Delhi District Court
Cbi vs . 1. Yogi Raj S/O Sh. Girdhari Lal (A1) on 18 April, 2012
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 114/11
RC No. 72A/2005/CBI/ACB/N.Delhi
(Sahayadri CGHS)
CBI Vs. 1. Yogi Raj S/o Sh. Girdhari Lal (A1)
2. Ramesh Lal S/o Late Sh. Babu Lal (A2) (Expired)
3. Ashwani Sharma S/o Late Sh. R.K. Sharma (A3)
4. Ashutosh Pant S/o Sh. Mahesh Chander Pant(A4)
5. Padam Dutt Sharma S/o Sh. J.D. Sharma (A5)
6. Rajesh Kumar Srivastava S/o Late Sh. G.S.
Srivastava. (A6)
7. Yogesh Kumar Chauhan S/o Sh. Prem Singh (A7)
8. D. Bhattacharya S/o Late Sh. M.C.Bhattacharya
(A8)
O R D E R O N C H A R G E:
1.The case of the CBI, in brief, is that Sahyadari Cooperative Group Housing Society (in short 'CGHS') was registered with the Registrar Cooperative Societies ( in short 'RCS), Delhi on 23.12.83 vide registration No. 1114 (GH). Initially it had 87 members which were increased to 120 lateron. Since the society did not function as per the law, a winding up order was passed against society on 17.6.97 on the ground that records were not produced for verification, no auditing of accounts was done and CBI Vs. Yogi Raj & Ors. Page 1/28 (Sahayadri CGHS) there was failure to hold elections and to reply to the show cause notice.
2. It is alleged that on 15.2.2000 a letter bearing forged signatures of one Sh. Bhim Singh, the President of the society, was sent to RCS for revival of the society. It was falsely projected therein that the grounds on which the society was wound up have been fulfilled. The letter was processed as genuine letter and was entrusted to Ramesh Lal, Inspector by RCS for inspection of the society. It is further alleged that accused Sh. Ramesh Lal knowingly submitted a forged and bogus inspection report on 4.4.2000 to the effect that registered office of the society is at 6706, Lodhi Colony, New Delhi while it was actually operating from L227, Pocket A, Mayur Vihar, PhaseII, New Delhi. He carried out a fraudulent inspection at Mayur Vihar address which is the office of accused Ashwani Sharma. He dishonestly recommended for revival of the society giving false ground that society was being maintained in a proper way. Alongwith his report he submitted copies of fake and forged documents furnished by the society. He also falsely reported that last election was held on 17.10.99 and the election officer was accused Ashutosh Pant. Enclosure included election notice as CBI Vs. Yogi Raj & Ors. Page 2/28 (Sahayadri CGHS) per which election officer was Ashutosh Pant. He further reported that election was successfully conducted and the office bearers elected were Bhim Singh, the President, Bhoram Singh, the Vice President, Ms Beena Singh, Narender Singh and Preeti Tandon as the Managing committee members.
3. Investigation further revealed that Sh. D. Bhattacharya, dealing assistant had put up note after inspection report wherein he intentionally omitted to point out that the audit of the society was pending for 9 years continuously and that 9 years audit of the society was conducted at a time during 19992000. This omission in his part clearly speaks of his complicity in the matter with others.
4. It is further alleged that accused Padam Dutt Sharma in conspiracy with others recommended revival of the society without proper scrutiny of documents which would have revealed that the aforesaid office bearers of the society were not even members of the society. The then RCS, accused R.K. Srivastava, had instructed that affidavits be obtained from representatives of the society that they would abide by the statutory provisions of the Delhi Cooperative Societies Act, CBI Vs. Yogi Raj & Ors. Page 3/28 (Sahayadri CGHS) 1972 (in short 'DCS'). Accused Padam Dutt Sharma dishonestly made a false endorsement on the file that the required affidavits have been filed by the members of the society who appeared before him. It is alleged that the said affidavit dated 23.5.2000 was available on the record of RCS and the same was signed by Bhim Singh as the President and Ms. Beena Singh as the Secretary and both denied having sworn the same or having any link with the society. Accused Padam Dutt Sharma dishonestly accepted a false affidavit in pursuance of the criminal conspiracy. Acting on the aforesaid, accused R.K. Srivastava, the then RCS, cancelled the winding up order and accordingly the society was revived vide order dated 19.6.2000. It is alleged that this revival order was wrongly and illegally passed as the deficiencies which led to the winding of the society were not rectified.
