Delhi District Court
The Case Of The Cbi vs R K Srivastava And Others Page 2/3 on 23 August, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 124/11
RC No.9(S)/2006/CBI/SCR/III/MDMA/New Delhi
(Indian Duplicator Company CGHS)
CBI
Versus
1.R K Srivastava S/o Late Sh. G S Srivastava
2. Padam Dutt Sharma S/o Late Sh. J D Sharma
3. B P Mahaur S/o Late Sh. Ved Ram Mahaur
4. S D Sharma S/o Sh.Shri Bhagwan Sharma
5. Ashok Kumar Handa S/o Sh. C L Handa
6. Sushil Prakash Saxena S/o Sh. Raj Bahadur Saxena
7. Ashok Kumar Johri S/o Late Sh. Mahi Lal Johari
8. Bachcha Narayan Singh S/o Late Sh. Ramdhari Singh
9. Jagdish Beniwal S/o Late Sh. Chhotu Ram
10. Attar Singh Rana S/o Sh. Chander Bhan Rana .....Accused Persons ORDER ON CHARGE:
1. The case of the CBI, in brief, is that Indian Duplicator Company Cooperative Group Housing Society Ltd.
(in short 'IDC CGHS') was registered with Registrar Cooperative Societies (in short 'RCS') on 22.12.83 vide registration No. 1102 (GH) with 66 founder members. In the CBI Vs. R K Srivastava and others Page 1/31 (Indian Duplicator Company CGHS) year 1983 a large number of societies were registered with RCS and DDA could not acquire and develop the land to the said registered societies hence the turn for allotment of land to this society could not come even after several years after its registration. Due to this reason, the society members lost their interest in the day to day affairs of the society and did not fulfill statutory requirements. Accordingly, winding up order dated 31.03.1992 of the IDC CGHS was passed by RCS, Delhi. Investigation revealed that during the period from 1992 till June 1999 the society remained defunct and non functional.
2. Investigation further revealed that on 14.07.99 a note was put up suggesting to appoint Sh. R S Gupta, Grade III as liquidator in this case which was approved by the then Deputy RCS on 14.07.99 and finally vide order dated 15.03.2000 Sh. R S Gupta was appointed as liquidator with the directions to complete the liquidation proceedings within three months but he neither liquidated the society nor submitted his report despite repeated reminders to him. In the meantime, an anonymous request for revival of the IDC CGHS was received on 01.03.2000 in the RCS office. This request was neither having the name of the Secretary nor it was annexed with any GBM proceeding showing the applicant to be elected as Secretary of the society. However, this anonymous request was CBI Vs. R K Srivastava and others Page 2/31 (Indian Duplicator Company CGHS) dishonestly and fraudulently entertained by the then AR accused B P Mahaur in criminal conspiracy with certain private persons/RCS officers/officials severally or jointly with ulterior motives and he gave the same to accused A K Handa for processing the same in the concerned file of IDC CGHS without verifying the bonafide of the applicant. In pursuance of the said criminal conspiracy accused A K Handa put up the said revival request mentioning the inactions committed by Sh. R S Gupta. However, accused B P Mahaur again called the dealing hand on 17.4.2000 and directed him to put up the file of IDC CGHS for its revival in absence of liquidator's report.
3. Investigation further revealed that accused B P Mahaur by abusing his official position suddenly entertained a false/fake inspection report dated 13.04.2000 duly signed by accused S D Sharma knowing it to be false showing to have conducted the inspection of the society and marked the same to the dealing hand for processing further for revival of the society. Along with the false inspection report of accused S D Sharma, some other papers showing false GBM proceedings, a list showing enrollment of 120 fake members and other day to day activities of the society were also enclosed. Accused S D Sharma, Inspector was not authorised to conduct inspection of the society. Further, there was no report of liquidation CBI Vs. R K Srivastava and others Page 3/31 (Indian Duplicator Company CGHS) proceedings of the liquidator.
