Delhi District Court
Cbi vs A1. D. K. Sinha on 8 September, 2014
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS : DELHI.
CBI No.28/11
RC No.4E/2006/EOUIV/CBI/New Delhi
under Sections 120B IPC r/w 120B r/w 420, 511, 468 & 471 IPC and
under Sections 13(2) r/w S. 13(1)(d), 15 & 13 (1)(d) of P C Act, 1988.
CBI
Versus
A1. D. K. Sinha
S/o Sh. Shashi Bhushan Prasad
R/o Flat No. 265, Pocket - II,
Sector - 23, Rohini, Delhi - 110095.
A2. Narayan Diwakar
S/o Sh. Chhati Lal
R/o G30, Masjid Moth,
Greater Kailash - II, New Delhi.
A3. Niranjan Singh
S/o Sh. Babu Lal
R/o 309, Karkardooma,
Delhi Government Flats,
Delhi - 110092.
A4. P.K. Thirwani
S/o Late Sh. Moti Lal Thirwani
CBI Vs. D K Sinha & Ors. Page No. 1 of 75
(Kala Sangam CGHS)
R/o 348 - E, Pocket - II,
Mayur Vihar, Phase - I,
Delhi.
A5. Raman Kumar Verma
S/o Sh. Jagannath
R/o F - 444, Karampura,
New Delhi - 110015. ..... Accused.
(Kala Sangam CGHS)
Date of institution of case : 14.12.2006
File received on transfer on : 25.04.2011
Date of reserving judgment : 26.08.2014
Date of pronouncement of judgment : 08.09.2014
J U D G M E N T
I. CASE OF THE PROSECUTION :
1. The case of the CBI, in brief, is that Kala Sangam Co operative Group Housing Society (hereinafter referred to as 'CGHS') was registered on 20/01/1984 vide registration no. 1370 (H) with 75 members having its office at B12, G.T. Karnal Road, Delhi. Since the Society did not comply with the provisions of the Delhi Cooperative Societies Act (in short 'DCS Act') such as holding of General Body Meeting, elections, conducting audit etc. since its inception, it was CBI Vs. D K Sinha & Ors. Page No. 2 of 75 (Kala Sangam CGHS) wound up by Sh. Satish Mathur, the then Deputy Registrar vide order dated 31/08/1990.
2. In February, 2001, accused D. K. Sinha (A1) claiming himself to be Secretary of the Society moved an application before accused Narayan Diwakar (A2), the then Registrar Cooperative Societies (in short 'RCS'), for cancellation of winding up order dated 31/08/1990. Accused Niranjan Singh (A3), the then UDC in the Office of RCS, with the help of forged and fabricated documents attached with said application in the form of proceedings registers containing fabricated proceeding notes since 13/03/1985 till the year 2001, General Body Meeting Proceedings, membership lists and application forms, fabricated balance sheets, receipts and payment details, list of resigned members and enrollment of new members, put up a favourable note before accused Narayan Diwakar to revive the society. Accused Narayan Diwakar, on the basis of note put up by accused Niranjan Singh, having full knowledge that the Society was in process of liquidation since the year 1990, passed revival order on 25/06/2001 without holding any inquiry to this effect. He passed the revival order with immediate effect despite knowing the fact of non conduction of election and audit of the Society besides irregularities in CBI Vs. D K Sinha & Ors. Page No. 3 of 75 (Kala Sangam CGHS) maintenance of accounts relating documents of the society.
3. After revival of the Society, accused D. K. Sinha (A1) submitted a list of 136 members of the Society before accused Narayan Diwakar (A2) for his approval as well as for onward transmission to DDA for allotment of land. During the course of investigation it revealed that most of the members were shown to have become members of the society since the year 1986 though they became members in the year 200001. Accused Niranjan Singh (A3) made a detailed note on 23/07/2001 about approval of final list of members for allotment of land by giving information of enrollment of new members and resignation of old members prior to 30/06/1986 and post 01/07/1986. The said information was given by him on the basis of false, forged and fabricated documents of the society. He did so despite knowing the fact that he was supposed to make a verification in this regard before putting favourable note to RCS. Finally, the list of 136 members was approved by accused Narayan Diwakar on 21/08/2001 and the same was sent to DDA for allotment of land vide letter dated 25/10/2001 under the signature of Late Sh. M. R. Lekhwal, the then AR (W), through AR (Policy). The DDA issued letter dated 14/10/2003 to the President/Secretary of the Society to furnish options CBI Vs. D K Sinha & Ors. Page No. 4 of 75 (Kala Sangam CGHS) for allotment of land. It shows that DDA had already received the list of 136 members from RCS Office duly approved by accused Narayan Diwakar.
4. During investigation, it came to light that accused Narayan Diwakar (A2), vide revival order dated 25/06/2001, had ordered to hold election of the Management Committee. He appointed accused Raman Kumar Verma (A5), the then Grade - III Officer, as an Election Officer to hold election of the Society. Accused Raman Kumar Verma without convening General Body Meeting submitted a note on 28/10/2001 that General Body Meeting of the Society was conducted. It further came to light during investigation that revival order had commanded the Society to complete its audit within two months. On 26/06/2001, J. S. Sharma, the then AR, appointed accused P. K. Thirwani as Auditor of the Society who carried out audit of the Society for the period 19842001 in one go without visiting office of the Society. Accused P. K. Thirwani even did not try to go through the documents such as cash book, ledger, registration files, membership registers, proceedings registers, share allotment registers, receipt books, vouchers, files etc. while conducting audit of the Society. The documents were seized and scrutinized. It confirmed that audit reports CBI Vs. D K Sinha & Ors. Page No. 5 of 75 (Kala Sangam CGHS) of accused P.K. Thirwani (A4) were bogus. The statements of witnesses namely Sunil Kapil, Rakesh Kamal Sharma and B. K. Gupta as well as Report of GEQD confirmed that no meeting of the Society took place after 06/03/1985 and proceedings were fabricated. The witnesses Smt. Poonam Sangal, S. D. Sharma, Raj Dharu, Ravi Kishore Sharma, S. K. Sinha, S. C. Shiva, R. N. Sangal, Smt. Anuja Jain, Smt. Rekha Bhatnagar, Smt. Jaishree Puri, J. N. Saluja, A. S. Dhaman, Sujit Sinha and A. K. Chugh brought it over the record that they joined the Society in the year 200001 and not in the year 1986. Accused D.K. Sinha fabricated proceedings registers as meetings were shown to have been held after 06/03/1985 till application for revival was moved. Sh. Adarsh Kumar Gupta, Advocate, did not attend the proceedings before the Registrar on 30/05/2001 and 14/06/2001. Poonam Sangal never attended the proceedings before the Registrar. They were shown to be present in the proceedings before accused Narayan Diwakar which fact falls heavily on his conduct and goes to establish his complicity in the crime.
5. Accused Niranjan Singh (A3) submitted note dated 29/05/2001 for revival of the Society on the basis of forged and fabricated documents without verifying contents of the documents CBI Vs. D K Sinha & Ors. Page No. 6 of 75 (Kala Sangam CGHS) placed before him. Accused Narayan Diwakar passed revival order of the Society with immediate effect. Thereafter, accused D. K. Sinha submitted a list of 136 members for onward transmission to DDA under forged signatures of Poonam Sangal. Accused Niranjan Singh put a detailed note on 23/07/2001 detailing false and fabricated facts; confirming resignations of members and enrollment of new members; proceeding notes showing approval of resignation and enrollment of new members and completion of election as well as audit till 31/03/2001. Accused Narayan Diwakar made approval of the list on 21/08/2001 which was transmitted to DDA on 25/10/2001. Therefore, it has become crystal clear that accused D. K. Sinha, claiming himself to be the Secretary of the Society, in connivance with accused Narayan Diwakar and other officials of RCS, on the basis of false, forged and fabricated documents revived the Society in the year 2001 and got approved list of 136 members which was forwarded to DDA for allotment of land.
6. The sanctions under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C. Act') against accused Raman Kumar Verma, Niranjan Singh and P.K. Thirwani were also accorded by competent Authorities. After competing the CBI Vs. D K Sinha & Ors. Page No. 7 of 75 (Kala Sangam CGHS) investigation and other necessary formalities, the chargesheet was filed in the Court of Special Judge, CBI, Delhi against the accused for committing offences punishable under Sections 120B IPC r/w S.120B r/w 420, 511, 468 & 471 of Indian Penal Code, 1860 (in short 'IPC') and under Section 13(2) r/w Section 13(1)(d) & S.15 of P.C. Act whereupon the accused were summoned and the copies of documents were supplied to the accused persons.
II. CHARGES FRAMED :
7. On the above allegations, charges were framed vide order dated 31.01.2012 against all the accused persons for having committed offences punishable under Sections 120B IPC and Sections 420/511, 468 & 471 IPC & under Section 13(2) r/w S. 13(1)(d), 15 of P. C. Act; against accused D. K. Sinha (A1) for having committed offences punishable under Section 420/511, 468 & 471 IPC. Separate charges against accused Narayan Diwakar (A2), Niranjan Singh (A3), P. K. Thirwani (A4) and Raman Kumar Verma (A5) were framed for having committed offences under Section 13 (2) r/w Section 13 (1) (d) r/w Section 15 of P.C Act. All the accused persons pleaded not guilty and claimed trial. They were accordingly put to trial.
III. PROSECUTION WITNESSES :
CBI Vs. D K Sinha & Ors. Page No. 8 of 75
(Kala Sangam CGHS)
8. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined thirty one witnesses in all who may be clubbed in four groups for convenience. The four groups are as hereunder :
(a) RCS Officials
(b) Members
(c) CBI Officials
(d) Others
9. RCS OFFICIALS :
i) PW1 Virender Singh Verma (Liquidator)
ii) PW2 Satish Mathur (Winding Up Order)
iii) PW3 Krishan Kumar (Joint Registrar)
iv) PW9 Anil Manocha (Stenographer to RCS)
v) PW24 Virender Kumar Bansal (Formal Witness)
10. PW1 Virender Singh Verma has testified that Notices dated 25.08.1987 Ex.PW1/A and 30.09.1987 Ex.PW1/B were issued to Kala Sangam CGHS for the purpose of verification of the final list of members for onward transmission to DDA. Another letter dated 14.04.1988 Ex.PW1/C was issued requiring the society to hold Special General Body Meeting. Thereafter, Show Cause Notices dated CBI Vs. D K Sinha & Ors. Page No. 9 of 75 (Kala Sangam CGHS) 31.03.1990 Ex.PW1/D and 07.05.1990 Ex.PW1/E were issued to the society by PW2 Satish Mathur. He has further deposed that PW2 issued DFA with respect to winding up of the society and, thereafter, he (PW1) was appointed as liquidator. He in the capacity of the liquidator during liquidation proceedings issued summon dated 09.10.1990 Ex.PW1/G to Sh. O. P. Sharma, ExSecretary of Kala Sangam CGHS. The society neither sent the documents nor anybody appeared in response to the said summon.
