Delhi District Court
State vs Narayan Diwakar (Imamia Cghs) on 13 April, 2011
CBI No.15/08 Page No.1 of 48
State Vs.Narayan Diwakar (Imamia CGHS)
IN THE COURT OF SH.R.P.PANDEY : SPECIAL
JUDGE-01(CBI)ROHINI COURTS : DELHI
RC 1(A)/2006/ACU-VIII(CBI/New Delhi
U/s PC Act, 1988
ID No.02040R04370920006
CBI NO.15/08
CBI VS. NARAYAN DIWAKAR & ORS
(IMAMIA CGHS CASE)
Date of filing charge sheet - 29.11.06
Reserved for order - 22.03.11
Date of order - 13.04.11
ORDER-
1.The prosecution case is that instant FIR was registered on 03.01.06 in EOW-I branch of CBI pursuant to the order of Hon'ble High Court CWP No.10667/04 dated 02.08.05 directing CBI to investigate the matter relating to 135 Cooperative Group Housing Societies (CGHS). In compliance to the order, CBI registered case in respect of six societies including Imamia Cooperative Group Housing CBI No.15/08 Page No.2 of 48 State Vs.Narayan Diwakar (Imamia CGHS) Society Ltd. (for short Imamia CGHS) and as a result of enquiries a prima facie case was made out, therefore, the FIR No.1(A)/2006/ACU- VIII/CBI was registered against the accused persons consisting of some private persons and officials of Registrar of Cooperative Societies (RCS), Delhi.
2. In 1970-80 or thereafter a large number of Cooperative Group Housing Societies were registered out of which some had become defunct and wound up for various reasons like non-operation, non conducting of audit and elections or non submission of the membership lists and other documents to the RCS for the purpose of verification which was mandatory as per the Provisions of Delhi Cooperative Societies Act, 1972 (for short DCS Act). Imamia CGHS was registered with the Registrar of Cooperative Societies in 1983 bearing registration No.1224(GH). The society could not fulfill formalities regarding holding of elections of its management committee and other requirements as per provisions of DCS Act, 1972 and hence the then Dy.Registrar, Co-operative Societies in exercise of CBI No.15/08 Page No.3 of 48 State Vs.Narayan Diwakar (Imamia CGHS) his powers u/s 63 of DCS Act, 1972 had passed winding up order on 03.09.90 with immediate effect for liquidation of the society.
3. The investigation revealed that in the year 2002-03, accused Shakir Hussain (A-6) sold the documents of Imamia CGHS to accused/Anil Kumar (A-7) and late P P Wadhwa. Accused Shakir Hussain (A-6) was having acquaintance with one Mayank Goswami, a property dealer and had asked him to identify an effective person to get the society revived for the purpose of allotment of land. Mayank Goswami had shared this information with one Ashwani Vig, another property dealer and subsequently accused/Anil Kumar (A-7) and late P P Wadhwa had held a meeting with Sh.Ashwani Vig and told him that accused/Shakir Hussain, the Honorary Secretary of Imamia Society was interested to transfer the society to a management which can help in its revival and grant of land. Thereafter they were introduced to accused/Shakir Hussain (A-6) and that time it was decided that accused/Anil Kumar (A-7) would take efforts to revive the society by altering the management of the society. After receipt of the CBI No.15/08 Page No.4 of 48 State Vs.Narayan Diwakar (Imamia CGHS) documents from accused/Shakir Hussain (A-6), who was custodian of the relevant documents of Imamia Society, accused/Anil Kumar (A-7) conspired with accused/Ashwani Sharma (A-8) and accused/Navin Kaushik (A-9) for requisite documentation for the revival of society. The documentation included fake resignation of promoter members, documents regarding induction of new members, preparation of fake minutes of proceedings, preparation of forged affidavits, fake balance sheet and other such proceedings. Accused/Ashwani Sharma (A-8) being assisted by accused/Navin Kaushik (A-9) was well versed in the documentation work of society especially in writing and drafting of minutes of proceeding, its documentation for registration of society, revival of the defunct society etc. Accused/Ashwani Sharma (A-8) had given his consent to carry out documentation of Imamia Society with the help of accused/Navin Kaushik (A-9) for its revival in connivance with the concerned officials of RCS under monetary consideration.
4. The investigation revealed that accused/Anil Kumar (A-7) had made available all the concerned original documents i.e CBI No.15/08 Page No.5 of 48 State Vs.Narayan Diwakar (Imamia CGHS) membership register, bye-laws, proceeding register, election register and other such supporting documents to accused/Ashwani Sharma (A-8) to complete the documentation of the society. Thereafter false and forged entries were made in the relevant register by accused/Ashwani Sharma (A-8) and accused/Navin Kaushik (A-9) in order to revive the society. They also prepared applications forms of 42 members with sl.nos.88 to 129 in the membership register purported to have been prepared and signed in the year 1988-89, of the respective members including the application of accused/Anil Kumar (A-7) also. Investigation revealed that the members shown to have been inducted denied their membership and signatures when they were examined by CBI. Accused persons have also allegedly forged the application forms and signatures of fake members from page nos.1 to 55 of the application file.
5. In order to facilitate the induction of new members, accused/Ashwani Sharma (A-8) and Navin Kaushik (A-9) dishonestly and fraudulently prepared the resignation of genuine members from CBI No.15/08 Page No.6 of 48 State Vs.Narayan Diwakar (Imamia CGHS) page nos.5 to 46 placed in the resignation file containing pages 1 to 46 at the instance of accused/Anil Kumar (A-7) in the year 2003, purported to had been prepared in the year 1988-89. Many of the genuine members shown to had resigned, were examined by CBI, who denied their resignation. Evidence is also available to the effect that the list of members/candidates who were shown to have been inducted was made available by accused/Anil Kumar (A-7).
