Delhi District Court
Cbi vs . U.S. Bhatnagar Etc. Judgment Dt. ... on 16 September, 2015
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
SPECIAL JUDGE CBI02 (PREVENTION OF CORRUPTION ACT), DISTT.
NORTH WEST, ROHINI COURTS, DELHI.
CC No. 37/08
Unique Case I.D. No. 02404R0650632007
RC No. 16(A)/2005/CBI/SCUV/SCRII
(Shreyas CGHS)
CBI Vs. 1. Uday Shankar Bhatnagar
S/o Shri S.S. Bhatnagar
R/o Flat No. 14, Khasra No. 844
Maurya Enclave, Sant Nagar
Burari, Delhi110084
2. Daya Nand Sharma
S/o Late Shri Ram Diwaya Sharma
R/o 1378, Rani Bagh,
Delhi110034
3. Narayan Diwakar
S/o Late Shri C.Lal
R/o G30, Masjid More,
G.K.II, New Delhi.
4. Gokul Chand Aggarwal
S/o Late Shri Jagdish Parsad Aggarwal
R/o A603, Ashoka Apartments,
Sector9, Rohini
Delhi110085.
5. Sanjeev Bharti
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S/o Shri Mohinder Bharti
R/o C4C/14/113, Janakpuri
New Delhi110058
6. Niranjan Singh
S/o Late Shri Babu Lal
R/o 309, Karkardooma Delhi Govt. Flats
Delhi110092
7. Prahlad Kumar Tirwani
S/o Late Shri Moti Ram Tiwari
R/o 348E, PocketII
Mayur Vihar, PhaseI,
Delhi110091.
Date of Institution : 23.02.2007
Date of conclusion
of arguments : 25.08.2015
Date of Judgment : 16.09.2015
Judgment
In brief, the case of the prosecution is that vide order dt. 02.08.2005,
Hon'ble High Court of Delhi in W.P. (C) No. 10066/2004 has directed the CBI to
conduct the investigation with respect to illegal and unlawful revival of defunct 135
Cooperative Group Housing Societies (CGHS). As per the the out come of the
preliminary enquiry, instant case was registered by the CBI against Shreyas
CGHS (hereinafter be referred as ' said society').
The 'said society' with its address at room No. 183E South Block,
New Delhi was registered under registration No. 23 (H) as Cooperative Group
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
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Housing Society on 13.4.1971 by the Registrar Cooperative Societies, Delhi.
There were 56 members as on 13.07.1975 and 8 members were on the waiting
list. Most of the members of the society were the officers of IA&AS cadre. The
society failed to fulfill the statutory obligations as per the Delhi Cooperative
Societies Act 1972 (hereinafter be referred as 'DCS Act') and so it was liquidated
vide order dt. 12.4.1978 by Shri Ashok Bakshi, the then Dy. Registrar, the office of
the RCS Delhi.
Accused Gokul Chand Aggarwal (A4) impersonating as Sunil Kumar
submitted a request dt. 28.03.2003 in the office of RCS, Delhi in the capacity of
President of the said society with address as Pocket E, Block16, House No. 182,
Sector08, Rohini, Delhi for cancellation of winding up order and revival of the 'said
society'. Another reminder dt. 27.06.2003 which is replica of letter 28.03.2003,
was also submitted to the RCS office. The date of the letter was changed from
28.03.2003 to 27.06.2003 by overwriting. Both these letters were processed in the
RCS office. The accused Niranjan Singh (A6) the then Head Clerk put up a note
on 10.07.2003 to the Assistant Registrar for the cancellation of winding up order
and revival of the said society and for the approval of the final list of members for
allotment of land. He also recommended appointment of accused U.S. Bhatnagar
(A1) UDCGradeIII as Inspecting Officer for verification of the records of the
society. This note dt. 10.07.2003 was endorsed by the accused Shri D.N. Sharma
(A2), Assistant Registrar and approved by Shri N. Diwakar (A3), Registrar.
A1 was appointed as inspecting officer vide order dt. 23.07.2003
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issued by A2 U/s 54 of DCS Act. A1 submitted false inspection report on
28.07.2003 bearing signatures of non existent person Sunil Kumar as President of
the society without visiting the office of the society as the society had never
functioned at the address H.No. 16/182, PocketE, Sector8, Rohini.
Then A6 submitted a note recommending for the revival of the
society U/s 63 (3) of the DCS Act. A2 endorsed the note to the Reader to RCS.
The reader gave the note dt 01.08.2003 for issuance of notice to the
President/Secretary of the said society which was approved by A3. A3 ordered
for sending the file to the concerned zone for verification and for ascertaining
audit/election position.
A6 submitted a note dt. 08.09.2003 for having verified the records
i.e. records showing the name of the members who had resigned from the
society, enrollment of members prior to 30.06.1986, names and addresses of the
present 125 members of the society, holding of election the managing committee
in the General Body Meeting of the society held on 09.02.2003 and names of the
present office bearers of the society and it was endorsed by A2.
A3, without ascertaining the genuineness of the documents of the
society, cancelled the winding up order and revived ''he said society' on
16.09.2003. After its revival, A2 wrote a letter on the very day i.e. 16.09.2003 to
the Assistant Registrar (Policy) forwarding a freeze list of 125 members of the
society and requested to forward the list to DDA for allotment of land.
Accordingly, the Assistant Registrar (Policy) forwarded the matter to DDA on
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07.10.2003 for allotment of land to the said society.
As per the revival order, accused S. Madan @ Sanjeev Bharti (A5)
was appointed as Election Officer to conduct the election of the Managing
Committee of the society. A5 has submitted the false report on 03.11.2003
showing the holding of election of the managing committee of the society.
Shri Kamal Singh, LDC was appointed as auditor for the audit of
records of the said society as per the revival order. Shri Kamal Singh requested
Shri P.K. Thirwani (A7) for the audit of the same. A7 prepared a false audit
report and got submitted through Shri Kamal Singh.
A4 has impersonated as Sunil Kumar (President), Shri Naresh
Kumar (Vice President) and Shri Karan Singh (Secretary) of the said society and
forged their signatures on various documents for the revival of the society.
A4 in conspiracy with A1, A2, A3, A5, A6 and A7 forged the
documents of the society and submitted the bogus list of the members of the 'said
society' to the RCS office for the revival of the society, so that the land was
allotted by the DDA to such society and in pursuance of that conspiracy these
public servants abused their official position to achieve the object of getting the
land allotted to the 'said society' and caused the revival of the defunct society.
After completing the investigation, the charge sheet has been filed
against the accused persons for the offences punishable U/s 120B, 419, 420,
468, 471 IPC Section 13 (2) r/w 13 (1)(d) P.C. Act.
2. A1 to A7 was charged U/s 120B IPC and U/s 120B r/w Section
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420 r/w 511,419,468,471 IPC and Section 15 read with section 13(2) r/w 13 (1) (d)
of P.C Act.
A1, A2, A3, A5, A6 and A7 was also charged with the offenes
U/s 13 (1) (d) U/s 13 (2) r/w section 15 of Prevention of Corruption Act.
A4 was also charged for the offences punishable U/s 420 r/w 511
IPC and 419, 468 and 471 IPC.
All the accused persons had pleaded not guilty to the charges and
claimed trial.
3. In order to prove its case, the prosecution (CBI) has examined 44
witnesses. Statement of the accused persons have been recorded U/s 313
Cr.P.C. in which they have denied the case of the prosecution. Three witnesses
have been examined in defence.
Prosecution witnesses can be classified as under:
Original Members of the Society:
PW7 Shri Birendra Prasad Mathur, PW8 Shri Rajeshwar Prasad, PW9 Shri
Dharamvir, PW11 Shri Shiv Raj Singh, PW12 Shri Vivek Verma (Son of the
member Shri V.S. Verma who had expired), PW13 Shri C.K. Joseph and PW40
Shri S.T. Veeraraghvan.
