Delhi District Court
Cooperative Group Housing Society vs . Rcs In Civil Writ Petition on 31 January, 2017
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI.
IN THE MATTER OF:
CBI No. : 70/2016 (Old No.60/2010)
CNR No. : DLNW01-000059-2006
RC No. : BD.1/2005/E/0014/CBI/N.Delhi
U/Sec: 120B r/w 419/420/468/471 IPC
13(2) r/w 13(1)(d) of PC Act 1988
& substantive offences u/s 15.
Police Station: BS&FC/CBI/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 70/2016 (old No. 60/10) Page 1 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
1. Narayan Diwakar
S/o Late Sh. Chhathi Lal
R/o G-30, Masjid Moth,
Greater Kailash, Part-II,
New Delhi-48.
.........Accused No. 1
2. Daya Nand Sharma @ D. N. Sharma
S/o Late Sh. Ram Diwaya
R/o 1378, Ist Floor,
Rani Bagh, Delhi-34.
..........Accused No. 2
3. Narayan Dutt Kaushik @ N. D. Kaushik
S/o Sh. Brahm Dutt Sharma
R/o 2A, Civil Lines Enclave,
Civil Line, Gurgaon, Haryana.
..........Accused No. 3
4. U.S.Bhatnagar,
S/o Shiv Shanker Bhatnagar,
R/o Flat no. 14, Khasra No. 844,
Maurya Enclave, Gali No. 2,
Sant Nagar, Burari,
Delhi-84.
...........Accused No. 4
CBI No. 70/2016 (old No. 60/10) Page 2 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
5. Faiz Mohd.
S/o Sh. Gulam Mohd.
R/o 4794, Bara Hindu Rao
near Sadar Bazar,
Pahari Dheeraj,
Delhi-6.
..........Accused No. 5
6. Gokul Chand Aggarwal
S/o Late Sh. Jagdish Prasad
R/o A-603, Ashoka Apartment,
Sector-9 Rohini Delhi.
..........Accused No. 6
7. Kamal Singh
S/o Late Sh. Bakhtawar Singh
R/o H.No. 677,
Village & Post Office Sameypur Badli,
Delhi.
..........Accused No. 7
8. Balam Singh Aswal @ B.S.Aswal
S/o Late Dhyan Singh
R/o Flat No. 8F/B3,
Mayur Vihar, Phase-III,
Delhi.
..........Accused No. 8
CBI No. 70/2016 (old No. 60/10) Page 3 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
Date of Institution : 30.11.2006
Date of judgement reserved on : 12.01.2017
Date of pronouncement of judgement : 25.01.2017
Appearance : Sh. Prabhat Kumar, learned Sr. Public
Prosecutor for CBI
Sh. Abhishek Prasad, Advocate, counsel for
Narayan Diwakar (A1), Balam Singh Aswal (A8)
and amicus-curiae for Gokul Chand
Aggarwal (A6)
Sh. S.K. Bhatagar, Advocate, counsel for Narayan
Dutt Kaushik (A3), U.S.Bhatnagar (A4), Faiz
Mohd. (A5) & Kamal Singh (A7)
Sh. Neeraj Verma, Advocate, counsel for
Daya Nand Sharma (A2)
J U D G E M E N T :-
1. Facts in brief as disclosed from the chargesheet are as under:-
(i) It is alleged that in Civil Writ Petition No. 10066/2004 dated August 2, 2005, High Court of Delhi, New Delhi directed the CBI to conduct thorough investigation qua 135 Cooperative Group Housing Societies. Pursuant to that order, CBI registered preliminary inquiry against six societies on August 8, 2005. It was alleged that after preliminary inquiry, CBI registered an FIR against Mr. Narayan Diwakar, the then RCS ("A1"); Mr. Daya Nand Sharma, the then Assistant Registrar ("A2"); Mr. Narayan Dutt Kaushik, the then Dealing CBI No. 70/2016 (old No. 60/10) Page 4 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Assistant/Inspector Grade-III ("A3"); Mr. U. S. Bhatnagar, the then Inspector Grade-III ("A4"); Mr. Faiz Mohammad, the then Inspector Grade-II ("A5") and Mr. Gokul Chand Aggarwal ("A6") for the offence punishable under Section 120-B r/w 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 ( in short PC Act).
(ii) It was alleged that the above said accused persons hatched a criminal conspiracy and pursuant to that criminal conspiracy, forged and fabricated documents were prepared for the revival of defunct Society named Veena Pani CGHS Ltd. (in short "the Society" or "Veena Pani").
(iii) It was alleged that prior to 1997, nobody was interested to buy flats/plots at Dwarka and other places in Delhi. But after 1997, rates of properties/flats located at Dwarka soared high because Dwarka was considered a part of South Delhi and it was near to Airport. Besides that government had alloted lands for construction of Hotels, Embassies and project of Metro Rail from Dwarka to Barakhamba and Shahdra to Rohini were also cleared. It was alleged that due to said reasons, property dealers became interested in sale and purchase of properties and started making efforts to get land at subsidized rate through RCS officials. In order to give effect to their ill designed motives, property-dealers adopted the modes-operandi of revival of defunct societies with connivance of RCS officials.
(iv) It was alleged that A1 to A6 alongwith Mr. Kamal Singh, the then LDC-cum-Auditor ("A7") and Mr. Balam Singh Aswal, CBI No. 70/2016 (old No. 60/10) Page 5 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) the then LDC-cum-Election Officer ("A8") entered into a criminal conspiracy with a common object to cheat DDA in allotting land in the name of the Society on the basis of false and forged documents and false list of members.
(v) It was alleged that during investigation, it was revealed that initially Society was registered in the office of RCS on August 28, 1983 vide registration No. 596(GH) with 75 promoter members. Mr. Anil Kumar Jain, Mr. Din Dayal Goel and Mr. Santosh Kumar Jain were the President, Secretary and Treasurer of the Society respectively. Since, the Society neither got audited its books of accounts from the date of its inception nor list of members was got approved by the RCS, Society was wound up in the year 1990. During 1983-1990, society had never changed its address.
(vi) It was alleged that on September 14, 2003, A6 moved an application in the assumed name of Mr. Ajay Kumar, Secretary of the Society before Assistant Registrar, North-West Zone (A2) on the letter-head of the Society with a request to cancel the winding up order. The said application was marked by A2 to A3, accordingly, A3 processed the said application in the file and put up a note stating that the main file of the Society was not available in the zone and same may be tied up in the documents of some other zones, accordingly, he suggested to issue a circular to all branches of all zones to search and trace the file. A2 recommended the proposal and sent the file to A1 for approval. After approval of the proposal from A1, circular was issued on October 6, 2003 with direction to trace the file.CBI No. 70/2016 (old No. 60/10) Page 6 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
(vii) It was further alleged that during the pendency of the report from branches/zones, A3 put up a note suggesting to conduct an enquiry under Section 54 of Delhi Cooperative Societies Act, 1972 (in short DCS Act) to know about the existence and functioning of the society and to reconstruct the file on the basis of records available with the society. A3 suggested the name of Mr. U. S. Bhatnagar (A4) to conduct the said inquiry. The said proposal was endorsed by A2 and approved by A1.
(viii) It was alleged that during investigation, it was revealed that Mr. Ajay Kumar, Secretary of the Society, was a non- existent person and his signature was forged by A6 on the said application. It was further alleged that in the said application, it was recited that society was registered at A-2/45, Rajouri Garden, Delhi and the registered office was shifted to B-1428, Shastri Nagar, Delhi. However, during investigation, it was revealed that the said premises belonged to Mr. Satish Gupta and Mr. Ramesh Chand Gupta and they informed the CBI that no society had ever functioned from the said premises.
(ix) It was alleged that pursuant to the conspiracy, A4 abused his official position as a public servant and submitted a false report dated November 22, 2003 certifying that he visited the society at premises no. B-1428, Shastri Nagar, Delhi on January 8, 2003 where Mr. Ajay Kumar, Secretary of the society met him and produced all relevant records for inspection.
(x) It was alleged that as per the record produced by CBI No. 70/2016 (old No. 60/10) Page 7 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Mr. Ajay Kumar, election of Managing Committee was got conducted on August 17, 2003 wherein Mr. Dinesh Kumar, Mr. Mukesh Kumar, Mr. Ajay Kumar and Mr. Shiv Kumar Gupta were elected as President, Vice-President, Secretary and Treasurer of the society respectively while Mr. Ajit Singh, Ms. Madhu Bala and Ms. Rita Devi were elected as Managing committee members. It was alleged that during investigation, it was revealed that all the said persons were fictitious and they were not found residing at the given addresses.
(xi) It was further alleged that during investigation notices were sent to 147 members through speed post to ascertain whether the members were in existence or not, but all the notices except five were returned undelivered with the remarks 'Either no such person was residing at the given address or address was incomplete or not in existence.' Though five notices did not receive back, but pursuant to the said notices, none had contacted the CBI, which establishes that all the persons were fictitious.
(xii) It was alleged that the report dated November 12, 2003 of A4 was prepared by A6 at the computer of Mr. Ashwani Sharma in his office at Mayur Vihar.
(xiii) It was alleged that pursuant to the conspiracy, A3 put up a note on the report of A4 requesting the competent authority to consider the request of society for revival under Section 63(3) of DCS Act, 1972 and also purposed to approve the freeze strength of 147 members for onward transmission to DDA for allotment of land. The note was forwarded by A2 to A1, accordingly A1 ordered to hold an CBI No. 70/2016 (old No. 60/10) Page 8 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) enquiry and directed to call President/Secretary of the Society for hearing. Thereafter, the letters addressed to President/Secretary of the society were issued but the same were delivered to A6 in person, who received the same in the assumed name of Dinesh Kumar and Ajay Kumar at the instance of A3.
(xiv) It was alleged that on December 9, 2003, A1 directed to send the file to the concerned Zone for verification of particulars and to ascertain the election/audit position of the society. Accordingly, a letter was issued to the President/Secretary of the society for production of original records for verification. This letter was also received by A6 at the behest of A3 in the assumed name of Dinesh Kumar/ Ajay Kumar.
(xv) It was alleged that during investigation, it was revealed that on January 2, 2004, A6 produced the original record of the society before A3 and A2 representing himself as Ajay Kumar. It was alleged that A3 had fraudulently accepted the photocopy of the record produced by A6. It was further alleged that all the said record was forged by A6.
(xvi) It was alleged that at the time of verification, A6 also produced certificate of registration and Bye-laws of the society, which were purportedly signed by Mr. SPS Bhati, the then Joint Registrar. However, during investigation, Mr. Bhati disowned his signature on the said document.
(xvii) It was further alleged that during investigation, it CBI No. 70/2016 (old No. 60/10) Page 9 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) was revealed that A6 had purchased the stamp paper on which 147 members had submitted their affidavits. A6 also forged the signatures of Mr. Ajay Kumar on the affidavit. It was further alleged that the stamp papers were purchased on October 21, 2003 from Mr. Satvir, stamp vendor and the affidavits on the said stamp papers were notarized by Mr. Arun Kumar Gupta notary Public on December 24, 2003 having the registration No. 741/97. But during investigation, it was revealed that Mr. Arun Kumar Gupta had already expired on January 15, 2002 which proved that the affidavits were forged by A6.
(xviii) It was further alleged that during investigation, it was revealed that A6 had also forged the signature of various members of the society.
(xix) It was alleged that in pursuant to the criminal conspiracy, A3 again put up the file before A1 through A2 with the recommendation to revive the society. The file was again sent back by A1 to the concerned Zone with direction to verify the members by visiting door to door at random. A2 appointed Mr. Faiz Mohd. (A5) to verify the members at random.
(xx) It was alleged that in pursuant to the criminal conspiracy, A5 submitted a false and bogus report certifying that he had physically verified 15 members. However, during investigation, those 15 members were found non-existent persons. It was further alleged that A5 had submitted the report without conducting any door to door verification.
CBI No. 70/2016 (old No. 60/10) Page 10 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) (xxi) It was alleged that on receipt of the report from A5, A3 again put up the file before A1 through A2 for revival of society and approval of freeze list and onward transmission to DDA for allotment of land.
(xxii) It was alleged that the promoters/members of the society namely Mr. Din Dayal Goel (Secretary), Mr. Anil Kumar Jain (President) and Mr. Santosh Kumar Jain (Treasurer) informed the CBI that the society had never changed its address from U-53 A, Shakarpur, Delhi-92 and further informed that society had only 75 members. They further informed the CBI that the persons whose affidavits were submitted before the RCS were never members of the society at any point of time. They further told the CBI that society was maintaining accounts at Delhi Cooperative Society Bank, Darya Ganj, New Delhi.
(xxiii) It was alleged that on January 22, 2004, A1 held the court for revival of the society and in his order, he had falsely shown the presence of Ms. Rita Kaul, Advocate on behalf of society besides the presence of Mr. D. N. Sharma (A2). It was further alleged that on the basis of false reports and documents, A1 passed the revival order on January 29, 2004.
(xxiv) It was alleged that further alleged that pursuant to the conspiracy, Mr. Kamal Singh (A7) had submitted a false and manipulated report without conducting any audit. During investigation, it was revealed that Mr. Anil Kumar Jain (President), Mr. Din Dayal Sharma (Secretary) and Mr. Santosh Kumar (Treasurer) were CBI No. 70/2016 (old No. 60/10) Page 11 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) authorised signatory to operate the bank account of the society whereas A7 testified in his report that Mr. Dinesh Kumar (President), Mr. Ajay Kumar (Secretary) and Mr. Shiv Kumar (Treasurer) were authorised signatory. It was alleged that they were not even the members in the said society as society had only 75 members till 1990 and since then no new member was ever enrolled. It was alleged that A7 should have checked the statement of accounts from the bank itself before giving its report.
(xxv) It was alleged that Mr. Balam Singh Aswal (A8) was appointed as Election Officer to conduct election by A1 while passing the revival order. It was alleged that A8 had submitted a false election report certifying that 38 members participated in the election and they elected Mr. Dinesh Kumar, Mr. Mukesh Kumar, Mr. Ajay Kumar and Mr. Shiv Kumar Gupta as President, Vice President, Secretary and Treasurer of the society respectively while Mr. Ajit Singh, Ms. Madhu Bala and Ms. Rita Devi were elected as Managing Committee members. It was alleged that during investigation it was revealed that all the above said persons were fictitious as they were found non-existent persons.
(xxvi) It was alleged that during investigation, it was revealed that A1 had linked with A6 as A1 had contacted Mr. Gokul Chand Aggarwal (A6) 69 times from his mobile number 9818479140 to the mobile number 9811111871 of A6. A1 also contacted 15 times on the another mobile phone number of A6 i.e. 9871789595. A1 also contacted Mr. Gokul Chand Aggarwal (A6) 3 times on his land-line phone number 55498106 during the period January 1, 2005 to July CBI No. 70/2016 (old No. 60/10) Page 12 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) 2005.
2. After completing investigation, CBI filed the charge- sheet against A1 to A8 for the offence punishable under Section 120B r/w 419/420/468/471 and Section 13(2) r/w 13(1)(d) of PC Act and substantive offences under Section 15 of PC Act, 1988 against A1 to A5, A7 and A8 and substantive offences under Section 419/420/511/468 and 471 IPC against A6.
(i) CBI also obtained sanction under Section 19 of PC Act qua A3, A4, A7 and A8. Since A1, A2 and A5 had retired prior to filing of the chargesheet, no sanction was obtained qua them.
3. Vide order dated June 7, 2012, learned Predecessor of this Court held that prima-facie a case is made out against A1 to A8 for the offence punishable under Section 120B r/w 420/468; 471 r/w 468 IPC; 13(2) r/w 13(1)(d) of PC Act. It was further held that prima- facie a case is also made out against A1, A2, A3, A4, A5, A7 and A8 for the offence punishable under Section 15 r/w 13(1)(d) of PC Act, 1988. It was further held that prima-facie a case is also made out against A6 for the offence punishable under Section 420 r/w 511, 468, 471 r/w 468 IPC. It was further held that prima-facie a case is also made out against A4, A5, A7 and A8 for the offence punishable under Section 468, 471 r/w 468 IPC.
(i) Pursuant to the order dated June 7, 2012, formal charges were framed on October 4, 2012 to which they pleaded not guilty and claimed trial.
CBI No. 70/2016 (old No. 60/10) Page 13 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
4. In order to bring home the guilt of accused persons, CBI has examined as many as 101 witnesses. For the purpose of our discussion and convenience, said witnesses have been classified in the following categories:-
Witnesses qua original members:-
PW1 Sh. Chottey Lal
PW3 Sh. Santosh Kumar Jain
PW4 Sh. Anil Kumar Jain
PW43 Sh. Ashok Kumar Jain
PW45 Sh. Chand Mohan
Witnesses qua fake members:-
PW2 Sh. Duni Chand
PW48 Sh. Santhanam Prabhakar
PW49 Sh. Vinod Kumar Jain.
PW58 Sh. Jeet Kumar
PW60 Sh. Atam Parkash Ahuja
PW61 Sh. Satish Aggarwal
PW64 Sh. Mehar Chand
PW65 Sh. Rajiv Sharma
PW66 Sh. Phool Chand
PW73 Smt. Kanta Mamgain
CBI No. 70/2016 (old No. 60/10) Page 14 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) PW74 Smt Kanika Verma @ Alka Verma PW77 Smt. Anjali Marwah PW79 Sh. Rajeev Jain PW80 Sh. Subramanyam PW81 Smt. Manjula Aggarwal PW82 Smt. Rajini PW92 Sh. Laxman Singh Post official witnesses:-
PW5 Sh. Gaje Singh
PW6 Sh. Satpal
PW7 Sh. Mangat Ram
PW8 Sh. Kamlesh Kumar
PW9 Sh. Surinder Pal
PW10 Sh. Abdul Wazid
PW11 Sh. Maheshwar Shah
PW12 Sh. Hari Parkash
PW13 Sh. Dilip Singh Sharma
PW14 Sh. Rajbir Singh
PW15 Ms. Geeta Rani
PW16 Sh. Sher Singh
PW17 Sh. Kapil Kumar
CBI No. 70/2016 (old No. 60/10) Page 15 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) PW18 Sh. Ram Kala Singh PW19 Sh. Balraj Singh PW20 Sh. Dharam Pal PW21 Sh. Ram Mehar PW22 Sh. Inder Jeet Singh PW23 Sh. Ranjit Kumar PW24 Sh. Rajesh Kumar PW25 Sh. Rajpal PW26 Sh. Om Parkash PW27 Sh. Joginder Singh Dogra PW28 Sh. Randhir Singh Kundu PW29 Sh. Anil Sharma PW30 Sh. Harish Chand Goel PW31 Sh. Mahesh Tyagi PW32 Sh. Natha Ram PW33 Sh. Sat Naraian Chalia PW34 Sh. Phool Kumar PW35 Sh. Basant Kumar PW36 Sh. Sheel Sagar PW37 Sh. Har Dutt Sharma PW38 Sh. Inder Pal Singh PW39 Sh. Sushil Kumar CBI No. 70/2016 (old No. 60/10) Page 16 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) PW40 Sh. Rajender Prasad PW47 Sh. Jai Narayan PW75 Sh. Sohan Pal Sharma PW76 Sh. Ram Chand Sharma Witnesses qua the addresses of society:-
PW41 Maj. Yutinder Kumar Ahluwalia
PW44 Sh. Satish Kumar Gupta
PW71 Sh. Ramesh Chand Gupta
Witnesses from Estate Office:-
PW68 Sh. Parveen Sharma
Witnesses qua non-judical stamp paper:-
PW53 Sh. Satbir
PW69 Sh. O.Venkateshwarlu
PW88 Sh. Gaurav Gupta
Witnesses from RCS office:-
PW42 Sh. Deen Bandhu Prasad, Dispatch clerk
PW46 Sh. Dhan Singh, Peon
PW50 Sh. Jasvir Singh Sindhu, Joint Registrar
CBI No. 70/2016 (old No. 60/10) Page 17 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) PW51 Sh. Yogi Raj, Asstt. Registrar PW52 Sh. Ramesh Kumar, UDC PW56 Sh. Sudhvir Singh Rana, Statistical Asstt.
