Delhi District Court
Cbi vs . Anna Wankede Etc. (Taj Cghs) on 30 April, 2012
IN THE COURT OF SH.R P PANDEY; SPECIAL JUDGE-01 (CBI)
ROHINI COURTS:DELHI
CBI No.06/08
CBI Vs. ANNA WANKEDE ETC. (TAJ CGHS)
RC 9E/2005/CBI/DOW-I/N.DELHI
U/S 120-B,419,420,465,467,468,471IPC & PC ACT 1988
Date of filing charge sheet : 28.03.06
Reserved for Order : 26.04.12
Date of Order : 30.04.12
ORDER ON CHARGE:
1.Arguments advanced by Ld.Public Prosecutor and Ld. counsels for accused No.1 Anna Wankhede, accused No.4 Ram Nath, accused No.5 Faiz Mohd. & accused No.6 Sri Chand have been heard on charge and written arguments on behalf of accused No.2 Narayan Diwakar (in the form of composite written submissions on charge as well as his pending applications u/s CBI CASE NO.06/08 Page No.1 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) 227 Cr.PC for discharge, adjournment pending a petition before Hon'ble High Court considering judgment of Vikas CGHS case, doctrine of parity, objecting jurisdiction in view of A.Sabair's case, considering in view of judgment A.P.Narang's case and Diamond Square CGHS case) and written arguments of accused No.3 D.N.Sharma as have been filed by them, have been perused vis- a-vis the charge sheet, statements of witnesses u/s 161 Cr.PC and documents relied upon by CBI.
2. As borne out of record, the Taj Cooperative Group Housing Society Ltd. was registered with RCS on 15.06.73, vide registration No.135(H), having its registered address at 1855, Gali Wazir Bagh, Post Office, Turkman Gate, Delhi. The society also functioned from 2241, Gali Dekotan, Turkman Gate, Delhi. Initially, the society had 54 members and subsequently new members were enrolled and its strength reached to 167 members. In May, 1975 society was offered land by DDA, but it did not accept the land since society was expecting to get land in South Delhi from Wakf Board. DDA closed said offer. The society was, therefore, wound up by RCS on 16.05.79, vide liquidation order No.F-47/135/78/Housing/Coop/1986-92.
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CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS)
3. On 12.12.79, an appeal was made before Lt.Governor, Delhi against aforesaid order, which was dismissed vide order dated 23.05.80. Thereafter, a civil writ petition No.1314 of 1980 was filed before Hon'ble High Court for quashing the order passed by Lt.Governor. On 03.12.80, High Court of Delhi quashed the winding up order as well as order of Lt.Governor,. Consequently, DDA allotted land to the society in Geeta Colony, Delhi, in the year, 1982 and possession of said land was given on 15.06.83.
4. On 15.05.84, the society changed its address from Turkman Gate, Delhi, to C-156, Minto Road Complex, New Delhi. In the year, 1988 The Taj CGHS Ltd. was amalgamated with Sartaj CGHS and a new registration No. 2001 was allotted to it. Total members of amalgamated Taj Sartaj CGHS Ltd. became 358 (167 of Taj CGHS and 191 of Sartaj CGHS). By the year, 1991 the amalgamated society completed construction of flats for its members, which were allotted to them, which fact stands substantiated by records collected from DDA. S/Sh.Abdul Rashid (PW.1) and Syed Rais Ahmed Zafari (PW.2), who were President and Secretary respectively, have categorically stated that no one CBI CASE NO.06/08 Page No.3 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) of the Taj CGHS Ltd. had ever applied separately in the office of RCS for revival of the society in the year, 2003.
5. During the course of investigation, it revealed that during 2003, original file of Taj CGHS Ltd. and amalgamated society were dishonestly and fraudulently made to disappear from office of RCS. Thereafter, on 01.10.03, an application was submitted in office of RCS by Anna Wankhede(A.1), self styled Secretary of the Taj CGHS, with request to cancel winding up order and revive the society. In the said application, it was mentioned that the society was registered at C-156, Minto Road Complex, New Delhi and was shifted to B-3/66, Ashok Vihar, Phase-II, New Delhi. However, investigation discloses that said address was fake/bogus and no society in the name of Taj CGHS Ltd. ever existed there. Said property was actually in possession of one Ashwani Mittal(PW.24) since 04.09.03.
6. Faiz Mohd., Grade-II Inspector (A.5), processed said application in office of RCS on 18.11.03 and D.N.Sharma, AR (NW) (A.3) forwarded it to JR on 20.11.03. On 21.11.03, Rakesh Bhatnagar, JR(PW.40), CBI CASE NO.06/08 Page No.4 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) observed that request of Anna Wankhede is not supported by any documentary evidence, as such he advised AR(NW) to obtain copies of registration certificate, liquidation order, registered bye-laws and list of members, etc. from the society.
7. Anna Wankhede(A.1) supplied copies of forged documents, vide letter dated 10.12.03 in response to letter dated 28.11.03 of D.N.Sharma. He supplied a handwritten list of members, without any authentication. Copy of liquidation order submitted by him bears the same number as had been shown dishonestly by Faiz Mohd.(A.5) and D.N.Sharma (A.3) on note sheet dated 20.11.03. Copy of registration certificate submitted by the society was bogus/fake, since it did not mention correct address as well as registration date of the society. The copy of liquidation order submitted by Anna Wankhede was also bogus and fake, which fact has been confirmed by M.L.Ahuja, liquidator(PW.19), that liquidation number and date appearing on said order are different from original one and signatures of Ashok Bakshi, Dy.Registrar, appearing on said bogus order are also forged.
