Delhi District Court
Cbi vs . Gokul Chand Aggarwal & Another on 24 August, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 73/11
RC No. 18(A)/2005/SCUV/SCRII/CBI
CBI Vs. Gokul Chand Aggarwal & another
(Textila CGHS)
Reserved for order on : 02.08.2011
Date of Order : 24.08.2011
O R D E R O N C H A R G E
1.The case of the CBI, in brief, is that Textila Cooperative Group Housing Society (CGHS) Ltd was registered with its address as 52, Sunlight Colony, New Delhi66 on 01.2.1984 by the Registrar, Cooperative Societies (RCS), Delhi. As the members of the society were not taking any interest in the affairs of the Society, it had failed to achieve the object for which it was registered. The society failed to fulfill the statutory obligations as provided under Delhi Cooperative Societies Act 1972 (hereinafter referred to as 'the DCS Act') and Rules and Bye Laws framed thereunder. Therefore, an order dated 7.9.1990 was issued under the signature of Shri Satish Mathur, the then Dy. Registrar, Office of the RCS, Delhi, liquidating the society.
2. A request dated 16.8.2003 was submitted by one Jagmal, in the CBI Vs. Gokul Chand Aggarwal Page 1/13 and another (Textile CGHS Ltd) capacity of President of Textila CGHS Ltd showing its address as B5/201, Chintpurni House, Central Market, Prashant Vihar, Delhi to the RCS for cancellation of winding up order and revival of the society.
3. On receipt of the application, Shri Niranjan Singh, Dealing Assistant, submitted note on 12.9.2003, for considering the request of the society for its revival u/s 63 (3) of DCS Act. The note was forwarded by accused D N Sharma, AR (NW) on 15.9.2003. He marked the file to Reader to RCS who mentioned in his note that before initiating proceeding u/s 63 (3) of DCS Act, an Area Inspector u/s 54 of DCS Act be appointed to bring out the factual position of the society. This note was approved by RCS on 29.9.2003. Accused Ram Nath was appointed as Inspecting Officer by accused D N Sharma on 30.9.2003. Accused Ram Nath, Inspector submitted his Inspection Report on 15.10.2003. The Inspecting Officer was required to physically visit the registered office of the Society and to verify/examine the records of the Society to bring out its factual position. Investigation has disclosed that accused Ram Nath gave fictitious report for having met the President Shri Jagmal since neither the address B5/201, Chintpurni House, Central Market, Prashant Vihar, Delhi was existing where the society is CBI Vs. Gokul Chand Aggarwal Page 2/13 and another (Textile CGHS Ltd) shown to have office nor any person named Jagmal was existent. Shri Niranjan Singh, based upon the report of accused Ram Nath, submitted a note for revival of the society and for approval of the freeze strength of 134 members for allotment of land.
4. Accused Faiz Mohammad, Dealing Assistant who had taken charge from Shri Niranjan Singh submitted a note on 18.11.2003 for calling the President/Secretary of the Society to produce the relevant record for verification.
5. Investigation has disclosed that accused Gokul Chand Aggarwal was a regular visitor to the office of RCS and, hence, he was known to all the RCS officers/officials. Accused Faiz Mohammad knowing it very well that accused Gokul Chand Aggarwal was posing as both Secretary and President of the Society in two different names Jagmohinder and Jagmal gave a detailed note dated 3.12.2003 recommending revival of the Society u/s 63 (3) of DCS Act and approval of the freeze list of 134 members. It has also been mentioned in this note that Jagmohinder, Secretary of the Society, has submitted the relevant record. The note was forwarded by accused D N Sharma, AR (NW) and he recommended consideration of the request for revival of the Society. He also mentioned in the note CBI Vs. Gokul Chand Aggarwal Page 3/13 and another (Textile CGHS Ltd) that the relevant records have been verified and taken on record.
6. Pursuant to the orders dated 25.11.2003, the Registrar accused Narayan Diwakar issued order dated 28.11.2003 reviving the Society. Criminal conspiracy of accused Narayan Diwakar with accused Gokul Chand Aggarwal and others is apparent from the fact that he has mentioned in his note that Dy. Registrar had not followed proper procedure for winding up and that he was not competent to pass such orders. Investigation has disclosed that Dy Registrar Shri Satish Mathur was competent to issue such order since he was delegated the powers of the Registrar vide notification No. 9 (38)/68/Estt/Coop/564665 dated 4.7.1989.
7. During the course of investigation, efforts were made to contact the present 134 members as well as those 37, who were shown to have resigned from membership of the Society. However, out of the 134+37 i.e 171 members, as many as 156 persons were not found since either their addresses shown were nonexistent or if the addresses were correct, no such persons were residing at the addresses.
8. Investigation revealed that accused Kamal Singh gave false and fictitious audit report in respect of books of accounts for the period 1984 to 2003 in respect of the society without going through the original documents. The audit of the accounts were CBI Vs. Gokul Chand Aggarwal Page 4/13 and another (Textile CGHS Ltd) shown to have been signed by the President Jagmal, Secretary Jagmohinder and Treasurer Satish Kumar which were all forged by accused Gokul Chand Aggarwal. List of members of Textila CGHS Ltd containing 134 names was also approved and all the pages of the list of members were signed by accused D N Sharma. After its revival accused D N Sharma wrote a letter to the Assistant Registrar, Policy, RCS Office forwarding a freeze list of 134 members of Textila CGHS Ltd as approved by the competent authority with request to forward the list to DDA for allotment of land.