6. It is further the case of CBI that for the purpose of revival of defunct society, accused/Ashwani Sharma (A-8) and accused/Navin Kaushik (A-9) forged various documents which included application forms, resignation letters, minutes of proceedings for general body meeting dated 22.12.03, minutes of proceedings for special general body meeting dated 19.10.03 showing that election was held at C-16, New Brij Puri, Delhi, nomination form dated 22.12.02, audit report along with balance sheet, receipt and payment, income and expenditure, cash in hand certificate, list of managing committee, list of members enrolled and inspection report for the period 01.07.87 to CBI No.15/08 Page No.7 of 48 State Vs.Narayan Diwakar (Imamia CGHS) 31.03.03. Accused/Ashwani Sharma (A-8) and Navin Kaushik (A-9) also prepared false affidavit of the members, most of the members during random examination by CBI have denied the submission of such affidavits and the signatures as deponent on the said affidavits. The investigation revealed that after preparation of forged documents, the letter of request for revival of society dated 05.02.03 was made available to the office of RCS on behalf of President/Secretary of Imamia CGHS by accused/Anil Kumar (A-7) and Ashwani Sharma (A-
8). In furtherance of the said criminal conspiracy accused Rakesh Kumar (A-5), the then LDC in the office of RCS, put up a note before the then AR, Ramesh Chandra (A-2) mentioning the fact that a request letter had been received from Imamia Society, knowing it fully well that the request letter is not mentioning the name of the President/Secretary. In the note sheet, it was mentioned that President/Secretary has removed the shortcomings that had led to the order of winding up of the society. The shortcomings in the letter of request was mooted by Sh.Man Mohan Singh, the then Head Clerk in the office of RCS, who proposed to depute an officer for the inspection CBI No.15/08 Page No.8 of 48 State Vs.Narayan Diwakar (Imamia CGHS) of the society to ascertain whether the society was functioning at new address i.e. Brijpuri, Trans Yamuna Area.
7. Investigation revealed that on receipt of the aforesaid proposal, Sh.Ramesh Chandra (A-2), the then Assistant Registrar put up a note on 07.04.03 mentioning that accused/Narender Kumar (A-
4), Gr.III, Inspector be deputed on behalf of RCS to undertake verification of Imamia CGHS knowing it very well that the new management of society is based on the false and forged documents as he was in connivance with accused/Anil Kumar (A-7) and other accused persons. Accused Narender Kumar (A-4) in connivance with accused Ramesh Chandra (A-2) and other accused persons submitted an inspection report on 06.06.03, wherein he had submitted false and fake report that he had visited at the office of the society at C-16, Brijpuri and met accused/Anil Kumar (A-7), Secretary of the society and verified the entire documents of the society. In addition to said report dated 06.06.03, another report was also submitted by accused/Narender Kumar (A-4) without visiting the office of Imamia CBI No.15/08 Page No.9 of 48 State Vs.Narayan Diwakar (Imamia CGHS) CGHS and without verifying its documents. The evidence has been collected by CBI to the effect that the address C-16, New Brijpuri, Delhi-51 which was shown as an official address of Imamia society has never been the office of said society. Investigation revealed that accused Narender Kumar (A-4) had submitted these reports in collusion with other accused Ramesh Chandra (A-2); Narayan Diwakar (A-1); Ashwani Sharma (A-8) and Navin Kaushik (A-9). It has also come on record during investigation that the reports bear handwriting of accused/Ashwani Sharma (A-8), who had forged signatures of the so called Secretary/Anil Kumar. On the basis of false verification report submitted by accused/Narender Kumar (A-4), Ramesh Chandra (A-2) the then Assistant Registrar (East) put up a request for revival of the society u/s 63(3) of DCS Act, 1972 and for approval of the list of the members for the allotment of land on 13.06.03 and put up before RCS/Narayan Diwakar (A-1) through his reader/N S Khatri (A-3). Accused/N S Khatri (A-3) after examination knowing fully well that proposal is false and facts mentioned are not true, put up the proposal before accused/Narayan Diwakar (A-1) then CBI No.15/08 Page No.10 of 48 State Vs.Narayan Diwakar (Imamia CGHS) RCS, who approved and initiated necessary court proceedings for revival of the society.
8. The charge sheet further discloses that the evidence has come out in investigation against accused/Anil Kumar (A-7) and Ashwani Sharma (A-8) that they appeared in the court proceedings and represented Imamia society and in the proceedings dated 03.07.03, accused Narayan Diwakar (A-1) mentioned that Sh.Anil, secretary of the society appeared. Accused/Ramesh Chandra (A-2) in connivance with accused Narayan Diwakar (A-1), who was then RCS and others, had submitted false report that the requisite documents pertaining to request for revival of society i.e affidavit of society, election, audit, court cases and other such documents have been duly verified and made a request to accord approval of the list of members and revival of society. Accused Ramesh Chandra (A-2) had also recommended that the list of 87 members be forwarded to DDA for allotment of land.
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State Vs.Narayan Diwakar (Imamia CGHS)
9. It is also alleged that in the aforesaid conspiracy, in one of the court proceedings, accused Narayan Diwakar (A-1) has shown Ashwini as office Secretary of the Imamia Society and he finally issued the order of revival of society u/s 63(3) of DCS Act, on 04.09.03, vide which he cancelled the winding up order dated 03.09.90 and he also passed the order directing that audit and election of the society be held immediately. Accused Narender Singh (A-3), who was reader of the RCS was appointed as Election Officer to conduct the election of the managing committee. Accused P K Thirwani (A-10) was appointed as auditor by the office of RCS who submitted false audit report of Imamia society on the basis of forged documents made available by Anil Kumar (A-7) and prepared by accused Ashwani Sharma (A-8) and Navin Kaushik (A-9). Investigation also established that accused P K Thirwani never visited the office of society and never met any office bearers of the society and in connivance with other accused persons he had submitted a false report with dishonest and fraudulent intention. CBI No.15/08 Page No.12 of 48
State Vs.Narayan Diwakar (Imamia CGHS)
10. Investigation also revealed that accused N S Khatri (A-3) in connivance with other accused persons had submitted a false election report on 21.11.03 regarding holding of election of Imamia CGHS on 19.10.03. Evidence collected by the investigating agency had shown that no member as shown in that election report had attended any such meeting regarding election. Thus accused N S Khatri (A-3) is alleged to had shown the fake nomination of the office bearers of such society. Accused Ramesh Chandra (a-2) then AR forwarded the list of 87 members including 42 fake members of Imamia Apartment CGHS to the AR (Policy) of RCS for onward transmission of list to the DDA and the same was forwarded to DDA for allotment of land.