8. RCS officials did not pay heed to verify liquidation order as it could CBI CASE NO.06/08 Page No.5 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) be verified from gazette notification issued under the DCS Rules, 1973, as stated by Sh.G.S.Meena, Jt.Registrar(PW.3). Since the society was wound up in 1979 and a liquidator was appointed to this effect, it could be checked up whether registration of the society was cancelled under section 19 of the Act. On 07.01.04, Narayan Diwakar, then RCS(A.2), approved proposal to reconstruct the file of the society, on the basis of records available with the society and appointed Ram Nath, Gr.-II, Inspector, as Inspecting Officer to conduct inspection of records of the society under section 54 of DCS Act. He did not raise questions about missing of original file of the society. Said proposal was recommended and forwarded by Faiz Mohd., Gr-II, Inspector (A.5), D.N.Sharma, AR (NW) (A.3) and J.S.Sindhu, JR, who also did not propose any step to be taken about the missing file.
9. Ram Nath, Grade-II Inspector (A.4) submitted a false inspection report dated 19.01.04, mentioning therein that he visited office of the society at B-3/66, Ashok Vihar Phase-II, Delhi and that audit of the society was pending since 1971. However, no society ever existed at said address and the society was registered in 1972. D.N.Sharma also falsely recorded on note sheet that CBI CASE NO.06/08 Page No.6 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) Ram Nath had visited office of the society and collected relevant records. As per records collected by Ram Nath, office bearers of the society, namely, S.K.Sharma (President), Chaman Lal (Vice President), Anna Wankhede (Secretary), Smt.Anita Singh (Treasurer) and Smt.Pushpa Devi (Member) were elected on 06.07.03. However, except Anna Wankhede, other office bearers of the society were fictitious and non-existent persons. During the course of investigation, out of 135 members, 134 members were found to be fictitious.
10. On 20.01.04, D.N.Sharma (A.3) and Faiz Mohd. (A.5) put up a joint note recommending revival of the society under section 63(3) of DCS Act and to approve list of 135 members for allotment of land. They had recorded details of fake documents in their note sheet. They had also mentioned that in the GBM of the society, held on 06.07.03, a new managing committee was elected, details of which were collected by Ram Nath. During investigation, it came to light that membership applications and affidavits of all 135 members, which were collected by Ram Nath, were also forged. On recommendation of Faiz Mohd. (A.5), D.N.Sharma (A.3) and Narayan Diwakar, RCS (A.2) approved issuance of notice under section 63(3) of the Act on 23.01.04 to cancel the CBI CASE NO.06/08 Page No.7 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) winding up order. He fixed up the date for hearing on 10.02.04. Narayan Diwakar (A.2) noted on 10.02.04 that Anna Wankhede, Secretary of the society, was present before him. He directed AR (NW) to conduct spot verification of membership. The matter was fixed by him for 24.02.04. However, investigation reveals that Narayan Diwakar deliberately approved aforesaid notice without raising any query about missing of file and without counter checking the bogus/fake/forged documents submitted by the society, on the basis of which file was reconstructed.
11. Accused Faiz Mohd. submitted a bogus/fake verification report on 19.02.94 (D.3 page 81/C), without conducting any physical verification of members. While recommending request of the society, accused D.N.Sharma (A.3) submitted a detailed note dated 20.02.04 (D.3 page 17/N) mentioning that Faiz Mohd.had conducted physical verification of 10% of total members of the society, that is,14 members out of 135 members. He further recorded that inspection of the society was conducted by Ram Nath and documents pertaining to membership were produced by Secretary of the society for verification, which were counter checked/verified and found in order. He further recorded that CBI CASE NO.06/08 Page No.8 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) accounts of the society have been completed upto date and documents of the society containing final list of 135 members has been examined and got verified.
12. On 10.02.04, accused Narayan Diwakar (A.2) had fixed the next date of hearing as 24.02.04 with instructions to AR (NW) to submit physical verification report of members of the society (D.3 page 7/N). But there is nothing on record to show as to what happened on 24.02.04. On 09.03.04, accused Narayan Diwakar with dishonest intention recorded (D.3 page 18/N) that winding order passed by Deputy Registrar shows that no proper procedure was followed while winding up society, reasons given were inadequate for initiating such an extreme step. He also pointed out that the society was not given sufficient opportunity either to reply to SCN issued or to rectify shortcomings mentioned in notice issued by RCS. On 09.03.04, Narayan Diwakar reserved the case for orders. However, investigation discloses that original file of the society was missing as such there was no occasion for accused Narayan Diwakar to make observation that society was not given sufficient opportunity either to reply SCN or rectify the shortcomings mentioned in notice issued by RCS. In fact no winding up order was passed and society CBI CASE NO.06/08 Page No.9 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) on being amalgamated with Satraj CGHS got the land, constructed flats and allotted it to their members, who are in possession of the same.
13. On 11.03.04, accused Narayan Diwakar (A.2) passed the order (D.3 page 90/C), vide case No.RCS012/04/406-11, mentioning therein that Anna Wankhede, Secretary of the society, appeared before him on dates fixed, along with V.K.Gulati, Advocate, to represent the case. He cancelled the bogus/forged winding up order dated 23.08.79 and revived the society with immediate effect. He appointed Sanjeev Bharti, Gr.III, to act as an Election Officer to conduct the election of the society. Accused D.N.Sharma (A.3) forwarded name of the society to AR (Policy) alongwith approved list of 135 members for onward transmission to DDA for allotment of land.
14. Investigation further disclosed that though winding up order was made conditional yet the name of society was forwarded to DDA on 25.03.04 for allotment of land. Neither elections were conducted nor any audit of the society was done before forwarding the name of society to DDA for allotment of land. It clearly shows pre-set mind of accused Narayan Diwakar CBI CASE NO.06/08 Page No.10 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) (A.2) to get the land allotted in the name of society. Thereafter, accused Anna Wankhede (A.1) vide letter dated 29.03.04 got the name of society changed from accused Narayan Diwakar (A.2). During the course of investigation, it was also revealed that Shri Chand had introduced Smt.Rashmi Gulati and V.K.Gulati, Advocates, to Anna Wankhede, who instructed them to represent case of the society for revival , which indicates role of Shri Chand in revival of the society. Thus, it is alleged that accused Narayan Diwakar (A.2), D.N.Sharma (A.3) , Ram Nath (A.4) and Faiz Mohd. (A.5) all officials of RCS colluded with each other as also with accused Anna Wankhede (A.1) and Sri Chand (A.6) to revive the Taj CGHS and approve freeze list of its members and got forwarded the same to DDA for allotment of land at a predetermined rate. While filing the charge sheet, sanction for prosecution of accused D.N.Sharma (A.3) and Ram Nath (A.
