Delhi District Court
Cbi vs . Narayan Diwakar Etc. (Sea Show Cghs ... on 27 January, 2021
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
IN THE COURT OF SH. VIRENDER BHAT
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
CBI No. : 210/2019
CNR No. : DLCT11-000853-2019
FIR No. : RC-S18/2006/E0011/CBI/EOU-IV/N. DELHI.
PS : CBI/EOU-IV/NEW DELHI.
U/s : 120-B IPC r/w Section 420, 468, 471 IPC
and Section 13 (2) r/w Section 13 (1) (d) of
P.C. Act, 1988 and substantive offences
thereof.
State
Through
Central Bureau of Investigation
New Delhi.
Versus
1. Narayan Diwakar
S/o Late Sh. Chhati Lal
R/o G-30, Masjid Moth,
Greater Kailash-II,
New Delhi. ........................(A-1)
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
2. Ved Pal Singh
S/o Sh. Hukam Singh
R/o Flat No. 551, Sunehri Park Apartment,
Sector-13, Rohini,
New Delhi-110078. ............(A-2)
3. Sh. Gopal Singh Bisht,
S/o Sh. Inder Singh Bisht
R/o H. No. 225, Sector-12,
Rama Krishan Puram,
New Delhi.
Permanent Address:-
Village - Bachhni, Post Office-Jakani,
District-Rudraprayag,
Uttarakhand. .......................(A-3)
4. Gokul Chand Aggarwal
S/o Late Sh. Jagdish Parshad Aggarwal
R/o H. No. A-603, Ashoka Apartment,
Plot No. 36/2, Rohini, Sector-IX,
Delhi. ....................................(A-4)
(Declared proclaimed offender vide order dated 16.10.2018)
5. Ashwani Kumar Sharma
S/o Late Sh. Ram Kishan Sharma
R/o H. No. 291-A, Pocket -C,
Mayur Vihar, Phase -II,
New Delhi -110091. ................(A-5)
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
6. Prahlad Kumar Thirwani
S/o Late Sh. Moti Ram Thirwani
R/o 348-E, Pocket-II,
Mayur Vihar, Phase-I,
New Delhi 110091. ...................(A-6)
7. Sanjeev Bharti
S/o Sh. Mohinder Bharti Madan
R/o C-4/C, Pocket -14,
Flat No. 113, Janak Puri,
New Delhi. ................................(A-7)
8. Ashutosh Pant
S/o Sh. Mahesh Chandra Pant
R/o H. No. B-160, Sadat Pur,
Karwal Nagar,
Delhi-110094. ............................(A-8)
9. Naveen Kaushik
S/o Late Sh. Mahinder Dutt Sharma
R/o H. No. 1/2/38, Rohini,
Sector-16, New Delhi. ..............(A-9)
10. Naresh Kumar
S/o Late Sh. Chet Ram
R/o GH-9/400, DDA Flat (LIG),
Paschim Vihar, New Delhi.
Permanent Address:-
Village- Mahrana, The. Bhadra,
Distt. Hanuman Garh,
Rajasthan. .............................(A-10)
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
11. Rajesh Kumar Dhaka
S/o Late Sh. Inder Singh Dhaka
R/o Kothi No. 126, Pocket-B/6,
Sector -11, Rohini, New Delhi.
Permanent Address:-
H. No. 1306-B, Urban Estate-II,
Hissar, Harayana. ..................(A-11)
12. Vimal Kumar Aggarwal
S/o Late Sh. Ram Kumar Aggarwal
R/o H. No. G-7/5, Ground Floor,
Sector-11, Rohini, New Delhi
Permanent Address:-
Vishkrama Nagar, Kattha Mandi,
Rohtak, Haryana. .....................(A-12)
13. Pramod Kumar Garg
S/o Late Sh. B.R. Garg
R/o 427, Bahera Enclave,
Paschim Vihar,
New Delhi. .................................(A-13)
(Since discharged vide order dated 06.10.2018)
14. Davender Kumar
S/o Late Sh. Mage Ram
R/o H. No. 60,
Suvidha Kunj, Pitam Pura,
New Delhi. .................................(A-14)
(Since discharged vide order dated 06.10.2018)
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
15. Ajit Singh Dahiya
S/o Sh. Chet Ram Dahiya
R/o H. No. G-194,
Parshant Vihar,
New Delhi.
Permanent Address:-
Village Fateh Pur, Sonepat,
Haryana. ........................................(A-15)
(Since discharged vide order dated 06.10.2018)
16. Subhash Gupta
S/o Late Sh. Mange Ram
R/o H. No. 427, Behra Enclave,
Paschim Vihar,
New Delhi. ........................................(A-16)
(Since discharged vide order dated 06.10.2018)
17. Mohit Saxena
S/o Sh. Anil Saxena
R/o 1011, Park Royal Apartment,
Plot No. 10-A, Sector-9,
Dwarka, New Delhi. ..........................(A-17)
18. Sushil Prakash Saxena
S/o Late Sh. Raja Bahadur Saxena
R/o 664, Adarsh Purwal CGHS,
Princes Park, Sector-6,
Dwarka, New Delhi. ..........................(A-18)
(Since discharged vide order dated 06.10.2018)
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
19. P.R. Nair
S/o Sh. Parameshwar Nair
R/o E-2/112, Rohini, Sector -16,
New Delhi.
Permanent Address:-
Village & PO - Nedumkunnam,
Distt. Kottayam,
Kerala. ............................................(A-19)
20. Rajan Sarin
S/o Late Sh. Satya Pal Singh
R/o E-13, Ground Floor,
Moti Nagar, Delhi. ...........................(A-20)
(Since expired. Proceedings against him stand abated vide
order dated 15.03.2010)
Date of Institution : 01.04.2008
Date of judgement reserved on : 21.01.2021
Date of pronouncement of judgement : 27.01.2021
J U D G E M E N T:-
1. The above named accused had been charge-sheeted by the CBI for having committed offences under Section 120B IPC r/w Section 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 as well as substantive offences thereof. It is alleged that all these accused had entered into a criminal conspiracy for revival of a defunct/liquidated society namely Sea Show CGHS Ltd. on the basis of false/fake documents with the object that the land is allotted to the CBI Case No.210/2019 Page No. 6 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) society on cheaper price by DDA.
2. The Legal machinery was set into motion in this case on 09.06.2006 when the CBI registered preliminary enquiry vide No. PE- SIJ 2006 E 0001 in pursuance to the order dated 02.08.2005 passed by the Hon'ble High Court in Civil Writ Petition No. 10066 of 2005. Thereafter, on the basis of out come of the preliminary enquiry, the instant case bearing No. RC-S18-2006-E-0011 was registered on 04.12.2006 to unearth large scale involvement of builder mafia in connivance with the RCS officials in the Cooperative Group Housing Society Scam.
Prosecution Case:-
3. It is the case of the prosecution that the revival process of Sea Show CGHS Ltd. was started in the RCS office on receipt of application dated 04.09.2002 purportedly initiated by A5 Ashwani Sharma as its Secretary/President. It was mentioned therein that the society Sea Show CGHS Ltd. was registered in RCS office on 01.10.1983 vide registration no. 695(GH) having its registered office at 1235, Sector-3, Pushp Vihar, Delhi and was later on put into liquidation vide order dated 10.05.1989 passed by Hans Raj, the then Deputy Registrar for failure to complete the statutory formalities.
However, the investigations revealed that a Group Housing Society named Sea Shava was registered at Sr. No. 695 (GH) on 01.10.1983 in the RCS office having its registered office at 1235, Pushp Vihar, Sector-3, Saket, New Delhi and its name was duly published in a Directory of Housing Societies registered in the United Territory as on CBI Case No.210/2019 Page No. 7 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) 30.06.1984 maintained in the RCS office, Delhi.
4. The society was having a strength of 58 members with 6 managing committee members namely S. Sujata Kumar (President), Satyapal Singh @ S.P. Singh (Secretary), Ashok Kumar (Treasurer), Shish Kaur (Member), D.K. Yadav (member) and Gajraj Singh (member). In the society Sea Show CGHS Ltd. regarding which application for revival was submitted in RCS office, Ajit Singh was shown as its President, Atma Ram as its Vice President, Laxman Singh as Secretary, Dal Singh as Treasurar and Rakesh Kumar as Member of its first Managing Committee.
5. In the application for revival of the society submitted in the RCS office on 04.09.2002, registered address of the society was shown as M-31A, Greater Kailash, Part -II, New Delhi. In the very first note prepared in this regard on 11.09.2002 by A-3 Gopal Singh Bisht, the then Dealing Assistant, it was mentioned that the original file of the society was not traceable. Upon receipt of another application dated 15.11.2002 on behalf of the society purportedly signed by A-4 Gokul Chand as G. Chander requesting for early hearing and submission of the documents for revival of the society, A-3 Gopal Singh Bisht proposed initiation of quasi judicial proceedings as well as re- construction of the file on the basis of the documents available with the society. Without making any attempt to trace the original file pertaining to the society and without lodging any FIR with the police in this regard, A-1 Narayan Diwakar, the then Registrar allowed the process of revival to continue on the basis of photocopies of the documents made available by the society. File was reconstructed on CBI Case No.210/2019 Page No. 8 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) the basis of those photocopies of the documents which included registration certificate of the society, its bye-laws, membership register, proceedings register, list of members, un-audited statement of accounts, affidavits and applications for membership of 114 members etc. These were found to have been prepared and signed by A-4 Gokul Chand Aggarwal as its President, A-5 Ashwani Sharma as its Secretary by the name Amit Goel as well as its Treasurer by the name Vijay Aggarwal. It was found that 114 members, whose names were mentioned in the membership list, were falsely shown to have been enrolled as members by writing false proceedings w.e.f 13.09.1983 till September, 2001 by A-8 Ashutosh Pant and A9 Naveen Kaushik, both of whom were employed by A5 Ashwani Kumar Sharma. In fact, it is stated, the names and other details of 56 members were taken from the list of members of Himani Co-operative Group Housing Building Society without their knowledge.
6. It is alleged that photocopies of the documents so submitted on behalf of the society for its revival were accepted as genuine without any inquiry by the RCS officials Narayan Diwakar, Gopal Singh Bisht and Ved Pal Singh in utter abuse of their official positions knowing fully well that the documents so submitted are forged. They, being a party to the criminal conspiracy, did not take any step to verify the genuineness of these documents and accordingly, society was revived vide order dated 03.12.2002 passed by A-1 Narayan Diwakar. Its list of 114 members was hurriedly sent by DDA for allotment of land without getting its pending audit completed as stipulated in the revival order which clearly shows that undue favours were given to the society.
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7. A-7 Sanjeev Bharti, the then Stenographer, Grade -III in the RCS office, A-6 P. K. Thirwani, Senior Auditor in the RCS office. A-11 Rajesh Kumar Dakka, A-12 Vimal Kumar Aggarwal, A-13 Promod Kumar Garg, A-14 Devender Kumar, A-15 Ajit Singh Dahiya and A-16 Subhash Gupta (all private persons) are also stated to have joined hands with each other and also with other conspirators which lead to the allotment of land to the society by DDA. It is alleged that A-7 Sanjeev Bharti and A-6 P.K. Thirwani had prepared and submitted false election report and audit report respectively without conducting any such election or audit. After the case of the society had been processed by DDA for allotment of land to it, the offer cum demand letters dated 03.02.2003 and 31.12.2003 were collected by A-17 Mohit Saxena, who appended forged signatures of Amit (as Secretary of the society) and G.C. Aggarwal (as President of the society) in the acknowledgement on the basis of forged/ fake authority letter as well as resolution prepared for this purpose. Plot of land measuring 6500.77 square meters in Sector-19, Dwarka, New Delhi was allotted to the society by DDA and its possession was handed over to the society on 28.05.2004.
8. It is alleged that A-15 Ajit Singh Dahiya, A-14 Devender Singh, A-13 Prmod Kumar Garg and A-16 Subhash Gupta had joined the criminal conspiracy by making payment of initial 35 % of the cost of land to DDA. The said amount of Rs. 1,15,02,400/- is stated to have being deposited by A-14 Devender Kumar by way of a demand draft which was issued from the current account of his sole proprietorship firm M/s M.D.R. Foods as per oral request of A-15 Ajit Singh Dahiya. Devender Kumar is stated to have received the said amount back CBI Case No.210/2019 Page No. 10 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) from the society later on through 8 cheques during the period from 08.07.2003 to 12.07.2003. Ajit Singh is alleged to have played vital role in the matter of allotment of land by the society to DDA by using the address of one of his employers namely Rajan Sareen (A-20) (who has already expired) for correspondence with DDA.