11. Investigation also revealed that accused/Anil Kumar (A-7) had also received two option letters regarding allotment of land at his residential address. The reply to these options was sent to DDA which bears forged signatures of accused Anil Kumar (A-7), Secretary and as per the evidence available the said forgery was made by accused Ashwani Sharma (A-8) which show that accused Anil Kumar CBI No.15/08 Page No.13 of 48 State Vs.Narayan Diwakar (Imamia CGHS) (A-3) in connivance with other accused persons have got renewed Imamia society by way of forgery of documents and he managed to receive the option letters at his residence.
12. During investigation opinion of GEQD, Kolkata was also obtained on vital document which confirmed the forgery of the minutes of the proceedings, application forms, resignation letters, nomination forms, audit report and relevant documents of the fake proceedings, entries in membership register, affidavits of individual members submitted to RCS office. It also confirmed that accused Ashwani Sharma (A-8) and Navin Kaushik (A-9) had prepared these forged documents. GEQD also confirmed the signatures of Anil Kumar (A-7) and various other documents which included his signatures on proof of delivery regarding receipt of option letter.
13. Thus, it is alleged that in the investigation, it has been clearly brought forth that accused Narayan Diwakar (A-1); Ramesh Chandra (A-2); N S Khatri (A-3); Narender Kumar (A-4); Rakesh CBI No.15/08 Page No.14 of 48 State Vs.Narayan Diwakar (Imamia CGHS) Kumar (A-5); Shakir Hussain (A-6); Anil Kumar (A-7); Ashwani Sharma (A-8); Navin Kaushik (A-9) and P K Thirwani (A-10) entered into a criminal conspiracy to cheat the RCS and DDA by reviving Imamia CGHS by committing criminal misconduct in order to obtain land from DDA and in furtherance of said conspircy, accused Shakir Hussain (A-6) had handed over the documents of Imamia CGHS to accused Anil Kumar (A-7); accused Anil Kumar (A-7) had dishonestly and fraudulently prepared false documents through Ashwani Sharma (A-8) and Navin Kaushik (A-9) which were required for revival. Accused Rakesh Kumar (A-5) put up a request for revival in spite of the fact that name of the President/Secretary was not mentioned in the request for revival. Accused Narender Kumar (A-4) submitted a false verification report. Accused Ramesh Chandra (A-2) put up the request for revival and list of members for the allotment of land before accused N S Khatri (A-3). Accused N S Khatri (A-3) examined the proposal and knowing the fact that the report was false and bogus and Accused Narayan Diwakar (A-1) approved the list and cancelled the winding up order dated 03.09.90 by issuing order for revival of society. CBI No.15/08 Page No.15 of 48
State Vs.Narayan Diwakar (Imamia CGHS) Accused P K Thirwani (A-10) submitted false audit report without even visiting society office or meeting its office bearers and accused N S Khatri (A-3) submitted a false report regarding election and nomination of office bearers of Imamia CGHS.
14. It is also mentioned by IO in the charge sheet that although name of Ashwani Vig and Mayank Goswami appears in the FIR but during investigation nothing incriminating was found against them as they had done acts in normal course of business and no criminality attributed for those acts. Thus, it is alleged that all the accused persons had committed offence u/s 120-B read with Section 420/467/468/471 IPC and Sction 13(2) read with Section 13(1)(d) of PC Act, 1988. Besides, Shakir Hussain (A-6) had committed an offence u/s 406 IPC by selling the documents and thus violating the conditions of entrustment.
15. Sanction for prosecution of accused N S Khatri (A-3); Narender Kumar (A-4); Rakesh Kumar (A-5) and P K Thirwani (A-10) CBI No.15/08 Page No.16 of 48 State Vs.Narayan Diwakar (Imamia CGHS) as required u/s 19 of the PC Act, they being public servants, has been obtained from the competent authority and annexed to the charge sheet. It is also stated that since accused Narayan Diwakar (A-1) and Ramesh Chandra (A-2) were no longer public servants, therefore, no sanction for their prosecution is required.
16. The accused persons are agitating the charge sheet and opposing the framing of charge submitting that there is no prima facie case against them.
17. I have heard arguments advanced by Ld.Senior Public Prosecutor for CBI and accused persons/their Ld. Counsels and also perused the written arguments filed on behalf of accused persons and carefully perused the record.
18. Accused Narayan Diwakar (A.1) has also filed an application seeking parity with employees of National Agricultural Co- op. Marketing Federation (NAFED) which is a co-operative CBI No.15/08 Page No.17 of 48 State Vs.Narayan Diwakar (Imamia CGHS) organization and in respect of its employees the provisions of P.C.Act are not attracted as the circular has been issued by CBI Clarifying that employees of NAFED are not government employees. Accused Narayan Diwakar was Registrar of Co-operative Societies and not a member of any co-operative society, hence he cannot claim parity with employees of a cooperative organization like NAFED to argue that he or other officials of RCS are not government employees. Therefore, his application claiming parity with employees of NAFED is misconceived and not tenable, hence dismissed.
19. Accused Narayan Diwakar (A.1) has also filed written submissions on charge as well as separate submissions claiming dishcarge u/s 227 Cr.PC; parity with NAFED employees in view of circular of CBI dated 11.03.10; judgment in Vikas CGHS Vs. Registrar and lack of specific and proper complaint. He has also relied upon the Judgment of Hon'ble Supreme Court in A.Subair Vs. State of Kerala, 2009 Cri.LJ 3450 wherein the Hon'ble Supreme Court has held that a presumption u/s 20 P.C.Act cannot be drawn where complainant was CBI No.15/08 Page No.18 of 48 State Vs.Narayan Diwakar (Imamia CGHS) not examined to prove the demand of bribe by the appellant who was a clerk at Regional Transport Office and allegedly demanded bribe for delivery of the driving license. It was held that mere recovery of the currency notes was not sufficient proof of demand and acceptance and hence conviction of the appellant was improper. He has relied upon the Judgment of Hon'ble Supreme Court in para 10 wherein it was held that in the absence of proof of demand or request from public servant for a valuable thing or pecuniary advantage, the offence under Section 13 (1)(d) cannot be held to be established.
