Delhi District Court
Cooperative Group Housing Ltd. vs . Rcs In Civil Writ Petition No. on 27 September, 2016
State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 61/2016 (Old No. 65/2008)
CNR No. : DLNW01-000080-2007
FIR No. : RC-2(E)/2006/EOU-VII/CBI,
New Delhi
U/Sec: 120B IPC r/w
420/467/468/471 IPC
13(2) r/w 13 (1) (d) of PC Act 1988
substantive offences thereto
Police Station: CBI/EOU-VII/CBI/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
CBI No. 61/2016 (Old No. 65/2008) Page 1 of 105
State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
VERSUS
1. Sumer Chand Gupta
S/o Sh. M.L. Gupta
R/o C-3/6,
Prashant Vihar,
New Delhi.
..........Accused No. 1
2. Yogi Raj
S/o Sh. Girdhari Lal
R/o AP-77, Shalimar Bagh
Delhi-110088.
..........Accused No. 2
3. Faiz Mohd.
S/o Late Gulam Mohd.
R/o 4794, Hatakidara
Pahari Dhiraj,
Delhi-110006.
............Accused No. 3
4. Narayan Diwakar
S/o Late Chhatti Lal
R/o G-30, Masjid Moth,
Greater Kailash-II,
New Delhi
..........Accused No. 4
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State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
5. Anna Wankhede
S/o Sh. Arjun G. Wankhede
R/o 148/EA-2, Phase-III,
Mayur Vihar
New Delhi.
..........Accused No. 5
6. Sri Chand
S/o Hari Singh
R/o 274-A, Pocket-C,
Mayur Vihar, Phase-II,
Delhi-110091
..........Accused No. 6
7. Niranjan Singh
S/o Late Sh. Babu Lal
R/o 309, Karkardooma,
Govt. Flats,
Delhi.
..........Accused No. 7
8. Surender Kumar Garg
S/o Late Sh. Yuvraj Singh
R/o K.P.-17, Pitampura,
Delhi-110088
(Discharged vide order dated 14.05.2013)
..........Accused No. 8
CBI No. 61/2016 (Old No. 65/2008) Page 3 of 105
State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
9. Narender Singh Khatri
S/o Late Sh. Lal Singh Khatri,
R/o 89-B, Shakti Khand-I,
Indira Puram,
Ghaziabad
..........Accused No. 9
10. R.N. Yadav
S/o Late Sh. Chandgi Ram
R/o Village & PO Khera,
Electric Pole No. 8,
New Delhi-110088
(Proceeding abated due to death vide order dated
03.03.2014)
..........Accused No. 10
Date of Institution : 16.12.2008
Date of judgement reserved on : 31.08.2016
Date of pronouncement of judgement : 14.09.2016
Appearance: Sh. Prabhat Kumar, Ld. Senior Public
Prosecutor for CBI
Sh. S.K. Bhatnagar, Advocate, counsel for
accused Sumer Chand Gupta (A1), Faiz
Mohd. (A3) and Niranjan Singh (A7)
Sh. Abhishek Prasad, Advocate, counsel for
accused Yogi Raj (A2), Narayan Diwakar (A4),
Anna Wankhede (A5) and Srichand (A6)
Sh. R.P. Shukla, Advocate, counsel for
Narender Singh Khatri (A9)
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State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
J U D G E M E N T :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That pursuant to order dated August 02, 2005 passed by the High Court of Delhi in Civil Writ Petition No. 10066/2004, a preliminary inquiry was registered on August 08, 2005 and thereafter a regular case was registered on January 05, 2006 under Section 120B read with Section 420/467/468/471 of Indian Penal Code (in short IPC) and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 (in short PC Act) against accused Sumer Chand Gupta, Vijay Kumar Bansal, Ajay Narayan Gupta (all private persons), Yogi Raj, the then Assistant Registrar of Cooperative Societies, Faiz Mohd., Grade-II Inspector and Narayan Diwakar, the then RCS Delhi and others.
(ii) It was alleged that Martand CGHS was registered on June 10, 1970 vide Registration No. 10 (H) having its registered office at 25, Green Park. However later on, the Society shifted its registered office to 1/2 (8), Village Malik Pur, Model Town.
(iii) It was alleged that the said Society went under liquidation vide order dated January 03, 1979 as the Society failed to achieve its objectives and also failed to comply with the provisions of Delhi Cooperative Societies Act, 1972 (in short DCS Act). Thereafter, CBI No. 61/2016 (Old No. 65/2008) Page 5 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) the Society was wound up by the Registrar of Cooperative Societies (in short RCS) under Section 63 of DCS Act.
(iv) It was alleged that subsequently after a gap of 24 years, one person named Chaman Lal claiming himself to be Secretary of the Society moved an application before the RCS for revival of the said Society. The said application was processed by Niranjan Singh (in short A7) being the dealing assistant.
(v) It was alleged that Faiz Mohd. Grade-II Inspector (in short A3) was deputed to conduct inspection, who submitted his report on March 20, 2003 wherein he certified that the Society was found in existence at its registered office i.e. 1/2 (8), Village Malik Pur, Model Town.
(vi) It was alleged that public servants namely Faiz Mohd., Yogi Raj (in short A2) and Narayan Diwakar (in short A4) did not ascertain the reason for filing the revival application after a gap of 24 years. It was alleged that without ascertaining the reason of filing the said application, A2 recommended for revival of the Society, consequently, A4 ordered to revive the Society on April 04, 2003.
(vii) It was alleged that the list of 120 members was forwarded by A2 to the AR (Policy) for onward transmission to DDA for allotment of land in favour of the Society. However, they failed to ascertain the status of liquidation proceeding, which was required to be completed within a period between 1 to 3 years from the date of CBI No. 61/2016 (Old No. 65/2008) Page 6 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) liquidation. It was further alleged that the Society again changed its address to G-2/78, Sector-2, Rohini.
2. It was alleged that High Court of Delhi in case title Kavery CGHS v. Union of India & others (CWP No. 2885/90) vide order dated May 10, 1991 directed the DDA to maintain a seniority list of the CGHS on the basis of date of registration with the RCS and allot land to the eligible CGHS strictly as per the seniority list.
(i) It was alleged that in order to take the undue advantage of the said order, some unscrupulous builders in collusion with the officials of RCS started to revive the dormant societies which were registered during the period 1970s and 1980s and later on became defunct or liquidated/wound up by the office of RCS, New Delhi in terms of Section 63 of DCS Act, 1972.
(ii) It was alleged that since there was a provision in the DCS Act, 1972 to revive a wound up Society, builder Mafia in conspiracy with the officials of RCS, in order to grab land at reserve price from DDA, started taking steps to revive such societies on the basis of false/fake/manipulated records and affidavits.
3. It was alleged that Martand CGHS was started by a group of officers of Central Services Class-I with 11 promoter members and Society was registered on June 10, 1970. A sum of ` 11,100/- was deposited in the Delhi State Cooperative Bank in suspense account and same is reflected in the suspense ledger page CBI No. 61/2016 (Old No. 65/2008) Page 7 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) No. 221 of the bank.
(i) It was alleged that till date, no proper account of Martand CGHS could be opened in the Delhi State Cooperative Bank as the Society could not fulfil the basic requirements for opening of the account.
(ii) It was alleged that since the Society did not meet the requirements under DCS Act and Rules, a show-cause notice was served upon the Society, which was not responded by the Society and ultimately the Society was liquidated vide order dated January 03, 1979.
(iii) It was alleged that the Society was registered with 11 promoter members and in the first resolution it was mentioned that the Society belonged to All-India Service/Central Services Class-I. It was alleged that during investigation, it was revealed that the first page of bye-laws of the Society was changed in order to facilitate the revival of Society and to admit members from non-central services Class-I also.
4. It was alleged that accused Sumer Chand Gupta (in short A1) visited the office of Srichand (in short A6) in the beginning of 2003 and he hatched a criminal conspiracy with him to take over the defunct Society i.e. Martand CGHS and to revive the same with the help of A6 and his associates Anna Wankhede (in short A5) and officials of RCS.
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(i) It was further alleged that in pursuance of the above said conspiracy, A6 conspired with A2, A3, A4, A7 and N.S. Khatri (in short A9) to revive the Martand CGHS on the basis of forged documents such as membership application forms, resignation letters, proceeding registers, membership register, audit report and false election report.
(ii) It was further alleged that the affidavits submitted by MC members such as Madan Lal and Chaman Lal were found forged and seals/signatures of the Notary in the name of C.B. Arya appearing on their affidavits were also found forged and fabricated.
(iii) It was further alleged that the signatures of 11 promoter members were forged in the proceeding register by accused Anna Wankhede at the instruction of his co-accused Srichand. It was further alleged that accused Srichand instructed Sushil Kumar to incorporate the name of members of another Society i.e. Naval Technical Officers CGHS, accordingly, the name of members of the said Society were incorporated in Martand CGHS along with some fictitious/non existent persons.
5. It was further alleged that accused Srichand in connivance with accused Sumer Chand Gupta and Anna Wankhede moved an application in the name of Chaman Lal, President of Martand CGHS on March 06, 2003 before the RCS, New Delhi requesting to revive the Society under Section 63 (3) of DCS Act and approved the final list of members.
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(i) It was further alleged that on the said application, signature of Chaman Lal was signed by accused Anna Wankhede and same has been confirmed by the GEQD. It was further alleged that Chaman Lal was a fictitious/non existent person. It was further alleged that besides Chaman Lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudershan Kaur were also fictitious/non existent persons.
(ii) It was further alleged that accused Srichand in pursuance of criminal conspiracy with accused Anna Wankhede created false record of election of the Managing Committee, which was purportedly held in the GBM held on March 02, 2003 wherein Chaman Lal and Smt. Sudershan Kaur and Madan Lal were shown to be elected as President, Vice-President and Secretary respectively whereas Vinay Kumar and Anjana Kaul were shown to be elected as Treasurer and Executive Member of the Society respectively.
(iii) It was alleged that the application for revival of the Society dated March 06, 2003 was processed by A7 by putting up a note on March 10, 2003. The said note was signed by Yogi Raj and he recommended to appoint Faiz Mohd. under Section 54 of DCS Act to ascertain the factual position and to verify the record/documents of the Society. The said note was approved by A4 being the RCS on March 17, 2003.
(iv) It was alleged that accused Faiz Mohd in his inspection report dated March 20, 2003 certified that he visited the Society at its registered office i.e. 1/2 (8), Village Malik Pur, Model Town on March 18, 2003 and he met with Chaman Lal, President of CBI No. 61/2016 (Old No. 65/2008) Page 10 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) the Society. He further certified that Chaman Lal produced all the documents/relevant record of the Society and informed that there were 120 members in the Society, but the list had not been approved by the RCS till date. He also certified that the record including proceeding register were found in the safe custody of Chaman Lal. On receipt of the said report, Niranjan Singh, dealing assistant put up a detail note. The said note along with other notings and views of Yogi Raj (AR) were put up before A4 being the RCS on April 02, 2003, who finally approved the note on April 04, 2003.
(v) It was alleged that in order to get revival order, Srichand utilised the services of Ms. Rashmi Gulati, Advocate, who represented the Society before RCS. The vakalatnama signed by Chaman Lal was handed over to her by Srichand to enable Ms. Rashmi Gulati, Advocate to represent the Society. Accordingly, she appeared before RCS on March 25, 2003. It was alleged that Ms. Rashmi Gulati, Advocate also appeared before RCS on April 03, 2003. It was alleged that RCS directed to send the file in the concerned Zone for verification.
(vi) It was alleged that applications for enrolments of members were forged by A5. He also forged the resignation letters of the members and also made false entries in the proceeding register. It was alleged that the list of members of Martand CGHS also contained the name of persons who were not aware that they were members in the said Society and even also included the name of dead persons. The affidavits of such persons were submitted after forging their signatures.
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6. It was alleged that A4 vide his order dated April 04, 2003 revived the Society with immediate effect subject to condition that the pending audit be got completed within a period of two months. In addition to that, he also appointed Narender Singh Khatri (A9) as Election Officer to conduct election of the Management Committee.
(i) It was alleged that in pursuance of the conspiracy, Narender Singh Khatri submitted a false election report wherein he certified that Sh. Chaman Lal (Membership No. 116), Sh. Madan Lal (Membership No. 117) were elected as President and Vice-President of the Society and further certified that Sh. Vinay Kumar (Membership No. 120), Ms. Anjana Kaul (Membership No. 13) and Ms. Sudershan Kaur (Membership No. 109) were elected as members of the Management Committee. However, on investigation, it was revealed that all the above said persons were fictitious and non-existent.
7. It was alleged that Sh. Surender Gupta @ S.K. Garg of Vatika Constructions in pursuance of the above said conspiracy facilitated the revival of the said Society by giving the address i.e. 1/2 (8) Village Malik Pur, Model Town of his driver Mr. Rakesh Verma. He also instructed Mr. Rakesh Verma to hand over the correspondence/letter to Srichand, if received from RCS/DDA. It was further alleged that Srichand was closely associated with S.K. Garg.
8. It was further alleged that Srichand was also conspired with R.N. Yadav and pursuant to the conspiracy, R.N. Yadav submitted a false audit report.
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9. It was alleged that names of fictitious and non-existent persons such Chaman Lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudershan Kaur were purposely used as office bearers of the Society at the time of its revival by the accused Srichand and Sumer Chand Gupta so that once the Society is revived, it would facilitate them to take over the Society easily by Sumer Chand Gupta and would also enable him to insert the name of persons of his choice in the Management Committee, which he did.
(i) It was alleged that after the revival of the Society, Sumer Chand Gupta took over the charge of Society from Srichand by inserting the name of Vijay Kumar Bansal, A.N. Gupta, Shashi Gupta, Shweta Gupta and Satish Chand Sharma (all his close relatives) as new members-cum-office bearers of the Management Committee in place of earlier fictitious and non-existent persons namely, Chaman Lal, Madan Lal, Vinay Kumar, Anjana Kaul and Sudershan Kaur. In this regard, the proceedings were recorded by Anna Wankhede in the proceeding register on October 20, 2003. It was further alleged that Sumer Chand Gupta had signed as Vijay Kumar and A.N. Gupta in the proceeding register.
10. It was further alleged that a list of 120 members was forwarded to the DDA for allotment of land by Yogi Raj soon after the revival order was passed by A4.
11. It was further alleged that after revival of the Society, Sumer Chand Gupta allotted membership of the Society to his close relatives such as Vijay Kumar Bansal (his brother-in-law), Ajay CBI No. 61/2016 (Old No. 65/2008) Page 13 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Narayan (son-in-law), Shashi Gupta (wife), Shweta Gupta (daughter- in-law) and Satish Chand Sharma (his advocate). He also allotted the membership in the name of Surya Prasad Sharma, Mrs. Kamlesh and Mr. Narender. During investigation, it was revealed that Satish never applied for the membership of the Society.
(i) It was further alleged that Sumer Chand Gupta had filled up the affidavits and form-60 in the name of Shashi Gupta, Shweta Gupta, Vijay Kumar Bansal and Narender, Smt. Kamlesh, Surya Prasad Sharma and this fact has been confirmed by GEQD.