4. Investigation further revealed that in furtherance of said criminal conspiracy accused P D Sharma, Deputy RCS initially raised a query about non availability of liquidator's report but later on skipped over the relevant matter and and remarked about the availability of inspection report dated 13.04.2000 of accused S D Sharma without checking whether there was any requirement of such report and also whether there was any approval/appointment of accused S D Sharma to be deputed for conducting such inspection or whether any such inspection was really carried out by him. Accused P D Sharma also did not verify about the genuineness of the false report submitted under the signatures of accused S D Sharma and about the genuineness of the list of 120 fake members submitted by the society for its revival.
5. Investigation further revealed that thereafter matter for revival of the IDC CGHS was put up to accused R K Srivastava, the then RCS who simply remarked that before considering the proposal of the society, the President and Secretary of the society should be asked to file an affidavit to the effect that the society shall comply with all the statutory obligations in future. A letter dated 26.04.2000 was shown to have been sent in this regard to them and accordingly, the CBI Vs. R K Srivastava and others Page 4/31 (Indian Duplicator Company CGHS) affidavit was also filed on the same day as they were already knowing the decision of the RCS and were also waiting in the office of RCS itself for filing such an affidavit. None of the officers/officials of the RCS office dealing in the affairs of the society ever bothered to verify as to how and who had elected the said persons as Secretary/President of the society who filed the said affidavit even when the society was already under liquidation since last many years. Accused R K Srivastava, after obtaining the aforesaid affidavit approved the revival of the society on 01.05.2000 without any verification and without holding any legal proceedings.
6. Investigation further revealed that relevant record of the society came into possession of accused S P Saxena having links in the RCS office. Accused S P Saxena got prepared the fake/false record of the society by showing enrollments in the names of his friends, relatives and other known persons and also showed fake elections in the society by showing his friend/relative accused A K Johri as President and his wife Smt. Madhu Saxena as VicePresident. Accused S P Saxena got prepared a fake freeze list of 120 fake members of the society for getting it forwarded to DDA through RCS officials for allotment of land to the society on its revival. He also managed to get the forged signatures of many of such CBI Vs. R K Srivastava and others Page 5/31 (Indian Duplicator Company CGHS) fake/false members on the relevant documents without their consent/knowledge at the time of revival of the society and, thereafter, at the time of its illegal selling to accused A S Rana, a builder/contractor. Investigation established that accused A S Rana took over the control of the said society from accused S P Saxena through his friends/employee accused A K Johri, the President of the society.
7. Investigation further revealed that many oral and written complaints from a number of founder members of the society were received in the RCS office alleging that the management of their society was ineffective for the past several years and that the GBM of the society had not been conducted for the past so many years etc but no action for cancellation of revival of the society was purposed to be taken. The copies of the abovesaid complaints were also sent by the complainants to the DDA and the same were forwarded by DDA to RCS for seeking advice but deliberately no action in the matter was taken or intimated by the RCS to DDA also. Dealing hand suggested that DDA may be advised to keep the allotment of land to the society in abeyance till a decision in the matter was taken after an enquiry into the matter but no decision regarding writing a letter to DDA for keeping the allotment of land in abeyance was taken. However, on 19.06.2002 it was approved CBI Vs. R K Srivastava and others Page 6/31 (Indian Duplicator Company CGHS) to get a physical verification done regarding the functioning address of the society by deputing the area inspector. Area inspector conducted physical verification by visiting registered address of the society and submitted his report dated 10.10.02 stating that the society had shifted its registered address from A1/15, Hastsal Road, Uttam Nagar, New Delhi to A103 Som Apartment, Sector6, Plot No. 24, Dwarka, New Delhi which the residential address of accused B N Singh, the President of the society. It revealed that area inspector while conducting physical verification regarding the functional address of the society i.e. Dwarka met accused Jagdish Beniwal, President and accused B N Singh, Secretary of the society. Finally, the false/fake record of the society regarding new enrollments, resignations and approval of list of 120 fake members as freeze list was got approved by accused Jagdeesh Beniwal and B N Singh duly verified by them under their signatures. After completing investigation, charge sheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code 1860 (IPC) and Prevention of Corruption Act 1988 (PC Act).