PUBLIC WITNESSES
PW1 Shri Narender Sharma, PW2 Shri Surender Singh Solanki, PW3 Shri Brijesh
Kumar, PW4 Shri Sukhbir Garg, PW5 Shri Naveen kumar Jain, PW7A Shri Kishan
Chand Garg, PW10 Shri B.R. Lal, PW16 Smt. Savita Kaushal, PW19 Shri Rajesh
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Kumar Oberio, PW20 Shri Mukesh Gupta, PW25 Shri Devender Kumar, PW27
Shri C.B. Singh, PW28 Shri Rakesh Kumar, PW30 Shri Manish Kumar, PW31 Shri
Karan Singh, PW32 Shri Satbir Gupta, PW34 Shri Naresh Kumar and PW43 Shri
Gaurav Gupta.
WITNESSES FROM RCS OFFICE:
PW17 Smt. Aruna Chaudhary, Assistant Registrar (Audit), PW18 Shri V.K. Bansal,
Assistant Registrar, PW21 Shri Gajender Pal Singh, Sr. Auditor, PW22 Shri Sushil
Kumar Sharma, UDC PW23 Shri Ashok Bakshi, Dy. Registrar, PW24 Shri Kamal
Singh, Auditor, PW33 Shri Narender Singh Khatri, LDC, PW38 Shri Rakesh
Bhatnagar and PW41 Shri Yogi Raj, Assistant Registrar.
WITNESSES RELATED TO INVESTIGATION/GEQD
PW36 Shri R.K. Aggarwal, Investigating Officer (IO), PW42 Shri A. Balsami,
Handwriting Expert
SANCTIONING AUTHORITY
PW 35 Shri Vijay Kumar, PW37 Shri R. Narayanaswami,
OTHER WITNESSES:
PW26 Shri K.K. Kapoor, Special Assistant, Statement Bank of India, PW29 Shri
Paras Nath, Assistant Director, DDA, PW39 Shri R.D. Choudhary and PW44 Shri
Virender Singh Verma from DDA.
PW7 Birendra Prasad Mathur has deposed that in the year 1972, he
was working in the Indian Audit & Accounts Service. He became member of
Shreyas CGHS in the year 1972. This society was formed by officers of Indian
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Audit & Accounts Service. He has never resigned from the membership of the
society which had become defunct. The application dt. 6.3.1974 which is Ex.
PW7/B (page no. 327/C in file D24) showing his resignation from the said society
bears his forged signatures.
PW8 Shri Rajeshwar Prasad has deposed that he became member
of Shreyas CGHS on 22.10.1970. As far as he remember, when he left the society
in the year 1974, the society was having its membership around 5060. The
application dt. 19.03.1974 which is Ex. PW8/H showing his withdrawal of the
membership from the society has forged signatures.
PW9 Shri Dharamvir, PW11 Shri Shiv Raj Singh, PW12 Shri Vivek
Verma, PW40 Shri S.T. Veeraraghvan were the original members of the said
society and they have also deposed about the forgery of their signatures on the
documents in the file of the said society.
PW1 Shri Narender Sharma, PW10 Shri B.R. Lal has deposed that
they never became the members of the said society and their signatures
appearing in the records of the said society are forged.
PW34 Shri Naresh Kumar Solanki has deposed that he had never
became member of Shreyas CGHS society. He had never signed any document
in the society in any capacity. He never remained Vice President of the said
society. The application for membership Ex. PW34/A (page 335/C file D24), the
affidavit Ex. PW32/119 (91/C in file D24) are forged documents. He has never
been nominated as Vice President of the said society and nomination form in this
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respect which is Ex.PW34/C is forged one. He had never attended any meeting of
the said society. He has proved his specimen signatures S299 to S304 as
Ex.PW34/D (colly). The application of his resignation which is Ex. PW34/E does
not bear his signatures. He has not signed the list of members of the society.
PW5 Shri Naveen Kumar Jain, PW16 Smt. Savita Kaushal, PW19
Shri Rajesh Kumar Oberio, PW25 Shri Devender Kumar and PW27 Shri C.B.
Singh have deposed that no person by the name of Sunil Kumar, Smt. Omwati,
Raj Guru, Ravinder Kaur and Ms. Savita Sharma respectively has ever resided at
their residence.
PW31 Shri Karan Singh has deposed that he was never a member
of Shreyas CGHS. He had never attended the RCS office. He had never signed
any document in the capacity of Secretary at any point of time. The documents
Ex. PW31/A (page 1 C to 496C file D24) does not bears his signatures. He has
also deposed that documents i.e. election record, General body meeting of the
society, receipts and other documents of the society, affidavits and other
documents placed in the file of the said society showing his signatures are not his
signatures. He has never visit RCS office to represent the said society. He do
now know about the revival of the said society. He has proved his specimen
handwriting from S292 to 298 as Ex. PW31/C and specimen signatures S309 to
S313 as Ex. PW31/H4.
PW4 Shri Sukhbir Garg, PW6 Shri Vinod Kumar Aggarwal, PW7A
Shri Kishan Chand Garg are the owners of the first floor, Ground Floor and
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Second floor respectively of H.No. 181183, PocketE16 Sector8, Rohini, Delhi
and has deposed that they have never allowed any cooperative society by the
name of Shreyas CGHS to function from this address or to conduct any election.
PW28 Shri Rakesh Kumar has deposed that he has been residing in
H.No. E16/82, Sector8, Rohini Delhi since 1990. Shreyas CGHS never
functioned on this address. They have neither given any floor of their house on
rent to any person at any point of time.
PW19 Shri Rajesh Kumar Oberio has deposed that he has been
residing at F18/14A, Krishna Nagar since their childhood and no office of the
Shreyas CGHS society had ever existed on this address.
PW30 Shri Manish Kumar has deposed that he was practicing
lawyer and he has never handled any matter pertaining to Shreyas CGHS and
had never appeared before the RCS on behalf of the Shreyas CGHS at any point
of time.
PW32 Shri Satbir Gupta has deposed that he is a stamp vendor.
He had sold the stamp papers to pages 89/C to 212/C (folder1) in file D24 to
Gokul Chand Aggarwal. The name of the persons in whose name the stamp
papers were sold are written at the back side of each of the stamp papers
respectively. The list of persons was provided by Gokul Chand Aggarwal. He has
identified the Gokul Chand Aggarwal.
PW43 Shri Gaurav Gupta has deposed that his father Shri Arun
Kumar Gupta who was working as an advocate and also a Notary public had
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expired on 15.1.2002. The affidavits 212/C to 89/C Ex. PW32/1 to Ex. PW32/121
and Ex. PW9/B and Ex. PW31/A2 does not bear the signatures of his father as
the said affidavits bears the date 25.8.2003. The father has already expired on
15.1.2002. He has proved the death certificate as Ex. PW36/D2.
PW29 Shri Paras Nath, Assistant Director from the DDA and he has
deposed about the procedure regarding the allotment of land to the CGHS. He
has proved the letter, received from Shri Karan Singh President/Secretary of
Shreyas CGHS in DDA as Ex. PW29/B to Ex.mPW29/E (file D21).
PW17 Smt. Aruna Chaudhary who had remained posted as
Assistant Registrar (Audit) has deposed about the procedure to be adopted by the
auditor for the purpose of conducting audit of the society.
PW21 Shri Gajender Pal Singh has proved the audit report of
Shreyas CGHS for the period 1.7.1971 to 30.6.1972 as Ex. PW13/A2 (pages 36
C to 48/C in file D23). He has proved the letter showing his appointment as
liquidator in respect of Shreyas CGHS as Ex. PW21/A to Ex. PW21/C pages
(55/C and 57/C in file D23). In the noting 5/N dt. 6.9.91 Ex. PW21/D (Pages 1 &
2 in file D23), it is written that he took charge of Shreyas CGHS in July 1991.
The noting portion is available upto 6.9.91. After this noting, the noting portion
starts from 11.7.2003.
PW22 Shri Sushil Kumar Sharma has deposed that he remained
posted in the office of RCS as LDC and UDC. The audit report for the period
197071 to 20022003 pertaining to Shreyas CGHS which is Ex. PW22/A (D8)
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bears the signatures of Kamal Singh and P.K. Thirwani.
PW23 Shri Ashok Bakshi has deposed that he had remained posted
in the office of RCS from September 1977 to October 1979 as Dy. Registrar. He
had not dealt with the file of Shreyas CGHS. The photocopy of winding up order
dt. 12.4.1978 Ex. PW23/A (Page 54C in file D23) bears his fake signatures.