12. After completing investigation, CBI has filed challan against A1 to A10 alleging that A1 to A10 had committed the offence punishable under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with 13 (1) (d) of PC Act. Besides that it was also alleged that A1 and A5 had also committed the offence punishable under Section 420/511/468/471 IPC. It was also alleged that A2, A3, A4, A7, A9 and A10 are also liable for the offence punishable under Section 15 read with Section 13 (1) (d) of PC Act.
13. It was alleged that sanction under Section 19 of PC Act was also obtained qua public servants, namely; Yogi Raj, Niranjan Singh and Narender Singh Khatri. However, no sanction qua Narayan Diwakar, Faiz Mohd and R.N. Yadav had been obtained as they had already retired from their services.
14. Vide order dated May 14, 2013, learned Predecessor of this Court held that prima-facie a case is made out against accused CBI No. 61/2016 (Old No. 65/2008) Page 14 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) No. A1 to A7, A9 and A10 for the offence punishable under Section 120B IPC read with Section 420/468/471 Indian Penal Code (in short IPC) and Section 13 (2) read with Section 13 (1) (d) of PC Act and further held that prima-facie a case is also made out against A1, A5 and A6 for the offence punishable under Section 420 IPC read with Section 511 IPC, Section 468 IPC and under Section and Section 471 IPC read with Section 468 IPC. It was further held that prima-facie a case is also made out against A2, A4 and A7 for the offence punishable under Section 15 read with Section 13 (1) (d) of PC Act. It was further held that prima-facie a case is also made out against A3, A9 and A10 for the offence punishable under Section 15 read with Section 13 (1) (d) of PC Act, Section 468 IPC and 471 IPC read with Section 468 IPC.
(i) Vide order dated May 14, 2013, learned Predecessor of this Court discharged the accused Surender Kumar Garg from all the charges.
15. In pursuance of the order dated May 14, 2013, formal charges were framed against the accused persons on August 13, 2013 to which accused persons pleaded not guilty claimed trial.
16. In order to bring home the guilt of accused persons, CBI has examined as many as 42 witnesses. For the purpose of our discussion and convenience, all the witnesses have been classified in the following categories:-
CBI No. 61/2016 (Old No. 65/2008) Page 15 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Witnesses relating to false membership:-
PW2 Sh. Surender Singh
PW4 Sh. Balbir Singh Taneja
PW5 Sh. Hari Lal
PW7 Sh. Harbans
PW8 Sh. P. Rajagopalan
PW9 Sh. Satinder Pal Bhalla
PW10 Sh. Jagdish Chander
PW11 Sh. Daljit Singh
PW12 Sh. Satish Chand Sharma
PW13 Sh. Darshan Singh
PW14 Sh. D.K. Arora
PW15 Sh. Manohar Lal
PW16 Sh. M.P. Dutta
PW18 Smt. Geeta Bhatia
PW19 Sh. Thakur Singh Rawat
PW22 Smt. Shashi Sharma
PW27 Sh. A.N. Dudeja
Witnesses relating to the non-existent members/office
bearers/persons/addresses:-
PW21 Sh. Sharabjeet Bawa
PW23 Sh. Arvind Kumar
PW30 Sh. Chander Singh
PW33 Sh. Jitender Kumar
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State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) PW36 Ms. Sushma Sharma PW42 Sh. Bidhit Singh Witnesses relating to the affidavits/non judicial stamp papers:-
PW24 Sh. Chander Bhan Arya
PW26 Smt. Kulwant Kaur
Witnesses relating to accused Srichand:-
PW25 Sh. Sushil Kumar Sharma
PW37 Sh. Mohan Lal
Witnesses relating to accused Sumer Chand Gupta:-
PW28 Sh. Surya Prasad Sharma
PW34 Sh. Ajay Narayan Gupta
PW35 Sh. Narender Singh
PW38 Ms. Shweta Gupta
PW39 Ms. Shashi Gupta
RCS officials:-
PW20 Sh. Ashok Bakshi, the then Dy. Registrar
PW29 Sh. Virender Kumar Bansal, the then Asstt.
Registrar
PW31 Sh. Manmohan Singh, the then Reader to RCS
CBI No. 61/2016 (Old No. 65/2008) Page 17 of 105
State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Witnesses relating to sanction:-
PW1 Sh. Ramesh Narayan Swami, the then Chief
Secretary, Govt. of NCT of Delhi
PW3 Sh. Sunil Kumar Aggarwal, the then Conservator
of Forest, Govt. of NCT of Delhi
PW17 Sh. D.K. Mishra, the then Addl. Secretary,
Directorate of Vigilance, Govt. of NCT of Delhi Witnesses relating to GEQD:-
PW41 Sh. P. Venugopala Rao, Asstt. Director & Scientist "C", CFSL Hyderabad Miscellaneous witnesses:-
PW6 Sh. Suriinder Kumar Abrol, official from Delhi State Cooperative Bank PW32 Ms. Rashmi Gulati, Advocate, who appeared before RCS on behalf of the Society CBI officials:-
PW40 Sh. Anil Singh, Addl. SP, investigating officer
17. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr. P.C in which they denied all incriminating evidence led by prosecution and took the plea CBI No. 61/2016 (Old No. 65/2008) Page 18 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) that they have been falsely implicated in this case.
(a) A1 took the plea that he was not a member in the Society and he had no concern with the Society. Nor he was involved in the affairs of the Society. He submitted that he would lead evidence in his defence.
(b) A2 took the plea that he had acted in his official capacity. Being the AR, in compliance of the order passed by the then Registrar Mr. R.K. Srivastava in the month of August, 2000, he was duty bound to forward the file of revival of Society to the Court of RCS for conducting quasi judicial proceeding. He further submitted that no sanction under Section 197 Cr.P.C was obtained by the CBI for penal offences and he has been falsely implicated in this case.
(c) A3 took the plea that there is no evidence against him. It was further submitted that he was deputed under DCS Act by the RCS to conduct inspection/verification in terms of the provisions of DCS Act. It was submitted that there is no evidence to show that he had violated any provisions of DCS Act or Rules while performing his duty. It was further submitted that no sanction had been obtained by the CBI under Section 197 Cr. P.C for penal offences. It was further submitted that there is no evidence that either he had violated any directive of DCS Act or any instruction of the Government while performing his duty.
(d) A4 took the plea that as per DCS Act, 1972, it was the responsibility of Management Committee to furnish correct and true CBI No. 61/2016 (Old No. 65/2008) Page 19 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) particulars while approaching the RCS office. It was further submitted that he had reasonable belief that the documents/papers placed before him were in order, accordingly, the acts performed by him were done in absolute good faith and no incriminating circumstance had appeared against him during the trial.
(e) It was further submitted that he had passed the revival order in terms of the judgment of High Court of Delhi title Vikas Cooperative Group Housing Ltd. vs. RCS in Civil Writ Petition No. 1767/1986 and after considering the Rule 105 of DCS Rules, 1973.
(f) A5 took the plea that no incriminating material was recovered from his possession and he had no concern with the Society in question. It was further submitted that he has been falsely implicated in this case.
(g) A6 also took the plea that no incriminating material had been recovered from him and he had no concern with the Society in question and further submitted that he has been falsely implicated in this case.
(h) A7 took the plea that he had dealt with the file in question as per provisions of DCS Act and Rules and there is no evidence that while dealing with the file in question, he had violated any provision of DCS Act or Rules or any directive of RCS. It was further submitted that the sanction obtained under Section 19 of PC Act had been accorded without application of mind. Even the copy of the request letter whereby CBI sought sanction against him had not CBI No. 61/2016 (Old No. 65/2008) Page 20 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) been supplied to him. It was further submitted that CBI had not obtained any sanction against him under Section 197 Cr. P.C for penal offences. He submitted that he would lead evidence in his defence to prove his innocence.
(i) A9 took the plea that he had got conducted the election in terms of provisions of DCS Act and Rules and there is no evidence that he had violated any Provision or Rule or Directive of the RCS while acting as Election Officer. It was further submitted that the competent authority had accorded sanction under Section 19 of PC Act without application of mind and without seeing relevant documents. Even the copy of request letter whereby CBI sought sanction against him, was not supplied to him during trial. It was further submitted that since no land had been allotted to the Society, no loss had been caused to any person. It was further submitted that there is no evidence of pecuniary gain against him.
18. During trial A10 had expired, consequently, proceeding qua him were abated on March 03, 2014.
19. In order to prove his innocence, A7 examined Mr. Gopal Singh Bisht as DW1 whereas A1 examined Mr. Ramesh Chand as DW2.
Common contentions raised on behalf of A1, A5 and A6 regarding GEQD:-
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20. Learned counsel appearing for A1, A5 and A6 vigorously argued that the entire prosecution case qua the above said accused persons is based on the GEQD report. It was vehemently argued that no reliance can be placed on the alleged GEQD report because investigating officer had not taken the specimen writings of the above said accused persons with the permission of Court, accordingly, same cannot be used for the purpose of comparison. In support of their contention, they placed reliance on the judgment title Sapan Haldar & another v. State 2012 VIII AD (Delhi) 533.
(i) It was further astutely argued that before placing any reliance on the GEQD report, prosecution has to prove the specimen writings/signatures beyond reasonable doubt, but in the instant case, prosecution failed to do so. It was argued that though CBI has set-up a case that the specimen writings/signatures of the above said accused persons were taken in the presence of an independent witness, but surprisingly neither name nor parentage; nor address of the said witness is mentioned in the document. Nor the said witness was ever examined by CBI to establish the fact that the alleged specimen writings/signatures were taken in his presence.
(ii) It was further vigorously argued that during trial, CBI failed to produce any witness to establish the fact that the above said accused had forged the signature of any person. It was argued that in the absence of any such evidence, no reliance can be placed on the sole uncorroborated GEQD report.
(iii) It was further contended that it is admitted case of CBI No. 61/2016 (Old No. 65/2008) Page 22 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) CBI that the questioned documents were independently examined by two experts namely PW41 P. Venugopala Rao and Y. Surya Prasad, but CBI failed to produce Y. Surya Prasad in the witness box without any reasonable explanation. Even the signature of Y. Surya Prasad is not appearing on the reasons that were prepared by PW41 in support of his opinion. It was argued that absence of signature of Y. Surya Prasad on the reasons of opinion show that he had not furnished any independent reason in respect of his opinion.
(iv) It was further contended that PW41 in his deposition admitted that the documents were returned to CBI on March 20, 2007. It means that there was no document in the possession of GEQD after March 20, 2007, but it is admitted case of CBI that the reasons Ex.PW41/E and Ex.PW41/F were received through letter dated February 07, 2008, which shows that the reasons were prepared after March 20, 2007. It was urged that PW41 had prepared the reasons Ex.PW41/E and Ex.PW41/F without the questioned and specimen writings, which is otherwise not possible. It was argued that the reasons were prepared later on at the behest of CBI to create a false evidence against the accused persons.
(v) It was further contended that no reliance can be placed on the GEQD report as PW41 admitted in his cross- examination that he had not mentioned in his report about the movement, nature of skill, speed, line of quality, degree of slant, degree of angle of pen to the line of writing, pressure of pen etc. It was argued that non mentioning of the above said points in the GEQD report establishes that PW41 had not examined the questioned CBI No. 61/2016 (Old No. 65/2008) Page 23 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) documents and standards writings minutely and he had given his report at the behest of CBI.
(vi) It was further contended that no reliance can be placed on the GEQD report as PW41 admitted in his cross- examination that he had not demonstrated his findings through photographs.
(vii) Learned counsel appearing for A6 further contended that the alleged specimen writing of A6 was tempered with and this fact is established from the deposition of PW41 as PW41 admitted in his cross-examination that CBI had sent the specimen writings of A6 which were marked as S89 to S92, but in his deposition he also deposed that he had also received the specimen writings of A6 which were marked as S104 to S116. It was argued that there is no explanation from the CBI how PW41 received the specimen writings S104 to S116 when the same were not sent by CBI to GEQD. It was argued that this shows that the specimen writing of A6 was tempered with in order to get a false and fabricated report.
21. In support of their contentions, counsels placed reliance on the following judgements title Kishorilal Fulchand Baraskar v. State of Maharashtra 2008 Supp Bom CR 185, Bhargav Kundalik Salunkhe v. State of Maharashtra 1996 Cri LJ 1228, Bharat Aneja @ Bunty v. State of NCT of Delhi decided by the High Court of Delhi on March 20, 2015 in Criminal Appeal No. 652/2011, Prakash Chand v. State decided by the High Court of Delhi on March 18, 2014 in Criminal Appeal No. 342/1999 and Raj CBI No. 61/2016 (Old No. 65/2008) Page 24 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Kumar v. State decided by the High Court of Delhi on October 18, 2012 in Criminal Appeal No. 582/2012.
22. Per contra, learned Senior Public Prosecutor for CBI refuted the said contentions by sagaciously arguing that mere fact that investigating officer had taken the specimen writings of accused persons without the permission of the concerned Court is not sufficient to disbelieve the prosecution case. It was further contended that the judgment Sapan Haldar & another v/s. State (supra) is not applicable in the facts and circumstances of the case. It was further contended that there is no legal impediment in placing reliance on GEQD report in the absence of any corroborative evidence.
(i) It was fairly conceded that though investigating officer should have mentioned the detail of witness in the documents and said person should have also been cited as a witness, but swiftly added that the said lapse on the part of investigating officer is not sufficient to discard the prosecution case as prosecution has proved the specimen writings of the above said accused persons beyond doubt.
(ii) It was further contended that though there is some discrepancy in the specimen handwritings, which were sent to the GEQD and received in the office of GEQD and fairly conceded that the said discrepancy should not have been occurred, but quickly added that the said discrepancy is not sufficient to discard the prosecution case in any manner. It was further contended that mere fact that CBI did not examine Y. Surya Prasad is not sufficient to CBI No. 61/2016 (Old No. 65/2008) Page 25 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) disbelieve the deposition of PW41. Similarly, merely fact that signature of Y. Surya Prasad is not appearing on the reasons Ex.PW41/E and Ex.PW41/F is not sufficient to disbelieve the reasoned report of PW41. It was further contended that non mentioning of certain points in the report as highlighted by learned defence counsel is also not sufficient to disbelieve the reasoned report of PW41 particularly when he has given explanation in his deposition for not mentioning of the above said points.
Other contentions raised on behalf of A1, A5 and A6 :-
23. Learned counsel appearing for A1 contended that there is no admissible evidence on record qua A1 except the GEQD report, which is not admissible in evidence. It was argued that there is no evidence on record to prove the fact that A1 had approached A6 expressing his intention to buy a defunct society. It was further contended that there is no evidence on record that A1 had taken over the control of the Society after its revival. Even A1 was not the member of the said Society and it was urged that he had no concern with the said Society. It was further contended that mere fact that some of his family members became the member of the said Society after its revival is not sufficient to establish that they became the members of the said Society at the instance of A1 or A1 used them to take the control of the said Society after its revival.