4) under section 19(1) (c) of P.C.Act was obtained whereas accused Narayan Diwakar (A.2) and Faiz Mohd.(A.5) had already retired from their service.
15. During the course of arguments, Sh.Abhishek Prasad, Ld. counsel for accused No.1 Anna Wankhede has submitted that accused Anna Wankhede has been falsely implicated in this case and he in fact is victim of circumstances. CBI CASE NO.06/08 Page No.11 of 47
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16. On the other hand, Ld. Public Prosecutor has submitted that there is overwhelming evidence arrayed by CBI against accused Anna Wankhede which is sufficient to frame charge as per the charge sheet. He has also drawn attention of the court towards GEQD opinion confirming that the documents as alleged in the charge sheet have been forged by accused Anna Wankhede by making writings/signatures on those documents which tally with his specimen signatures taken during investigation. He has also drawn attention of the court that the affidavits of fictitious members which are at Q.30, Q.32, Q.35 to Q.38, Q.40 to Q.42, Q.44 to 50, Q.53 to Q.58 have been signed by accused Anna Wankhede as opined by GEQD. As against accused Anna Wankhede (A.1) it has been alleged that it was he who had proclaimed himself as Secretary of Taj CGHS and had filed application with RCS for revival of society u/s 63(3) of DCS Act, 1972 on 01.10.03. In his application he has mentioned that Taj CGHS was registered with address C-156, Minto Road Complex, New Delhi and was shifted to B-3/66, Ashok Vihar Phase-II, New Delhi but investigation disclosed that no such society ever existed at the given address of Ashok Vihar and in fact the owner of the said house, Sh.Ashwani Mittal (PW.24) has been CBI CASE NO.06/08 Page No.12 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) examined by CBI. In response to letter of AR, he had submitted documents to RCS office vide letter dated 10.12.03 which included copy of list of members, copy of forged/fake liquidation order (D.3 page 28/C), copy of bogus registration certificate (D.3 page 27/C) of the society showing date of registration as 24.02.72 and address as C-156, Minto Road, New Delhi whereas Taj society was in fact registered on 15.06.72 with address as 2241, Dakotan Street, Turkman Gate from where it was subsequently shifted to C-156, Minto Road Complex, New Delhi on 15.05.84.
17. Liquidator M.L.Ahuja (PW.19) has been examined by IO to prove that liquidation number and date appearing on the said forged/bogus liquidation order are different from original one and that the signatures of Sh. Ashok Bakshi, Deputy Registrar as appearing on the same are also forged. Statement of PW.32 Avnish Kumar, employee of P.R.Bhatia (PW.21) who is stamp vendor has been recorded by CBI to the fact that the stamp papers of Rs. 10/- each on which the forged affidavits of members have been prepared, were purchased by accused Anna Wankhede (A.1) and that they were got typed by him from one Ravi Robinson (PW.20) and got notarized from Sh.K.K.Kaul, CBI CASE NO.06/08 Page No.13 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) Notary Public on a single day i.e.13.12.03. In this respect, the report of GEQD is also available to show that those documents were typed on the Remington Typewriter which was seized by CBI from Sh.Ravi Robison , the Typist from whom Anna Wankhede (A.1) had got typed the documents. GEQD opinion also confirmed that the verification certificates Q.1 to Q.14 were signed by Anna Wankhede (A.1) in the names of different members which were submitted with report of accused Faiz Mohd. (D.3 page 56/C to 81/C) .
18. The noting file of RCS (D.3) shows that accused Anna Wankhede was also present before RCS on 10.02.04 as recorded in the order sheet and claimed himself as Secretary of Taj CGHS. Subsequently again as is appearing in the order of RCS dated 11.03.04, he had appeared as Secretary of Taj CGHS before RCS alongwith his Advocate Sh.V.K.Gulati and in this respect the statement of Mrs.Rashmi Gulati, Advocate wife of Sh.V.K.Gulati has been recorded as PW31 who stated that it was accused Anna Wankhede who had signed vakalatnama in their favour alongwith stamp of Taj CGHS (D.3 page 82/C). She was engaged by accused Anna Wankhede (A.1) to represent Taj CGHS before RCS. It was he who had made request to RCS for change of CBI CASE NO.06/08 Page No.14 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) name of Taj CGHS vide his letter dated 29.03.04 and subsequently also changed address of society from D-3/66, Ashok Vihar, Phase-II, New Delhi to G-17/70, Sector-15, Rohini, Delhi. Thus, there is sufficient evidence against accused Anna Wankhede to frame charge against him.
19. Accused/Narayan Diwakar (A-2) besides advancing arguments on the point of charge, also argued his applications, which have been taken up for their disposal together with arguments on charge. His applications are u/s 227 Cr.PC for his discharge; seeking appropriate direction for invoking doctrine of parity in view of the policy decision of the CBI; additional submissions objecting to the jurisdiction of this court to try the present case with reference to the judgment of Hon'ble Supreme Court in A Subair Vs. State of Kerala, 2009, Cri.LJ 3450; and adjourning the matter till disposal of his writ petition No.1038 of 2008 pending before Delhi High Court. He has also filed composite written arguments on charge as well as his pending applications.
20. It has been argued by him that CBI had illegally investigated this case and the court should not proceed with the trial as a mute spectator and be CBI CASE NO.06/08 Page No.15 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) party to the illegal investigation. He has relied upon judgment of Hon'ble Delhi High Court in R R Kishore Vs. CBI, 2006 VIII AD(Delhi) 545 in which it was held by Hon'ble Delhi High Court that if no objection is taken at the initial stage and trial proceeds then the same can be set aside only if it has resulted in miscarriage of justice. It was further observed by Delhi High Court that if the illegal investigation is brought to the notice of trial court at the initial stage then the court ought not to proceed with the trial and direct re-investigation so that defect in investigation is cured. It has been argued by accused/Narayan Diwakar (A-2) that the CBI has launched an illegal and unfair prosecution against him. This court does not find any illegality in the investigation of the case and law does not confer a right on an accused to seek the direction for re- investigation of a case.