5. Investigation further revealed that accused Ashutosh Pant is a private person and he used to work for coaccused Ashwani Sharma. He knowingly prepared false inspection related documents enclosed by Ramesh Lal Inspector with his report. He alongwith accused Ashwani Sharma also knowingly prepared false and bogus proceedings register of the society CBI Vs. Yogi Raj & Ors. Page 4/28 (Sahayadri CGHS) which were used as genuine for fraudulent revival of the society. It was also revealed that fifty members were common in the original list of members provided by the society and the new list of members provided at the time of revival of society. Out of them, affidavit of 23 members filed at the time of inception of society were available but the above mentioned RCS officials intentionally omitted to compare the same with the affidavits filed during the year 2000. Mere perusal of the same would have revealed that the affidavits filed in the year 2000 were false/bogus. It was also revealed that 71 members of the society have resigned after 1.7.86 and their resignations were accepted by the society but no intimation was sent to the RCS. However, these members stated that they never resigned from the membership of the society and their resignations available on record are forged. It was also revealed that fifteen members of the society did not file any affidavit and fifteen members were never enrolled as members, addresses of seventeen members were nonexistent and addresses in respect of 37 members were in existence but the persons whose names and particulars appeared in the list of members never resided at the premises during the relevant period.
CBI Vs. Yogi Raj & Ors. Page 5/28 (Sahayadri CGHS)
6. It is further alleged that resignation of members were forged and falsely prepared by accused Ashutosh Pant in pursuance to criminal conspiracy with accused Ashwani Sharma, his employer. Investigation also revealed that Bhim Singh, Ms. Beena Singh, Narender Singh and Bhoram Singh were never members of the society and they are related to each other. Accused Y.K. Chauhan audited the accounts and the documents were signed by secretary and president of the society but they denied having signed these documents. Accused Yogi Raj verified the records which were purportedly produced by Bhim Singh despite the record being forged and incomplete. It is alleged that on account of these bogus report ultimately the society was revived and the list of members was sent for allotment of land but could not get land as certain queries were raised by the DDA. After completing investigation, chargesheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code 1860 (in short 'IPC') and Prevention of Corruption Act 1988 (in short 'PC' Act).
7. Accused Ramesh Lal s/o Babu Lal (A2) has expired and, hence, case against him stood abated.
CBI Vs. Yogi Raj & Ors. Page 6/28 (Sahayadri CGHS)
8. I have heard Ld. PP for CBI;
Sh. R.P. Shukla, Ld. Counsel for accused Yogi Raj (A1) and accused Rajesh Kumar Srivastava (A8) Sh. Ajay Burman, Ld. Counsel for accused Padam Dutt Sharma (A5);
Sh. Rajeshwar Kumar Gupta, Ld. Counsel for accused D. Bhattacharya (A8).
I have also gone through the written submissions filed on behalf of accused Ashwani Sharma (A3), accused Ashutosh Pant (A4) and accused D. Bhattacharya (A8).
9. Sh. R.P.Shukla, Ld. Counsel for accused Yogi Raj (A1) and accused R.K. Srivastava (A6) contended that accused Yogi Raj (A1) and accused R.K. Srivastava (A6) never ever violated any provision of the DCS Act and DCS Rules. All the notes on the note sheets bearing signatures of accused Yogi Raj (A1) in the present case are after the revival of the society. It was the Dealing Hand, Mr. Sanjay, who had verified the genuineness of the documents. However, Mr. Sanjay has neither been made a witness nor an accused in this case by the prosecution. The acts of the accused Yogi Raj (A1) and accused R.K. Srivastava CBI Vs. Yogi Raj & Ors. Page 7/28 (Sahayadri CGHS) (A6) were in bonafide discharge of their official duties. There is no material on record for framing a charge against them.
10. The contention of Ld. Counsel is without any merit. Whether the acts of the accused Yogi Raj (A1) and accused R.K. Srivastava (A6) were without any malafide intention or not is a matter which is to be seen at the time of trial. In the present case accused Yogi Raj over looked the shortcomings available on record which contributed to the completion of the present conspiracy and, thus, he became a part of the same. Accused Yogi Raj (A1) fraudulently relied upon the recommendation of Dealing Hand without checking the genuineness of the record and, therefore, there is a grave suspicion against him of having entered into a criminal conspiracy to cheat the office of RCS and DDA. It cannot be said that the role of accused Yogi Raj (A1) was just to act in a mechanical manner without applying his mind to the facts of the case presented before him by his junior staff. In my opinion, accused Yogi Raj (A1) and accused R.K. Srivastava (A6) are not liable for discharge.