8. I have heard Ld. PP for CBI;
Sh. R P Shukla, Ld. Counsel for accused R K Srivastav (A1); Sh. Ajay Burman, Ld. Counsel for accused P D Sharma (A2); CBI Vs. R K Srivastava and others Page 7/31 (Indian Duplicator Company CGHS) Sh. H P Aditya, Ld. Counsels for accused Ashok Kumar Handa (A5);
Sh. Abhishek Prasad, Ld. Counsel for accused S P Saxena A6);
Sh. Ajay Bhardwaj, Ld. Counsel for accused Ashok Kumar Johri (A7);
Sh. V S Pawar, Ld. Counsel for accused B N Singh (A8) and Sh. Mohit Mathur, Ld. Counsel for accused Jagdish Beniwal (A9) and accused A S Rana (A10).
I have also gone through the written submissions filed on behalf of A2 P D Sharma, A3 B P Mahaur and A5 Ashok Kumar Handa.
9. Sh. R P Shukla, Ld. Counsel for A1 R K Srivastava contended that Sh. R S Gupta was appointed as liquidator of the society on 15.03.2000. Sh. R S Gupta has not been made a prosecution witness in this case as it was he only who could have thrown light on the issue as to why liquidation proceedings were not conducted by him. Ld. Counsel has drawn the attention of this court towards the notings in file D4. According to him, documents are checked and verified at zonal level. There is presumption under the DCS Act and DCS Rules that the documents produced by the society are genuine. It cannot be presumed that A1 conspired with lower staff in the CBI Vs. R K Srivastava and others Page 8/31 (Indian Duplicator Company CGHS) revival of the society in the absence of prima facie evidence on record. Ld. Counsel contended that A1 is liable to be discharged in this case.
10. Sh Ajay Burman, Ld. Counsel for accused P D Sharma (A2) contended that the charge against the accused is that he first enquired about the liquidation report and subsequently skipped over its requirement which shows his guilty mind. According to Ld. Counsel, liquidator's report has no relevance in view of the provisions of Rule 105 of DCS Rules, 1973 as winding up order was seven years old and was never extended and, thus, the society was alive for all the time. In such circumstances, the Inspector's report was the only base to proceed further. The other charge against A3 is that he did not check whether there was any requirement of inspection by S D Sharma, Inspector. According to Ld. Counsel, as per Rule 5 of DCS Rules, the inspection and verification work is absolutely under the power of Assistant Registrar and, as such, A3 could not question it without any ground. At the time of revival, the genuineness of members is neither verified nor it can be verified as it is generally the list of promoters members which is submitted by the society to the RCS office to freeze the strength of its members. The verification of the members is actually done at the time of sending the list to DDA for allotment of land. CBI Vs. R K Srivastava and others Page 9/31 (Indian Duplicator Company CGHS) Lastly, it is contended that applicant being a public servant is protected u/s 197 Cr.PC and, therefore, charges are liable to be dropped against him. There is nothing in the chargesheet to prove that A2 had connived with any of the office bearers of the society or the forgery was committed in his office. On these grounds, Ld. Counsel prayed for discharge of A2.
11. On behalf of accused B P Mahaur (A3) it is submitted that A3 discharged his public duties bone fidely. CBI made a search at his residence but nothing was recovered. It was not the duty of A3 to conduct personal verification of the members of the society or their affidavits. Before his joining as AR in the office of RCS, Sh. M D Sharma had processed revival application of the society on 24.03.2000. The proposal of A5 was placed by him before accused P D Sharma, D R who analysed the record of the society including the freeze list of 120 members. Accused P D Sharma too requested for the revival of the society which finds mention at page No. 23/N/MR
286. According to A3, he has no role as AR in the revival of the society except forwarding the file to Deputy Registrar for consideration and, as such, there is nothing on record against him and he is liable to be discharged in this case.