9. Further case of the prosecution is that after taking over the control/charge of the society from A-18 S.P. Saxena, and A-15 Ajit Singh Dahiya, A-16 Subhash Gupta handed over the same to his brother in law A-13 Promod Kumar Garg. Subhash Gupta is stated to have invested Rs. 2,26,25,000/- in the society. Promod Kumar Garg is stated to have made his relatives and friends as the members as well as office bearers of the society. A-10 Naresh Kumar, A-11 Rajesh Kumar Dhaka and A-12 Vimal Kumar Aggarwal are the close associates of Pramod Kumar Garg who played active role by replacing all 114 initial members of the society from their membership and induction of new members in their place, arranging funds to be paid to the DDA and making payments to DDA. They also arranged to pay 65% cost of land to DDA after attaining bridge loan from DCFHC.
10. It is, thus, alleged that as a result of aforesaid various commissions and omissions on the part of A-1 to A-18, the society was illegally revived and accused succeeded in getting allotment of a plot of land to the society from DDA. Accordingly, the charge sheet was prepared and was filed in the court of concerned Special Judge, CBI on 01.10.2008. Cognizance of various offences as mentioned in the charge sheet was taken by my Ld. Predecessor vide order dated 26.07.2008 and accordingly, A-1 to A-18 were summoned.
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11. However, it appears that later on, a supplementary charge sheet was filed by the CBI wherein two more accused i.e. A-19 P.R. Nair and A-20 Rajan Sarin were arraigned. It is pertinent to note here that A-20 Rajan Sarin has been cited as a witness in the initial charge sheet at serial no. 19 in the list of witnesses. His statement U/s 161 Cr P.C was also enclosed with the initial charge sheet. Vide order dated 09.09.2009, my Ld. Predecessor took cognizance of the offences mentioned in the supplementary charge sheet and issued summons to these two accused namely P.R. Nair and Rajan Sarin. It was also directed in the said order that the name of Rajan Sarin be struck off from the list of witnesses filed alongwith the main charge sheet.
12. Sanction to prosecute accused Gopal Singh Bisht, P.K. Thirwani and Sanjeev Bharti as contemplated under Section 19 of PC Act, 1988 was duly obtained. However, the other two public servants namely Narayan Diwakar and Ved Pal Singh are stated to have retired before filling of the charge-sheet and hence sanction for their prosecution was not obtained.
13. It may be noted here that A-20 Rajan Sarin expired soon after the filing of the charge-sheet and proceedings against him stand abated vide order dated 15.03.2010. Accused Gokul Chand Aggarwal (A-4) absconded as he stopped appearing before this Court since 23.04.2018. Accordingly, he has been declared proclaimed offender vide order dated 16.10.2018.
CBI Case No.210/2019 Page No. 12 of 90CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Charges against the accused:-
14. Charges against the accused were decided by this Court vide order dated 06.10.2018. A-13 Pramod Kumar Garg, A-14 Davender Kumar, A-15 Ajit Singh Dahiya, A-16 Subhash Gupta and A-18 S.P. Saxena were discharged. However, it was held that the charges are liable to be framed against the remaining accused as under:-
(i) Charge u/s 120B r/w 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act against Narayan Diwakar (A-1), Ved Pal Singh (A-2), Gopal Singh Bisht (A-3), Ashwani Kumar Sharma (A-5), P.K. Thirwani (A-6), Sanjeev Bharti (A-7), Ashutosh Pant (A-8), Naveen Kaushik (A-9), Naresh Kumar (A-10), Rajesh Kumar Dhaka (A-11), Vimal Kumar Aggarwal (A-12), Mohit Saxena (A-17) and P.R. Nair (A-19).
(ii) Charge u/s 13 (2) r/w Section 13 (1) (d) of PC Act against Narayan Diwakar (A-1), Ved Pal Singh (A-
2), Gopal Singh Bisht (A-3), P.K. Thirwani (A-6) and Sanjeev Bharti (A-7).
(iii) Charge u/s 420/468/471 IPC against Awhani Kumar Sharma (A-5), Ashutosh Pant (A-8), Naveen Kaushik (A-9), Naresh Kumar (A-10), Rajesh Kumr Dhaka (A-11), Vimal Kumar Aggarwal (A12), Mohit Saxena (A-17) and P.R. Nair (A-19).
15. All these accused denied charged framed against them and CBI Case No.210/2019 Page No. 13 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) hence trial was held. Thus, the trial of the case took place only against 13 accused namely Narayan Diwakar, Ved Pal Singh, Gopal Sing Bisht, Ashwani Kumar Sharma, P.K. Thirwani, Sanjeev Bharti, Ashutosh Pant, Naveen Kaushik, Naresh Kumar, Rajesh Kumar Dhaka, Vimal Kumar Aggarwal, Mohit Saxena and P.R. Nair.
Witness examined by the prosecution:-
16. In order to prove the charges against the accused, prosecution has examined as many as 89 witnesses. They can be classified as under for the sake of convenience:-
(i) Those who never became members of the society but have been shown as its members:-
PW-1 Sh. Amit Goyal PW-21 Sh. D.R. Gupta PW-24 Sh. Gopal Dass Verman PW-26 Sh. Nanak Chand Gangwal PW-31 Ms. Pramod Johri PW-41 Sh. Raj Singh PW-42 Sh. Salil Kapoor PW-45 Ms. Shyama Pant PW-46 Ms. Saroj Sharma
(ii) Those who became members of the society in or after the year 2003:-CBI Case No.210/2019 Page No. 14 of 90
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) PW-35 Sh. Manoj Kumar Tomar PW-54 Sh. Vikram Singh PW-55 Sh. Gurvinder Singh PW-56 Sh. Sudhir Gupta PW-57 Sh. Ajay Jain PW-70 Sh. Sunil Arora PW-80 Sh. Om Prakash Jain PW-83 Sh. Arun Kumar Tayal
(iii) Other private witnesses:-
PW-2 Sh. B.L. Goyal
PW-4 Sh. Sanjay Garg
PW-14 Sh. Ashish Gupta
PW-15 Sh. Rajesh Jain
PW-16 Smt. Anju Gupta
PW-18 Sh. Sukhbir Garg
PW-19 Sh. Baljeet Garg
PW-20 Sh. Chander Bhan Arya
PW-22 Ms. Gurpreet Bawa
PW-23 Ms. Durgesh Lal
PW-25 Sh. Devender Kumar Vijay
PW-28 Sh. Madan Lal Arora
PW-30 Sh. Harjeev Aggarwal
PW-32 Ms. Neeru Gupta
PW-34 Sh. Praveen Kumar
PW-36 Sh. Rajiv Gupta
PW-37 Sh. Sanjay Tekwani
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) PW-38 Sh. Rajender Singh Malhotra PW-43 Ms. Surender Kaur PW-47 Sh. Vijay Kumar Malhotra PW-48 Sh. Thulasee Dharan Pillai PW-49 Smt. Prem Lata Aggarwal PW-50 Smt. Chandrani Bhatia PW-51 Smt. Ravinder Kaur PW-54 Sh. Vikram Singh PW-58 Sh. Krishan Kalra PW-72 Sh. Suresh Rawal PW-73 Sh. Sanjay Kumar Garg PW-74 Sh. Dinesh Kumar Nijhawan PW-89 Sh. Raj Kumar
(iv) Postmen:-
PW-33 Sh. Pyare Lal
PW-52 Sh. Sube Ram Chauhan
(v) Sanctioning Authority:-
PW-71 Sh. Rakesh Mehta
PW-77 Sh. Sandeep Kumar
PW-78 Sh. R.K. Srivastava
(vi) Expert witness:-
PW-84 Sh. R.S. Rana
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
(vii) Witnesses from the office of Registrar Cooperative Societies:-
PW-3 Sh. Hansraj
PW-8 Sh. Ramesh Kumar Gupta
PW-9 Sh. K. Hari Dass
PW-10 Sh. Kamal Kant Satija
PW-29 Sh. Rakesh Bhatnagar
PW-40 Sh. Krishan Kumar
PW-59 Sh. N.S. Khatri
PW-66 Sh. Anil Kumar
PW-76 Sh. Khem Chand Yadav
PW-79 Sh. Yogi Raj
(viii) Witnesses from DDA:-
PW-13 Sh. Virender Singh Verma
PW-27 Sh. Paras Nath
PW-39 Sh. Rameshwar Dayal Chaudhary
PW-53 Sh. Shukal Kumar Auluck
PW-75 Sh. Khushhal Singh Rawat
(ix) Witnesses from Banks:-
PW-5 Sh. Iqbal Singh Nayan
PW-11 Sh. Shyam Mohan
PW-12 Sh. Ravi Prakash
PW-17 Sh. H.S. Manku
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CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) PW-81 Sh. Mohan Pal Singh PW-82 Sh. Tejinder Singh
(x) Witness from Tihar Jail:-
PW-88 Sh. Vinay Thakur (xi) Witnesses from CBI:- PW-6 Sh. Devender Singh PW-7 Sh. M.C. Joshi PW-60 ASI Ashok Kumar PW-61 ASI Madan Pal Singh PW-62 Ct. Mehboob PW-63 HC Kishore Kumar PW-64 SI Rameshwar Sharma PW-65 HC Brijesh PW-67 Sh. Yudhveer Singh PW-68 Sh. Satpal PW-69 Sh. Ramesh Chand PW-85 Sh. Manjeet Singh PW-86 Sh. C.S. Prakash Narayanan PW-87 Sh. Ajay Kumar
17. All the incriminating evidence was put to the accused during their examination under Section 313 Cr. P.C which they denied and claimed false implication.CBI Case No.210/2019 Page No. 18 of 90
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Defence Evidence:-
18. Only accused P.K. Thirwani, Sanjeev Bharti and Ashwani Kumar Sharma examined one witness each in their defence who are DW-1, DW-2 and DW-3 respectively. None of the remaining accused chose to produce any evidence in their defence.
Final Arguments:-
19. Final arguments were heard in detail on various dates. Ld. Public Prosecutor as well as Ld. Defence Counsels took me through the entire oral as well as documentary evidence in order to substantiate their rival contentions. Ld. Public Prosecutor argued that the evidence on record proves the charges against all the 13 accused beyond reasonable doubt and hence they are liable to be convicted whereas Ld. Defence Counsels submitted that the prosecution has failed to lead any cogent and legally admissible evidence in support of the charges framed against the accused and hence they are liable to be acquitted. Pertinent to mention here that the written submissions filed on behalf of the prosecution as well as the accused have also been perused.
Findings of the Court:-
20. From the perusal of the charge-sheet as well as the contentions raised on behalf of the charges, it comes out that the instant case relates to and concerns a Cooperative Group Housing Society which was registered in the office of Registrar Cooperative Societies on CBI Case No.210/2019 Page No. 19 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) 01.10.1983 vide No. 695 (GH) with 61 promoter members. There is a fair amount of dispute between the parties with regards to the name of the society which has been registered on the aforesaid date vide aforesaid number. It was submitted by the Ld. Public Prosecutor that the society which was actually registered vide S. No. 695/GH on 01.10.1983 was Sea Shava CGHS Ltd. It is his submission that fake records related to Sea Show CGHS Ltd. were prepared by the accused in the year 2002 to seek revival of the said society so that the original promoter members of Sea Shava CGHS Ltd. may not get to know that the society formed by them is sought to be revived. On the other hand, it was submitted by the Ld. Defence Counsels that there is no evidence on record to show that the name of the society registered on 01.10.1983 vide S. No. 695/GH was Sea Shava CGHS Ltd. and not Sea Show CGHS Ltd.
21. In this regard, the testimony of PW3 who was posted as Deputy Registrar (Housing) in the RCS office, New Delhi from 01.07.1988 to December, 1989 is very material. He had passed order dated 10.05.1989 vide which the said society was put under liquidation. He proved the copy of the said order as Ex.PW3/A. The name of the society mentioned in the said order is Sea Show Cooperative Group Housing Society. In case the name of the society registered on 01.10.1983 vide No. 695 (GH) was Sea Shava CGSH Ltd., same name would have been mentioned in the above noted winding up order dated 10.05.1989 Ex.PW3/A. Further, the record related to the bank account of the society in Delhi State Cooperative Bank Ltd.
proved by PW5 as Ex.PW5/A (Account Opening Form), Ex.PW5/B (Specimen Signature Card) and Ex.PW5/C (Copy of Registration CBI Case No.210/2019 Page No. 20 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Certificate of the Society) also reveal that saving account was opened in the year 1985 in the name of Sea Show Cooperative Group Housing Society. It is important to note here that this bank account was opened merely after a period of two years from the date when the society was registered in the RCS office.
