS Act. On 25.03.03 Mrs.Rashmi Gulati, Advocate appeared on behalf of the society and filed her vakalatnama. Her vakalatnama is available on record and it has already been discussed as to under what circumstances she had appeared before RCS on behalf of society.
58. Thereafter accused Narayan Diwakar being RCS had sent the file to AR (N/W) for verification and then the note was put CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.66 of 75 up to AR by accused Niranjan Singh on 02.04.03 which was also signed by accused Yogi Raj (A.2). In this note, it has been stated that in compliance with the directions of RCS, the Secretary of the society has produced/submitted original records and documents pertaining to the membership, audit and election etc for verification on 31.03.03 and the same has been counter checked/verified and found in order. There was in fact no real person incharge of the society as it is already observed that Sh.Chaman Lal and Madan Lal, who were named as President and Secretary, are nonexistent persons and moreover there is nothing on record as to what action was taken by dealing assistant and AR after getting the order of RCS dated 25.03.02 for verification and as to how come those fictitious/nonexistent office bearers of the society had produced the records. All the records have been found as forged and CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.67 of 75 fabricated. Not only this, it has also been stated in the note that the society has submitted unaudited records of the society till March, 2002 from Page 1/C to page 213/C in Vol.III and has sought permission to audit the same.
59. As regards election, they stated that elections of the management committee of the society were held in GBM dated 02.03.03 in which Sh.Chaman Lal was elected as President, Smt.Sudershan Kaur as Vice President, Sh.Madan Lal as Secretary, Sh.Vinay Kumar as Treasurer and Smt.Anjana Kaul as member, whereas all of them have been found as nonexistent and fictitious person. It is specifically stated in the note sheet that all the original records were called for verification of membership, audit, election, etc and they have been checked and found in order CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.68 of 75 as per the provisions of DCS Act and Rules. In view of these submissions both accused/Niranjan Singh, dealing assistant and AR/Yogi Raj had recommended for revival of the society u/s 63(3) of DCS Act, approval of freeze list of 120 members and forwarding the same to DDA subject to audit of accounts of society upto 31.03.02. Thereafter note was marked to Reader of RCS and was taken up by accused Narayan Diwakar, the then RCS on 03.04.303 on which date Smt. Rashmi Gulati Adv. again appeared on behalf of the society and he reserved case for orders. When Smt.Gulati was examined (PW15), she said that she was got engaged to represent the society before RCS by accused/Sri Chand through accused/Niranjan Singh, which is yet another circumstance to strengthen the hypothesis put forth by the prosecution that accused public servants were in league with accused/Sri Chand CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.69 of 75 and Anna Wankhede.
60. Accused/Narender Singh Khatri (A9), Gr.IV in RCS office was appointed as election officer by the order of RCS/Narayan Diwakar (A4) dated 04.04.03 to conduct election of the society within two months of issue of his order. Pursuant to the said order, accused/Narender Singh Khatri had submitted a letter dated 07.03.03 to the President/Secretary of Martand CGHS with address as village Malikpur, Model Town, New Delhi. The same is available in the file D26 at page no.18. It is worthwhile to note that PW12/Rakesh Verma was examined by CBI to the effect that no official from RCS office ever visited his residence and that no letter was ever received by him from any office in respect of Martand CGHS and the office of said society never existed at his address. CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.70 of 75 It is also worthwhile to note that even without mention of the house number, accused/Narender Singh Khatri had issued this letter addressed to President/Secretary of the society. He had submitted a report to AR(NW) dated 05.05.03 which is available at page no. 1415 of D26 and by this report he had given list of elected candidates of Martand CGHS with name of Sh.Chaman Lal as President, Madan Lal as Vice President, Vijay Kumar, Anjana Kaul and Sudershan Kaur as managing committee members, who all are found to be non existent persons, as already discussed. Statement of PWMohan Lal has already been discussed in this respect. Thus, it is clear that he had submitted a false and fabricated report to the office, which was apparently made in order to lend credence to the revival of the society by RCS. It is obvious that he was appointed as election officer by accused/Narayan CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.71 of 75 Diwakar (A4) with the understanding that he will submit a false and fabricated election report which suits the purpose of private accused persons who had got revived the society in connivance with accused public servants.
61. After the freeze list of 120 members, including 109 bogus members (as available at page nos.22 to 29 of D26) was forwarded to DDA for allotment of land to Martand CGHS vide letter of accused/Yogi Raj (A2) dated 04.04.03 (Page no.21 of D56), the investigation into 135 CGHS cases including Martand CGHS was ordered by Hon'ble High Court of Delhi and hence the accused persons could not succeed in getting allotment of land from DDA.
CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.72 of 75
62. The sanction orders granted by competent authorities for prosecution of accused Yogi Raj (A2); Niranjan Singh (A7) and N S Khatri (A9) u/s 19 of the PC Act, are available with the charge sheet. Since, accused Faiz Mohammad (A3); Narayan Diwakar (A4) and R N Yadav (A10) retired from service hence no sanction for their prosecution u/s 19 of PC Act is required.
63. In view of the documentary and oral evidence arrayed by the prosecution to prove the case against the accused persons, as discussed above, I find that a prima facie case to frame charge u/s 120 B r/w 420/468/471 r/w 468 IPC and section 13 (2) r/w 13 (1) (d) of P.C.Act, 1988, is made out against accused Sumer Chand Gupta (A1); Yogi Raj (A2); Faiz Mohammad (A3); Narayan Diwakar (A4); Anna Wankhede (A5); Sri Chand (A6); CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.73 of 75 Niranjan Singh (A7); Narender Singh Khatri (A9) and R N Yadav (A10). Besides, a prima facie case to frame charge for substantive offence u/s 15 r/w Section 13 (1)(d) of PC Act, 1988 is made out against accused public servants, namely, Yogi Raj (A2); Faiz Mohammad (A3); Narayan Diwakar (A4); Niranjan Singh (A7); Narender Singh Khatri (A9) and R N Yadav (A10). Additionally, a prima facie case to frame charge for substantive offences u/s 420 r/w 511, 468 and 471 r/w 468 IPC is made out accused/Sumer Chand Gupta (A1); Anna Wankhede (A5) and Sri Chand (A6) and charge for substantive offences u/s 468 and 471 r/w Sec.468 IPC against accused/Faiz Mohammad (A3); Narender Singh Khatri (A9) and R N Yadav (A10) are also made out.
64. Accused/Surender kumar Garg (A8) stand discharged CBI CASE NO.65/08 CBI VS. Sumer Chand Gupta Page No.74 of 75 as there is no sufficient evidence available to prove allegations against him. His bail bond is cancelled and surety stand discharged.
65. It is, therefore, ordered that the charge be framed against accused persons accordingly. It is clarified that nothing said herein shall prejudice the final outcome of trial.
Announced in the Open (R P PANDEY)
Court on 14.05.13 SPL.JUDGE (CBI)01
ROHINI COURT:DELHI
CBI CASE NO.65/08
CBI VS. Sumer Chand Gupta Page No.75 of 75