11. During his crossexamination, PW1 Virender Singh Verma has admitted that no final liquidation order is on record showing that the society was ever liquidated. He has further admitted that the liquidation proceedings were never completed in case of Kala Sangam CGHS. It was also admitted by him that once a society is wound up, the Registrar has power to revive the same at any time.
12. PW2 Satish Mathur has corroborated the testimony of PW1 Virender Singh Verma. He has deposed that he approved the issuance of Show Cause Notice under Section 63 of DCS Act vide his noting Ex.PW2/A (Note Sheet Page No. 6/N). He has further proved his notings regarding winding up of the society as Ex.PW2/B and Ex.PW2/C. As per PW2, one Sh. S. Diwakar was appointed as CBI Vs. D K Sinha & Ors. Page No. 10 of 75 (Kala Sangam CGHS) liquidator vide DFA Ex.PW1/F. During his crossexamination, PW2 has stated that after approval of DFA Ex.PW1/F, he had approved the final winding up order but the same is not available in the file.
13. PW3 Krishan Kumar has deposed that from April, 1999 to March, 2002, he was posted as Joint Registrar in the Office of RCS, Delhi. Sh. B. M. Sethi, Deputy Registrar (NorthWest) marked to him file bearing No. M.R.597/05 having his notings at pages 18/N to 20/N regarding approval of final list of members for allotment of land being sent to DDA. He, in turn, marked the said file to RCS for consideration and approval of the aforesaid list. Accused Narayan Diwakar (A2) finally approved the said list. He has further proved the revival order dated 25.06.2001 of Kala Sangam CGHS passed by A2 as Ex.PW3/B; DFA of the said revival order as Ex.PW3/C and the application dated 20.02.2001 for revival of the Kala Sangam CGHS as Ex.PW3/D with an endorsement of A2.
14. During his crossexamination, PW3 has admitted that proceedings under Section 63 (3) of the DCS Act before RCS are quasijudicial in nature. It was further admitted that RCS is fully competent for passing the order of cancellation of winding up order under Section 63(3) of DCS Act at any time provided he is satisfied CBI Vs. D K Sinha & Ors. Page No. 11 of 75 (Kala Sangam CGHS) that the society is in a position to function. It was further admitted by PW3 that Kala Sangam CGHS was not finally liquidated within the stipulated period of three years from the date of winding up order. It was also admitted by PW3 that final termination order was not passed and if the proceedings under Rule 105 of DCS Rules are not completed, then the society would be automatically deemed to be revived. PW3 has further deposed that audit and election of the society are not prerequisites for reviving any society as per DCS Act and Rules.
15. PW9 Anil Manocha has testified that he was posted as a Stenographer to RCS. He identified the notesheets bearing signatures of Sh.Shamsher Singh, Reader to RCS, as Ex.PW9/A (Collectively) and other notesheets bearing signatures of A2 as Ex.PW9/B to Ex.PW9/D. PW9 has further deposed that an application for revival of Kala Sangam CGHS (Ex.PW3/D) was submitted by one D. K. Sinha and the same was addressed to RCS. He has also proved two letters as Ex.PW9/E & Ex.PW9/F; affidavits Ex.PW9/G & Ex.PW8/C and the order dated 25.06.2001 passed by A2 as Ex.PW3/B.
16. PW24 Virender Kumar Bansal is a formal witness. He handed over the files/documents to CBI on 10.08.2005 & 02.09.2005 CBI Vs. D K Sinha & Ors. Page No. 12 of 75 (Kala Sangam CGHS) vide memos Ex.PW24/A & Ex.PW24/B respectively.
17. MEMBERS :
i) PW4 S. C. Shiva
ii) PW5 Anuja Jain
iii) PW6 Anil Kumar Chugh
iv) PW7 Raj Dhuru
v) PW8 Poonam Sangal
vi) PW10 Satender Kumar Sinha
vii) PW13 Sunil Kapil
viii) PW14 Jetha Nand Saluja
ix) PW16 Reeta Aggarwal
x) PW17 Rekha Bhatnagar
xi) PW18 D. K. Bhatnagar
xii) PW19 Ravinder Kishore Sharma
xiii) PW23 R. Jayshree Puri
xiv) PW28 Rajinder Kumar
xv) PW29 Shakamber Dutt Sharma and xvi) PW31 Sujit Kumar Roy
18. PW4 S. C. Shiva has testified that he became member of society in the year 1999 and paid Rs.6,000/ at the time of becoming CBI Vs. D K Sinha & Ors. Page No. 13 of 75 (Kala Sangam CGHS) member. He has denied attending of the managing committing meeting dated 28.04.1985 showing his name at serial no. 11 in the register Ex.PW4/A on the ground that he became member in the year 1999, so the question of his applying membership in the year 1985 did not arise. He has further denied having attended General Body Meeting dated 19.08.1990 (Ex.PW4/B); Meeting held on 29.08.1999 (Ex.PW4/C); General Body Meeting dated 26.11.2000 (Ex.PW4/D) and General Body Meeting dated 13.01.2002 (Ex.PW4/E). He has further testified that his name is there in the final list of members of Kala Sangam CGHS for onward transmission to the DDA for allotment of land though other particulars except his father's name have been wrongly mentioned therein. He has proved the list as Ex.PW4/F & Ex.PW4/G.
19. During his crossexamination, PW4 has admitted that he had received the share certificate. However, he has claimed that the same was given to the CBI officer. He has further testified that he had signed an affidavit after becoming member of the society though he had not gone to Notary Public for its attestation. As per this witness, Ms. Poonam Sangal was the President of the society.
20. PW5 Anuja Jain has deposed that she became member of Kala Sangam CGHS in the year 20002001 through her sisterinlaw CBI Vs. D K Sinha & Ors. Page No. 14 of 75 (Kala Sangam CGHS) Ms. Poonam Sangal. She has denied having become a member of the society in the year 1985. She has further denied having attended the meeting of Kala Sangam CGHS on 26.11.2000 (Ex.PW4/B); Special GBM dated 28.10.2001 (Ex.PW5/A); MC Meeting dated 28.04.1985 (Ex.PW4/A) and MC Meeting dated 29.08.1999 (Ex.PW4/C).
21. During her crossexamination, she has testified that she did not know as to what post Ms. Poonam Sangal was holding in Kala Sangam CGHS. She has further testified that she had paid Rs.20,000/ at the time of becoming member but the same was refunded to her. She has admitted that her husband was looking after the affairs regarding her membership in the society.
22. PW6 Anil Kumar Chugh has testified that one society was constituted by the office bearers of L & T Ltd., Najafgarh, Delhi. Sh. D. K. Sinha was one of the office bearers of the society. One circular was issued by the office bearers of the society regarding membership and, consequently, he became member in the year 19992000 by depositing Rs.100/ or Rs.150/. Thereafter, he did not pay any money though the same was demanded by the society. He has denied having attended any meeting of Kala Sangam CGHS.
23. PW7 Raj Dhuru has testified that he became member of Kala Sangam CGHS in the year 2002 through his sister Poonam CBI Vs. D K Sinha & Ors. Page No. 15 of 75 (Kala Sangam CGHS) Sangal and had paid an amount of Rs.20,000/. He has denied having attended any meeting of Kala Sangam CGHS though his name has been shown in the proceedings Ex.PW4/B, Ex.PW4/C & Ex.PW4/D. He has categorically denied having become member of Kala Sangam CGHS in the year 1985 or having filed affidavit in the year 2001. He has further denied having attended meeting dated 28.07.1985 (Ex.PW13/N) wherein his membership is shown to have been approved by the Committee. He has further testified that in the year 2001 his sister gave him an affidavit which he had signed at two places. During his crossexamination, PW7 testified that an amount of Rs.20,000/ was refunded to him by accused D. K. Sinha whom he met for the first time at Rohini, Delhi.
24. PW8 Poonam Sangal has deposed that she became member of Kala Sangam CGHS through accused D. K. Sinha who was working with her in L & T Ltd. She has denied having sent letter dated 26.07.2001 (Ex.PW8/A) for approval of final list of members of Kala Sangam CGHS. She has further denied her signatures thereupon. She has also denied her signatures on Affidavits Ex.PW8/B & Ex.PW8/C; Freeze List Ex.PW4/F, Ex/PW4/F1 & Ex.PW4/G; Vakalatnama Ex.PW8/B; letters addressed to DDA Ex.PW8/E & Ex.PW8/E1; audit CBI Vs. D K Sinha & Ors. Page No. 16 of 75 (Kala Sangam CGHS) papers Ex.PW8/F to Ex.PW8/F60 and list of members Ex.PW7/A. She has further denied having attended meetings on 26.11.2000 (Ex.PW4/D) and 28.10.2001 (Ex.PW8/G). However, it was admitted by her that she was elected President of Kala Sangam CGHS unanimously. She has further testified that an amount of Rs.20,000/ in installments was paid to Sh. S. P. Bajaj which was refunded to her by Sh. S. P. Bajaj.
25. During her crossexamination, PW8 has testified that she was prompted by Sh. S. P. Bajaj to become member of the society. She has deposed that after the society was brought to the notice of the employees of L & T Ltd., several persons became its member which included 2025 of her relatives. She has further testified that Mr. Bajaj had assured her that she need not worry regarding visiting Office of RCS. The record of the society was in the possession of Mr. Bajaj. She has further admitted that 7080 members shown in Ex.PW7/A are known to her and the said list was seen by her when she was President of the society. She has identified her signatures on the proceedings Ex.PW4/A which she signed on the request of Mr. Bajaj. As per this witness, she had not attended the meetings but had signed the proceedings on the asking of Sh. S. P. Bajaj. She has further testified that Sh. S. P. Bajaj betrayed their trust and is now absconding. As per CBI Vs. D K Sinha & Ors. Page No. 17 of 75 (Kala Sangam CGHS) PW8, it was Mr. S. P. Bajaj who was responsible for the revival of the society but no action was taken against him by the CBI.
26. PW10 Satender Kumar Sinha has testified that he became member of Kala Sangam CGHS in the year 1998. He denied his signatures on the proceedings dated 19.08.1990 (Ex.PW4/B). During his crossexamination, he has testified that he paid Rs.110/ to Sh. S. P. Bajaj at the time of becoming member and most of the affairs of the society were handled by Mr. Bajaj.
27. PW13 Sunil Kapil is the promoter member who has deposed that he became member of Kala Sangam CGHS in the year 198384. He was the Treasurer of the said society but the society stopped functioning in the year 198586. He has further testified that he never attended any meeting of the society after it stopped functioning. This witness was shown proceedings register and he has admitted having attended the meetings for the period 198385 vide Ex.PW13/A to Ex.PW13/J. However, he has denied having attended the meetings after March, 1985 though he and Sh. B. K. Gupta have been shown to have attended the same vide Ex.PW13/K, Ex.PW4/A and Ex.PW13/L to Ex.PW13/P33. He has categorically denied that no person by the names of Ms. Poonam Sangal and Sh. D. K. Sinha were CBI Vs. D K Sinha & Ors. Page No. 18 of 75 (Kala Sangam CGHS) members or they ever held any official post in the said society. PW13 was not crossexamined by any of the accused persons. Hence, his testimony has remained unrebutted.