9. Investigation further revealed that accused Gokul Chand Aggarwal has impersonated as Jagmohinder, Jagmal and Satish Kumar, Secretary, President and Treasurer respectively of Textila CGHS Ltd and forged their signatures on various papers used for revival of the society. After the investigation, charge sheet was filed in the court against accused for committing offences under Indian Penal Code, 1860 (IPC) and Prevention of Corruption Act, 1988 (PC Act).
10. I have heard Sh. Akhilesh, Ld. PP for CBI, Sh. S K Bhatnagar, Ld. Counsel for accused Ram Nath, accused Faiz Mohammad and accused Kamal Singh. I have also gone through the written submissions filed on behalf of accused Daya Nand Sharma and CBI Vs. Gokul Chand Aggarwal Page 5/13 and another (Textile CGHS Ltd) accused Narayan Diwakar.
11. Accused Narayan Diwakar contended that he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545 wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under Section IPC instead of DCS Act which is a Special Act.
12. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was CBI Vs. Gokul Chand Aggarwal Page 6/13 and another (Textile CGHS Ltd) referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
13. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences, as notified, are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the Offences mentioned in the chargesheet are all notified CBI Vs. Gokul Chand Aggarwal Page 7/13 and another (Textile CGHS Ltd) offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
14. Accused Narayan Diwakar has placed reliance upon the order dated 26.5.2011 passed by High Court of Delhi in WP (C) No. 2441/2011. I fail to understand how the said order is applicable to the facts of the present case. Accused Narayan Diwakar has also placed reliance upon order dated 20.7.2011 passed by Special Judge3, CBI, Patiala House Courts, New Delhi in the matter State (CBI) Vs. M.S. Chauhan. I have gone through the said order. It was passed by Ld. Special Judge in the facts and circumstances of the case before him. Even otherwise, the said order dated 20.7.2011 is not binding upon this court.
15. All the accused have raised the contention that the DCS Act, is a complete self contained statue and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82 (3) of DCS Act which completely debars the prosecution without giving the CBI Vs. Gokul Chand Aggarwal Page 8/13 and another (Textile CGHS Ltd) opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In support of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366, Abdulla Mohammad Pagarkar Vs. State, 1980 Cri. L.J. 220 and Union of India Vs. Prafulla Kumar Samal and another, (1979) 3 SCC 4.
16. On the other hand, it is contended by Ld. PP Sh. Akhilesh for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
17. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other CBI Vs. Gokul Chand Aggarwal Page 9/13 and another (Textile CGHS Ltd) Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
18. Accused Narayan Diwakar has relied upon judgment Vikas CGHS Vs. RCS, CWP No. 1767 of 1986 decided on 2.11.1986 by the High Court of Delhi. The said judgment is not applicable to the facts of the present case. After the judgment of Vikas CGHS (Supra), a direction was passed by the High Court of Delhi in CWP No. 10667/04 on 2.8.2005 directing CBI to investigate the present matter and other similar matters where group housing societies were fraudulently got revived. If there was no need of passing an order for setting aside the liquidation proceedings of Textila CGHS, then there was no necessity for accused Narayan Diwakar to pass an order in the year 2003 for revival of the society. Accused Narayan Diwakar, therefore, cannot claim the applicability of the judgment Vikas CGHS (Supra) to the present controversy.
CBI Vs. Gokul Chand Aggarwal Page 10/13 and another (Textile CGHS Ltd)
19. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application moved for revival of the society. In my opinion, the facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. The society which was not in existence was revived in the garb of being under liquidation on the strength of order dated 07.09.1990. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
20. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of CBI Vs. Gokul Chand Aggarwal Page 11/13 and another (Textile CGHS Ltd) office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. The accused persons did everything they could do in furtherance of the conspiracy entered into between them and just because land was not alloted to society is not a ground to discharge the accused.
21. Accused Narayan Diwakar has relied upon judgment Union of India (supra). There is no dispute regarding the legal proposition laid down in the said judgment. The aforesaid judgment is of no help to the accused persons as from the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA.
22. In view of the above discussion, I am of the opinion that primafacie case is made out against accused Gokul Chand Aggarwal (A1), accused Narayan Diwakar (A2), accused Daya Nand Sharma (A3), accused Ram Nath (A4), accused Faiz Mohammad (A5) and accused Kamal Singh (A6) for commission of offences U/s 120B r/w U/s 419/ 420/468/471/511 IPC and S. 13 (2) r/w S. 13 (1) (d) PC Act; and prima facie case against accused Narayan Diwakar (A2), accused Dayana CBI Vs. Gokul Chand Aggarwal Page 12/13 and another (Textile CGHS Ltd) Nand Sharma (A3), accused Ram Nath (A4), accused Faiz Mohammad (A5) and accused Kamal Singh (A6) is made out for commission of offences punishable under Section 15 r/w S. 13 (1) (d) of P.C. Act, 1988. Accused Gokul Chand Aggarwal (A1) is also liable to be charged under Sections 419/420/511/468/471 IPC.
Announced today in open (PRAVEEN KUMAR) court on 24.8.2011. Special Judge, PC Act CBI3, Rohini Court, Delhi.
CBI Vs. Gokul Chand Aggarwal Page 13/13 and another (Textile CGHS Ltd)