(i) Learned counsel appearing on behalf of A5 and A6 contended that there is no iota of admissible evidence on record to establish the fact that either of them had moved the application for CBI No. 61/2016 (Old No. 65/2008) Page 26 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) revival of the Society. It was contended that there is no evidence against them except the GEQD report, which is otherwise not admissible.
24. Per contra, learned Senior Public Prosecutor refuted the said contentions by arguing that there are ample evidence on record to prove the culpability of A1, A5 and A6. It was further contended that A1 approached A6 and expressed his intention to buy a defunct society. Thereafter, A6 with the help of his employee i.e. A5 prepared the forged and fabricated documents such as proceeding register, membership register, membership forms, affidavits, resignation letters etc. and thereafter they moved the application for revival of the Society, A1 took the control of the Society through his family members.
Contentions raised on behalf of A3 and A9 :-
25. Learned counsel appearing for A3 contended that the only allegation against him is that he had submitted a report dated March 20, 2003, which according to CBI is a false report. It was vehemently argued that there is no iota of evidence on record to establish that the said report was false in any manner. It was contended that in his report, A3 certified that he had visited registered office of the Society at Village Malik Pur, Model Town where Chaman Lal, President of the Society met him and produced all the record for inspection. It was urged that it is admitted case of CBI that A3 had obtained the signature of Chaman Lal on the inspection report. During investigation, no effort was made to ascertain that the said signature CBI No. 61/2016 (Old No. 65/2008) Page 27 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) was not of Chaman Lal. Similarly, there is no evidence on record that the Society had never functioned at Village Malik Pur, Model Town. It was argued that in the absence of any such evidence, it cannot be said that A3 had submitted a false report.
26. Per contra, learned Senior Public Prosecutor countered the said contentions by arguing that during investigation, it was revealed that Chaman Lal was a non existent person, but in his report he certified that he met with Chaman Lal. It was further contended that during investigation, it was revealed that the Society had never functioned from Village Malik Pur, but despite that A3 certified in his report that the Society was found functioning from Village Malik Pur. It was argued that this shows that A3 had submitted a false report.
27. Learned counsel for A9 contended that the only allegation against A9 is that he had submitted the election report, which according to CBI was false as he had shown fictitious persons to be elected in the election. It was sagaciously argued that during trial CBI failed to produce any cogent evidence to establish the fact that the elected members were non-existent persons. Even during investigation, investigating officer did not try to collect the nomination forms of the candidates. Nor he made any attempt to interrogate the members who proposed and seconded the name of candidates. It was contended as per the report submitted by A9 as many as 52 persons participated in the election and the said persons also put their signatures in the proceeding register, but surprisingly investigating officer did not deem it appropriate to examine them. It was further CBI No. 61/2016 (Old No. 65/2008) Page 28 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) contended that CBI did not allege in the charge-sheet that the signatures of the said 52 persons were forged. Similarly, it is not the case of CBI that the candidates had not filed the nomination papers. It was argued that in the absence of any such evidence, it cannot be said that A9 had submitted a false report.
28. Per contra, learned Senior Public Prosecutor appearing for CBI contended that since during investigation, it was revealed that the elected candidates were non existent persons, it can be presumed that the report submitted by A9 was false. However, he fairly conceded that there are certain lapses on the part of investigating officer as he failed to collect nomination papers of the candidates. Similarly, he also failed to examine the persons who allegedly proposed and seconded the candidature of said persons.
Contentions raised on behalf of A2, A4 and A7 :-
29. Learned counsels appearing for A2, A4 and A7 contended that A7 was a Dealing Assistant whereas A2 was Assistant Registrar and A4 was RCS at the relevant time. It was argued that on receipt of application from the Society under Section 63 (3) of DCS Act, A7 put up a note in accordance with provisions of DCS Act. In the said note, A7 proposed the name of A3 to conduct the inspection, which was forwarded by A2 being the AR and on their recommendation, A4 approved the said note and deputed A3 to conduct inspection in terms Section 54 of DCS Act. On receipt of the report from A3, A7 again put up a note on March 20, 2003, which was forwarded by A2 being the AR. A4 considered the said note and CBI No. 61/2016 (Old No. 65/2008) Page 29 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) directed the concerned Zone to verify the record of the Society. Thereafter, a fresh note was put up by A7, which was again forwarded by A2 being the AR. The said note was not only considered by A4, but personal hearing was also given to the counsel of the Society. After giving personal hearing to the counsel, A4 passed the revival order in accordance with Section 63 (3) of DCS Act. It was contended that except the fact that the above said accused persons dealt with the file in question in their official capacity, there is no other evidence on record to prove any dishonest intention on their part. It was contended that mere fact that A7, A2 and A4 dealt with the file in question in their official capacity is not sufficient to prove the culpability on their part.
(i). Per contra, learned Senior Public Prosecutor refuted the said contentions by arguing that at the time of revival of the Society, no due weightage was given to the point that the application for revival of the Society was moved after the gap of 24 years of passing of the liquidation order. It was contended that this shows that the above said accused persons were in conspiracy with the accused persons. Further, promptness in dealing with the application also shows that they were in conspiracy with the accused persons. However, he fairly conceded that during investigation, it could not be established that the above said accused persons had received any pecuniary gain or valuable thing for performing their acts.
30. I have heard learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
CBI No. 61/2016 (Old No. 65/2008) Page 30 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Findings qua GEQD report:-
31. First question emerges from the submission advanced by counsel for both the parties whether it was mandatory on the part of investigating agency to take permission of concerned Court before taking the specimen writing of accused?
32. Perusal of the judgment Sapan Haldar & another v/s. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii).Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit CBI No. 61/2016 (Old No. 65/2008) Page 31 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
(i) However in the instant case, neither the Section 2 (a), 4 & 5 of identification of Prisoners Act nor Section 311A Cr.P.C are fact in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of the accused after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwriting of the suspect during investigation for the purpose of finding truth, which is an ultimate object of any investigation.
33. Now coming to the next question that arises from the submissions advanced by counsel for the parties whether any reliance can be placed on the uncorroborated report of handwriting expert or not?
(i). The said question was dealt with by the Apex Court in detail in Murari Lal v. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, relevant portions of the judgment are reproduced as under:-
CBI No. 61/2016 (Old No. 65/2008) Page 32 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P-54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High Court fell into a grave error in concluding that the writing at page 6 of Ex. P-9 was that of the appellant.
He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4. We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no CBI No. 61/2016 (Old No. 65/2008) Page 33 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v.
Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have CBI No. 61/2016 (Old No. 65/2008) Page 34 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 CBI No. 61/2016 (Old No. 65/2008) Page 35 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed; "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-
CBI No. 61/2016 (Old No. 65/2008) Page 36 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v.
Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity CBI No. 61/2016 (Old No. 65/2008) Page 37 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10. Finally, we come to Magan Bihari Lal v.
State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting CBI No. 61/2016 (Old No. 65/2008) Page 38 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has CBI No. 61/2016 (Old No. 65/2008) Page 39 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) almost become as rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v.
State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised 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, as we indicated earlier, 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 throwing 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. We CBI No. 61/2016 (Old No. 65/2008) Page 40 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary.
There may be cases where both sides call experts and the voices of science are heard.
There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13. Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination. Nothing has been elicited to throw the least doubt on the correctness of the CBI No. 61/2016 (Old No. 65/2008) Page 41 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(i) The above view was approved by the Apex Court in Alamgir v. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
34. In the law laid down in Murari Lal v. State of MP (supra), I of the considered view that the conviction can be recorded on the sole uncorroborated report of handwriting expert, if the report is convincing and there is no reliable evidence throwing out on the report.
35. The next question crops up for adjudication whether in the instant case prosecution has proved the specimen writings of A1, A5 and A6 beyond doubt or not?
(i) In the instant case, CBI has proved the specimen writings of A1, A5 and A6 during the deposition of PW40 Anil Singh, the then Additional SP, investigating officer. PW40 in his examination- in-chief deposed that he had taken the specimen writings of certain accused persons including A1, A5 and A6. He further testified that the specimen writings mark SF1 to SF15, S71 to S72 (Ex.PW40/D) is the CBI No. 61/2016 (Old No. 65/2008) Page 42 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) specimen writing of A1 whereas the specimen writings mark S1 to S42 (Ex.PW40/E) is the specimen writings of A5 and further testified that the specimen writings mark S89 to S116 (Ex.PW40/F) is the specimen writings of A6.
(ii) It is pertinent to state that the testimony of PW40 qua the specimen writings of A6 is factually incorrect. As per record, the specimen writings mark S94 to S96 belonged to Vijay Kumar Bansal and the same has been separately exhibited as Ex.PW40/H. Similarly, the specimen writings mark S97 to S103 belonged to Ajay Narayan Gupta.
(iii) PW40 deposed that all the specimen writings are bearing his signature at point A on each page.
(iv) During cross-examination, a suggestion was given to the witness that the said specimen writings did not belong to the above said accused persons, but same was denied. However, PW40 in his cross-examination admitted that he had neither obtained the signature nor thumb impression of the accused persons on the above said specimen writings/signatures as a token to establish that the above said accused persons had given their specimen writings/signatures. He further admitted that he had not mentioned the name, parentage and address of the witness in whose presence, he had taken the above said specimen writings/signatures. However, he denied the suggestion that he had not mentioned the same because the above said specimen writings/signatures did not belong to the above said accused persons.
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36. Perusal of the specimen writings Ex.PW40/D, Ex.PW40/E and Ex.PW40/F reveals that it bears the signature of one witness, but surprisingly investigating officer had not mentioned the name, parentage and address of the said witness. Since, the specimen writings/signatures of the above said accused persons were taken in the presence of the witness, it was the paramount duty of PW40 to mention the complete name, parentage and address of the said witness on the said documents. Further, it was also his duty to cite the said person as a witness to enable the prosecution to examine him to prove the above said specimen writings in accordance with law. Similarly, it was also the duty of investigating officer to obtain the signature of above said accused persons on their specimen writings/signatures in order to establish that the said specimen writings/signatures belong to the above said accused persons. But PW40 failed to do so without any reasonable explanation. This shows that there was a lapse on the part of PW40. But to my mind, the said lapse on the part of PW40 is not sufficient to disbelieve his testimony to the extent that the above said specimen writings belong to the above said accused persons.
(i) No doubt, the accused persons had given a suggestion to PW40 that the said specimen writings did not belong to them, but the same was denied. Except giving the said suggestion, no other evidence was led by the accused persons to disprove the testimony of PW40. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW40 wherein he deposed that he had taken the specimen writings of the above said accused persons and testified that the Ex.PW40/D, CBI No. 61/2016 (Old No. 65/2008) Page 44 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Ex.PW40/E and Ex.PW40/F are the specimen writings of A1, A5 and A6 respectively.
37. Now coming to the next limb of arguments whether there is any discrepancy in the letter qua the specimen writings of A6?
(i) As per prosecution case, investigating officer had sent the specimen writings, questioned writings and documents to the GEQD for the purpose of comparison. The same were sent to the GEQD through letter dated August 18, 2006 (Mark PW40/H). In Annexure-II of the said letter, detail of specimen writings, which were sent to GEQD, is mentioned. As per the said Annexure, CBI had sent the specimen writings mark S89 to S93 (five sheets) as the specimen writings of accused Srichand. This fact is also admitted by PW41 during his testimony.
(ii) During his testimony, PW41 also placed the copy of letter dated August 18, 2006 (Ex.PW41/A, colly.). In Annexure-II to the said letter, detail of specimen writings is mentioned. In the said Annexure, besides S89 to S93, specimen writings mark S104 to S116 is also alleged to have been sent to GEQD stating that the same belong to accused Srichand. As submitted by learned Senior Public Prosecutor, there should be no such discrepancy in both the copies of the letter. Moreover, it was the duty of CBI to explain the said discrepancy during trial, but during trial CBI failed to furnish any explanation about the said discrepancy. This also reflects lapse on the part of investigating agency.
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38. Now question arises whether the said discrepancy is sufficient to discard the entire GEQD report?
(i) The answer is certainly in negative because from the GEQD report Ex.PW41/B, it is clear that GEQD had compared the questioned writings i.e. Q141 to Q148 and Q740 with all the specimen writings i.e. S89 to S93 and S104 to S116. As per the GEQD report, the author of specimen writings and questioned writings was one and the same person. Even, if we ignore the specimen writings i.e. mark S104 to S116, accused will not get any benefit because questioned writings also tally with the specimen writings mark S89 to S93. Accordingly, to my mind, the said discrepancy is not fatal to the prosecution case in any manner.
39. Now coming to the next contention whether GEQD report can be discarded mere on the ground that the reasons were sent after returning the documents to the CBI?
(i) PW41 in his cross-examination admitted that all the questioned documents and specimen writings were returned to the CBI on March 20, 2007 and in this regard acknowledgement was taken from the CBI official on the back page of Ex.PW41/DA. It is undisputed fact that the reasons Ex.PW41/E and Ex.PW41/F were sent to the CBI through letter dated February 07, 2008 (Ex.PW41/G). It is pertinent to state that Ex.PW41/E and Ex.PW41/F do not bear the date of its preparation. Mere fact that the reasons were sent later on through letter dated February 07, 2008 is not sufficient to hold that the reasons were prepared after returning the documents.
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(ii) In this regard, the testimony of PW41 is relevant wherein a suggestion was given to the witness that he had not prepared the reason at the time of completing the opinion, but the same was denied. During his cross-examination, he also admitted that the documents were handed over to the CBI on March 20, 2007 and further admitted that after handing over the documents to the CBI, no document whatsoever remained with the GEQD and also admitted that the letter through which reasons were sent to the CBI bears the date February 07, 2008. But surprisingly, no question was asked from the witness whether he prepared the reasons after handing over the documents to the CBI or the reasons were prepared prior to them. Mere fact that the reasons were sent through letter dated February 07, 2008 is itself not sufficient to hold that the reasons were prepared on that day. There is every possibility that the reasons be prepared much prior to February 07, 2008 and later on it was sent to CBI. It is also pertinent to state that Ex.PW41/E and Ex.PW41/F and Ex.PW41/G are the office copy of the GEQD. Thus mere fact that Ex.PW41/E and Ex.PW41/F do not bear the date is not fatal to the prosecution case.
(iii) Assuming for the sake of arguments that the reasons were prepared by PW41 after handing over the documents to the CBI. Even then the report cannot be discarded because reasons were required to be prepared on the basis of office notes prepared at the time of examination. Thus, the possibility that PW41 had prepared the report on the basis of his notes cannot be ruled out. Surprisingly, in this regard, no question was put to the witness. In the absence of any specific evidence that the reasons were prepared either without document or without any office note, I do not find any reason to CBI No. 61/2016 (Old No. 65/2008) Page 47 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) disbelieve the testimony of PW41 wherein he categorically denied the suggestion that he had not prepared the reasons at the time of completing the opinion.
41. Now, I proceed to deal with the contention whether the GEQD report can be discarded mere on the ground that prosecution has not examined the another GEQD i.e. Mr. Y. Surya Prasad.