PW24 Shri Kamal Singh has deposed that he remained posted in
the office of RCS w.e.f 1992 to 2003 as LDC. He had worked with various
auditors including Sh. P.K. Thirwani. He was appointed as an Auditor of Shreyas
CGHS. He has proved the audit report of the society for the period 197071 to
20022003 along with the appointment letter as Ex. PW22/A (file D8). The audit
was done by Shri P.K. Thirwani and the relevant column has also been filled by
P.K. Thirwani. Shri P.K. Thirwani has conducted the audit of the society whereas
he has been appointed as Auditor in this case by Shri J.S. Sharma, AR(Audit). He
had asked Sh. P.K. Thirwani to do the audit of the society as he was
overburdened. He has identified his signature of Shri P.K. Thirwani on the audit
report.
PW33 Shri Narender Singh Khatri has deposed that he was posted
as LDC in the office of RCS Delhi from the year 2000 to 2005. The letter dt.
28.03.2003 which Ex. PW33/A and another letter which is Ex. PW33/B were
addressed to Registrar (North West). Both these letters were diarised and was
marked to Registrar Shri Narayan Diwakar. It was marked to JR ( North West).
Both these letters were put up in the file by Sh. Niranjan Singh Dealing Assistant
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and his initials are appearing on the relevant noting on the page which is Ex.
PW33/C (page 6/N of file D23). The said note regarding the appointment of
inspection officer etc. was marked to the then AR (N/W) and further marked to
Registrar Sh. N. Diwakar. The said noting was marked to JR, and then marked to
AR. He has proved the note sheet regarding the appointment of U. S. Bhatnagar
as Inspecting Officer as Ex. PW33/D (Page 7/N and 8/N) and note sheet
regarding proposal for the revival of Shreyas CGHS society as Ex. PW33/D1. He
has proved the note sheet of the file D23 from 10/N to 18/N. Regarding
resignation, enrollment etc. of Shreyas CGHS as Ex. PW33/D2 and he has also
proved the letter dt. 01.08.2003 issued to the Shreyas CGHS to appear in the
court of RCS on 19.08.2003 as Ex. PW33/D4 (Page 86/C file D23). In the noting
at page 7/N and 8/N, a request letter was made for the revival of the society and
approval of the list the said note was put up to the then AR Sh. D.N. Sharma who
marked the same to him. The notes are now collectively Ex.PW33/D5. In
reference to noting at page 8/N he put up a note which is appearing at page 9/N
and which was prepared by him on the basis of report submitted by U.S.
Bhatnagar and proposal forwarded by Shri D.N. Sharma is not proved by the then
RCS thereafter, he issued a letter to Shreyas CGHS to appear in the proceedings
before RCS. The representative of the society appeared before RCS on
19.08.2003. On the basis of records produced on behalf of the society detailed
note was prepared by Shri D.N. Sharma on 08.09.2003 and file was placed by him
before the RCS on 11.09.2003. The society was revived vide order dated
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16.09.2003 and the said order is Ex. PW33/D6 (page 92/C to 87/C in file D23).
The letter dt 03.11.2003 Ex. PW33/D7 page 96/C (file D23) bears the signatures
of Election Officer in the name of S. Madan. The name of Sh. Sanjeev Bharti is
Sanjeev Bharti Madan and the signatures appearing at point A is of Sanjeev
Bharti.
In cross examination by Ld. PP, PW33 has deposed that Sanjeev
Bharti @ Sanjeev S Madan was posted in the office of RCS as Stenographer
GradeIII. He do not know Sanjeev Bharti @ S.S. Madan conducted the election
and submitted the election report.
PW38 Shri Rakesh Bhatnagar has deposed that he remained posted
in the office of RCS, Parliament Street as Joint Registrar from May 2002 to
December 2003. He has deposed about the movement of file regarding the
revival of the Shreyas CGHS society and has proved relevant noting which has
also been proved by PW33.
PW41 Shri Yogi Raj has deposed he was working in the office of
RCS from September 2000 to September 2005 as Assistant Registrar. He has
deposed that vide letter 25.3.2004 which is Ex. PW41/A, he has forwarded the
consolidated list of 35 of Group Housing Societies to the DDA vide letter dt.
7.10.2003 which is Ex41/B he has forwarded the consolidated list of 20 Group of
Housing Societies including Shreyas society to DDA. In the letter dt. 3.11.2003
which is Ex.PW28/A. The address of Shreyas society is mentioned as Pocket E,
16/182, Sector8, Rohini, Delhi.
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PW26 Shri K.K. Kapoor has deposed that account number 33095
was opened by Shreyas CGHS society on 20.10.1971 and this account was
closed on 21.12.1979 and the same was transferred to inoperative account.
PW36 Shri R.K. Aggarwal is the investigating officer of the case. He
has proved the FIR of the case as Ex. PW36/A. He has proved the seizure
memos, documents, sanction order and various letters. He has deposed that he
has taken the specimen writing/signatures of the accused Gokul Chand Aggarwal,
Karan Singh, Naresh Kumar, Narender Sharma, Karan Singh Yadav. He has
examined the original members of the Shreyas society and has made efforts to
trace out the newly elected members but they could not be traced out. It is also
found that the society never functioned at the given address PocketE16/182,
Sector8, Rohini Delhi. The applications for the newly elected members were
found to be fake. The audit of the society was conducted by Shri P.K. Thirwani
and in the audit report, it has been shown that the society was having account with
DCS bank whereas in fact there was no such account in the DCS bank. The only
account maintained by Shreyas CGHS was in the SBI Central Secretariat Branch,
Delhi. After investigation, he has filed the charge sheet.
DW1 Shri Bal Krishan Chhilwar from the office of Dy. Director of
Education has proved the service record of the accused Sanjeev Bharti as Ex.
DW1/DX. He has deposed that as per record, Sanjeev Bharti S/o Shri Mohinder
Bharti Madan had been appointed as LDC in Govt. of India in the year 1991 and
later transferred to GNCT of Delhi as Stenographer GradeIII in the year 1997.
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In cross examination by Ld. PP for the CBI, DW1 has deposed that
he do not have any personal knowledge as to by how many names including
Sanjeev S. Madan he was known in his office.
DW2 Shri J.S. Sharma has deposed that he was working in the
office of Registrar Cooperative Society as Asstt. Registrar (Audit) from January
2001 to April 2004. He knew Sanjeev Bharti who was working in the personal
branch of RCS as Stenographer GradeIII. He was known as Sanjeev Bharti only
and not by any other name. He had appointed Kamal Singh to conduct audit of the
Sheryas Society with the approval of Registrar of the Cooperative Society. The
audit was report was submitted by Kamal Singh.
In cross examination by Ld. PP for the CBI, DW2 has deposed that
Sanjeev Bharti has not worked under him. The audit was conducted by Shri Kamal
Singh however, he might have taken the help of Shri P.K. Thirvani as it was the
practice in the RCS office.
4. I have heard the Ld. PP for the CBI and the Ld. Counsels for the
accused persons. Accused Gokul Chand Aggarwal has himself advanced the
arguments and has also filed the written arguments. I have perused the written
arguments filed on behalf of the accused persons and the judgments relied upon
by them. I have also perused the file.
Ld. PP for the CBI has argued that the prosecution has proved its
case beyond reasonable doubt against the accused persons. All the accused
persons has entered into a conspiracy for the revival of the 'said society' with the
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object to get the land alloted from the DDA. This allotment is possible only, if the
'said. Society' was revived as the allotment of land was on the basis of seniority,
which is the date of the registration of the society.
Ld. Counsel for the accused A1 has argued that he had given the
inspection report on the basis of the documents produced by the society during
the inspection of the society by him. He has submitted the inspection report as
per the rules and regulation as per DCS Act and in discharge of his official duty.
He has no role in the revival of the society. There is also no evidence on record to
prove that he is a conspirator in the conspiracy.
Ld. Counsel for the accused A2 has argued that he has acted upon
the reports submitted to him by his subordinates and he has no reason to believe
that the documents were forged and fabricated. He has no reason to disbelieve
with the inspection report of A1. He has only forwarded the files put up by the
dealing assistant on the basis of the inspection report he has been falsely
implicated in the present case and there is no evidence on record to show his
involvement in the alleged offences.