PW63 Ms. Aruna Choudhary, Asstt. Registrar (Audit)
PW67 Sh. M. P. Sharma, Asstt. Registrar (Policy)
PW70 Sh. C.L.Rai, Superintendent
PW72 Sh. Mahinder Singh Verma, LDC, Diary
Dispatch Section
PW83 Sh. Narender Singh Khatri, LDC
PW84 Sh. Sanjeev Bharti, Stenographer GR-III
PW87 Sh. Prahlad Kumar Thirwani, Auditor
PW90 Sh.Saroj Chander Pradhan, System Analyst
PW91 Sh. Rakesh Bhatnagar, Joint Registrar
PW93 Sh. Virender Kumar Bansal, Asstt. Registrar
PW96 Sh. Dharamvir Singh, Head Clerk (Audit
Section)
Witnesses qua Sanction:-
PW85 Sh. Baleshwar Rai, the then Chairman, Public
Grievances Commission GNCT of Delhi
PW86 Sh. Vijay Kumar, the then Director of
Education Department, Government of NCT
of Delhi
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State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) PW98 Ms. Nani Jayaseelam, Secretary, Govt. of India, Secretary Inter-State Council, MHA PW99 Sh. Satya Gopal, the then Registrar Cooperative Society Miscellaneous witnesses:-
PW54 Sh. Satya Prakash Mehta, Advocate
PW55 Ms. Sweta Mishra, Advocate
PW59 Sh. Surinder Kumar Abrol, Asstt. Manager of
DSCB
PW78 Sh. R.K.Singh, Nodal Officer from Bharti Airtel
PW94 Sh. Naveen Kaushik, hostile witness
PW95 Ms. Rita Kaul, Advocate
Officials from DDA:-
PW57 Sh. Virender Singh Verma, LDC
PW62 Sh. Hari Ram Khowal, Sr. Account Officer
Witnesses from GEQD :-
PW89 Sh. Mahender Singh, GEQD, Hyderabad
PW100 Sh. N.C.Sood, GEQD, Shimla
CBI No. 70/2016 (old No. 60/10) Page 19 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Witnesses from CBI:-
PW97 Sh. Rajesh Nirwan, the then SP
PW101 Sh. G. M. Rathi, Inspector, investigating
officer
5. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied each and every incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case.
(i) A1 took the plea that as per DCS Act, 1972, it is the responsibility of Managing Committee to furnish correct and true facts while approaching RCS office. It is submitted that he had reasonable belief that the documents, which were placed before him were in order and further stated that he performed his acts in good faith after taking all necessary steps as required under law. It was further submitted that he had passed revival order in terms of Rule 105 of DCS Rules, 1973 and the law laid down by High Court of Delhi in case title Vikas Cooperative Group Housing Society vs. RCS in Civil Writ Petition No. 1767 of 1986. It was further submitted that no sanction had been obtained qua him either under 197 Cr.P.C or under Section 19 of PC Act.
(ii) A2 took the plea that no witness has deposed against him and as per DCS Act 1972, it is the responsibility of Managing Committee to furnish correct and true particulars while CBI No. 70/2016 (old No. 60/10) Page 20 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) approaching RCS office and he had reasonable belief that the documents placed before him were in order. It was submitted that he had performed his acts in good faith after taking all necessary steps as required under law. It was further submitted that CBI had not obtained sanction qua him either under Section 19 of the PC Act or 197 Cr.P.C.
(iii) A3 took the plea that he had been falsely implicated in this case and sanction qua him is not proper as the same was granted in a mechanical manner. A3 submitted that he would lead evidence in his defence.
(iv) A4 took the plea that he had not violated any provision of DCS Act while performing his duties. Nor he had taken any monetary benefit from any other person. It was further submitted that even no land was alloted to the society and the list of members does not confer any legal right upon the society to claim land from DDA. It was further submitted that though CBI had searched his house, but nothing was found from his house. It was further submitted that CBI has not obtained any sanction against him under Section 197 Cr.P.C.
(v) A5 took the plea that he had not violated any provision of DCS Act while performing his duties; nor he obtained any benefit from any other person. Even no land was alloted to the society. It was further submitted that approval of list of members does not confer any legal right on the society to claim land from DDA without making payment. It was further submitted that though CBI had CBI No. 70/2016 (old No. 60/10) Page 21 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) searched his house, but nothing incriminating was found from his house. It was further submitted that CBI had not even obtained any sanction under Section 197 Cr.P.C against him.
(vi) A6 took the plea that he had no role in this case as neither he was a member of the society nor he obtained any gain. It was submitted that he has been falsely implicated in this case.
(vii) A7 took the plea that he had not violated any provision of DCS Act or Rule while performing his duties as auditor. It was further submitted that auditor has no role in revival of the society or in sending the list of members to DDA. It was further submitted that even no land was alloted to the society. It was further submitted that CBI had not obtained any separate sanction under 197 Cr.P.C. A7 submitted that he would lead evidence in his defence.
(viii) A8 submitted that since he was promoted from peon to Grade-IV, he was not well conversant with the provisions of DCS Act. It was further submitted that no departmental action was initiated against him in this matter. However, he submitted that he would lead evidence in his defence.
6. Accused Narayan Dutt Kaushik (A3) examined Sh. Gopal Singh Bist as DW1 in his defence.
(i) Other accused persons did not lead any evidence in their defence. Accordingly, DE on behalf of A5 and A7 was closed on October 3, 2016 whereas DE on behalf of A8 was closed on October CBI No. 70/2016 (old No. 60/10) Page 22 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) 28, 2016.
CONTENTIONS ON BEHALF OF CBI:-
7. Shri Prabhat Kumar, learned Senior Public Prosecutor appearing for CBI vigorously argued that accused Gokul Chand Aggarwal (A6) was the mastermind of conspiracy and pursuant to the conspiracy, he had moved an application dated September 14, 2003 (Ex.PW56/D) in the name of Mr. Ajay Kumar with a request to revive the society. It was urged that in the said application Mr. Ajay Kumar was shown as Secretary of the society and A6 signed the application in the name of Mr. Ajay Kumar. It was further argued that A6 had also forged the signatures of Mr. Ajay Kumar (Secretary), Mr. Dinesh Kumar (President) and Mr. S. K. Gupta (Treasurer) on numerous documents, which were filed from time to time in the office of RCS in connection with the revival of the society. It was further contended that A6 had also forged the signatures of numerous members of the society on their affidavits, which were submitted in the office of RCS from time to time. It was further contended that A6 had also forged the signatures of Mr. Ajay Kumar, Mr. Dinesh Kumar and Mr. S. K. Gupta on their affidavits, which were submitted in the office of RCS for the purpose of revival of the society. It was argued that A6 had also forged the signatures of above said office bearers on their nomination forms.
(i) It was contended that in order to prove that A6 had forged the signatures of above said persons, CBI has placed reliance on the specimen writings/signatures of Gokul Chand Aggarwal (A6) CBI No. 70/2016 (old No. 60/10) Page 23 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) i.e. Mark S-1 to S-158, S158/1, S159 to S195. During trial, same were proved as Ex.PW101/I (colly). It was further argued that as per GEQD report (Ex.PW89/B), author of the above said specimen writings/signatures and the questioned writings and signatures was one and the same person, which establishes that accused Gokul Chand Aggarwal (A6) was the person, who had forged the signatures of above said persons.
(ii) It was further contended that since accused Gokul Chand Aggarwal (A6) had forged the signatures of numerous persons for the purpose of revival of the Society and used the forged documents, he is liable for the offence punishable under Section 468 and 471 r/w Section 468 IPC.
(iii) Learned Senior Public Prosecutor appearing for CBI further contended that accused Gokul Chand Aggarwal (A6) had moved an application for revival of the Society and on the basis of documents produced by him, society was revived. It was urged that since the revival of the society was prayed in order to obtain land from DDA at subsidized rate, A6 is also liable for the offence punishable under Section 420 IPC r/w 511 IPC.
8. Learned Senior Public Prosecutor further contended that accused U.S.Bhagnagar (A4) was working as Grade-III in the office of RCS and as per the noting dated November 3, 2003, he was appointed as Inspection officer to conduct an inquiry under Section 54 of the DCS Act, 1972. Accordingly, A4 had conducted the inquiry and submitted his report dated November 12, 2003 (Mark PW83/B) CBI No. 70/2016 (old No. 60/10) Page 24 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) certifying that he had visited the office of the society at B-1428, Shastri Nagar, Delhi and met with Mr. Ajay Kumar, Secretary of the society, who produced all relevant record of the society for inspection. However, during investigation it was revealed that the said premises belonged to PW44 and PW71 who testified in the Court that no society had ever functioned from their premises, which establishes that A4 had submitted a false report at the behest of Mr. Ajay Kumar @ Gokul Chand Aggarwal without conducting any inspection.
9. Learned Senior Public Prosecutor further contended that accused Faiz Mohd (A5) was also working in the office of RCS and as per noting dated January 9, 2004, he was deputed to conduct physical verification of members of the Society at random and as per the noting dated January 22, 2004, he had submitted his report wherein he physically verified 15 members at random, however, during investigation, it was revealed that all the said members were fictitious persons. It was argued that A5 had not conducted any physical verification of members and he had submitted a false report at the behest of A6.
(i) It was contended that though A4 and A5 were working as public servants, yet they submitted false reports at the behest of A6, this establishes that they had abused their official position, thus they are liable for the offence punishable under Section 13(1)(d) of PC Act.
10. Learned Senior Public Prosecutor appearing for CBI further contended that Narayan Dutt Kaushik (A3) was working as dealing Asstt at the relevant time and he was the person who put up CBI No. 70/2016 (old No. 60/10) Page 25 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) various notes before his senior officer such as A2 and A1 from time to time. He had put up the note on September 22, 2003, October 14, 2003, November 3, 2003, November 19, 2003, December 18, 2003, January 2, 2004, January 22, 2004 and January 30, 2004. It was contended that there is no allegation against A3 except that he had put the above said notes in the file. It was argued that though putting up notes in the file is itself not sufficient to attract any criminal liability, yet since A3 had not taken due care and precaution at the time of putting various notes in favour of A6, A3 is also liable for the criminal misconduct.
11. Learned Senior Public Prosecutor further contended that accused Daya Nand Sharma (A2) was working as Asstt. Registrar (NW) at the relevant time and he had forwarded the notes, which were put up before him by A3 from time to time to his senior officers such as Joint Registrar and RCS (A1). It was urged that he had forwarded the file on September 22, 2003, October 14, 2003, November 3, 2003, November 20, 2003, December 18, 2003, January 5, 2004, January 9, 2004, January 22, 2004 and January 30, 2006. It was conducted that no doubt being the AR, it was his duty to forward the file to his senior officer, yet he committed criminal misconduct as he forwarded the file without scrutinize the same. It was argued that since he was in conspiracy with A6, he forwarded the file to RCS without scrutinizing the same.
12. Learned Senior Public Prosecutor further contended that accused Narayan Diwakar (A1) was working as RCS at the relevant time. It was argued that he dishonestly revived the society by CBI No. 70/2016 (old No. 60/10) Page 26 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) falsely showing the appearance of Ms. Sweta, Advocate, Mr. S. P. Mehta, Advocate and Ms. Rita Kaul, Advocate in the proceedings, though they had never appeared before him. It was contended that he had shown their appearance dishonestly as he was in conspiracy with A6. It was further contended that he had passed the revival order without taking due care and caution. It was further contended that A1 was in regular touch with A6 during the period January 1, 2005 to June 30, 2005 and this fact has been established from the CDR PW78/A, PW78/C, PW78/D and PW78/E. It was argued that this shows that A1 was in conspiracy with A6 and due to that reason both were in touch with each other. It was further contended that this establishes that A1 had passed the revival order in pursuance of the conspiracy hatched between him and A6.
13. Learned Senior Public Prosecutor further contended that accused Kamal Singh (A7) was working in the RCS at the relevant time and he was appointed as Auditor to conduct audit of the accounts of the society in question. It was further argued that being the auditor, he was required to audit at the registered office of the society but since the registered office was not in existence, this establishes that A7 had not visited the office of society at the time of conducting the audit and he had submitted a false report at the behest of A6 without conducting any audit.
14. Learned Senior Public Prosecutor further contended that accused Balam Singh Ashwal (A8) was working in the office of RCS and he was appointed as Election Officer to conduct election of the society, but he had submitted a false report at the behest of A6 CBI No. 70/2016 (old No. 60/10) Page 27 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) without conducting any election. It was argued that he did so as he was in conspiracy with A6.
15. It is pertinent to note that no case law is cited by learned Sr. Public Prosecutor in support of his contentions.
CONTENTIONS ON BEHALF OF ACCSUED PERSONS:-
16. Learned counsel appearing for Gokul Chand Aggarwal (A6) contended that the entire prosecution case is based on the report of GEQD, but no reliance can be placed on the said report as CBI had not obtained the specimen signatures/writings of A6 with the permission of the Court, accordingly same cannot be used for the purpose of comparison. In support of his contention, reliance has been placed on the judgment Sapan Haldar & another v. State 2012 VIII AD (Delhi) 533. It was further contended that no reliance can be placed on the specimen writings/signatures as CBI did not examine independent witnesses in whose presence the alleged specimen writings/signatures were taken. It was further contended that CBI had also not obtained admitted writings/signatures of A6 for the purpose of comparison. It was further contended that since the GEQD report is not corroborated by any substantive evidence, no reliance can be placed on the uncorroborated GEQD report.
(i) It was further contended that A6 had no connection with the Society in question. He was not even a member in the said society. There is no evidence on record to show that he had ever visited the office of RCS in connection with the said society. Similarly, CBI No. 70/2016 (old No. 60/10) Page 28 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) there is no evidence on record to establish that he had submitted or received any document relating to the Society in question.
(ii) Though three advocates namely Ms. Sweta Mishra, Mr. S. P. Mehta and Ms. Rita Kaul appeared, but none of them deposed that they were engaged by A6. This further establishes that A6 had no connection with the said society.
(iii) It was further contended that another allegation against A6 is that he had purchased certain non-judicial stamp papers from PW53 Mr. Satbir but he did not support the prosecution case during trial. Even he did not produce the register in which the signature of buyers used to be taken. Accordingly, it was urged that there is no evidence that A6 had purchased the non-judicial stamp papers.
(iv) It was further contended that CBI alleged that the reports/affidavits were prepared by A6 on the computer of Ashwani Kumar. But surprisingly, CBI did not deem it appropriate even to examine Mr. Ashwani Kumar. Nor he was impleaded as an accused.
(v) It was further contended though PW44 and PW71 deposed that society had never functioned from the premises bearing no. B-1428, Shastri Nagar, Delhi-52, yet they did not utter even a single word against A6, accordingly, it was urged that their testimonies are not helpful to the CBI in any manner.
17. Learned counsel appearing for A1 contended that CBI No. 70/2016 (old No. 60/10) Page 29 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) A1 was working as RCS at the relevant time and he passed certain orders in good faith on the basis of notes put up before him by his subordinate staff.
(i) It was contended that there is no iota of evidence on record to establish that A1 had any dishonest intention when he dealt the file being the RCS from time to time. It was argued that had A1 any dishonest intention, he would not have referred the matter for inquiry from time to time. It was further contended that before passing the reasoned revival order, A1 had sent the file to the concerned Zone thrice for conducing further inquiry. There is no iota of evidence to establish that the said order was in violation of provisions of DCS Act. It was urged that mere fact that later on it was revealed that the subordinate staff had submitted some false reports in collusion with A6 is not sufficient to impose any criminal liability upon A1.
(ii) It was further contended that though there is an allegation against A1 that he had dishonestly marked the attendance of advocates named Ms. Sweta Mishra, Mr. S. P. Mehta and Ms. Rita Kaul, but there is no substance in the said allegation. It was contended that the advocates used to appear in his Court without filing the vakalatnama and this fact has been admitted by PW95 in her cross-examination.
(iii) It was further contended that in order to show the conspiracy between A1 and A6, prosecution has placed reliance on certain CDRs. But no reliance can be placed on the same as the said CDRs pertain to the period January 1, 2005 to January 31, 2006 CBI No. 70/2016 (old No. 60/10) Page 30 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) whereas A1 already retired from the service in June 2004.
(iv) It was further contended that there is no valid certificate under Section 65B of Evidence Act and it is not clear how the said CDRs were come on record as all the CDRs and certificate are undated.
(v) It was further contended that there is no iota of evidence to establish that A1 had obtained any pecuniary gain or valuable thing for the acts performed by him in discharge of his official duties. It was further contended that since A1 acted while discharging his official duties, A1 is entitled for the protection available to him under Section 197 Cr.P.C, but CBI had not obtained any such sanction, thus he cannot be held guilty for the penal offences.
18. Counsel appearing for A2 fairly conceded that at the relevant time A2 was working as Asstt. Registrar (NW) and he dealt with the file from time to time in discharge of his official duty. It was urged that since he dealt with the file in discharge of his official duty, he is entitled for the protection available to him under Section 197 Cr.P.C and since CBI failed to obtain any such sanction, he cannot be held liable for penal offences.
(i) It was further contended that there is no iota of evidence on record that A2 had either obtained any pecuniary gain or valuable thing for the acts performed by him while dealing with the file in question.
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(ii) It was further contended that there is no iota of evidence on record that there was any dishonest intention on the part of A2 when he forwarded the list of members to AR (Policy). It was urged that it was the duty of AR(Policy) to check whether the pending audit had been completed before sending the list to DDA for allotment of land. Accordingly, it was urged that mere fact that A2 had sent the list of members to AR (Policy) before the completion of audit is not sufficient to impose any criminal liability.
19. Learned counsel appearing for A3 contended that he was dealing Asstt. at the relevant time and dealt with the file in question as per the direction of his immediate senior officer. It was argued that in his notes, he had only put up the factual position and the prayer made by the applicant in the application. It was argued that there is no evidence on record to establish that A3 had obtained any pecuniary gain or valuable thing for performing his acts. It was further contended that there is no iota of evidence on record to establish that A3 had any knowledge that A4 and A5 had submitted a false and bogus report. It was further argued that there was no iota of evidence on record to establish that A3 was the member of conspiracy. Mere fact that he dealt with the file being the dealing assistant is not sufficient to impose any criminal liability.
20. Learned counsel appearing for A4 & A5 contended that no instruction was given to A4 and A5 how to conduct inquiry and physical verification of the members. It was further argued that there is no evidence on record to establish that they had violated any provision or rule of DCS Act/Rules while conducting inspection and physical CBI No. 70/2016 (old No. 60/10) Page 32 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) verification of the members. It was further contended that no incriminating material was recovered from their possession and there is no iota of evidence on record to establish that they had obtained any pecuniary gain or valuable thing for their acts.
21. Learned counsel appearing for A7 submitted that there is no iota of evidence on record to prove the fact that A7 had received any pecuniary gain or valuable thing while conducting the audit or that he was a member of conspiracy. It was further argued that no instruction was given to A7 what precaution A7 should take while conducting the audit. It was argued that there is no evidence on record that A7 had violated any provision of DCS Act or Rule while conducting the audit. In support of his contention, counsel appearing for A4, A5 and A7 placed reliance on the following judgments:-
(i) A Sivaprakash vs. State of Kerala 2016
IV AD (CRI) (S.C) 383;
(ii) B.Jayaraj vs. State of A.P. decided by
Supreme Court of India on 28.03.2014 in Crl.
Appeal No. 696 of 2014;
(iii) Dinesh Chand Gupta & another vs. State 2016 V AD (CRI)(DHC) 445;
(iv) State of NCT of Delhi vs. Sudhir Kumar @ Bunti 2016 V (AD)(CRI.) (DHC) 267;
(v) Angoori Devi & anr. vs. State 2016 V AD (CRI.) (DHC) 280.
22. Learned counsel appearing for A8 contended that he was appointed as Election Officer by the RCS and in compliance of the direction, he conducted the election in accordance with the CBI No. 70/2016 (old No. 60/10) Page 33 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) procedure. There is no evidence on record what he had violated any provision of the DCS Act or Rules. It was argued that the members who participated in the election also signed the proceedings, which establishes that A8 conducted the election in accordance with the rules and regulations.
23. Learned counsel appearing for A4, A5 and A8 contended that since they acted in discharge of their official duties, they are entitled for the protection available to them under Section 197 Cr.P.C and since CBI did not obtain any separate sanction, they cannot be held guilty for the penal offences.
(i) It was further contended that the sanction under Section 19 of PC Act qua A4, A7 and A8 is defective as the same had been accorded without application of mind on the basis of draft sanction produced by the CBI. It was further contended that sanction qua A4 and A7 had been granted by the incompetent authority as they were not authorised to remove them from services at the time of committing the alleged offence, thus they cannot be held guilty for the offence punishable under PC Act.
(ii) In support of his contention, reliance has been placed on the following judgment:-
State through CBI vs. Ravinder Singh 1995(2)Crimes IV 85 (Delhi High Court).
24. I have heard rival submissions advanced by CBI No. 70/2016 (old No. 60/10) Page 34 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
Findings qua legal issues:-
25. First legal question emerges from the submissions advanced by counsel for both the parties; whether it was mandatory on the part of investigating agency to take permission of the concerned Court before taking specimen writings of the accused persons.
(i) Perusal of the judgment Sapan Haldar & another v. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at the following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause
(a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii). Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a CBI No. 70/2016 (old No. 60/10) Page 35 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra).