12. Sh. H P Aditya, Ld. Counsel for accused Ashok Kumar Handa (A5) contended that A5 worked as Dealing CBI Vs. R K Srivastava and others Page 10/31 (Indian Duplicator Company CGHS) Assistant in the office of RCS concerning the matter of Indian Duplicator Company CGHS from 21.03.2000 to 11.05.2000 as his first noting is dated 21.03.2000 and the last noting is dated 11.05.2000. According to him, the only allegations during this period have to be considered by this court and beyond this period A5 has no role at all concerning the present society. No prosecution witness has stated a single word against A5 in his statement recorded u/s 161 Cr.PC. No incriminating material is available in the entire judicial record against A5. There is no material suggesting that A5 was having any kind of nexus, intimacy, meeting of minds or any kind of relationship with any accused other than his presence in the office with RCS officials and, as such, no case of criminal conspiracy can be said to be made out against him. There is no allegation of bribe or any kind of pecuniary advantage by anybody to A5 and, thus, Sections 13 (1) (d) r/w Section 13 (2) of P C Act are not attracted against A5. There is no allegation of any kind of forgery or cheating or use of forged documents by A5. The notings in the file were made by A5 in the normal processing of file under the directions of senior officers and in good faith considering of available documents and inspection reports as correct and genuine and, as such, nothing illegal has been done by A5. Ld. Counsel has drawn the attention of this court CBI Vs. R K Srivastava and others Page 11/31 (Indian Duplicator Company CGHS) towards Rule 41 DCS Rules and Sections 93 (3) and Section 95 of DCS Act. In support of his contentions, Ld. Counsel has relied upon judgments 'Shreekantiah Ramayya Vs. State of Bombay', AIR 1955 S.C. 287; 'Parkash Singh Badal Vs. State of Punjab', 2007 (1) JCC 236; 'Shreya Jha Vs. CBI', 2007 (3) JCC 2318; 'Damodar Vs. State of Rajasthan', 2003 (3) JCC 1567; 'State of UP Vs. Dr Sanjay Singh', 1994 SCC (Cri) 1701; 'K.R. Purushothaman Vs. State of Kerala', (2005) 12 SCC 631; 'State of UP Vs. R KSrivastava', AIR 1989 SC 2222; 'Anil Kumar Bose Vs. State of Bihar', 1974 SCC (Cri) 652; 'Century Spinning Vs. The State of Maharashtra', 1972 Cri.L.J. 329; 'Union of India Vs. Prafulla Kumar Samal', AIR 1979 SC 366; 'Satish Mehra Vs. Delhi Administration', 1996 JCC 507, 'Dilawar Balu Kurane Vs. State of Maharashtra', 2002 SCC (Cri) 310; 'A Subair Vs. State of Kerala', (2009) 6 SCC 587 and order on charge dated 18.4.2012 passed by this court in 'CBI Vs. Yogiraj and others' (Sahayadri CGHS).
13. Sh. Abhishek Prasad, Ld. Counsel for A6 after some arguments conceded that prima facie case is made out against A6. However, he contended that only S. 420 IPC is attracted against A6.
14. Sh.Ajay Bhardwaj, Ld. Counsel for A 7 contended CBI Vs. R K Srivastava and others Page 12/31 (Indian Duplicator Company CGHS) that A7 was merely a part time steno of A6. There is no material against him to hold him guilty for the alleged offences. He never acted as Secretary of the society. According to him, there is nothing against A7 to connect him with the alleged offences.
15. Sh. V S Panwar, Ld. Counsel for A8 B N Singh contended that accused B N Singh became a member of the society in question on 07.04.2001. He was elected as President in 2002 and he is still the treasurer of the society. There is no material against him of having committed any forgery. He is not a public servant. Ingredients of Section 420 IPC are not attracted against him. For the charge of conspiracy also, he cannot be prosecuted in the facts and circumstances of the present case as not a single fake person was made a member of the society after he was elected as President of the society. According to him, A8 is liable to be discharged in this case.