28. PW14 Jetha Nand Saluja has deposed that he became member of Kala Sangam CGHS through A1 D. K. Sinha. During his crossexamination, PW14 has testified that he did not know as to who was running the society.
29. PW16 Reeta Aggarwal has testified that she became member of Kala Sangam CGHS but never attended any meeting of the society. During her crossexamination, she has deposed that she got her refund from her sister Poonam Sangal.
30. PW17 Rekha Bhatnagar has deposed that she became member of Kala Sangam CGHS and paid Rs.20,000/ to Ms. Poonam Sangal. She has denied having attended any meeting of the society though she has been shown to have attended the meetings vide Ex.PW4/B, Ex.PW4/D and Ex.PW5/A. During her crossexamination, she has deposed that she got her refund from her sister Ms. Poonam Sangal.
31. PW18 D. K. Bhatnagar has deposed that he became member of Kala Sangam CGHS through his brother Sh. Subhash CBI Vs. D K Sinha & Ors. Page No. 19 of 75 (Kala Sangam CGHS) Bhatnagar in the year 2001 and paid Rs.50,000/. The said amount was paid in installments to the Cashier in the L & T Ltd., Moti Nagar Office, Delhi. He has denied having attended any meeting of the society though he has been shown to have attended the same vide Ex.PW13/N. However, he has admitted having attended the meeting of the society on 26.11.2000 (Ex.PW4/D). As per this witness, amount of Rs.50,000/ was returned to him by D. K. Sinha (A1) through cheque. This witness was declared hostile and was allowed to be cross examined by PP for CBI and in the said crossexamination he admitted having not attended the meeting of the society on 26.11.2000 (Ex.PW4/D).
32. PW19 Ravinder Kishore Sharma has deposed the he became member of Kala Sangam CGHS in the year 200001 through his brother Sh. Jitender Kumar and paid Rs.18,000/. He has also denied having attended the meetings of the society on 26.11.2000 vide Ex.PW4/D and in the year 1986 vide Ex.PW13/P5. He has further testified that he was called through Mrs. Puri near Barakhambha Road, Connaught Place, New Delhi where D. K. Sinha (A1) refunded him Rs.14,000/ as full and final payment towards society.
33. PW23 Ms. R. Jayshree Puri has deposed that she became CBI Vs. D K Sinha & Ors. Page No. 20 of 75 (Kala Sangam CGHS) member of Kala Sangam CGHS about 15 years ago and paid Rs. 14,000/ for membership to D. K. Sinha (A1). Thereafter, D. K. Sinha (A1) demanded Rs.40,000/. In the meantime, she had received anonymous letter against D. K. Sinha (A1) reading which she became disinterested in the membership of the society. She got the refund of Rs.8,000/ from D. K. Sinha (A1). She has further testified that in the year 200203, she tendered her resignation letter from the membership of the society to D. K. Sinha (A1). The testimony of this witness has remained unrebutted.
34. PW28 Rajinder Kumar has deposed that he became member of the society through D. K. Sinha (A1) in the year 200001 and had paid Rs.20,000/ to him. In the year 2003, he visited D. K. Sinha (A1) at Rohini, Delhi and surrendered the share certificate and also got his refund of Rs.20,000/ in cash from D. K. Sinha (A1). He has denied having attended meeting of the society in the year 1990 (Ex.PW13/P21). During his crossexamination, he has deposed the he became member of the society through Sh. Raj Dhuru.
35. PW29 Sakamber Dutt Sharma has deposed that he became member of Kala Sangam CGHS and had initially paid Rs. 6,000/ and, later on, in the end of year 1999, paid Rs.12,000/ to D. K. Sinha (A1). He has denied having attended meeting of the society on CBI Vs. D K Sinha & Ors. Page No. 21 of 75 (Kala Sangam CGHS) 29.09.2000 (Ex.PW29/A). However, he has admitted his signatures on the proceedings dated 28.10.2001, 11.11.2001, 13.01.2002, 24.02.2002 and 17.03.2002 in the register Ex.PW20/C and also on Ex.PW4/E. He has testified that D. K. Sinha (A1) and Mr. Bajaj used to manage the affairs of the society. In the year 2004, he thought of resigning from the society and, consequently, he tendered his resignation and got the refund in cash. He has further denied his signatures as Treasurer in the list of members Ex.PW4/F and final lists Ex.PW29/B & Ex.PW4/G. He has also denied his signatures on the proceedings register Ex.PW20/D and the Audit Report Ex.PW20/B. During his cross examination, he has admitted that he remained Treasurer of Kala Sangam CGHS for two years i.e. 2002 to 2004.
36. PW31 Sujit Sinha Roy has deposed that he became member of Kala Sangam CGHS in the year 19992000 and has paid Rs.110/ in cash but the receipt for the same which was given to him was of the year 1996. He had never attended any meeting of the society and had resigned from the membership in the year 2004. This witness was declared hostile and during his crossexamination by learned PP he admitted that application for membership was given to D. K. Sinha (A1).
CBI Vs. D K Sinha & Ors. Page No. 22 of 75
(Kala Sangam CGHS)
37. CBI OFFICIALS :
i) PW15 Lakhmi Chand (Formal witness)
ii) PW21 Rajeev Dwivedi (Preliminary Enquiry)
iii) PW22 Ram Swaroop (Part IO),
iv) PW30 D. K. Barik (IO).
38. PW15 Lakhmi Chand is a formal witness. He was working as Incharge, Malkhana, CBI, EOUVII, New Delhi and on 17.01.2006 he handed over the documents mentioned in the seizure memo Ex.PW15/A to Inspector Ram Swaroop.
39. PW21 Rajeev Dwivedi has corroborated the testimony of PW15 Lakhmi Chand. He had conducted the preliminary enquiry of this case. He has deposed that on 19.01.2006 the documents mentioned in the seizure memo Ex.PW21/A were handed over by him to Inspector Ram Swaroop. During his crossexamination, he has admitted that some photocopies of the documents were received by him on 12.10.2005 and 28.10.2005 from Sh. S. P. Bajaj vide separate covering letters but the said covering letters are not on record. This witness was further unable to tell if he had called S. P. Bajaj to his office or had visited the office / residence of S. P. Bajaj during enquiry. He also could not tell as to what those photocopies were CBI Vs. D K Sinha & Ors. Page No. 23 of 75 (Kala Sangam CGHS) which were seized by him or if he had tried to collect the originals of the documents from Sh. S. P. Bajaj. He also could not tell in what capacity Sh. S.P. Bajaj was having those photocopies of the documents of the society. This witness also could not tell if he had recorded the statement of S.P. Bajaj. He has also denied having conducted the house search of Sh. Ashwani Sharma.
40. PW22 Ram Swaroop is the Part IO of the case. He has deposed that the FIR Ex.PW22/X was registered and the investigation of the case was entrusted to him. During investigation, he recorded the statements of the witnesses and collected documents vide seizure memos Ex.PW15/A & Ex.PW21/A. He had also seized documents from Sh. Baldev Raj, Sh. Rajeev Puri, Mohd. Usman Khan vide seizure memos Ex.PW22/A, Ex.PW22/B & Ex.PW22/C respectively. He had also recorded the statements of witnesses Ex.PW22/D to Ex.PW22/H and Ex.PW22/J to Ex.PW22/N. He has further deposed that vide order dated 10.02.2006 of SP, case was transferred to Sh. D. K. Barik for further investigation. The testimony of PW22 has remained unrebutted.
41. PW30 D. K. Barik is the IO of the case. He has deposed that during investigation he recorded the statements of the witnesses CBI Vs. D K Sinha & Ors. Page No. 24 of 75 (Kala Sangam CGHS) and conducted the search in the house of D. K. Sinha (A1). Specimen handwriting and signatures of D. K. Sinha (A1) were obtained and the same were sent alongwith questioned documents to GEQD, Chandigarh for obtaining opinion. As per this witness, after completing the investigation, the chargesheet was submitted in the Court.
42. During his crossexamination, PW30 has admitted that there is no evidence on record to show that accused Narayan Diwakar (A2) had obtained any pecuniary advantage for his official act. He has denied the suggestion that the documents seized vide memo Ex.PW25/A have been falsely shown to have been recovered from the house of D. K. Sinha (A1) or that the same were called from one Sh. Bajaj who had brought the documents to the house of D. K. Sinha (A1). He has denied the suggestion that investigation was not conducted by him in a fair manner.
43. OTHER WITNESSES :
i) PW11 Jayshree Raghuraman (Sanction)
ii) PW12 Ramesh Narayanswami (Sanction)
iii) PW20 R. Chandra (GEQD)
iv) PW25 Gurpal Singh (House search) CBI Vs. D K Sinha & Ors. Page No. 25 of 75 (Kala Sangam CGHS)
v) PW26 Anil Kumar Sharma (DDA)
vi) PW27 Adarsh Kumar Gupta (Advocate)
44. PW11 Jayshree Raghuraman has proved prosecution sanction for accused Raman Kumar Verma (A5) vide her sanction order Ex.PW11/A.
45. PW22 Ramesh Narayanswami has proved prosecution sanction for accused Niranjan Singh (A3) and P. K. Thirwani vide his sanction orders Ex.PW12/B & Ex.PW12/C respectively.
46. PW20 R. Chandra has proved his opinion regarding handwriting and signatures of D. K. Sinha (A1) as Ex.PW22/F and the detailed reasons in support thereof as Ex.PW22/G.
47. PW25 Gurpal Singh has deposed that in the year 2006 he was working as Head Clerk Northern Railway, Headquarter, Baroda House, New Delhi and on 22.02.2006 he accompanied Sh. Ram Niwas, Sh. D. K. Barik and Sh. Ram Swaroop to the house of D. K. Sinha (A1). CBI team conducted search of the said premises and the documents recovered during the search were seized vide memo Ex.PW25/A. He has further deposed that file Ex.PW20/B and proceedings register Ex.PW20/D were recovered from the house of D. K. Sinha (A1) and all the pages of the same were signed by him as CBI Vs. D K Sinha & Ors. Page No. 26 of 75 (Kala Sangam CGHS) well as by one Sh. Ram Niwas, who has now expired.
48. PW26 Anil Kumar Sharma is a formal witness. In the year 2006 he was working as LDC in DDA. He had handed over documents to Inspector D. K. Barik which were seized vide memo Ex.PW26/A.