Ld. Counsel for the accused A3 has argued that the accused had
acted in the discharge of his official duty. The accused has passed the order of
terminating liquidation proceedings and revival of the society as per Section 63 (3)
of the DCS Act. The accused had relied upon the documents submitted to him by
his subordinates and he has no knowledge or reason to believe that the
documents submitted were forged. There is no evidence on record to prove that
CC No. 37/08 P17/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
the accused is in conspiracy with the other coaccused persons to commit the
alleged offences. The accused has acted in the discharge of his official duty.
The prosecution of the accused is also bad in law as there is no sanction U/s 197
Cr.P.C. against him.
Accused A4 has argued that GEQD report is inadmissible in
evidence as the CBI has no right to take his handwriting specimen during
investigation without the permission of the accused. GEQD report is also not a
reliable document as it suffers from infirmities. There is no evidence on record to
prove that the accused has forged the alleged documents and has filed any
document before the office of the RCS. The prosecution has failed to prove the
involvement of the accused in any of the alleged offences.
Ld. Counsel for the accused A5 has argued that the accused had
no role in the revival of the society and the alleged conspiracy. The name of the
accused have never been referred to S. Madan and he has never signed any
document as S. Madan or Sanjeev Madan. There is no evidence on record to
prove that the accused had conducted the election of the society as per the revival
order.
Ld. Counsel for the accused A6 has argued that A6 was dealing
assistant and he was duty bound to put up the documents to his senior officers as
per the procedure and has acted bonafidly as per the directions of his superiors.
A6 has only put up the draft note before the Assistant Registrar as per the
direction and after his approval , a consolidated note was prepared for the
CC No. 37/08 P18/47
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(Shreyas CGHS)
consideration of the competent authority. A6 has not acted in violation of any
rules and regulations of DCS Act. A6 has no reason to know about the
genuineness of the documents filed before him on behalf of the society.
Ld. Counsel for the accused A7 has argued that A7 has not done
the audit of the society. As per the revival order, Shri Kamal Singh was the
auditor. There is no evidence on record to link the accused with the alleged
offences.
5. It has also been argued on behalf of A1, A5, A6 and A7 that
sanction U/s 19 of PC Act has not been obtained from the competent authority, so
the trial without valid sanction renders it void. It has been argued that the said
sanction should have been taken from the official who was the competent
authority at the time of commission of offence. The sanction has been granted
without application of mind. Ld. Counsel has relied upon the Judgment Prakash
Singh Badal and Ors. Vs. State of Punjab 2006 (4) Crl. 388 SC.
PW35 Shri Vijay Kumar had granted sanction for prosecution of A1
and A5. PW35 has deposed that he remained posted in the Government of NCT
of Delhi as DirectorEducation w.e.f. 20052007. He had received the investigation
report from the CBI regarding grant of sanction of A1 and A5. He perused the
report and appended evidence to form a view to sanction the prosecution of both
the accused persons under the Prevention of Corruption Act. After considering all
the facts, he accorded the sanction to prosecute A1 and A5. He has proved the
sanction order of A1 as Ex. PW35/A and of A5 as Ex. PW35/B.
CC No. 37/08 P19/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
PW37 Shri R. Narayanswami has accorded the sanction of A6 and
A7. PW37 has deposed that in the year 20062007, he was posted as Chief
Secretary, Government/NCT of Delhi. He received the investigation report from
the CBI regarding grant of sanction in respect of A6 and A7. He perused the
report and appended evidence to form a view to sanction prosecution of both the
accused persons under the Prevention of Corruption Act. After considering all the
facts, he accorded the sanction to prosecute A6 and A7. He has proved the
sanction order of A6 as Ex. PW37/B and of A7 as Ex. PW37/A.
The arguments of Ld. Defence Counsel that sanction for
prosecution should have taken from that particular official only who was posted as
competent authority at the time of commission of offence is without any merits. It
is required to be seen whether the sanction has been obtained from the
competent authority or not. Moreover, merely because there is any omission,
error, irregularities in the matter of according the sanction, that would not affect
the validity of the proceeding unless such error, omission results in the failure of
justice.(Relied upon in State of Bihar & Ors. Vs. Rajmangal Ram {Criminal Appeal
No. 709710 of 2010 (DOD: 31.3.14)}.
Perusal of the sanction orders shows that the sanctioning authority
has given the reasons for granting the sanction to the concerned officers and also
perused the material before granting the sanction. Therefore, the sanctions does
not suffer from non application of mind.
PW35 and PW37 has been cross examined on behalf of the
CC No. 37/08 P20/47
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(Shreyas CGHS)
accused persons, but no such material has been come on record which would
show that the sanction order were not given by the competent authority or there is
any failure of justice.
6. It has also been argued on behalf of the accused persons A1, A5,
A6 and A7 that as no mandatory sanction has been obtained U/s 197 Cr.P.C., so
these accused could not have been prosecuted.
The Prevention of Corruption Act is a special statue and if the
sanction is given U/s 19 of the PC Act, then there is no requirement of seeking
sanction again for prosecuting the accused U/s 197 Cr.P.C.
It has been observed by Hon'ble High Court of Allahabad in Neera
Yadav Vs. CBI (2006)2 All L.J. 442:
"For prosecution under Prevention of Corruption Act,
1988, once sanction under Section 19 of the said Act is granted, there
is no necessity for obtaining further sanction under Section 197 of the
Code of Criminal Procedure.
Where a public servant is sought to be prosecuted under
the provisions of Prevention of Corruption Act read with Section 120B
IPC and sanction under Section 19 of Act of 1988 has been granted, it
is not at all required to obtain sanction under Section 197 Cr.P.C. from
the State Government or any other authority merely because the public
servant is also charged under Section 120B IPC.
The offences under the Prevention of Corruption Act,
CC No. 37/08 P21/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
1988 as well as charge of criminal conspiracy, cannot be said to
constitute "acts in discharge of official duty".
It has also been observed by Hon'ble Supreme Court Shri Vinod B
Vs. K.S. Eshwarappa in criminal revision 224/14 (DOD 21.10.2014) that :
"Hence, it can be said that every case against a public
servant, alleging an offence punishable under the provisions of the PC
Act, can be presented only on obtaining a prior sanction under Section
19 of the said Act, but a sanction under Section 197 (1) of the Cr.P.C.
Is not required to be obtained as a matter of course to initiate other
criminal proceedings against a public servant, unless it is so expressly
provided under any statute. "
7. Ld. Counsel has argued that the sanction U/s 197 Cr. P.C. for
prosecution of A2 and A3 is required. As there is no such sanction in the case,
so prosecution of these accused persons is bad in law.
This argument is without any merits as these accused persons have
also been charged for committing criminal conspiracy.
It has been observed by Hon'ble Supreme Court in Harihar Prasad
Vs. State of Bihar (1972)3 SCC 89.
"As far as offence of criminal conspiracy U/s 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
CC No. 37/08 P22/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
criminal conspiracy or to indulge in criminal misconduct and therefore
want of sanction U/s 197 Cr.P.C. was not bar to prosecution."
In Rajib Ranjan and others Vs. R. Vijaykumar (2015) 1SCC 513 it
has been observed by Hon'ble Supreme Court that:
"even while discharging his official duties, if a public
servant enters into a criminal conspiracy or indulges in criminal
misconduct, such misdemeanour on his part is not to be treated as an
act in discharge of his official duties and, therefore, provisions of
Section 197 of the Code will not be attracted".
Sanction U/s 19 of PC Act was not required against A2 and A3 as
they were not in service, when the charge sheet was filed for the purposes of
taking cognizance.
8. It has been argued on behalf of the accused persons that the
registration of the FIR in the present case is illegal as no consent from the
competent authority had been obtained. This argument is without any merits.
The FIR has been registered in the present case on the directions
issued by the Hon'ble High Court of Delhi vide its order dt. 2.8.05 in Civil Writ
Petition No. 10066 of 2004. As per this order, a preliminary enquiry was
conducted and after the conclusion of the preliminary enquiry, the FIR was
registered. Therefore, there is no illegality on the aspect of registration of FIR.