According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
(ii) However in the instant case, neither the Section 2
(a), 4 & 5 of Identification of Prisoners Act nor Section 311-A Cr.P.C are facts in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings and signatures of the accused persons after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings and signatures were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwriting and signatures of the suspect during investigation for the purpose of finding truth, which is an ultimate object of any investigation.
26. Now coming to the next question that arises from the submissions advanced by counsel for the parties; whether any reliance can be placed on the uncorroborated report of handwriting expert or not?
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(i). The said question was dealt with by the Apex Court in detail in Murari Lal v. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, relevant portions of the judgment are reproduced as under:-
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P-54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-
9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High Court fell into a grave error in concluding that the writing at page 6 of Ex. P-9 was that of the appellant. He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the CBI No. 70/2016 (old No. 60/10) Page 37 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4. We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration.
True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect.
The science of identification of finger-
prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting CBI No. 70/2016 (old No. 60/10) Page 38 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an CBI No. 70/2016 (old No. 60/10) Page 39 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree.
There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
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7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours).
'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J.
observed; "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v.
Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and CBI No. 70/2016 (old No. 60/10) Page 41 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison CBI No. 70/2016 (old No. 60/10) Page 42 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10. Finally, we come to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction CBI No. 70/2016 (old No. 60/10) Page 43 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', we presume, means 'not CBI No. 70/2016 (old No. 60/10) Page 44 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v.
State of U. P., Ishwari Prasad v.
Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated.
But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of a handwriting expert may be accepted. There cannot be CBI No. 70/2016 (old No. 60/10) Page 45 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion.
The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13. Reverting to the facts of the case before us, Sri Kohli had not a word of CBI No. 70/2016 (old No. 60/10) Page 46 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination.
Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(ii) The above view was approved by the Apex Court in Alamgir v. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
(iii) In view of the law laid down in Murari Lal v. State of MP (supra), I am of the considered opinion that the conviction can be recorded on the sole uncorroborated report of handwriting expert provided the report is convincing and there is no reliable evidence throwing any doubt over the report.
Findings on the facts:-
27. It is undisputed fact that an application dated September 14, 2003 (Ex. PW56/D) was moved in the office of RCS for revival of the society in question. Perusal of the said application reveals that it was signed by one person named Mr. Ajay Kumar being the Secretary of the society.CBI No. 70/2016 (old No. 60/10) Page 47 of 158
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28. Now question arises whether there is any evidence on record to establish that the said application was signed by A6 in the assumed name of Mr. Ajay Kumar or not?
(i) It is admitted case of CBI that during investigation, no ocular evidence was found to establish the fact that the application was signed by A6 in the assumed name of Mr. Ajay Kumar; rather prosecution case is based on the report of GEQD wherein it was opined that the author of S1 to S195 and S158/1 is also the author of questioned writings including the signatures in the name of Ajay Kumar.
29. Before placing any reliance on the GEQD report, it is the paramount duty of prosecution to prove the specimen writings and signatures of A6 in accordance with law. In the instant case, the specimen writings of A6 were marked as S1 to S195 and S158/1, which are collectively exhibited as Ex. PW101/I (colly).
(i) Perusal of the Ex. PW101/I (colly) reveals that the same were taken in the presence of two independent witnesses namely Mr. Prakash Chand Saini, Stenographer, Department of Education Govt. of NCT of New Delhi and Mr. Tek Chand, Branch Asst. SBI, LHO, New Delhi., But surprisingly, the investigating officer did not deem it appropriate even to mention their names in the list of witnesses. Nor prosecution deemed it appropriate to examine them during trial.
(ii) To my mind, it was a major lapse on the part of CBI No. 70/2016 (old No. 60/10) Page 48 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) investigating officer as well as prosecution because in order to prove the specimen writings beyond reasonable doubts, it was their duty to examine them during trial. Now, question crops up whether said lapse on the part of CBI is fatal to the prosecution case or not?
30. In order to prove the specimen writings, prosecution has placed reliance on the sole deposition of PW101 Insp. G.M.Rathi, investigating officer.
(i) In his examination-in-chief he deposed that during investigation he had taken the specimen writings and signatures of A6 marked S1 to S195 and S158/1 in the presence of two independent witnesses namely Mr. Prakash Chand Saini and Mr. Tek Chand and he identified the same, the same is collectively exhibited as Ex. PW101/I.
(ii) Witness was cross-examined at length and during cross-examination, PW101 admitted that he had not taken the specimen writings and signatures of A6 with the permission of court. He also admitted that at the time of taking the specimen writings, he had shown the file to the accused and further deposed that the specimen writings were also taken without showing the file to the accused. This proves that some of the specimen writings of A6 were taken without showing the file to A6 whereas some specimen writings were taken after showing the file to the accused. But during cross- examination no suggestion was given to PW101 that A6 had not given any specimen writing to the investigating officer.
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31. Perusal of the testimony of PW101 reveals that during the cross-examination, A6 had not disputed his specimen writings Ex. PW101/I. His only grievance is that since the same were not taken with the permission of the Court, no reliance can be placed on the said specimen writings/signatures. As already discussed that since there is nothing in the judgment Sappan Halder (supra) that investigating officer was required to take the permission of concerned Court or the concerned Metropolitan Magistrate before taking the specimen writings of suspect/accused during the investigation, I am of the considered opinion that mere fact that investigating officer did not obtain the specimen writings with the permission of the Court is not fatal to the prosecution case in any manner. Since, the specimen writings Ex. PW101/ (colly) had not been challenged during the cross- examination of PW101, I am of the considered opinion that prosecution has succeeded to prove the specimen writings of A6 in accordance with law.
32. Now I proceed to the next contention; whether the GEQD report Ex. PW89/B can be discarded mere on the ground that it was not corroborated by any other evidence.
(i) As laid down in Murari Lal v. State of MP (supra), where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt over the opinion, the uncorroborated testimony of hand writing expert can be accepted.
(ii) In the instant case, the report was given by Mr. Mohinder Singh (PW89) and Mr. N. C. Sood. The report was proved CBI No. 70/2016 (old No. 60/10) Page 50 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) by prosecution. Though PW89 was cross-examined at length, yet nothing could be extracted during his cross-examination, which may show that the reasons given by PW89 in support of his opinion are not convincing or that there is any reliable evidence which is sufficient to throw a doubt over the conclusion arrived at by PW89 and Mr. N. C. Sood. In the absence of any such evidence, I am of the considered opinion that there is no reason to disbelieve the GEQD report (Ex. PW89/B).
(iii) It is pertinent to state that PW89 had experience of about 38 years in the field of examination of documents and he had examined thousands of documents during his career as an Expert. He retired as GEQD from CFSL, Hyderabad. This shows that PW89 was not only a well qualified person but well experienced expert also, thus this Court needs sufficient cogent reason to disbelieve the opinion given by him.
(iv) As per the report Ex. PW89/B, the documents were also examined by Mr. N. C. Sood, GEQD and he also arrived at the same opinion. PW89 testified in his examination-in-chief that documents were independently examined by Mr. N. C. Sood and he also arrived at the same opinion, accordingly he signed the report at point B. PW89 had also given the detail reasons of his opinion and same are separately exhibited as Ex. PW89/C.
(v) From the deposition of PW89, it becomes crystal clear that documents in question were examined by two well experienced and qualified persons and both arrived at the same CBI No. 70/2016 (old No. 60/10) Page 51 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) opinion as mentioned in report Ex. PW89/B. There is nothing on record, which may show that they had any bias either towards A6 or any other accused person, thus it can safely be culled out that both had examined the documents independently and without any ill-will.
(vi) From the record it can safely be culled out that sufficient data were provided to GEQDs to examine the questioned documents. From the report Ex. PW89/B it also becomes clear that they had examined the documents with the aids of various scientific instruments available in the government laboratory, Shimla. This further shows that both the GEQDs examined the documents with scientific instruments.
(vii) In view of the above, I am of the considered opinion that there is no reason to disbelieve the GEQD report Ex. PW89/B.
33. On the application Ex. PW56/D, signature of Mr. Ajay Kumar was marked as Q1. Similarly, signatures in the name of Ajay Kumar on the other documents were given Mark as Q6 to Q12, Q15, Q18, Q20 to Q26, Q29, Q32, Q34 to Q39, Q42, Q45, Q47, Q50, Q53, Q55, Q58, Q61, Q63, Q66, Q69, Q71, Q74, Q77, Q79, Q82, Q85, Q87, Q90, Q93, Q95, Q98, Q101, Q103, Q106, Q109, Q111, Q114, Q117, Q119, Q122, Q125, Q127, Q130, Q133, Q135, Q138, Q141, Q143, Q146, Q149, Q151, Q154, Q157, Q159, Q162, Q165, Q167, Q170, Q173, Q175 to Q179, Q181, Q183, Q186, Q188 to Q204, Q206, Q212, Q216, Q220, Q224, Q227, Q231, Q561 to Q623, Q624 to Q716, Q718, Q724, Q728, Q732, Q736, Q768, Q784, Q787, CBI No. 70/2016 (old No. 60/10) Page 52 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Q790 to Q796, Q798, Q801, Q804, Q806, Q809, Q812, Q814, Q817, Q820, Q822, Q825, Q828, Q830, Q833, Q836, Q838, Q841, Q844, Q846, Q849, Q852, Q854, Q857, Q860, Q862, Q865, Q868, Q870, Q873, Q876, Q878, Q881, Q884, Q886, Q889, Q892, Q894, Q897, Q900, Q902, Q905, Q908, Q910, Q913, Q916, Q918, Q921, Q924, Q926, Q929, Q932 to Q937, Q939, Q942, Q945 to Q951, Q953, Q956, Q959 to Q966.
(i) All these documents were submitted before the RCS from time to time in connection with the revival of the society. As per the GEQD report Ex. PW89/B, the author of the above said questioned writings and the author of specimen writings Ex. PW101/I (colly) was one and same person. In other words, A6 was the person who signed the application and documents in the assumed name of Ajay Kumar.
(ii) It was also alleged against A6 that he had also forged the signatures of Mr. S. K. Gupta who had been shown as Treasurer of the society and A6 also forged he signatures of Mr. Dinesh Kumar who had been shown as President of the society in question. During investigation, signatures of Mr. S. K. Gupta were given mark as Q13, Q16, Q19, Q27, Q30, Q33, Q40, Q43, Q46, Q48, Q51, Q54, Q56, Q59, Q62, Q64, Q67, Q70, Q72, Q75, Q78, Q80, Q83, Q86, Q88, Q91, Q94, Q96, Q99, Q102, Q104, Q107, Q110, Q112, Q115, Q118, Q120, Q123, Q126, Q128, Q131, Q134, Q136, Q139, Q142, Q144, Q147, Q150, Q152, Q155, Q158, Q160, Q163, Q166, Q168, Q171, Q174, Q180, Q184, Q187, Q357, Q358 Q785, Q788, Q789, Q799, Q802, Q803, Q807, Q810, Q811, Q815, Q818, CBI No. 70/2016 (old No. 60/10) Page 53 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Q819, Q823, Q826, Q827, Q831, Q834, Q835, Q839, Q842, Q843, Q847, Q850, Q851, Q855, Q858, Q859, Q863, Q866, Q867, Q871, Q874, Q875, Q879, Q882, Q883, Q887, Q890, Q891, Q895, Q898, Q899, Q903, Q906, Q907, Q911, Q914, Q915, Q919, Q922, Q923, Q927, Q930, Q931, Q940, Q943, Q944, Q954, Q957 and Q958.
(iii) Similarly, during the investigation, signatures of Dinesh Kumar were given mark as Q14, Q17, Q28, Q31, Q41, Q44, Q49, Q52, Q57, Q60, Q65, Q68, Q73, Q76, Q81, Q84, Q89, Q92, Q97, Q100, Q105, Q108, Q113, Q116, Q121, Q124, Q129, Q132, Q137, Q140, Q145, Q148, Q153, Q156, Q161, Q164, Q169, Q172, Q182, Q185, Q208, Q211, Q215, Q219, Q223, Q720, Q722, Q726, Q730, Q734, Q783, Q786, Q797, Q800, Q805, Q808, Q813, Q816, Q821, Q824, Q829, Q832, Q837, Q840, Q845, Q848, Q853, Q856, Q861, Q864, Q869, Q872, Q877, Q880, Q885, Q888, Q893, Q896, Q901, Q904, Q909, Q912, Q917, Q920, Q925, Q928, Q938, Q941, Q952 and Q955.
(iv) As per GEQD report (Ex. PW89/B), the author of the above said questioned signatures and specimen writings marked S1 to S195 and S158/1 (Ex. PW101/I) was one and same person. Since the said specimen writings belonged to A6, it establishes that A6 was the person, who forged the signatures of Mr. S. K. Gupta and Mr. Dinesh Kumar on the documents, which were submitted from time to time in the office of RCS for the purpose of revival of the society.
34. Since, it has been established that it was A6, who signed the application in the assumed name of Mr. Ajay Kumar and it CBI No. 70/2016 (old No. 60/10) Page 54 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) was A6 who forged the signatures of Mr. Ajay Kumar, Mr. S. K. Gupta and Mr. Dinesh Kumar on various documents, which were submitted in the office of RCS from time to time for revival of the society, in terms of Section 106 of Indian Evidence Act, onus was shifted upon A6 to explain under which circumstances he had forged the signatures of above said persons. But during trial, he failed to adduce any evidence in this regard. In the absence of any contrary evidence on record, there is no reason to disbelieve the prosecution version that A6 had forged the signatures of above said persons deliberately in order to get the society revived by showing the above said persons as office bearers of the said society.
(i) Since A6 had forged the signatures of above said persons, he committed forgery as defined under Section 463 IPC. Since, A6 had forged the signatures of above said persons in order to get the society revived dishonestly and to get land at subsidised rate from DDA, this establishes that he had forged the said signatures for the purpose of cheating, thus A6 is also liable for the offence punishable under Section 468 IPC.
35. As per record, initially the application Ex. PW56/D was moved before the AR (NW) requesting to cancel the winding up order and revive the society. Alongwith the application, no document was annexed.
(i) On receipt of the said letter, file was put up by A3 and as per the noting dated November 3, 2003, it was recommended that Mr. U. S. Bhatnagar, GR-III Inspector be appointed as Inspecting CBI No. 70/2016 (old No. 60/10) Page 55 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) officer to conduct an inquiry under Section 54 of DCS Act to ascertain the present status of the society. Accordingly, Mr. U. S. Bhatnagar had submitted a report dated November 12, 2003, which was put up on file by A3 on November 19, 2003 and same was placed before the RCS on November 21, 2003. On the recommendation of Reader to the RCS, notice was issued to the President/Secretary of the society for personal hearing and matter was adjourned for December 9, 2003. On that day, RCS sent the file to the concerned Zone with direction for verification of membership and also to ascertain the audit/election of the society. Thereafter, as per the noting dated December 18, 2003, President/Secretary of the society produced the record for verification.
(ii) As per the noting dated January 2, 2004, President/Secretary of the Society produced certain record including the list of members containing the signatures of office bearers namely Mr. Ajay Kumar, Mr. Dinesh Kumar and Vice President; copy of bye- laws bearing the signatures of Mr. Ajay Kumar; copy of the accounts of the society bearing the signatures of office bearers namely Mr. Dinesh, Mr. Ajay Kumar and Mr. S. K. Gupta; copy of the affidavits of the members; copy of the receipt of share money/admission fee bearing the signature of Mr. Ajay Kumar; copy of the application forms bearing the signature of Mr. Ajay Kumar and affidavits of officer bearers bearing the signature of Mr. Ajay Kumar and Mr. Dinesh Kumar.
(iii) As per the report dated November 12, 2003 of Mr. U. S. Bhatnagar, he met with Mr. Ajay Kumar who produced the record for the purpose of inspection. Thereafter, the record bearing the CBI No. 70/2016 (old No. 60/10) Page 56 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) signature of Mr. Ajay Kumar, Mr. Dinesh Kumar and Mr. S. K. Gupta were produced in the office of RCS for the purpose of inspection and verification. As already discussed that from the GEQD report, it has been established that it was A6 who forged the signatures of above said persons. In these circumstances, it is proved beyond doubt that it was A6 who produced the record in the office of RCS for the purpose of inspection. Since, A6 had forged the signatures of above said persons, it can safely be culled out that he knows or having reasons to believe that the record produced by him before the RCS for the purpose of inspection were forged. But despite that he produced the same as genuine documents for seeking revival of the society. This proves that he had dishonest intention at the time of producing the record. Since, A6 used the forged documents as genuine documents knowingly or having reasons to believe that the same were forged, A6 is also liable for the offence punishable under Section 468 r/w 471 IPC.
Findings qua fake members:-
36. As per noting dated January 2, 2004 (Ex. PW91/A) President/Secretary of the society had submitted a list of 147 members in the office of RCS for the purpose of revival of the society. The said list bears the signatures of Mr. Ajay Kumar, Mr. Dinesh Kumar and Vice President. As already discussed that signatures of Mr. Dinesh Kumar and Mr. Ajay Kumar were forged by A6. CBI alleged that most of the members, whose names were mentioned in the list were non-existent persons. In order to prove the same, during investigation, investigating officer had sent notice to all the members CBI No. 70/2016 (old No. 60/10) Page 57 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) whose names were mentioned in the said list through speed post, but all the registered envelopes except five returned with the remarks that either no such person was residing at the given address or no such address was in existence or the address was incomplete. In order to prove the fact that the said notices were returned undelivered, prosecution has examined postmen to whom the said notices were entrusted for delivery. The postmen were examined as PW5 to PW40, PW47, PW75 and PW76.
(i) PW5 deposed regarding the member Mr. Tara Chand (membership no. 58); PW6 deposed regarding the member Mr. Panna Lal (membership no. 45); PW7 deposed regarding the member Mr. Nand Lal (membership no. 65); PW8 deposed regarding the member Mr. N.K. Bansal (membership no.141 ); PW9 deposed regarding the member Mr. Bishan Dass (membership no. 134) and Ms. Bimla Devi (membership no. 147); PW14 deposed regarding the member Mr. Sarwan Kumar Anand (membership no.124); PW10 deposed regarding the member Mr. Satya Dev (membership no.160); PW11 deposed regarding the member Mr. Chaman Bakshi (membership no.34) and Ms. Madhu Bala (membership no. 166); PW12 deposed regarding the member Mr. Yoginder Drar (membership no.74); PW13 deposed regarding the member Mr. M. K. Ahuja (membership no.158); PW15 deposed regarding the member Mr. Ashok Kumar (membership no.106) and Mr. Roshan Lal (membership no. 120); PW16 deposed regarding the member Mr. Ashok Kumar s/o Mulk Raj (membership no.186); PW17 deposed regarding the member Mr. Raj Kumar (membership no.151); PW18 deposed regarding the member Ms. Santra Devi (membership no.154); PW19 deposed CBI No. 70/2016 (old No. 60/10) Page 58 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) regarding the member Mr.Rama Kant Gulati (membership no. 28); PW20 deposed regarding the member Mr. Kulvinder Singh (membership no.2) and Mr. Suresh Seth (membership no. 18); PW21 deposed regarding the member Mr. Ajay Kumar (membership no.180) and Mr. Narender Dhir (membership no. 69); PW22 deposed regarding the member Ms. Rita Devi (membership no.176); PW23 deposed regarding the member Mr. Vaneet Asri (membership no.16); PW24 deposed regarding the member Mr.Virender Kumar (membership no.31); PW25 deposed regarding the member Mr. Deepak Vijay (membership no.7), Mr. Gurmeet Singh (membership no.12), Mr. Onkar Hans (membership no. 11), Mr. Anil Behl (membership no. 57) and Mr. Ram Parkash (membership no. 25); PW26 deposed regarding the member Mr. Inderjeet Singh (membership no.79); PW27 deposed regarding the member Mr. Shiv Kumar Gupta (membership no. 145); PW28 deposed regarding the member Mr. Vijay Bajaj (membership no.111); PW29 deposed regarding the member Mr. Dinesh Kumar (membership no.156); PW30 deposed regarding the member Mr. Kamlesh Kumar (membership no.178) and Mr. Kapil Kumar (membership no. 172); PW31 deposed regarding the member Mr. Manjeet Singh (membership no.43); PW32 deposed regarding the member Mr. Ajit Singh (membership no.4); PW33 deposed regarding the member Mr. Satish Kumar (membership no.101); PW34 deposed regarding the member Mr. Ashutosh Bhardwaj (membership no.19); PW35 deposed regarding the member Mr. Ashok Kumar r/o Dharam Pura (membership no.144); PW36 deposed regarding the member Mr. Ravinder Singh (membership no.118); PW37 deposed regarding the member Mr. Vijay Kumar (membership no.100); PW38 deposed CBI No. 70/2016 (old No. 60/10) Page 59 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) regarding the member Ms. Veena Khanna (membership no.54); PW39 deposed regarding the member Mr. Som Dutt (membership no.61); PW40 deposed regarding the member Mr. Avinash Bajaj (membership no.87); PW47 deposed regarding the member Mr. Chanchal Kapoor (membership no.142), Mr. Jai Kishan Dhinga (membership no. 147) and Mr. Pawan Kumar (membership no. 157); PW75 deposed regarding the member Mr. Pratap Kumar (membership no.170) and Mr. Bal Kishan (membership no. 62) and PW76 deposed regarding the member Mr. Raman Kumar (membership no. 1).