49. PW27 Adarsh Kumar Gupta is the Advocate who represented Kala Sangam CGHS before RCS. He has deposed that on 09.05.2001 one D. K. Sinha asked him to appear on behalf of Kala Sangam CGHS. PW27 gave him a filled up Vakalatnama and asked him to get it signed from President / Secretary with the stamp seal of the society. On 09.05.2001, the matter was adjourned for 16.05.2001. On 16.05.2001, he appeared with D. K. Sinha before RCS and filed duly signed and stamped Vakalatnama and the matter was adjourned to 30.05.2001. He did not appear thereafter. He has proved his Vakalatnama as Ex.PW8/D. During his crossexamination, he was unable to tell if the Vakalatnama bears the signatures of D. K. Sinha as he had not signed in his presence. He has further admitted that he appeared before RCS on 09.05.2001 without filing his Vakalatnama. The notesheet Ex.PW27/DA bears his signature on the margin. He has further admitted the said exhibit does not bear signature of D. K. CBI Vs. D K Sinha & Ors. Page No. 27 of 75 (Kala Sangam CGHS) Sinha.
IV STAND OF ACCUSED UNDER SECTION 313 CR.PC AND DEFENCE EVIDENCE :
50. The statements of accused D.K. Sinha (A1), Narayan Diwakar (A2), Niranjan Singh (A3), P.K. Thirwani (A4) and Raman Kumar Verma (A5) under Section 313 Cr.PC were recorded when a chance was given to explain the incriminating evidence against them.
51. A1 D. K. Sinha has denied the case of the prosecution and has claimed that he has been falsely implicated in the present case. A1 D.K. Sinha has stated that all 136 members were existing members. The affairs of the society were in fact being handled by Sh. S. P. Bajaj who was following the matter with O/o RCS. Most of members belonged to L & T Ltd. or their references. As far as he was concerned, he was a member of the society as any other member. He had no personal interest in the society beyond any other member. In fact, he has been made a scapegoat by IO who helped S. P. Bajaj and saved him from prosecution. He has further stated that there was a news in Times of India or in Hindustan Times about Mr. D. K. Barik, Inspector, CBI regarding various charges of corruption against him. Mr. D. K. Barik (IO) had taken a laptop from the husband of Ms. CBI Vs. D K Sinha & Ors. Page No. 28 of 75 (Kala Sangam CGHS) Poonam Sangal, President of Kala Sangam CGHS, as the said fact was told to him by PW8 after his release from the Jail. He was asked by Mr. S. P. Bajaj to pay Rs.3,00,000/ to CBI so that the case could be closed. He refused to pay the bribe and, therefore, he has been falsely implicated in the present case.
52. A2 Narayan Diwakar has denied the case of the prosecution and has claimed that he has been falsely implicated in the present case. A2 Narayan Diwakar has stated that he was appointed as the RCS, Delhi. The order for canceling the winding up of Kala Sangam CGHS was passed in compliance of the judgment delivered by the Double Bench of the Hon'ble Delhi High Court in the Civil Writ Petition No. 1767 of 1986 titled as Vikas CGHS Vs. RCS, decided on 21.11.1986. The acts performed by him were done in good faith taking all the necessary steps as provided under the law.
53. A3 Niranjan Singh in his statement under Section 313 Cr.P.C. has claimed that he acted in official capacity. Forgery, if any, was done outside the office and the same was never within his knowledge. As per A3, he has been falsely implicated in this case.
54. In his defence, A3 has examined DW1 Gopal Singh Bist who has deposed that the role of the dealing assistant is that he only puts up a detailed note in the form of draft before the AR as per his CBI Vs. D K Sinha & Ors. Page No. 29 of 75 (Kala Sangam CGHS) directions and after his approval the same is got typed and signed by AR as well as by the Dealing Assistant. He has further deposed that no training is given to the RCS staff including Dealing Assistant for detection of forgery as well as for putting a detailed note. During his crossexamination by learned PP, he has admitted that he has no personal knowledge of the file pertaining to Kala Sangam CGHS.
55. A4 P. K. Thirwani has stated that he was appointed auditor to conduct the audit of the society by AR (Audit) Sh. J. S. Sharma as per Rule 84(d) for the period from the year 198384 to 20002001 after the revival of the society. In the present case, RCS had ordered for conducting pending audit of society. He had conducted the audit of the society for the period i.e. from the year 198384 to 20002001 after the revival and sending of the list of members of the society to the DDA for land allotment.
56. In his defence, he has examined DW3 J. S. Sharma who has deposed that during January 2001 to April 2004, he was working in the O/o RCS in the capacity of Assistant Registrar (Audit) and accused P.K. Thirwarni (A4) was under his supervision. P.K. Thiwarni (A4) was appointed by him to conduct the audit of Kala Sangam CGHS for the period from the year 198384 to 2001 after the CBI Vs. D K Sinha & Ors. Page No. 30 of 75 (Kala Sangam CGHS) approval of the RCS vide order dated 26.06.2001 (Ex.PW20/B). A4 had pointed out eight objections / suggestions in his audit report to be complied with by the society to Zonal AR. He has further deposed that Auditor has no role in the revival of the society or in sending the list of the members to the DDA for land allotment. He has further testified that there are no instructions in DCS Act / Rules to verify the genuineness of the record produced by the society for audit. He has further deposed that in the newspaper Hindustan Times dated 19.12.2007 a news was published regarding corruption charges against D. K. Barik, DSP, CBI who is the IO of the case. He has proved the said newspaper as Ex.DW3/C. During his crossexamination by learned PP, he has admitted that an Auditor is expected to conduct the audit of the society in a fair manner.
57. A5 Raman Kumar has stated that in Kala Sangam CGHS all the members were genuine as there was no complaint in this regard even from the CBI and the society's address was also found existing. There is no charge of forgery against him for having forged any document. CBI has alleged that no special GBM was held on 28.10.2001 which is incorrect and false. The society members had attended the said meeting at RCS office at Parliament Street as stated CBI Vs. D K Sinha & Ors. Page No. 31 of 75 (Kala Sangam CGHS) in Ex.PW5/A. CBI had searched his residence and no incriminating record was recovered by the CBI. As regards election, the number of applications for nomination received was equal to the number of posts of the Executive Committee of the society. Hence, the result of the election was declared unopposed unanimously as is evident from Ex.PW5/A. The writing of proceedings on Ex.PW5/A was mere a formality and was, therefore, meaningless.
58. In his defence, he has examined DW2 Sanjeev Bharti who has deposed about the procedure adopted by the Election Officer for conducting the elections of CGHS. During his crossexamination by learned PP, he has admitted that Election Officer is responsible to conduct free and fair election and to submit his report accordingly.
59. It is pertinent to mention here that A1 also wanted to examine PW21 Rajeev Dwevidi in order to substantiate his defence. However, later on, an application under Section 311 Cr.P.C. was moved for examining PW21 Rajeev Dwevidi. The same was allowed by the Court and, instead, defence was permitted to crossexamine PW21 Rajeev Dwevidi. Feeling satisfied, PW21 was not examined as defence witness by the accused.
60. A1 also wanted to examine Sh. Ram Niwas Choudhary and Sh. S. P. Bajaj as witnesses in his defence. Sh. Ram Niwas CBI Vs. D K Sinha & Ors. Page No. 32 of 75 (Kala Sangam CGHS) Choudhary was reported to have expired while S. P. Bajaj was found untraceable at the addresses furnished by the accused. The defence evidence was, thus, closed on 28.07.2014.
61. I have heard Special PP for CBI; Sh. S. K. Bhatnagar, learned Counsel for A1, A4 & A5; Sh. Abhishek Prasad, learned Counsel for A2 and Sh. R. P. Shukla, learned Counsel for A3. I have perused the case file.
V RIVAL CONTENTIONS :
62. Special PP for the CBI has contended that CBI has proved its case against all the accused beyond reasonable doubt. According to him, all the public servants were in connivance with D. K. Sinha (A1) and they were helping him, actively and intentionally, so that Kala Sangam CGHS which was dormant for about 10 years might be revived. All the accused persons knew that Kala Sangam CGHS was a defunct society as there was no correspondence by the genuine office bearers of the society after the year 1996. It was A1 who wanted to revive the defunct society so that the land might be allotted by the DDA. It is further contended that in view of judgment of Delhi High Court the land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of date of registration of the society. CBI Vs. D K Sinha & Ors. Page No. 33 of 75
(Kala Sangam CGHS) According to Special PP, a newly created society would not have got any land and, therefore, false and forged documents were created with the active connivance of RCS officials. It was so done to project as if the said society was seeking its revival.
63. Sh. S. K. Bhatnagar, learned Counsel for D. K. Sinha (A1), P. K. Thirwani (A4) & Raman Kumar Verma (A5) has contended that all of them have been falsely implicated in the present case by the CBI. A4 and A5 were merely discharging their respective official duties and they had no reason whatsoever to disbelieve or suspect that the documents produced before them by A1 were forged and fabricated. According to him, even otherwise, it was merely a case of preparation and not an attempt. A4 and A5 being public servants enjoy immunity from prosecution under Section 95 of DCS Act.
64. As regard A1, learned Counsel has contended that there is nothing on record that A1 was in any way involved in sending the list of the members to O/o RCS. It is further contended that it was S. P. Bajaj who was following the matter with O/o RCS for the revival of Kala Sangam CGHS and this fact is apparent from the testimony of PW29 S. D. Sharma and PW8 Poonam Sangal. S. P. Bajaj was the main culprit but he was soft handled by the CBI. Learned Counsel CBI Vs. D K Sinha & Ors. Page No. 34 of 75 (Kala Sangam CGHS) further contended that the documents which have been shown to have been recovered from the house A1 during his house search, in fact, were in the possession of S. P. Bajaj. A bogus house search has been shown by the CBI so as to help S. P. Bajaj evade law. In nutshell, learned Counsel has contended that A1 has been made a scapegoat so that main culprits go scotfree. It is further contended that obtainment of specimen handwriting / signatures of A1 and its manner were in flagrant violation of law. The investigation is tainted and motivated. There is no wrongful loss or wrongful gain to anyone. A1 is, therefore, liable to be acquitted.
65. As regard A4, learned Counsel has contended that the name of A4 is not mentioned in the FIR. He had entered the scene after the revival order passed by the RCS and, therefore, he cannot be labeled as a coconspirator. Learned Counsel has further contended that there is nothing on record that A4 signed as office bearer of the society. A4 had merely acted on the directions of his superiors including DW3 J. S. Sharma and there is no evidence to the effect that he never visited the office of the society. Lastly, he has contended that no wrongful loss or wrongful gain was caused to anyone and, as such, A4 is liable to be acquitted.
66. As regard A5, learned Counsel has contended that A5 is CBI Vs. D K Sinha & Ors. Page No. 35 of 75 (Kala Sangam CGHS) not named in the FIR which was registered after conducting preliminary enquiry. During preliminary enquiry no primafacie material was found against him. It is further contended that revival order was not based on the elections conducted by A5. It has been claimed that there was no dereliction of duty on his part at all. There is nothing on record to show that A5 ever demanded or obtained any pecuniary advantage also. It has also been claimed that A5 cannot be dubbed as a coconspirator. It is, therefore, prayed that he be acquitted.