It has been held by the Hon'ble Supreme Court in State of West
Bengal Vs. Committee for Protection of Democratic Rights 2010 (2) SCALE 467
CC No. 37/08 P23/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
that High Court can direct CBI to investigate the offence without the consent of
the State Government within whose territorial jurisdiction the offence is alleged to
have taken place.
9. ROLE OF PUBLI C SERVANTS
The public servants i.e. the accused A1, A2, A3 and A6 have
argued that whatever they have done in the file for the revival of the society has
been done in the discharge of their duties and there is no malafide on their behalf.
They had no means to evaluate the genuineness of the documents furnished on
behalf of the society. There is no evidence on record to connect them with the
alleged offences.
To connect such public servants with the alleged offences, notings
on the file are the vital piece of evidence. Evidential value of such notings has
been recognized by the Hon'ble High Court of Delhi in the judgment of "Runo
Ghosh T.Ramarao Vs. CBI wherein it has been decided that since the offence of
corruption are done under the clock of official duties and in a very clever and
shrouded manner, the only evidence available is note sheets written or approved
by public servant and the court would be fully justified to draw appropriate
inferences from such note sheets.
There is no dispute with respect to note sheets and the signatures of
these officials appearing thereon. The notings and the signatures of these
officials has been proved by PW33.
Two request letters for the revival of Shreyas society which are dt.
CC No. 37/08 P24/47
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(Shreyas CGHS)
28.3.03 Ex. PW33/A and dt. 27.6.03 Ex. PW33/B was received in the office of
RCS from Sunil Kumar the President of the society. A6 who was the dealing
assistant had processed these request letters by the noting 6/N Ex. PW33/C (file
D23). This noting was also approved by A2 and A3.
It is proposed in the noting Ex. PW33/C that U.S. Bhatnagar (A1)
be appointed as inspecting officer U/s 54 of DCS Act to verify the
record/documents.
A6 put up another noting which is Ex. PW33/D (7/N and 8/N in file
D23) and recommended to the competent authority to consider the request for the
revival of the society U/s 63 (3) of DCS Act and to approve the list of members for
allotment of land. This noting is also approved by A2.
A6 put up another noting dt. 8.9.03 Ex. PW33/D2 (Colly.) 10/N to
17/N in file D23) which is approved by A2 and by this noting competent authority
has been requested to consider the request for revival of the society, approve the
freeze list of 125 members for allotment of land and freeze list be forwarded to
DDA subject to audit of the society upto 31.3.03. It is also mentioned in this
noting that in compliance of the directions of the RCS the secretary of the society
has produced/submitted the original records and documents pertaining to
membership, audit and election etc for verification on 27.8.03 and 1.9.03 and the
same was verified accordingly.
A2 and A6 while processing the file for the revival of the society
were duty bound to see the previous records pertaining to the society and then put
CC No. 37/08 P25/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
up an appropriate notings as the society was approaching the RCS office after the
period of about 2022 years. They have not taken any steps in this respect and
has also not even verified the identity of the person who was approaching the RCS
office.
As per the GEQD report Ex. PW42/A, the signatures of the applicant
Sunil Kumar on both the request letters and on the note sheet 10/N are made by
A4. It can be said that A4 has sent these request letters by impersonating
himself as Sunil Kumar President of the society and has appeared in the office of
RCS as Sunil Kumar.
Perusal of both the request letters Ex. PW33/A and Ex. PW33/B
shows that address of the society is mentioned as pocketE, Block16, H.No. 182,
Sector 8 Rohini, Delhi.
As per the certificate (form No. 13) Ex. PW14/A (page 35/C of file D
23) from the office of Registrar cooperative society, Delhi shows that Shreyas
society was registered on 13.4.1971 at serial No. 23 (H) having its office at room
183, E South Block, New Delhi.
PW21 Gajender Pal Singh has deposed that in the letters Ex.
PW21/A to Ex. PW21/C (page 55/C to 57/C in file D23) it is mentioned that he
was appointed liquidator in respect of the society. He has proved the noting N/5
dt. 6.9.91 as Ex. PW21/D (file D23) which is in his handwriting. As per this
noting, he took charge of society in July 1991. He has also deposed that in file D
23 noting portion is available up to 6.9.91 and after this noting the noting portion
CC No. 37/08 P26/47
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(Shreyas CGHS)
starts from 11.7.03, it means that in the intervening period of 6.9.91 and 11.7.03
there is no correspondence between the society and the RCS office.
There is change of address of the society as given in the letterhead
of the request letters from the address as mentioned in certificate of registration of
the society Ex. PW14/A. These public servants have also not raised any objection
regarding the change of address as there is no correspondence received in the
office regarding the change of the address of the society. No efforts have been
made by these public servants to verify the address as given in the request letters.
A2 without verifying the previous records of the defunct society has
appointed A1 as inspecting officer U/s 54 of DCS Act to verify the records of the
society vide order dt. 23.7.03 which is Ex. PW38/A (page 16/C file D23).
After passing of the revival order, A2 has sent to the Assistant
Registrar (Policy), the application dt. 16.9.03 along with enclosures, a freeze list of
125 members of the society for forwarding the same to DDA for allotment of land.
That letter is Ex. PW38/B (page 105/C file D23). The freeze list of 125 members
which is Ex. PW31/B2 (page 101/C to 104/C of file D23) has been signed by A2.
It has also been signed by President Sunil Kumar Vice President, Naresh Kumar
and Secretary Karan Singh and as per the GEQD report Ex. PW42/A, the
signatures on the list of members has been made by A4.
In case A2 and A6 have insisted upon the identify of the applicant
who has moved the RCS office for revival of the society and the records of the
society during which it had remained defunct, then it would have easily come into
CC No. 37/08 P27/47
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(Shreyas CGHS)
their knowledge that request for the revival of the society is not a genuine request
and has not been made by authorized person. But these public servants have
failed to take any such required steps and which shows that they were in
conspiracy with A4 to achieve the illegal object of the allotment of land from the
DDA.
10. A1 was appointed as inspecting officer U/s 54 of DCS Act to verify
the records of the society and to bring out the factual position of the society. He
has filed the inspection report and which has been proved on record as Ex.
PW42/B and Ex. PW33/D5 (file D23). As per the report Ex. PW33/D5, A1 has
visited the office of the society on 28.7.03 at Pocket E 16/182, Sector 8, Rohini,
Delhi and there he met Sunil Kumar, President of the society. Sunil Kumar
produced all the relevant records of the society and as per the proceedings
register, last meeting was held on 12.2.03 and all the society records are found
under the safe custody President of the society. The report Ex. PW42/B is also
counter signed by Sunil Kumar, President on behalf of the society.
The inspection report given by A1 is a false report as Shreyas
society was not functioning at Pocket E 16/182, Sector8, Rohini, Delhi as it is
evident from the evidence of PW4, PW6 and PW7A. A1 noted that the last
meeting was held on 12.2.03. He has not verified whether any meeting of the
society was held during the period when the society remained defunct. A1 has
also not insisted upon the identify proof of the Sunil Kumar who has signed as
President on the inspection report. As per the GEQD report Ex. PW42/A, these
CC No. 37/08 P28/47
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(Shreyas CGHS)
signatures are in the handwriting of A4. It shows that A1 has given the false
inspection report at beheast of A4 to achieve the illegal object of the conspiracy.
The false report given by A1 paved the way for the revival of the society.
11. A3 has approved the noting 6/N Ex. PW33/C as to the appointment
of A1 as inspecting officer. In the noting dt. 1.8.03 9/N which is Ex. PW33/D1, A
3 had approved the issuance of notice U/s 63 (3) of DCS Act to the
President/Secretary of the society for hearing on the proposal of the revival of the
Shreyas society. The noting dt. 19.8.13 10/N Ex. PW33/D2 signed by A3
(proceedings in the office of RCS) shows that on 19.8.03 one Advocate by the
name of Mr. Manish representing the society was present and the proceedings
were adjourned by A3 for 11.9.03. As per noting dt. 11.9.03 18/N (Ex. PW33/D3),
A3 heard the arguments on behalf of the society as advanced by Shri Manish,
Advocate and the case was reserved for orders.