16. Sh. Mohit Mathur, Ld. Counsel for A9 and A10 contended that in the chargesheet the period of conspiracy has been specifically stated at page 16 and, thus, anything beyond the said period of 19992000 cannot be considered by the court. Officials working in the office of RCS have been made accused and no official from DDA is an accused in this case. Before the CBI Vs. R K Srivastava and others Page 13/31 (Indian Duplicator Company CGHS) allotment of land by the DDA, the names of A9 and A10 never figured in the charge sheet. As regards A9, Ld. Counsel contended that A9 as Secretary merely forwarded the freeze list to DDA. There is no allegation against him that he created the record. He was just a honorary Secretary and was not paid any salary. He was one amongst the members and whatever forge/fake documents were prepared, they were prepared by PW199 Ashwani Sharma and PW200 Ashutosh Pant. A9 merely acted as a Post Office to transmit the record to DDA. There is nothing on record that A9 was having any knowledge of the forged documents. On the basis of the record available to him, he applied for NOC. Ld. Counsel further contended that A9 applied for reduction of the strength of the flats from 120 to
107. Had there been any malafide intention on his part, he would not have asked for the reduction in the number of flats. Merely because he signed as Secretary of the society, it cannot be said that he was in conspiracy with other accused persons. Ld. Counsel further contended that A9 became a member on 07.04.2001 and he resigned on 21.10.2003 because of financial constraints and during his tenure as Secretary of the society there is nothing against him except for the fact that he forwarded the freeze list to the DDA; applied for NOC and for reduction of the strength of flats. According to him, A9 is liable CBI Vs. R K Srivastava and others Page 14/31 (Indian Duplicator Company CGHS) to be discharged in this case.
17. So far as A10 is concerned, Sh. Mohit Mathur, Ld. Counsel has drawn the attention of this court towards the statements of PWs 15 to 21, 24 & 43 on one hand and of PW11 & PW27 on other hand to show that there is some confusion in the names of D S Rana and A S Rana as IO in the statements of PWs 15 to 21, 24 & 43 has wrongly mentioned the name of A S Rana instead of D S Rana. Ld. Counsel further contended that there is nothing on record of the alleged illegal selling of the society. Members were made after giving advertisements in the newspaper for the vacancies created on account of resignation of the members. A10 was merely a contractor of the society. He was neither the member nor its office bearer. He had no role to play in the affairs of the society except for the construction of flats for which a contract was awarded to him by the society. Lastly, Ld. Counsel contended that there are contradictions in the statements of PWs regarding the role of A10 and it is the settled law that if two views are possible, the view favourable to the accused be adopted at the time of framing of the charge.
18. On the other hand, Ld. PP for CBI contended that prima facie case is made out against all the accused persons.
19. It is contended that if illegal investigation is brought to the notice of the trial court at the initial stage, then CBI Vs. R K Srivastava and others Page 15/31 (Indian Duplicator Company CGHS) the court ought not to proceed with the trial but should direct re investigation in order to cure the defect in the investigation. Accused have pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
20. The contention that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.09.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
21. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of CBI Vs. R K Srivastava and others Page 16/31 (Indian Duplicator Company CGHS) offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences, as notified, are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
22. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged CBI Vs. R K Srivastava and others Page 17/31 (Indian Duplicator Company CGHS) to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments 'State of Maharashtra Vs. Laljit Rajshi Shah & Ors'. AIR 2000 SC 937; and 'Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors.' 2007(5) SCALE 366.
23. On the other hand, it is contended by Ld. PP for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
24. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in CBI Vs. R K Srivastava and others Page 18/31 (Indian Duplicator Company CGHS) DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
25. According to accused R K Srivastava, he was discharging his quasi judicial functions and, as such, he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application.
26. The facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused RCS officials followed the procedure with a view to give colour to their acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
27. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed CBI Vs. R K Srivastava and others Page 19/31 (Indian Duplicator Company CGHS) order dated 02.08.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.