(ii) Perusal of the statements of above said witnesses reveal that either the above said members were not residing at the addresses mentioned on the envelope or the addresses were found not in existence or the addresses were incomplete. Most of the witnesses either were not cross-examined or if they were cross- examined, nothing could be extracted, which may cast any dent in their deposition. The said witnesses deposed about 52 members.
37. Besides the postmen, CBI also examined certain other witnesses to prove that the members were either not residing at their addresses or the addresses given by the members were not in existence in the locality. Such witnesses are PW2, PW48, PW49, PW58, PW60, PW61, PW64 to PW66, PW73, PW74, PW79 to PW82 and PW92.
(i) PW2 deposed regarding Mr. Nand Lal (MN. 65); PW48 deposed regarding Mr. Devender Kumar Arora (MN.56) and PW49 deposed regarding Mr. Mukesh Kumar (MN.148).
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(ii) All the said witnesses deposed that no such person had ever resided at their premises as they never let out their premises to any such person. The testimony of said witnesses remained unchallenged during trial.
(iii) PW58 deposed regarding Mr. Dinesh Kumar s/o Bodh Raj (membership no.156) by stating that the address A-4, Pachim Vihar, Delhi is not in existence.
(iv) PW60 deposed regarding Mr. Arun Kumar Aggarwal (MN.175); PW61 deposed regarding Mr. Mahender Singh (MN 138); PW64 deposed regarding Ms. Madhu Bala (MN 166); PW65 deposed regarding Mr. Parveen Kapoor (MN 173); PW66 deposed regarding Mr. V.K.Madan (MN 140); PW73 deposed regarding Mr. Ramesh Kumar Sharma; PW74 deposed regarding Ms. Promila Jain (MN 163); PW77 deposed regarding Mr. Suraj Bhan; PW79 deposed regarding Ms. Rita Devi (MN 176); PW80 deposed regarding Mr. Raj Kumar (MN 151); PW81 deposed regarding Mr. Ajay Kumar (MN 180); PW82 deposed regarding Mr. Ashok Kumar (MN
186) and PW92 deposed regarding Mr. Chaman Bakshi (MN 34).
(v) They all deposed that no such persons had ever resided at their premises and they did not know any such persons. All the said witnesses deposed qua 15 members.
38. From the testimony of the postmen and above said public witnesses, it becomes clear that they deposed about 67 members. As per their testimonies, that 67 members were found not CBI No. 70/2016 (old No. 60/10) Page 61 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) residing at the given addresses. Even in some cases, addresses were found incomplete or not in existence. Since, the name of said persons were mentioned in the list of members, which was submitted in the office of RCS and the list was signed by A6 in the name of Mr. Ajay Kumar, Secretary of the society and Mr. Dinesh Kumar, President of the society, onus was upon him to show that the said members were not fictitious and they were not non existent persons. . But during trial, he failed even to produce a single member in the Court to rebut the prosecution case. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the testimony of above said witnesses and prosecution version that these persons were fictitious members and their names had been mentioned in the list dishonestly.
39. As already stated that affidavits of members were also filed before the RCS in connection with revival of the society. In the said affidavits, members declared that at the time of taking membership in the society, they were residing in the Union Territory of Delhi for the last three years and their spouse or dependent children were not having any membership in any Group Housing Society in Delhi and neither they nor their spouse or dependent children had any lease hold or freehold property in Delhi.
(i) On the affidavits of some members, A6 forged their signatures. Affidavits of such members are of Mr. Ashok Kumar, Mr. Swaran Kumar Anand, Mr. Ravinder Singh, Mr. Ashok Kumar, Mr. Rakesh Malhotra, Mr. Kuldeep, Mr. Krishan Kumar, Mr. Ashok Kapoor, Mr. Sardari Lal, Mr. Nand Lal, Mr. Bal Krishan, Mr. Rajesh Kumar, Ms. Veena Khanna, Mr. Vinod Mehra, Mr. Panna Lal, Mr. Ramesh CBI No. 70/2016 (old No. 60/10) Page 62 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Choudhary, Mr. Manjeet Singh, Mr. Amarjeet Singh, Mr. Satish Khurana, Mr. Ashok Wadhawan, Mr. Chaman Bakshi, Mr. Suraj Parkash, Mr. Som Dutt, Mr. Virender Kumar, Mr. Parmod Kumar, Mr. Anil Kumar, Mr. Ram Parkash, Mr. Deepak Kumar Khatri, Mr. Manjeet Singh, Mr. Suresh Seth, Mr. Vaneet Asri, Mr. Gurmeet Singh, Ms. Bala Makkar, Mr. Jagdish Lal, Mr. Kulvinder Pal Singh, Ms. Raman Kaur, Mr. Ajay Kumar, Mr. Dinesh Kumar, Mr. Ajay Kumar and Mr. Ajay Kumar.
(i) The signatures of above members on their affidavits were given mark as Q373, Q374, Q376, Q377, Q382, Q383, Q390, Q391, Q393, Q394, Q399, Q400, Q407, Q408, Q416, Q417, Q427, Q428, Q432, Q433, Q435, Q436, Q442, Q443, Q445, Q446, Q448, Q449, Q456, Q457, Q459, Q460, Q462, Q463, Q465, Q466, Q470, Q471, Q473, Q474, Q477, Q478, Q480, Q481, Q483, Q484, Q486, Q487, Q493, Q494, Q496, Q497, Q499, Q500, Q502, Q503, Q507, Q508, Q516, Q517, Q520, Q521, Q526, Q527, Q532, Q533, Q540, Q541, Q543, Q544, Q546, Q547, Q549, Q551, Q552, Q553, Q554, Q555 to Q560.
(ii) As per the GEQD report (Ex. PW89/B), the author of the said signatures and specimen writings Mark S1 to S195 and S158/1 was one and the same person which proves that A6 had forged the signatures of the above said members on their affidavits. Since, A6 forged the signatures of numerous members on their affidavits and such affidavits were filed in the office of RCS for the purpose of revival of the society. This proves beyond doubts that A6 had included the name of several fictitious persons in the list of CBI No. 70/2016 (old No. 60/10) Page 63 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) members in order to get land from DDA.
(iii) From the on going discussion, it becomes crystal clear that the list of members, which was submitted in the office of RCS was a list of fictitious and fake members. Since, A6 forged the signatures of above said members on their affidavits, he is liable for the forgery and since the forgery was committed for the purpose of cheating, A6 is liable for the offence punishable under Section 468 IPC. Since, A6 used the said affidavits for the purpose of revival of the Society, he is also liable for the offence punishable under Section 471 IPC r/w Section 468 IPC.
(iv) It is undisputed fact that society was revived vide order dated January 29, 2004. Since, it has been established that A6 had not only forged the signatures of office bearers and numerous persons but he also furnished the list for fake members, this establishes that A6 had induced the RCS dishonestly to revive the society on the basis of forged and fabricated documents, thus A6 is also liable for the offence punishable under Section 420 IPC.
40. During trial, CBI had examined certain original members of the society such as PW1, PW3, PW4, PW43 and PW45.
(i) On perusal of their testimony, it becomes clear that society was registered in the year 1983 and initially the society had 63 members, which was increased upto 75. They deposed that Mr. Anil Kumar Jain (PW4) was the President of the said society; whereas Mr. Deen Dayal Sharma was the Secretary of the society and Mr. Santosh CBI No. 70/2016 (old No. 60/10) Page 64 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Kumar Jain (PW3) was the Treasurer of the society. They all deposed that they did not know any person by the name of Gokul Chand Aggarwal (A6) and further testified that Mr. Ajay Kumar was not the Secretary of the society and further testified that Mr. Shiv Kumar Gupta was never elected as treasurer of the society.
(ii) PW4 deposed that the society was wound up in the year 1988-89 and same was told to him by the Secretary (Mr. Deen Dayal Goel). He further testified that he did not make any effort to get the society revived and further deposed that he did not aware whether any person applied for revival of the society or not. He also testified that no election had ever been held in the society.
(iii) From their deposition, it becomes crystal clear that there was no Secretary in the society in the name of Mr. Ajay Kumar and there was no Treasurer in the name of Mr. Shiv Kumar Gupta and he did not know any person by the name of Gokul Chand Aggarwal. From their deposition, it becomes further clear that society was wound up in the year 1988-89 and no effort was made by the members of the society to get it revived.
41. In the light of overwhelming evidence against A6, I am of the considered opinion that mere fact that there is no evidence to prove that A6 had prepared the reports and affidavits at the computer of Ashwani Kumar or that PW Satbir did not support the prosecution version that A6 had purchased the non judicial stamp papers for affidavits are not helpful to A6 in any manner.
CBI No. 70/2016 (old No. 60/10) Page 65 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Findings qua accused U.S. Bhatnagar (A4):-
42. The role attributed to A4 is that he had submitted a false inspection report dated November 12, 2003 at the behest of A6.
(i) As per noting dated November 3, 2003, A2 being the Assistant Registrar (NW) recommended the name of Mr. U.S. Bhatnagar, Grade-III, Inspector (A4) to conduct an inquiry under Section 54 of the DCS Act, 1972. The recommendation was approved by the RCS on November 3, 2003 itself. Thereafter, A2 being the Assistant Registrar issued the order in this regard on November 7, 2003 and the same is exhibited as Ex. PW72/B.
(ii) Pursuant to the said order, A4 had submitted a report dated November 12, 2003 (Mark PW83/B). During examination under Section 313 Cr.P.C, a question was put to A4 that he had prepared the report dated November 12, 2003 (Mark PW83/B), to which he stated that it is the matter of record. This shows that he had not disputed the factum of submitting the said report.
(iii) Further, the report bears his signature at point Q232 and Q230. During investigation, his specimen writings and signatures were also taken by the investigating officer and the same were given Mark as S196 to S228 [Ex. PW101/J (colly)]. Though the specimen writings/signatures were taken in the presence of two independent witnesses namely Mr. Prakash Chand Saini and Mr. Tek Chand, yet CBI did not deem it appropriate to bring them in the witness box. CBI placed reliance on the sole deposition of PW101. In CBI No. 70/2016 (old No. 60/10) Page 66 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) his examination-in-chief, PW101 deposed that he had taken the specimen writings/signatures of A4 vide Ex. PW101/J. Though the witness was cross-examined at length on behalf of A4, yet no question was put to him regarding the said specimen writings/signatures. This shows that the testimony of PW101 to the extent that he had taken the specimen writings/signatures of A4 was not challenged by the counsel during trial. In these circumstances, I do not find any reason to disbelieve the deposition of PW101 wherein he deposed that he had taken the specimen writings/signatures of A4 in the presence of two independent witnesses. This further establishes that the report Mark PW83/B is the report, which was submitted by A4 in his office.
(iv) In his report Mark PW83/B, A4 certified that he visited the office of society on November 8, 2003 at B-1428, Shastri Nagar, Delhi and met with Mr. Ajay Kumar, Secretary of the society. He further testified that the said Mr. Ajay Kumar produced all relevant records of the society for inspection. Now question arises whether the society had ever functioned from the above said address or not or whether any person by the name of Ajay Kumar had ever resided at the above said address. In order to establish that the said society had never functioned from the above said address, CBI placed reliance on the deposition of PW44 and PW71.
(v) PW44 and PW71 are real brothers and they deposed that property bearing No. B-1428, Nand Kishore Gupta Marg, Shastri Nagar, Delhi belonged to their father and they are residing at the said property since 1980. They categorically deposed that no society particularly Veenapani CGHS had ever functioned from their CBI No. 70/2016 (old No. 60/10) Page 67 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) premises. They further testified that no person by the name of Mr. Ajay Kumar had ever resided at their premises. They further testified that no officer from the office of RCS had ever visited the premises to conduct any inquiry. Though both the witnesses were cross-examined at length on behalf of A4 but nothing could be extracted which may cast any dent in their deposition. No doubt, PW44 in his cross- examination admitted that a certain portion of the premise was let out to some tenants and he also disclosed the name of some tenants whereas PW71 in his cross-examination deposed that no tenant had ever resided at their premises. But to my mind, the said minor contradiction is not helpful to the accused in any manner because PW44 nowhere deposed that either any portion of the premises was ever let out to the society in question or Mr. Ajay Kumar or Mr. Gokul Chand Aggarwal.
(vi) From the deposition of PW44 and PW71, it becomes crystal clear that no society had ever functioned from the premises bearing No. B-1428, Shastri Nagar, Delhi-52. Even Mr. Ajay Kumar never resided at the said premises. If it was so, in terms of Section 106 of Evidence Act, onus is shifted upon A4 to explain where he visited to conduct the inspection and with whom he met. But during trial, A4 failed to produce any evidence in this regard. Since, it has been established that no society had ever functioned from the premises No. B-1428, Shastri Nagar, Delhi, but despite that A4 certified that he had conducted the inspection at the said premises, this establishes beyond doubt that he had submitted a false report without visiting the above said premises.
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(vii) The report is in two parts. The final report was submitted on November 12, 2003 and this also contained the report on prescribed form, which bears the signature of Mr. Ajay Kumar at point Q231. This shows that at the time of conducting the inspection, A4 had taken the signature of Ajay Kumar with whom he allegedly met. As per the GEQD report Ex. PW89/B, the author of said signature was none other than Gokul Chand Aggarwal (A6). This establishes that no person by the name of Ajay Kumar met A4; rather Gokul Chand Aggarwal (A6) signed the report in the name of Ajay Kumar. It is pertinent to state that during trial, even A4 had not taken the plea that Gokul Chand Aggarwal met him at the above said premises and represented himself as Ajay Kumar. It is also pertinent to state that PW44 and PW71 in their deposition categorically deposed that they did not know any person by the name of Gokul Chand Aggarwal (A6). This shows that even A6 was not residing at the said premises. This establishes that A4 had submitted a false and bogus report at the behest of A6 without visiting the above said premises.
(viii) A4 had submitted his report to the AR (NW) i.e. A2 (Daya Nand Sharma) on November 12, 2003, who marked the same to the Dealing Asstt. i.e. A3 (Narayan Dutt Kaushik). A3 put up the said report on November 19, 2003.
43. I do not find any substance in the contention raised on behalf of A4 that since inspection under Section 54 of DCS Act was not a pre-condition to revive a defunct society, the inspection report submitted by A4 was not mandatory to revive the society in question.
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(i) Assuming for the sake of arguments that inspection under Section 54 of the DCS Act was not a pre-condition to revive the society, but it does not help A4 in any manner because once RCS decided to conduct an inspection under Section 54 of the Act and deputed A4 to conduct the inspection, it becomes the paramount duty of A4, being the public servant, to submit a true and correct report to his office by visiting the premises as directed. But he failed to do so.
(ii) Further, it is pertinent to state that under Section 63 of the Act, RCS has ample power to make an inquiry before passing the order. Under Section 54 of the Act, RCS is competent to conduct an inspection of record of the society. In the instant case, before passing the revival order, RCS decided to conduct an inquiry to inspect the record of the society and further directed for physical verification of the members. Thus, it cannot be said that the RCS had acted without any jurisdiction or the reports called for were not relevant for passing the revival order.
(iii) No doubt, as per section 63 (4) of the DCS Act, copy of the order passed by the RCS under Section 63 of the Act was required to be sent to the society through registered post. On the basis of said provision, it was argued that the RCS must have sent a copy of revival order to the society at its registered office i.e. B-1428, Shastri Nagar, Delhi-32, but there is nothing on record which may show that the said envelope was ever returned undelivered. Accordingly, it was argued that this shows that the address was in existence and Society was functioning from the said address, thus it can not be said that A4 had submitted a false report without visiting CBI No. 70/2016 (old No. 60/10) Page 70 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) the office of society. But to my mind, the said contention is without any substance because in the instance case, it is not the the prosecution case that the address B-1428, Shastri Nagar, Delhi-52 was not in existence; rather the prosecution case is that the address was in existence and the property belonged to PW44 and PW71, but no society had ever functioned from their property. During trial both the witnesses categorically deposed that no society had ever functioned from their premises. Secondly, there is nothing on record which may show that the copy of revival order was ever sent to the society through registered post. During trial, no attempt was made by the accused to produce any document to establish that copy of revival order was ever sent to the society at its registered office through registered post. In the absence of any such evidence, I do not find any force in the contention raised by the counsel.
(iv) Since A4 was working as public servant when he was appointed as Inspecting Officer to conduct an inspection, it was his duty to submit a true and correct inspection report to the office but he failed to do so. By submitting a false report, he abused his position as a public servant. No doubt, there is no cogent evidence on record to establish that A4 had obtained any illegal gratification or valuable thing or pecuniary gain for submitting his report. But, it is also undisputed fact that the report was submitted in the year 2003 whereas the case was registered on November 30, 2005, thus it was not plausible for the investigating officer to find any direct evidence to prove the fact that A4 had received any valuable thing or pecuniary advantage either for himself or for any other person. But from the circumstances and the fact that A4 failed to furnish any explanation CBI No. 70/2016 (old No. 60/10) Page 71 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) whatsoever how he conducted the inspection of the society, when no society had ever functioned from the premises bearing No. B-1428, Shastri Nagar, Delhi-52, thus it can safely be culled out that A4 must have submitted the false report in favour of the society at the behest of accused Gokul Chand Aggarwal (A6) after obtaining some valuable thing or pecuniary advantage otherwise there was no occasion for him to submit a false report without visiting the premises. Secondly, submitting a false report deliberately by a public servant is not in the public interest. By submitting a false report, A4 facilitated A6 to get the society revived and to get land at subsidized rate from DDA in the name of society.
44. In view of the aforesaid discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused U.S.Bhatnagar (A4) for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13 (1) (d) (iii) of PC Act beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
Findings qua accused Faiz Mohd. (A5):-
45. As per noting dated January 6, 2004 (Ex. PW52/E), RCS directed the Reader to send the file to the concerned Zone for physical verification as well as door to door survey of members at random. Pursuant to the said order, A2 appointed Faiz Mohd. (A5) to conduct the door to door survey and physical verification of members on January 9, 2004.
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(i) As per noting dated January 22, 2004, A5 had submitted the physical verification report qua 15 members whose membership numbers were 1, 4, 26, 36, 54, 61, 63, 87, 100, 101, 118, 138, 143, 145 and 147.
(ii) As per record, A5 had not submitted any separate report; rather he submitted his report on the copy of list of members of the society and he also attested the copy of share certificates/share receipts money. On the membership list, he certified that he had physically verified the members namely Mr. Raman Kaur (membership no. 01), Mr. Ajay Singh (MN. 04), Mr. Anil Kumar (MN.026), Mr. Ashok Wadhwa (membership no.36), Ms. Veena Khanna (MN. 54), Mr. Som Dutt (MN. 61), Mr. Nand Lal (MN.63), Mr. Avinash Bajaj (MN. 87), Mr. Vijay Kumar (MN.100), Mr. Satish Kumar (MN. 101), Mr. Ravinder Singh (MN. 118), Mr. Mahinder Singh (MN.138), Mr. Alok Kumar (MN.143), Mr. Shiv Kumar (MN.145) and Ms. Bimla Jain (MN. 147). Signatures and writings of A5 on the said list were given Mark as Q265-Q268.
(iii) As already discussed that members having membership nos. 1, 4, 54, 61, 87, 100, 101, 118, 138, 145, 147 were found not residing at the addresses mentioned in the list or the given addresses were found non-existent. If, no such member was residing at the address given in the list, how could A5 physically verified them. This itself establishes that A5 had submitted the report without conducting any physically verification of members.
(iv) Alongwith the report, he had also annexed the CBI No. 70/2016 (old No. 60/10) Page 73 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) photocopy of share certificates bearing no. 25351 (Mr. Satish), 25368 (Mr. Ravinder Singh), 25388 (Mr. Mahender Singh), 25393 (Mr. Alok Kumar), 25395 (Mr. Shiv Kumar Gupta), 25397 (Ms. Bimla Jain), 25288 (Mr. Ashok Wadhawan), 25251 (Mr. Raman Kumar), 25275 (Mr. Anil Kumar). 25304 (Ms. Veena Khanna), 25311 (Mr. Som Dutt), 25313 (Mr. Nand Lal), 25336 (Mr. Lalit Bhandari), 25254 Mr. Ajit Singh), 25350 (Mr. Vijay Kumar). On the copy of the said share certificates, A5 certified that he had seen original and verified the same.