11. Sh. Ajay Burman, Ld. Counsel for accused Padam Dutt Sharma (A5) contended that the name of the accused no.5 does not find CBI Vs. Yogi Raj & Ors. Page 8/28 (Sahayadri CGHS) mentioned in the FIR though the FIR was registered by the CBI after conducting the preliminary enquiry. Ld. Counsel contended that the name of the accused no.5 does not find mentioned in paragraph at pages 910 which makes it clear that accused no.5 Padam Dutt Sharma was not a part of conspiracy. According to him the alleged authority letter dt. 15.2.2000 was submitted to accused Ramesh Lal and not to accused Padam Dutt Sharma (A5). As per ld. Counsel, the facts stated in the chargesheet are contrary to the record. Accused Padam Dutt Sharma never made any false endorsement on the file as has been alleged. The Act on the part of accused no.5 was within the ambit and scope of the provisions of DCS Act and DCS Rules and whatever he did was in his bonafide discharge of his official duties. Ld. Counsel has drawn the attention of this court towards the notes 14/N and 43/N in file D6 signed by accused Padam Dutt Sharma to emphasize that the notes were bonafidely written by accused Padam Dutt Sharma (A5) in discharge of his official duties.
12. The contention of Ld. Counsel for accused Padam Dutt Sharma (A5) that the name of accused Padam Dutt Sharma does not find mentioned in the FIR and his name is also not mentioned in CBI Vs. Yogi Raj & Ors. Page 9/28 (Sahayadri CGHS) last para starting at page 9 and continuing till page 10 shows that accused Padam Dutt Sharma was not a part of conspiracy and, therefore, accused is liable to be discharged is without any merit. It is not necessary that the names of all the accused persons should be mentioned in the FIR. If subsequently during investigation prosecution finds the involvement of other accused persons also, they can also to be chargesheeted by the prosecution even though their names are not mentioned in the FIR. Whether the acts of accused no.5 Padam Dutt Sharma were without any malafide intention is a matter which is to be seen at the time of trial. It is not necessary u/S 120B IPC that all the accused persons should have knowledge about crime and that all the accused persons should know the conduct of other accused persons. Any conduct which contributes to the chain of conspiracy is sufficient to attract the offence of conspiracy. In the present case accused Padam Dutt Sharma over looked the shortcomings available on record which contributed to the completion of the present conspiracy and, thus, he became a part of the same. The acts of omission and commission on his part clearly establishes his connivance with other RCS officials and private persons in writing favourable notes recommending revival of society on the basis of false/forged documents. From CBI Vs. Yogi Raj & Ors. Page 10/28 (Sahayadri CGHS) the facts and circumstances of this case, there is a grave suspicion against accused Padam Dutt Sharma of having entered into a criminal conspiracy to cheat the offices of RCS and DDA.
13. Sh. Rajeshwar Kumar Gupta, Ld. Counsel for accused D. Bhattacharya (A8) contended that accused D. Bhattacharya filed an application seeking his discharge from the prosecution for want of mandatory sanction u/s 197 Cr.P.C and Ld. Predecessor of this court Sh. R.K. Yadav Spl. Judge, CBI, dismissed the same vide his order dt. 29.7.2008. Accused being aggrieved by the said order filed a criminal revision petition before the High Court of Delhi and vide order dt. 11.9.2008, the said revision petition was disposed of by giving an opportunity to the accused D. Bhattacharya (A8) at the time of charge to address arguments whether the act alleged against him was done by him in the discharge of his official duties. As per Ld. Counsel in view of the said decision of the High Court of Delhi, accused D. Bhattacharya is entitled for his discharge from the prosecution of the alleged offences under the provisions of IPC when the acts of the alleged offences were done by the accused bonafide and in discharge of his official duties. Ld. Counsel further contended that the FIR was registered after conducting CBI Vs. Yogi Raj & Ors. Page 11/28 (Sahayadri CGHS) preliminary enquiry but the name of accused no.8 does not find mentioned in the FIR. There is no substantial or prima facie evidence against the accused. The only allegation against the accused D. Bhattacharya is unnumbered para3 at page 11 of the chargesheet wherein it is alleged that accused no.8 intentionally omitted to point out that the audit of society was pending for nine years continuously and that nine years audit of the society was conducted at the time during 19992000.