22. Ld. Public Prosecutor placed heavy reliance on the testimony of PW-10 to contend that the actual name of the Society registered vide No. 695 (GH) was Sea Shava CGHS Ltd. This witness was posted as research officer in the RCS office from the year 2005 to the year 2010. He had forwarded a copy of the page of the directory of Housing Societies available in the RCS office, to CBI which he proved as Ex.PW10/2. The name of the society mentioned on this copy of the Directory page is Sea Show CGHS Ltd. However, original directory has not been produced in the Court. There is no evidence as to who prepared this directory and from which record. PW-10 has deposed in his cross-examination that it was not prepared or printed in his presence and he could not say whether the society name has been misprinted on it. Hence, this document does not inspire any confidence and does not merit any consideration. It cannot be said that the said diary was authentic and reflected correct names of the societies registered in RCS office. Moreover, it gets eclipsed by the documents proved by PW-3 and PW-5.
23. It is thus evident from the evidence led by prosecution itself that the name of the society registered on 01.10.1983 vide Registration No. 695 (GH) was Sea Show CGHS Ltd. and not Sea Shava CGHS Ltd as contended by it.
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24. The factual position which now emerges is that Sea Show CGHS Cooperative Group Housing Society was registered in the office of Registrar Cooperative Societies on 01.10.1983 vide Registration No. 695 (GH). However, it was later on ordered to be wound up vide order dated 10.05.1989 Ex.PW3/A passed by PW3 as it did not convene a General Body Meeting for conducting elections to the Managing Committee, did not get its accounts audited since registration, did not respond to the show-cause notice dated 17.03.1989 u/s 63 of DCS Act, 1972 and its office bearers were not found residing at the given addresses during personal visit of representative from the RCS office.
25. It further transpires that after a period of about 13 years from the date when the society was ordered to be wound up, a communication dated 04.09.2002 was received in the RCS office on 05.09.2002 from the society requesting for its revival. The original communication dated 04.09.2002 is on record in the file D9-10 Ex.PW6/B. Even though there is no exhibit mark on the said letter as none of the prosecution witnesses referred to it during his testimony, yet this document has remained undisputed between the parties and both i.e. the prosecution as well as defence have relied upon the same. Hence, the same is hereby marked as Ex.J-1 during the course of writing of this judgment.
26. Perusal of the note-sheet file related to the society prepared in the RCS office, which is also part of D9-10 Ex.PW6/B, reveals that the very first note is dated 11.09.2002 which mentions that the main file of Sea Show Cooperative Group Housing Society is not traceable in CBI Case No.210/2019 Page No. 22 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) spite of the lots of efforts and the same might have been tied up with some other file or might have been sent to some other zone by mistake. This note is admittedly in the handwriting of accused Gopal Singh Bisht. He has suggested for sending circular to all the branches to search for the file.
27. The Deputy Registrar (South) appears to have advised for consulting the Computer/EDP Cell in this regard.
28. In the subsequent note dated 03.10.2002, accused Gopal Singh Bisht mentions that as per records of the Computer/EDP Cell, the society is registered at S. No. 695 on 01.10.1983 with the registered address as 1235, Sector-3, Pushp Vihar, New Delhi. He further states that the main file of the society could not be found even at the time of the weeding out of the records on 21.09.2002 and thus reiterated his suggestion for sending a circular to all the branches/zones to search for the file. The proposal was approved by the then Assistant Registrar i.e. accused Ved Pal Singh and also the then Joint Registrar and ultimately by the then Registrar i.e. accused Narayan Diwakar on 09.10.2002.
29. Thereafter, in the note dated 28.10.2002, which is also admittedly in the handwriting of accused Gopal Singh Bisht, it is mentioned that the letter dated 09.10.2002 was circulated to all the zones/branches requesting them to trace out the main file of Sea Show CGHS Ltd. but no response has been received from any zone/branch. It was further proposed in the said note to request the President/Secretary of the Society to furnish copies of all the relevant CBI Case No.210/2019 Page No. 23 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) record of the society and to reconstruct the file after getting the approval from the competent authority. This note was duly approved by the accused Ved Pal Singh (AR) but was dissented by the then Joint Registrar Rakesh Bhatnagar vide his endorsement dated 29.10.2002. Thereafter, accused Ved Pal Singh (AR) has made an endorsement asking the dealing assistant to trace out the file from the old record.
30. In the subsequent note dated 11.10.2002 admittedly in the handwriting of accused Gopal Singh Bisht, he has mentioned that he had engaged two labourers to trace out the file from the record room but the same could not be found despite thorough search. Further, he reiterated his proposal for reconstruction of the file from the copies of the records of the society to be called for from the President/Secretary of the Society.
31. When the file was put up again before the Joint Registrar Rakesh Bhatnagar, he asked for putting up a typed self-contained note vide his endorsement dated 11.11.2002. Accordingly, accused Gopal Singh prepared a detailed typed note dated 13.11.2002 reiterating what he had mentioned in his earlier handwritten notes, as stated hereinabove. Accused Ved Pal Singh (AR) vide his endorsement dated 13.11.2002 agreed with the proposal of accused Gopal Singh Bisht for reconstruction of the file and requested the Joint Registrar to consider that sincere efforts were made to trace out the original file but the same could not be traced. This time, the proposal was approved by the Joint Registrar Rakesh Bhatnagar as well as by the then Registrar i.e. accused Narayan Diwakar on the same day.
CBI Case No.210/2019 Page No. 24 of 90CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
32. The note dated 15.11.2002 prepared by accused Gopal Singh Bisht shows that following documents had been received from the society vide its letter dated 15.11.2002:-
(i) Copy of Registration Certificate.
(ii) Copy of Bye-laws of the Society.
(iii) Copy of the list of 114 members duly signed by the President/Vice-President and Secretary of the Society.
(iv) Copy of the Application Form.
(v) Copy of the Share Money Receipt.
(vi) Affidavit of individual members.
(vii) Copy of the membership register.
(viii) Copy of unaudited accounts.
(ix) Copy of Managing Committee Resolution.
(x) Copy of General Body Meeting held on
18.08.2002.
33. He also proposed to reconstruct the file from the said documents submitted by the society.
34. In his order dated 18.11.2002 below above note, accused Ved Pal Singh (AR) has recorded the presence of Sh. G. Chander, President of the Society stating that he has filed affidavit of Secretary in prescribe proforma.
35. In the typed note dated 18.11.2002, accused Gopal Singh Bisht has again given the previous history of the society with reference to its CBI Case No.210/2019 Page No. 25 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) application for revival dated 04.09.2002. He has further mentioned that election to the Managing Committee of the Society has been conducted in August, 2002 in accordance with the Rules and the Managing Committee has prepared all the books of accounts since 1983-84 which are ready for audit and a fresh list of members as on date has also been drawn up in the prescribed proforma on the basis of the records of the society. He then proposed for submitting the file to the Registrar for consideration and further proceedings. The note was approved by accused Ved Pal Singh (AR). Thereafter, there is endorsement of the Reader to the Registrar proposing sending of notice to the society for appearance in the court of Registrar on 21.11.2002 at 3:00 pm so that the proceedings for revival could be initiated. It has duly been approved by the Registrar Narayan Diwakar on the same day i.e. 18.11.2002.
36. From the order dated 21.11.2002 of the Registrar i.e. accused Narayan Diwakar, it is evident that Sh. Gokul, President of the Society was present in the Court on that day. The Registrar directed his Reader to send the file to the concerned zone for verification of membership and to ascertain the audit position etc. and adjourned the proceedings to 28.11.2002. Accordingly, accused Ved Pal Singh (AR), vide his endorsement dated 22.11.2002 sent letter of even date to the President/Secretary of the Society asking them to produce complete records of the society in original before him on or before 28.11.2002 at 11:30 am for verification of membership and audit position. Copy of the said letter is available in the file D9-10 Ex.PW6/B at Page No. 337/C. Accused Ved Pal Singh has admitted his signatures at point Q- 656 on the same. Hence, same is hereby marked Ex.J-2 during the CBI Case No.210/2019 Page No. 26 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) course of writing of this judgment.
37. However, it appears that Sh. G. Chander, President of the Society appeared before the accused Gopal Singh Bisht on 25.11.2002, which fact is manifest from his order of the same date on record. The order shows that the verification of the records was done by accused Gopal Singh Bisht and he observed that:-
(a) the society has failed to submit minutes of the MC Meetings in which enrollments were approved;
(b) proof of UPC vide which agenda notices were served to all the members for AGM dated 18.11.2002;
(c) the society has failed to submit photocopies of nomination papers of the candidates.
38. In the end he proposed that the society may be asked to furnish these documents. This was approved by accused Ved Pal Singh (AR).
39. Thereafter, there is a detailed typed note dated 26.11.2002 prepared by accused Gopal Singh Bisht spanning over more than 8 pages giving the details of the history of the society and the proceedings that took place in the RCS office till that date. In the end he requested the Registrar to consider the request for revival of the society and approval of its freeze list of 114 members to be forwarded to DDA. The note was duly approved by accused Ved Pal Singh (AR) on 27.11.2002 and later on by the Registrar i.e. accused Narayan CBI Case No.210/2019 Page No. 27 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Diwakar. In pursuance to the same, the Registrar i.e. accused Narayan Diwakar issued order dated 03.12.2002 thereby cancelling winding up order dated 10.05.1989 of the society and revived it with immediate effect subject to the condition that the pending audit of the society shall be got completed within two months time. He also appointed accused Sanjeev Bharti as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of that order.
40. The list of members of the society submitted alongwith the application for revival consists of 114 names out of which first 58 have been shown to be promoter members. The members mentioned at S. Nos. 59 to 114 are stated to have been inducted to the membership of the society on one single day i.e. 21.08.1984. Out of these newly inducted members Amit Goyal, D.R. Gupta, Gopal Dass Verman, Nanak Chand Gangwal, Smt. Parmod Johri, Raj Singh, Salil Kapoor, Satya Pal Gaur, Shyama Pant and Saroj Sharma have been examined by the prosecution as PW1, PW21, PW24, PW26, PW31, PW41, PW42, PW44, PW45 and PW46 respectively. They all have denied having taken membership of Sea Show CGHS Ltd. They have also denied their signatures on the membership application forms, affidavits and resignation letters in their names. They have denied their signatures on the membership register as well against their respective names. PW1 Amit Goyal, who has been shown as Secretary of the Society in the year 2002, has denied his signatures on all the documents annexed with the application for revival wherever the signatures of the Secretary of the Society appear alongwith the seal. Since PW1 Amit Goyal had never taken membership of the said CBI Case No.210/2019 Page No. 28 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) society, there was no occasion for him to be its Secretary and to sign documents in the capacity of the Secretary. It is thus evident that false documents with regards to the membership of several persons in the society had been created in their names and their signatures were forged on those documents such as membership application forms, affidavits, resignation letters etc. Even their signatures were forged on the membership register also against their names. Moreover, as per the deposition of PW1, PW21, PW24, PW42, PW44 and PW46, they had taken membership of another Cooperative Group Housing Society by the name Himani CGHS Ltd. and their particulars have been misused for creating membership of Sea Show CGHS Ltd. This lends credence to the contention of the prosecution that the particulars of various members of Himani CGHS Ltd. were lifted from the records of that society and misused to create false membership of the present society i.e. Sea Show CGHS Ltd.
41. Perusal of the proceedings register of the Society (D-14) reveals that some of the promoter members of the society namely Devender Kumar, Ganga Sahai, Harish Chander, Jai Gopal, Jeet Singh, Khem Chand, K. Singh, Mahavir Prasad, Mukesh Kumar, Narender Singh, Nathi Lal, Om Prakash, Prabhu Ram, Prahlad Singh, Prem Lal, Prem Singh, Dushyant Kumar, Rajeshwar Prasad, Rajinder Prasad, Raj Bahadur, R.K. Verma, Rakesh Kumar, R.K. Bharmonia, Ram Kala, Rajan Thakur, R.B. Shittal, Santosh Kumar, Sunder Lal Kaushik, Shyam Swaroop, Shyam Kumar, S.L. Sharma, Satya Prakash, Sukhpal Singh and Than Chand, have again been shown to have been inducted in the society vide minutes dated 08.04.1984, 18.05.1984, 05.06.1984, 28.07.1984, 15.11.1984 and 10.03.1985. It CBI Case No.210/2019 Page No. 29 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) clearly demonstrates the fabrication of these minutes which is indicative of the fact that no such meetings of the society had actually taken place and the membership register as well as the proceedings register etc. had been forged in the year 2002 in order to seek its revival. The membership register and the membership list contains the names of various persons who had never taken membership of the society. Some of the names mentioned in the list have been found to be fictitious during the course of investigation as they could not be traced at all. The affidavits in the name of all 114 members bear the seal and signature of Sh. C.B. Arya, Notary Public. However, Sh. C.B. Arya, while deposing as PW-20 before this Court has denied having attested these affidavits. He has denied that these affidavits bear his seal and signatures. It is thus clear that the affidavits in the names of all the members also have been manipulated and forged. Even the seal and signatures of the Notary Public has been forged on these affidavits. Therefore, it is manifest that the revival of the society had been sought on the basis of totally forged and fictitious documents.