(v) If the above said members were not residing at the given address, how could A5 obtained the copy of share certificates from them and verified the same from original.
(vi) During his examination under Section 313 Cr.P.C, A5 admitted that he was appointed to conduct the physical verification of members at random. However, he took the plea that there is no provision in the DCS Act/Rule for door to door physical verification of the members. He further deposed that he had not violated any provision of DCS Act. This shows that in his examination under Section 313 Cr.P.C, A5 had not denied his appointment as Inspector to verify the members at random. In other words, he did not dispute his report.
(vii) As already stated that his signatures appear on the membership list at points Q265 to Q268. Similarly, his signatures and writings are also appeared on the share certificates as well as copy of receipt wherein he certified that he had verified the same from original CBI No. 70/2016 (old No. 60/10) Page 74 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) and the same were given mark as Q235 to Q264. During investigation, CBI had taken the specimen writings of A5 which were given mark as S-229 to S250 [Ex. PW101/K (colly)] in the presence of two independent witnesses namely Mr. Prakash Chand and Mr. Tek Chand. Though PW101 was cross-examined at length, yet no question was put to him regarding the above said specimen writings/signatures. This shows that the testimony of PW101 wherein he deposed that he had taken the specimen writings/signatures of A5 in the presence of above said two independent witnesses remained unchallenged. In these circumstances, I do not find any reason to disbelieve the deposition of PW101.
(viii) From the GEQD report (Ex. PW89/B) it becomes crystal clear that the author of above said questioned writings/signatures and specimen writings/signatures was one and the same person, which establishes that the same are in the handwritings of A5.
(ix) From the above it becomes clear that A5 had submitted a false report as he had certified that the above said members were residing at the premises as mentioned in the list whereas most of the members were not found residing at the addresses mentioned in the list.
(x) By submitting a false report, A5 had abused his official position. No doubt, there is no cogent evidence on record to establish that A5 had obtained any pecuniary gain or valuable thing either for himself or for any other person. But it is also undisputed fact CBI No. 70/2016 (old No. 60/10) Page 75 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) that the report was submitted by A5 on January 17, 2004 whereas the FIR was registered on November 30, 2005, thus due to long gap in the submission of report and registration of FIR, it was not plausible for the investigating agency to obtain any direct evidence that A5 had submitted a false report after obtaining pecuniary gain or valuable thing either for himself or for any other person. But from the circumstances of the case, it can safely be culled out that he must have submitted the false report after obtaining pecuniary advantage either for himself or for any other person otherwise there was no occasion for him to submit a false report in favour of the society and A6.
(xi) Similarly, submitting a false report by public servant is not in the public interest. By submitting a false report, A5 had facilitated A6 to get the society revived and make the society entitled to get land at subsidized rate from DDA.
46. In the light of the aforesaid discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused Faiz Mohd. (A5) within four corners of Section 13(1)
(d)(ii) and Section 13(1)(d)(iii) of PC Act, which are punishable under Section 13(2) of PC Act. Accordingly, I hereby hold him guilty thereunder.
Findings qua Kamal Singh (A7):-
47. The role attributed to A7 is that he had submitted a false and forged audit report to the office of RCS without conducting CBI No. 70/2016 (old No. 60/10) Page 76 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) any audit as he was in conspiracy with accused Gokul Chand Aggarwal @ Ajay Kumar.
(i) Though CBI examined as many as 101 witnesses, yet none has uttered a single word against him except PW87 Mr. Prahelad Kumar Thirwani and PW96 Mr. Dharam Vir Singh.
(ii) RCS revived the society vide order dated January 29, 2004 subject to the condition that pending audit shall be got completed within two month's time. Pursuant to the said order, Kamal Singh (A7) was appointed as auditor by AR Audit on January 30, 2004. A7 gave his consent by signing the consent letter at point Q769. Mr. Ajay Kumar being the Secretary of the society also signed the consent form and put his signature at point Q768. Thereafter, A7 submitted his audit report Ex. PW87/A. Alongwith the audit report, A7 also filed the statement of accounts of the society for the year 1983- 1984 to 2002-2003. The balance sheet; receipts and books of accounts bearing the signatures of President (Mr. Dinesh Kumar), Secretary (Mr. Ajay Kumar) and Treasurer (Mr. Shiv Kumar Gupta) of the society; certificate of cash in hands bears the signatures of Mr. Shiv Kumar Gupta (Treasurer); list of Managing Committee members and list of books of accounts and records bear the signatures of Mr. Ajay Kumar being the Secretary of the society. A7 also submitted the Summary report and it bears his signature at point Q771.
(iii) During his examination under Section 313 Cr.P.C, A7 did not dispute the submission of the audit report. However, it took the plea that being the auditor, he had no role in the revival of the CBI No. 70/2016 (old No. 60/10) Page 77 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) society or in sending the list of members of society to DDA. He also admitted his signatures. He further admitted that the audit was done by PW87 but took the plea that since he was busy in other official work, he got the accounts audited from PW87. From his statement recorded under Section 313 Cr.P.C, it becomes clear that A7 had not disputed his audit report.
(iv) PW87 in his examination-in-chief deposed that at the request of A7, he had prepared the audit report, but same was signed by A7. He proved the audit report as Ex. PW87/A. He further deposed that on the basis of information provided by A7, he had mentioned the name of Mr. Dinesh Kumar (President), Mr. Ajay Kumar (Secretary) and Mr. Shiv Kumar Gupta (Treasurer) in the brief summary. He further testified that at the asking of A7, he had raised several objections in the audit report Ex. PW87/A and further testified that he had not seen any of the documents of the society, when he prepared the audit report (Ex. PW87/A). In his cross-examination, he deposed that there is no instruction or rule that auditor is required to obtain the signatures of President, Secretary and Treasurer of the society on the summary report. He further deposed that he asked A7 to obtain his signatures because their names were mentioned on the Summary report.
(v) From the testimony of PW87, it becomes crystal clear that he had prepared the audit report (Ex. PW87/A) at the instance of A7 without conducting any audit. He had not even seen the documents. His testimony is sufficient to establish that the audit report (Ex. PW87/A) is false and bogus documents.
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48. As already discussed that revival order was passed subject to the condition of completion of audit of the accounts of the society. In other words, the audit report was quite relevant for the purpose of revival of the society. Despite that A7 had submitted a false and bogus report without conducting any audit of the accounts of the society.
(i) As per Rule 84 (3) of DCS Act 1973, the auditor was duty bound to conduct the audit at the registered office of the society unless it was directed otherwise. Indisputably, A7 was not directed to conduct audit at any other place, thus in terms of Rule 84(3) of DCS Rules, 1973, A7 was duty bound to conduct audit at the registered office of the society i.e. B-1428, Shastri Nagar, Delhi-52. As already discussed that no society had ever functioned from the said address. This establishes that A7 had not even visited the registered office of the society to conduct the audit. Even during trial, A7 failed to explain where he had conducted the said audit and inspected the books of accounts of the society.
(ii) Since, A7 and PW87 had never visited the registered office of the society, it can safely be culled out that the records of the society were not handed over to them by any office bearer of the society. On the appointment letter, Mr. Ajay Kumar signed at point Q768 and as per the GEQD report (Ex. PW89/B), the author of said signature was Gokul Chand Aggarwal (A6). It means that A6 had produced the record of the society. This fact further establishes from the documents [Ex. PW96/A (colly)], which were allegedly produced before the auditor for the purpose of audit because CBI No. 70/2016 (old No. 60/10) Page 79 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) on all the said documents, A6 had forged the signatures of Mr. Dinesh Kumar, Mr. Ajay Kumar and Mr. Shiv Kumar Gupta. Their signatures were given mark as Q783 to Q966. As per the report Ex. PW89/B, the author of the said signatures is accused Gokul Chand Aggarwal (A6). In these circumstances, it can safely be culled out that A7 had submitted a false report without conducting any audit at the behest of accused Gokul Chand Aggarwal (A6).
(iii) Since A7 had submitted a false and bogus audit report without conducting any audit of the accounts, it proves that he had abused his official position as a public servant. Since, the report has been submitted at the behest of A6, it establishes that he had submitted the false report in order to facilitate A6 to avail the fruits of revival order i.e. to get land at subsidized rate from DDA, thus he had committed the offence punishable under Section 13(1)(d)(ii) of PC Act. Though submitting a false report is not in the public interest in any manner, but despite that he submitted the same and facilitated A6 to get land at subsidized rate from DDA, thus he is also liable for the offence under Section 13(1)(d)(iii) of PC Act.
(iv) In view of the aforesaid discussion, I am of the considered opinion that CBI has succeeded to bring home the guilt of A7 Kamal Singh for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13(1)(d)(iii) of PC Act, accordingly, I hereby hold him guilty thereunder.
49. Now coming to the judgments upon which reliance has been placed by the counsel appearing for A4, A5 and A7.
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(i) The facts of the judgement upon which reliance has been placed by the counsel are totally different from the facts of the case at hand.
(ii) In case A. Sivaprakash vs. State of Kerla (supra), main dispute was whether certificate issued by the appellant was false or not and it was held that the said certificate was not false and said certificate had no role in releasing the payment. On the contrary, in the instant case, it has been held that reports submitted by the accused persons are false and bogus.
(iii) In case B. Jaya Raj vs. State of AP (supra), the appellant was apprehended while taking a bribe of ` 250/-. Similarly, in case Dinesh Chand Gupta (supra), appellant demanded a bribe of ` 1000/- for delivering the recovery certificate and first installment was paid by him on December 9, 2003 and was got apprehended by the complainant while accepting the second installment of ` 500/- whereas in the instant case, there is no such allegation. In the instant case, the main allegation against the accused persons are that they had abused their official position by submitting false report deliberately and they had also acted without any public interest. The case State of NCT of Delhi vs. Sudhir Kumar (supra) does not pertain to the Preventions of Corruption matters. There is no dispute on the proposition of law as laid down in the said case that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Similarly, the case of Angoori Devi vs. another vs. State (supra) also dealt with the settled proposition of law that suspicion howsoever grave cannot take the place of proof.
CBI No. 70/2016 (old No. 60/10) Page 81 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Thus, I am of the considered opinion that judgments relied upon by the counsel are not helpful to the accused persons in any manner.
Findings qua Balam Singh Ashwal @ B. S. Ashwal (A8):-
50. At the time of reviving the society, RCS also appointed Mr. Balam Singh Ashwal, Grade-IV as Election officer with direction to conduct the election of the Managing Committee within two months from the issuance of order i.e. January 29, 2004. Pursuant to the said order, A8 had issued a notice for election of Managing committee vide letter dated February 6, 2004 directing the President/Secretary of the society to attend the office of undersigned on or before February 13, 2004 at 11 AM with direction to bring certain documents.
(i) Thereafter, A8 had issued a notice for calling a Special General Body Meeting of the society on March 7, 2004 at 10 AM in the premises of office of Registrar, Cooperative Societies, GNCT of Delhi for conducting election for the post of President, Vice President and members of the Managing Committee. In the said notice, it was made clear that the nomination form can be obtained free of cost from his office on February 23, 2004 during 10 AM to 2 PM. It was further directed that the nomination forms duly filled in shall be handed over to him either by candidates or by his or her Proposer or Seconder.
(ii) As per record, the proceedings for the Special General Body meeting was conducted at the office of RCS, New CBI No. 70/2016 (old No. 60/10) Page 82 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Delhi and the same is exhibited as Ex. PW84/A. As per Ex. PW84/A, 38 members participated in the election proceedings. On the same day, result was declared showing that Mr. Dinesh Kumar (MN. 156) and Mr. Mukesh Kumar (MN. 148) were elected as President and Vice President respectively. Whereas Mr. Ajay Kumar (MN. 180), Mr. Ajit Singh (MN. 04), Mr. Shiv Kumar Gupta (MN. 145) were shown as elected members of Managing committee. Two female members namely Ms. Madhu Bala (MN. 166) and Ms. Rita Devi (MN.176) were shown elected as members of the Managing Committee. He filed the election report alongwith the proceedings, nomination forms and other documents to the office of Asstt. Registrar (NW) on February 17, 2004. The letter is exhibited as Ex. PW42/C. Though the election had been conducted on March 7, 2004, yet the letter bears the date of February 17, 2004. It appears that it is a typographical error.
(iii) Signatures of A8 is appearing on the said documents at points Q737, Q738, Q741, Q743, Q745 to Q748, Q766/1, Q767/1, Q768/1 and Q769/1. During investigation, the investigating officer had taken the specimen writings/signatures of A8 which were given Mark as S-251 to S276 [Ex. PW101/L (colly)]. As per the record, the said specimen writings/signatures were taken in the presence of independent witness namely Mr. Tek Chand, Sr. Asstt, SBI, LHO, New Delhi. But CBI did not deem it appropriate to examine him during trial. The specimen writings/signatures were proved by investigating officer (PW101), who in his examination-in-chief deposed that he had taken the specimen writings/signatures of A8 in the presence of independent witness Mr. Tek Chand. Though PW101 was cross-examined at length on behalf of A8, yet no question was put to CBI No. 70/2016 (old No. 60/10) Page 83 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) him regarding the said specimen writing/signatures. This shows that specimen writings/signatures Ex. PW101/L were not challenged by A8 during trial. As per the GEQD report (Ex. PW89/B), the author of above said specimen writings and questioned writings was one and the same person. This establishes that A8 was the person who conducted the alleged election and submitted his report. Moreover, A8 in his examination recorded under Section 313 Cr.P.C did not dispute regarding holding of the election; rather he took the plea that since he was promoted from class-IV, he was not well conversant with the provisions of DCS Act and Rules. This further establishes that A8 had conducted the election and submitted his report.
51. As per the election report, Mr. Dinesh Kumar (MN.
156), Mr. Mukesh Kumar (MN. 148) were elected as President and Vice President respectively whereas Mr. Ajay Kumar (MN. 180), Mr. Ajit Singh (MN. 04), Mr. Shiv Kumar Gupta (MN. 145), Ms. Madhu Bala (MN. 166) and Ms. Rita Devi (MN.176) were shown elected as members of the Managing Committee.
(i) As already discussed that as per the testimony of PW49, Mr. Mukesh Kumar (MN. 148); as per the testimony of PW58, Mr. Dinesh Kumar (MN. 156); as per the testimony of PW64, Ms. Madhu Bala (MN. 166); as per the testimony of PW81, Mr. Ajay Kumar (MN. 180); as per the testimony of PW32, Mr. Ajit Singh; as per the testimony of PW27, Mr. Shiv Kumar Gupta (MN. 145) as per the testimony of PW22 and PW79 Ms. Rita Devi (MN. 176) were not found residing at the addresses mentioned in the membership list. During trial, no contrary evidence is produced on record. This establishes that CBI No. 70/2016 (old No. 60/10) Page 84 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) the above said elected members were fictitious members and due to that reason they were not found residing at the given addresses.
(ii) As per the report submitted by A8, he had also submitted the original nomination papers filed by the candidates. The signatures of such candidates and their proposers are appearing at point Q749 to Q765.
(iii) As per the report Ex. PW89/B, the author of Q750, Q755, Q760 was accused Gokul Chand Aggarwal (A6). Since Q750, Q755 and Q760 were purportedly signed by Mr. Dinesh Kumar; Mr. Ajay Kumar and Mr. Shiv Kumar Gupta respectively, this establishes that the said nomination forms were also signed by accused Gokul Chand Aggarwal.
(iv) As already discussed that as per the Agenda notice, the nomination forms were required to be collected and submitted either by the candidates or by the Proposer or Seconders; it means that the nomination forms were collected and submitted by A6 himself.
(v) In the Agenda notice, it was also specifically mentioned that the members shall bring the proof of identification such as Passbook of the society; driving license; identity-card issued by the Election Commission of India at the time of casting their votes. This shows that without identification documents, members were not entitled to cast their vote. As per the proceedings filed by A8, 38 members participated in the election proceedings. During trial, out of CBI No. 70/2016 (old No. 60/10) Page 85 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) these 38 members, 11 members whose membership were 1, 4, 54, 61, 87, 100, 101, 168, 138, 145, 147 were not found residing at the given addresses. Besides these 11 members, the winning candidates such as Mr. Mukesh Kumar (MN. 148); Mr. Dinesh Kumar (MN. 156), Ms. Madhu Bala (MN. 166) and Ms. Rita Devi (MN. 176) were also found not residing at the given addresses. This shows that not only the members who were purportedly participated in the election but also the winning candidates found fake and fictitious as they were not found residing at the addresses mentioned in the membership list.
(vi) From the above, it can safely be culled out that A8 had not conducted any election and his report is false and bogus and due to that reason, he had shown the members as winning candidates despite the fact that they were not found residing at the address mentioned in the membership list. Since, accused Gokul Chand Aggarwal (A6) had forged the signatures of winning candidates such as Mr. Dinesh Kumar, Mr. Ajay Kumar and Mr. Shiv Kumar Gupta, it can safely be culled out that A8 had submitted the false report at the behest of A6.
(vii) Being the election officer, it was the duty of A8 to hold election in accordance with DCS Act and Rules but he failed to do so deliberately and submitted a false report. Submitting a bogus election report is not in the public interest. Since, he had submitted a bogus election report, he abused his official position. As he had submitted the bogus report in order to enable A6 to get the land from DDA at subsidised rate, A8 is liable for the offence punishable under Section 13(1)(d)(iii) of PC Act. No doubt, during trial no cogent CBI No. 70/2016 (old No. 60/10) Page 86 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) evidence has been produced by the CBI to establish that he had submitted a bogus report after taking any monetary gain or valuable thing. But from the circumstances, it can safely be culled out that he must have obtained some pecuniary gain or valuable thing for submitting false report otherwise there was no occasion for him to submit such bogus report. Since, there was a substantial gap between holding of election and registration of FIR, it was not plausible for investigating agency to collect any direct evidence of obtaining of such valuable thing or pecuniary gain. Thus, I am of the considered opinion that CBI has also succeeded to bring home the guilt of A8 for he offence under Section 13(1)(d)(ii) of PC Act.
Common contentions regarding sanction qua A4, A7 and A8 under Section 19 of the PC Act:-
52. Learned counsel appearing for A4 and A7 contended that sanction under Section 19 of PC Act qua them is not valid as the same had been accorded by the persons who were not competent to remove them from their services. It was further contended that sanction qua them were accorded in a mechanical manner without going through the documents such as the file of the society in question. It was further contended that sanction qua them were accorded at the behest of CBI as they just put their signatures on the draft sanction sent by the investigating agency.
(i) Learned counsel appearing for A8 contended that sanction qua A8 is also invalid as the same was accorded without application of mind and without going through the relevant record.
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53. Per contra, learned Sr. Public Prosecutor appearing for CBI refuted the said contentions by arguing that the sanction qua the above said accused persons are in accordance with law and there is no defect in the sanction.
54. Before dealing with the contentions raised by counsel for the accused persons, I deem it appropriate to refer Section 19(1) and 19(2) of the PC Act, which reads as under:-
Previous sanction necessary for prosecution-
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be CBI No. 70/2016 (old No. 60/10) Page 88 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
55. Bare perusal of sub-section (1) to Section 19 makes it clear that sanction can be accorded by the Central Government, if the concerned employee is employed in connection with the affairs of the Union. If the concerned employee is employed in connection with the affairs of the State, sanction qua such employee can be accorded by the State Government. In respect of other employees, sanction can be accorded by the authority competent to remove such persons from their office. There is nothing in sub-section (1) to Section (19) of the Act that the Government or the authority must be competent to remove such employee on the date of commission of alleged offences. It is sufficient if Central Government or the State Government or the authority as the case may be, is competent to remove such employee from his present post. However, in case of any doubt; whether sanction qua such employee should be accorded by Central Government or State Government or any other authority, in such a case sanction should be accorded by the government or the authority, which was competent to remove such employee from his office at the time of commission of the alleged offence. In other words, the competence of authority is required to be looked into where there is a dispute about the competence of Government or the authority qua any particular employee. Indisputably, in the instant case, there is no such dispute among the authorities.
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56. PW86 in his cross-examination categorically deposed that he was competent to remove A4 at the time of according the sanction. Similarly, PW98 deposed that she did not know who was competent to remove A7 at the time of commission of alleged offences but categorically deposed that she was competent to remove him at the time of according the sanction. There is nothing on record, which may show that there was any dispute regarding the competence of PW86 and PW98 that they were not competent to remove A4 and A7 from their respective offices at the time of according sanction. In these circumstances, I do not find any substance in the contention raised on their behalf that since PW86 and PW98 were not competent to remove A4 and A7 from their respective offices, they were not competent to accord sanction qua them.