14. According to Ld. Counsel, the said allegation is contrary to law and on facts on the face of the documents placed on record by the prosecution itself. Section 53 of the DCS Act mandates for audit of accounts of every cooperative society to be audited or caused to be audited by a person authorised by the Registrar by general or special order in writing in this behalf. Section 97 of the DCS Act empowers the Lt. Governor to make rules to carry out the purpose of the Act and as such DCS Rules, 1973 were framed and came into operation accordingly. Ld. Counsel has drawn the attention of this court towards Section 53 and 97 of the DCS Act and Rule 84 of the DCS Rules as existed at the relevant period i.e. 7.4.2000. According to Ld. Counsel in view of the provisions of DCS Act and DCS Rules, it is provided that CBI Vs. Yogi Raj & Ors. Page 12/28 (Sahayadri CGHS) the audit under sub sec.(1) of Section 53 shall in all cases extend back to the last date of the previous audit and shall be carried out up to the last date of the cooperative year immediately preceding the audit or where the Registrar so directs in the case of any particular society or class of societies such other date as may be specified by the Registrar. Rule 84(1) as it stood before its amendment on 6.8.1997 was without the proviso and bare reading of said sub rule (1) alongwith subrule (4) of Rule 84 provides no time limit for which period audit could have been carried by the departmental or certified auditors appointed by the Registrar. The legislature by way of an amendment dated 6.8.1997 brought into force the proviso to rule 84(1), besides other amendments, whereby the legislature tried to put an embargo to limit the period of audit for a maximum period of three years as it is clear from the reading of the said proviso.
15. Ld. Counsel further contended that the said amendment brought by the authorities was challenged in a writ petition no. 4143 of 1997 titled as Federation of Cooperative Group Housing Societies vs. Union of India in the Delhi High Court and the Division Bench of the Delhi High Court vide order dt. 3.10.97 stayed the operation of the Rule 84(1) as amended by the CBI Vs. Yogi Raj & Ors. Page 13/28 (Sahayadri CGHS) notification dt. 6.8.1997. According to Ld. Counsel in view of the said order dt. 3.10.97 passed by the High Court, there was no embargo/limit of period for conducting the audit as on 7.4.2000 and 22.5.2000 when the accused no.8 D.Bhattacharya put up his notes based on the report of the Inspector Sh. Ramesh Lal.
16.Ld. counsel further contended that as per the audit reports placed on record by the prosecution for the period from 198990 to 199899 there is a prescribed form "optioncumappointment letter for conducting statutory audit". By the said 'form', the society obtained approval of the Registrar for getting the audit conducted from 199091 to 199899. According to ld. Counsel it was accused Ramesh Lal who had recommended for the revival of the society. The accused no.8 did not recommend for the revival of the society in his notes dated 7.4.2000 and 22.5.2000. The act on the part of the accused D. Bhattacharya (A8) was within the ambit and scope of provisions of DCS Act and DCS Rules and in his bonafide discharge of his official duties. Ld. Counsel prayed that accused no.8 D. Bhattacharya be discharged in this case.
CBI Vs. Yogi Raj & Ors. Page 14/28 (Sahayadri CGHS)
17. The contention of the Ld. Counsel that the operation of Rule 84(1) of DCS Rules as amended by the notification dated 6.8.1997 was stayed by the Double Bench of Delhi High Court vide its order dated 3.10.1997 which remained in force till 8.1.2003 and, consequently, there was no embargo/limit of period for conducting the audit as on 7.4.2000 and 22.5.2000 has merit.