42. The crucial question which now arises for consideration is whether the forgery in the records of the society was done in pursuance to any conspiracy as alleged by the prosecution and if so who were the conspirators and who is the actual imposter?
43. Sections 120 A and 120 B of the Indian Penal Code make conspiracy a substantive offence and renders the mere agreement to commit an offence punishable. The elements of a criminal conspiracy have been stated to be :-
(a) an object to be accomplished, CBI Case No.210/2019 Page No. 30 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
(b) a plan or a scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
44. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means. The essential ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evident or by circumstantial evidence or by both.
45. Like most crimes, conspiracy also requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the acts, and the intention to achieve the unlawful object of that agreement constitutes the required mental state. To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the CBI Case No.210/2019 Page No. 31 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) unlawful object of the conspiracy. A major problem arises in connection with the requirement of an agreement in determining the scope of a conspiracy - who are the parties and what are their objectives. This determination is critical, since it defines the potential liability of each accused.
46. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give arise to a conclusive and irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
[See State Vs. Nalini (1999) 5 SCC 253, Yakub Razak Menon Vs. State of Maharashtra (2013) 13 SCC 1, Isher Singh Vs. State of A.P. (2004) 11 SCC 585, State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600, State of Karnataka Vs. J. Jayalalitha (2017) 6 SCC 263, Firozuddin Basheeruddin Vs. State of Kerala (2001) 7 SCC 596].
CBI Case No.210/2019 Page No. 32 of 90CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Role of accused public servants in the conspiracy:-
47. As already noted hereinabove, the Society Sea Show CGHS Ltd. was registered in the office of Register Cooperative Societies on 01.10.1983 vide Registration No. 695 (GH). However, it was later on ordered to be wound up vide order dated 10.05.1989 passed by PW-
3. A communication dated 04.09.2002 was received in the RCS office on 05.09.2002 from the society requesting for its revival. The said application for revival of the society Ex.J-1 bears an initial at its end above the words "President/Secretary". The name of the person who has signed it is nowhere reflected on the application. It is also not clear whether that person was the President of the Society or its Secretary. Upon receipt of the said revival application in the RCS office note dated 11.09.2002 was put up by dealing assistant accused Gopal Singh Bisht mentioning therein that the main file of Sea Show CGHS Ltd. is not traceable. It appears from the subsequent note that some efforts had been made to trace the file in the office but the same could not be found. Thereafter, in pursuance to the request of the RCS office, copies of certain documents related to the society were submitted on behalf of the society in the office vide letter dated 15.11.2002. The details of those copies have already been noted in Para No. 32 hereinabove. One Sh. G. Chander in the capacity of the President of the Society is stated to have appeared before accused Ved Pal Singh (AR) on 18.11.2002 and filed the affidavit of the Secretary of the Society in the prescribed proforma.
48. Upon receipt of the above noted documents from the society, a detailed typed note dated 18.11.2002 was prepared by accused Gopal CBI Case No.210/2019 Page No. 33 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Singh Bisht mentioning therein the previous history of the society with reference to the application for revival dated 04.09.2002. He further mentioned that the election of the Managing Committee of the Society has been conducted in August, 2002 in accordance with the Rules and the Managing Committee has prepared all the books of accounts since 1983-84 which are ready for audit and a fresh list of members as on date has also been drawn up in the prescribed proforma on the basis of the records of the society. He then proposed for submitting a file to the Registrar for consideration and further proceedings. This note has been approved by accused Ved Pal Singh (AR) and thereafter hearing was conducted by the Registrar on 21.11.2002 at 3:00 pm.
49. From the order dated 21.11.2002 of the Registrar i.e. accused Narayan Diwakar, it is evident that Sh. Gokul, President of the Society was present in the Court on that day. The Registrar directed his Reader to send the file to the concerned zone for verification of membership and to ascertain the audit position etc. and adjourned the proceedings to 28.11.2002. Accordingly, accused Ved Pal Singh (AR), vide his endorsement dated 22.11.2002 sent a letter (Ex.J-2) of even date to the President/Secretary of the Society asking them to produce complete records of the society in original before him on or before 28.11.2002 at 11:30 am for verification of membership and audit position. Subsequent note in the file shows that Sh. G. Chander, President of the Society appeared before accused Gopal Singh Bisht on 25.11.2002 who conducted the verification of the records of the society. In the detailed typed note dated 26.11.2002 prepared by accused Gopal spanning over more than 8 pages, he has again given CBI Case No.210/2019 Page No. 34 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) the details of history of the society and the proceedings that took place in the RCS office till that day. In the end, he requested the Registrar to consider the request for revival of the society and approval of its freeze list of 114 members to be forwarded to DDA. The note has been duly approved by accused Ved Pal Singh (AR) on 27.11.2002 and later on by the Registrar i.e. accused Narayan Diwakar. In Pursuance to the same, Registrar issued order dated 03.12.2002 thereby cancelling the winding up order dated 10.05.1989 of the society and revived it with immediate effect subject to the condition that pending audit of the society shall be got completed within two months time.
50. The manner in which the application for revival of the society was processed in the RCS office as indicated by the above mentioned notes clearly reflects that the entire process was mere formality or an eye wash and it had already been decided by the officers/officials posted in that office at the relevant time that the society has to be revived at any cost. Manifestly, there was no actual honest and diligent effort to verify the records produced on behalf of the society including its membership list notwithstanding the fact that the revival was sought after about 13 years from the date when the society had been put under liquidation. No effort was made to check the identity of the person who had submitted the revival application on behalf of the society i.e. the person who has signed the said application.
51. At the cost of repetition, it is to be noted herein again that the society was being sought to be revived after about 13 years from the date it had been put under liquidation. Further, the original file of the CBI Case No.210/2019 Page No. 35 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) society maintained in the RCS office at the time of its registration was not traceable. These two circumstances were sufficient to cause alarm in the minds of the officers/officials posted in the RCS office, who dealt with the revival application, requiring the representations made on behalf of the society to be put to strict scrutiny. To the contrary, the application has been processed in a totally cavalier and malafide manner. No sincere effort has been made to trace the original file of the society. The above referred notes in the noting file show that a circular had been issued to all the branches/zones to trace the original file of the society but no such circular has been brought on record.
Nothing has been pointed out from the record from the side of the accused to show that any such circular had actually been issued and had been actually received by all the branches/zones in Delhi. The matter has not been reported to police and no departmental enquiry was initiated to identify the delinquent officials in whose custody the file should have been and who were responsible for its loss/misplacement.
52. One wonders as to where was the hurry in reconstructing the file of the society from unverified copies submitted on behalf of the society, without making strenuous effort to trace the file and without initiating the departmental eqnuiry in this regard. The file was an official record and its disappearance from the office could not have been taken so lightly. Loss or misplacement of official record from a Government office is a very serious issue which cannot be ignored or brushed under the carpet without fixing the responsibility on the delinquent officials. The revival of society could have waited for few more days or months. Since it was already lying dormant for about 13 CBI Case No.210/2019 Page No. 36 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) years, a few more days or months would not have made any difference at all.
53. It needs note here that this was not the only instance when the original file of a Group Housing Society was not traceable in the office of Registrar Cooperative Societies. There were/are about 15 cases in this Court alone in which the original file of a Group Housing Society was not traceable in the RCS office and a new file had been reconstructed on the basis of the copies of the records furnished by the Society management. Ld. PP informed this Court that there are several such cases pending disposal in other Courts too where the original file had reportedly gone missing from the RCS office. Such mysterious disappearance of a large number of original files of Cooperative Group Housing Societies from the RCS is not only disturbing but intensely shocking. It is not the case of these accused public servants posted in the RCS office that these files were destroyed in any fire or heavy flood that had engulfed the office or were eaten away by the rats/termites. One finds it difficult to comprehend that such large number of official files went missing from the RCS office mysteriously and the Registrar acted as a mute spectator. He seems to have remained totally undaunted despite disappearance of official record as he neither reported the incident to police nor initiate any departmental enquiry to unravel the mystery. The conduct of the Registrar Narayan Diwakar and his subordinates in the office on this issue raises a well founded suspicion that the file of the society may have been deliberately concealed and thrown away so as to make out a case for its misplacement/loss which would make the process of revival of the society easier on the basis of CBI Case No.210/2019 Page No. 37 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) fictitious/forged documents.
54. A new file appears to have been reconstructed on the basis of the records submitted on behalf of the society by taking its genuineness for granted. The identity of the person submitting the record namely G. Chander was neither checked nor verified at any step by any of officials/officers particularly accused Gopal Singh Bisht, Ved Pal Singh and Narayan Diwakar. It is evident that none of these accused, who dealt with the revival application of the society, acted bonafidely, honestly, diligently and for the public good. In fact, they do not appear to have been discharging their functions as public servants but only as the aids/facilitators for the private accused who had hatched the conspiracy with the object of getting the society revived on the basis of fictitious/forged documents. It is clear from their conduct that they too had joined conspiracy and thus were dancing to the tunes of private accused.
55. Had these accused been honest and diligent in discharge of their functions as public servants in the RCS office, they would have easily detected the forgery in the records of the society. It was not a herculean task but only required the will and intent to discharge the public functions honestly. The copy of registration certificate of the society filed along with the revival application shows its registered office address as 1235, Sector-III, Pushp Vihar, New Delhi. It could not be compared or verified from the office record as the office record of the society was not traceable. So, eqnuiry should have been made at this address to find out as to whether any society actually functioned from there and if so, till when. Further, the revival application shows CBI Case No.210/2019 Page No. 38 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) the office address of the society as M-31A, Greater Kailash, Part-II, New Delhi. No enquiry was made to ascertain as to when and under which resolution of General Body or the Managing Committee was the office address shifted from Pushp Vihar to Greater Kailash and whether intimation about the same was given to the RCS office. Had such an enquiry been conducted, it would have come to light that the society was not having its office at this address and thus would have exposed the false representations made on behalf of the society. PW- 15, who is the owner of M-31, Greater Kailash, Part-II, New Delhi, has deposed that no society was having its office in this house.
56. Secondly, the membership list of the society which was submitted alongwith the revival application contained the names of 114 members with the assertion that all of them had been inducted prior to the cut off date i.e. 30.06.1986 and none of them was enrolled thereafter. In fact, it has been stated that the members mentioned at S. No. 1 to 58 were the promoter members of the society and the members mentioned at S. No. 59 to 114 were inducted into the society on one single day i.e. 21.08.1984. Induction of such large number of members (56 members) on one single day was sufficient to arouse suspicion in the minds of the accused public servants who have dealt with the revival application, with regards to the genuineness of these members. In such a situation, it was not only proper but also incumbent upon these public servants/officers including the Registrar posted in the RCS office to issue notices to all the members in order to ascertain whether they were genuine members and were still alive as well as willing to continue their membership into the society. No Rule or Regulation was required for doing so. Any honest and diligent CBI Case No.210/2019 Page No. 39 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) officer would have resorted to this process in these circumstances in order to ensure that membership list of the society to be forwarded to DDA for allotment of land to the society contains the names of only bonafide members and not those of unwanted & fictitious persons as well land grabbers/property dealers. Since, no such effort was made by any of the accused public servants namely Narayan Diwakar, Ved Pal Singh and Gopal Singh Bisht, who were involved in the revival process of the society in one way or the other, it is limpid that they were not performing their duties for public good but were acting only for personal gains or for causing benefit (pecuniary or otherwise) to the other conspirators i.e. private accused.
57. Further, perusal of the proceedings registers of the society (D-
14) would have clearly revealed that no meeting of the society had taken place on 21.08.1984. One can find the minutes of the meeting held on 12.09.1984 on Page 30 of the said register. Immediately after the minutes of the meeting dated 20.08.1984 on Page 29. No fresh member has been inducted into the society even in these two meetings. Perusal of the said register also reveals that the total strength of the members of the society was only 50 as on 18.12.1984, 101 as on 19.12.1987 and 114 as on 10.12.1988. Thus, it was a totally false and fictitious representation on behalf of the society i.e. its strength was 114 as on 21.08.1984, which could have been detected by having a bare look at the proceedings registers of the society i.e. D-14 and D-15. It is, thus, manifest that the three accused public servants who dealt with the revival application of the society, did not conduct actual verification of the records of the society and accepted blind foldedly the contention of the society that its strength was 114 as CBI Case No.210/2019 Page No. 40 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) on 21.08.1984 and that no new member has been admitted to the society after the cut off date i.e. 30.06.1986. In fact, members continued to be admitted to the society even in the year 1987 and 1988 also, which is limpid from the perusal of above two proceedings registers of the society.