(i) It is admitted case of CBI that the questioned documents were examined by two independent witnesses namely PW41 and Y. Surya Prasad. The report Ex.PW41/B and Ex.PW41/C reveal that the reports bear the signature of both the GEQD. This proves that both the GEQD arrived at the same conclusion after examining the documents. Since, CBI has proved the report through PW41, it was not required on the part of CBI to examine the another GEQD. It is settled law that Court has to see quality and quantity of the evidence. Thus mere fact that CBI did not examine Y. Surya Prasad is not sufficient to discard the report of PW41. Moreover, if accused persons think that the testimony of Y. Surya Prasad would help them to prove their innocence, they could have easily produced him in the witness box, but they failed to do so. Accordingly, in my view non examination of Y. Surya Prasad, GEQD is not fatal to the prosecution case in any manner.
42. Now question arises whether mere fact that the reasons Ex.PW41/E and Ex.PW41/F do not bear the signature of Y. Surya Prasad is sufficient to discard the GEQD report?
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(i) To my mind, the answer in negative. The purpose of examining the documents by two independent persons is to rule out the possibility of any mistake. Once, it is established that both the GEQD arrived at the same conclusion, it is not relevant whether the reasons were signed by another GEQD or not. There is possibility that Y. Surya Prasad might have noted down his separate reasons and since the conclusion was same, same was not filed on record. In the absence of any contrary evidence on record, I am of the view that mere fact that the reasons do not bear the signature of Y. Surya Prasad is not fatal to the prosecution in any manner.
43. Now, I proceed to the next contention whether the testimony of PW41 can be discarded on the ground that he had not reflected some points in his report?
(i) PW41 in his cross-examination admitted that he has not mentioned in his report about the movement of finger, hand wrist, forearm, nature of skill of the writer, speed, finding on the line quality in the questioned documents viz-a-viz specimen writings, degree of slant, degree of angle of pen to the line of writing, pressure of two side of the nibs/ball pen pressure, location of shading, findings qua measurement with respect to the size, spacing etc. He also admitted the suggestion that since he had not examined the documents, characteristics such as movement, skill, speed, line quality, slant, spacing, alignment, relative size and proportion of the letters and their combinations, pen pressure, nature of commencing and terminal strokes etc. and therefore, neither his opinion nor reasons contained any mentioning for quantitative analysis of these factors. However, CBI No. 61/2016 (Old No. 65/2008) Page 49 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) when a Court question was put to him why he had not dealt with on the above aspects, he clarified that the same were not necessary to give an opinion on the documents in question. This shows that the above said points were not relevant in the present case.
(ii) No doubt, in his cross-examination, he admitted that he had not demonstrated his finding by way of photographs. But it is not helpful to the defence in any manner because now-a-days modern instruments are available and same are being used at the time of analysis. Surprisingly, during cross-examination no attempt was made to ask from the witness what instrument he had used to compare the documents. PW41 in his reasons Ex.PW41/E and Ex.PW41/F clarified that the documents were examined with the aid of various scientific instruments. This shows that scientific instruments were used at the time of examining the documents. In these circumstances, mere fact that PW41 had not demonstrated his finding by way of photograph is not fatal to the prosecution case in any manner.
44. It is pertinent to state that PW41 is working as Assistant Director in CFSL Hyderabad and he has 25 years of experience in the field of examination of documents and he had examined thousands of documents during his tenure. He has also deposed in numerous Courts. Thus, it can safely be culled out that PW41 is not only a well qualified person but he also possesses vast experience in the field of examination of documents. In support of his opinion, he has given detail reasons Ex.PW41/E and Ex.PW41/F. Though the witness was cross-examined at length, yet during cross- examination, nothing could be extracted which may show that the CBI No. 61/2016 (Old No. 65/2008) Page 50 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) reasons furnished by PW41 in support of his opinion are either not convincing or there is any reliable evidence to raise doubt over his opinion. In the absence of any such material on record, I am of the view that there is no reason to disbelieve the opinion which is not only well reasoned but also is supported by another well experienced and independent expert.
Findings qua fake Members:-
45. First question emerges for adjudication whether there was any fake member in the list of members of the Society in question, which was forwarded to DDA for allotment of land?
(i) In this regard, the testimony of PW2, PW4, PW5, PW7 to PW16, PW18, PW19, PW21, PW22, PW23, PW27, PW30, PW33, PW36 and PW42 are relevant.
(ii) PW2, PW4, PW5, PW7, PW8, PW10, PW11, PW13 to PW16, PW18, PW19, PW22 and PW27 in their deposition categorically deposed that they were members in Naval Technical Officers Co-operative Housing Society and further deposed that they had never become member of Martand CGHS at any point of time. All the witnesses categorically deposed that they neither filled up any membership form to become member of the Society in question; nor filed any affidavit; nor signed in the membership register. They further categorically deposed that since they had never taken the membership of the Society in question, there was no occasion for CBI No. 61/2016 (Old No. 65/2008) Page 51 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) them to resign from their membership. The said witnesses denied the signatures appearing on the membership register, membership forms, affidavits, resignation letters and refund of receipt, which were allegedly signed by them.
(iii) PW2 deposed that Q59, Q376/1 and Q257 are not his signatures on the membership register, membership application form and affidavits respectively. He further testified that Q566 and Q567 are not his signatures on the resignation letter/receipt of refund. Similarly, PW4 deposed that Q56, Q373 and Q254 are not his signatures on the membership register, membership application form and affidavit and further testified that Q560 and Q561 are not his signatures on the resignation letter and receipt of refund. PW5 also deposed that Q99, Q415, Q296 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q645 and Q647 are not his signatures on the resignation letter and receipt of refund.
(iv) Similarly, PW7 deposed that Q60, Q377 and Q258 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q568 and Q569 are not his signatures on the resignation letter and receipt of refund. PW8 deposed that Q63, Q380, Q261 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q574 and Q575 are not his signatures on the resignation letter and receipt of refund. PW9 testified that his wife never became the member of the Society in question and deposed that Q82, Q399 and Q280 are not her CBI No. 61/2016 (Old No. 65/2008) Page 52 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) signatures on the membership register, membership application form and affidavit respectively. He further testified that Q612 and Q613 are not her signatures on the resignation letter and receipt of refund.
(v) Similarly, PW10 deposed that Q91, Q407 and Q288 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q629 and Q630 are not his signatures on the resignation letter and receipt of refund. PW11 also testified that Q96, Q412 and Q293 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q639 and Q640 are not his signatures on the resignation letter and receipt of refund. PW12 also deposed that membership register does not bear his signature and further testified that he did not sign in the Proceeding register at point Q19. He admitted his specimen writings S68 to S70 (Ex. PW12/D).
(vi) PW13 deposed that Q54, Q371 and Q252 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q556 and Q557 are not his signature on the resignation letter and receipt of refund. PW14 also testified that Q45, Q363 and Q244 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q529 and Q530 are not his signatures on the resignation letter and receipt of refund. Similarly, PW15 also testified that Q48, Q366 and Q247 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q535 and Q536 are not his CBI No. 61/2016 (Old No. 65/2008) Page 53 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) signatures on the resignation letter and receipt of refund.
(vii) PW16 deposed that Q57, Q374 and Q255 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q562 and Q563 are not his signatures on the resignation letter and receipt of refund. Similarly, PW18 also testified that Q85, Q401 and Q282 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q617 and Q618 are not his signatures on the resignation letter and receipt of refund.
(viii) PW19 deposed that Q77, Q394 and Q275 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q602 and Q603 are not his signatures on the resignation letter and receipt of refund. Similarly, PW22 deposed that Q58, Q375 and Q256 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q564 and Q565 are not his signatures on the resignation letter and receipt of refund. Similarly, PW27 deposed that Q61, Q378 and Q259 are not his signatures on the membership register, membership application form and affidavit respectively and further testified that Q570 and Q571 are not his signatures on the resignation letter and receipt of refund.
46. From the testimony of above said witnesses, it becomes crystal clear that they had never applied for the membership of Martand CGHS. Neither they signed on the membership application CBI No. 61/2016 (Old No. 65/2008) Page 54 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) forms nor on the membership register and affidavits. It also becomes clear that they had not even tendered any resignation from their membership nor the resignation letters bear their signature. This clearly establishes that someone had forged their signatures on the membership register, membership application form, affidavits, resignation letters and refund receipts.
47 RCS had sent the approved list of members of the Society to DDA for allotment of land vide letter dated April 9, 2003 (Mark PW2/F). Perusal of the list reveals that the name of PW2, PW4, PW5, PW7, PW8, PW9 and PW10 are mentioned at serial number 41, 38, 80, 42, 45, 64 and 72 respectively. Similarly, the name of PW11, PW13, PW14, PW15, PW16, PW18, PW19, PW22 and PW27 are mentioned at serial no. 77, 36, 28, 31, 39, 66, 59, 40 and 43 respectively. This proves that the name of fake members were got approved by the Society from RCS and same were also sent to DDA for allotment of land.
48. As per minutes of GBM held on March 2, 2003 Mr. Chaman Lal and Ms. Sudershan Kaur were elected for the post of President and Vice President respectively whereas Mr. Madan Lal, Mr. Vinay Kumar and Ms. Anjana Kaul were elected as Executive members. As per the chargesheet, the said members were fictitious members.
(i) In the list Mark PW2/G, the address of Mr. Chaman Lal is shown as 221, DDA Flats, Kalkaji, New Delhi; address of Mr. Madan Lal is shown as 521, Govind Puri, New Delhi and address of Mr. Vinay CBI No. 61/2016 (Old No. 65/2008) Page 55 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Kumar is shown as 938, Sarojini Nagar, New Delhi. The address of Mrs. Anjana Kaul is shown as C-333, Block-F, Vikas Puri, New Delhi and address of Mrs. Sudershan Kaur is shown as B-9/6345, Vasant Vihar, New Delhi.
(ii) In order to establish that the above said addresses were fictitious, CBI placed reliance on the deposition of PW21, PW23, PW30, PW33, PW36 and PW42. PW23 deposed that the address 221, DDA Flats, Kalkaji is not in existence in the locality. PW21 corroborated the same and deposed that he is residing at J-3/221 and testified that neither Mr. Madan Lal nor Mr. Chaman Lal had ever resided at the given address at any point of time. PW33 also corroborated the above deposition by deposing that he is residing at J- 1/221 but at the said address neither Mr. Chaman Lal nor Mr. Kishori Lal had ever resided.
(iii) PW42 deposed that he has been residing at H. No. 521, Gali No. 6, Govind Puri, Kalkaji since 1966. He further testified that neither Mr. Madan Lal nor Mr. Chaman Lal had ever resided at the said address at any point of time. PW30 deposed that the address B- 9/6345 is not in existence in Vasant Vihar, New Delhi and further testified that in the said locality premises are numbered as B-9/1, B- 9/2 and so on till B-9/22.
(iv) PW36 deposed that she has been residing at F333, Vikas Puri, New Delhi for the last 30 years and address C-333, Block F, Vikas Puri is not in existence in the said locality.
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49. From the testimony of the above said witnesses it becomes clear that the address of Mr. Chaman Lal, Mr. Madan La, Ms. Sudershan Kaur and Ms. Anjana Kaul are fictitious. Indisputably, CBI has not examined any witness qua the address of Mr. Vinay Kumar but during trial, accused persons also failed to produce any evidence to establish that the address of Mr. Vinay Kumar was correct.
(i) Thus, it can safely be culled out that Mrs. Sudershan Kaur, Mrs. Anjana Kaul, Mr. Chaman Lal and Mr. Madan Lal were not residing at the addresses mentioned in the list. Since no contrary evidence has been adduced by the accused persons, it can also be safely culled out that above persons were fictitious persons.
50. Perusal of the list Mark PW2/G further reveals that the name of Mrs. Sudershan Kaur, Mrs. Anjana Kaul, Mr. Chaman Lal, Mr. Madan Lal and Mr. Vinay Kumar are mentioned at serial no. 109, 113, 116, 117 and 120 respectively.
(i) Perusal of the list Mark PW2/G further reveals that the same was signed by Mr. Madan Lal and Mr. Chaman Lal being the President and Secretary of the Society. The last page of the list also bears the signature of Mr. Vinay Kumar being the Treasurer of the Society at point Q471. The signature of Mr. Madan Lal, Mr. Chaman Lal and Mr. Vinay Kumar are at points Q455A, Q456 to Q471 respectively.
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(ii) Perusal of the GEQD report Ex. PW41/B proves that author of the S1 to S28, S28A, S29 to S42 and Q455A, Q456 to Q474 are one and the same person.
(iii) As already held that S1 to S28, S28A, S29 to S42 are the specimen writings of accused Anna Wankhade and the same are collectively Ex. PW40/E. Perusal of the Ex. PW40/E reveals that S31 to S35 are the signatures of Mr. Chaman Lal, Mr. Madan Lal and Mr. Vinay Kumar in the specimen writings of accused Anna Wankhade. In other words, it is established that accused Anna Wankhade is the person who forged the signature of Mr. Madan Lal, Mr. Chaman Lal and Mr. Vinay Kumar at point Q455A, Q456 to Q471 on the list mark PW2/G, which was approved by the RCS.
(iv) From the GEQD report Ex. PW41/B, it is also established that accused Anna Wankhade had also forged the signatures of PW2 Mr. Surender Singh, PW5 Mr. Hari Lal, PW8 Mr. T. Rajgopalam, PW15 Mr. Manohar Lal, PW22 Ms. Shashi Sharma in the member application forms; affidavits; membership register; resignation letters and refund receipts because from the GEQD report Ex. PW41/B, it is clear that the author of Q59, Q376/1, Q376, Q257, Q566, Q567, Q99, Q415, Q296, Q645, Q647, Q63, Q380, Q261, Q574, Q575, Q48, Q366, Q247, Q535, Q536, Q375, Q256, Q564, Q565 and S1 to S28, S28A, S29 to S42 are one and the same person.
Role qua accused Anna Wankhade:-
51. Besides the above role, it is also alleged by the CBI CBI No. 61/2016 (Old No. 65/2008) Page 58 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) that A5 had forged the signatures on the application dated March 6, 2003 which was moved before the RCS office for revival of the Society under Section 63(3) of DCS Act, 1972.
(i) Perusal of the above application reveals that the application was moved by Mr. Chaman Lal being the President of the Society. Alongwith the application, applicant had also filed the affidavit of Mr. Madan Lal, Secretary of the Society (Ex. PW24/A) and his own affidavit (Ex.PW24/B). Besides that, applicant had also filed the photocopy of certain other documents. Applicant had also filed a list of current managing members under the signature of Mr. Madan Lal, a list of 120 members under the signature of Mr. Chaman Lal, Mr. Madan Lal and Mr. Vinay Kumar; another affidavit of Mr. Madan Lal, forwarding letter under the signature of Mr. Madan Lal, another affidavit of Mr. Madan Lal and three certificates issued by Mr. Madan Lal.
(ii) Perusal of the said application further reveals that signatures of Mr. Chaman Lal are appearing at point Q730, Q731 and Q732 whereas the signature of Mr. Madan Lal are appearing at point Q729, Q733, Q733A, Q734, Q734B, Q734C, Q735, Q735A and Q736.