(i) PW86 further deposed that before according the sanction qua A4, he had gone through the SP report, calender of evidence and the statement of witnesses. Similarly, PW98 deposed that before according sanction qua A7, she had gone through the documents collected by the investigating agency and sent by the CBI. This itself shows that they had accorded sanction after going through the documents placed by the investigating agency before them. Accordingly, I do not find any substance in the contention that they had accorded the sanction in a mechanical manner. No doubt, PW86 admitted that CBI sent a draft sanction at the time of seeking sanction qua A4 and the same is Ex. PW86/DA. But mere fact that CBI had sent a draft sanction does not mean that the sanction was accorded by PW86 without application of mind.
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(ii) PW85 deposed that he had accorded sanction qua A8 and before according the sanction, he had carefully gone through the police report, statement of witnesses and other relevant documents, this establishes that he had accorded sanction after applying his mind. He categorically denied the suggestion that any draft sanction was sent by the CBI or that he had accorded the sanction on the basis of draft sanction.
(iii) The sanction order qua A8 is Ex. PW85/A; sanction order qua A4 is Ex. PW86/A and order qua A7 is Ex. PW85/B.
57. In this regard, I deem it appropriate to refer the observations made by the Apex Court in case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926 wherein Apex Court held that an order of sanction or valid sanction can be proved by the Sanctioning Authority in two ways either:-
(a) By producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or
(b) By adducing evidence aliuned to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at, by it.
(i) In the instant case, prosecution has not only examined the persons, who accorded the sanction, but prosecution also produced the original sanction orders. Thus, I do not find any reason to disbelieve the testimony of sanctioning authorities.
(ii) Apex Court in the case title State of Maharashtra CBI No. 70/2016 (old No. 60/10) Page 91 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Vs Mahesh G. Jain, criminal appeal No. 2345 of 2009 decided on May 28, 2013 summed up the Principles and guidelines which are required to be followed to decide the question which inundates the trial Court, challenging the sanction order. Hon'ble Apex Court after appreciating earlier precedents on the subject had culled out the guiding Principles in Para 13 of the judgements, which are reproduced as under:
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an administrative function and the sanctioning authority is required to prima-facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction Order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite, as it CBI No. 70/2016 (old No. 60/10) Page 92 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
(iii) In Bhagwan Jathya Bhoir Vs State of Maharashtra, 1992 Crl. L. J. 1144 (Bombay), it was held by High Court of Bombay that procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper. Same view was taken by High Court of Madras in K. Nachimuthu Vs State 1994 Crl.
L. J. 2760.
(iv) In view of the law laid down in the aforesaid matter, I do not find any substance in the contentions raised by counsel for the accused persons.
58. Now coming to the judgement State through CBI vs. Ravinder Singh (supra), upon which strong reliance has been placed by learned defence counsel.
(i) In the said case, sanction was declared invalid as sanctioning authority deposed in the Court that apart from the CBI report, no other material was placed before him at the time of obtaining sanction and further testified that he did not remember whether he had seen the statement of witnesses and documents at the time of accorded sanction. However, in the instance case, CBI No. 70/2016 (old No. 60/10) Page 93 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) witnesses categorically deposed that the CBI had not only placed S.P. report but also placed calender of evidence and statement of witnesses and they further testified that they had accorded sanction after going through the documents placed by the CBI. Thus, to my mind the said judgment is also not helpful to the accused in any manner.
Findings qua A1, A2 and A3:-
59. Indisputably, Narayan Diwakar (A1) was working as Registrar Cooperative Societies whereas Daya Nand Sharma (A2) was working as Assistant Registrar (NW) and Narayan Dutt Kaushik (A3) was working as Dealing Assistant/Inspector Grade-III at the relevant time. Since, their roles are inter-connected to each other, I deem it appropriate to discuss their roles together.
(i) Though during the course of arguments, learned Sr. Public Prosecutor appearing for CBI fairly conceded that there is no other evidence against the above said accused persons except the fact that they had dealt with the file at the relevant time while discharging their duties being the public servants, yet I deem it appropriate to discuss their role in detail.
(ii) As already discussed that an application dated September 14, 2003 (Ex. PW56/D) was submitted in the office of RCS (NW) with a request to cancel the winding up order and allow the society to function. The said application was assigned by A2 to A3. Accordingly, A3 put up the application on file on September 22, 2003 CBI No. 70/2016 (old No. 60/10) Page 94 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) with the following recommendations:-
"Finally the Secretary of the society has requested for the revival of the society u/s 63(3) of DCS Act, 1972. In this connection it is submitted that the main file of the society is not available with the Zone. And it might have tied up/lying with other zones. In the first instance, we may issue circular to all the branches/zones to search/trace the same and if found it may be returned to this zone."
(iii) The said note was forwarded by A2 being the AR (NW) to the Joint Registrar, who forwarded the same to the RCS on September 30, 2003. RCS approved the same on October 1, 2003 and sent the said file back to Joint Registrar who sent the file back to AR. Since, the note of Dealing Asstt. was approved by the RCS, a circular was issued.
(iv) Thereafter, on October 14, 2003, A3 put up another note (Ex. PW56/B) stating that circular dated October 6, 2003 was issued to all the branches. But till date, no reply has been received, accordingly he sought an approval to conduct an inquiry under Section 54 of DCS Act 1972. On the said note, AR directed A3 to wait for one more week.
(v) Thereafter, A3 again put up the file on November 3, 2003 with the following recommendation:-
"Since elapsed of one week, as directed, nothing has been heard/received from the branches regarding the availability of the said file. If agree, we may conduct an enquiry u/s 54 of DCS Act, CBI No. 70/2016 (old No. 60/10) Page 95 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) 1972 to know the existence and functioning of the Society and construct the file from the record available with the Society."
(vi) With this note, file was put up before A2, who made following recommendation to the Joint Registrar:-
"May kindly see the note from previous page. If approved, Sh. U. S. Bhatnagar, Grade-III Inspector may be appointed to conduct the enquiry u/s 54 of the DCS Act, 1972 in this case."
(vii) The file was forwarded by Joint Registrar to the RCS who put his signature and sent back the file to the Dealing Asstt. through proper channel.
(viii) Since, the name of Mr. U. S. Bhatnagar was approved by the RCS, he was appointed as an Enquiry Officer vide order dated November 7, 2003 (Ex. PW72/B).
(ix) Though the file was also dealt with by Joint Registrar but he was not made an accused. On being asked, during the course of arguments, learned Sr. Public Prosecutor fairly conceded that till date no criminality was made out against any of them as they acted in one of the reasonable manners.
(x) On receipt of report from A4, A3 again put up the file on November 19, 2003 wherein he produced the report of A4 and at last made the following recommendations:-
CBI No. 70/2016 (old No. 60/10) Page 96 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) "In view of the above and the inspection report u/s 54 of DCS Act, 1972 submitted by the Inspecting Officer. We may request the competent Authority to consider the following:-
(1) For revival of the society u/s 63(3) of DCS Act, 1972.
(2) To approve the freeze strength of 147 members for onwards transmission to DDA for allotment of land."
(xi) The file was cleared by A2 on November 20, 2003 and it was sent to Reader to RCS directly. Reader to RCS made the following recommendation:-
"The inspection u/s 54 of the Delhi Cooperative Societies Act, 1972 was conducted by Sh. U. S. Bhatnagar, GR-III/Enquiry officer of this department and submitted his favourable report on November 12, 2003, which may be seen at page no. 168/C and duly signed by Zonal AR. In these connection it is submitted that necessary administrative approval has already been obtained from the competent authority.
As per Section 63(3) of Delhi Cooperative Societies Act, 1973 The registrar may cancel an order for the winding up of a co-operative society at any time, in any case where, in his opinion, the society should continue to exist.
If approved, we may issue notice u/s 63 (3) of the DCS Act, 1972 to the President/Secretary of the society for initial hearing on December 9, 2003 in the Court of Worthy RCS."
(xii) The said recommendation was approved by RCS CBI No. 70/2016 (old No. 60/10) Page 97 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) on November 21, 2003.
(xiii) Thereafter, on December 9, 2003 Ms. Sweta Mishra, Advocate on behalf of society appeared. A1 directed the Reader to send the file to the concerned Zone for verification of membership and to ascertain audit/election position of the society. Accordingly, matter was adjourned to January 6, 2004.
(xiv) Thereafter on January 2, 2004, A3 being the dealing assistant put up a detail note running into 9 pages wherein he highlighted the contents of the application of the society, report of A4 and inspection of the society record as directed by the RCS on December 9, 2003. It was also highlighted that since 41 members had resigned prior to June 30, 1986, no approval was required qua them and it was further highlighted that since 48 members had been enrolled prior to June 30, 1986, no approval qua them is also required. The strength of the society was mentioned as 147. It was also highlighted that Secretary of the society and members had filed their affidavits. It was further highlighted that the accounts of the society had been completed till March 2003 and election had been held lastly on August 17, 2003. It was further highlighted that President and Secretary of the society had given declaration through their affidavits to abide by the statuary obligation cast upon them. At last, A3 made the following recommendations:-
"In view of the above stated facts we may request the Worthy RCS to consider the following:-
a) Request for revival of the society u/s 63(3) of CBI No. 70/2016 (old No. 60/10) Page 98 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) DCS Act, 1972.
b) Approval of the Freeze list of 147 members (placed at P159/C to P163/C) for allotment of land.
(xv) On the above said note, A2 made the following recommendations on January 5, 2004:-
"The affidavits of the MS 147 members scrutinized mentioned at page no. 11/N to 14/N may be taken on record and the request of the society may be considered u/s 63(3) of the DCS Act. The documents placed in the file have been verified with original record placed by the society and copies of the relevant documents have been received.
(xvi) With these recommendations A2 sent the file to the Reader of RCS on January 5, 2004.
(xvii) On January 6, 2004 the file was placed before RCS. On that day society was represented by Mr. S. P. Mehta, Advocate. After hearing the matter, A1 again sent the file to the concerned zone with direction to conduct physical verification as well as door to door survey of members at random. Matter was adjourned to January 22, 2004.
(xviii) On January 9, 2004, A2 appointed Faiz Mohd to conduct door to door survey for physical verification of members.
(xix) On January 22, 2004, A3 being the dealing Asstt.
again put the following note :-
CBI No. 70/2016 (old No. 60/10) Page 99 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) "May kindly see the physical verification report in respect of the Society submitted by Faiz Mohd. Grade-III in respect of MS 01, MS 04, MS. 026, MS 036, MS. 054, MS.061, MS 063, MS 087, MS 100, MS101, MS 118, MS 138, MS 143, MS 145, MS 147, The total 15 verification have been completed at the random of 147 members."
(xx) On the said note, A2 made the following recommendation:-
"Physical verification of fifteen cases have been completed out of 147 member."
(xxi) With these notes, file was sent to Reader to RCS on January 22, 2004.
(xxii) On January 22, 2004 Ms. Rita Kaul, Advocate appeared on behalf of society. A2 also appeared before RCS and informed RCS about the physical verification of members conducted by the Inspector. After hearing the parties, matter was kept for order. Thereafter, on January 29, 2004 revival order was passed by A1.
60. First question arises whether the issuance of circular to the branches/zones to trace the main file or to conduct inspection under Section 54 of the DCS Act to ascertain the actual position of the society was contrary to any provision of DCS Act or Rules or the same was arbitrary?
(i) During the course of arguments learned Sr. Public CBI No. 70/2016 (old No. 60/10) Page 100 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Prosecutor appearing for CBI failed to point out any provision either from DCS Act or Rules that the above said procedure was contrary to the provision of either DCS Act or DCS Rules. Learned Sr. Public Prosecutor appearing for CBI fairly conceded that when the main file was not traceable, the first step was required to trace the file by issuing a circular to all the zones/branches. Thus, to my mind, it cannot be said that the order for issuance of circular was either arbitrary or contrary to any provision of DCS Act or DCS Rules.
(ii) Needless to say that under Section 54 of the DCS Act, RCS has ample power to check or inspect any record of the society. When A1 approved the proposal to conduct an inquiry under Section 54 of the DCS Act, it cannot be said that there was any malafide intention on his part. Rather, spot verification would help the RCS to ascertain the actual activities of the society. Moreover, it is not a case of the CBI that society in question was not registered with the registration number as mentioned in the application.
61. In view of the aforesaid discussion, I am of the considered opinion that no criminality can be imposed upon RCS officials i.e. A1 to A3 when they proposed, recommended or approved the proposal for issuance of circular and inquiry under Section 54 of the DCS Act.
62. From the above said notes, it becomes crystal clear that A3 had put up proposals as per the reports submitted by A4 and A5 and inspection of the record. Except that there is no other allegation against A3. There is no iota of evidence to establish that A3 CBI No. 70/2016 (old No. 60/10) Page 101 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) had put up the file as he was in conspiracy either with A6 or any other office bearer of the society. Mere fact that A3 put up the file being the dealing assistant is not sufficient to hold that he was in conspiracy either with A6 or any other accused person. During the course of arguments, learned Sr. Public Prosecutor appearing for CBI also fairly conceded that there is no iota of evidence against A3 except the fact that he had put up the file from time to time being the dealing assistant. Indisputably, there is nothing on record which may show that A3 either knew or having reasons to believe that A4 and A5 had submitted a false report at the behest of A6 without conducting any inspection and verification. In these circumstances, mere fact that A3 had put up the file before his senior officers from time to time being the dealing assistant is itself not sufficient in any manner to impose any criminal liability. Similarly, there is no iota of evidence to establish that A3 had obtained any pecuniary gain or valuable thing either from A6 or from any other person for performing his acts in this case. Needless to say being the dealing assistant, it was his duty to put up the file with all relevant facts, which he had done in the instant case. Even, there is no allegation that he had deliberately concealed any relevant fact from his seniors while putting up the file from time to time. In these circumstances, I am of the considered opinion that the evidence led by CBI are not sufficient to bring home the guilt of A3 for criminal misconduct as defined under Section 13(1)(d) of PC Act.
(i). In view of the aforesaid discussion, I am of the considered opinion that CBI has failed to bring home the guilt of A3 beyond the shadow of all reasonable doubts, thus, I hereby acquit him from all the charges.
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63. Now coming to the role attributed to A1.
(i) The main allegation against A1 is that he had dishonestly marked the attendance of advocate on December 9, 2013, January 6, 2004 and January 22, 2004 as he was in conspiracy with A6. In order to prove this allegation, CBI has placed reliance on the deposition of PW54 Mr. S. P. Mehta, Advocate, PW55 Ms. Sweta Mishra, Advocate and PW95 Ms. Rita Kaul, Advocate.
(ii) PW54 Mr. S. P. Mehta and PW55 Ms. Sweta Mishra in their examination-in-chief categorically deposed that they had never appeared before the RCS in the present case. They further deposed that they used to file vakalatnama in a case in which they appeared before the RCS on behalf of their client and since in the present case since they had never appeared before RCS, they had not filed vakalatnama in this case.
(iii) From the deposition of PW54 and PW55, it can safely be culled out that they had not filed their vakalatnama in this case and they never appeared before RCS in this matter.
64. Now question arises whether this is sufficient to establish any conspiracy or criminality on the part of A1.
(i) On December 9, 2003, A3 had sent the file back to the concerned zone for verification of the particulars to ascertain the audit/election position of the society. Similarly, on January 6, 2004, A1 had sent the file back to the concerned zone for physical verification CBI No. 70/2016 (old No. 60/10) Page 103 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) as well as door to door survey of members at random. This clearly shows that on the said dates, A1 had not passed any favourable order to the society. Rather, he sent the file back to the concerned zone for further inquiry. Had A1 be in conspiracy, he would not have passed such order; rather he would have passed some favourable order to the society but it is not so. Further, we should also keep in mind that some times advocates appear on behalf of the party even without filing their vakalatnama. Mere fact that A1 had recorded the name of PW54 and PW55 in the file is itself not sufficient to hold that he had marked their attendance dishonestly or with some malafide intention.
(ii) As per the proceedings recorded on January 22, 2004 society was represented by Ms. Rita Kaul, Advocate. She graced the witness box as PW95. In her examination-in-chief, she deposed that she did not remember whether she appeared before RCS in this matter or not. No doubt, she also deposed that whenever she appeared on behalf of any society before the RCS, she used to file her vakalatnama on behalf of her client. However, in her cross- examination she deposed that she used to appear regularly before the RCS and some time she also used to appear before the RCS without filing vakalatnama on behalf of the request of her colleague. This shows that PW95 did not dispute categorically that she did not appear before RCS on January 22, 2004.
(iii) In these circumstances, it cannot be said that A1 dishonestly marked her attendance in the proceeding recorded on January 22, 2004.
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(iv) It is undisputed fact that the name of A4 was recommended by A2 and the same was firstly approved by Joint Registrar and then it was finally approved by A1 being the RCS. Thus, it cannot be said that A1 had any dishonest intention while approving the name of A4 to conduct inspection u/s 54 of the Act.
(v) Similarly, A1 had not recommended the name of A5 to conduct physical verification of members; rather he sent the file to the concerned zone with direction to conduct physical verification as well as door to door survey of the members. Thereafter, A2 entrusted the said work to A5. Thus, it cannot be said that A1 had any dishonest intention when he sent the file to the concerned zone for physical verification as well as door to door survey of members of the society at random.
(vi) There is nothing on record which may show that A1 had any knowledge or reason to believe that A4 and A5 had submitted false and bogus report in favour of the society while conducting any inspection and verification.
65. Now question arises whether the revival order dated January 29, 2004 is an arbitrary order?
(i) Perusal of the revival order dated January 29, 2004 reveals that it runs into more than 4 pages. Initially A1 mentioned the facts. Thereafter, he recorded the submissions of counsel appeared for the society and then submissions of Assistant Registrar (NW). It was also pointed out by the Assistant Registrar (NW) that since CBI No. 70/2016 (old No. 60/10) Page 105 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) liquidation proceedings were not finalized, action initiated under Section 63 of the DCS Act became a nullity and recommended for revival of the society. After considering all the facts and submissions of the parties, A1 passed the following order:-
"I have gone through the submissions made and affidavits filed by the President and Secretary of the Society and the report submitted by the Asstt. Registrar (N/W). It was mentioned during the course of proceedings that the winding up order passed by the then Dy. Registrar, was not in accordance with laid down procedure, while winding up the Society as the reasons given were not adequate for initiating such an extreme step leading to the winding up of the Society. If there was any mismanagement in the Society, it was appropriate to first initiate action u/s 32 of DCS Act, 1972 for placing the Society under supercession for setting right the working of the Society and then restoring the cooperative management. Such orders for winding up of a Society without proper application of mind is not conducive for revitalization and restrengthening of the cooperative movement in Delhi. Moreover, during the course of arguments, the counsel of the Society also mentioned that Dy. Registrar, who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such an order as only the Registrar is competent to decide the matter u/s 63. There is also nothing on record to show that such powers u/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time this order was passed, a large number of Societies were wound up in a mechanical manner without any valid and convincing reasons. It also appears that the Society was not given sufficient opportunity either to reply to the SCN issued to the Society or to rectify the shortcomings mentioned in the notice issued by the RCS.
In support of the above contention, it is pertinent CBI No. 70/2016 (old No. 60/10) Page 106 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) to add that vide his Order No. PA/RCS/2000/733-745 dated 7-8-2003, my Ld. Predecessor had issued a detailed instructions regarding the revival of those societies which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons pointed out in the said order. He has further observed in the said order that the societies have been liquidated on very-very trivial matters like non attendance in the office of the Society's representative or non production of records and thereafter liquidation proceedings have been taken up unilaterally. In some cases even communication to Societies has not been sent. It is further observed that all such proceedings where the fate of the members at large is at stake, like those of de-registration u/s 19, liquidation and revival u/s 63 and supercession u/s 32 need to be taken up in a more reasoned manner and after following due process of law, i.e. by giving an opportunity of showing cause to the concerned Managing Committee of the Society and the speaking order has to be passed. In view of this, he directed that "henceforth, all the proceedings u/s 19 & 63 of the DCS Act, 1972 should be taken up in the Court of RCS".
Besides on 18-12-1991, while disposing of an appeal against the winding up order of the Registrar, Cooperative Societies in respect of New Inderprastha CGHS Ltd., u/s 76 of the Delhi Cooperative Societies Act, 1972 (Mrs. Balwinder Kaur and Ors., Appellants Vs. RCS and Ors.), the Hon'ble Lt. Governor had observed as under:
"I am inclined to agree with the submissions made by the Ld. Counsel for the appellants that the winding up of a Society is an extreme step and should be used as a last resort. In the present case, a liberal view needs to be taken and the Society may be afforded another opportunity for its revival. The Society may be revived under the directions of the Registrar, Cooperative Societies, if CBI No. 70/2016 (old No. 60/10) Page 107 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) necessary, under an Administrator".