58. As already noted hereinabove, accused V.P. Singh (AR) had sent a letter dated 22.11.2002 Ex.J-2 to the President/Secretary of the Society calling upon them to produce the complete records in original before him on or before 28.11.2002 for verification. However, it appears from the note dated 25.11.2002 prepared by accused Gopal Singh Bisht (Dealing Assistant) that one G. Chander in the capacity of the President of the Society appeared before him on that day alongwith the original records of the society for verification. One fails to understand as to why were the original records of the society produced before the dealing assistant Gopal Singh Bisht on 25.11.2002 for verification when these were required to be produced before the Assistant Registrar V.P. Singh in view of his letter Ex.J-2. It is nowhere ascertainable from the record as to under whose authority did accused Gopal Singh Bisht conduct the verification of the records of the society, which had to be done by Assistant Registrar V.P. Singh. Moreover, in the note dated 25.11.2002, accused Gopal Singh Bisht has pointed out three important lacunas in the records of the society and proposed that the society may be asked to furnish records in this regard. Neither the Assistant Registrar V.P. Singh nor the Registrar Narayan Diwakar appears to have been bothered by the lacunas in the records of the society as pointed out in the aforesaid note dated 25.11.2002. No explanation has been sought from the society on CBI Case No.210/2019 Page No. 41 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) these aspects. After the note dated 25.11.2002, one straightway finds a detailed typed note dated 26.11.2002 prepared by accused Gopal Singh Bisht wherein it is mentioned that the original records produced by the society for verification have been checked in original & verified and everything was found in order.
59. The above noted conduct of these three accused public servants namely Gopal Singhi Bisht, Ved Pal Singh and Narayan Diwakar clearly reveals that there was no actual, honest and bonafide verification of the original records of the society and the entire process in this regard was a mere eye wash and in fact, entire process was a mere formality for the reason that they had already made up their minds to ensure the revival of the society at any cost which is indicative of the fact that they had joined the conspiracy alongwith the private accused, the object of which was to get the society revived on the basis of fake/forged documents so that the land is allotted to it by DDA.
60. It is very difficult to accept that these officers posted in the RCS office at the relevant time and dealt with the revival application of the society, were so inefficient as not to know how to deal with the revival application in such a situation. They were not fresh appointees but were very experienced officers. It also cannot be a mere coincidence that all of them dealt with the file of the society in such a negligent and inefficient manner. Their acts of commission or omission, discussed hereinabove, leave no doubt in one's minds that they had been doing so upon obtaining pecuniary advantage either for themselves or for some other persons.
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61. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal misconduct, -CBI Case No.210/2019 Page No. 43 of 90
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(d) if he, -
................................................... ...................................................
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
62. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary
advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section
13);
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(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub-section (1) (d) (i) (iii) of Section 13);
63. Thus, in order to attract Section 13 (1) (d) (ii), the prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person without any public interest. Use of corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
64. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where CBI Case No.210/2019 Page No. 45 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
65. Upon the detailed analysis of the said provision of law, Hon'ble High Court, in the aforesaid judgement, came to the conclusion that mens rea is inessential to convict the accused for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, it has been observed in Para No. 73 of the judgement is as under :-
Para No. 73. "Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court-the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)
(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can CBI Case No.210/2019 Page No. 46 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
66. Explaining the concept of "public interest", there Lordship referred to the judgement of Supreme Court in LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgement:-
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined toe act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgement, has examined the concept, in NOIDA Entrepreneurs Associate."CBI Case No.210/2019 Page No. 47 of 90
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67. Their Lordships also referred to another judgement of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under : -
The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by Crl. A. Nos. 482/2002, 509/2002 and 536/2002 Page 54 virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the CBI Case No.210/2019 Page No. 48 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
68. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned public servant are absolutely unfair, unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
69. It is true that in this case, CBI has not produced any evidence to show that accused Narayan Diwakar, V.P. Singh and Gopal Singh Bisht had received any valuable thing or pecuniary advantage for themselves. However, it is manifest beyond any reasonable doubt that they had been acting in collusion with the private accused/conspirators who were interested in the revival of the society on the basis of fictitious documents and were assisting them in every possible way to ensure that the society gets revived on the strength of fake documents. Certainly, they have acted unfairly, unreasonably and without any public interest.
70. So far as charge of conspiracy framed against these four accused Narayan Diwakar, V.P. Singh and Gopal Singh Bisht is CBI Case No.210/2019 Page No. 49 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) concerned, reference to Section 10 of Indian Evidence Act is necessary. It may be noted here that very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicates that it would not be entertained at a public place or on a high pedestal. Such agreement are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult together direct evidence to prove a conspiracy. Considering this difficulty, Section 10 of the Indian Evidence Act was enacted which reads as under :-
"10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
71. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
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(i) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy ;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the other ;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ;
(v) It can only be used against co-conspiractor and not in his favour.
72. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the CBI Case No.210/2019 Page No. 51 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have CBI Case No.210/2019 Page No. 52 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
73. In the instant case also there is no direct evidence on record to show that there had been any agreement between these three accused Narayan Diwakar, V.P. Singh and Gopal Singh Bisht on one hand and the private accused on the other hand. However, the evidence on record clearly shows that these three accused had been acting in connivance with the private accused. The criminal acts performed by these three accused were certainly the result of an agreement between them and the private accused. Therefore, the evidence on record provides prima-facie reasonable grounds to believe that they conspired with the private accused and the object of the conspiracy was to get the dormant society revived on the strength of fake/forged documents. Therefore, whatever has been done by each of the accused is evidence against each of them. The prosecution has been successful in establishing the charge of conspiracy against these two accused also.
74. It was contended on behalf of accused that there was no cheating at all as no wrongful loss has been caused to anyone and there was no corresponding wrongful gain to anybody on account of alleged acts of the accused and therefore, the ingredients of Section 415 IPC are not fulfilled. According to them, there is nothing on record to suggest that any loss was caused either to DDA or to RCS office. The submission is that since the crucial ingredient of the offence of cheating is missing, accused cannot be convicted for the said offence or for the offence of conspiracy. I find these contentions and CBI Case No.210/2019 Page No. 53 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) submissions made on behalf of accused absolutely devoid of any merit.
75. The definition of cheating is provided in section 415 of Indian Penal Code. One of the essential ingredients of the offence of cheating is that the alleged act must have been committed either dishonestly or fraudulently. Section 24 of the Indian Penal Code defines dishonestly as under :
"Dishonestly : Whoever does anything with the intention of causing a wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.
76. Section 25 of the Indian Penal Code defines Fraudulently as under :
"Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
77. The fact that the records related to the society had been forged extensively in order to seek its revival, clearly indicates that all this was being done for some financial gain. It cannot be said that the forgery and fabrication of the records was being done merely out of fancy. It is a matter of common knowledge that the newly created society in the year 2003 would not have got any land from DDA or would have to wait for a very long time for the same as there was a long queue of the societies seeking allotment of land from DDA. The CBI Case No.210/2019 Page No. 54 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) land was to be allotted by DDA on the basis of the seniority which was fixed on the basis of the date of registration of the societies with the RCS office. It is for this reason that the documents related to the society in question were fabricated/forged in the year 2003 for its revival as it was registered with the RCS office in the year 1983 and therefore, entitled for allotment of land on priority basis. It is true that no loss has been suffered either by DDA or RCS office but it cannot be said that no loss was suffered by any person at all. The real aggrieved person was the next eligible society which was entitled for allotment of land on the basis of the seniority and whose place was taken by Sea Show CGHS Ltd. which was revived on the basis of false/fake documents. No doubt can be entertained regarding the fact that the office bearers of the society and other private persons who were involved in the conspiracy for its revival, would have obtained huge financial gain wrongfully in case their criminal acts would not have been exposed.
78. So far as 4th accused public servant namely P.K. Thirwani is concerned, he had conducted audit of the society in pursuance to the directions passed by the Registrar at the time of ordering the revival of the society on 03.12.2003. It was vehemently argued by his counsel that he was appointed auditor for the society on 10.01.2004 i.e. after the revival of the society and hence, he had no role in the revival of the society at all or in sending the freeze list of the members of the society to DDA for allotment of land. He also pointed out that there is no evidence on record to show that this accused had demanded any bribe or anything incriminating had been recovered from him.
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79. It is true that accused P.K. Thirwani had been appointed as auditor to conduct the audit of the society on 10.01.2003. However, it is to be noted that conducting the audit of the society was a pre condition for the revival of the society. It has been clearly stated in the revival order dated 03.12.2002 that the revival of the society is subject to the condition that its pending audit shall be got completed within two months time. Therefore, it cannot be said that the audit of the society conducted by accused P.K. Thirwani was not related to the revival of the society. Evidently, if any irregularity or illegality would have been found in the records of the society during the audit or in case the audit had not taken place within the requisite period of two months, the revival order would have become otiose. The audit report submitted by accused P.K. Thirwani is in file D-27 Ex.PW85/8. At Page 93 is the brief summary of the society prepared by him. He has admitted his signatures at point Q-7 on the same as well as other signatures in his name on the remaining pages of the report also. This "brief summary" also bears the signature of the President, Secretary and Treasurer of the Society in the names of G. Chander, Amit Goyal and Vijay Aggarwal respectively. It was submitted by the Ld. Counsel for this accused during the course of arguments that these three persons had signed the said "brief summary" in his presence and they had produced the accounts books and other records of the society before him which he bonafidely to be found in order. However, what is important to note here is that no person by the name of G. Chander, who has represented himself as President of the Society at the relevant time, has been found during the course of investigation. Sh. Amit Goyal appearing as PW-1, has deposed that he had not taken the membership of the society at any point of time and there was no CBI Case No.210/2019 Page No. 56 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) occasion for him to be its Secretary. Further, even with naked eyes, upon close observation, these three signatures in the name of G. Chander, Amit Goyal and Vijay Aggarwal on the said document appear to have been appended by one and the same person. This clearly indicates that only one person had appeared before the auditor i.e. accused P.K. Thirwani who forged the signatures of President, Secretary and Treasure on the "brief summary" prepared by him. The conduct of this accused makes its evident that he too joined the conspiracy and accordingly submitted a false audit report which bore the forged signatures of President, Secretary and Treasurer of the Society. His conduct also shows that he did not embark upon the actual auditing process but readily accepted the documents placed before him on behalf of the society by one single person and he prepared the report in favour of the society in order to facilitate its revival. Had he proceeded to conduct the audit of the society with honesty and integrity, he would have been come to know that the records of the society produced before him are absolutely false and fictitious. The fact that there is no evidence on record to show that he demanded bribe from any person and that nothing incriminating was recovered from him do not, in any manner, exculpate him from liability as the conspirator in this case for the reasons already explained in the foregoing paragraphs.
80. Coming to the 5th accused public servant namely Sanjeev Bharti. He had conducted the election to the Managing Committee of the Society on 25.01.2003 and submitted his report on 27.01.2003. According to his report Smt. Parmod Johri was elected as President unanimously in the said election and Sh. Kishore Aggarwal was CBI Case No.210/2019 Page No. 57 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) elected as Vice-President. Similarly, his report shows that Sh. S.K. Sarin, Sh. Kamlesh Kumar Goyal, Mrs. Rishwa Goyal, Smt. Kamla Kumari and Sh. Ram Prakash were elected unanimously as the members of the Managing Committee of the Society. Smt. Parmod Johri appearing as PW31 has deposed that she had never become member of the society Sea Show CGHS Ltd. Therefore, there was no occasion for her being elected as President of the Society. It also need note here that, as already explained hereinabove, several persons namely Amit Goyal etc. who are shown as members of the society and attendees in election meeting dated 25.01.2003 had never taken its membership and several others were found to be fictitious during the course of investigation. In view of the same, it is manifest that this accused Sanjeev Bharti had not proceeded to conduct the actual, genuine and bonafide election of the society but submitted a false election report at the behest of private accused/conspirators. Being an election officer entrusted with a solemn and responsible job of conducting the election to the Managing Committee of the Society, it was his duty to check the identity of each and every member who had participated in the election meeting on 25.01.2003 as well as of those members who had stood in the election for various posts and are stated to have been elected unanimously, which he did not do at all. Had he proceeded to conduct the election genuinely and with honesty as well as integrity, a lady namely Parmod Johri who was not a member of the society at all would not have been elected as President of the Society. It is, thus, evident that he did not conduct the actual election and has submitted totally false election report in order to do favour to the society so that its revival does not get impacted or delayed.