21. He has argued that the ld.Public Prosecutor has no locus standi as his appointment is not validly notified u/s 24/25 Cr.PC and urge that on this account, he has been deprived of fair prosecution as the prosecutors of CBI are subordinate and under strict control of CBI and have been assigned with the dual function of investigating as well as prosecuting which is against the CBI CASE NO.06/08 Page No.16 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) mandate of criminal procedure code.
22. The procedure and manner of appointment of public prosecutor is contained in Section 24 of Cr.PC and it is no where stated in that section that the Public Prosecutors are appointed by the Director of CBI, as they are recruited through Union Public Service Commission (UPSC) and appointed by the President of India.
23. It has been submitted by ld.Public Prosecutor that after pronouncement of judgment in S B Sahaney and Others Vs. State of Maharashtra and Anr., 1995 SUPP (3) SCC 37, the prosecution department of CBI has been made a separate department and the Director of Prosecution is made the head of department and public prosecutors are answerable to him. He has then submitted that under these circumstances, it can not be said that the prosecution department is under the direct influence of Director CBI.
24. Since the Public Prosecutors of CBI are appointed u/s 24 of Cr.PC by the order of Hon'ble President of India, therefore, there is no substance in the CBI CASE NO.06/08 Page No.17 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) submission of accused that Public Prosecutors are appointed by the Director CBI and work under his direct control.
25. It has been submitted by the accused that the charge sheet has not been filed as per the provisions of Section 173 of Cr.PC as it bears the signature of ld.Public Prosecutor besides the Superintendent of Police (SP) and Investigating Officer (IO) of the case. Hence, it is argued by him that in the present case the prosecutor, who is involved in the investigation, can not fairly prosecute as he has become the part of the investigation. In this case, I find that there is no signature of Public Prosecutor on the charge sheet and furthermore when the charge sheet is endorsed by the Public Prosecutor, it does not violate the mandate of Hon'ble Supreme Court in R Sarla Vs. T S Valu, AIR 2000 SC 1731, wherein the Hon'ble Supreme Court had laid down as under:-
" that the investigation and prosecution are two different facets in the administration of criminal justice. The role of public prosecutor is inside the court and whereas the role of the investigating officer to investigate the case is outside the court. Normally, the role of the public prosecutor commences after the investigating agency presents the case in the court on the culmination of investigation. Involving the public prosecutor in investigation is in-judicious as well as pernicious in law. The investigating officer can not be directed to CBI CASE NO.06/08 Page No.18 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) consult the public prosecutor and submit a charge sheet in tune with the opinion of the public prosecutor."
26. In fact the observation of Hon'ble Supreme Court in above referred case clarifies that the IO can not be directed by the court to consult the public prosecutors and submit a charge sheet in tune with the opinion of the public prosecutor. However, in case IO finds some difficulty during the investigation, he is not precluded from seeking opinion of the public prosecutor. Thus, I find that there is no such mandate of the court of law that the public prosecutor can not be consulted by the IO. Recommendation, if any, of the public prosecutor on the charge sheet may not amount to any interference with the investigation because by that time the investigation is already complete as only before filing charge sheet the endorsement of public prosecutor may be obtained in some cases. In my view, it does not violate the mandate of law or result into any prejudice to the accused.
27. It has been further argued by accused/Narayan Diwakar (A-2) that he being Registrar of Co-operative Societies was acting as quasi judicial officer u/s 3 of DCS Act, 1972 and, therefore, order, if any passed by him, could not be CBI CASE NO.06/08 Page No.19 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) questioned in any court of law on whatsoever grounds. He has argued that as per Section 94 of the DCS Act, he had all the powers of civil court and hence as per Section 95 of the same Act, no suit or prosecution or any other legal proceedings would lie against him or any person subordinate to him in respect of anything done in good faith or purported to have been done under this Act.
28. In this respect, I find that role assigned to the applicant in the charge sheet is that he, in conspiracy with other accused persons, including his subordinate officials and private public person dishonestly and fraudulently revived Taj CGHS on the basis of forged and fabricated documents submitted by accused/Anna Wankhede (A.1) whereas Taj CGHS was not a wound up society and that he fraudulently mentioned in his revival order that winding up order which was passed by the then Dy.Registrar was not in accordance with laid down procedure, as the reasons for winding up of the society were not adequate for initiating such an extreme step, despite the fact that the copies of liquidation order and registration certificate of society were forged by accused/Anna Wankhede (A.1). Thus, his acts, as alleged in charge sheet do not amount to doing the same in good faith, therefore, his claim for any protection is not CBI CASE NO.06/08 Page No.20 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) tenable.
29. It has been further argued by accused no.2 that no offence is made out u/s 13 of the PC Act as the prosecution has to prove that he had accepted either any bribe or any pecuniary advantage which is neither shown in the charge sheet nor statement of any of the prosecution witnesses recorded by IO. He has relied upon judgment cited as State of M P Vs.Sheetla Sahai & Ors., (2009) 3 RCR (Crl.) 835, wherein while awarding the tender, the accused public servants had allegedly put the Government to the loss to the extent of Rs. 1,02,46,200/-. However,Hon'ble Supreme Court held that the said award of contract was the need of the hour and that besides the fact that the accused had caused wrongful gain to the third party, section 13(1)(d) of PC Act shall still be not attracted as it requires that the award of the contract, given by the accused public servant was by abusing his position as a public servant. In Sheetla Sahai's case (supra), Hon'ble Supreme Court, after going through the facts of the case, had observed that decision of the accused therein at the relevant time, was rather in the interest of State. But in the present case, I find that the land was sought to be allotted to the society having fictitious members whereas the CBI CASE NO.06/08 Page No.21 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) society had allegedly been liquidated, which do not show that the act was in the interest of State. Thus the facts of Sheetla Sahai's case could not be related to the facts of the present case and as such the ratio of law propounded by Hon'ble Supreme Court in that case is not applicable to the facts & circumstances of the present case.