67. As regard A2, Sh. Abhishek Prasad has contended that the revival order of the society by A2 is neither illegal nor contrary to public interest. There is nothing on record that the cancellation of winding up order dated 25.06.2001 was influenced by any corrupt or illegal means or was passed by A2 abusing his official position. Membership is the subject matter of the society and A2 had no role in it. It is further contended that the file was processed in its natural course and there was nothing unusual to raise suspicion. According to him, the cancellation of winding up order was passed under Section 63(3) of DCS Act and there is no evidence to show that either A2 or other RCS officials had any knowledge that the documents submitted CBI Vs. D K Sinha & Ors. Page No. 36 of 75 (Kala Sangam CGHS) before them were forged one. Learned Counsel has further contended that as per testimony of PW27 who being an Advocate represented Kala Sangam CGHS before A2 and had filed his Vakalatnama, he himself was not sure about the signatures of the President (Ms. Poonam Sangal) on it then how could it be assumed for A2 to know about the genuineness of the documents. It is further contended that there is no evidence of any association of A2 with any private individual including A1. There is nothing on record to show that A2 gained any pecuniary advantage from anyone and this fact is clear from the testimony of PW30 D. K. Barik, IO. Neither A2 nor his family members were members of Kala Sangam CGHS and, as such, he was not to be benefited if the land would have been allotted by the DDA. According to Learned Counsel, almost all the members of Kala Sangam CGHS were genuine and there is nothing on record to show that any loss was caused to DDA or Government.
68. As regard A3, Sh. R. P. Shukla, Ld. Counsel has contended that A3 was merely a dealing assistant who was acting under the directions of the then Assistant Registrar (AR). He had merely put up the papers/documents received from the society before AR and all the decisions were taken by AR and RCS (A2). It has been CBI Vs. D K Sinha & Ors. Page No. 37 of 75 (Kala Sangam CGHS) contended that he cannot be hauled up merely because he had placed the papers before AR in discharge of his official duties. It has been claimed that there was no dereliction of duties on his part at all. Learned Counsel has referred to the statement of DW1 to show that no training is given to the RCS staff including dealing assistant for detection of forgery as well as for putting up a detailed note. According to learned Counsel, the then AR (NorthWest) Sh. M. R. Lekhwal had expired during investigation and, as such, A3 has been made a scapegoat and his name was added subsequently with ulterior motive. It has also been stressed that there was mandatory requirement to obtain sanction under Section 197 Cr.P.C. which was not obtained. It has also been claimed that A3 had no role in the revival of the society and, therefore, he cannot be branded as a coconspirator and is liable to be acquitted.
69. In support of their respective contentions, learned Counsel for all the accused persons have also relied upon several judgments which I would refer to at appropriate places.
VI EVALUATION OF EVIDENCE AND FINDINGS :
(A) SANCTION :
70. Sh. S. K. Bhatnagar, learned Counsel for A4 & A5, has CBI Vs. D K Sinha & Ors. Page No. 38 of 75 (Kala Sangam CGHS) raised serious objections with respect to the validity of sanction. It is contended that sanction orders Ex.PW11/A & Ex.PW12/C are nonest in law as the same have not been obtained from the competent Authorities. According to him, even otherwise, the said sanction orders have been accorded without application of mind. As per Special PP for CBI, there is no illegality in grant of sanction and the sanction orders are with proper application of mind.
71. Needless to mention that sanction for prosecution of an accused under the P.C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning Authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.
72. PW11 Ms. Jayshree Raghuraman had accorded sanction for accused Raman Kumar Verma (A5) while PW12 Sh. R. Narayanswami had authenticated the sanction orders qua Niranjan CBI Vs. D K Sinha & Ors. Page No. 39 of 75 (Kala Sangam CGHS) Singh (A3) & P. K. Thirwani (A4).
73. PW11 has deposed that in the year 2001 Raman Kumar Verma (A5) was posted in the O/o RCS and she was competent to grant sanction even though A5 was not posted in her Department at the time when the sanction was accorded. She has further deposed that she had perused the documents before granting sanction.
74. PW12 Sh. R. Narayanswami was posted as Chief Secretary, Govt of NCT of Delhi at the relevant time when he accorded sanction qua A3 & A4 and nothing has been brought on record by the defence to show that he was not competent to accord the sanction.
75. I have gone through the testimony of PW11 and PW12 and I have not been able to find any material which may indicate that the sanction orders were obtained from incompetent Authority or the sanction orders were passed without proper application of mind.
76. Further, it has been contended by Sh. S. K. Bhatnagar that sanction for prosecution should have been taken from that particular official only who was posted as competent Authority at the time of commission of the offence. This argument is devoid of any merit. The only thing required to be seen is whether the sanction has been CBI Vs. D K Sinha & Ors. Page No. 40 of 75 (Kala Sangam CGHS) obtained by the competent Authority or not. The judgments R. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684 and Prakash Singh Badal Vs. State of Punjab, 2006 (4) Crimes 388 (SC) are not applicable to the facts of the present case. It is the settled law that merely because there is any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Though not referred to or relied upon, for taking this view I am supported with the judgment of Apex Court reported as State of Bihar Vs. Rajmangal Ram, Crl. Appeal No. 709710 of 2010 decided on 31.03.2014. From the perusal of evidence on record, there is nothing to show that there was any failure of justice or serious prejudice to the accused because of alleged improper sanction.
77. Further, it has been contended by A2 to A5 that no mandatory sanction has been obtained under Section 197 Cr.P.C. and, therefore, these accused could not have been prosecuted. This contention does not hold water as the prosecution is not required to seek sanction for prosecuting the accused persons twice. When an accused is granted sanction under Section 19 of PC Act, there is no need for again obtaining sanction under Section 197 Cr.P.C. If the contention of learned Counsel is accepted, the purpose of Section 19 CBI Vs. D K Sinha & Ors. Page No. 41 of 75 (Kala Sangam CGHS) of PC Act and the legislative intent would be frustrated. Though not referred to or relied upon, for taking this view I am supported with judgment Neera Yadav Vs. CBI, (2006) 2 All. LJ 442. Similar is the view taken by our Delhi High Court in judgment reported as Dharambir Khattar Vs. CBI, (2009) 159 DLT 636.
78. On careful perusal of entire testimony of PW11 and PW12, I am of the opinion that Sh. S. K. Bhatnagar has not be able to show any substantial or compelling reason which may persuade me to hold that sanction orders Ex.PW11/A & Ex.PW12/C are invalid or nonest law.
79. Sh. Abhishek Prasad, learned Counsel for A2 has contended that sanction for prosecution should have been obtained under Section 197 Cr.P.C. before prosecuting A2 and in support of his contention, he has relied upon judgments State of M. P. Vs. Sheetla Saha, 2009 (VII AD) SC 630, C. P. Thakur Vs. CBI, 2009 (110) DRJ, K. R. Purushothaman Vs. State of Kerala, AIR 1996 SC 90 and Dwarika Prasad Vs. State, 1996 (2) CC Cases 6 (Delhi). I have gone through these judgments. They are not applicable to the facts of the present case.
80. So far as accused Narayan Diwakar (A2) is concerned, CBI Vs. D K Sinha & Ors. Page No. 42 of 75 (Kala Sangam CGHS) no sanction under Section 19 of PC Act was required as he was no longer in service when the chargesheet was filed for the purpose of taking cognizance. The accused have been charged for committing criminal conspiracy. Though not referred to or relied upon, in judgment Hari Har Prasad Vs. State of Bihar, 1972 (3) SCC 89, it has been held that as far as the offence of criminal conspiracy under Section 120B IPC was concerned, it could not said to be of the nature mentioned in Section 197 Cr.P.C. meaning thereby it was not 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. It was, thus, held that want of sanction under Section 197 Cr.P.C. was no bar to prosecution.
(B) CONSENT OF GOVT. BEFORE REGISTRATION OF FIR
81. Next, it has been contended that no consent from the Government was obtained and, as such, no FIR could have been registered by the prosecution. According to learned Counsel, from the chargesheet itself it is clear that Government had not given consent for lodging the FIR and, therefore, prosecution of accused is illegal. This argument is without any merit. The present FIR was registered on the directions issued by High Court of Delhi vide its order dated CBI Vs. D K Sinha & Ors. Page No. 43 of 75 (Kala Sangam CGHS) 02.08.2005 passed in Civil Writ Petition No. 10066 of 2004 and, consequently, a preliminary enquiry was conducted. After the conclusion of the preliminary enquiry, the present FIR was registered on 05.01.2006. The Division Bench of High Court of Delhi had directed the CBI to conduct thorough investigation in 135 CGHS. Further, it was directed that the investigation be conducted by an Officer not below the rank of DIG. Pursuant to these directions, FIR in the present case was registered. Thus, no illegality can be found on the ground that no consent of State or Central Government, as the case may be, was obtained before lodging the FIR in the present case. Though not referred to or relied upon, in judgment - State of West Bengal Vs. The Committee for Protection of Democratic Rights, 2010 (2) SCALE 467, it has been held by the Apex Court that High Court can direct CBI to investigate an offence without the consent of the State Government within whose territorial jurisdiction the offence is alleged to have taken place.
82. In these circumstance and for abovesaid reasons, it cannot be said that registration of the FIR in the present case was bad in law.
(C) ACCUSED NOT NAMED IN FIR
83. Sh. S. K. Bhatnagar, learned Counsel for A4 & A5, has CBI Vs. D K Sinha & Ors. Page No. 44 of 75 (Kala Sangam CGHS) contended that the names of A4 and A5 are not mentioned in the FIR. The preliminary enquiry was ordered on 08.08.2005 and, thereafter, after a gap of 45 months, FIR was registered on 05.01.2006. During preliminary enquiry CBI did not find any prima facie material against A4 and A5 for prosecuting them. The said accused were later on arrested and charge sheeted in the present case in order to save the real culprits. According to learned Counsel, it was Sh. S. P. Bajaj who should have been arrested, interrogated and charge sheeted in the present case and only then the truth would have come out. Learned Counsel has leveled serious allegation against the IO of this case for letting off Sh. S. P. Bajaj for ulterior motives.
84. It is not at all necessary that the names of all the accused persons including A4 & A5 should have been mentioned at the time of registration of the FIR. It is also not required that the entire facts should have been mentioned in the FIR. Registration of FIR is only a starting step and only after the FIR, the investigation is carried out by the prosecuting agency. Thus, FIR is not a concluding step. In my opinion, mere nonmentioning of names of A4 & A5 in the charge sheet is not a ground to exonerate them.
(D) CHEATING (SECTION 420 IPC);
COMMITTING CBI Vs. D K Sinha & Ors. Page No. 45 of 75 (Kala Sangam CGHS) FORGERY FOR THE PURPOSE OF CHEATING (SECTION 468) AND USING AS GENUINE A FORGED DOCUMENT (SECTION 471 IPC)
85. The definition of cheating is provided in Section 415 IPC. For the offence of cheating, one of the ingredients is that the alleged act must have been committed either dishonestly or fraudulently.