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81. It was argued on behalf of this accused Sanjeev Bharti that the election of the society to be conducted by him was only a formality and not a pre requisite or a condition for the revival of the society and therefore, even if the election report submitted by him is assumed to be false, no criminal liability can be fastened upon him as he was not a part of the conspiracy at all. The argument has been noted only to be rejected. In the order dated 03.12.2003 passed by the Registrar Narayan Diwakar, vide which society has been revived, accused Sanjeev Bharti has been appointed as election officer to conduct the election of the Managing Committee of the Society within two months of the issue of that order. The appointment of accused Sanjeev Bharti as election officer is part and partial of the revival order dated 03.12.2002. In case, he would have proceeded to conduct the elections in fair, genuine and honest manner, he would have reported that there are several fictitious members in the society on account of which election cannot be held and therefore, the forgery in the records of the society would have been exposed there and then as a result of which the revival of the society also would have come under cloud. Hence, it cannot be said that the election to be conducted by this accused only a formality. In fact, it was a requirement envisaged under the revival order dated 03.12.2002 itself to ensure that the society functions under a proper management and in the spirit of the cooperative movement. The conduct of accused Sanjeev Bharti in submitting a false and fictitious election report indicates clearly that he had colluded with other accused and had joined the conspiracy in order to ensure that the Society Sea Show CGHS Ltd. gets revived without any further impediments. Thus, he is also liable as a conspirator.
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82. Ld. Counsel for accused Sanjeev Bharti had also argued that the sanction for his prosecution obtained under Section 19 of PC Act, 1988 was not proper and therefore, entire trial qua him gets vitiated. I have perused the sanction order Ex.PW77/1. I have also gone through the entire cross-examination of PW-77 (Sanctioning Authority) conducted on behalf of accused Sanjeev Bharti. There is nothing to show that the entire requisite record of the case was not put up before PW-77, as contended by Ld. Counsel for the accused. The sanction order is a detailed speaking order and no legal infirmity can be found in it.
83. On behalf of accused Gopal Singh Bisht also, it was argued by his counsel that the sanction for his prosecution was accorded by PW- 78 under pressure of CBI and not voluntarily on the basis of the records produced by him. It is his submission that such a sanction is no sanction in the eyes of law and therefore, the entire trial qua this accused gets vitiated. Ld. Counsel had drawn attention of this Court to the following portion of the cross-examination of PW-78 as under:-
"It is correct that I was facing CBI investigation in several cases during the aforesaid period. I do not have any personal knowledge about the present case as I did not deal with the file related to Sea Show CGHS Ltd during my tenure as Registrar Cooperative Societies, New Delhi. As per me, the accused Gopal Singh Bisht had worked properly and as per practice and had not committed any irregularity. I accorded sanction for his prosecution in this case because there CBI Case No.210/2019 Page No. 60 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) was pressure from CBI upon me. Had there been no pressure from CBI upon me, I would not have accorded sanction for his prosecution in this case."
(Emphasis supplied)
84. It does appear from the above cross-examination of PW-78 that he was under pressure of CBI to accord sanction for prosecution of accused Gopal in this case. However, when he was re-examined by the Ld. Public Prosecutor on this aspect, he deposed as under:-
"As far as I recollect, I might have passed sanction orders for prosecution of accused public servants in about 5 or 6 cases during my entire tenure. The record which is produced before me by the prosecuting agency is definitely perused by me before passing the sanction order. I also apply my mind to the facts of the case at the time of passing the sanction order. Upon gaining satisfaction from the material produced before me, I pass the sanction order.
In this case I was not issued any threats by the CBI Officials. I was also not offered any allurement by the CBI Officials. However, the CBI Team, which had come to my office insisted upon me to pass the sanction order on that very day. Again said, the CBI team was sitting in the office of Deputy Director and the Deputy Director conveyed to me that the sanction order is to be passed on that very day. I did not tell the CBI Case No.210/2019 Page No. 61 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) CBI team or the deputy director that Gopal Singh Bisht had worked properly and as per established practice in the RCS Office and therefore, sanction for his prosecution in this case cannot be given."
(Emphasis supplied)
85. Thus, admittedly PW-78 was neither issued any threat by CBI nor was offered any averment. In fact, the CBI team had even not contacted him directly. It was communicated him through the Deputy Director that sanction order may be passed that very day. There is nothing to show that he had asked for time to go through the records of the case and the CBI team had refused to give further time. It is evident from his cross-examination that like many other cases in which also he had passed sanction orders for prosecution of accused public servants, he had passed the sanction order in this case too upon gaining satisfaction from the material on record. Further, the sanction order Ex.PW78/1 passed by him is a detailed order and reasoned one which does not reflect that it was passed in any haste or without going through the records of the case.
86. On behalf of accused Gopal Singh Bisht, P.K. Thirwani and Sanjeev Bharti, a common argument was raised that they were public servant at the time of the commission of alleged offence involved in this case, as defined u/s 21 of Indian Penal Code and thus was protected u/s 197 Cr. P.C. It is argued that they were performing their duties as public servants for which they have been arraigned as accused in this case and therefore, it was necessary for CBI to obtain separate sanction for their prosecution u/s 197 Cr. P.C. Ld. Counsels CBI Case No.210/2019 Page No. 62 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) for accused Narayan Diwakar and Ved Pal Singh also argued on the similar lines submitting that even though they had retired from the services before filing of the charge-sheet in this case, still CBI was required to obtain sanction for their prosecution u/s 197 Cr. P.C qua the offences under Indian Penal Code alleged against him. It was submitted that in the absence of sanction u/s 197 Cr. P.C qua these give accused public servants, the entire trial got vitiated and they are liable to be acquitted on this very score only. Ld. PP submitted that the sanction to prosecute a public servant u/s 197 Cr. P.C is not required particularly in the facts and circumstances of the present case as it was not the part of official duty of these accused to enter into a criminal conspiracy with other accused.
87. Law is well settled on this aspect. It is not every offence committed by a public servant that requires sanction for prosecution u/s 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. Section 197 Cr. P.C does not extend its protective cover to every act or omission done by public servant but restricts its scope of operation to only those acts or omissions which are done by public servant in discharge of his official duty. Where the alleged act done by the public servant is merely cloak for doing the objectionable act, the protection u/s 197 Cr.P.C is not available. (See Raghunath Anant Govilkar Vs. State of Maharashtra & Others 2008 (1) RCR (Criminal) 1042, Hari Has Prasad 1972 (3) SCC 89, State of M.P. Vs. Sheetla Sahai & CBI Case No.210/2019 Page No. 63 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Others 2009 Crl. L.J 4436 and Chaudhary Praveen Sultana Vs. State of Bengal & Another 2009, Crl. L.J 1318.)
88. Thus while considering the requirements of sanction as contemplated by Section 197 Cr. P.C, the Court has to make the balance between the protection granted to the public servants and the safeguard available to the citizens against the excesses of the erring public servants. The acts of commission and omission done by the accused Narayan Diwakar, Ved Pal Singh, Sanjeev Bharti, P.K. Thirwani and Gopal Singh Bisht, by no stretch of imagination, can be said to be the acts done by them in the discharge of their official duties or purported to be in the discharge of official duties. They have misused their office of public servant for doing things which are not permitted under the law. Their acts were dehors the duties which a public servant is required to discharge or perform. At no point of time did they act bonafidely in honest discharge of their duties. Hence, they are precluded from claiming protection u/s 197 Cr. P.C.
89. Hence, all of these five accused public servants namely Narayan Diwakar, Ved Pal Singh, Sanjeev Bharti, P.K. Thirwani and Gopal Singh Bisht are liable to be convicted as the charges against them stand proved beyond any doubt.
Role of private accused:-
90. It is alleged against accused Ashwani Kumar Sharma, Ashutosh Pant and Naveen Kaushik that they had prepared the false and forged documents of the society which were used for its revival. These CBI Case No.210/2019 Page No. 64 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) documents are stated to include false and ante dated membership register, proceedings registers, list of members, application form for membership in respect of 56 newly enrolled members, books of account, affidavits and other related records. Ld. Public Prosecutor submitted that the opinion of GEQD, Shimla has confirmed the forgeries done by these three accused in the records of the society by creating false documents and therefore, it is established that they had joined conspiracy alongwith other accused and performed the acts assigned to them.
91. Ld. Counsel for these three accused argued that the only evidence against them is the opinion of GEQD, which cannot be relied upon for various reasons and therefore, this is a case of no evidence against these three accused. He would argue that the evidence lead by the prosecution does not show that these three accused had given their specimen signatures/handwritings voluntarily and that the expert had conducted the examination of the specimens as well as questioned documents scientifically and in a meticulous manner. Thus, he argued for acquittal of these three accused.
92. Specimens S-245 to S-291 are stated to be that of accused Naveen Kaushik, specimens S-292 to S-317 are stated to be that of accused Ashutosh Pant and specimens S-318 to S-379 are stated to be that of accused Ashwani Kumar Sharma. These specimens and the questioned documents were examined by the expert PW-84 in the office of GEQD, Shimla and as per his opinion Ex.PW84/4, minutes of the meetings of the society from 13.09.1983 till September, 2001 in the proceedings registers are in the handwriting of accused Ashutosh CBI Case No.210/2019 Page No. 65 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Pant and Naveen Kaushik. He has also opined that they have forged the signatures of various members on the membership forms in their names. His opinion further reveals that the signatures in the name of Amit Goyal (as Secretary of the Society) and Vijay Aggarwal (as Treasurer of the Society) on various documents filed alongwith the revival application have been appended by accused Ashwani Kumar Sharma. The said opinion is accompanied by detailed reasons which are Ex.PW84/6.
93. PW-72 is the witness in whose presence the specimens of accused Naveen Kaushik (S-245 to S-291) and that of accused Ashwani Kumar Sharma (S-367 to S-379) alongwith the specimens of other accused were obtained by the investigating officer. He has deposed that in the year 2007, he was on deputation duty to CBI and during that period specimen signatures of several persons were obtained by the CBI officials in his presence. He identified his signature at point A on all the above noted specimen sheets bearing the specimens of accused Naveen Kaushik and Ashwani Kumar Sharma which are Ex.PW72/8 (Colly.) and Ex.PW72/9 (Colly.) respectively. He has not been cross-examined at all on behalf of these two accused. There is nothing in his testimony to suggest that he had not remained witness to the taking of the specimens of these two accused or that these two accused had not given their specimens voluntarily or that he has deposed falsely in this regard.
94. The specimens of accused Ashutosh Pant (S-292 to S-317) Ex.PW88/1 (Colly.) were obtained by the investigating officer in the month of March, 2007 in Tihar Jail as the said accused was in custody CBI Case No.210/2019 Page No. 66 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) at that time. PW-88, who was posted as Assistant Superintendent of Police in Jail No. 4, Tihar Jail, New Delhi at that time, was the witness to the taking of these specimens of accused Ashutosh Pant by the investigating officer. He has deposed that on that day a CBI official who was a sikh had come to Jail No. 4, showed him a Court order for obtaining the specimen signatures/handwriting of jail inmate Ashutosh Pant and accordingly obtained the specimens of the said jail inmate on various sheets. He identified his signature at point X on each of these specimen sheets. He has been subjected to detail cross- examination by accused Ashutosh Pant but nothing adverse has come out. There is nothing in his cross-examination to suggest that the accused Ashutosh Pant had not given his specimens voluntarily and in presence of this witness.
95. PW-89 is the witness to the second set of specimen signature sheets of accused Ashwani Kumar Sharma (S-318 to S-366) Ex.PW85/18 (Colly.). These sheets bear the date as 21.04.2007 implying that these were obtained on the said date. PW-89 was a driver by profession, driving his own Taxi which he had provided on hire to DTDC in the year 2007. he had been directed to report alongwith his vehicle in CBI office and accordingly was on duty with the then DSP A.K. Singh. He deposed that one day he was called by Insp. Manjeet Singh to his cabin where accused Ashwani Kumar sharma was present who gave his specimen writings/signatures on about 50 pages in his presence. He identified his signature at point X on each of these specimen sheets. He also identified accused Ashwani Kumar Sharma in the Court. However, perusal of the documents Ex.DW3/1, Ex.DW3/2, Ex.DW3/3, Ex.DW3/4 and CBI Case No.210/2019 Page No. 67 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Ex.DW3/5 proved by DW-3 show that accused Ashwani Kumar Sharma had been taken into custody by CBI on 05.03.2007 and remained in custody till 07.05.2007 when he was released on bail. It is not understandable how he could have been taken to CBI office on 21.04.2007 where his specimens S-318 to S-366 Ex.PW85/18 are stated to have been obtained by the investigating officer in presence of PW-89, when he was in custody and lodged in Tihar Jail. Nothing has been brought on record by the prosecution in this regard to explain the circumstances which made probable for accused Ashwani Kumar Sharma to be in CBI office on 21.04.2007 despite the fact that he was lodged in Tihar Jail from 05.03.2007 till 07.05.2007. Therefore, it is highly improbable and cannot be believed that the specimens Ex.PW85/18 (Colly.) were given by accused Ashwani Kumar Sharma in CBI office on 21.04.2007 as deposed by PW-89. It may be noted here that perusal of the opinion of GEQD Ex.PW84/4 alongwith the "reasons" Ex.PW84/6 shows that the opinion has been rendered on comparison of questioned signatures/writings with mainly the specimens S-318 to S-366. In these circumstances, it would be a totally miscarriage of justice to hold accused Ashwani Kumar Sharma guilty on the basis of such an expert opinion which has been rendered on the comparison of the specimens which do not appear to have been given by him.