28. These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
29. Reliance has been placed on the order on charge CBI Vs. R K Srivastava and others Page 20/31 (Indian Duplicator Company CGHS) dated 18.04.2012 passed by this court in case titled as 'CBI Vs. Yogiraj and others'. The reliance placed on the said order is misplaced as the said order was passed in the facts and circumstances of that case as no prima facie evidence of accused having entered into conspiracy was found and in those circumstances it was held that sanction u/s 197 Cr.PC was required for prosecution. However, the present case stands on a different footing. The acts of the public servants in the present case do not require sanction u/s 197 Cr.PC. Even if there is no sanction under section 197 Cr.PC that does not vitiate the proceedings as the offences of criminal conspiracy punishable under section 120B IPC and also under section 13 (1) (d) of P C Act cannot be said to be of the nature mentioned in Section 197 Cr.PC. It is not the part of the duty of a public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 Cr.PC is, therefore, no bar under the facts and circumstances of the case. Though not referred to or relied upon, for taking this view I am supported with the judgment dated 11.04.2012 passed by Delhi High Court speaking through by Hon'ble Mr Justice M L Mehta in W.P (CRL.) No. 262/2010 titled as "C.K. Jaffer Sharief Vs. The State". Accused No. 1 to 5 are public servants working in the office of RCS. There is sufficient oral and documentary evidence against them for framing of charge.
CBI Vs. R K Srivastava and others Page 21/31
(Indian Duplicator Company CGHS)
30. As far as accused no. 6 is concerned Sh. Abhishek Prasad has conceded that prima facie case u/s 420 IPC is made out against A6. From the perusal of statements of PWs 199 & PW200 I am of the opinion that prima facie case is made out against A6.
31. As regards accused no. 7, there is oral evidence against him as PW15 to PW19, PW21 to PW24 and others have stated against him.
32. As regards accused no. 8, PW197 is a material witness. As per PW197, he was merely a member of IDC CGHS and was never elected as Secretary of the society. He was informed during 2003 by accused B N Singh that he has been made Secretary in the society and his signatures were obtained on different occasions by accused B N Singh. He neither enrolled any member in the society nor placed/accepted any resignation of any member. He further stated that he does not know any member of the society except accused B N Singh. The relevant portion of his statement is reproduced herein below :
"In the capacity of Secretary my signatures on the following documents of IDC CGHS society were obtained by Sh. B.N. Singh and I do not know the contents/meanings of the documents:
1. Letter dated 2.4.2004 (MR 294 page No.35) bearing my signature regarding enrolment/resignation addressed to Asstt. Registrar (CND) O/O RCS, New Delhi. Apart from this, letters placed at page Nos.37, 38, 39, 40, 44. 45, 46, CBI Vs. R K Srivastava and others Page 22/31 (Indian Duplicator Company CGHS) 47, 50, 51, 52, 54, 55, 56, 57, 58, 60, 61 and 62 also bears my signature.
2. Letters (MR 285) bearing my signatures at page No.5, 6, 7, 13, 15, 16, 17, 20 to 75 regarding resignations / enrolment / approval / allotment of flats/notification of vacancies etc.
3. Letters to RCS (MR 280) bearing my signatures at page No.13, 17 to 39 regarding approval of Enrolment/resignation, notice, forwarding of names of members of Managing Committee after election etc.
4. My undertaking dated 29.3.2006 certifying the correctness of enrolments/resignations/proof of payments and genuinesson (sick genuineness) of cash payments to the members on 10 Rupees Stamp paper (MR 281) bearing my signature at page No.389. Apart from this number of my signatures have been obtained by Sh. B.N. Singh in this file. Though my signatures have been obtained on number of papers but I have not enrolled any member, not placed/accepted any resignation nor paid/refunded any amount to any member of the society. I also do not understand the contents of the undertaking. I fact, I do not know any one except above mentioned persons.