20. In this respect Ld. Public prosecutor has rightly submitted that the case before Hon'ble Apex Court was the trap case u/s 7 of P.C.Act and Section 13(2) r/w Section 13 (1)(d) of P.C.Act, where allegations of specific demand and acceptance of bribe was a necessary element of the offence. The facts of the case in hand are materially different from the facts of the case of A.Subair (supra). Accordingly, I am of the view that the accused Narayan Diwakar cannot take shelter of Judgment of Hon'ble Supreme Court in CBI No.15/08 Page No.19 of 48 State Vs.Narayan Diwakar (Imamia CGHS) A.Subair(supra) for claiming discharge in the present case, as the observation of the Hon'ble Supreme Court in A.Subair's case (supra) were in the facts and circumstances peculiar to that specific case.
21. Accused Narayan Diwakar (A.1) has further submitted that he was Registrar of Cooperative Societies at the relevant time when the alleged offence had taken place and the process of the functioning of RCS is that the note is initiated and put up by Dealing Assistant who submits his note to AR and then AR submits note to DR and ultimately it reaches to the RCS. He has submitted that if anything has been done at the lower level, he cannot be held responsible for the same. The case of the prosecution herein is that accused Narayan Diwakar , the then RCS alongwith his other officials had entered into a conspiracy to commit the crime as alleged in this case. And pursuant to that conspiracy he had cancelled the winding up order of the society and approved the list. Hence the submission of accused Narayan Diwakar that he was only acting on the basis of note given by his subordinate officials, is his defence plea which cannot be CBI No.15/08 Page No.20 of 48 State Vs.Narayan Diwakar (Imamia CGHS) considered at this stage. It is settled position of law that the charge can be framed even on the basis of strong suspicion also.
22. He has also raised objection that his prosecution is illegal and unfair but there is nothing on record to show that prosecution of accused in this case is unfair and illegal. He has submitted that various offences under DCS Act, 1972 are not notified under Section 3 of DSPE Act, 1946 and hence he cannot be tried for the same. In fact in this case the accused persons have not been charge sheeted with any offence under DCS Act, 1972 and therefore, it cannot be said that he is being tried for an offence which is not notified u/s 3 of DSPE Act. He has also submitted that consent of State has not been obtained before prosecuting him as per provisions of Section 6 of DSPE Act and that there is no proper complaint on the basis of which this RC was registered. In this respect it suffice to say that, whenever, in exercise of constitutional power, a direction has been passed by Hon'ble High Court or Hon'ble Supreme Court for investigation of the case by CBI, there is no requirement that the consent of the CBI No.15/08 Page No.21 of 48 State Vs.Narayan Diwakar (Imamia CGHS) Government should be obtained or that there should be some specific complaint by a complainant in the case before enabling the CBI to proceed with the investigation of the matter. The Constitution Bench of Hon'ble Supreme Court in State of West Bengal Vs. The Committee for Protection of Democratic Rights, (2010) 3 SCC 571, specifically laid down -
"When the Special Police Act itself provides that subject to consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of CBI No.15/08 Page No.22 of 48 State Vs.Narayan Diwakar (Imamia CGHS) judicial review by the High Court, in our opinion, would not amount to infringement of the either the doctrine of separation of power or the federal structure".
23. He has also submitted that no land was allotted by DDA pursuant to the revival order passed by him and hence no offence is committed by him or other accused persons even u/s 511 of Cr.PC. In this case all the steps were taken by accused persons for getting allotment of land from DDA in the name of society which had ultimately not fructified. Thus, though there may not be elements to constitute a completed offence u/s 420 IPC and section 13(1)(d) r/w section 13 (2) of P.C.Act but the facts alleged are sufficient to constitute offences of conspiracy and attempt to commit offences u/s 420 IPC and section 13(2) r/w Section 13(1)(d) P.C.Act , besides offence under section 471 IPC r/w section 468 IPC. Accused Narayan Diwakar has also pointed out that there is lack of evidence in the present case and that he was not having a knowledge about the commission of offence which is a necessary element for offence of conspiracy. In this respect the evidence arrayed by the prosecution CBI No.15/08 Page No.23 of 48 State Vs.Narayan Diwakar (Imamia CGHS) in this case is prima facie showing that there is sufficient material to impute the knowledge on the accused officials of RCS including accused No.1 Narayan Diwakar to make out a prima facie case u/s 120-B of Cr.PC against all of them.
24. Accused/Narayan Diwakar (A-1) has further submitted that as per the latest circular of CBI bearing no.02/10 dated 11.03.10, it has been clarified that employees of National Agricultural Co- Operative Marketing Federation (NAFED) are not the Government employees, it being a co-operative organization and hence the provisions of PC Act do not apply to them. He has submitted that he along with other officials of RCS are entitled to parity with employees of NAFED. Such an argument is misplaced as accused/Narayan Diwakar (A-1) can not claim parity with employees of Co-operative Federation because he was a registrar of the Co-operative Societies and not the office bearers of a co-operative society. It sounds like the Registrar of Companies claiming parity with the employees of a company incorporated under Companies Act, 1956.
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25. Next submission of accused Narayan Diwakar (A-1) is that as per judgment of Hon'ble Delhi High Court in Vikas CGHS Vs. Registrar (CWP No.1767 of 1986) in view of Rule no.105 of the DCS Rules, 1973, the liquidation proceedings had already terminated. In this respect, it suffice to observe that much after the judgment of Hon'ble High Court in Vikas CGHS Vs. Registrar and Others, the directions were passed by Hon'ble High Court in CWP No.10667/04 dated 02.08.05 directing CBI to investigate the present matter including similar other matters where the group housing society was fraudulently got revived. Further, if there was no need of passing an order for setting aside the liquidation proceedings of Imamia CGHS, then why accused Narayan Diwakar (A-1) had passed such an order in the year 2003 for revival of society. This meets his submissions that in view of the directions in Vikas CGHS Case, he could not be charge sheeted for fraudulent revival of Imamia CGHS.