(iii) As per the GEQD report Ex. PW41/B, the author of above questioned writings/signatures was accused Anna Wankhade. This establishes beyond doubts that accused Anna Wankhade had forged the signatures of Chaman Lal and Madan Lal on the application that was moved on behalf of the Society for revival under Section 63(3) of DCS Act.
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(iv) As per the application, a special GBM was called by the Society on March 2, 2013 wherein it was unanimously resolved to make a request before the RCS to withdraw the liquidation order issued under Section 63 of DCS Act and further to make a request to revive the Society and approved the list of 120 members.
(v) Perusal of the proceeding register reveals that a GBM was held on March 2, 2003 wherein Mr. Chaman Lal and Mrs. Sudershan Kaur were shown to have been elected as President and Vice President of the Society respectively whereas Mr. Madan Lal, Mr. Vinay Kumar and Ms. Anjana Kaul were shown to have been elected as executive members. The body portion of the said meeting is Mark as Q205(E) whereas signature of the present members are Mark Q205 (E1) to Q205(E61). Some body portion of the minutes is also mark as Q205(G). Perusal of the GEQD report Ex. PW41/B reveals that the author of Q205(E) and Q205(G) was accused accused Anna Wankhade. It also becomes clear from GEQD report that the author of Q205(E), Q205(E/1), Q205(E/2), Q205(E/5), Q205(E/12), Q205(E/16), Q205(E/18), Q205(E/19), Q205(E/21) to Q205(E/23), Q205(E/26), Q205(E/28), Q205(E/30), Q205(E/32) to Q205(E/35), Q205(E/37) to Q205(E/43), Q205(E/45), Q205(E/47) to Q205(E/50), Q205(E/52) to Q205(E/56), Q205(E/59) to Q205(E/61) was also accused Anna Wankhade. This establishes that accused Anna Wankhade had not only written the minutes of the GBM held on March 2, 2003 but he also forged the signatures of numerous members.
(vi) Perusal of the minutes further reveals that the Society had unanimously resolved to make a request to the RCS CBI No. 61/2016 (Old No. 65/2008) Page 60 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) office to withdraw the liquidation order dated January 3, 1979.
(vii) From the combined perusal of minutes of the GBM held on March 2, 2003 and the application dated March 6, 2003, it becomes clear that before moving the application, Mr. Chaman Lal and Mrs. Sudershan Kaur were shown elected as President and Vice President of the Society in question whereas Mr. Madan Lal, Mr. Vinay Kumar and Mrs. Anjana Kaul were shown elected as executive members of the Society. Thereafter, the application was moved before the RCS.
(viii) Since accused Anna Wankhade had not only written the minutes of the GBM held on March 2, 2003, but he also forged the signatures of numerous members and also forged the signatures of Mr. Madan Lal and Mr. Chaman Lal on the application and its supporting documents and the fact that during trial he failed to furnish any explanation under which circumstances he forged the signatures on the application and proceeding register, it can safely be culled out that the application was moved by accused Anna Wankhade. Since, he forged the signature of numerous persons including Mr. Madan Lal and Mr. Chaman Lal, A5 is also liable for the offence punishable under Section 468 IPC. Since, he used the forged documents for the purpose of cheating by submitting the application before the RCS for revival, he is also liable for the offence punishable under Section 471 IPC read with 468 IPC.
52. Perusal of the proceeding register and GEQD report Ex. PW41/B further reveals that A5 is also the author of Q148A, Q149, CBI No. 61/2016 (Old No. 65/2008) Page 61 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Q152A, Q157, Q158, Q161, Q165 to Q169, Q172, Q174 to Q178, Q181, Q184 to Q186, Q188, Q189, Q192, Q198/1 to Q198/7, Q198(G), Q198(G1) to Q198(G3), Q199 to Q205, Q205/1, Q205/4, Q205/5, Q205/7 to Q205/12, Q205/16, Q205/20 to Q205/63, Q205(A) to Q205/(D), Q205/(F) to Q205/(H), Q1 to Q12, Q12A, Q12B and Q15. This further establishes that A5 had not only recorded the minuets of the meeting of the Managing Committee meeting/General Body Meeting of the Society since 1970 till September 25, 2003 but he also forged the signatures of numerous persons.
(i) On perusal of the GEQD report and membership register Ex. PW2/A it also becomes clear that he had forged the signature of numerous persons whose signatures are appearing at points Q102, Q110, Q111, Q115 to Q118, Q120, Q122, Q123, Q125, Q127 to Q133, Q135, Q137, Q138 and Q140.
(ii) Perusal of the membership application forms and GEQD report Ex. PW41/B further establishes that A5 had also forged the signatures of numerous persons on the application forms whose signatures are appearing at points Q336, Q336/1, Q340, Q340/1, Q347, Q347/1, Q351, Q351/1, Q353, Q353/1, Q354, Q354/1, Q357, Q357/1, Q358, Q358/1, Q359, Q359/1, Q362, Q362/1, Q364, Q364/1, Q368, Q368/1, Q370, Q370/1, Q387, Q387/1, Q388, Q388/1, Q390, Q390/1, Q400, Q400/1, Q404, Q404/1, Q406, Q406/1, Q414, Q414/1, Q415, Q415/1, Q418, Q418/1, Q424, Q424/1, Q425, Q425/1, Q426, Q426/1, Q429, Q429/1 to Q433/1, Q435, Q435/1, Q437, Q437/1, Q438, Q438/1, Q440, Q440/1, Q442, Q442/1, Q443, Q443/1, Q444, Q444/1, Q445, Q445/1, Q446, CBI No. 61/2016 (Old No. 65/2008) Page 62 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Q446/1, Q446/2, Q447, Q447/1, Q448/1, Q449, Q450/1, Q451, Q452, Q452/1, Q453/1, Q454 and Q455.
(iii) Perusal of the affidavits of the members and the GEQD report Ex. PW41/B further reveals that accused Anna Wankhade had also forged the signatures of numerous persons whose signatures are appearing at points at Q217, Q217A, Q218, Q221, Q228, Q232, Q234, Q235, Q238 to Q240, Q243, Q245, Q247, Q249, Q251, Q256, Q257, Q261, Q268, Q269, Q271, Q281, Q285, Q287, Q295, Q296, Q299, Q306, Q307, Q311 to Q314, Q316, Q318, Q319, Q321, Q323, Q324, Q324A, Q325 to Q328, Q330 Q332, Q333 and Q335.
(iv) Perusal of the resignation letters of the members and the GEQD report Ex. PW41/B further reveals that accused Anna Wankhade had also forged the signatures of numerous persons whose signatures are appearing at points Q477, Q477A, Q477B, Q478, Q483, Q484, Q497, Q498, Q505, Q506, Q509 to Q512, Q517 to Q522, Q527, Q528, Q531, Q532, Q535, Q536, Q537, Q539, Q540, Q543, Q544, Q564 to Q567, Q574, Q575, Q588 to Q591, Q594, Q595, Q614, Q616, Q623, Q624, Q627, Q628, Q643 to Q645, Q647, Q652, Q653, Q665 to Q670, Q675 to Q684, Q668, Q691 to Q694, Q698, Q701 to Q714, Q717 to Q724, Q727 and Q728.
53. From the forgoing discussion, it becomes crystal clear that A5 had not only recorded the minutes of the GBM of the Society in question, but he had also forged the signatures of numerous persons in the proceedings register. He had also forged the CBI No. 61/2016 (Old No. 65/2008) Page 63 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) signatures of members not only in proceedings register but also on the membership application forms; membership register; affidavits and resignation letters etc. He also forged the signatures on the application which was submitted before the RCS for revival of the Society and on the documents filed along with the application. In these circumstances, the onus is shifted upon A5 in terms of Section 106 of Evidence Act to explain the circumstances under which he had recorded the minutes of the GBM of the Society in question at various occasions and forged the signatures of numerous persons on the above said documents. But during trial, A5 failed to furnish any explanation. This establishes that he had mens-rea when he forged the signatures of numerous persons as discussed above and recorded the minutes of GBM of the Society in question.
54. In the light of aforesaid discussion, I am of the considered opinion that CBI has succeeded to bring home the guilt of accused Anna Wankhade beyond the shadow of reasonable doubts for the offence punishable under Section 420/468 IPC and 471 r/w 468 IPC.
55. Now question arises whether there was any connection or relation between accused Anna Wankhade and accused Sri Chand or not?
(i) PW40 Mr. Anil Singh, investigating officer deposed that A5 was an employee of Sri Chand and this shows that the application was moved by accused Sri Chand on which signature of Mr. Chaman CBI No. 61/2016 (Old No. 65/2008) Page 64 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Lal and Mr. Madan Lal were forged by accused Anna Wankhade. The testimony of PW40 to the extent that A5 was the employee of Sri Chand remained unrebutted during trial.
(ii) PW25 Sushil Kumar Sharma deposed that he was an employee of Sri Chand and he used to get a salary of ` 2500/- PM from him. He further testified that in the year 1997-98, Sri Chand shifted his office to plot no. 304A Pocket C, Mayur Vihar, Phase II, Delhi and further testified that Sri chand was working for number of societies and he was indulged in sale and purchase of societies and also used to give consultancy to societies. He further testified that Sri Chand and his son Satinder were members in NTO CGHS and they were holding the post of Vice President and Treasurer respectively in the Society. He further testified that he worked with Sri Chand till 2003. He further deposed that though he did not remember if Non- Judicial Stamp papers on which affidavits had been prepared {Ex. PW25/1 (colly} were purchased by him and accused Anna Wankhade at the instruction of accused Sri Chand but clarified that if the same were purchased by him and accused Anna Wankhade, the same must had been purchased at the instruction of accused Sri Chand. It is pertinent to state that the testimony of PW25 also remained unchallenged during trial.
(iii) PW37 Mr. Mohan Lal, President of NTO CGHS deposed that he knew Sri Chand as he was Vice President in the said society. He further deposed that he knew Mr. Sushil (PW25) because he was working in the Society and his duty was to deliver cheques/documents. He further deposed that Mr. Sushil and accused CBI No. 61/2016 (Old No. 65/2008) Page 65 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Anna Wankhade used to meet him at registered Office of NTO. He further deposed that though he had seen accused Anna Wankhade to do work in the office but he did not know in which Society he was doing the work. He further testified that he knew Anna Wankhade as he used to meet at premises no. 304A, Mayur Vihar, Phase-II, New Delhi and he (Anna Wankhade) was working with Sri Chand. He also identified Sri Chand and Anna Wankhade but swiftly added that he did not know about their nature of work. It is pertinent to state that the testimony of PW37 also remained unrebutted during trial.
56. From the testimony of PW25, PW37 and PW40, it can safely be culled out that PW25 and accused Anna Wankhade were employees of accused Sri Chand, who was dealing in sale and purchase of societies. Since it has already been established that in the instant case, accused Anna Wankhade had not only recorded the minutes of GBM of the Society in question but he had also forged he signature of numerous members in the proceeding registrar as well as in the membership register. He also forged the signature of numerous members on the membership application forms, affidavits and resignation letters. This establishes that there was a conspiracy between accused Anna Wankhade and Sri Chand.
(i) This conclusion also gets strength from the GEQD report (Ex. PW41/B).
(ii) As already discussed, during investigation, investigating officer had taken the specimen writing of accused Sri Chand, which are marked S89 to S93 {part of Ex. PW40/A (colly}.
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(iii) As per the GEQD report Ex. PW41/B, author of S89 to S93 is also the author of Q141 to Q148 and Q740.
(iv) Perusal of the record reveals that Q141 to Q148 are the writings in the membership register wherein the name, parents name and address of 5 members namely Mr. Vijay Kumar Bansal, Mr. A.N.Gupta, Ms. Shashi Gupta and Ms. Sweta Gupta and Mr. Satish Chand Sharma are written. This establishes that Sri Chand had inserted the name of said members in the membership register. It is pertinent to state that the above said five members are close relatives of co-accused Sumer Chand Gupta.
(v) As per the GEQD report Ex. PW41/B, accused Sri Chand is also the author of Q740 which contains the detail of five resigned members and five above said enrolled members.
57. In view of the above, in terms of Section 106 Indian Evidence Act, onus is shifted upon accused Sri Chand to explain under which circumstances he had inserted the name of above said five members in the membership register and under which circumstances he had prepared the list of five resigned members and five new enrolled members. But during trial, he failed to discharge the onus. In these circumstances, I am of the considered opinion that prosecution has succeeded to establish that there was some conspiracy between accused Sri Chand and Anna Wankhade and pursuant to the said conspiracy, accused Anna Wankhade had forged the signature of numerous members and also forged the signature of CBI No. 61/2016 (Old No. 65/2008) Page 67 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Mr. Madan Lal and Mr. Chaman Lal on the application submitted before the RCS for revival of the Society and pursuant to the said conspiracy accused Sri Chand had also inserted the name of five members in the membership register and prepared the list of five resigned and new enrolled members. Accordingly, accused Sri Chand is liable for the offence punishable under Section 120B IPC.
Findings qua Sumer Chand:
58. The role attributed to accused Sumer Chand is that he had approached the accused Sri Chand for the purchasing of one defunct Society, consequently accused Sri Chand got prepared the forged and fabricated documents with the help of his employee Anna Wankhade and got revived the Society in question from the office of RCS. When the Society was revived, accused Sumer Chand inducted his close family members and known persons as members of the Society in question and thereafter showed in the record that they had been elected as office bearers of the Society in question. In this manner, accused Sumer Chand had taken over the control of Society in question after its revival.
(i) As already discussed, during investigation, investigating officer had taken the specimen writing of A1 which is marked as Mark S71 to S74 and SF1 to SF15 {Ex. PW40/D (colly}.
(ii) As per the GEQD report Ex. PW41/B, author of S71 to S74 was also found the author of Q13, Q16, Q207/1 and Q216A. Similarly, as per GEQD report Ex. PW41/C, author of S71 to S74 and CBI No. 61/2016 (Old No. 65/2008) Page 68 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) SF1 to SF15 was also found the author of QF1 to QF11, Q14, Q17, Q18, Q208 and Q209.
(iii) Perusal of Q13, Q14, Q16, Q17 and Q18 reveals that Q13 & Q16 are the signatures of Mr. Vijay Kumar Bansal in the proceedings recorded on September 25, 2003 and October 20, 2003 whereas Q14 and Q17 are the signatures of Mr. A. N. Gupta on the said proceedings and Q18 is the signature of Ms. Shashi Gupta on the proceedings recorded on October 20, 2003. In other words, from the GEQD report Ex. PW41/B and Ex. PW41/C it is established that Mr. Sumer Chand had forged the signatures of Mr. Vijay Kumar Bansal, Mr. A. N. Gupta and Ms. Shashi Gupta in the above proceedings.
(iv) Perusal of the certificate Ex. PW39/B reveals that a certificate was purportedly issued by Mr. Vijay Kumar Bansal (President), Mr. A.N. Gupta (Vice President), Ms. Shashi Gupta (Secretary of the Society) to the effect that the list of members was considered by the Managing Committee of the Society and Managing Committee had been authorised to submit the same in the office of RCS. It was also certified that all members had been enrolled in accordance with the provisions of DCS Act 1972 and DCS Rules 1973. It was also certified that the information given in the list/certificate was as per record and nothing had been concealed or omitted or misprint or suppressed.