18.The allegation against accused D. Bhattacharya (A8) is that he had put up a note after inspection report of Sh. Ramesh Lal (A2) wherein he intentionally omitted to point out that the audit of the society was pending for nine years continuously and that nine years audit of the society was conducted at the time during 19992000. There are only two notes dated 7.4.2000 and 22.5.2000 in the note sheets which are signed by accused D. Bhattacharya (A8). From the perusal of orders dated 3.10.1997 and 8.1.2003 of the Double Bench of Delhi High Court passed in writ petition No. 4143 of 1997, it is clear that the operation of Rule 84(1) of the Amended Rules of the DCS Rules, 1973 as notified through notification dated 6.8.97 remained stayed w.e.f 3.10.1997 till 8.1.2003. This fact has not been denied by the prosecution. In these circumstances on 7.4.2000/22.5.2000 CBI Vs. Yogi Raj & Ors. Page 15/28 (Sahayadri CGHS) there was no time limit for which period audit could have been carried out by the Departmental or certified auditors appointed by the Registrar. It is the document of the prosecution itself that the society obtained approval of the Registrar for getting the audit conducted which extended back to the last date of the previous audit and carried out upto the last date of the cooperative year immediately preceding the audit. The Assistant Registrar(Audit) vide form No. Department AR/audit/1999/376 dated 21.12.99 granted approval for audit for the year 199091 to 199899 and properly recorded the same on optioncum appointment letter for conducting statutory audit. Vide the said form the Registrar had specifically granted his approval by putting a stamp thereon stating "pending audit approval by RCS vide No.5 placed on the file on dated 17.12.99". It is also pertinent to note that the notes dated 7.4.2000 and 22.5.2000 were not in positive sense but were in negative sense that unless all the requirements of showcause notice are submitted by the society, the revival may be considered only thereafter. In these circumstances it cannot be said that accused D. Bhattacharya (A8) intentionally omitted to point out that the audit of the society was pending for 9 years continuously w.e.f 199091 to 199899. Hence, the act of accused D. Bhattacharya (A8) CBI Vs. Yogi Raj & Ors. Page 16/28 (Sahayadri CGHS) cannot be termed to have been done dishonestly and, therefore, he was not a party or a conspirator in the alleged offences. There is no connecting link that would warrant an inference that accused D. Bhattacharya (A8) was acting in criminal conspiracy with other accused. Thus, I find no ground for framing of charge u/s 120B IPC also against accused D.Bhattacharya (A8).
19.Accused D. Bhattacharya (A8) who was working in the office of RCS superannuated on 31.12.2005. The prosecution against him was initiated after his superannuation. It is the settled law that sanction to prosecute a public servant u/s 197 Cr.P.C is needed even if he has retired in case he is to be prosecuted for any act that was done in the discharge of his official duties. As I have already held that act done by accused D.Bhattacharya (A8) was in discharge of his official duties and there being no clear case against him of having entered into conspiracy to cheat the offices of RCS and DDA, sanction u/s 197 Cr.P.C was required for his prosecution. Thus, in the absence of sanction u/s 197 Cr.P.C also accused D. Bhattacharya (A8) is liable to be discharged.
CBI Vs. Yogi Raj & Ors. Page 17/28 (Sahayadri CGHS)
20. It is submitted on behalf of accused Ashwani Sharma (A3) and accused Ashutosh Pant (A4) that after registration of CGHS, resignation by its members as well as joining of new members is permitted under law. No previous member has reported any illegality/irregularity in the matter of membership. In the chargesheet the name of complainant/ informant is stated to be Inspector D. Damodran SI, BS & FC meaning thereby even after completion of preliminary enquiry as well as after completion of investigation there was/is no independent complainant/informant and as such there is violation of Section 154 Cr.P.C. Ingredients of Section 120A/420/468/471 IPC are not attracted against the accused Ashwani Sharma (A3) and Ashutosh Pant (A4). In support of their contentions accused have relied upon following judgments/orders:
1. Order passed by High Court of Delhi on 23.5.2011 in writ petition No. 1786/2011, 2426/2011 and 2441/2011.
2. Judgment dt. 17.1.2011 passed by High Court of Delhi in Crl.
Rev. Petition No. 397/2010 titled as A.P. Narang vs. CBI.
3. Rajeev Mukhopadhyay vs. Registrar Coop. Societies 141(2008) DLT 321 DB.
4. Yogesh @ Sachin Jagdish Joshi vs. St. of Maharashtra (2009) (1) SCC(Crl.) 51.
CBI Vs. Yogi Raj & Ors. Page 18/28 (Sahayadri CGHS)
5. Greater Bombay Coop. Bank Ltd. vs. United Yarn Tex (P) Ltd. (2007) 6 SCC 236
6. Mayurdhwaj CGHS Ltd. vs. President Officer Delhi Coop. Tribunal AIR 1998 SC 2410.
7.Rakesh Kumar vs. State 2004 (i) JCC 110.
21.In their written submissions accused Ashwani Sharma and Ashutosh Pant have pointed out following illegalities during investigation by the CBI:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act.
(c) Registration of case under various provisions of IPC instead of DCS Act which is a Special Act.