30. Accused/Narayan Diwakar (A-2) has also relied upon judgment titled as A Subair Vs. State of Kerala, but I find that the said case was primarily the case of illegal gratification where no demand could be proved. Since instant case is not the case involving illegal gratification, therefore, there is no force in the submission of accused that demand should have been one of the ingredients of the offence alleged against him, which is lacking. Thus, he can not claim parity to the accused in A subair's case (supra).
31. The accused has further submitted that CBI has not adhered to the CBI Crime Manual and he has also relied upon judgment cited as Shashi Kant Vs. CBI, AIR 2007 SC 351 and P Sirajudeen Vs. State of Madras, AIR 1971 SC 520, to contend that the Central Government has laid down certain CBI CASE NO.06/08 Page No.22 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) procedures for conducting the investigation including the mode and manner in which the preliminary inquiry should be conducted by CBI which can later on be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence.
32. It is further argued that as soon as it is decided to register a PE, the SP of CBI will take action to get the PE registration report prepared, which will invariably be vetted by him and it can even be drafted by him in case of important inquiries. It is submitted that in the present case, the CBI Crime Manual was not adhered to as neither the approval fro the director of CBI was obtained for registration of PE nor the SP of CBI converted the PE into a regular case.
33. In the instant case, the charge sheet shows that pursuance to the directions of Hon'ble Delhi High Court, vide order dated 02.08.05 passed in writ petition (Civil) No.10066/04, the CBI conducted a thorough investigation in the matter of 135 Co-operative Group Housing Societies and thereupon the preliminary inquiry was registered and subsequently converted to regular FIR. CBI CASE NO.06/08 Page No.23 of 47
CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) The charge sheet does not disclose any such deviation by the CBI while registering or investigating the instant case.
34. It has been submitted by accused that requirement of Section 3 of DSPE Act has not been fulfilled by CBI as the offences under DCS Act, 1972 are not at all notified by the Government for investigation by CBI. In this respect, it suffice to observe that the accused is not being prosecuted for any offence under the DCS Act and, therefore, there can not be any issue regarding non notification of offences under DCS Act, 1972.
35. Accused/Narayan Diwakar (A-2) has further submitted that the consent of State has not been obtained before commencing the investigation which is violative of Section 6 of DSPE Act.
36. In this respect, I fully agree with the submissions of ld.Special Public Prosecutor for CBI that the issue was answered by Hon'ble High Court in Crl.M C No.2784/07 dated 17.09.07, wherein it was observed as under:- CBI CASE NO.06/08 Page No.24 of 47
CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) " The investigation was referred to CBI in this case by the High Court. Once investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI.
Investigation is done by police under Cr.PC. There is no such thing as investigation under Delhi Co-operative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the charge sheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
37. In this respect the matter stands finally settled by the Judgment of Constitution bench of Supreme Court in State of West Bengal & Others Vs. Committee for Protection of Democratic Rights CA No.6249-50/2001 decided on 17.02.10 wherein Hon'ble Supreme Court has observed as under:-
44.Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:-
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights CBI CASE NO.06/08 Page No.25 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution , the distribution of CBI CASE NO.06/08 Page No.26 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of " the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review" .
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
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(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of the either the doctrine of separation of power or the CBI CASE NO.06/08 Page No.28 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) federal structure.
45. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
38. Thus, I find that there has been no violation that Section 3 & 6 of DSPE Act by the CBI as claimed by accused/Narayan Diwakar (A.2).
39. It has been submitted by accused/Narayan Diwakar that there was no illegality in the order of setting aside the winding up of the society because as per the judgment of Hon'ble Delhi High Court in Vikas CGHS Vs. Registrar of Co-operative Societies & Ors. (Civil Writ No.1767/96) and as per Rule 105 of DCS Act, 1972, the winding up proceedings of a society has to be closed within CBI CASE NO.06/08 Page No.29 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) one year from the date of winding up unless the period is extended by Registrar and proviso to Sub Rule 1 of Rule 105 provides that Registrar can extend the period not exceeding six months at time and the extension can only be granted for a period of three years. It was observed by Hon'ble High Court that in their view it has to be assumed that the order passed u/s 63 of DCS Act was cancalled and the society continues to exist. Thus, it has been submitted by accused/Narayan Diwakar (A.2) that even without his order the society in question was deemed to be existing and thus there was no impact of revival order passed by him. In the present case, this issue is not in question and in fact the allegations against accused/Narayan Diwakar are very clear that he passed the order of cancellation of winding up of the society in conspiracy with other accused persons for the purpose of obtaining for himself or for private accused persons a valuable thing or pecuniary advance i.e. allotment of land by DDA at cheaper rate and thus he abused his position as a public servant without holding any public interest while holding office as a public servant.
40. Arguing his application to invoke the doctrine of party, it has been submitted by accused/Narayan Diwakar (A.2) that as per circular No.02/2010 CBI CASE NO.06/08 Page No.30 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) dated 11.03.10, a police decision was taken by CBI clarifying that employees of National Agricultural Co-operative Marketing Federation of India Limited (NAFED) are not public servants under P.C.Act, 1988, hence there would be no requirement of seeking permission of the Government u/s 6 A of DSPE Act, 1946 or sanction of the Government for prosecution u/s 19 of the P.C.Act, 1988. Accused Narayan Diwakar (A.2) was working as a Registrar of Cooperative Societies and he was not an employee of a society registered under DCS Act, hence he or other employees of RCS can not claim parity with employees of NAFED, who may be employees of that society. In one of his applications accused Narayan Diwakar has also prayed for adjourning the matter sine die as a writ petition filed by him bearing No.1038/08 is pending for disposal before Hon'ble High Court. CBI has filed reply to the application informing the Court that accused Narayan Diwakar had filed a miscellaneous application Cr.M.A.No. 9459/08 for staying the proceedings in various trial courts but Hon'ble High Court did not issue any stay order. In view of this fact and also keeping in mind that this case is more than five years old which has to be speedily disposed of, I do not find any force in the prayer of accused Narayan Diwakar (A.2) for adjourning the matter sine die and thus his application does not hold any merit, CBI CASE NO.06/08 Page No.31 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) hence liable to be dismissed. Thus, I find that none of the legal submission and applications of accused/Narayan Diwakar (A.2), as discussed above, hold any merits, hence dismissed.