(v) On the said certificate, signature of Mr. Vijay Kumar is at point Q207/1, signature of Mr. A. N. Gupta is at point Q208 whereas the signature of Ms. Shashi Gupta is at point Q209. As per CBI No. 61/2016 (Old No. 65/2008) Page 69 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) the GEQD report Ex. PW41/B and Ex. PW41/C, author of said signatures was none other than accused Sumer Chand Gupta.
(vi) Ex. PW39/A, Ex. PW38/A, Ex. PW35/A are the affidavits of Ms. Shashi Gupta, Ms. Sweta Gupta and Mr. Narender respectively. Though the said affidavits are typed but certain blank spaces were filled up in hand and the said portion is Marked as QF1, QF2 and QF5 respectively. Similarly, there is an affidavit of Mr. Vijay Kumar Bansal, Mrs. Kamlesh and Mr. Surya Prasad Sharma. In their affidavits, the hand written portion is Marked as QF3, QF7 and QF9 respectively. The Hand written portion in the Form-60 of Mr. Vijay Kumar is marked as QF4 whereas the handwritten portion in Form-60 (Ex. PW35/B) of Mr. Narender is Mark QF6. The handwritten portion in Form 60 of Ms. Kamlesh and Mr. Surya Prasad are Mark QF8 and QF10 respectively.
(vii) From the GEQD report Ex. PW41/C, it becomes clear that the said handwritten portion were written by accused Sumer Chand Gupta.
59. Now coming to the oral testimony of witnesses. PW28 Surya Prasad Sharma, who was priest of accused Sumer Chand Gupta deposed that he became member of the Society at the request of accused Sumer Chand Gupta to whom he knew previously and he (PW28) had not paid any money to him. He had handed over the documents to Sumer Chand Gupta. In his cross-examination, he admitted that accused Sumer Chand Sharma did not pressurize him to become the member.
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(i) PW34 Mr. Ajay Narain Gupta is the son-in-law of accused Sumer Chand Gupta. He deposed that he had no concern with the Society in question and he had not signed any document. He denied his signature on the certificate Ex. PW39/B, proceeding register Ex. PW12/B. However, he admitted his specimen writings Ex. PW34/A. PW35 Mr. Narender was the driver of accused Sumer Chand Gupta. He deposed that he became member of the Society at the request of accused Sumer Chand Gupta. He admitted his signature on the affidavit Ex. PW35/A. Though he did not depose that the handwritten portion was written by accused Sumer Chand Gupta in his presence but he deposed that same was blank when he signed the affidavit and handed over the same to accused Sumer Chand Gupta. Similarly, he admitted the signature on Form Ex. PW60 (Ex. PW35/B) and deposed that he did not know who had filled up the blank space in the said form.
(ii) PW38 Sweta Gupta is the daughter-in-law of accused Sumer Chand Gupta and deposed that she had taken the membership of the Society and also admitted her signature on the affidavit and also admitted her specimen writing Ex. PW38/B but took the plea that she had taken the membership at the request of her friend whose name she did not remember due to lapse of time. PW39 Ms. Shashi Gupta is the wife of accused Sumer Chand Gupta. Though she also admitted her signature on the affidavit Ex. PW39/A and the certificate Ex. PW39/B, but deposed that she had become the member of the Society at the behest of her known who used to meet her in a park but she did not recollect the name of that person. She admitted her CBI No. 61/2016 (Old No. 65/2008) Page 71 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) signature on the affidavit Ex. PW39/C.
(iii) From the deposition of above said persons, it becomes clear that the above said persons were either known to accused Sumer Chand Gupta or they were his family members. No doubt, PW38 and PW39 deposed that they became the member of the Society in question at the behest of some unknown person but their said version does not inspire any confidence. Had it been so, accused Sumer Chand Gupta would not have forged the signature of his wife Ms. Shashi Gupta as discussed earlier. This shows that they had deposed falsely being the close relatives of accused Sumer Chand Gupta.
(iv) Since the signature of PW34 Mr. A. N. Gupta had been forged by accused Sumer Chand Gupta in the proceeding register at point Q14 and Q17, this proves that accused Sumer Chand Gupta had shown him elected as Vice-President in the Society without the knowledge of PW34.
(v) The society was revived on April 4, 2003. Perusal of the minutes of MC meeting held on June 6, 2003 recorded in the proceeding register Ex. PW12/B reveals that the said meeting was conducted under the Chairmanship of Mr. Chaman Lal, a fictitious person and in the said meeting, resignation of five members namely Dr. B. Bose, Mr. Pawan Kumar, Mr. Raj Kumar Sharma, Mr. Hari Lal and Mr. A. K. Sinha were accepted. As per the GEQD report, the said proceeding was recorded by accused Anna Wankhade.
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(vi) Thereafter, the next MC meeting was held on July 5, 2003 under the chairmanship of Mr. Chaman Lal, a fictitious person. In the said meeting five members namely Ms. Shashi Gupta, Ms. Sweta Gupta, Mr. Vijay Kumar Bansal and Mr. Satish Chand Sharma and Mr. A. N. Gupta were enrolled as members. It is pertinent to state that all the said persons were either family members or known to accused Sumer Chand Gupta. The said proceeding was also recorded by accused Anna Wankhade and he had also forged the signature of Mr. Chaman Lal and Mr. Vijay Kumar at point Q3 and Q4.
(vii) The next MC meeting was held on August 10, 2003 and it was conducted under the chairmanship of Mr. Chaman Lal. In the said meeting, the address of the Society was shifted from 1/ 2 (8), Village Malik Pur, Model Town, Delhi to G-2/78, Sector-11, Rohini, Delhi. As per GEQD report Ex. PW41/B, the minutes of the said meetings are also in the handwriting of accused Anna Wankhade and he forged the signature of Mr. Chaman Lal and Mr. Vijay Kumar Bansal at point Q6 and Q7.
(viii) It is pertinent to state that all the meetings were held in the presence of Mr. Chaman Lal, Ms. Sudershan Kaur, Viney Kumar and Anjana Kaul. As already discussed that all the said persons were found not residing at the addresses mentioned in the list, which shows that they were fictitious persons. The next meeting was held on September 5, 2003 under the chairmanship of Mr. Chaman Lal. In the said meeting, Mr. Chaman Lal and Mr. Madan Lal expressed their willingness to resign from the post of President and Vice-President respectively, accordingly their resignations were accepted. In their CBI No. 61/2016 (Old No. 65/2008) Page 73 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) place Mr. Vijay Kumar Bansal (brother-in-law of A1) was elected as President whereas Mr. A. N. Gupta (son-in-law of A1)was elected as Vice-President. As per GEQD report Ex. PW41/B, the said proceeding was also recorded in the handwriting of accused Anna Wankhade and he forged the signature of Mr. Chaman Lal and Mr. Viney Kumar at point Q9 and Q10. In other words, as per the MC meeting held on September 5, 2003, two fictitious persons namely Mr. Chaman Lal and Mr. Madan Lal had been replaced by Mr. Vijay Kumar Bansal and Mr. A. N. Gupta.
(ix) The next meeting was held on September 25, 2003 under the chairmanship of Mr. Vijay Kumar Bansal. In the said meeting, the other participants were Mr. A. N. Gupta, Ms. Sudershan Kaur and Ms. Anjana Kaul. In the said meeting, Mr. Viney Kumar and Ms Sudershan Kaur also tendered their resignations, which were accepted and in their place Ms. Shashi Gupta (w/o Sumer Chand Gupta) and Sweta (daughter-in-law of accused Sumer Chand Gupta) were elected as Secretary and Treasurer of the Society whereas Mr. Satish Chand Sharma was elected as executive member. As per the GEQD report Ex. PW41/B, the author of the said minutes was accused Anna Wankhade. He also forged the signature of Ms. Sudershan Kaur. On the said minutes, accused Sumer Chand Gupta had forged the signature of Mr. Vijay Kumar Bansal and Mr. A. N. Gupta at point Q13 and Q14.
(x) The next MC meeting was held on October 20, 2003 under the chairmanship of Mr. Vijay Kumar Bansal. Other participants were Mr. A. N. Gupta, Ms. Shashi Gupta, Ms. Sweta Gupta and Mr. CBI No. 61/2016 (Old No. 65/2008) Page 74 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Satish Chand Sharma. In the said minutes, it was resolved that bank account will be opened in Oriental Bank of Commerce, Prashant Vihar and Mr. Vijay Kumar Bansal, Ms. Shashi Gupta and Ms. Sweta Gupta would be authorised signatory. The said minutes were also recorded by accused Anna Wankhade. As per GEQD report Ex. PW41/B & PW41/C, accused Sumer Chand Gupta forged the signature of Mr. Vijay Kumar Bansal, Mr. A. N. Gupta and Ms. Shashi Gupta.
60. From the aforesaid discussion, it becomes clear that when the Society was revived, accused Sumer Chand Gupta had got enrolled his family members and known persons as members of the Society and thereafter, he got elected his wife, daughter-in-law and son-in-law as the office bearers of the Society. In this process, he had forged the signature of Mr. Vijay Kumar, Mr. A. N. Gupta and Ms. Shashi Gupta. This shows that all the said persons were enrolled at his behest otherwise there was no occasion for him to forge the signature of above said persons.
61. As already discussed that accused Sri Chand had entered the name of these five new enrolled members in the membership register and he also prepared the list of resigned and new enrolled members, this clearly proves that there was some conspiracy between accused Sumer Chand Gupta and Sri Chand. Since, accused Sumer Chand had forged the signature of Mr. Vijay Kumar Bansal, Mr. A. N. Gupta and Ms. Shashi Gupta, he is also liable for the offence punishable under Section 468 IPC. Since, he also forged the signature of above said persons on the certificate Ex. PW39/A which was submitted before the RCS with an intention to CBI No. 61/2016 (Old No. 65/2008) Page 75 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) cheat RCS, he is also liable for the offence punishable under Section 471 r/w 468 IPC.
62. In the light of the aforesaid discussion, I am of the considered opinion that prosecution has succeeded to establish that there was a conspiracy between accused Sumer Chand Gupta, Sri Chand and Anna Wankhade and pursuant to the said conspiracy accused Anna Wankhade had prepared the forged and fabricated documents and during that process, he had forged the signatures of numerous persons knowingly well that the same shall be used as genuine for the purpose of cheating. Similarly, accused Sumer Chand Gupta had also forged the signatures of several persons knowingly well that the same shall be used as genuine. Thus, they all are liable for the offence punishable under Section 120B r/w 420/468/471 IPC. Besides that prosecution has also succeeded to prove the guilt of accused Anna Wankhade and Sumer Chand Gupta for the offence punishable under Section 468 IPC and 471 r/w 468 IPC. I am also of the considered opinion that prosecution has also succeeded to prove the guilt of accused Sri Chand for the offence punishable under Section 471 r/w 468 as enrolled the five new members on the basis of forged and fabricated documents and proceedings.
Findings qua accused Faiz Mohd (A3) and Narender Singh Khatri (A9):
63. The allegations against accused Faiz Mohd. (A3) is that he had submitted a false and bogus report dated March 20, 2003 certifying that the Society was functioning at its registered office i.e. 1/ CBI No. 61/2016 (Old No. 65/2008) Page 76 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) 2 (8), Village Malik Pur, Model Town, Delhi and its President Mr. Chaman Lal produced all the records before him whereas the allegations against accused Narender Singh Khatri (A9) are that he had submitted a false election report when he was appointed as Election Officer.
(i) It is admitted case of CBI that A3 was appointed as Inspecting Officer vide order dated March 17, 2003 with directions to ascertain the factual position of the Society in question and to verify the records/documents of the Society and to submit the report at the earliest.
(ii) It is also undisputed fact that pursuant to the order dated March 17, 2003, accused Faiz Mohd submitted his inspection report dated March 20, 2003. Alongwith his report, he had also submitted his report on the prescribed format which bears the signature of Mr. Chaman Lal.
(iii) In his report, A3 certified that he had visited the office of the Society at address 1/ 2 (8), Village Malik Pur, Model Town, Delhi on March 18, 2003, where he met with Mr. Chaman Lal, President of the Society in question. In his report, he also certified that Mr. Chaman Lal produced all the relevant records of the Society. It was argued that since no Society was functioning at the above said address and Mr. Chaman Lal was a non existent person, A3 had submitted a false report in favour of the Society as he was in conspiracy with the accused persons.
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(iv) Though during trial, CBI has examined as many as 42 witnesses, yet none of them had uttered even a single word that the Society in question was not functioning from the address i.e. 1/ 2 (8), Village Malik Pur, Model Town, Delhi. Perusal of the chargesheet reveals that during investigation, investigating officer had recorded the statement of Mr. Rakesh Kumar, owner of the said premise, who informed the CBI that no such Society had ever functioned from the said address and further deposed that no office bearer of the Society had ever contacted him. On the basis of his statement, it was alleged by the CBI that A3 had not visited the said premises and he submitted a false report but unfortunately Mr. Rakesh Verma had expired during the pendency of trial, consequently CBI failed to bring him in the witness box. During trial, no attempt was made by the CBI to examine any other witness to establish the fact that the Society in question had never functioned from the above said address. Though prosecution has examined as many as 42 witnesses, yet none has uttered even a single word to establish the fact that the Society in question had never functioned from the above said address.
(v) Further, it was argued that since Mr. Chaman Lal was a non existent person, this establishes that A3 had never met with Mr. Chaman Lal as he certified in his report. But to my mind, the said contention is also without any basis. No doubt, it has already been held that Mr. Chaman Lal was not found residing at the address mentioned in the record, thus he may be a fictitious person and due to that reason his signatures were forged by accused Anna Wankhade at various documents including on the application for revival of the Society.
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(vi) Indisputably, signature of Mr. Chaman Lal also appears on the inspection report form but surprisingly, the investigating officer did not deem it appropriate to send the said signature to the GEQD for opinion. Since, the signature is appearing on the form, it means that someone had met with A3 who represented himself as Mr. Chaman Lal and put his signature on the said form. There is no evidence on record that the said signature was signed by accused Anna Wankhade or any other accused person. Moreover, there is no evidence on record to establish that A3 either knew accused Anna Wankhade or Mr. Chaman Lal prior to his visit. In other words, it can safely be culled out that A3 did not know Mr. Chaman Lal by face. Thus, it cannot be said that he was in a position to identify the person who represented himself as Chaman Lal.
(vii) Though in his entire deposition PW40 has not uttered even a single word towards the role played by A3, yet when a Court question was put to him regarding the conspiracy among the accused persons, he deposed that accused Faiz Mohd was deputed to verify the address of the Society, accordingly he visited the registered office of the Society but during investigation, it was revealed that no such address was in existence. He also deposed that Mr. Chaman Lal, the alleged Secretary of the Society was found non- existent person. Though, he deposed that during investigation it was revealed that no such Society was found functioning at the above said address but during trial, no such evidence was ever produced before the Court. As already stated that no attempt was made by the CBI to examine any other witness after the death of Mr. Rakesh Verma to establish the fact that the Society in question had never functioned CBI No. 61/2016 (Old No. 65/2008) Page 79 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) from the above said address.