A3 passed the order dt. 16.9.03 which is Ex. PW33/D6, thereby
cancelling the winding up order dt. 12.4.1978 of the Shreyas society in exercise of
the powers U/s 63 (3) of DCS Act with immediate effect. Consequently, Shreyas
society revived with immediate effect as the concerned Assistant Registrar has
already verified the 125 members submitted by the society subject to the condition
that the pending audit would be completed within two months. A3 has also
appointed Shri S.Madan of the department as election officer to conduct the
election of the managing committee of the society within two months from the
issuance of this order.
CC No. 37/08 P29/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
A3 was holding the responsible position as Registrar cooperative
society and so it was his primary duty to scrutinize the documents for the revival of
the society carefully and cautiously as the society is a approaching the office after
a long period of time. He has to act in a judicious manner. He has not taken any
measures, before passing the order, to see the genuineness and truthfulness of
the documents furnished.
From the proceedings, it is apparent that A3 has permitted the
society to be represented by an advocate by the name of Mr. Manish. However,
Mr. Manish had appeared in the case as PW30 and has deposed that he has
never handled any matter pertaining to Shreyas CGHS and had never appeared
before the RCS on behalf of the Shreyas CGHS at any point of time. There is also
no authorization or Vakalatnama on record authorizing Mr. Manish to appear
before the RCS on behalf of the society.
A3 has also not insisted for the appearance of President and
Secretary of the society at the time of arguments despite issuance of notice to
them. Even before passing the order, A3 does not consider it necessary to see
why the liquidator was not able to carry out the process of winding up and also to
see the genuineness of liquidator order F46/47/23/78/GH/COOP/187278 which is
Ex. PW23/A (page 54/C file D23). Ex. PW23/A is alleged to be signed by Ashok
Bakshi, Dy. Registrar. However, Shri Ashok Bakshi (PW23) has deposed that Ex.
PW23/A does not bear his signatures and the signatures appearing on the order
are his fake signatures. A3 has also not insisted on the identity proof of the
CC No. 37/08 P30/47
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(Shreyas CGHS)
members and office bearers for their genuineness and in case this step has been
taken by A3, it would immediately came to his know knowledge that all the
members including office bearers were fake. All these facts proved that A3 has
passed the order for revival of the society in conspiracy with the other coaccused
in order to speedily achieve the object of conspiracy.
It has been argued on behalf of A3 that he had no option but to
order the cancellation of winding up order as the liquidation proceedings were not
completed within stipulated period. (Relied upon the judgment in Vikas CGHS
Vs. RCS (CWP) No. 1767 of 1986 DOD 22.11.1986.) Under Section 63 (3) of
DCS Act and Rule 105 of DCS Rule 1973 the Registrar has the power to
terminate liquidation proceedings, but this power has to be exercised in bonafide
manner. In the present case, from the evidence on record as discussed above, it
is proved that A3 has invoked these provisions in a malafide manner. The
judgment relied upon by A3 is not applicable to the facts of the present case as
in the present case, A3 had invoked the provisions with undue haste and in a
malafide manner.
Ld. Counsel for A3 has also argued that A3 while acting as
Registrar has been discharging his duty as a Judge and therefore he could not
have been prosecuted. This argument is also without any merits as it has been
observed by Hon'ble High Court of Delhi in Narayan Diwarkar Vs. CBI 129 (2006)
DLT 258 that any Registrar while exercising in discharging function under DCS
Act 1972 cannot be deemed to be a judge and consequently cannot claim any
CC No. 37/08 P31/47
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(Shreyas CGHS)
protection from the prosecution or other legal proceedings.
12. On behalf of the Shri P.K. Thirwani (A7), it has been argued that
Shri Kamal Singh was appointed as Auditor of the society. Kamal Singh had
conducted the audit of the said society and signed the audited report. A7 had
only assisted Kamal Singh in filling up audit report proforma on his request.
Shri Kamal Singh has been examined by the prosecution as PW24.
He has deposed that he was appointed as Auditor vide letter dt. 15.09.03 by Shri
J.S. Sharma, Auditor and he has proved the appointment letter along with the
audit report as Ex. PW22/A (file D8). The audit report from page 1 to 119 bears
his initials and full signatures on page 109. He has identified the signatures of A7
at page 114 of the audit report. The audit was done by Shri P.K. Thirwani and the
relevant coloumn in the audit report has been filled by A7. The signatures of
President Sunil Kumar, Secretary Karan Singh and treasurer Raj Guru appearing
in the audit report were not made before him.
In cross examination by Ld. PP, PW24 has denied the suggestion
that A7 had approached him for conducting the audit of the society as the office
bearers were known to A7.
Shri J.S. Sharma, Assistant Registrar (Audit) has been examined as
DW2 and he has deposed that he had appointed Kamal Singh as auditor of the
society and the audit report is of Kamal Singh. This audit was conducted by
Kamal Singh and the report as well as annexures were submitted by Kamal Singh.
The officials at that time used to assist their colleagues while conducting audit .
CC No. 37/08 P32/47
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CBI Vs. U.S. Bhatnagar etc. Judgment dt. 16.09.2015
(Shreyas CGHS)
In cross examination of Ld. PP, DW2 has deposed that the audit
was conducted by Shri Kamal Singh however he might have taken the help of A7
as it was practice in he RCS office.
From the testimonies of PW24 and DW2, it is evident that PW24
was appointed as auditor to conduct the audit of the said society and he has filed
the audit report Ex. PW22/A.
PW24 has also admitted that the audit report bears his
initial/signatures. The audit report from page 1 to 119 does not bear the
signatures of A7 except page No. 114. There is no evidence on record to prove
that the report was prepared at the spot by A7 and he had actually done auditing.
The possibilities cannot be ruled out that A7 may have written the report at the
instance of Kamal Singh. There is also no evidence on record to prove that A7
has allowed A4 to sign the audit report as Sunil Kumar, Karan Singh and Raj
Guru.
In my view, the prosecution has failed to prove that it is the A7 who
has himself conducted the audit of the society and filed the report. There is no
conclusive evidence on record to link A7 with the alleged offences. Accordingly,
benefit of doubt is given to A7.
13. It has been argued on behalf of the Sanjeev Bharti (A5) that he has
not conducted the election of the society and has not submitted the election report
dt. 3.11.03 showing as if the election was conducted by him on 26.10.03. He has
never been known as S. Madan and never signed any document as S. Madan or
CC No. 37/08 P33/47
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(Shreyas CGHS)
Sanjeev Madan. He had not received any order for conducting the election of the
said society. There is no evidence on record to prove that the election report dt.
3.11.03 Ex. PW33/D7 (page 96/C in file D23) and the election proceedings dt.
26.10.03 Ex. PW31/B3 and H5 (page 93/C, 95/C of file D23) bears his
signatures.
PW33 Narender Singh Khatri has deposed that Ex. PW33/D7 bears
the signatures of election officer in the name of S. Madan. The name of Sanjeev
Bharti is S. Bharti Madan and the signatures appearing on this document is of
Sanjeev Bharti
In cross examination by Ld. PP, PW33 has deposed that Sanjeev
Bharti @ S.S.Madan was posted in the office of RCS as Stenographer. He do not
know that S. Bharti @ S. S. Madan has conducted the election and has submitted
the election report. He has denied the suggestion that he is intentionally avoiding
to identify the signatures and handwriting of Sanjeev Bharti on the election report
and the election proceeding.
DW1 has proved the service book of Sanjeev Bharti. DW2 has
deposed that Sanjeev Bharti was known as Sanjeev Bharti only and not by any
other name. He has denied the suggestion of Ld. PP that Sanjeev Bharti is also
known by the name of Sanjeev S. Madan.
Perusal of the revival order dt. PW33/D6 shows that Shri S. Madan
GradeIII of the department has been appointed as election officer to conduct the
election of the managing committee of the society. The election report Ex.
CC No. 37/08 P34/47
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(Shreyas CGHS)
PW33/D7 has been signed by the election officer by the name of S. Madan.
There is no evidence on record to prove that the election proceedings dt.26.10.03
which is Ex. PW31/B3 (original Ex. PW31/G file D3) are in the handwriting of A
5. There is also no conclusive evidence on record to prove that Ex. PW33/D7
has been signed by A5 as there is no handwriting expert report to prove that the
signatures appearing on the election report Ex. PW33/D7 is of A5. The evidence
of PW33 is also not reliable to prove that the Ex. PW33/D7 has been signed by A
5 as in the cross examination of Ld. PP, he has deposed that he do not know
whether A5 has conducted the election and submitted the election report.