41. He has also relied upon judgment of Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar reported as 1979 Cri.LJ 153, wherein it was held by Hon'ble Supreme Court that while considering the question of framing of charge, the court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
42. Now, coming to the allegations against accused Narayan Diwakar, as per charge sheet as elicited by the evidence arrayed by the prosecution, the original file of Taj CGHS Ltd. and amalgamated file of Taj Sartaj CGHS were dishonestly and fraudulently made to disappear from the office of RCS where CBI CASE NO.06/08 Page No.32 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) accused Narayan Diwakar was posted as RCS and subsequently by using the old name of Taj CGHS with its old registration No.135H , an application was submitted by accused Anna Wankhede on 1.10.03 claiming himself to be the Secretary of Taj CGHS with request to cancel the winding up order and revive the society u/s 63(3) of DCS Act, 1972. Accused Faiz Mohd., who was Grade-II Inspector had processed the application of Anna Wankhede on 18.11.03 and had forwarded the same through accused D.N.Sharma (NW) to JRCS. The JRCS observed on the note sheet dated 21.11.03 that the request of Anna Wankhede is not supported by any documentary evidence and as such advised AR (NW) to obtain copies of registration certificate, liquidation order, Registered Bye-laws and list of members etc. from the society. Anna Wankhede supplied the copies of aforesaid documents vide his letter dated 10.12.03 in response to the letter of D.N.Sharma dated 28.11.03 and the copy of list of members supplied by accused Anna Wankhede was handwritten without any authentication and it was also accompanied by a bogus/forged registration certificate bearing the wrong date of registration and wrong address of the society at the time of registration. The copy of liquidation order submitted by accused Anna Wankhede was also a bogus/fake liquidation order as CBI CASE NO.06/08 Page No.33 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) Sh.M.L.Ahuja (PW.19) who was appointed Liquidator, has stated that liquidation order and date appearing on the bogus/fake liquidation order are different from original one and also stated that signature of Ashok Bakshi, the then Deputy Registrar, as appearing on the bogus liquidation order was also forged. Thus the RCS officials including accused Narayan Diwakar, then RCS failed to verify the liquidation order, the copy of which was marked to different Government departments such as DDA, Revenue Department of Government of NCT, Delhi State Cooperative Bank and branches/zones in the office of RCS etc. Sh.G.S.Meena (PW.30), Joint Registrar in the office of RCS stated that said liquidation order could have been verified from gazette notification issued as per section 94(4) of DCS Rules, 1973 and since the society was shown wound up in the year 1979 and the liquidator was appointed , it could have also been checked up whether the registration of said society was cancelled u/s 19 of DCS Act, 1972.
43. Accused Narayan Diwakar had proved the proposal to re-construct the file of the society, on the basis of the records available with the society and to appoint accused Ram Nath-Grade-II Inspector as Inspecting Officer to CBI CASE NO.06/08 Page No.34 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) conduct inspection of the records of society u/s 54 of DCS Act, 1972 who gave a false and fabricated report. Accused Narayan Diwakar also did not raise any question about missing of the original file of the society. He also did not lodge a police complaint or took any action to fix responsibility on the Officer/Official of RCS to whom the cause of missing of record could be attributed. On recommendation of accused Faiz Mohd. and D.N.Sharma, accused Narayan Diwakar had approved the issuance of notice u/s 63(3) of DCS Act, 1972 on 23.01.04 to cancel the winding up order. In the note dated 10.02.04 (D.3 page 7/N) he has shown presence of accused Anna Wankhede, a self proclaimed Secretary of the society and directed the AR to conduct spot verification of the membership and submit report on next date of hearing which was fixed for 24.02.04. There is nothing on record to show as to what had happened on next date fixed i.e. 24.02.04. However, subsequently the AR did not do any spot verification of membership and did not make any report in this respect and instead he made a report on 20.02.04 that the physical verification of 14 members out of 135 members have been done by accused Faiz Mohd. whereas accused Faiz Mohd. had submitted bogus report alongwith bogus/fake physical verification slips (D.3 page 81/C) but despite this he accepted the CBI CASE NO.06/08 Page No.35 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) recommendation of accused Faiz Mohd. and D.N.Sharma as is apparent from his note dated 09.03.04 (D.3 of page 18/N). In his order dated 09.03.04 (D.3 page 18/N) accused Narayan Diwakar had falsely recorded that winding up order passed by the then Deputy Registrar shows that no proper procedure was followed while winding up the society as the reasons given were not adequate for initiating such an extreme step. He also pointed out that society was not given sufficient opportunity either to reply to the SCN issued or to rectify the shortcomings mentioned in the notice issued by RCS and on that date he reserved the case for order. When the original files were missing from the RCS office and the order of then Deputy Registrar for winding up of society was also not available with the RCS office, the observation of accused as RCS and thereupon cancellation of bogus/fake winding up order dated 23.08.79 and revival of Taj CGHS with immediate effect subject to condition that the pending audit and the election of Managing Committee, shall be got completed within two months' time, speaks volume about his intentions. He also appointed Sanjeev Bharti Grade-III to act as an Election Officer to conduct the election of the society and vide letter dated 11.03.04 accused D.N.Sharma, AR (NW) had forwarded the name of society to AR (Policy) alongwith approved list of 135 CBI CASE NO.06/08 Page No.36 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) members with request to forward the list of members of the society to DDA for allotment of land whereupon AR (Policy) had forwarded the name of society alongwith alongwith approved list of 135 members to DDA vide letter dated 25.03.04. It is also noted that although the winding up order was made conditional yet the name of the society was forwarded to DDA on 25.03.04 itself for allotment of land as neither the elections were conducted nor any audit of the society was got done before forwarding the name of society to DDA for allotment of land. This clearly indicates pre-set mind of accused Narayan Diwakar who was then RCS. Thus I find that there is sufficient evidence available against accused Narayan Diwakar to frame charge against him.