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I, N. Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 14-12-90 issued to the Veena Pani Coop, Group Housing Society Ltd., (Regd.
No.596/GH), in exercise of the power vested in me u/s 63 (3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the Veena Pani Coop, Group Housing Society Ltd., (Regd. No. 596/GH) is hereby revived with immediate effect, as the concerned Asstt.
Registrar has already verified the list of 147 members, submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. B.S. Aswal, Gr. IV, of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President/Secretary of the Society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the Society as per law.
66. Now question arises whether the said order is contrary to the provisions of DCS Act or Rules?
(i) Section 63 deals with the winding up of a cooperative society and same reads as under:-
Winding up of co-operative societies:-
(1) If the Registrar, after an inquiry has CBI No. 70/2016 (old No. 60/10) Page 108 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-fourths of the members of a co-operative society, is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up.
(2) The Registrar may of his own motion make an order directing the winding up of a co-operative society:
(a) where it is condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles.
(3) The registrar may cancel an order for the winding up of a co-operative society at any time, in any case where, in his opinion, the society should continue to exist.
(4) A copy of such order shall be communicated by registered post to the society and to financing institutions, if any, of which the society is a member.
(5) Notwithstanding anything contained in this section, no co-operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
(emphasis supplied)
(ii) Under sub-Section (2) (b) to Section 63 of the DCS CBI No. 70/2016 (old No. 60/10) Page 109 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Act, Registrar has discretion to wind up the Society of his own where in his opinion, Society has not commenced working or ceased to function in accordance with cooperative principles. As per revival order, a show cause notice was issued to the society alleging that society failed to hold MC election as provided under Section 29 of the DCS Act. Society failed to convene Annual General Body Meeting; society failed to get verify the final list of the members and accounts of the society had not been audited since registration. Since the society failed to respond the show cause notice, society was put under liquidation vide order dated December 14, 1990. This establishes that the society was put under liquidation in terms of Section 63 (2)(d) of DC Act, 1972 and this fact is also mentioned in the revival order Ex. PW89/B.
(iii) Under Section 66 of DCS Act, Registrar is required to appoint Liquidator after passing the order under 63 of the Act. During trial, CBI failed to produce any evidence whatsoever to establish that any such liquidator was appointed at the time of putting the society under liquidation.
(iv) Under Section 69 of the DCS Act, Registrar is competent to cancel the registration of the Society after considering the report of Liquidator submitted to him under Section 67 (3) of the Act and the Registrar was required to communicate the said order to the President of the Society and its Financial Institution. Indisputably, in the instant case, Registrar has not exercised his jurisdiction under Section 69 of the Act.
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(v) Under Rule 105 of the DCS Rules, 1973, the time limit is prescribed for termination of liquidation proceedings. The Rule reads as under:-
Termination of Liquidation Proceedings:-
The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar:-
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem that the liquidation proceedings have been terminated if there are no central amount due to the Government or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
Explanation: In the case of co-operative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
(2) Notwithstanding anything contained in the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claim of the society CBI No. 70/2016 (old No. 60/10) Page 111 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
(3) The liquidator before submitting the final report may call a meeting of general body of the society and place the report before it if permitted by the Registrar.
(emphasis supplied)
67. Bare perusal of DCS Rule 105 makes it clear that the winding up proceeding is required to be closed within one year from the date of winding up order unless the time is extended by the Registrar. From the proviso to sub-Rule (1), it becomes crystal clear that the Registrar can extend the time initially for six months and maximum to the period of three years. However, after the expiry of period of three years, Registrar has no power to extend the time and in that circumstances, the liquidation proceedings shall be deemed terminated provided if, there is no central amount due towards government or Financial bank by the Society. Admittedly, in the instant case, there is no evidence on record that any such amount was due either towards the government or any financial bank, thus the liquidation proceedings were required to be terminated after the expiry of period of three years. Admittedly, in the instant case, the winding up proceeding was not concluded within a period of three years as prescribed under Rule 105 (1) of DCS Rules, 1973, thus the liquidation proceedings shall be deemed to have been terminated after CBI No. 70/2016 (old No. 60/10) Page 112 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) the expiry of period of three years.
(i) It is pertinent to state that during investigation no attempt was made to ascertain the cause of non-completion of liquidation proceedings within a period of three years.
(ii) Under Sub-Section (3) to Section 63 of DCS Act, 1973, Registrar has jurisdiction to cancel the winding up order of a cooperative society at any time where, in his opinion, the Society should continue to exist. In other words, Registrar has jurisdiction to cancel the winding up proceedings even before the expiry of period of three years as mentioned in Rule 105 (1) of DCS Rules, 1973. Though after the expiry of period of three years, no specific order is required to cancel the winding up proceedings because as per Rule 105, the proceedings shall deem to have been terminated. However, from the combined reading of Section 63(3) of DCS Act and Rule 105 of DCS Rule, 1973, it can safely be culled out that the Registrar is competent to cancel the winding up proceedings and to revive the Society even after the expiry of period of 3 years as mentioned under Rule 105 of DCS Rule, 1973.
68. It is admitted case of CBI that the society in question was put under liquidation in the year 1989 and during investigation CBI failed to collect any evidence whatsoever to establish that the liquidation proceeding was completed within the period of three years or that liquidator had made any recommendation or that the Registrar had exercised his jurisdiction in terms of Section 69 of the DCS Act. Since the liquidation proceedings were not CBI No. 70/2016 (old No. 60/10) Page 113 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) concluded within a period of three years, in terms of Rule 105, liquidation proceedings shall deem to have been terminated. In other words, in terms of Rule 105 of the DCS Rule, 1972, even there was no requirement to pass the revival order. Perusal of the revival order also reveals that the concerned Zonal AR submitted before the RCS that in the absence of finalization of liquidation proceedings; action initiated under Section 63 of DCS Act, 1972 had become a nullity and case was recommended for revival.
69. Further, at the time of reviving the society, A1 had given the reference of order dated August 7, 2003, passed by his Ld. predecessor wherein detailed instructions regarding revival of those societies, which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons as pointed out in the said order, were issued. But during investigation no attempt was made to file the said order and no attempt was made how the revival order in question is contrary to the directions contained in the said order.
(i) At the time of passing the revival order, A1 had also placed reliance on in the case titled Mrs. Balvinder Kaur & Ors. vs. RCS & Ors. wherein Lt. Governor held that winding up of the society is an extreme step, accordingly, it should be used as a last resort. But there is nothing on record which may show that in the instant case winding up order under Section 63 was passed as a last resort or not as during investigation CBI also failed to seize the original file of the society.
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(ii) In case title Vikas Cooperative Group Housing v. Registrar Cooperative (supra) High Court of Delhi interpreted the Rule 105 as under:-
"From a reading of the above Rule (105), it is clear that after an order for winding up of a society is passed the winding up proceedings are to be closed within one year of the date of the order of the winding up, unless the period is extended by the Registrar. The proviso to sub- rule (1) provides that the Registrar cannot grant extension for a period exceeding six months at a time and that period in aggregate cannot exceed three years and on the expiry of three years from the date of the order for the winding up of the society that liquidation proceedings are to be deemed to have been terminated, and an order to that effect has to be passed by the Registrar."
(iii) In view of the law laid down by the High Court of Delhi in Vikas Cooperative Group Housing (supra), it can not be said that the revival order passed by A1 was contrary to the provisions of DCS Act or DCS Rules.
70. Indisputably, there is no evidence whatsoever on record that A1 had any knowledge or reason to believe that his subordinates i.e. A4 and A5 had submitted a false report in favour of the society. As already stated that even there is no evidence on record that the said officials were appointed at the instance of A1. In the absence of any such evidence, mere fact that A1 had acted on the basis of their reports as summarized in the note Ex. PW91/A , is not sufficient to impose any criminal liability against A1. As already stated that A1 had not acted in haste as A1 had not passed the revival order CBI No. 70/2016 (old No. 60/10) Page 115 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) just on receipt of favourable report from A4. Rather, he directed for further scrutiny of the case and further directed to verify the original documents and spot verification of the members and thereafter, he had given a personal hearing to the representative of the society and after going through all the facts placed before him, he passed the revival order in question. Mere fact that A1 had passed the revival order, in the absence of any other cogent evidence, I am of the view that passing of revival order is itself not sufficient to impose any criminal liability.
71. Further perusal of revival order reveals that A1 had revived the society subject to the condition that the pending audit shall be completed within two month's time. Besides that he also appointed Mr. B. S. Aswal as Election officer to conduct election within two months from the date of order with direction that President/Secretary of the society shall cooperate with the Election officer failing which action shall be initiated against the society. This further shows that A1 had not passed any blanket order; rather the revival order was subject to completion of audit. He also appointed Election officer to ensure that members may elect their office bearers in accordance with the DCS Act/Rules.
(i) From the notings and the revival order, it has been clearly established that A1 had not acted in haste; rather he preferred to hold a detail inquiry before passing the revival order. Firstly, an enquiry was got conducted under Section 54 of DCS Act. Thereafter, it was directed to conduct physical verification of members and door to door survey at random basis. When all the reports were in favour of CBI No. 70/2016 (old No. 60/10) Page 116 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) the society, he passed a detail reasoned revival order, which was also subject to the condition of completion of audit of the accounts of the society within two months. At last, he also appointed the Election officer to enable the members of society to elect their office bearers.
(ii) In these circumstances, I am of the considered opinion that it can not said that either the revival order was arbitrary or in violation of any provisions of DCS Act or Rules.
72. The next main allegation against A1 is that he used to remain in touch with A6 and in order to prove it, CBI placed reliance on the CDRs of mobile phone of A1.
(i) PW78 Mr. R. K. Singh was a Nodal officer. He deposed that the mobile phone bearing no. 9871789595 belonged to Mr. Gokul Chand Aggarwal r/o A-603, Ashoka Apartment, Section-9, Rohini and further testified the mobile connection bearing no. 9818479140 belonged to Narayan Diwakar r/o G-30, Masjid More, Greater Kailash, Part-II, New Delhi. He further deposed that the call records Ex. PW78/B and Ex. PW78/C belonged to the mobile phone of Gokul Chand Aggarwal for the period January 1, 2005 to January 31, 2006 whereas the call detail Ex. PW78/D belonged to the mobile phone of Narayan Diwakar for the period January 1, 2005 to June 30, 2005. He further deposed that he had issued the certificate under Section 65B of Evidence Act and same is Ex. PW78/F.
(ii) Since, in the CDR, there are certain calls made from the mobile phone of A1 to the mobile phone of A6, CBI intends to CBI No. 70/2016 (old No. 60/10) Page 117 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) establish that since there was a conspiracy between them, they used to talk with each other on their mobile phones.
73. Now question arises whether any reliance can be placed on the CDRs and the certificate issued under Section 65B of Evidence Act?
(i) Perusal of the CDRs and certificate reveals that all are undated. There is no document on record to show that CBI had ever asked the service provider to furnish the above said call details. CBI did not deem it appropriate even to place a copy of the letter, which they allegedly sent to the service provider for supply of the above said CDRs. Similarly, the service provider also did not deem it appropriate to put the date on the said CDR to show the date when the same were generated. Similarly, there is no forwarding letter through which the said CDRs were allegedly supplied to the CBI. It is highly unbelievable that the service provider would provide the CDRs of any subscriber to any investigating agency without any forwarding letter or without any written request from the investigating agency.
(ii) Though PW78 deposed that the mobile phone connection bearing no. 987189595 was issued in the name of Gokul Chand Aggarwal (A6), whereas mobile connection bearing no. 9818479140 issued in the name of N. Diwakar. But during his deposition, he failed to produce any such record. Even CBI did not deem it appropriate to file the customer application form of the above said connections. Even in the said CDRs, the name of subscriber is not mentioned. Even in the certificate issued under Section 65B of CBI No. 70/2016 (old No. 60/10) Page 118 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Evidence Act, the name of subscriber is not mentioned. In other words, there is no cogent evidence on record to establish that the above said connections were issued in the name of above said accused persons.
(iii) No doubt, PW78 deposed that he had issued the certificate Ex. PW78/F but surprisingly there is no date below his signature. Even it is not clear how the said certificate was furnished as there is no forwarding letter. As already stated that it is highly improbable that a service provider would communicate with the Law Enforcing Agency without any written request or without any letter. Moreover, there is no explanation either from the witness or the prosecution why all these documents are undated. Since, all the documents are undated, it cast a reasonable doubt about the manner in which they were come on record.
(iv) Further the said CDRs belonged to the period January 1, 2005 to January 31, 2006. It is undisputed fact that A1 had retired from the service on June 30, 2004 and this fact is admitted by PW101 in his cross-examination. It is also undisputed fact that the application was moved on September 14, 2003 for revival of the society whereas the revival order was passed on January 29, 2004. If there was any conspiracy between A1 and A6, it must be formed either prior to September 14, 2003 or during the period September 14, 2003 to January 29, 2004. But CBI failed to place the CDRs of mobile phones of the above said accused persons for the above said period. Since, the above said CDRs pertained to the period after completion of the conspiracy, if any, I am of the considered opinion that the said CBI No. 70/2016 (old No. 60/10) Page 119 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) CDRs are otherwise not relevant to prove the conspiracy between A1 and A6.
(v) In view of the foregoing discussion, I am of the considered opinion that the above CDRs are not sufficient to prove the conspiracy between A1 and A6.
74. During trial, CBI failed to produce any other cogent evidence to establish the fact that A1 had passed the revival order pursuant to any conspiracy with A6. Similarly, CBI also failed to adduce any evidence to establish the fact that A1 had either obtained any pecuniary gain or valuable thing either for himself or for any other person for the acts performed by him being the RCS in the present matter. In the absence of any such evidence on record, I am of the considered opinion that the evidence led by the CBI are not sufficient to bring home the guilt of A1 beyond the shadow of all reasonable doubts, accordingly I hereby acquit him from all the charges.
75. Now coming to the role attributed to Daya Nand Sharma (A2).
(i) Indisputably, he was posted as Assistant Registrar (NW). As already discussed that he had forwarded the notes of dealing assistant from time to time being the AR. He is the person who recommended the name of U.S.Bhatnagar (A4) to conduct inspection under Section 54 of the DCS Act; he is the person who appointed Faiz Mohd. to conduct physical verification of the members; he is the person who recommended the RCS to consider the request of society CBI No. 70/2016 (old No. 60/10) Page 120 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) for revival. He is the person who informed the RCS that since liquidation proceedings have not been finalized, the action initiated against the society under Section 63 of the DCS Act had become a nullity and recommended for revival of the society. But all these actions do not prove ipso-facto any malafide intention on his part as there is no iota of evidence to establish that there was any malice on his part while recommending the name of A4 for conducting inspection under Section 54 of DCS Act or assigning the job of physical verification of members at random to A5. Similarly, there is no evidence on record to show that there was any malice on the part of A2 when he recommended the case of the society for revival before the RCS.
(ii) As already discussed that revival order was passed subject to the condition that the pending audit of the society shall be got completed within two months' time. The effect of imposing the said condition was that the said revival order shall come into force only after completion of the audit of the account of the society and not prior to that. Indisputably, the revival order was passed on January 29, 2004 and copy of this order was also sent to AR (Audit). But surprisingly, A2 had sent the list of 147 members to the AR (Policy) on the very next day i.e. January 30, 2004 with a request to send the freeze list of 147 members of the society to DDA for allotment of land.
(iii) Admittedly, even A2 did not deem it appropriate to send the copy of revival order to the AR (Policy). It means that AR (Policy) had no occasion to come to know that the revival order was passed subject to the completion of pending audit. During trial, A2 CBI No. 70/2016 (old No. 60/10) Page 121 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) failed to furnish any explanation whatsoever why he had sent the list of 147 members to the AR (Policy) with a request to send the same to DDA for allotment of land while there was no such direction and revival order was subject to completion of pending audit. In the absence of any explanation from A2, the said conduct of A2 establishes that he must have some malice at the time of sending the list to AR (Policy) otherwise there was no occasion for him to violate the condition of revival order.
(iv) By sending the list of 147 members to AR (Policy) in violation of the revival order, A2 abused his official position as he was not supposed to send the list of members to AR (policy) unless and until the pending audit was got completed by the society. No doubt, there is no cogent evidence on record to establish that A2 had taken any pecuniary gain or valuable thing while sending the list of 147 members to AR (Policy), but it should keep in mind that there is huge gap between the act of A2 and registration of FIR. Due to the said huge gap, it was not plausible for the investigating agency to get any direct evidence to prove the fact that he had obtained any pecuniary gain or valuable thing at the time of sending the list of members to AR (Policy). However, from the circumstances, it can safely be culled out that he must have obtained some pecuniary gain or valuable thing while sending the list in violating the condition of revival order. Accordingly, I am of the view that A2 is liable for the offence punishable under Section 13(1)(d)(ii) of PC Act.
(v) Sending the list of members in violation of the condition of revival order was not in the public interest. Since by CBI No. 70/2016 (old No. 60/10) Page 122 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) sending the list of members to AR (Policy), A2 facilitated A6 to get land from DDA at subsidised rate, he is also liable for the offence punishable under Section 13(1)(d)(iii) of PC Act.
(vi) In view of the aforesaid discussion, I am of the considered opinion that CBI has succeeded to bring home the guilt of A2 for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13(1)(d)(iii) of PC Act.
76. Now question arises whether there was any conspiracy between A6 on the one hand and A2, A4, A5, A7 and A8 on the other hand.
(i) In case State of Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 617, Apex Court dealt with the issue of conspiracy in detail. The relevant portion is reproduced as under:-
49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by CBI No. 70/2016 (old No. 60/10) Page 123 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) one or more parties to agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are:-
(I) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means:CBI No. 70/2016 (old No. 60/10) Page 124 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and by providing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v/s. State (Delhi Administration) MANU/SC/0241/1988; 1988 (3) SCC 609 at 731. this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol.1);
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi vs. Navjot Sandhu @ Afsan Guru MANU/SC/0465/2005; (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the CBI No. 70/2016 (old No. 60/10) Page 125 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
We may also notice that in Ram Narayan Popli vs. CBI MANU/SC/0017/2003: (2003) 3 SCC 641, it was held:-
...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.....
In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra MANU/SC/7528/2008: (2008) 6 SCALE 469, this Court opined:
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn, It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
Ex. Facie, there is no material to show that a CBI No. 70/2016 (old No. 60/10) Page 126 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) conspiracy had been hatched by the respondents."
(emphasis supplied)
(ii) From the above, it becomes crystal clear that the conspiracy can also be proved by the surrounding circumstances and conduct of the accused persons but the incriminating circumstances must form a chain of events from which conclusion about the guilt of accused persons can be drawn.
(iii) As already discussed that in the instant case A6 was the person who moved an application Ex. PW56/D in the fictitious name of Mr. Ajay Kumar, Secretary of the Society for the revival of the society in question and thereafter, he forged the signatures of various office bearers as well as members of the society. It has also been held that A4 had submitted a false and bogus inspection report without conducting any inspection at the registered office of society i.e. premises B-1428, Shastri Nagar, Delhi-52. Similarly, A5 had submitted a false and bogus physical verification report of 15 members. A7 had submitted a false and bogus audit report without conducting the audit. Similarly, PW8 had submitted the false and bogus Election report wherein he had shown non-existent persons as winning candidates.
(iv) Though A2 had not submitted any false report like other public servants, but he without any explanation sent the list of 147 members to the AR (Policy) with a request to forward the same to DDA for allotment of land while at that time revival order had not even come into effect as it was subject to completion of pending audit. The act of A2 was an undue favour to A6 and by his unwarranted act, he CBI No. 70/2016 (old No. 60/10) Page 127 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) facilitated A6 to get land from DDA at subsidized rate. Though there is no direct evidence to prove the conspiracy between A6 on the one hand and A2, A4, A5, A7 and A8 on the other hand, yet from their acts, it can safely be culled out that they must have acted in the above said manner as they were in conspiracy with A6 otherwise there was no reason for them to act in the said manner. Accordingly, from their conduct, it is established that they were in conspiracy with A6.
77. Now question arises whether separate sanction qua A2, A4, A5, A7 and A8 was required to hold them guilty for the offence punishable under Section 120 B IPC or not?