26. In view of the above observations, I find that the application CBI No.15/08 Page No.25 of 48 State Vs.Narayan Diwakar (Imamia CGHS) of accused Narayan Diwakar (A-1) u/s 227 Cr.PC for discharging him in the matter and his other pending applications as part of written arguments hold no merits as a prima facie case is found against him for framing of the charge, hence his application u/s 227 Cr.PC along with other applications claiming parity with employees of NAFED, relief in view of the judgment in Vikas CGHS Case (supra) and about non existence of specific and proper complaint also stand dismissed being meritless.
27. Accused Ramesh Chandra (A-2) has submitted that there was no complaint against him and the file was sent to him by the dealing assistant as per Page Nos.11 to 19 of the notings in document no.D-15 and he had simply sent this note to higher authorities and there is no allegations that he has received any monetary consideration and thus, it can not be said that he was involved in any corruption matter. He has submitted that a note was put up to him by the dealing assistant which was forwarded by him and thus simply forwarding the note of the subordinate officer to the senior officers is CBI No.15/08 Page No.26 of 48 State Vs.Narayan Diwakar (Imamia CGHS) not an offence and it was either the subordinate officer who had put up the note, could reply or the superior officer who had accorded the approval could reply the allegations.
28. Ld.counsel for accused N S Khatri (A-3) has also agitated the framing of charge against him on the grounds that he was doing the assigned duty as directed by the superiors and there was no illegality or forgery on his part and he was not involved in any conspiracy.
29. Sh.R P Shukla, ld.counsel for accused/N S Khatri (A-3) has submitted that accused was only an LDC in the office of RCS and was Election Incharge and as per allegations he had submitted the false election report. He has pointed out that in the revival order, accused/N S Khatri was appointed as Election Incharge, therefore, it can not be said that revival order was passed on the basis of his report. He also submitted that the forgery was not within his knowledge and there is no evidence to this effect. He has also drawn CBI No.15/08 Page No.27 of 48 State Vs.Narayan Diwakar (Imamia CGHS) attention of the court towards the revival order of the society and particularly to the last para of the order, vide which accused/N S Khatri was appointed Election Officer to conduct election of Imamia society. To my mind, even if accused/N S Khatri was appointed as Election Officer in the revival order itself, it was his duty to bring the truth to the notice of superior officers but not to involve in the conspiracy and consequently falsify the election proceedings. The mental element has to establish in trial. At this stage evidence available on record can not be meticulously evaluated but only a prima facie view has to be taken while framing of charge against the accused persons, therefore, it would not be appropriate to comment on the implication of the appointment of accused/N S Khatri (A-3) and conducting the elections of the society after the order of revival was passed and approved list was sent to DDA. The fact that accused/N S Khatri was appointed for conducting election in the revival order does not give him a clean chit that he was not the part of criminal conspiracy. Rather his submitting a false election report lead to a strong suspicion that he was appointed election officer in the revival order pursuant to an CBI No.15/08 Page No.28 of 48 State Vs.Narayan Diwakar (Imamia CGHS) understanding with other accused persons that he will give false election report which suited the co-accused persons.
30. Accused/Narender Kumar (A-4) has also filed written arguments besides making submissions. It is submitted by him that he was working in the office of RCS as Inspector, Gr.III and he was appointed to find out the factual position of the society and hence he had in fact visited the said office of the society and randomly verified the documents produced by the society as per the procedure laid down by the law. He has further submitted that there are two places having the similar addresses and all allegations against him are false and baseless and there is nothing on record to establish guilt against him. He has submitted that he had not prepared any document which was fake or forged and there is nothing on record to show that any monetary consideration have passed to him although his house was thoroughly searched. He has submitted that there was no question of hatching a conspiracy with other accused persons. CBI No.15/08 Page No.29 of 48
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31. On the other hand, it has been submitted by ld.Public Prosecutor that accused/Narender Kumar (A-4) was deputed by RCS on the basis of note put up by accused/Ramesh Chandra (A-2) for verification of Imamia CGHS but he had submitted inspection report dated 06.06.03 regarding his visit to the society at C-16, New Brijpuri, Delhi and that there he had met accused/Anil Kumar (A-7), Secretary of the society and verified the entire documents of the society, whereas statement of PW-24 has been recorded, who has submitted that no person in the name of Narender Kumar or Anil Kumar had ever visited his residence for verification of Imamia CGHS. Thus, an specific role has been assigned to accused/Narender Kumar (A-4) for falsifying the inspection report in furtherance of conspiracy hatched with other accused persons.
32. Sh.S K Bhatnagar, Ld.counsel for accused/Rakesh Kumar (A-5) has submitted that accused was a dealing assistant who had no power of any kind but he simply put up the note to the Assistant Registrar. He has submitted that accused/Rakesh Kumar (A-5) had CBI No.15/08 Page No.30 of 48 State Vs.Narayan Diwakar (Imamia CGHS) put up the note in discharge of his official duties and has not done any illegal act. He has submitted that accused was LDC in the department and there is no allegation of any pecuniary demand or receipt.
33. On the other hand, ld.Public Prosecutor has pointed out that letter of request was received by accused/Rakesh Kumar (A-5) for revival of society and a note was prepared by him and put up by him mentioning that the request letter has been received from Imamia society knowing fully well that request letter was not containing the name of the President/Secretary of the society. He also mentioned in the note that President/Secretary have removed the shortcomings that had led to the winding up of the society. Ld.Public Prosecutor has shown the documents i.e D-15 and D-19 in this respect. Thus prima facie case exist against accused/Rakesh Kumar (A-5) as well.