96. Qua the accused Ashwani Kumar Sharma, it is also alleged that certain incriminating documents related to this case were found saved in a Hard Disc which was seized during raid at his house and was later on sent to GEQD, Shimla for examination. It was argued by Ld. Public Prosecutor that this circumstance is sufficient in itself to hold CBI Case No.210/2019 Page No. 68 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) this accused guilty of fabrication of documents as well as the conspiracy in this case. However, no evidence has been lead by prosecution to prove in this case that any raid had been conducted in the residence of accused Ashwani Kumar Sharma. There is no evidence as to who conducted such raid, if any, when and in whose presence and what was recovered from there. Ld. Public Prosecutor has failed to point out any evidence on record to connect the Hard Disc, which has been examined by the expert PW-84 and found containing certain incriminating documents related to this case, with this accused Ashwani Kumar Sharma. Hence, the charge on this aspect also against him fails.
97. So far as accused Naveen Kaushik and Ashutosh Pant are concerned, it is evident from the evidence discussed hereinabove that they had given their specimens voluntarily and in presence of independent witness. The expert opinion confirms that they had committed large scale forgery of the records of the society on the basis of which its revival was sought. It may be noted here that there is no direct or other circumstantial evidence against these two accused other than the expert opinion Ex.PW84/4 which confirms that they have committed forgeries in the records of the society. Hence, the expert opinion Ex.PW84/4, supporting "reasons" Ex.PW84/6 and the testimony of expert witness PW-84 needs to be scrutinized in detail.
98. Law relating to the evidentiary value of expert opinion is very well settled. On this aspect, it is profitable to refer to the following observations of the Hon'ble Supreme Court in S. Gopal Reddy Vs. CBI Case No.210/2019 Page No. 69 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) State of A.P. (1996) 4 SCC 596:-
"28. Thus the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering "conclusive" proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, while dealing with the evidence of a handwriting expert, this Court opined:
'7....... we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting 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 presidential 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. 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 Ishwari Prasad Misra v. Mohd. Isa that expert evidence of handwriting can CBI Case No.210/2019 Page No. 70 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee where it was pointed out by this Court that an 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. 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."
99. Thus, it is fairly settled that before acting upon the opinion of handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial. Following observations of the Supreme Court in Murari Lal vs. State of M.P. (1980) 1 SCC 704 in this regard also need to be kept in mind:-
"6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, CBI Case No.210/2019 Page No. 71 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact.... so, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be 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."
100. In view of the dictum of Murari Lal (supra), the opinion of handwriting expert may be relied upon to convict an accused if it is supported by detailed and convincing reason. In other words, the opinion of handwriting expert must be a reasoned one in order to pass the test of reliability and credibility. The reasons may be contained in the opinion itself or may be prepared separately but these must be prepared simultaneously alongwith the opinion. The prosecution must also prove that the specimens of the accused, on the examination of which the expert opinion has been rendered, were given by him voluntarily and in presence of an independent witness.
101. In the instant case, it has clearly been held hereinabove that CBI Case No.210/2019 Page No. 72 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) accused Ashutosh Pant and Naveen Kaushik had given their specimen signatures voluntarily and in presence of an independent witness.
102. Coming to the opinion Ex.PW84/4 of the expert witness PW-84, it is a detailed one and supported by separate "reasons" Ex.PW84/6. In these "reasons", PW-84 has explained in detail the similarities in various characteristics of the questioned signatures/writings and the specimen signatures/writings of these two accused which are basis of his opinion. He has been cross-examined at length by the Ld. Counsel for these two accused when he appeared as a witness before this Court. I find it pertinent to reproduce here following portion of his cross-examination as under:-
"Question: Please see S-261 and S-281. I say that in the word "meeting" in these specimens, there is no 'n' and letter 'g' is appearing as 'y' whereas 'n' and 'g' are clearly decipherable in the questioned writings Q.2404. What have you to say?
Answer: It is true that there is simplification of letter 'n' and letter 'g' in the word meeting in the aforesaid specimens. However, the similar letters and combinations are available in the word "sing" at various places in the specimens.
Question: I put it to you that similarly in the word 'first' appearing in the specimens S-261 and S-281, the pattern of letter 's' is entirely different from the pattern of letter 's' appearing in the questioned writings Q.2404. What have you to say?CBI Case No.210/2019 Page No. 73 of 90
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Answer: It is correct. (vol. The letter 's' in the word 'first' in S-261 is other variety of this writer. However, the formation of 's' as observed in word 'first' in Q.2404 is similarly available in rest of the specimens as well as in S-261.
...................................... ......................................
It is also correct that Q-974 also appears at two places in the aforesaid page i.e. against Serial no. 11 and against Serial No. 12. I have compared the signature appearing at Serial No. 12 with the specimen S-292 to S-317 and have accordingly given opinion in Para No. 19 of my Opinion Ex. PW-84/4.
Q. I put it to you that the capital letter "K" in Q-974 in word "Kuldeep", small letter "p" in word "Kuldeep", the letter "r" in word "Kr", the connection of "r with k" in word "kr" and the formation of "M" in word "Mahajan", the formation of "n" in word "Mahajan" as observed in Q-974 cannot be seen in S-303. What you have to say?
Ans. It is Correct. However, the aforesaid letters are available in other specimens of this person like letter "r" is available in S-302, letter "p" is available in S-307, letter "M" is available in S-306.
It is correct that on Page 20 of my Reasons Ex. PW-84/6, I have stated that the characteristics and formation of various letters in the words "Kuldeep", "Mahajan" and "Kr" in Q-974 and Q-1697 is similarly CBI Case No.210/2019 Page No. 74 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) observed in S-303. I have not stated that the characteristics and formation of various letters in these words have been observed in any other specimen also.
It is due to some typographical error that it is mentioned in para no. 19 of my Reasons Ex. PW-84/6 at Page No. 20 that the comparison of letters and combinations as occurring in Q-983 and Q-1698 have been compared with and similarly observed in S-303. Infact, Q-984 should have been typed in place of Q-
983. Q. I put it to you that in the signature "Kuldeep" at Q-984 the execution of the capital letter "K" is not observed similarly in S-303. What have you to say? Ans. It is incorrect.
Q. I put it to you that the pattern of "P", the formation of the letter "l", the connection of letter "l"
with letter "d", as seen in Q-984 is not observed in S-
303. What you have to say?
Ans. It is incorrect. There is no connection of letter "l" with letter "d" in Q-984.
It is correct that there is connection between letter "l" and letter "d" in the signatures at place X1 in the specimen S-303.
Q. I put it to you that in the reasoning given at Page 20 Ex. PW-84/6 you are mentioning the shape and relative location of two dots and underscoring in the word "kuldeep" which is in reference to the word CBI Case No.210/2019 Page No. 75 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) "kuldeep" marked X1 in the specimen S-303 hereinabove. What have you to say?
Ans. It is correct. (Vol. The other characters and combinations of the letters in word "kuldeep" have been compared by me with other signatures appearing in specimen sheet S-303).
Q. I put it to you that the pattern "G" seen in the word "Group" in Q-993 is nowhere observed in any of the specimens S-292 to S-317. What have you to say?
Ans. It is correct. (Vol. It is due to the natural variations in the handwriting of a person).
Q. I put it to you that in the reasoning given by you at Page 19, you have specifically commented upon the peculiar manner of execution of letter "G" which implies that you have examined the peculiar characteristics of the said letter. What have you to say?
Ans. It is correct."
103. The above answers given by the expert witness PW-84 in his cross-examination demonstrate that he is well-versed with the science of handwriting examination and is aware about all the necessary characteristics of the handwriting which need to be examined before giving the opinion. He has ably explained the basis upon which he has reached on various conclusion and he has given satisfactory reply of each question put to him. He has withstood the test of cross- examination and there is nothing to discard his opinion. There is CBI Case No.210/2019 Page No. 76 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) nothing in his cross-examination to suggest that he had not compared the questioned as well as specimen signatures/writings correctly or that he has given a false opinion. In these circumstances conviction of the accused can be fairly and reasonable based on the sole opinion of PW-84. His opinion undoubtedly appears to be plausible, credible and trustworthy.
104. With regards to the said expert opinion, it was also argued by the Ld. Counsels that it appears to be influenced by the Investigating Officer. They pointed out that the IO (PW-85) has admitted in his cross-examination that he visited the GEQD office when the documents of this case were under examination there which fact is sufficient to hold that he had gone there to pressurise the expert to give opinion against the accused. It was also pointed out that the disputed signatures on the questioned documents bear Q marks in blue as well as red ink and it is not clear who put the marks by red pencil and who put those by blue pencil and why? They argued that these circumstances make the entire opinion of the expert doubtful and untrustworthy.
105. It would be apposite to reproduce hereunder the relevant portion of the examination in chief of PW-85 (IO):-
"I put Q Marks on the disputed signatures and writings on various documents related to the society. Thereafter, I sent all these questioned documents alongwith aforesaid specimens to GEQD vide letter dt. 21.05.2007 of the then SP for comparison and opinion.CBI Case No.210/2019 Page No. 77 of 90
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) The letter alongwith the Annexures is already Ex. PW- 84/1 (Colly.).
Thereafter, I had received a call from GEQD saying that there is some discrepancy in the Q Marks put by me on the questioned documents which needs to be rectified. Accordingly, I visited GEQD Shimla and rectified the Q Marks. Initially I had put the Q Marks by red colour pencil and upon rectification I put additional Q Marks in Blue Colour Pencil."
106. Following portion of the cross-examination of the Expert (PW-84) is also very relevant on this aspect:-
"The red Q marks had been put by the IO and the Q marks in blue colour pencil were put by me. Again said, the blue Q marks outside the red circles were put by IO whereas the blue Q marks inside the red circles were put by me. I do not recollect whether the blue Q marks outside the red circles were present on the sheet when I had examined the said document. I have not mentioned about the changes made by me on the said documents either in my opinion or in my "reasons". I have conducted my examination with regards to the Q marks in blue colour pencil inside the red circles.
Court Question: Please explain as to why did you think it necessary to put your own Q marks in blue CBI Case No.210/2019 Page No. 78 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) colour pencil when the Q marks had already been put on the said document by the IO in red colour pencil? Answer: I have put these Q marks in blue colour pencil inside the red enclosed portion for the purpose of optical photography as blue colour is sensitive to photographic film as compared to the red colour.
(Vol. IO had come to our laboratory to rectify the Q marking on the documents and he changed the Q marks in my presence by writing fresh Q marks in blue colour pencil outside the red enclosed portion).
The IO made such changes on several documents/pages which have been examined by me in this case. Fresh Q marks in blue colour pencil were put by me as well as the IO on all the pages of the proceedings register (D-13) which is Ex.PW6/E. We had put such fresh Q marks in blue colour pencil in the other registers also i.e. D-12, D-14, D-17, D-19, D-27, D-29 and D-48.
The IO had been summoned by me for clarification. I have not mentioned about this fact in my opinion. I had summoned the IO after the preliminary examination of the documents. I had told the IO that there is a requirement of alteration of Q marks as there was some discrepancy in this regard on the documents. A letter was sent to the IO through GEQD in this regard. That letter was not forwarded alongwith the opinion."CBI Case No.210/2019 Page No. 79 of 90
CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
107. Thus it is manifest that these two witnesses have satisfactorily cleared the air about the visit of the IO (PW-85) to GEQD laboratory and the red & blue Q marks. What transpires is that the IO had not visited the GEQD laboratory on his own but had been summoned by the expert (PW-85) for clarification. During his visit to the laboratory, both PW-84 and PW-85 had put Q marks in blue and red colour on the questioned documents which were later on examined by PW-84. There is nothing to suggest even remotely that the IO had gone there to influence or pressurise the expert or that he had tried to do so. Hence, the visit of the IO to the laboratory in such circumstances do not create any doubt on the impartiality of the expert (PW-84) and does not render his opinion untrustworthy.
108. Hence, the accused Naveen Kaushik and Ashutosh Pant are liable to be convicted whereas accused Ashwani Sharma is liable to be acquitted.
109. Qua accused Naresh Kumar, Rajesh Kumar Dhaka and Vimal Kumar Aggarwal, it is alleged that they played an active role in the conspiracy by replacing all the 114 initial members of the society in whose place they inducted their friends/relatives etc., arranging the funds for payment for 65 % land cost to DDA after obtaining the Bridge loan from Delhi Cooperative Housing Finance Corporation Limited and in using the false and forged documents of the society as genuine in the capacity of Secretary, President and Treasurer respectively of the Society.