44. As regards accused Faiz Mohd.(A.5), his Ld. counsel Sh.S.K.Bhatnagar has submitted that there is no sufficient evidence to frame charge against accused Faiz Mohd. He has also submitted that mere forwarding of the list of members to DDA would not bring out any offence against accused as no land was ultimately allotted by DDA in the name of Taj CGHS(subsequently name changed to Golden Valley CGHS Ltd.) CBI CASE NO.06/08 Page No.37 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS)
45. It has also been submitted by Ld. defence counsel that accused Faiz Mohd. was Grade-II Inspector and not a Dealing Assistant but still his superior authority failed to note as to why the noting was put up by him whereas it was not his duty. On the other hand, Ld. Public Prosecutor has submitted that this could be one more reason to believe that accused Faiz Mohd. was in conspiracy with other accused public servants and private persons to get the Taj CGHS revived fraudulently. He has also submitted that sufficient evidence is available against accused Faiz Mohd. to frame charge as it was accused Faiz Mohd. who processed the application of accused Anna Wankhede in the office of RCS which was forwarded by his co-accused D.N.Sharma to JRCS. The note (D.3) discloses that the liquidation order No.F.47/135/78/H/Coop./1690-99 dated 23.08.79 is mentioned in his note dated 20.11.03 (D.3, page 1/N), whereas in the request letter of accused Anna Wankhede dated 01.10.03 (D.3 page 1/C) the number of liquidation order was not at all mentioned. Subsequently, when the letter was sent by accused Anna Wankhede, as self proclaimed Secretary of Taj CGHS, on 10.12.03 (D.3 page 29/C) in response to the queries of RCS office vide letter dated 28.11.03, he replied by his letter dated 10.12.03 and mentioned the same liquidation order number and date which was mentioned by accused CBI CASE NO.06/08 Page No.38 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) Faiz Mohd. in his note sheet dated 20.11.01 and this prima facie shows the conspiracy between accused Anna Wankhede and accused Faiz Mohd. Vide his letter dated 10.12.03 accused Anna Wankhede had supplied copies of documents which included list of members which is handwritten without any authentication. It also included bogus/forged registration certificate submitted by the society and the address of the society on the date of registration i.e. 24.06.72 was shown as C-156, Minto Road Complex, New Delhi whereas original Taj CGHS was registered on 15.06.72 at the address of 2241, Dakotan Street, Turkman Gate, New Delhi which was changed to C-156, Minto Road, New Delhi only on 15.05.84, therefore, it was clear that copy of registration certificate as submitted by accused Anna Wankhede to RCS office was bogus.
46. The copy of liquidation order submitted by accused Anna Wankhede to Faiz Mohd. is also bogus and liquidator Sh.M.L.Ahuja has been examined in this respect as PW.19. He also did not verify from DDA, Revenue Department, GNCT, Delhi, Delhi Cooperative Bank and different zones of RCS office to whom the copies of liquidation order were sent. In this respect statement of PW.3 G.S.Meena has been recorded. Faiz Mohd. also did not CBI CASE NO.06/08 Page No.39 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) propose any steps to be taken about missing files of Taj CGHS in the RCS office. He, vide his joint note with accused D.N.Sharma dated 20.01.04 had recommended revival of the society under Section 63(3) of DCS Act and to approve the list of 135 members of the society for allotment of land. . He alongwith accused D.N.Sharma recorded in the note sheet, the details of documents collected by co-accused Ram Nath Grade-II Inspector during verification of record. Thus he mentioned false facts in the note sheet. Not only this, he also submitted bogus/fake verification report on 19.02.04 showing that he conducted the spot verification of membership and while submitting the detailed note sheet , he reported that he had conducted physical verification of 10% of total members of Taj CGHS i.e.14 members out of 135 and stated that the same is functioning from B-3/66, Ashok Vihar, Phase-II, New Delhi since 16.03.79. He submitted physical verification report dated 16.12.04 about 14 fictitious members alongwith photo copies of their ration cards. In this respect, the postmen and officials of rationing department have been examined by IO whose statements are available on record and the Inspection Report of Faiz Mohd. is available at page 81/C of document No.D.3. Thus , court is of the opinion that prima facie case is made out against accused Faiz Mohd. as well, CBI CASE NO.06/08 Page No.40 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) to frame charge against him.
47. As regards accused D.N.Sharma (A.3) it is clear that he had forwarded the note of Faiz Mohd. to J.R. and he was the first rank of the Desk Officer who had a duty to check and verify every facts recorded by his subordinate staff i.e. Faiz Mohd., in the note put up to him. Whereas the original files of Taj CGHS were missing, no adequate steps were taken by him to locate the same or take appropriate steps for fixing the responsibility for missing of the files. He had recommended the note put up to him by accused Faiz Mohd. and it was on his recommendation that accused Ram Nath-Grade-II Inspector was appointed as Inspecting Officer u/s 42 of DCS Act, 1972 to verify/examine the records of the society to bring out the factual position of society as per note dated 30.12.03, who had given a bogus/fake inspection report as available at page 51/C of D.3. He ignored verification of liquidation order, a copy of which was filed by accused Anna Wankhede and then he falsely recorded in the note that accused Ram Nath had visited the office of society. He put up a joint note with accused Faiz Mohd. recommending revival of Taj CGHS and approval of list of 135 members submitted by accused Anna CBI CASE NO.06/08 Page No.41 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) Wankhede of which 134 members were fictitious members. While RCS had directed him to conduct spot verification, he did not do so and had recorded that Faiz Mohd. had conducted physical verification of 10% of the members and as it has already been discussed, the same was a fake/bogus report. The sanction of prosecution of D.N.Sharma was obtained by CBI which is on record.