34. Ld.counsel for accused/Shakir Hussain (A-6) has filed the written arguments and made oral submissions, as well. It has been submitted that whereas one Mayank Goswami was one of the CBI No.15/08 Page No.31 of 48 State Vs.Narayan Diwakar (Imamia CGHS) accused and should have been put for trial but instead of doing so, CBI has made him a witness and recorded his statement on the basis of which accused/Shakir Hussain (A-6) has been implicated. It has been further submitted that only evidence against him is that he being honorary secretary of the society was custodian of the documents belonging to the society. It is submitted that there is nothing on record that documents belonging to the society were given by accused/Shakir Hussain for any illegal purpose. It is then submitted that he had handed over the documents in good faith with intention to get the society revived as per the rules in this regard and when he came to the knowledge that after realising the documents, Mayank Goswami had different intention, he had demanded the same from Mayank Goswami but it was not returned back to him. He has submitted that a complaint was made to RCS and SHO-Preet Vihar and the SHO- Bara Hindu Rao and other authorities seeking action against Mayank Goswami and others. He has also submitted that accused/Shakir Hussain (A-6) was constrained to file a civil suit titled as Imamia Apartments CGHS Vs. Madan Lal & Ors. It is settled principles of law CBI No.15/08 Page No.32 of 48 State Vs.Narayan Diwakar (Imamia CGHS) that at this stage defence of accused and his documents are not to be considered and that only the case of prosecution along with statements of the witnesses and prosecution documents has to be considered by the court for framing of charge.
35. Ld.counsel for accused/Shakir Hussain (A-6) has relied upon judgment of Hon'ble Supreme Court in Dilawar Balu Kurane Vs. State of Maharashtra, (2002) I AD (SC) 7, wherein it was held by Hon'ble Supreme Court that while considering the question of framing of charge, the court has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out, but the court should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. He has also relied upon judgment in Sarbans Singh & Os. Vs. State of NCT of Delhi, 2005 (1) JCC 255, wherein it was observed by Hon'ble Supreme Court that if two views are equally possible and the Judges are satisfied that the evidence produced before them while giving rise CBI No.15/08 Page No.33 of 48 State Vs.Narayan Diwakar (Imamia CGHS) to some suspicion against the accused, he will be fully within his right to discharge the accused.
36. He has also relied upon the judgment of Hon'ble Delhi High Court in State Vs. Hanuman Dass, 1987 (3)Crimes 354, wherein it was observed by Hon'ble Delhi High Court that the judge should consider judicially whether on consideration of the material on record, it can be said that the accused has been reasonably connected with the offence alleged to had been committed and that on the basis of the said materials, there is a reasonable probability or chance of the accused being found guilty of the offence alleged and if answer is in the affirmative, the judge will be at liberty to presume that the accused has committed an offence as mentioned in Section 228 Cr.PC for the purpose of framing of charge. The position of law canvassed by ld.defence counsel is unassailable and the trial courts are in fact being guided by the above principles of law in the matters of framing charge against accused persons.
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37. Ld.Public Prosecutor has submitted that accused/Shakir Hussain (A-6) was initially Secretary of the Imamia CGHS when the winding up order was passed on 03.09.90 but during the year 2002- 03, he sold the documents of the society to accused/Anil Kumar (A-7) which were seen in the possession of accused/Anil Kumar and he being custodian of the documents and thus has committed breach of trust and sold those documents to accused/Anil Kumar (A-7). In this respect, he has also shown the statement of PW-1 & PW-3 as recorded by IO.
38. In this respect statement of PW-3/Sh.Shamim Haider, as recorded by IO is relevant - PW-3-Sh.Shamim Haider, who was founder member and Vice President of Imamia CGHS has stated that Shakir Hussain (A-6) was Honorary General Secretary of Imamia CGHS and Custodian of all documents of Imamia CGHS since its inception. He stated that all documents including membership register of society wore in sole possession of Shakir Hussain. Accused Shakir Hussain had parted with possession of those documents which were CBI No.15/08 Page No.35 of 48 State Vs.Narayan Diwakar (Imamia CGHS) used by accused/Anil Kumar (A-7) with the help of other accused persons to commit the offences in question.
39. Thus a prima facie case is present against accused/Shakir Hussain (A-6) giving rise to a strong suspicion that since he was in custody and possession of the original documents of the society but parted with same which have been utilized by other co-accused persons for the purpose of getting society revived for allotment of the land by the DDA, he was involved in the criminal conspiracy, besides committing criminal misappropriation of the documents of Imamia CGHS. But since no element of entrustment of those documents to him has been shown as society was defunct, therefore, no prima facie case is found against him for alleged commission of breach of trust.
40. Accused/Anil Kumar (A-7) has filed written submissions on the point of charge claiming his discharge. Besides the issues which have been raised by accused Narayan Diwakar (A-1) and other accused persons already discussed above, accused/Anil Kumar (A-7) CBI No.15/08 Page No.36 of 48 State Vs.Narayan Diwakar (Imamia CGHS) has submitted that the CBI has failed to produce any documentary evidence to connect him with the alleged offence. He has submitted that he was never involved with any activity for revival of Imamia CGHS and never signed anywhere and GEQD report has not matched his handwriting except the specimen Q-302 and Q-1144. It is submitted that Q-302 is a piece of paper in which he had written the name but the said piece of paper has no concern with the revival of Imamia CGHS. As regards Q-1144, he has submitted that this was a letter from DDA which was sent to the President/Secretary of Imamia CGHS at his address and the same was received by him in the normal course but after receiving the letter he came to know that DDA had wrongly sent this letter at his address because he was not concerned with the Imamia CGHS. Thus, it is seen that the factual submissions of accused/Anil Kumar (A-7) are in fact his defence which can not be considered at the stage of charge.
41. On the other hand, ld.Public Prosecutor has submitted that accused/Anil Kumar (A-7) is the main conspirator of the entire offence CBI No.15/08 Page No.37 of 48 State Vs.Narayan Diwakar (Imamia CGHS) involving revival of Imamia CGHS. He has drawn attention of the court towards the statement of PW-1 recorded by the IO to show that after coming in contact with accused/Shakir Hussain (A-6), he had contacted PW-1 (Ashwani Vig) for availing the services of accused/Ashwani Sharma (A-8) for reviving the society, who was well versed in such type of work. It was he who had made available all the records of Imamia CGHS to accused/Ashwani Sharma (A-8). Accused/Ashwani Sharma (A-8) had given the names of the members to be inducted in the Imamia society against the vacancy of original members who were to be shown as resigned and he had also asked accused/Ashwani Sharma to prepare the documents with back dates. As per statement of PW-1, it was accused/Anil Kumar (A-7) who had assured accused/Ashwani Sharma (A-8) that all the expenses will be incurred by him for reviving the society and he had in fact appeared before the RCS in the proceedings and he had received the letter for Imamia CGHS in response to the option letter (D-29) about which GEQD opinion is positive. Thus, it is clear that sufficient evidence is available against accused/Anil Kumar (A-7) to frame charge against CBI No.15/08 Page No.38 of 48 State Vs.Narayan Diwakar (Imamia CGHS) him.