86. Section 24 IPC defines 'dishonestly'. It reads as follows :
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'"
87. Section 25 IPC defines 'fraudulently'. It reads as follows :
"A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise."
88. All the accused have vehemently contended that there was no cheating as there was no wrongful loss to anyone and there was no corresponding wrongful gain to anyone and, therefore, the ingredients of Section 415 IPC are not attracted to the present case. According to them, there is nothing on record to suggest that any loss was caused either to the DDA or the RCS. The crucial ingredient being missing, the accused cannot be convicted for the offence of cheating.
89. PW30 Sunil Kapil was the promoter member of Kala CBI Vs. D K Sinha & Ors. Page No. 46 of 75 (Kala Sangam CGHS) Sangam CGHS who became the member in the year 198384. He was holding the post of Treasurer in the said society. He has categorically deposed that the society stopped functioning in the year 198586 because members were not attending the meetings. All the papers of the society were submitted in the O/o RCS and bank account was closed. He has admitted his signatures on the proceedings from first GBM dated 10.11.1983 Ex.PW13/A till 03.06.1985 Ex.PW13/J. He has categorically denied having attended any subsequent meeting vide Ex.PW13/K to Ex.PW13/P25. He has further testified that Sh. B. K. Gupta was also the promoter member of the said society and his (B. K. Gupta) false/forged signatures have also been shown appended in proceedings register vide Ex.PW13/K to Ex.PW13/P33. He has further deposed that Poonam Sangal and D. K. Sinha were never members and never held any official post of the society. Thus, from the testimony of PW13 it is clear that proceedings of the society were forged and fabricated and, thereafter, they were filed in O/o RCS with an object to revive the Kala Sangam CGHS.
90. PW4 S. C. Shiva, PW5 Anuja Jain, PW6 Anil Kumar Chugh, PW7 Raj Dhuru, PW8 Poonam Sangal, PW10 Satinder Kumar Sinha, PW18 D. K. Bhatnagar, PW19 Ravinder Kishore CBI Vs. D K Sinha & Ors. Page No. 47 of 75 (Kala Sangam CGHS) Sharma, PW23 R. Jayshreepuri, PW28 Rajinder Kumar, PW29 Shakamber Dutt Sharma and PW30 Sujit Kumar Roy have deposed that they became members of Kala Sangam CGHS in the year 19992001. They have categorically denied that they became members of Kala Sangam CGHS in the year 1985/1990 as has been shown in the proceedings register. Reference in this regard is invited to the testimony of witnesses in preceding paras under the heading 'Members' as the same are not reproduced here for the sake of brevity and to avoid repetition.
91. PW1 Virender Singh Verma and PW2 Satish Mathur have deposed about the steps taken by the O/o RCS with respect to winding up of Kala Sangam CGHS. From their testimony, it has come on record that the winding up order Ex.PW2/B was passed on 31.08.1990 by PW2 Satish Mathur and, thereafter, liquidator was appointed.
92. PW9 Anil Manocha has deposed that an application for revival of Kala Sangam CGHS Ex.PW3/D was submitted by D. K. Sinha (A1) and the same was addressed to RCS. A1 has not denied his signatures on Ex.PW3/D in his statement recorded under Section 313 Cr.P.C. However, he has shown his ignorance as to when it was submitted.
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(Kala Sangam CGHS)
93. As per PW25 Gurpal Singh and PW30 D. K. Barik (IO), on 22.02.2006 house of A1 i.e. Flat No. 268, Pocket2, Sector23, Rohini, New Delhi was searched and documents were seized in the presence of A1. PW30 has further deposed that on 27.02.2006 A1 handed over documents / articles which were seized vide memo Ex.PW30/C.
94. During investigation, questioned documents alongwith specimen signatures / handwriting of A1 were sent to GEQD, Chandigarh for obtaining opinion. PW20 R. Chandra has proved his opinion as Ex.PW20/F and detailed reasons in support thereof as Ex.PW20/G.
95. A letter dated 20.02.2001 (Ex.PW3/D) duly signed by A1 D. K. Sinha as President / Secretary of Kala Sangam CGHS was received in O/o RCS. It discloses that the said society was registered with RCS at serial no. 1370 (G/H) dated 25.01.1994 under the provisions of DCS Act, 1972. The society did not perform its function due to noninterest of the members of old Managing Committee. The society also failed to perform the following functions :
(i) that the list of members was pending for
verification
CBI Vs. D K Sinha & Ors. Page No. 49 of 75
(Kala Sangam CGHS)
(ii) that the election of the society's Management
Committee was not conducted and
(iii) the accounts were not audited since registration.
96. It is also mentioned in the said letter that the new Managing Committee had shown keen interest in the society. A General Body Meeting of the society was held in November, 2000 and in the said meeting it was decided unanimously that in future General Body Meeting of the society would be held annually as per the Act and Rules of Cooperative Societies. It is further mentioned that fresh elections of the Managing Committee were conducted in the said GBM and new Managing Committee was elected. It was also intimated to O/o RCS that the accounts of the society and all the books of account were ready for audit. In the last para of the said letter dated 20.02.2001 (Ex.PW3/D), it was requested that the society may be allowed to function and the said para is reproduced hereinbelow :
"Keeping the above facts in view, it is stated that all the previous short comings on the basis of which society's list of members duly verified by your office to DDA could not be submitted have been removed and further society is giving an affidavit duly signed by the President and Secretary that in future society shall fulfill all the statutory obligation as per Act & Rules of the cooperative. And we request you to kindly allow the society to function at the earliest and oblige."
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(Kala Sangam CGHS)
97. As per alleged GBM dated 26.11.2000 (Ex.PW4/D), Ms. Poonam Sangal was elected as President while accused D. K. Sinha (A1) was elected as the Secretary besides other office bearers of Kala Sangam CGHS. PW4, PW7, PW8, PW17, PW18 & PW19 have categorically denied having attended the said GBM on 26.11.2000 at B12, G. T. Karnal Road, Industrial Area, Delhi. Thus, the prosecution has exposed the forgery in this regard.
98. Apart from the oral testimony of the abovesaid PWs, there is GEQD report against accused D. K. Sinha (A1). During investigation, CBI took the help of handwriting expert and sent various questioned handwritings and signatures to CFSL, Chandigarh and as per the report of expert, it was found that it was A1 who had been writing the false proceedings regarding meetings of society as well as appending false/fake signatures of Poonam (President) on various documents.
99. Sh. S. K. Bhatnagar has seriously disputed the manner in which the specimen handwritings and signatures of A1 were taken during the investigation. According to him, the specimen handwritings/signatures had been taken without the orders of the Court. Further, A1 was forced to write specimen writing in a specific CBI Vs. D K Sinha & Ors. Page No. 51 of 75 (Kala Sangam CGHS) manner which was absolutely against the principle of taking handwritings / signatures for the purpose of comparison. Such specimen sheets have been proved as Ex.PW20/E (S1 to S46 in file D28). It is pertinent to mention here that there is no specific suggestion that the specimen handwritings / signatures are not of A1 D. K. Sinha. As per PW30 Sh. D. K. Barik, IO, the said specimen handwriting / signatures were given by A1 voluntarily. There is nothing in the testimony of witnesses that A1 was coerced to give specimen handwritings / signatures. Though A1, in his statement under Section 313 Cr.P.C., has alleged that they were taken forcibly but such stand taken by A1 does not inspire confidence.
100. Sh. S. K. Bhatnagar has relied upon judgment of our Delhi High Court reported as Sapan Halder Vs. State, 191 (2012) DLT 225, wherein it has been held that Investigating Officer has no power to take specimen handwritings or signatures without the permission of the Court. The said judgment is of no help to learned Counsel as the same was delivered perincurium. There is one Supreme Court judgment on the same issue which is contrary. Though not referred to or relied upon, in Ravinder Singh @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436, the Apex Court has held that the Investigating CBI Vs. D K Sinha & Ors. Page No. 52 of 75 (Kala Sangam CGHS) Officer has power to take specimen signatures during the investigation even without permission of the Court and that report of such an expert based on such specimen signatures / handwritings could be used as evidence. Even otherwise, though not referred to or relied upon, in judgment - Umesh Kumar Vs. State, 2013 (IX) AD (SC) 581, it has been held by the Apex Court that even if a document is obtained in improper and illegal manner, such a document is admissible in evidence provided the same is relevant and its genuineness is also substantiated. Thus, I am of the opinion that in view of the above referred two Apex Court judgments, there is no merit in the contention of Sh. S. K. Bhatnagar that the specimen handwritings / signatures of A1 were taken in flagrant violation of law.
101. PW20 R. Chandra had examined the questioned and specimen documents. He has deposed that he has received three years specialized training in the field of science of handwriting from the Government of Indian Laboratory. As per PW20, he is in the job of examining large of documents for the last 24 years and has tendered many evidences in various Courts of Law. Thus, PW20 fall within the category of expert under Section 45 of Indian Evidence Act and he was supplied with questioned documents as well as specimen handwritings of A1 and after careful and thorough scientific CBI Vs. D K Sinha & Ors. Page No. 53 of 75 (Kala Sangam CGHS) examination he gave the opinion (Ex.PW20/F) and the reasons (Ex.PW20/G) in support thereof. In his report, he has found the following documents to have been written by D. K. Sinha (A1) S. No. Questioned Document Questioned Document Number File
1. Proceedings Register Q1 to Q39 D12 & D24
2. Signatures of Poonam Q39D D12 & D24
3. Proceedings Register Q40 to Q57 D12 & D24
4. Signatures of Poonam Q57D D12 & D24
5. Proceedings Register Q58 to Q64 D12, D24 & D25
6. Signatures of Poonam Q64C D12 & D25
7. Proceeding Register Q66 & Q67 D12 & D25
8. Proceeding Register Q70 to Q81 D12 & D25
9. Signatures of Poonam Q82, Q84, Q86, Q90, Q94, Q98, D28 Q101, Q102, A105, A107, Q109, Q112, Q114, Q116, Q119, Q121, Q123, Q126, Q128, Q130, Q133, Q135, Q137, Q140, Q142, Q144, Q147, Q151, Q154, Q156, Q158, Q161, Q163, Q165, Q168, Q170, Q173, Q175, Q177, Q180, Q182, Q185, Q187, Q189, Q191, Q193, Q196
10. Signatures of Poonam Q200, Q202, Q204, Q206, Q208, D27 Q210, Q212, Q214, Q216, Q218, Q220, Q222, Q224, Q226, Q227, Q229, Q247, Q248
11. Signatures of Poonam Q249 D27 on Vakalatnama CBI Vs. D K Sinha & Ors. Page No. 54 of 75 (Kala Sangam CGHS)
102. As per PW20 R. Chandra, the questioned handwritings/signatures have been written by one and the same person i.e. D. K. Sinha (author of specimen handwritings from S1 to S7, S20 to S24, S24A, S24B & S31 to S46). The testimony of PW20 has remained unshaken, fully believable and reliable. There is nothing to show that PW20 did not apply proper procedure for comparison purpose. The opinion of expert is a relevant fact as per Section 45 of Indian Evidence Act. The report Ex.PW20/G of PW20 R. Chandra indicates that it was D. K. Sinha (A1) who had been writing the false proceedings in the proceedings registers D12-D24 & D12-D25. PW20 has also proved that D. K. Sinha (A1) was appending the false signatures of 'Poonam' on proceedings registers as well as other documents such as Balance Sheet, Vakalatnama, Affidavit etc. Thus, it has been proved by the prosecution beyond reasonable doubt that it was D. K. Sinha (A1) who was responsible for creating false / forged documents for the purpose of revival of the defunct Kala Sangam CGHS. PW27 Adarsh Kumar Gupta was engaged by A1 to represent the Kala Sangam CGHS before RCS pursuant to which he appeared before RCS on 09.05.2001 & 16.05.2001. It has also been established that it was D. K. Sinha (A1) who had approached the O/o RCS with CBI Vs. D K Sinha & Ors. Page No. 55 of 75 (Kala Sangam CGHS) an application Ex.PW3/D.