In my opinion from the evidence on record, the prosecution has
failed to link the A5 with the allege offences and so he is entitled to benefit of
doubt.
14. It has been argued on behalf of all the public servants i.e. A1.A2,
A3 and A6 that they are entitled to general defence U/s 76 and 79 of IPC and so
they cannot be held as offenders for the acts which has been done by them in
discharge of their public duties. These provisions are not applicable to these
public servants as their acts/omissions for the revival of the said society cannot be
said to be done in good faith, which is the essential requirement of these sections.
Ld. Counsels has also argued that if there is any irregularities
committed by all such public servants then they could have been prosecuted
under the DCS Act and their prosecution under IPC and the PC Act is illegal. This
argument is without any basis as the DCS Act does not cover the specific acts of
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forgery and corruption which involves higher punishment and penalties.
15. ROLE OF GOKUL CHAND AGGARWAL (A4)
During investigation, questioned documents along with specimen
writing/signatures were sent to CFSL Hyderabad for obtaining opinion.
PW42 A. Balsami, who is handwriting expert, has deposed that he
was working as Dy. Government Examiner of Questioned Documents in the office
of Central Forensic Science Laboratory, Ministry of Home Affairs, Government of
India, Hyderabad. He completed M.Sc. in Physics. He joined this organization in
the year 1989 as Assistant Central Intelligence Officer GradeI. He has been
imparted in service training for three years by our organization. I have acquired
the knowledge of handwriting science identification and detection of forgeries by
obtaining training and studying the literature. He has so far examined 1,610 cases
and attended several courts of law throughout our country.
The documents of this particular case had been received in their
laboratory at Hyderabad from SPCBI, SIU.V/SCRII, New Delhi vide letter no.
4052/3/16A/2005 SIU.V/SCRII dt. 18.08.2006. The said letter along with the
documents were received on 21.08.2006 by them. Their laboratory received
questioned documents which contained questioned writings marked as Q1 to Q
1323, Q886/1, Q888/1, Q889/1, Q897/1, Q906/1, Q907/1, Q918/1, Q921/1,
Q922/1, Q926/1, Q932/1, Q935/1, Q948/1, Q951/1, Q955/1, Q957/1, Q
960/1, Q971/1, Q973/1, Q985/1, Q986/1, Q989/1, Q990/1, Q1012/1, Q
1019/1, Q1034/1, Q1049/1, Q1065/1, Q1178/A, Q1178/B, Q1189/1, Q1201/1
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and Q1212/1.
Their office also received the specimen writings of one Sh. Gokul
Chand Aggarwal marked as S1 to S295, the specimen writings of one Sh. Karan
Singh marked as S296 to S298 and S309 to S313, the specimen writings of
one Sh. Naresh Kumar Solanki marked as S299 to S303, the specimen writings
of one Sh. Narender Sharma marked as S304 to S308 for comparison with the
abovesaid questioned writings. The said specimen writings are already marked
as Ext.PW36/E; Ext.PW31/C; Ext.PW34/D and Ext.PW36/F respectively. He has
examined the questioned writings with the corresponding specimen writings by
using the handwriting scientific principle such that side by side comparison and
likewith like method by utilizing the scientific instruments such as microscope,
magnifying glasses and video spectral comparator 5000 etc. He has arrived at the
conclusion which has been mentioned in his report which is Ex. PW42/A.
As per the opinion Ex. PW42/A, the person who has written the
writings S1 to S194 and S204 to S295 that is A4 also written the questioned
writings from Q1 to Q281, Q353, Q356, Q359, Q371, Q374, Q395, Q398, Q401,
Q407, Q410, Q413, Q416, Q434, Q446, Q461, Q479, Q518, Q536, Q560, Q623,
Q626, Q635, Q650, Q657 to Q779, Q781 to Q812, Q836, Q837, Q856, Q875 to
Q883, Q885, Q886/1, Q888/1, Q889/1, Q897/1, Q906/1, Q907/1, Q918/1, Q921/1,
Q922/1, Q926/1, Q932/1, Q935/1, Q948/1, Q951/1 Q955/1, Q957/1, Q960/1,
Q971/1, Q973/1, Q985/1, Q986/1, Q987/1, Q989/1, Q990/1, Q1012/1, Q1019/1,
Q1034/1, Q1049/1, Q1065/1, Q1170, Q1172, Q1178, Q1178B, Q1181 to Q1183,
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Q1185, Q1186, Q1189/1, Q1201/1, Q1212/1, Q1232 to Q1319 and Q1323
(handwriting/signatures of A4 on the documents i.e. affidavits, membership form,
resignations, nomination forms for election, proceedings of the GBM of the
society, list of members of the society sent to the DDA, inspection report, request
letters for the revival of the society etc. i.e. Ex. PW31/A (D24) consisting of Q1 to
Q778, Ex. PW31/B (D23) consisting of Q779 to 830, file (D2) Ex.. PW31/E and
Ex. PW31/F consisting of Q833 to 837, Ex. PW36/G (D4) consisting of Q856 to
874, Ex. PW31/B7 (D25) consisting of Q875 to 878, file (D5) consisting of Q
879 to Q885, Ex. PW31/B8, Ex. PW42/E and Ex. PW31/A9, Ex. PW36/J (D6)
consisting of Q886 to Q1010, Ex. PW42/G (D7) consisting of Q1011 to Q
1231, Ex. PW22/PX (D8) consisting of Q1232/1 and 1232 to Q1319, file (D
15,16,17 and 21) Ex. PW29/PX consisting of Q1320 to 1323,.
Ld. Counsel for the accused has argued that the specimen
handwriting/signatures of A4 has been taken by the IO during the investigation
without the permission of the court and it renders the report Ex. PW42/A as
inadmissible in evidence (relied upon Sapan Haldar & Anr. Vs. State 191 (2012)
DLT 225) . This argument is without any merits as it has been held by Hon'ble
Supreme Court in Ravinder Singh @ Dara Singh Vs. Union of India AIR 2011
Supreme Court 1436 that the investigating officer has power to take specimen
signatures during the investigation even without permission of the court and that
report of such expert based on such specimen signatures/writing could be used as
evidence.
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PW42 has been cross examined by A4 at length and nothing has
been come on record to show that he had not applied proper procedure for
comparison purposes. The report Ex. PW42/A is a reliable document as it is well
reasoned and to prove the case of the prosecution that it was A4 who has
prepared false/forged documents for the purposes of the revival of the said
society. In Murari Lal Vs. State of M.P. AIR 1980 SC 531 it has been held that :
"There is no rule of law, nor any rule of prudence which
has crystalised into a rule of law, that opinion evidence of a handwriting
expert must never be acted upon, unless substantially corroborated.
But, having due regard to the imperfect nature of the science of
identification of handwriting, the approach should be one of caution.
Reasons for the opinion must be carefully probed and examined. All
other relevant evidence must be considered. In appropriate cases,
corroboration may be sought. In cases where the reasons for the
opinion are convincing and there is no reliable evidence through a
doubt, the uncorroborated testimony of a handwriting expert may be
accepted. There cannot be any inflexible rule on a matter which, in the
ultimate analysis, is no more than a question of testimonial weight.
(Cases law discussed)".
From the report Ex. PW42/A, it is evident that A4 has signed as
Sunil Kumar, President of the said society, the request letters for the revival of the
society. A4 has appeared in the Registrar and has signed note sheet 10/N Ex.
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PW33/D2 as Sunil Kumar President. A4 has signed the inspection report Ex.
PW42/B as President, proceedings of the society Ex. PW31/B5 (Colly.) as Sunil
Kumar President and has signed the freeze list of 125 members of the society as
Sunil Kumar, Naresh Kumar, Karan Singh which is Ex. PW31/B2 (Colly.) sent
along with the request letter of A2 which is Ex. PW38/B to the Assistant Registrar
(Policy). A4 has also signed the audit report Ex. PW22/A by impersonating as
Sunil Kumar, Karan Singh and Raj Guru. A4 has forged the application for
membership of the society, resignation of the members of the society, minutes of
the society, affidavits of the members to create fake members for revival of the
said society.