42. As regards accused/Ashwani Sharma (A-8), his ld.counsel Sh.Amit Khanna has submitted that accused/Ashwani Sharma (A-8) has been falsely implicated in this case whereas the main accused person has been left out. In respect of accused/Ashwani Sharma (A-
8) statement of witness recorded as PW-1 is crucial. PW-1 has stated that in the meeting with accused/Anil Kumar (A-7), accused/Ashwani Sharma (A-8) had stated that he will oblige the RCS officers through all possible means including accused/Narayan Diwakar (A-1); accused/Ramesh Chandra (A-2) and accused/N S Khatri (A-3). He had also told that the role of inspecting officer will be crucial as his verification report will decide the fate of the society which had already become defunct and he wanted the list of newly inducted members and list of members who had resigned. It was he who had made it clear that expenses of Rs.2.5 lacs to Rs.3 lacs will be incurred for revival of the society which were meant for preparation of the proceedings including monetary obligation for the officers of RCS. As CBI No.15/08 Page No.39 of 48 State Vs.Narayan Diwakar (Imamia CGHS) per statement of PW-1, it was accused/Ashwani Sharma (A-8), who had instructed accused/Naveen Kaushik (A-9) to prepare the documents in the manner so that new members be inducted and anamolies that had led to the winding up order of Imamia CGHS be rectified. He had further directed to prepare the affidavits of all the members for filing the same in the office of RCS. GEQD opinion (D-
36) is positive in this respect showing that it was he along with accused/Naveen Kaushik (A-9) who had forged the number of documents for the purpose of revival of society. Thus, not only the oral testimony of PW-1 and other witnesses is available on record but there are documents with positive GEQD opinion for forging those documents by accused/Ashwani Sharma (A-8). Thus, there is sufficient evidence on record to show a prima facie case against accused/Ashwani Sharma (A-8).
43. An application filed by accused/Ashwani Sharma (A-8) u/s 395 Cr.PC was also taken up along with arguments on charge. It has been submitted by ld.counsel for accused/Ashwani Sharma that the CBI No.15/08 Page No.40 of 48 State Vs.Narayan Diwakar (Imamia CGHS) substantial questions of law arise is this matter which call for referring the same to Hon'ble High Court for decision. He has submitted that the questions which arise for determination u/s 395 Cr.PC are: a) whether the FIR could be registered without the compliance of Section 154 Cr.PC? b) Whether the informant/complainant may be any 'order' passed by Hon'ble High Court? c) Whether within the meaning of Section 17 of PC Act, Inspector of CBI is authorized to investigate the matter? d) Whether CBI can prosecute any person under the general provisions of IPC for offences specifically enacted under the special law i.e Delhi Co-operative Society Act.
44. Sh.Amit Khanna, the ld.counsel for accused/Ashwani Sharma has submitted that the elements of Section 154 Cr.PC are missing as the FIR has always to be registered on the basis of a complaint on which rukka is prepared for registration of FIR. It is well settled position that the Hon'ble Supreme Court and Hon'ble High Courts in exercise of their extra-ordinary powers under the constitution, can direct the CBI to investigate any particular matter and CBI No.15/08 Page No.41 of 48 State Vs.Narayan Diwakar (Imamia CGHS) in that case the CBI has to proceed with investigation of the matter on receipt of the directions. The directions of the Apex Court or Hon'ble High Court are to be the basis of FIR, to be registered by the CBI and thus, no separate complaint is required. The law has since been settled even by the constitution Bench of Hon'ble Supreme Court in State of West Bengal Vs. The Committee for Protection of Democratic Rights (2010) 3 SCC 571 (supra).
45. It has been submitted by the ld.defence counsel for accused/Ashwani Sharma that an Inspector of CBI is not authorized to investigate a matter under provisions of Section 17 of PC Act. This contention is contrary to specific provisions of PC Act, which provides that in the case of Delhi Special Police Establishment, no officer below the rank of an Inspector of Police shall investigate any offence punishable under this Act (i.e PC Act). As per the second proviso of Section 17 an offence referred to in Section 13(1)(e) shall not be investigated without an order of a police officer not below the rank of a Superintendent of Police, which is not a case here as neither the FIR CBI No.15/08 Page No.42 of 48 State Vs.Narayan Diwakar (Imamia CGHS) nor charge sheet is for an alleged offence u/s 13(1)(e) of PC Act (i.e for Disproportionate Assets Cases).
46. It has been then submitted by him that CBI can not prosecute any person under general provisions of IPC for the offences which are enacted under the special law i.e. Delhi Co-Operative Societies Act. The accused persons are not being prosecuted for violation of the provisions contained in DCS Act but they are being prosecuted for offences committed by them under PC Act and criminal conspiracy for committing specific offences under IPC. Thus, the question does not arise that the accused persons are being prosecuted in this case for an offence under DCS Act, which is not notified by the Government. Thus, I have reached to the conclusion that there is no question of law involved in this case which requires to be referred to Hon'ble High Court u/s 395 Cr.PC. Hence application of accused/Ashwani Sharma is found vexatious and frivolous and, therefore, dismissed.