103. Though not referred to or relied upon, in Murari Lal Vs. State of Madhya Pradesh, AIR 1980 SC 531, it has been held that there is no rule of law that opinion / report of handwriting expert must never be acted upon unless substantially corroborated. However, in the present case there is sufficient oral evidence of member witnesses that false documents were created for revival of Kala Sangam CGHS.
104. Sh. S. K. Bhatnagar has taken the defence that it was Sh. S. P. Bajaj who was the main culprit but he has been let off by the CBI for ulterior motives. I am not impressed with the contention of learned Counsel. A1 D. K. Sinha is not an illiterate. He was holding a responsible post in the office of L & T Limited in its Personal Department. Ignorance of law is no excuse. A1 must be knowing the consequences of his acts. Assuming for the sake of arguments that Sh. S. P. Bajaj had a role in the revival of Kala Sangam CGHS but that fact will not make A1 less guilty for the offences committed by him.
105. Thus, from the evidence on record it has been established by the prosecution beyond reasonable doubt that there was never any genuine, authorize and lawful attempt for revival of Kala Sangam CGHS or for cancellation of winding up order. Kala Sangam CGHS was never active after the year 198586 though an attempt was made CBI Vs. D K Sinha & Ors. Page No. 56 of 75 (Kala Sangam CGHS) by Sh. B. K. Gupta, genuine / promoter member of the member, to get it revived in April, 1996. The members of the society have categorically stated that they never attended meetings of the society after 06.03.1985 (Ex.PW13/J). The minutes of the meeting w.e.f. 13.03.1985 to 21.06.2003 were found to be forged and fabricated by D. K. Sinha (A1). There was neither any audit nor election for about 10 years and all of a sudden an application was made by A1 purportedly on behalf of Kala Sangam CGHS for revival of the society.
106. Sh. S. K. Bhatnagar has contended that at the most it can be said that it is a mere case of preparation and not an attempt. I am not convinced with the contention of the learned Counsel. A large number of documents were forged and fabricated by A1 and were presented in the O/o RCS. However, the land could not allotted as the illegal activities committed by A1 came to light and he could not succeed in his attempt to cheat. D. K. Sinha (A1) had done everything which he could have done for the revival of the society and, thus, I am of the opinion that it is a case of attempted cheating which the prosecution has proved beyond reasonable doubt.
107. Sh. S. K. Bhatnagar has further contended that there was no cheating as no wrongful loss to anyone and corresponding wrongful CBI Vs. D K Sinha & Ors. Page No. 57 of 75 (Kala Sangam CGHS) gain to anyone was caused. The contention of the learned Counsel is without any merit. The land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of the date of registration of the society. There was a long queue of societies seeking allotment of land from the DDA. A newly created society either would not have got any land or would have to wait for a long time for getting land and, therefore, false & forged documents were created with a view to revive a defunct society which was registered in the year 1984. Thus, the real aggrieved person would be the next eligible society which would have been allotted the land, had A1 not tried to revive a defunct society. Therefore, there was an attempt to cause wrongful loss to such eligible society and there was an attempt to have wrongful gain by A1 purportedly representing a society which was dormant for almost 10 years and was not eligible for the allotment of land by the DDA.
108. To summarize, from the abovereferred discussion, the following facts stand proved by the prosecution :
i) Kala Sangam CGHS was registered in January, 1984 vide registration number 1370 (G/H) but it stopped working in the year 198586.
CBI Vs. D K Sinha & Ors. Page No. 58 of 75 (Kala Sangam CGHS)
ii) Winding up order dated 31.08.1990 (Ex.PW2/B) was issued by PW2 Satish Mathur and a liquidator was appointed.
iii) The genuine office bearers of Kala Sangam CGHS approached the O/o RCS for revival of society in the year 1996.
iv) There is testimony of member witnesses which has exposed the forgery.
v) In February, 2001, D. K. Sinha (A1) submitted an application bearing his signatures for revival of Kala Sangam CGHS before RCS Narayan Diwakar (A2).
vi) False and forged documents for the purpose of revival of Kala Sangam CGHS were created by D. K. Sinha (A1).
vii) D. K. Sinha (A1) engaged PW27 Adarsh Kumar Gupta, Advocate to represent Kala Sangam CGHS before RCS. PW27 appeared before RCS on 09.05.2001 and 16.05.2001.
viii) The file was processed in the O/o RCS by the RCS officials.
ix) On 25.06.2001, conditional revival order was passed CBI Vs. D K Sinha & Ors. Page No. 59 of 75 (Kala Sangam CGHS) by A2 on the basis of record produced by A1.
x) The documents relating to Kala Sangam CGHS were recovered from the house of A1 on 22.02.2006. Later on, additional documents were handed over by A1 on 27.02.2006 to IO.
109. In these circumstances and for the aforesaid reasons, I am of the considered opinion that prosecution has proved its case against D. K. Sinha (A1) beyond reasonable doubt. Hence, D. K. Sinha is held guilty and convicted for committing offences under Sections 420 read with 511, 468 & 471 IPC.
CRIMINAL MISCONDUCT BY A PUBLIC SERVANT [SEC. 13(1)(d) R/W S. 13 (2) OF PC ACT] AND CONSPIRACY (SECTION 120B IPC)
110. Section 7 & Section 13 (1) (d) of P.C. Act read as under:
Section 7 Public servant taking gratification other than legal remuneration in respect of any official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or CBI Vs. D K Sinha & Ors. Page No. 60 of 75 (Kala Sangam CGHS) disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,
(a) ...
(b) ...
(c) ...
(d) if he
i.by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or ii.by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
111. A perusal of the aforesaid Section shows that the essential ingredients of a criminal misconduct are :
i) That the accused should be a public servant;
ii) That he should use some corrupt or illegal means or otherwise abuse his position as a public servant and
iii) That he should either for himself or for some other CBI Vs. D K Sinha & Ors. Page No. 61 of 75 (Kala Sangam CGHS) person obtains any valuable thing or pecuniary advantage.
112. Sh. Abhishek Prasad, learned Counsel for A2, has contended that A2 had no dishonest intention. It is a case of mere breach of procedure. PW30 has himself admitted that no pecuniary advantage was received by A2. According to him, A2 cannot be convicted under Section 13(1)(d) read with 13(2) PC Act. In support of his contentions, he has relied upon judgments - Union of India Vs. Majour J. S. Khanna, 1972 Cri. LJ 849; K. R. Purushothaman Vs. State of Karela, (2005) 12 SCC 631; A. Subair Vs. State of Kerala, 2009 Cri. LJ 3450; Major S. K. Kale Vs. State of Maharashtra, AIR 1977 SC 822; S. P. Bhatnagar Vs. State of Maharashtra, AIR 1979 SC 826; Abdulla Mohammed Pagarkar Vs. State, AIR 1980 SC 499; Subhash Parbat Sonvana Vs. State of Gujrat, 2002 Cri. LJ. 2787, R. Balakrishna Pillai Vs. State of Kerela, AIR 2004 SC 1012 and A. K. Ganju Vs. CBI, Cri. MC No. 2384 of 2011 decided on 22.11.2013 by Delhi High Court.
113. Sh. S. K. Bhatnagar, learned Counsel for A4 and A5 has contended that Auditor A4 P. K. Thirwani had merely certified the record and, as such, he cannot be convicted in the present case. In support of his contention, he has relied upon judgments - CBI Vs. D K Sinha & Ors. Page No. 62 of 75
(Kala Sangam CGHS) S.Swaminathan Vs. State of Delhi, 2008 Cri. LJ 1957 and Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560.
114. I have gone through the judgments cited before me. In Major J. S. Khanna (supra) it was observed by the Apex Court that regarding the allegation that the firm M/s Auto Stores was non existent firm, there was no conclusive evidence to show that the accused knew that there did not exist any such firm. It was further held that though the accused might not have been careful or was grossly negligent, yet his action was not actuated with criminal intent. As regards the irregularities in the procedure committed by the accused, it was held that that such a breach of procedure did not mean fraud or any other criminality.
115. In S. P. Bhatnagar (Supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused Contractor in regard to a contract of rock cutting by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. In those circumstance, the Apex Court held that accused cannot be said to have acted with dishonest or corrupt motive or abused his position in having the contract in question entrusted to accused no.4.
116. In Abdul Mohammed Pagarkar (supra), the Apex Court CBI Vs. D K Sinha & Ors. Page No. 63 of 75 (Kala Sangam CGHS) found that the work was got executed in flagrant disregard to the relevant rules. However, it was held that such disregard did not amount to any of the offences alleged against the accused.
117. In Major S. K. Kale (supra) also, the Apex Court found that in the facts of the case, the accused cannot be said to have used any corrupt or illegal means.
118. In A. K. Ganju (supra), our Delhi High Court speaking through Hon'ble Mr. Justice Suresh Kait quashed the chargesheet on the ground that the CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials with whom the conspiracy was hatched.
119. In Anil Kumar Bose (supra), it was held by the Apex Court that the evidence adduced must establish beyond reasonable doubt mens rea on the part of the accused. It was further held that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only.
120. In S. Swaminathan (supra), it has been held by our Delhi High Court that merely certifying a statement of fact based on the CBI Vs. D K Sinha & Ors. Page No. 64 of 75 (Kala Sangam CGHS) record produced by the company, the chartered accountant cannot be held liable for conspiracy.