16. The involvement of A4 in forging the documents of the society is
also proved by various prosecution witnesses.
PW32 Shri Satbir Gupta is the stamp vendor, has deposed that A4
has purchased stamp papers Ex. PW32/1 to 122 (page 89/C to 212 C in file D24)
in lump sum. The name of the person in whose name the stamp papers were sold
were provided by A4. He has also identified A4 in the court.
These affidavits are shown to be attested by Notary public Shri Arun
Kumar Gupta on 25.08.2003. This attestation has been proved to be false as it is
evident from the evidence of PW43 Gaurav Gupta. PW43 has deposed that his
father Arun Kumar Gupta was working as an advocate and notary public. His
father has expired on 15.1.02 and he has proved his death certificate as Ex.
PW36/B2. He has deposed that signatures/initials appearing on each of the
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affidavits are not of his father as his father has already expired on 15.1.02
whereas the affidavits bears the date 25.8.03.
The fact that A4 has impersonated as Karan Singh and has forged
his signatures is also proved from the evidence of Karan Singh who has been
examined as PW31 and from the report Ex. PW42/A.
PW7, PW8, PW9, PW11, PW12, PW13, PW14 and PW40 are the
original members of the society and has also deposed about the forgery of the
documents to show their resignations from the society and as per the report Ex.
PW42/A it is done by A4. The evidence of PW1, PW5, PW16, PW19, PW20,
PW25, PW27, PW31, PW34 proved that A4 has created fake members of the
society.
17. Ld. Counsels has also argued that there is no evidence on record to
prove that such public servants/accused had entered into the alleged conspiracy
as all the public servants have done their official duties in processing the file for
the revival of the society and there is nothing to show the meetings of mind to
commit the alleged offences.
It has been observed by Hon'ble Supreme Court in Ajay Aggarwal
Vs. Union of India 1993 (3) SCC 609:
".....It is not necessary that each conspirator must know
all the details of the scheme nor be a participant at every stage. It is
necessary that they should agree for design or object of the
conspiracy. Conspiracy is conceived as having three elements: (1)
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agreement; (2) between two or more persons by whom the agreement
is effected; and (3) a criminal object, which may be either the ultimate
aim of the agreement, or may constitute the means, or one of the
means by which that aim is to be accomplished. It is immaterial
whether this is found in the ultimate objects."
It has also been observed by Hon'ble Supreme Court in (2003) 8
SCC 461:
"Privacy and secrecy are more characteristic of a
conspiracy, than of a loud discussion in an elevated place open to
public view. Direct evidence in proof of a conspiracy is seldom
available, offence of conspiracy can be proved either direct or
circumstantial evidence. It is not always possible to give affirmative
evidence about the date of the formation of the criminal conspiracy,
about the persons who took part in the formation of the conspiracy,
about the object, which the objectors set before themselves as the
object of conspiracy, and about the manner in which the object of
conspiracy is to be carried out, all this is necessarily a matter of
inference."
From the evidence on record as discussed above, it is proved that
the public servants A1, A2, A3, A6 along with A4 had united together to
achieve the common object of allotment of land to the said society from the DDA.
Ld. Counsels for these public servants has argued that they had
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acted in a routine manner without having any knowledge of the forgery or without
having any intention to abuse their official position and so they have not committed
any offence U/s 13 of PC Act and their alleged acts amounts only to preparation
as no land was allotted to the said society.
Section 13 (1) (d) of PC Act reads as follows:
"A public servant is said to commit the offence of criminal misconduct,
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
(iii) while holding office as a public servant, obtains for any person any
valuable thing to pecuniary advantage without any public interest;
In Kavery Cooperative Group Housing Society Vs. Union of India
AIR 1981 Delhi 217 Hon'ble High Court of Delhi had ordered that land was to be
allotted to the society according to the seniority of the society i.e. the date of their
registration, so as to stop bunglings in the office of RCS.
It has been observed by Hon'ble High Court of Delhi in the judgment
Runu Ghosh T.Rama Rao Vs. CBI dt. 21.12.11 in criminal appeals 482/2002,
509/2002, 484/2002 that:
" Having regard to the previous history of the statute, the
amendments to the 1947 Act, its avowed objects and the distinctive
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structure which parliament adopted consciously, under the 1988 Act,
despite being aware of the preexisting law, as well as the decisoins of
the Court the conclusion which this Court draws is that mens rea is
inessential to convict an accused for the offence under Section 13 (1)
(d)(iii). It would be sufficient if the prosecution proves that the public
servant "obtains" by his act, pecuniary advantage or valuable thing, to
another, without public interest. The inclusion of public interest, in the
opinion of the Court, tips the scale in favour of a construction which
does not require proof of mens rea. There can be many acts of a
public servant, which result in pecuniary advantage, or obtaining of a
valuable thing to someone else; typically these may relate to payment
of royalty, grant of license or concessions, issuance of permits,
authorizations, etc. Yet, such grants, concessions, or other forms of
advantages to third parties would not criminalize the public servants
actions, so long as they have an element of public interest. They (acts
of the public servant) are outlawed, and become punishable, if they are
"without public interest"."
From the aforesaid judgment, it is evident that if the public servant
knew that his act, by overlooking or disregard to the precautions, would be injuries
to public interest, he would be covered under section 13 of PC Act. This
knowledge of public interest has to the gathered from the facts of the case. In the
present case, the allotment of land to the society would be an act in the public
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interest, but if the land is granted to the fake society it would not be injuries to the
public interest.
In the present case, all the public servants i.e. A1, A2, A3 and A6
had entered into a conspiracy with A4 for fraudulently reviving the said society so
that the registration number of such society would be higher in the seniority list on
account of its date of registration. Thereby, the aggrieved person would be the
legible society which would have been allotted the land, had the accused persons
not revived the defunct society. Therefore, there was an attempt to cause
wrongful to such legible society and attempt to have wrongful gain by the
accused persons.
From the evidence on record, it is proved that the acts of the public
servants A1, A2, A3 and A6 cannot be said to be an acts of mere negligence or
dereliction of duty. They were actively involved with A4, so that illegal request of
A4 was met with success and they were helping one another with the common
object for the revival of the defunct society and for the allotment of land to such
society from the DDA. They were successful in achieving their object as defunct
society was revived and a letter was sent to the DDA for allotment of land.
Fortunately, the land was not allotted to the society. In these circumstances, they
have misused and abused their official position and it cannot be said to be a acts
of preparation as an attempt has already been made for the allotment of land from
DDA to defunct society. The acts of such public servants has amounted to
attempt to drive pecuniary advantage either for themselves or for A4.
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Accordingly, criminal misconduct was committed and the offence U/s 15 of PC Act
stands proved.
18. In view of the above discussions, the prosecution has proved its
case beyond reasonable doubt against the accused persons A1, A2, A3, A4
and A6 that they had entered into criminal conspiracy with the object to get the
land allotted from the DDA to the Shreyas CGHS and for that object documents
were forged, defunct society was revived, A4 was allowed to sign the documents
in different identities and such public servants has committed criminal misconduct
in order to attempt to obtain pecuniary advantages for themselves or for A4.
Accordingly, I hold the accused A1, A2, A3, A4 and A6 guilty and
convict them as under :
1.A1, A2, A3, A4 and A6 are held guilty and convicted U/s 120B red in conjunction with under section 15 read with section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, Section 419 IPC, 468 IPC and Section 471 IPC, Section 420 IPC read with Section 511 IPC.
2. A1, A2, A3 and A6 are held guilty for substantive offences under Section 15 read with section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
3. A4 is held guilty for substantive offences under Section 419 IPC, 468 IPC and Section 471 IPC, Section 420 IPC read with Section 511 IPC.
However, A5 and A7 are hereby acquitted of all the charges levelled against them. Their personal bonds are cancelled and surety discharged.
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In terms of Section 437A Cr.P.C. A5 and A7 are directed to furnish their personal bond in the sum of Rs. 25,000/ each with one surety in the like amount on or before 21.09.2015 for a period of six months.
Announced in the open court (Rajneesh Kumar Gupta) today i.e. on 16.09.15 Special Judge CBI02 (PC Act) (North West) , Rohini Courts, Delhi.
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