5. Audit Report 20022003 (MR 303) regarding brief summary of the society, Balance Sheet, income and expenditure account, Receipt and payment account, list of members with their Ledger Balance, list of Sundry Creditors etc. bearing my signatures at pages No.2, 11, 12, 14 & 17 to 23. I do not understand Audit and no audit was conducted in my presence by anyone. My signatures on this Audit Report were obtained by Sh. B.N. Singh at later stage.
6. Audit Report 20032004 (MR 304) having my signature at pages No.2, 13, 14, 16, 20, 23, 25 to 30. I do not understand the contents of this report and no Audit was conducted in my presence and I also do not know R.K. Khattar & Co. Chartered Accountants. My signatures on this Audit Report were obtained by Sh. B.N. Singh at later stage.CBI Vs. R K Srivastava and others Page 23/31
(Indian Duplicator Company CGHS)
7. Audit Report 20042005 (MR 305) containing my signatures at pages No.2, 11, 12, 14, 19 to 29 and 31. I do not understand the contents of this report and no Audit was conducted in my presence and I also do not know DSPH & Associates, Chartered Accountants, New Delhi. My signatures on this Audit Report were obtained by Sh. B.N. Singh at later stage.
8. Letters dated 20.6.05 (MR 272) page No.204 to 206 addressed to Manager Syndicate Bank, letters dated 19.5.05 page No.200 and 187 addressed to DDA regarding execution of Prepetual Lease Deed in respect of the above society have been issued under my signature. I do not understand the contents of these letters."
(Emphasis supplied)
33. The GEQD opinion vide report No. CX281/07 dated 25.01.2008 is also against accused B N Singh. In my opinion there is sufficient evidence against accused no. 8 for framing of charge against him.
34. In Judgment 'Vijyan @ Rajan v. State of Kerela', AIR 1999 Supreme Court 1086, it was held by the Apex Court as under:
"To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy."
35. In Judgment 'John Pandian Vs. State', 2011 (1) JCC, 193 it was held by the Apex Court as under:
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(Indian Duplicator Company CGHS) "It is significant at this stage to note the observations in V.C. Shukla (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, Pasayat, J. in Esher Singh v. State of A.P., 2004(11) SCC 585 observed that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy."
36. The Apex court in case 'State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru' 2005(3) JCC 1404 held that to constitute the offence of conspiracy, mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for doing any illegal act or an act by CBI Vs. R K Srivastava and others Page 25/31 (Indian Duplicator Company CGHS) illegal means . From the facts in hand, some act more than mere knowledge should be attributable to the alleged accused.
37. In 'State of Maharashtra Vs. Som Nath Thapa', 1996 Crl.L.J 2448', charge against accused Abu was that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds. It was contended on behalf of the state that the financial assistance by accused Abu would attract the mischief of Section 3(3) of TADA. Apex court discharged accused Abu and observed as under:
"We may state that as framing of charge affects a person's liberty substantially, as pointed out in Muniswamy's case (AIR 1977 SC 1489) (supra), the materials on record must satisfy the mind of the Court framing the charge that the commission of offence by the accused in question was probable. We do not find a conclusion can reasonably be drawn only from the above noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being no material to frame individual charge under Section 3(3) of TADA, we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets."
38. It is pertinent to mention here that PW197 who is a material witness has not stated anything against A9 and A10. Had there been involvement of A9 and A10, PW197 CBI Vs. R K Srivastava and others Page 26/31 (Indian Duplicator Company CGHS) would have certainly named them also in his statement dated 07.03.2007 recorded by CBI u/s 161 Cr.PC. As regards accused no. 9, he became member on 07.04.2001 and he resigned on 21.10.2003. The only evidence against him is that he merely forwarded the freeze list to DDA; applied for NOC and reduction of strength of flats within the permissible limit of 15%. There is nothing on record that A9 forged the documents or the forged documents were prepared at his instance for revival of the society. From the statements of PW199 and PW200, it is crystal clear that fake/forged documents were prepared by them at the behest of A6. A9 applied for reduction of strength of flats from 120 to 107 which shows that there was no malafide intention on his part. Had there been any malafide intention on the part of A9, he would not have asked for reduction in the number of flats.