(viii) Further, there is no explanation from the CBI why the investigating officer did not send the signature of Mr. Chaman Lal appearing on the Inspection report for examination and opinion. Had the signature be sent to GEQD for the purpose of opinion, prosecution atleast could prove that the said signature was forged. Even no attempt was made by the CBI to ascertain whether the signature was forged by accused Anna Wankhade as he did so on other documents. In the absence of any such evidence, prosecution has even failed to establish that the signature appearing on Inspection report is forged and fabricated.
(ix) In order to prove that Mr. Chaman Lal was a non existent person, prosecution has also relied upon the statement of Ms. Rashmi Gulati, Advocate, who represented the Society before the RCS at the time of its revival. But to my mind, the testimony of PW32 Ms. Rashmi Gulati is not helpful to the prosecution in any manner. Infact, PW32 turned hostile and did not support the prosecution case except on the fact that she had represented the Society before the RCS. She categorically deposed that she was engaged by Mr. Chaman Lal as his signature is appearing on the vakalatnama. She denied the suggestion that the vakalatnama was handed over to her by accused Sri Chand which already bore the signature of Mr. Chaman Lal. She was not even sure whether she had met with Mr. Chaman Lal or not because initially she deposed that she never met with Mr. Chaman Lal. But in the next breath deposed that she never met with him but again said that she did not recollect as the matter is CBI No. 61/2016 (Old No. 65/2008) Page 80 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) too old. In these circumstances, no reliance can be placed on the above said testimony. Thus, the testimony of PW32 is not helpful to the prosecution to establish that Chaman Lal was a non existent person and the vakalatnama bearing the signature of Mr. Chaman Lal was handed over to her by accused Sri Chand.
(x) Since it is undisputed fact that A3 had submitted the Inspection report, there may be two possibilities; first possibility is that he had submitted a false report without visiting the above premises or meeting with Mr. Chaman Lal and the second possibility is that he visited the above premises and met with some person, who represented himself as Chaman Lal and produced all relevant records of the Society. In the second case, he had been cheated by the person who claimed himself as Chaman Lal.
(xi) As already discussed that there is no evidence on record to prove the first possibility. In these circumstances, the second possibility cannot be ruled out. In the absence of any cogent evidence on record, I am of the view that A3 is entitled for the benefit of doubts.
64. The role attributed to A9 is that he had submitted a false Election report when he was appointed as Election Officer.
(i) It is admitted case of CBI that A9 was appointed as Election officer vide order dated April 4, 2003 and he conducted the election on May 4, 2003. As per the allegations, he had submitted his report on May 5, 2003 certifying that in the election Mr. Chaman Lal and Mr. Madan Lal were unanimously elected as President and Vice-
CBI No. 61/2016 (Old No. 65/2008) Page 81 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) President respectively whereas three persons namely Mr. Vijay Kumar, Ms. Anjana Kaul and Ms. Sudershan Kaur were elected as executive members of the Society in question.
(ii) As per the proceeding register, special GBM was called on May 4, 2003 wherein initially 25 members participated. Since, corram was not complete, the meeting was adjourned for half an hour. Thereafter, 27 other members also participated in the meeting, thus in total 52 persons participated in the meeting. As per the said minutes, the nomination forms were issued on April 23, 2003 and Society had received five nomination forms; one for the post of President, one of the post of Vice President and three forms for Managing Committee members. On scrutiny, the Society found the forms valid. None of the candidates had withdrawn his nomination, consequently, the list of contesting candidates was displaced. As per the minutes, the said meeting was held at Village Malik Pur, Model Town, New Delhi. As per the said minutes, Mr. Chaman Lal (membership no. 116) and Mr. Madan Lal (membership no. 117) were elected as President and Vice-President respectively whereas Mr. Vinay Kumar (membership no. 120), Ms. Anjana Kaul (membership no. 113) and Ms. Sudershan Kaur (membership no. 109) were elected as Managing Committee's members. Indisputably, the said minutes bear the signature of accused Narender Singh Khatri being the Election Officer.
(iii) As already discussed, there is no evidence on record that the Society had never functioned from the address 1 /2 (8), Village Malik Pur, Model Town, New Delhi, thus it can not be said that CBI No. 61/2016 (Old No. 65/2008) Page 82 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) the said proceeding was not conducted at the said address as mentioned in the minutes. Further the said minutes also contain the name of 52 members and the said members had also signed against their names. This shows that these 52 persons also attended the said proceedings but surprisingly CBI had not cited any of them as a witness to establish the fact that either their signatures are forged or they had not participated in the meeting.
(v) It is undisputed fact that the election is required to be conducted as per rules mentioned in Schedule II of the DCS Rules, 1973. As per Rule IV, the nomination papers are required to be signed by two members whose names are mentioned in the list of members. One of the members shall sign as proposer and the other as seconder on the for nomination form. In the instant case, no attempt was made by the investigating officer to seize the said nomination forms. There is no evidence on record to establish who proposed the name of elected candidates and who had seconded them. The members who purposed and seconded the candidates did not state before the CBI that their signatures on the nomination forms were forged. If their signatures were not forged, it means that they had purposed in favour of fictitious persons and they seconded the candidature of fictitious person. If, it was so, there is no explanation why the said persons had not been impleaded as an accused. It is pertinent to state that CBI in the chargesheet nowhere alleged that the election had been conducted without the nomination papers.
65. Now question arises whether the members who purposed and seconded their names knew that the candidates to CBI No. 61/2016 (Old No. 65/2008) Page 83 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) whom they were purposing or seconding are infact genuine persons or fictitious persons. But in this regard, no investigation was conducted by the investigating officer. Members who purposed or seconded a candidate are the best persons to depose above the identity of the candidates but in this case no attempt was made by the investigating officer to ascertain the identity of members who purposed and seconded the candidature of elected office bearers.
66. It is pertinent to state that during investigation, investigating officer had seized the nomination form of Mr. Viney Kumar, Ms. Anjana Kaul, Mr. Chaman Lal, Mr. Madan Lal and Ms. Sudershan Kaur, which they allegedly submitted at the time of election held on March 2, 2003. Perusal of their nomination forms reveals that name of Viney Kumar was proposed by Ms. Nirmala Devi and seconded by Mr. B. N. Kaul. Similarly, the candidature of Ms. Anjana Kaul was purposed by Mr. Prem Chand and seconded by Mr. Hakam Singh. The name of Mr. Chaman Lal was proposed by Mr. Anup Nanda and seconded by Mr. Padimini whereas the name of Mr. Madan Lal was proposed by Mr. Akshey Gupta and seconded by Mr. Ram Paul. Similarly, the name of Ms. Sudershan Kaur was recommended by Mr. Lekh Ram and seconded by Mr. S. N. Jha. This itself shows that there were some persons who represented themselves as Ms. Anjana Kaul, Mr. Chaman Lal, Mr. Madan Lal and Ms. Sudershan Kaur. But surprisingly no attempt was made by investigating officer to interrogate the members who proposed and seconded their CBI No. 61/2016 (Old No. 65/2008) Page 84 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) name. As already discussed that the members who proposed and seconded the candidatures of the persons are the best persons to tell about the genuineness of the said persons but no investigation was made in this regard.
67. Similarly, there is no evidence on record to establish that A9 knew any of the candidates prior to the said election. Thus, he was not in a position to decide whether the persons who had filed their nomination papers were genuine or fictitious. Mere fact that later on it was revealed during investigation that elected candidates were fictitious persons ipso-facto not sufficient to prove the guilt of A9. As already discussed that no attempt was made by the investigating officer to examine 52 persons who signed in the said minutes against their names and it is undisputed fact that their names are mentioned in the list of members. In the absence of any cogent evidence, it can not be said that A9 had submitted a false report.
68. In the light of aforesaid discussion, I am of the considered opinion that the evidence led by prosecution is not sufficient to prove the guilt of accused Faiz Mohd (A3) and Narender Singh Khatri (A9) beyond the shadow of all reasonable doubts, accordingly, I hereby acquit both of them from all the charges.
Findings qua accused Niranjan Singh (A7), Yogi Raj (A2) and Narayan Diwakar (A4):-
69. The role attributed to A2, A4 and A7 are that they were involved in the revival of the Society and they had not taken due CBI No. 61/2016 (Old No. 65/2008) Page 85 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) care at the time of processing/recommending/passing order for revival of the Society. It was alleged that the Society was revived after the gap of 24 years on false and fabricated documents prepared by A5, A6 and A3. They also failed to ascertain the status of liquidation proceeding before processing/recommending or passing of the order for revival of the Society.
(i) It is undisputed fact that the Society in question was liquidated vide order dated January 3, 1979 and Mr. B. P. Singh was appointed as Liquidator. The liquidation order is exhibited as Ex. PW20/E whereas the letter of Appointment of Liquidator is exhibited as Ex. PW20/D. It is also undisputed fact that before passing the liquidation order, a show cause notice dated March 17, 1978 was sent to the Society, copy of which is exhibited as Ex. PW20/C. As per the noting dated November 24, 1978, no reply had been received from the Society. The said note-sheet is exhibited as Ex. PW20/B. PW20 deposed that in the show-cause notice, it was mentioned that though a land was offered by the DDA to the Society, yet the Society failed to take the land and accordingly, DDA had closed the case. This shows that the Society was not interested in the allotment of the land, which was offered to the Society and since RCS had not received any reply to the show-cause notice, liquidation order was passed on January 3, 1979 vide Ex. PW20/E.
70. Now question arises whether after passing the Liquidation order, Society can be revived or not? If yes, whether there is any time limit in the DCS Act or Rules to revive the Society or not?
CBI No. 61/2016 (Old No. 65/2008) Page 86 of 105State through CBI v. Sumer Chand Gupta etc. (Martand CGHS)
(i) In this regard, Section 63 is relevant and same is reproduced as under:-
Winding up of co-operative societies:
(1) If the Registrar, after an inquiry has been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-fourths of the members of a co-operative society, is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up.
(2) The Registrar may of his own motion make an order directing the winding up of a co-operative society:
(a) where it is condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles.
(3) The registrar may cancel an order for the winding up of a co-operative society at any time, in any case where, in his opinion, the society should continue to exist.
(4) A copy of such order shall be communicated by registered post to the society and to financing institutions, if any, of which the society is a member.
(5) Notwithstanding anything contained in this section, no co-operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
(ii) Under sub-Section (2) to Section 63 of the DCS Act, CBI No. 61/2016 (Old No. 65/2008) Page 87 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) Registrar has discretion to wind up the Society of his own where in his opinion, Society has not commenced working or ceased to function in accordance with cooperative principles. Perusal of the liquidation order Ex. PW20/E reveals that the said order was passed under Section 63(2) (b) of the DCS Act.
(iii) Under Section 66 of DCS Act, Registrar is required to appoint Liquidator after passing the order under 63 of the Act. From the testimony of PW20, it becomes clear that Mr. B. P. Singh was appointed as Liquidator.
(iv) Under Section 69 of the DCS Act, Registrar is competent to cancel the registration of the Society after considering the report of Liquidator submitted to him under Section 67 (3) of the Act and the Registrar was required to communicate the said order to the President of the Society and its Financial Institution. Indisputably, in the instant case, Registrar has not exercised his jurisdiction under Section 69 of the Act.
(v) Under Rule 105 of the DCS Rules, 1973, the time limit is prescribed for termination of liquidation proceedings. The Rule reads as under:-
Termination of Liquidation Proceedings:-
The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar:-
Provided that the Registrar shall not grant any extension for a period exceeding six months at a CBI No. 61/2016 (Old No. 65/2008) Page 88 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem that the liquidation proceedings have been terminated if there are no central amount due to the Government or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
Explanation: In the case of co-operative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
(2) Notwithstanding anything contained in the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claim of the society have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
(3) The liquidator before submitting the final report may call a meeting of general body of the society and place the report before it if permitted by the Registrar.
71. Bare perusal of DCS Rule 105 makes it clear that the winding up proceeding is required to be closed within one year from the date of winding up order unless the time is extended by the Registrar. From the proviso to sub-Rule (1), it becomes crystal clear that the Registrar can extend the time initially for six months and CBI No. 61/2016 (Old No. 65/2008) Page 89 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) maximum to the period of three years. However, after the expiry of period of three years, Registrar has no power to extend the time and in that circumstances, the liquidation proceedings shall be deemed terminated provided if, there is no central amount due towards government or Financial bank by the Society. Admittedly, in the instant case, there is no evidence on record that any amount was due either towards the government or any financial bank, thus the liquidation proceedings was required to be terminated after the expiry of period of three years. Admittedly, in the instant case, the winding up proceeding was not concluded within a period of three years as prescribed under Rule 105 (1) of DCS Rules, 1973, thus the liquidation proceedings shall be deemed terminated after the expiry of period of three years.
(i) It is pertinent to state that during investigation no attempt was made to ascertain the cause of non-completion of liquidation proceedings within a period of three years.
(ii) Under Sub-Section (3) to Section 63 of DCS Act, 1973, Registrar has jurisdiction to cancel the winding up order of a cooperative society at any time where, in his opinion, the Society should continue to exist. In other words, Registrar has jurisdiction to cancel the winding up proceedings even before the expiry of period of three years as mentioned in Rule 105 (1) of DCS Rules, 1973. Though after the expiry of period of three years, no specific order is required to cancel the winding up proceedings because as per Rule 105, the proceedings shall deem have been terminated. However, from the combined reading of Section 63(3) of DCS Act and Rule 105 CBI No. 61/2016 (Old No. 65/2008) Page 90 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) of DCS Rule, 1973, it can safely be culled out that the Registrar is competent to cancel the winding up proceedings and to revive the Society even after the expiry of period of 3 years as mentioned under Rule 105 of DCS Rule, 1973.
(iii) It is admitted case of CBI that in the instant case, Society had moved an application dated March 6, 2003 under Section 63 (3) of DCS Act before the RCS for cancellation of winding up proceedings. The said application was put up by A7 on March 11, 2003 wherein he mentioned the facts in brief as mentioned in the application. Besides that, it was also highlighted that the liquidation order was passed vide order dated January 3, 1979 on four grounds namely Society failed to achieve its objectives; Society failed to comply with the provisions of DCS Act, Rules and by-laws; the Managing Committee was not taking the interest in the affairs of Society and there was no scope in future that Society would achieve its objectives. It was also highlighted that now the members of the Society in the Special GBM held on March 2, 2003 unanimously resolved to make a request to the RCS for revival of the Society and to approve the list of 120 members. The note was put up by A7 before A2 and same is exhibited as Ex. PW29/DA. In his note, A7 also purposed that accused Faiz Mohd, Grade-II be appointed under Section 54 of the Act to ascertain the factual position and to verify the records/documents of the Society. The said note was forwarded by A2 being the AR. Thereafter, the note was dealt with by the Joint Registrar on March 13, 2003 and he also forwarded the same to the RCS. RCS approved the note by putting his signature on March 17, 2003. Thereafter, file was sent back to the dealing Assistant through CBI No. 61/2016 (Old No. 65/2008) Page 91 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) same channel.