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47. Accused/Naveen Kaushik (A-9) has filed written submissions and submitted that he is an innocent person but has been falsely implicated in this case. He has also submitted that he has also filed an application u/s 227 Cr.PC for his discharge which may be also read as his arguments on charge. In the application, he has stated that he was working as accountant with accused/Ashwani Sharma (A-8) for his survival. He has submitted that the allegations in the charge sheet about his forging the documents are false. In this respect, ld.Pubhlic Prosecutor has drawn attention of the court to the fact that accused/Naveen Kaushik (A-9), who was employee of accused/Ashwani Sharma (A-8) had forged the application forms, resignation letters, minutes of the proceedings of the general body meeting and nomination forms etc and GEQD opinion (D-36) is positive about his handwriting on these documents. His objection that there is no mens rea alleged by the prosecution, can not be considered at this stage as mens rea has to be deducted from the evidence which may be proved during trial. Thus, there is sufficient material available to frame charge against accused/Naveen Kaushik CBI No.15/08 Page No.44 of 48 State Vs.Narayan Diwakar (Imamia CGHS) (A-9) for cheating and forgery along with criminal conspiracy and his application u/s 227 Cr.PC for his discharge is, therefore, dismissed as there is no ground to discharge him.
48. Accused/P K Thirwani (A-10) has filed written submissions besides oral arguments by his ld.counsel Sh.S K Bhatnagar. It has been submitted that whereas the revival of the society was done on 04.09.03 in pursuance to which audit was conducted by accused/P K Thirwani (A-10) and the audit report was submitted on 09.10.03 and his audit report was examined by AR (Audit) and no objection was raised by him and when AR (Audit) is not an accused in this case, there is no reason why accused/P K Thirwani (A-10) should have been implicated in this case. It has been submitted that his audit report was prepared on the basis of forged documents made available to him by accused/Anil Kumar (A-7) as prepared by accused/Ashwani Sharma (A-8) and accused Naveen Kaushik (A-9), which are false. He has submitted that there is nothing on record of CBI to show that accused/P K Thirwani (A-10) was having any knowledge about the CBI No.15/08 Page No.45 of 48 State Vs.Narayan Diwakar (Imamia CGHS) forged record of the society which were produced before him for audit.
49. On the other hand, ld.Public Prosecutor has drawn attention of the court that it was accused/P K Thirwani (A-10) who had conspired with other accused persons and conducted a false audit of Imamia CGHS for the year 1987-88 to 2002-03 and submitted a false audit report (D-17) (Pages 83 & 87). In this respect, he has also taken the court through th statement of PW-24, who had stated that C-16, New Brijpuri is his residence and no activity in respect of Imamia CGHS had ever taken place at his residence whereas accused/P K Thirwani (A-10) had allegedly visited said place and conducted audit. Thus, a prima facie case is available to show that accused/P K Thirwani (A-10) had deliberately falsified audit report and given false audit report to help the other accused persons in getting Imamia society revived. There is no substance in the submissions of the ld.defence counsel that the audit report was given after the revival order was already passed as this does not mean that accused/P K Thirwani (A-10) had not conspired with other accused persons CBI No.15/08 Page No.46 of 48 State Vs.Narayan Diwakar (Imamia CGHS) because had he highlighted the true facts and not falsified the audit report, design of the other accused persons could have surfaced but for his role in the alleged conspiracy. He had given false report to help other accused and thus the sufficient material in respect of him is available on record to show a prima facie case against him also.
50. Ld.Public Prosecutor has also shown the documents like proceeding register (D-2), membership register (D-3) and other documents like D-8, D-15, D-17, D-19, forged application forms (D-
27), forged resignation letters (D-25) then D-14, 16, 20, 21, 23, 27 and D-28 and he has also taken the court through the statements recorded by IO of PW-6, 11, 12, 13, 16, 18 to 20, 25, 26, 30, 32 to 34, 39, 43, 47, 50 to 52, 54 and PW-55 on the point of false resignations. He has also taken the court through statements of PW-3, 4, 5, 7 and 14 about the forgery of affidavits, statement of PW-3 about the forgery in membership register and proceeding register of Imamia CGHS and minutes of the meeting. He has also shown that statement of PW-24 regarding falsity of address of society at C-16, New Brijpuri and about CBI No.15/08 Page No.47 of 48 State Vs.Narayan Diwakar (Imamia CGHS) the introduction of false members by accused. He has also shown the statements recorded by IO of PW-7 to 10, 14, 15, 17, 21 to 23, 27, 29, 56 to 59 as regards the false membership. As regards procedure for winding up and liquidation of the society and its revival, prosecution has arrayed PW-35 and 36. He has also shown that accused/Rakesh Kumar (A-5) had made initial note without mentioning the name of the President/Secretary of the Imamia Society (D-15 and D-19). Besides there are statements of PW-1 and PW-2 about introduction of accused/Anil Kumar with Shakir Hussain and documentation work by accused Ashwani Sharma with help of accused Naveen Kaushik.
51. Thus, I find that sufficient material is available on record to frame charge against all accused persons u/s 120-B IPC r/w Section 403/420/468/471 r/w section 468 IPC and section 13 (2) r/w section 13(1)(d) of P.C.Act. The charge for substantive offence is made out against accused Shakir Hussain (A-6) u/s 403 IPC for dishonestly misappropriating the documents of the defunct Imamia Apartment CGHS, substantive offence u/s 420 r/w section 511 IPC, is made out CBI No.15/08 Page No.48 of 48 State Vs.Narayan Diwakar (Imamia CGHS) against accused/Anil Kumar (A-7). Charge for substantive offence u/s 468 IPC is made out against accused/Ashwani Sharma (A-8) and accused/Naveen Kaushik (A-9) for committing forgery of the documents intending that the same shall be used for the purpose of cheating. Substantive charge u/s 471 IPC r/w section 468 IPC for fraudulently and dishonestly using as genuine documents is also made out against accused/Anil Kumar (A-7) and accused/Ashwani Sharma (A-8). Further prima facie case is also made against accused Narayan Diwakar (A-1); Ramesh Chandra (A-2); N S Khatri (A-3); Narender Kumar (A-4); Rakesh Kumar (A-5) and P K Thirwani (A-10) for substantive offence u/s 15 r/w sections 13 (2) r/w section 13(1)(d) of P.C.Act. Let the charge be framed against accused persons, accordingly.
ANNOUNCED IN THE OPEN (R.P.PANDEY)
COURT ON 13.04.11 SPECIAL JUDGE (01)CBI
ROHINI COURTS:DELHI