22.The contention that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble CBI Vs. Yogi Raj & Ors. Page 19/28 (Sahayadri CGHS) Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
23. 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 offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
24. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 CBI Vs. Yogi Raj & Ors. Page 20/28 (Sahayadri CGHS) provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
25. On the other hand, it is contended by Ld. PP for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred CBI Vs. Yogi Raj & Ors. Page 21/28 (Sahayadri CGHS) due to enactment of Special Law.
26. I have gone through the judgments/orders cited by the accused.
The cited judgments/orders are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in 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.
27. The facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused followed the procedure with a view to give colour to their acts. Following procedure prescribed under the Act would not validate his acts when they were actuated CBI Vs. Yogi Raj & Ors. Page 22/28 (Sahayadri CGHS) with conspiracy to cheat the RCS and office of DDA.
28. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:
(i) The police should have reason to suspect the commission of CBI Vs. Yogi Raj & Ors. Page 23/28 (Sahayadri CGHS) cognizable offence and;
(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.
These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.
29. In Judgment Vijyan @ Rajan v. State of Kerela, AIR 1999 Supreme Court 1086, it was held by the Apex Court as under:
To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
30. In Judgment John Pandian & Ors. Vs. State Rep. By Inspector of police, Tamil Nadu, 2011(1) LRC 18(SC), it was held by the Apex Court as under:
It is significant at this stage to note the observations in CBI Vs. Yogi Raj & Ors. Page 24/28 (Sahayadri CGHS) V.C. Shukla (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, Pasayat, J. in Esher Singh v. State of A.P., 2004(11) SCC 585 observed that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.
31. The Apex court in a case State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru 2005(3) JCC 1404 held that to constitute the offence of conspiracy, mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for CBI Vs. Yogi Raj & Ors. Page 25/28 (Sahayadri CGHS) doing any illegal act or an act by illegal means. From the facts in hand, some act more than mere knowledge should be attributable to the alleged accused.
32. In State of Maharashtra v. Som Nath Thapa, AIR 1996 Supreme Court 1744, charge against accused Abu was that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds. It was contended on behalf of the state that the financial assistance by accused Abu would attract the mischief of Section 3(3) of TADA. Apex court discharged accused Abu and observed as under:
We may state that as framing of charge affects a person's liberty substantially, as pointed out in Muniswamy's case (AIR 1977 SC 1489) (supra), the materials on record must satisfy the mind of the Court framing the charge that the commission of offence by the accused in question was probable. We do not find a conclusion can reasonably be drawn only from the above noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being no material to frame individual charge under Section 3(3) of TADA, we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets.
33. Our Apex Court in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, has held that the Court has power to sift and CBI Vs. Yogi Raj & Ors. Page 26/28 (Sahayadri CGHS) weigh the evidence - although for the limited purpose of finding out whether a prima facie case against the accused has been made out or not. In Prafulla (supra), it has also been held that where materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the facts and circumstances of the present case, this court is of the view that the case has emerged in favour of the accused D. Bhattacharya (A8) rather than in favour of the prosecution and, consequently, accused D. Bhattacharya (A8) is discharged.
34. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons except accused D. Bhattacharya (A8) of having entered into a criminal conspiracy to cheat the Offices of RCS and DDA.
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35. In view of the above discussion, I am of the opinion that:
(i) Primafacie case is made out against accused Yogi Raj (A1), accused Ashwani Sharma (A3), accused Ashutosh Pant (A4), accused Padam Dutt Sharma (A5), accused R.K. Srivastava (A6) and accused Y.K. Chouhan (A7) for committing offences U/s 120B IPC r/w Ss. 420/468/471 IPC and u/S. 13 (2) r/w S. 13 (1) (d) r/w Sec. 15 of the P.C. Act, 1988.
(ii) Primafacie case is made out against accused Yogi Raj (A1), accused Padam Dutt Sharma (A5), accused R.K. Srivastava (A6) and accused Y.K. Chouhan (A7) for committing substantive offences u/s 13(1)(d) r/w Sec. 15 of PC Act, 1988;
(iii) Primafacie case is made out against accused Ashwani Sharma (A3) and accused Ashutosh Pant (A4) for committing substantive offences u/Ss. 420/511, 468, 471 IPC.
Announced in the open court (PRAVEEN KUMAR)
on dated 18.4.2012. Special Judge, PC Act
CBI3, Rohini Courts,Delhi.
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