121. Sh. B. K. Gupta was one of the promoter members of Kala Sangam CGHS and he was also cited as a witness by the prosecution. However, he could not be examined as he expired during the trial of the case. PW22 had recorded his statement which has been exhibited as Ex.PW22/B wherein it is stated that on 15.04.1996 he (B. K. Gupta) alongwith other members of the society visited O/o RCS, Delhi with a request that the society might be allowed to be continued. Thus, it is the prosecution case itself that the genuine members / office bearers of the Kala Sangam CGHS were in touch with the O/o RCS in April, 1996 for the revival of the society. The affidavit of Sh. B. K. Gupta has been placed on record by the prosecution itself at page no. 93/C and 92/C in file D21. Even though the said affidavit has not been proved in accordance with law but it is the settled law that such document can be read by the Court against the party who has filed the same. As per noting dated 15.04.1996 on the note sheet 10/N in file D17, Sh. B. K. Gupta, ExPresident, Sh. N. D. Theraja, ExVice President and Sh. R. K. Sharma, Member of the society appeared in the O/o RCS and requested for a date for producing the record of the society. The matter, on the said date, was CBI Vs. D K Sinha & Ors. Page No. 65 of 75 (Kala Sangam CGHS) adjourned to 29.04.1996. The record is silent as to what happened on 29.04.1996. It appears from the record that the society was not revived pursuant to such a request made by Sh. B. K. Gupta in April, 1996.
122. In order to ascertain whether the public servants A2 to A5 actually connived with A1, notings in the files are very important and vital. The Court can always draw logical and natural inferences from such notings. Though not referred to or relied upon, in Runu Ghosh Vs. CBI, Crl. A. No 482 of 2002, decided on 21.12.2011, it has been held by our High Court of Delhi that offences of corruption are done under the cloak of official duties and in a shrouded manner and, therefore, the only evidence available is notesheets written or approved by public servants. It has further been held that Court would be fully justified to draw appropriate inferences from such notesheets.
123. Nothings are in file D17 and all the concerned public servants A2 to A5 have not disputed these notings and their respective signatures appearing thereon. It is appropriate to refer to these notings in brief for drawing an inference if public servants A2 to A5 were indulging in corruption.
124. Before proceeding further, it is pertinent to mention here that in the present case the representatives of Kala Sangam CGHS had directly approached the RCS by moving an application Ex.PW3/D CBI Vs. D K Sinha & Ors. Page No. 66 of 75 (Kala Sangam CGHS) dated 20.02.2001 with a request for revival of the society.
125. The first such noting is of 08.05.2001 at page no. 11/N (Ex.PW9A) - Dy. No.1424/AR dated 08.05.2001 (P210/C). This noting was prepared by A3 as per directions of Reader to RCS. Society was directed to produce all the original records for examination / verification on 09.05.2001 at 3:00 PM. ARCS (NW) was also directed to attend the Court on the said date and time. The main file of the society was also summoned by RCS branch for quasi judicial proceedings before RCS.
126. On 09.05.2001, vide noting at P12/N (Ex.PW27/DA), PW27 Adarsh Kumar Gupta, Advocate, with A1 appeared in the Court of RCS but the matter was simply adjourned for 16.05.2001 at 3:00 PM.
127. On 16.05.2001, vide noting at Page 13/N (Ex.PW9/B), PW27 filed his Vakalatnama and photocopies of the documents of the society. He was directed to produce all the records in original for verification before AR (NW). AR (NW) was directed to place his report by 25.05.2001 and the matter was adjourned to 30.05.2001.
128. On 29.05.2001, vide notings at Page 13/N to 15/N (Ex.PW9/C), society produced the relevant records before AR. The CBI Vs. D K Sinha & Ors. Page No. 67 of 75 (Kala Sangam CGHS) photocopies of the records after comparing with the originals were kept on record and a draft note was prepared by A3 for the perusal of AR (NW). After the approval of AR (NW), the file was submitted to RCS by AR (NW).
129. On 30.05.2001, vide noting at Page 15/N (Ex.PW9/C) at point C, A2 directed AR (NW) to place on record the report of liquidator appointed by the O/o RCS. The matter was adjourned to 14.06.2001.
130. On 12.06.2001, vide noting at Page 16/N, AR (NW) Sh. M. R. Lekhwal reported that no concrete liquidation proceedings had taken place in the matter. It was further observed by AR (NW) that revival of the society deserved due consideration.
131. On 14.06.2001, vide noting at Page 19/N (Ex.PW9/D), A2, after hearing the counsel appearing on behalf of the society and AR (NW), reserved the case for orders. In the meantime, the society was directed to produce the original records for verification of list of members before AR (NW).
132. As per noting at Page 17/N, President of society vide letter dated 16.07.2001 (P424/C) submitted the relevant records/documents relating to approval of final list of members. CBI Vs. D K Sinha & Ors. Page No. 68 of 75
(Kala Sangam CGHS)
133. On 23.07.2001, vide noting at pages 18/N to 25/N, A3 prepared a draft note for the perusal of AR (NW). The AR (NW) vide note dated 18.08.2001 submitted the main file alongwith relevant documents before DR (NW).
134. The DR (NW) vide noting dated 20.08.2001 recommended the proposal before the JRCS (NW). The JRCS (NW), in turn, recommended the proposal for consideration and approval to send the final list of members to DDA vide his noting dated 21.08.2001.
135. On 24.10.2001, A3 put up a note before AR (NW) to forward the list of members to AR (Policy) for onward transmission to DDA.
136. It is not at all necessary to burden this judgment by quoting various provisions of DCS Act and Rules as under the law RCS has ample powers to order the cancellation of winding up order if the liquidation proceedings are not completed within the stipulated period. Under Section 13(1)(d) of the PC Act, this Court is required to assess if the public servants (A2 to A5) had abused their position as public servants thereby obtaining for themselves or for any other person any valuable thing or pecuniary advantage. What is to be CBI Vs. D K Sinha & Ors. Page No. 69 of 75 (Kala Sangam CGHS) required to be seen in the present case is whether there was an attempt by public servants (A2 to A5) to pass on pecuniary advantage to A1 purportedly representing Kala Sangam CGHS. In other words, this Court is required to assess if all the concerned officials of RCS (A2 to A5) had abused and misused their public offices in such an endeavor. In my opinion, the complicity of public servant is not evident in the present case and for reaching the said conclusion, following facts are relevant :
i) As per PW1, no final liquidation order in respect of the society is on record. The liquidation proceedings were never completed in the case of Kala Sangam CGHS.
ii) The final winding up order by PW2 is not available on record.
iii) Audit and Elections of society are not prerequisites for revival of any society under DCS Act and Rules as has been stated by PW3.
iv) There was no change of address of Kala Sangam CGHS.
v) In the present case, A1 in his own name and under his genuine signatures, claiming himself to be Secretary of Kala Sangam CGHS, attempted to revive the defunct Kala Sangam CGHS. In other words, no fake person under an CBI Vs. D K Sinha & Ors. Page No. 70 of 75 (Kala Sangam CGHS) assumed / different name appeared in the O/o RCS for the purpose of revival of society.
vi) In April, 1996 the original genuine members / office bearers of Kala Sangam CGHS sought to revive the society by approaching the O/o RCS vide noting dated 15.04.1996 on the note sheet 10/N. A1 moved the application Ex.PW3/D in February, 2001 and, as such, it is not a case where society was not communicating with O/o RCS for 1520 years which could have raised suspicion in the minds of A2 to A5.
vii) Almost all the members of the society were genuine/existing. Almost all the member witnesses examined by the prosecution have stated that they became member of the society as they were working in L & T Ltd. There is nothing on record to suggest that any premium was charged for enrolling them members in the society by A1 or anyone else.
viii) There is nothing on record to show that A2 to A5 had obtained any pecuniary advantage for their official acts or they were in constant touch with A1 for the revival of the CBI Vs. D K Sinha & Ors. Page No. 71 of 75 (Kala Sangam CGHS) society. Thus, there is no evidence of any association of A2 to A5 with A1.
ix) PW27 appeared on behalf of the society and filed his Vakalatnama but he himself was not sure whether his Vakalatnama bore the signature of Ms. Poonam, President of Kala Sangam CGHS. In these circumstances, it cannot be assumed that A2 to A5 had knowledge about false and fabricated documents produced before them.
x) There is no evidence on record that audit was conducted by A4 on the request of A3 though the prosecution has claimed in the chargesheet that A4 conducted the audit on the request of A3.
xi) As per DW1, the role of dealing assistant is that he only puts up a detailed note in the form of draft before the AR as per his directions and after his approval, the same is got typed by dealing assistant and, thereafter, the same is signed by AR as well as by the dealing assistant. No training is given to RCS staff including dealing assistant for detection of forgery as well as for writing a detailed note.
xii) DW3 J. S. Sharma had appointed A4 for conducting the CBI Vs. D K Sinha & Ors. Page No. 72 of 75 (Kala Sangam CGHS) audit of Kala Sangam CGHS for the period from the year 198384 to 2001 vide order dated 26.06.2001 (Ex.PW20/D).
A4 had pointed out eight objections / suggestions in his audit report to be complied with the society of Zonal AR.
xiii) A4 & A5 conducted the proceedings as per directions of the RCS after the conditional revival order was passed by the RCS.
xiv) No false affidavits of the members of the society have been proved by the prosecution except the affidavits of Ms. Poonam, President of the society, which were forged by A1.
xv) As per notings on the notesheets as well as from the testimony of PW27, society was represented through Counsel before the RCS.
xvi) The proceedings in the proceedings register (D12-D24) have both, the genuine as well as the fake proceedings. The old register was continued for subsequent fake proceedings. No new register was used by A1 which could have raised doubt about its genuineness.
xvii) The case of revival pertained to NorthWest Zone. There was no change of Zone by the RCS for processing the CBI Vs. D K Sinha & Ors. Page No. 73 of 75 (Kala Sangam CGHS) file.
xviii) There is nothing on record to show meeting of minds of accused for doing an illegal act or an act by illegal means which is an essential ingredient of conspiracy. It is the settled law that mere knowledge would not be per se sufficient to make anyone coconspirator.
137. It is the settled law that suspicion, howsoever strong, can not take place of proof. Mere error of judgment or wrong decision or even negligence does not amount to culpability. Thus, the prosecution has not been able to prove its case against A2 to A5 beyond reasonable doubt. The charge of conspiracy has also not been proved against the accused.
VIII CONCLUSION :
138. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of considered opinion that prosecution has succeeded to prove its case to the hilt against A1. As such, A1 deserves to be convicted in this case and he is, accordingly, convicted for having committed offences punishable under Sections 420/511, 468 & 471 IPC for which he had been charged with in the present trial.
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139. A2 to A5 are hereby acquitted of all the charges levelled against them in the present case. Their personal bonds are cancelled and respective sureties are discharged. In terms of Section 437(A) Cr.P.C., A2 to A5 are directed to furnish their personal bonds in the sum of Rs.25,000/ with one surety in the like amount on or before 22.09.2014 for a period of six months for their appearances before the High Court of Delhi in the event the CBI wishes to file an appeal challenging the present judgment.
Announced in the open Court (PRAVEEN KUMAR)
on dated 08.09.2014. Special Judge, PC Act
CBI3, Rohini Courts, Delhi.
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