(iv) Section 54 of the DCS Act, 1972 authorises RCS either to inspect the record of the Society himself or authorises someone on his behalf to visit and inspect the records of the Society. In the instant case, A4 exercised his jurisdiction under Section 54 of the Act and authorised accused Faiz Mohd, Grade-II to visit and inspect the record and submit the report.
(v) Since, in the instant case, the application for cancellation of winding up proceedings and revival of the Society was moved after a long gap of 24 years, the step taken by A2, A4 and A7 was one of the reasonable steps in the right direction to ascertain about the genuineness in the claim of Society. It is pertinent to state that there is no evidence on record to suggest that there was any malafinde intention on the part of A7 when he purposed the name of accused Faiz Mohd to conduct the inspection or on the part of A2 and Joint Registrar who recommended the said proposal to the RCS. Similarly, there is no evidence on record to suggest that there was any malafide intention on the part of A4 when he approved the purposed name of Faiz Mohd.
(vi) In the light of aforesaid discussion, I am of the considered opinion that mere fact that A7 had purposed the name of Faiz Mohd to conduct the inspection or A2 had forwarded the same for approval is itself not sufficient to prove criminality on their part.
(vii) It is admitted case of CBI that pursuant to his CBI No. 61/2016 (Old No. 65/2008) Page 92 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) appointment under Section 54 of the Act, Faiz Mohd had submitted his report dated March 20, 2003. On receipt of the said report, A7 again put up a note on March 20, 2003 itself wherein he reproduced the relevant paragraphs of the report of Faiz Mohd. On the basis of report submitted by Faiz Mohd., A7 drew the following conclusion:-
"In view of the above stated facts that the present MC was continuously managing the affairs of the Society and was instrumental in its efforts to revive the Society. The MC of the Society has assured that in future they will fulfil/comply with the provisions of DCS Act and Rules and complete all the statutory obligations. "
Keeping in view the facts stated above we may submit the request of the Society before the worthy RCS to consider the following:-
(a) The request for revival of the Society under Section 63(3) of DCS Act, 1972;
(b) To approve the list of members for allotment of land.
(viii) The said note was forwarded by A2 on the same day to the Reader to the RCS. On receipt of the said note, Reader to the RCS recommended to summon President of the Society i.e. Mr. Chaman Lal for hearing on March 25, 2003. The said proposal was approved by RCS on March 20, 2003.
(ix) Since the note was not only prepared on March 20, 2003 when the report was submitted by accused Faiz Mohd but it was also forwarded by A2 and A9 on the same day and it CBI No. 61/2016 (Old No. 65/2008) Page 93 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) was also approved by A4 on the same day, no doubt the said promptness on their parts raise eyebrows but this promptness, in the absence of any other evidence, is not sufficient to draw a conclusion that there was any criminality on their part particularly when there is no evidence on record to show that either A7, A2, A9 or A4 had any knowledge that Faiz Mohd had submitted an incorrect report as alleged by the CBI. Though during trial even CBI failed to establish that the report was incorrect.
(x) Thereafter a personal hearing was given to the Society on March 25, 2003. The Society was represented by Ms. Rashmi Gulati, Advocate. She graced the witness box as PW32.
In her deposition, she confirmed that she had represented the Society in this matter and further deposed that she was engaged by Mr. Chaman Lal. This establishes that the Society was represented by PW32 during the hearing. After hearing the counsel for the Society, A4 directed the Reader to send the file in the concerned Zone for verification and matter was adjourned to April 3, 2003.
(xi) Perusal of the file reveals that A7 again put up a detail note running into more than 7 pages. The said note is exhibited as Ex. PW29/DB. In the said note, A7 highlighted all the relevant points. It was highlighted that the Society had requested to approve the list of 120 members and to forward the same to DDA for allotment of land. It was further highlighted that CBI No. 61/2016 (Old No. 65/2008) Page 94 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) the Society had enrolled 109 members prior to the freeze date i.e. June 30, 1986 and mentioned the name of all the said members. It was further stated that since the members were enrolled prior to June 30, 1986 no approval was required qua 109 members. It was further highlighted that neither any resignation nor any enrolment had taken place after July 1, 1986. It was also highlighted that the Society had submitted the photocopy of the application forms, copy of receipts of refund money, copy of minutes of Managing Committee and the affidavits of 120 members. Thereafter, the Society also produced the original record for verification which were examined and verified and found correct and in order. It was also highlighted that the membership strength of the Society as on freeze date was 120 and detail of the members was also mentioned. Society also submitted the unaudited account of the Society, election proceedings held on March 2, 2003 and also submitted the documents relating to election. The same was verified and found in order. The affidavit of President and Secretary of the Society was also taken. Accordingly, it was purposed to revive the Society and to approve the list of 120 members and send the same to DDA subject to audit of the account of the Society upto March 31, 2002. The note was forwarded by A2 to the Reader to the RCS i.e. A9. Thereafter, the personal hearing was given to the representative of the Society i.e Ms. Rashmi Gulati, Advocate. Counsel argued before RCS that the winding up order was passed on the ground that society did not respond to the CBI No. 61/2016 (Old No. 65/2008) Page 95 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) show-cause notice. It was urged that the show cause notice was never served upon the society as it was sent at the old address despite the fact that Society had already intimated its new address to the RCS. The matter was reserved for order. Ultimately, the order was passed by A4 on April 4, 2003 (Ex. W20/F).
72. Perusal of revival order reveals that the Society was revived on the grounds inter-alia that the original records were produced by the Society and the same were got verified; the record regarding the election held on March 2, 2003 was verified and found in accordance with the provisions of law; the record relating to the enrolled members was verified; fresh affidavits from all 120 members were also taken. MC of the Society was continuously managing the affairs of the Society and was instrumental in its revival and the absence of finalization of the liquidation proceedings. Accordingly, the Society was revived subject to the condition that the pending audit shall be got completed within two months and the election would be held within a period of two months. A4 also appointed Narender Singh Khatri as an Election officer.
(i) As already discussed that the liquidation proceedings were not finalized in terms of Rule 105 of DCS Rules; nor the Registrar had cancelled the registration of the Society and it is also undisputed fact that Registrar has CBI No. 61/2016 (Old No. 65/2008) Page 96 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) jurisdiction to revive the Society at any time under sub-Section (3) to Section 63 of the Act. In the instant case, the Society took the plea that Society had not received any show-cause notice as the same was sent at the old address of the Society. Admittedly, A4 had not passed the revival order mere on receipt of the application; rather he firstly directed to conduct a physical inspection to ascertain whether the Society was functioning or whether Society was maintaining its record or not and when the positive report was submitted by Faiz Mohd, A4 further directed to verify the record. When a positive note was put up before him by his sub-ordinate i.e. A2 and A7, after proper hearing, revival order was passed. During trial, CBI failed to establish that it was in the knowledge of either A2, A4 or A7 that report submitted by Faiz Mohd was incorrect, which CBI otherwise failed to prove during trial.
73. There is no other cogent evidence against A7, A2 and A4. In the absence of any other cogent evidence, I am of the considered opinion that the evidences led by CBI are not sufficient to bring home the guilt of A7, A2 and A4 beyond the shadow of all reasonable doubts. Accordingly, I hereby acquit them from all the charges.
Conclusion:-
74. In the light of aforesaid discussion, I am of the CBI No. 61/2016 (Old No. 65/2008) Page 97 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) considered opinion that CBI has succeeded to prove the guilt of accused Sumer Chand Gupta (A1), Anna Wankhede (A5) and Sri Chand (A6) beyond the shadow of all reasonable doubts for the offence punishable under Section 120B r/w 420/468/471 IPC. Accordingly, I hereby hold them guilty thereunder.
75. CBI has also succeeded to establish the guilt of accused Sumer Chand Gupta (A1) and Anna Wankhede (A5) beyond the shadow of all reasonable doubts for the offence punishable under Section 468 IPC and under Section 471 r/w
468. CBI has also succeeded to bring home the guilt of accused Sri Chand (A6) beyond the shadow of all reasonable doubts for the offence punishable under Section 471 r/w 468 IPC. Accordingly, I hereby hold them guilty thereunder.
76. However, CBI has failed to bring home the guilt of accused Yogi Raj (A2), Faiz Mohd. (A3), Narayan Diwakar (A4), Niranjan Singh (A7) and Narender Singh Khatri (A9) beyond the shadow of all reasonable doubts, accordingly I hereby acquit them from all the charges.
Announced in the open Court on this day of September 14, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 61/2016 (Old No. 65/2008) Page 98 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI.
IN THE MATTER OF:
CBI No. : 61/2016 (Old No. 65/2008)
CNR No. : DLNW01-000080-2007
FIR No. : RC-2(E)/2006/EOU-VII/CBI,
New Delhi
U/Sec: 120B IPC r/w
420/467/468/471 IPC
13(2) r/w 13 (1) (d) of PC Act 1988
substantive offences thereto
Police Station: CBI/EOU-VII/CBI/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI CBI No. 61/2016 (Old No. 65/2008) Page 99 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) VERSUS
1. Sumer Chand Gupta S/o Sh. M.L. Gupta R/o C-3/6, Prashant Vihar, New Delhi.
..........Convict No. 12. Anna Wankhede S/o Sh. Arjun G. Wankhede R/o 148/EA-2, Phase-III, Mayur Vihar New Delhi.
..........Convict No. 23. Sri Chand S/o Hari Singh R/o 274-A, Pocket-C, Mayur Vihar, Phase-II, Delhi-110091 ..........Convict No. 3 Appearance: Sh. Prabhat Kumar, Ld. Senior Public Prosecutor for CBI Sh. S.K. Bhatnagar, Advocate, counsel for convict Sumer Chand Gupta (C1) Sh. Abhishek Prasad, Advocate, counsel for convict Anna Wankhede (C2) and Srichand (C3) CBI No. 61/2016 (Old No. 65/2008) Page 100 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated September 14, 2016, convict Sumer Chand Gupta (C1), Anna Wankhede (C2) and Sri Chand (C3) have been held guilty for the offence punishable under Section 120B r/w 420/468/471 IPC.
(i). Convict Sumer Chand Gupta (C1) and Anna Wankhede (C2) have also been held guilty for the offence punishable under Section 468 IPC and under Section 471 r/w 468 IPC.
(ii) Convict Sri Chand (C3) has also been held guilty for the offence punishable under Section 471 r/w 468 IPC.
2. Learned counsels appearing for the convicts submitted that convicts have been facing the agony of trial for the last more than 11 years. It is further submitted that there is no evidence on record to prove that any of the convicts had obtained any wrongful gain. Similarly, there is no evidence to establish that any person had suffered any wrongful loss due to the acts of convicts. It is further submitted that even no land had been alloted to the Society in question. It is further submitted that no complaint is pending against any of the convicts before any authority.
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(i) Learned counsel appearing for convict Sumer Chand Gupta submits that he is an old person of 67 years and he is suffering from old age diseases like blood pressure, diabetes etc. It is further submitted that his wife is bed ridden for last several years as she is also suffering from numerous diseases. It is further submitted that convict Sumer Chand Gupta has no criminal antecedents and he had no role in the revival of society. It is further submitted that during investigation, he remained in custody for about two months. At last, it is prayed to release him on Probation of good conduct.
(ii) Learned counsel appearing for convict Anna Wankhade submits that he is an old person of 64 years and presently he is unemployed. He is sole bread earner of his family comprising of his wife and two sons. It is further submitted that his one son is a kidney patient. It is further submitted that during trial, he remained in custody for about 18 months.
(iii) Learned counsel appearing for convict Sri Chand submits that he is 58 years old person and he is suffering from various diseases. He has three unmarried daughters and one unmarried son and he remained in custody for about 12 months during trial.
3. Per contra, learned Sr. Public Prosecutor appearing for CBI refuted the said contentions by praying that maximum punishment should be awarded to the convicts as they forged the documents in a calculated manner to cheat RCS and DDA to get the land at subsided rate. It is submitted that considering the gravity of offences, they do not deserve any leniency.
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4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. It has already established that the convicts had entered into a criminal conspiracy, object of which was to get a defunct society revived on the basis of false and fabricated documents. In order to achieve the object, convicts forged numerous documents and ultimately they succeeded in their object. The purpose of getting to revive the defunct society was to get land in the name of society from DDA at subsidised rate. Thus, it can safely be culled out that in the instant case, convicts had committed the forgery for the purpose of wrongful gain by getting the land at subsidised rate from DDA. But fortunately, land could not be alloted to them. Mere fact that society could not get the land from DDA, it does not minimize the offence committed by them.
(i) Considering the gravity of the offence, I am of the considered opinion that it is not a fit case to exercise the provisions of Probation of Offenders Act as prayed by counsel for convict Sumer Chand Gupta.
6. Considering the aggravating and mitigating factors as highlighted by counsel for both the parties, I hereby sentence the convict nos. 1 to 3 i.e. Sumer Chand Gupta, Anna Wankhede and Sri Chand rigorous imprisonment for a period of two years and a fine of ` 50,000/- each in default further simple imprisonment for a CBI No. 61/2016 (Old No. 65/2008) Page 103 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) period of six months for the offence punishable under Section 120B r/w 420/468/471 IPC.
(i) It has been established that convict Sumer Chand Gupta (C1) is the person who ultimately took the control of society by enrolling his nears and dears as members of the society and thereafter, he had shown them elected as office bearers of the society. Considering the role played by convict Sumer Chand Gupta and mitigating factors as highlighted by learned defence counsel, I hereby sentence him rigorous imprisonment for a period of two years and a fine of ` 1.50 lac in default further simple imprisonment for a period of nine months for the offence punishable under Section 468 IPC. I also sentence him rigorous imprisonment for a period of one year and a fine of ` 50,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 471 r/w 468 IPC.
(ii) It has also been established that convict Anna Wankhade (C2) is the person who had forged the signatures of numerous persons while preparing the forged and fabricated documents. It has also been established that he was an employee of convict Sri Chand, which proves that he did so at the instance of convict Sri Chand. Considering the role played by convict Anna Wankhade and mitigating factors as highlighted by learned defence counsel, I hereby sentence him rigorous imprisonment for a period of two years and a fine of ` 75,000/- in default further simple imprisonment for a period of seven months for the offence CBI No. 61/2016 (Old No. 65/2008) Page 104 of 105 State through CBI v. Sumer Chand Gupta etc. (Martand CGHS) punishable under Section 468 IPC. I further sentence him rigorous imprisonment for a period of 18 months and a fine of ` 25,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 471 r/w 468 IPC.
(iii) It has also been established that convict Sri Chand (C3) was an employer of convict Anna Wankhade and he was the main conspirator with convict Sumer Chand Gupta. Considering the role played by convict Sri Chand and mitigating factors as highlighted by learned defence counsel, I hereby sentence him rigorous imprisonment for a period of two years and a fine of ` 1.50 lac in default further simple imprisonment for a period of nine months for the offence punishable under Section 471 r/w 468 IPC.
7. All sentences shall run concurrently. Benefit of Section 428 Cr. P.C, if any, be given to the convicts.
8. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
9. File be consigned to record room.
Announced in the open Court on this 27th day of September, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 61/2016 (Old No. 65/2008) Page 105 of 105