39. So far as A10 is concerned, Ld. Counsel has vehemently contended that there is some confusion in the names of D S Rana and A S Rana as IO in the statements of PWs 15 to 21, 24 & 43 has wrongly mentioned the name of A S Rana instead of D S Rana. I agree with the submission of Ld. Counsel in this regard. The name of accused A S Rana mentioned in the statements of above referred witnesses does not go with the story of the prosecution as well as with the CBI Vs. R K Srivastava and others Page 27/31 (Indian Duplicator Company CGHS) statements of PWs 11 & 27. It appears that the name of accused A S Rana has been inadvertently mentioned in these statements instead of D S Rana (since expired). There is no GEQD report/opinion against A10. There is nothing on record that A10 forged the documents or the documents were forged at his instance or he used forged documents as genuine for the revival of IDC CGHS. Thus, ingredients of sections 420/468/471 IPC are not attracted against him. Initially when the FIR was registered, PW72 and PW74 were made accused in the present case. During investigation, they were made witnesses by the CBI. PW52 and PW53 in their statements under Sections 161 Cr.PC have stated that while giving order for supply of some hardware material, they had given their address to Shri V N Aggarwal (PW74) and someone from that shop might have utilized the said information for showing them a fake member in CGHS societies. Accused A S Rana was neither the member nor the office bearer of IDC CGHS. He was given the contract for construction work by the IDC CGHS. Thus, A10 had no role to play in the affairs of the society except for the construction of flats for which the contract was awarded to him by the society.
40. Merely because the contract for construction of flat was awarded to A10 or on the basis of bald statements CBI Vs. R K Srivastava and others Page 28/31 (Indian Duplicator Company CGHS) made by PWs 68, 69 and 70 that A9 & A10 might have utilised their names for showing fake membership, no charge of conspiracy can be framed against them. It is the settled law that presumption, howsoever strong, cannot take place of proof. For offence of conspiracy some kind of physical manifestation of agreement is required to be established which the prosecution has failed to establish. There is no connecting link that would warrant an inference that A9 and A10 were acting in criminal conspiracy with other accused. The evidence on record is too scanty and meagre to bring in application of Section 120B IPC against them. There is no sufficient evidence on record to connect A9 and A10 with the alleged offences,
41. Our Apex Court in 'Union of India v. Prafulla Kumar Samal', (1979) 3 SCC 4, has held that the Court has power to sift and weigh the evidence - although for the limited purpose of finding out whether a prima facie case against the accused has been made out or not. In 'Prafulla' (supra), it has also been held that where materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial. By and large, however, if two views are equally possible and the judge is CBI Vs. R K Srivastava and others Page 29/31 (Indian Duplicator Company CGHS) satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the facts and circumstances of the present case, this court is of the view that the case has emerged in favour of the accused Nos. 9 and 10 rather than in favour of the prosecution and, consequently, accused Nos. 9 and 10 are discharged.
42. The judgments relied upon by accused are not applicable to the facts of the present case.
43. CBI has done a commendable job in the present case by examining as many as 200 witnesses and the statements of witnesses run in about 200 pages. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons except A9 and A10 of having entered into a criminal conspiracy to cheat the offices of RCS and DDA.
44. In view of the above discussion, I am of the opinion that primafacie case is made out against accused A1 R K Srivastava, A2 Padam Dutt Sharma, A3 B P Mahaur, A4 S D Sharma, A5 Ashok Kumar Handa, A6 Sushil Prakash Saxena, A7 Ashok Kumar Johri and A8 Bachcha Narayan Singh for committing offences U/s 120B IPC read with Ss. 420, 467, 468, 471 IPC and Sec. 13 (2) r/w S. 13 (1)
(d) of P.C. Act, 1988 and substantive offences thereof.
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(Indian Duplicator Company CGHS) Announced in open court (PRAVEEN KUMAR) today on 23.8.2012. Special Judge, PC Act, CBIIII, Rohini Courts, Delhi.
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