48. Accused D.N.Sharma (A.3) has made written submissions in support of his arguments on charge which have been perused by me carefully. His basic defence is that he was posted as AR (North West) only on 10.06.03 and that he was new to this job and therefore, what had happened is, due to his ignorance. Thus, the submission of accused D.N.Sharma is in fact his defence which cannot be considered at this stage as only a prima facie case has to be seen for framing of charge against him. On the basis of facts discussed above and documents and witnesses arrayed by the prosecution, I find that a prima facie case exists against him to frame charge.
49. As against accused No.4 Ram Nath, it has been submitted by his Ld. counsel Sh.S.K.Bhatnagar that accused Ram Nath has been falsely CBI CASE NO.06/08 Page No.42 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) implicated in this case. He has submitted that accused Ram Nath has not violated any rule under DCS Act and he had submitted the report as per his duty assigned by the office of RCS. In this respect, I find that he being Inspector Grade-II, was appointed by RCS on the recommendations of accused Faiz Mohd. and D.N.Sharma as Inspecting Officer to conduct inspection of the society u/s 42 of DCS Act, but he submitted a false/bogus report on 19.01.04 (D.3, page 51/C) by falsely mentioning therein that he visited the office of society at B-3/66, Ashok Vihar, Phase-II, New Delhi and that audit of the society was conducted since 1971 (Although year of registration of society was 1972), whereas during investigation it was found that no society office ever existed on the said address. As per records collected by him, he had shown that there were five office bearers i.e. S.K.Sharma as President, Chaman Lal as Vice President, Anna Wankhede as Secretary, Smt.Anita Sharma as Treasuer and Smt.Pushpa Devi as member, whereas on investigation, Sh.S.K.Sharma, Chaman Lal, Anita Sharma and Pushpa Devi have been found to be fictitious persons and not existent. In fact during investigation it was found that except Anna Wankhede there was no real person in the list of 135 members which all have been found to be fictitious. The sanction for his prosecution was obtained CBI CASE NO.06/08 Page No.43 of 47 CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) which forms part of record. The owner of House No.B-3/66, Ashok Vihar, Phase-II, New Delhi namely Sh.Ashwanti Mittal has been examined as PW.24 in this respect to show that accused Ram Nath never visited said house and that no society office ever worked from his address. Thus, I find that sufficient evidence exists against accused Ram Nath (A.4) to frame charge against him.
50. As against accused Sri Chand (A.6), the only submission in the charge sheet is that it was he who had approached M/s Vibha Ads on 30.12.04 and a sum of Rs.21,777/- in cash was deposited by him for issuance of public notice in the name of Golden Valley CGHS Ltd., which was in turn paid by Vibha Ads to H.T. Media Ltd. New Delhi for publishing an advertisement on behalf of the society. Sh. Naresh Saxena has been examined as PW.38 by CBI u/s 161 of Cr.PC to show that it was Sri Chand who had paid the money to M/s Vibha Ads for publication of advertisement in the name of M/s Golden Valley CGHS Ltd. In fact as per the charge sheet the notice was published by RCS in the newspaper directing the members of society to furnish fresh affidavits in support of their membership. In this respect Sh.R.P.Shukla, Ld. counsel for accused Sri Chand has submitted that by the time when amount of Rs.21,777/- CBI CASE NO.06/08 Page No.44 of 47
CBI VS.ANNA WANKHEDE ETC.(TAJ CGHS) was paid to M/s Vibha Ads on 30.12.04, the list of approved members was already forwarded to DDA as the order was already passed by RCS for revival of the society on 11.03.04 and the approved list of members was forwarded to DDA on 25.03.04. Under such circumstances, even if it is accepted that the payment was made by accused Sri Chand for advertisement, it does not connect him to the criminal conspiracy in question.
51. It has been submitted by Ld. Public Prosecutor that in Lie Detector Test of accused Anna Wankhade , he had taken the name of accused Sri Chand as the person involved. But, I find that Lie Detector Test report does not carry any evidentiary value. He has also submitted that as per the case of prosecution, Sh.V.K.Gulati was got engaged by accused Sri Chand for appearance before RCS for getting the society revived, but if we see statement of PW.31 Smt.Rashmi Gulati, wife of Sh.V.K.Gulati, Advocate it does not at all support the case of CBI that it was accused Sri Chand who got engaged a counsel for appearance in RCS for the purpose of getting revived Taj CGHS. Thus, no sufficient evidence is available against accused Sri Chand to frame a charge against him. He is accordingly discharged.
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52. In view of above discussion of facts and evidence arrayed by the prosecution to prove the case, I find that a prima facie case to frame charge u/s 120 B r/w Sections 420/468/471 r/w section 468 IPC, Section 13 (2) r/w 13 (1) (d) of P.C.Act, 1988 is made out against accused Anna Wankhede (A.1), Narayan Diwakar (A.2), D.N.Sharma (A.3), Ram Nath (A.4) and Faiz Mohd.(A.
5). Besides, a prima facie case to frame charge for substantive offence u/s 15 r/w Section 13 (1)(d) of PC Act, 1988 is made against accused public servants Narayan Diwakar (A.2), D.N.Sharma (A.3), Ram Nath (A.4) and Faiz Mohd.(A.
5). The prima facie case to frame charge for substantive offences u/s 420/468 and 471 r/w 468 IPC is made out against accused Anna Wankhede (A.2) and substantive offences u/s 468 and 471 r/w 468 against accused Ram Nath (A.4) and Faiz Mohd. (A.5) are also made out. I, therefore, direct that the charge be framed against accused persons accordingly. Accused Sri Chand (!.6) stands discharged and therefore, his bail bond is cancelled and surety stands discharged.
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53. It is clarified that nothing in this order shall be taken as comments on the merits of the case.
Announced in the open ( R.P.PANDEY )
Court on 30.04.12 SPL.JUDGE, CBI (01),
ROHINI COURTS, DELHI
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