78. In this regard, I intend to refer some of the judgments of the Apex Courts.
(i) In Amrik Singh v. State of Pepsu AIR 1955 SC 309, the allegations against the accused were that his duty was to disburse wages to workers against their signature or thumb impression in the monthly acquittance roll. It was alleged that he had received the wages of ` 51/- after putting his thumb impression in the said monthly acquittance roll and misappropriated the said amount. Accordingly, he was charge-sheeted for the offence punishable under Section 465/409 IPC. The question of sanction was raised first time before the Apex Court. The moot question arose before the Apex Court whether the sanction under Section 197 (1) Cr. P.C was necessary for the prosecution of appellant under Section 409 IPC or not?
CBI No. 70/2016 (old No. 60/10) Page 128 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
(ii) While dealing with the above said question, Hon'ble Apex Court referred the judgment of Hori Ram Singh v. Emperor AIR 1939 FC 43 in Para No. 5 and 6 and same are reproduced as under :
Para No. 5. There has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code of Criminal Procedure. The question has latterly been the subject of consideration by the highest courts in this country, and by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is similar in terms to Section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under Section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under Section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under Section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under Section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of".
Para No. 6. In the course of his judgment, Varadachariar, J. discussed the scope of Section 197(1) of the Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to group them under three categories those which had held that sanction was CBI No. 70/2016 (old No. 60/10) Page 129 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.
In H.H.B. Gill v. King [ AIR 1948 PC 128 : 75 IA 41] the question arose directly with reference to Section 197(1) of the Code of Criminal Procedure. There, the accused was charged under Section 16 with taking bribes, and under Section 120-B with conspiracy. On the question whether sanction was necessary under Section 197(1) it was held by the Privy Council that there was no difference in scope between that section and Section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty........The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
(emphasis supplied)
(iii) Hon'ble Apex Court summed up the proposition of law in Para No. 7 and same is reproduced as under :
Para No. 7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for CBI No. 70/2016 (old No. 60/10) Page 130 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
(emphasis supplied)
(iv) During the course of arguments, State conceded before the Apex Court that the sanction under Section 197 Cr. P.C was required to prosecute the accused for the offence punishable under Section 465 IPC, but took the plea that no sanction was required for the offence punishable under Section 409 IPC and the said issue was dealt with by the Apex Court in Para 8 to 10, which are reproduced as under :
Para No. 8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 :CBI No. 70/2016 (old No. 60/10) Page 131 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) 1939 FCR 159] and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
Para No. 9. Quite recently, this court had to consider in Shreekantiah Ramayya Munipalli v. State of Bombay [ Criminal Appeal No. 89 of 1954] the necessity for sanction under Section 197(1), when the charge was one of misappropriation under Section 409. There, the law was laid down in the following terms:
"The section has content and its language must be given meaning.
What it says is -- 'when any public servant ... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....' We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before CBI No. 70/2016 (old No. 60/10) Page 132 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.
Para No. 10. The decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43: 1939 FCR 159] , and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was no part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, "... so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution CBI No. 70/2016 (old No. 60/10) Page 133 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) of his duty".
Reference may also be made to the following observations of Sulaiman, J. in the same case:
"The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way has been responsible for loose language used in some of the cases cited before us.... The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case."
(emphasis supplied)
(v) At last, Apex Court held that the sanction was required in the above said case to prosecute the accused for the offence punishable under Section 409 IPC. In this regard, Para No. 12 is relevant and reproduced as under :
Para No. 12. In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of ` 51 alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledge- ment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a CBI No. 70/2016 (old No. 60/10) Page 134 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under Section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.
(emphasis supplied)
79. In Harihar Prasad v. State of Bihar (1972)3 SCC 89 Hon'ble Apex Court after referring to the cases namely Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287, Amrik Singh v. State of Pepsu (supra) held that no sanction is required in respect of acts complained of in the present case for the charges under Section 120 B IPC read with Section 409 IPC. The said observation is reproduced as under:
" The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
(emphasis supplied) CBI No. 70/2016 (old No. 60/10) Page 135 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
(i) Perusal of the said observations, make it clear that the observations were made in the light of peculiar facts involved in the said case. In the said case, the allegations against the accused persons were that they had not only awarded the contract to their known contractors, but they had also drawn the bills frequently in their own name and gave advance payment to the contractors despite the fact that the contractors had not executed the work as per the terms and conditions. Even they had accepted bribe from the said contractors and the amount was recovered from them. In the light of these peculiar facts, it was held that no sanction was required for the charge of Section 120B IPC read with Section 409 IPC and this is abundantly clear from the observations of Hon'ble Apex Court when it categorically stated that the real question is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. Thus, as per the observations of Hon'ble Apex Court, no sanction is required because the above facts were not found directly concerned with the official duties of the accused persons. The said judgment was clarified by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another , 1996 (1) SCC 478. In the said case, CBI had taken the plea that in view of the finding in Harihar Prasad v. State of Bihar (supra) case, no sanction is required for the offence of conspiracy. The relevant portion of Para No. 6 is reproduced as under:
Para No. 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple CBI No. 70/2016 (old No. 60/10) Page 136 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409 : 1972 Cri LJ 707] . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious.
Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed CBI No. 70/2016 (old No. 60/10) Page 137 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
(emphasis supplied)
(ii) Thus, it becomes clear that mere fact that the investigating agency had filed the charge-sheet under Section 120B IPC read with Section 409 IPC is ipso-facto not sufficient to deprive public servants from protection available under Section 197 Cr. P.C. It depends upon facts of each case. If the acts were committed by the public servants in discharge of his official duties, sanction would be required under Section 197 Cr. P.C irrespective of the fact that the said acts attract the provisions of Section 120B IPC read with Section 409 IPC.
CBI No. 70/2016 (old No. 60/10) Page 138 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
80. In State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Apex Court propounded the rule of safe and sure test to determine whether the sanction is required against public servant for the act complained of or not. In this regard, Para No. 61 is relevant and same is reproduced as under :-
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of CBI No. 70/2016 (old No. 60/10) Page 139 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11. If on facts, therefore, it is prima-facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the CBI No. 70/2016 (old No. 60/10) Page 140 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Code cannot be disputed."
(emphasis supplied)
81. Recently, Hon'ble Apex Court had considered most of the above said judgments in Prof. N.K. Ganguly v. CBI in criminal Appeal No. 798/2015 decided by Apex Court on November 19, 2015 after considering the entire case law including observations made by the Apex Court in Parkash Singh Badal v. State of Punjab and others (2007) 1 SCC, Hon'ble Apex Court held as under:
" Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Parkash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420/467/468/471 IPC and 120B IPC can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting of purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken.
The learned counsel placed reliance on the following paragraph of the judgment to emphasis the same:
"51. In Baijnath v. State of M.P. [1966 (1) SCR 210] the position was succinctly stated as follows:
"... it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted."
The learned senior counsel also placed CBI No. 70/2016 (old No. 60/10) Page 141 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
"18. ...... If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established..... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity........."
25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of Cr. P.C, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of Cr. P.C was required to be taken by the respondent, before taking cognizance and passing an order issuing CBI No. 70/2016 (old No. 60/10) Page 142 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) summons to the appellants for their presence.
(emphasis supplied)
82. From the aforesaid discussion, the following proposition of law emerges:-
(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even every act done by him while he is actually engaged in the performance of his official duties;
(ii) but, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office, then sanction would be necessary.
(iii) Even where the charges are for misappropriation, cheating or conspiracy by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case. If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessary. If there was no necessary connection between the duty and the act; and the official status furnished only the occasion or opportunity for the acts then no sanction would be required.
(iv) There is no universal rule to determine whether there is a reasonable connection between the act done and the official CBI No. 70/2016 (old No. 60/10) Page 143 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) duty, nor it is possible to lay down any such rule.
(v) However, there is one safe and sure test to determine this connection i.e if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty and if the answer to this question is in affirmative, then it may be said that the such act was committed by the public servant while conducting in discharge of his official duties and there was every connection with the act complained of and the official duty of the public servant.
(vi) An official act can be performed in discharge of official duty as well as in dereliction of it.
83. Now coming to the facts of the case at hand.
(i) As already held that A2 was working as Assistant Registrar (NW) at the relevant time; A4 was working as Inspector Grade-III; A5 was working as Grade-II; A7 was working as Auditor and A8 was working as Grade-IV employee.
(ii) As already discussed that A2 dealt with the file from time to time and sent the copy of 147 members of the society to AR (Policy) being the AR (NW) in discharge of his official duties. Similarly, A4 and A5 submitted their reports when they were appointed to hold an inquiry under Section 54 of the DCS Act and to conduct physical verification of members at random. Accordingly, it can safely be culled out that they had submitted their reports in discharge of their official CBI No. 70/2016 (old No. 60/10) Page 144 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) duties. Similarly, A7 and A8 had also conducted the audit and election in discharge of their official duties. Thus, there was a direct nexus between the acts performed by the above said accused persons and their official duties.
(ii) No doubt, A4, A5, A7 and A8 had submitted false and bogus reports while being the public servants, they were supposed to submit true and correct reports to their office. But the fact remains that they had submitted their reports in discharge of their official duties. Had they not submitted false reports probably they would not have committed any offence. Since, they had submitted false reports, their acts became an offence. The said offence had been committed by them being the public servants while discharging their official duties. Thus, to my mind their acts had sufficient connection with the official duties. Moreover, since for their acts i.e. submitting false reports in discharge of their official duty and sending the list of members to AR (Policy) without completion of pending audit made them answerable for a charge of dereliction of their officials duties, thus their acts also satisfy the condition of Safe and Sure Test as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra).
84. Keeping in view the aforesaid discussion, I am of the considered opinion that since the acts of the above said accused persons have reasonable connection with discharge of their official duties and their said acts also qualify the Safe and Sure Test as propounded by the Apex Court, I am of the considered opinion that Section 197 Cr.P.C was required for the penal offences also. Since, CBI No. 70/2016 (old No. 60/10) Page 145 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) CBI had not obtained any such sanction qua A2, A4, A5, A7 and A8, they cannot be held guilty for the penal offences including under Section 120 B IPC.
Conclusion:-
85. In the light of the foregoing discussion, I am of the considered opinion that : -
(i) That prosecution has succeeded to bring home the guilt of accused Daya Nand Sharma @ D.N.Sharma (A2), U.S.Bhatnagar (A4), Faiz Mohd. (A5), Kamal Singh (A7) and Balam Singh Aswal (A8) for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13(1)(d)(iii) of PC Act beyond the shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(ii) That prosecution has also succeeded to bring home the guilt of accused Gokul Chand Aggarwal (A6) for the offence punishable under Section 468 IPC, 471 r/w 468 IPC and under Section 420 IPC beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
CBI No. 70/2016 (old No. 60/10) Page 146 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
86. However, I am also of the considered opinion that the evidences led by the CBI are not sufficient to prove the guilt of accused Narayan Diwakar (A1) and Narayan Dutt Kaushik @ N. D. Kaushik (A3) beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them from all the charges.
Announced in the open Court on this 25th day of January, 2017 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 70/2016 (old No. 60/10) Page 147 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI.
IN THE MATTER OF:
CBI No. : 70/2016 (Old No.60/2010) CNR No. : DLNW01-000059-2006 RC No. : BD.1/2005/E/0014/CBI/N.Delhi U/Sec: 120B r/w 419/420/468/471 IPC 13(2) r/w 13(1)(d) of PC Act 1988 & substantive offences u/s 15.
Police Station: BS&FC/CBI/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 70/2016 (old No. 60/10) Page 148 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
1. Daya Nand Sharma @ D. N. Sharma S/o Late Sh. Ram Diwaya R/o 1378, Ist Floor, Rani Bagh, Delhi-34.
..........Convict No. 12. U.S.Bhatnagar, S/o Shiv Shanker Bhatnagar, R/o Flat no. 14, Khasra No. 844, Maurya Enclave, Gali No. 2, Sant Nagar, Burari, Delhi-84.
...........convict No.2
3. Faiz Mohd.
S/o Sh. Gulam Mohd.
R/o 4794, Bara Hindu Rao Near Sadar Bazar, Pahari Dheeraj, Delhi-6.
..........Convict No. 34. Gokul Chand Aggarwal S/o Late Sh. Jagdish Prasad R/o A-603, Ashoka Apartment, Sector-9 Rohini Delhi.
..........Convict No.4 CBI No. 70/2016 (old No. 60/10) Page 149 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
5. Kamal Singh S/o Late Sh. Bakhtawar Singh R/o H.No. 677, Village & Post Office Sameypur Badli, Delhi.
..........Convict No. 56. Balam Singh Aswal @ B.S.Aswal S/o Late Dhyan Singh R/o Flat No. 8F/B3, Mayur Vihar, Phase-III, Delhi.
..........Convict No. 6Date of judgement : 25.01.2017 Date of order on the point of sentence : 31.01.2017 Appearance : Sh. Prabhat Kumar, learned Sr. Public Prosecutor for CBI Sh. Neeraj Verma, Advocate, counsel for Daya Nand Sharma (C1) Sh. S.K. Bhatagar, Advocate, counsel for U.S. Bhatnagar (C2), Faiz Mohd. (C3) & Kamal Singh (C5) Sh. Abhishek Prasad, Advocate, counsel for Balam Singh Aswal (C6) and amicus-curiae for Gokul Chand Aggarwal (C4) CBI No. 70/2016 (old No. 60/10) Page 150 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) ORDER ON THE POINT SENTENCE:-
1. Vide judgment dated January 25, 2017, accused persons namely Daya Nand Sharma @ D.N.Sharma (C1), U.S.Bhatnagar (C2), Faiz Mohd. (C3), Kamal Singh (C5) and Balam Singh Aswal (C6) have been held guilty for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13(1)(d)(iii) of PC Act whereas accused Gokul Chand Aggarwal (C4) has been held guilty for the offence punishable under Section 468 IPC, 471 r/w 468 IPC and under Section 420 IPC.
2. Learned counsels appearing for Convict no.1, 2, 3, 5 & 6 submit that they were public servants and posted in the office of RCS at different posts at the time of commission of alleged offence. It is further submitted that all are law abiding citizens having no criminal antecedents. It is further stated that all are sole bread earners of their respective families.
(i). Learned counsel appearing for C-1 further submits that at the time of commission of alleged offence, he was posted as Asstt. Registrar (NW) and he had already been retired from the service. Presently, he is an old person aged about 73 years and suffering from various old age diseases. It is further submitted that pension is the only source of his livelihood and his wife is a heart patient.CBI No. 70/2016 (old No. 60/10) Page 151 of 158
State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
(ii). Learned counsel appearing for C-2 and C3 submits that U.S.Bhatnagar (C2) was posted as GR-II Inspector whereas Faiz Mohd (C3) was posted as Grade-III Inspector at the time of alleged offence. It is further submitted that both had already been retired from their services. Presently, C-2 is aged about 67 years whereas C-3 is aged about 74 years. Pension is the only source of their livelihood and both are suffering from various old age diseases. It is further submitted that U.S.Bhatnagar (C2) is a heart patient and he has one unmarried daughter.
(iii). Learned counsel appearing for C5 and C6 submits that C5 was posted as LDC-cum-Auditor whereas C6 was posted as Grade-IV employee at the time of alleged offence. They are sole bread earners of their respective families. It is further submitted that though CBI had charge-sheeted them in this case, yet no departmental action has been taken against them for the acts performed by them, which suggests that there was no fault on their part. It is further submitted that C5 is aged about 66 years and C6 is about 64 years old and both are suffering from old age diseases.
3. Learned amicus-curiae appearing for convict no.4 submits that he is not only a law abiding citizen but he is also sole bread earner of his family. It is further submitted that present convict is not involved in any other criminal matter except CBI No. 70/2016 (old No. 60/10) Page 152 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) societies scam matters. It is further submitted that convict is facing the agony of trial for the last more than ten years. It is further submitted that he has also one unmarried daughter and he is suffering from brain tumour. Accordingly, it is prayed to take a lenient view and release him after imposing a token fine.
4. Per contra, learned Sr. Public Prosecutor appearing for CBI refuted the said contentions and requests to award maximum punishment. It is submitted that convict no. 4 had forged the signatures of numerous persons including the office bearers of the society. Thereafter, he had used the said forged documents as genuine documents by submitting the same in the office of RCS in order to get a favourable revival order of the society. It is further submitted that since C4 had committed forgery, cheating and used the forged documents as genuine documents, in order to get a favourable order, he deserves no leniency and prays to award maximum punishment against him.
(i). Learned Sr. Public Prosecutor further submits that U.S.Bhatnagar (C2) and Faiz Mohd (C3) had betrayed the faith of their office by submitting false reports in favour of the society. Similarly, C5 and C6 had also betrayed the faith of thier office by submitting the false audit and election report. It is stated that being the public servants, it was their paramount duty to submit true and correct reports, but they preferred to submit false reports in favour of C4. It is further submitted that since the CBI No. 70/2016 (old No. 60/10) Page 153 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) conduct of above said convicts cannot be appreciated in any manner, they also deserve maximum punishment.
(ii). It is further submitted that though Daya Nand Sharma @ D. N. Sharma (C1) had not submitted any false report, yet he had acted in violation of the directions contained in the revival order, accordingly, he also does not deserve any leniency.
5. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
6. As already held that Gokul Chand Aggarwal (C4) was the main culprit as he is the person who moved an application in the assumed name of Ajay Kumar; he is the person who submitted various forged and fabricated documents from time to time in the office of RCS; he is the person who forged the signatures of various office bearers of the society on numerous documents; he is the person who forged the signatures of various members on their affidavits and he is the person who submitted all forged documents in the office of RCS in order to get the society revived.
(i). In view of the aforesaid aggravating factors, I hereby sentence Gokul Chand Aggarwal (C4):-
CBI No. 70/2016 (old No. 60/10) Page 154 of 158State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.)
(i) Rigorous imprisonment for a period of two years and a fine of ` 1.50 lac (Rupees One Lac and Fifty Thousands) in default further nine months simple imprisonment for the offence punishable under Section 468 IPC.
(ii). Rigorous imprisonment for a period of two years and a fine of ` 1 lac (Rupees one lac) in default further seven months simple imprisonment for the offence punishable under Section 471 r/w 468 IPC.
(iii) Rigorous imprisonment for a period of 18 months and a fine of ` 50,000/- (Rupees Fifty Thousands) in default further six months simple imprisonment for the offence punishable under Section 420 IPC.
7. All sentences shall run concurrently. Benefit of Section 428 Cr.P.C, if any, be given to the convict.
8. As already held that U.S.Bhatnagar (C2) and Faiz CBI No. 70/2016 (old No. 60/10) Page 155 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Mohd (C3) had submitted false inspection report and physical verification report respectively and on the basis of their false reports, C4 succeeded in getting a favourable revival order of the society. Considering the fact that they had already been retired from their services and both are now old persons, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Sr. Public Prosecutor for CBI.
(i). As already held that C5 had submitted a false and bogus audit report whereas C6 had submitted a false Election report as he had shown non-existent persons as winning candidates. Indisputably, being the public servants, their conduct cannot be appreciated in any manner. However, it is also true that during trial, CBI failed to produce any direct evidence to show that they had received any monetary gain or pecuniary advantage for showing undue favour to C4. Rather CBI proved its case on the basis of circumstantial evidences. However, they had also retired from their services. Considering all the facts and circumstances of the case, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Sr. Public Prosecutor for CBI.
(ii). As already held that Daya Nand Sharma @ D. N. Sharma (C1) had sent the list of 147 members to the AR (Policy) despite the fact that on that day the revival order had not come into force as the same was subject to completion of pending CBI No. 70/2016 (old No. 60/10) Page 156 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) audit. Considering the fact that he had already been retired from the service and he is now an old person, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Sr. Public Prosecutor for CBI.
9. In view of the aforesaid discussion, I hereby sentence Daya Nand Sharma @ D. N. Sharma (C1):
Rigorous imprisonment for a period of one year and a fine of ` 25,000/-
(Rupees Twenty Five Thousands ) in default further three months simple imprisonment for the offence punishable under Section 13(2) r/w 13(1)(d)(ii) and 13(1)(d)(iii) of PC Act.
10. Considering the fact that U.S.Bhatnagar (C2), Faiz Mohd (C3), Kamal Singh (C5) and Balam Singh Aswal @ B.S.Aswal (C6) had submitted false reports despite the fact that they were public servants, I hereby sentence them:-
Rigorous imprisonment for a period of 18 months and a fine of ` 50,000/-
(Rupees Fifty Thousands) each in default further six months simple imprisonment each for the offence punishable under CBI No. 70/2016 (old No. 60/10) Page 157 of 158 State through CBI v. Narayan Diwakar & Ors. (VEENAPANI CGHS Ltd.) Section 13 (2) r/w 13(1)(d)(ii) and 13(1)(d)
(iii) of PC Act.
11. Benefit of Section 428 Cr.P.C, if any, be given to them.
12. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
13. File be consigned to record room.
Announced in the open Court on this 31st day of January, 2017 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 70/2016 (old No. 60/10) Page 158 of 158