110. Ld. Counsel for accused Naresh Kumar and Rajesh Kumar CBI Case No.210/2019 Page No. 80 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Dhaka pointed out that they had been elected as President and Secretary respectively of the Society in the month of January, 2004 and therefore, they had no concern with the Management of Society prior to the said month. He argued that the common allegations against these two accused is that they had inducted new members in the society and had arranged funds to be paid to DDA but no member inducted into the society during the tenure of these two accused was found to be fictitious and there is no illegality in arranging funds for the society to be paid to DDA as land cost. He would argue that there is no evidence to show that they had indulged in the forgery/fabrication of records of the society or were having knowledge of any such forgery/fabrication. Ld. Counsel for accused Vimal Kumar Aggarwal also argued on the similar lines.
111. Ex.PW17/3 is the Account Opening Form in the name of Sea Show Cooperative Group Housing Society Ltd. in Punjab and Sind Bank. This bears the date at the bottom as 04.08.2003 implying thereby that the account was opened on the said date. It is accompanied by a copy of Resolution of the Society passed in the meeting held on 01.07.2003 for opening of the said account. Undisputedly, the said Account Opening Form bears the photograph of accused Naresh Kumar as President of the Society, of accused Rajesh Kumar Dhaka as Secretary of the Society and of accused Vimal Kumar Aggarwal as Treasurer of the Society. It also bears their respective specimen signatures on two places. It is, thus, evident that this account has been opened on 04.08.2003 in the name of the society by the three accused Naresh Kumar, Rajesh Kumar Dhaka and Vimal Kumar Aggarwal representing themselves as President, CBI Case No.210/2019 Page No. 81 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Secretary and Treasurer respectively of the Society. The copy of the Resolution purportedly passed in the meeting of the society dated 01.07.2003 accompanying the said form provides that the said account would be operated by these three accused jointly or by any two of them. However, it was very fairly contended by the Ld. Counsels for these three accused during the course of arguments that they had become members of the society on 24.03.2003 and were elected as office bearers of the society in the meeting held on 11.01.2004. They have miserably failed to explain as to how they opened the bank account of the society on 04.08.2003 representing themselves as office bearers of the society which they were not at that time. Such conduct of these accused clearly manifest that they too involved in the affairs of the society much before they had been elected as its office bearers and also were involved in forging the records of the society. It is proved beyond reasonable doubt that they had created a false Resolution dated 01.07.2003 of the society authorizing them to open bank account in the name of the society in Punjab and Sind Bank, Paschim Vihar and also authorizing them to operate the said account jointly or by any two of them. Further, PW-45 Shyama Pant has been shown to be a member of the society and his presence has been marked in the Special General Body Meeting held on 25.01.2004 under the Chairmanship of accused Naresh Kumar. Deposing as witness before this Court, she has denied having become member of the society or having attended any such meeting. Hence, fictitious members continued to be shown to be attending meetings of the society even during the tenure of these accused which also indicates that they have been part of overall conspiracy. Perusal of the minutes of meetings of Managing Committee of the Society CBI Case No.210/2019 Page No. 82 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) from 18.04.2004 onwards in the proceedings register D-16 Ex.PW6/4 reveal that these minutes bear the signatures of only these three accused namely Naresh Kumar, Rajesh Kumar Dhaka and Vimal Kumar Aggarwal. The minutes show that the meetings have also been attended by other members of the Managing Committee namely Jugal Aggarwal, Sunil Jain, Usha Garg and Mukesh Garg but the minutes do not bear their signatures at all. The space for signatures against the names of these Managing Committee Members is blank. This clearly indicates that these minutes have been fabricated later on for which reason these do not bear the signatures of above named members other than the three accused.
112. Evidence on record, thus, clearly proves that even though these three accused has not forged the signature of any other person yet they had created several false documents (as noted hereinabove) which they also used to support the revival of the society and to ensure that land is allotted to it by DDA. Their conduct makes it manifest that they were in agreement with other co-conspirators and were discharging the acts assigned to them so that the object of conspiracy is duly achieved.
113. Qua the accused Naresh Kumar and Vimal Kumar Aggarwal, the deposition of PW-35 is also relevant. It is pertinent to reproduce herein the following portion of his deposition:-
"I was running a Stationery and General Store in the year 2003. During that year, I applied for membership of Sea Show CGHS through Naresh CBI Case No.210/2019 Page No. 83 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Kumar and Vimal Aggarwal. They had met me at a plot of land in Sector 19-B, Dwarka. They had setup a tent at that plot of land and were sitting inside the tent. There were 4-5 more persons sitting with them whom I do not know. I can identify both of them (the witness has correctly identified the accused Naresh Kumar and accused Vimal Aggarwal present in the court).
Accused Naresh Kumar told me that he is the President of Sea Show CGHS Society and Vimal Aggarwal is its Secretary. I paid Rs. 110/- as membership fees in lieu of which I was issued a receipt. I was inducted as a member of the said society. My membership number was perhaps 157, but I do not recollect the number correctly."
114. The testimony of this witness also shows that accused Naresh Kumar and Vimal Kumar Aggarwal were representing themselves as President and Secretary respectively of the Society in the year 2003, which they were not, and were inducting new members in the society. Nothing contrary has come out in his extensive cross-examination conducted on behalf of the accused. This too indicates that they had joined the conspiracy in the year 2003 itself, much before they got elected as office bearers.
115. Evidence on record is sufficient to convict these three accused.
116. Against accused Mohit Saxena, it is alleged by the prosecution that he has forged the signatures of Amit Goyal (Secretary) on the CBI Case No.210/2019 Page No. 84 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) authority letter dated 03.02.2003 (Q-1279 & Q-1281) and the certified copy of the Resolution of Managing Committee passed on 03.02.2003 (Q-1282). He is also alleged to have received the allotment letter dated 03.02.2003 from DDA on behalf of the society by appending his signature on the same at point Q-1278.
117. Admittedly, there is no evidence against him other than the opinion of GEQD (Ex.PW84/4). As per the said expert opinion, the signature at points Q-1279 and Q-1281 did not match with specimen signatures of accused Mohit Saxena (S-36 to S-54). However, the signature at point Q-1278 has been found matching with the specimen signatures of this accused. The document which bears this signature is letter dated 03.02.2003 sent by DDA to Secretary/President of Sea Show CGHS Ltd. regarding allotment of land to it. According to the case of prosecution itself, accused Mohit Saxena has signed the said allotment letter at point Q-1278 at the time of receiving it from DDA. So, these are his own signature consisting of English letters 'M', 'S', 'A' etc. Thus, the accused Mohit Saxena has not forged anybody else's signature on this letter. He has not committed any forgery at all. I wonder as to how he is arraigned as conspirator merely for the reason that he received this allotment letter from DDA on behalf of the society. The letter could have been received by any person on behalf of the society. It was for the DDA officials to see whether or not to handover the letter to him. It is not the case of prosecution that he falsely represented himself to be an office bearer of the society. Thus, no culpability can be fastened upon this accused Mohit Saxena merely for the reason that he received the said letter from DDA on behalf of the Society. He is liable to be acquitted.
CBI Case No.210/2019 Page No. 85 of 90CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.)
118. Coming to accused P.R. Nair. He was working as Accounts Officer in MTNL, New Delhi. He was not named either an accused or a witness in the first charge-sheet filed in this case. A supplementary charge-sheet was subsequently filed by PW-87 in which he has been arraigned as accused. The allegations against him are:-
(i) he had drawn various minutes of meetings of the society and also attested those minutes which were subsequently submitted in DDA;
(ii) he put the forged signatures purportedly of Kuldeep Singh as Secretary of the Society on letters dated 19.07.2004 and 19.08.2004; and
(iii) he also prepared letters for correspondence with DDA regarding allotment of land to the society by using computer installed in the office of Southern Star Co-op. (Urban) Thrift & Credit Society Ltd. where he was functioning as the President.
119. There is no evidence on record to show that this accused has drawn minutes of any meeting of Sea Show CGHS Ltd. No witness has deposed on this aspect and the GEQD opinion Ex.PW84/4 also does not reflect anything in this regard.
120. Certain documents bearing the seal and signature in the name of P.R. Nair (as attesting officer) are in file D-19 from Page No. 112 to 132 [Ex.PW48/4 (Colly.)]. According to the expert opinion Ex.PW84/4, CBI Case No.210/2019 Page No. 86 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) the signature of the attesting officer on these documents at points Q- 1221 to Q-1241 are matching with the specimen signatures of accused P.R. Nair (S-199 to S-242). This is indicative of the fact that these documents have been attested by accused P.R. Nair.
121. Perusal of the attestation of these documents reveals that the accused P.R. Nair has attested them as the true copies of their respective originals. A Gazetted/attesting officer, at the time of attesting true copy of a document has only to compare the copy with its original and if he finds it according to its original, he would attest the copy. He is not required to make a deep enquiry to ascertain whether the original document produced before him is genuine or fake unless the said document patently appears to be fake. The original documents produced before accused P.R. Nair in this case, of which he attested true copies, clearly appeared to be genuine. There was nothing in them to suggest ex-facie that those were fictitious. Hence, no culpability can be fastened upon him merely by attesting the copies of those document.
122. Moreover, it appears that these attested documents were sent by the Society to DDA vide letter which is at Page No. 133 in file D-19. The letter does not bear any date. However, the first paragraph of the letter gives an indication of the date when this letter was sent to DDA and is reproduced hereunder:-
"This is with reference to our visit to your goodself at public hearing on 14.07.2005 for the sake of getting NOC for construction. Their we come to know that DDA has apprehension that the M.C. is changing there CBI Case No.210/2019 Page No. 87 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) frequently. We respectfully want to submit that it's not true."
123. It is, thus, clear from the above quoted paragraph of the letter that it was sent after the date 14.07.2005. Here, it needs note that the land was allotted to the Society by DDA in the year 2004 and possession of the plot of land was handed over to the Society on 28.05.2004, on which date the object of the conspiracy hatched in this case was achieved and it came to an end. Nothing said or done by any conspirator after 28.05.2004 would inculpate him/her in this case. Hence, on this score also, the attestation of documents done by accused P.R. Nair in the year 2005, even if assumed to be illegal, does not make him guilty as a conspirator.
124. Same can be said with regards to the letters dated 19.07.2004 and 19.08.2004 on which this accused is alleged to have forged the sign of Kuldeep Singh as Secretary of the Society. These too have come into existence after the conspiracy had come to an end. Further, no investigation appears to have been done with respect to actual person by the name Kuldeep Singh. Charge-sheet is totally silent about him. He has neither been arraigned as accused nor cited as witness. Neither has the IO recorded his statement with respect to the signatures on these two letters nor did he obtain his specimen signatures to be sent to GEQD for comparison. Hence, no finding of guilt can be given against accused P.R. Nair on the basis of these two letters also.
125. As regards the third allegation against him that he prepared CBI Case No.210/2019 Page No. 88 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) letters on behalf of the Society Sea Show CGHS Ltd. to be sent to DDA, from the computer installed in the office of Southern Star Co-op. (Urban) Thrift & Credit Society Ltd., it is evident from the testimony of the two investigating officers PW-85 (Main IO who filed first charge- sheet) and PW-87 (2nd IO who filed supplementary charge-sheet) that neither the computer installed in the office Southern Star Co-op. (Urban) Thrift & Credit Society Ltd. nor any hard disc was seized by any of them. No such seizure memo is on record. It is very intriguing as to how did the hard disc, which was sent to GEQD and on examination of which opinion has been given regarding the nature of documents saved in it, came into existence and how is it related to this accused P.R. Nair.
126. Thus, prosecution has failed to lead any cogent and convincing evidence against accused P.R. Nair and he too is liable to be acquitted.
Conclusion:-
127. Having regard to the above discussion, accused Ashwani Sharma, Mohit Saxena and P.R. Nair are hereby acquitted of all the charges. Remaining accused who faced trial (other than those who are dead, have been discharged or have been declared proclaimed offender) are hereby convicted as under:-
(i) Accused Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6), Sanjeev Bharti (A7), Ashutosh Pant (A8), Naveen CBI Case No.210/2019 Page No. 89 of 90 CBI Vs. Narayan Diwakar etc. (Sea Show CGHS Ltd.) Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11) and Vimal Kumar Aggarwal (A12) are convicted u/s 120B r/w 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act.
(ii) Accused Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6) and Sanjeev Bharti (A7) are also convicted u/s 13 (2) r/w Section 13 (1) (d) of PC Act.
(iii) Accused Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11) and Vimal Kumar Aggarwal (A12) are also convicted u/s 420/468/471 IPC.
Digitally signed by VIRENDER BHATAnnounced in the open Court.
VIRENDER Date:
BHAT 2021.01.29
12:16:22
+0530
(VIRENDER BHAT)
SPL. JUDGE (PC ACT), CBI-15,
ROUSE AVENUE DISTRICT COURTS,
NEW DELHI/27.01.2021
CBI Case No.210/2019 Page No. 90 of 90