Delhi District Court
Cbi vs . Gokul Chand Aggarwal Etc. (Swarn Cghs ... on 21 December, 2020
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
IN THE COURT OF SH. VIRENDER BHAT
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
CBI No. : 220/2019
CNR No. : DLCT11-000877-2019
FIR No. : RC.17(A)/2005/SCU-V/SCR-II/CBI/New
Delhi.
PS : CBI/SCU-V/SCR-II/CBI/New Delhi.
U/s : 120-B IPC r/w Section 420, 468, 471 of IPC
and Section 420/511, 468 & 471 IPC and
Section 13 (2) r/w Section 13 (1) (d) of
P.C. Act, 1988 and Section 15 r/w Section
13 (1) (d) of P.C. Act, 1988 and
substantive offences thereof.
State
Through
Central Bureau of Investigation
New Delhi.
Versus
CBI Case No. 220/2019 Page No. 1 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
1. Gokul Chand Aggarwal
S/o Late Jagdish Prasad
R/o A-603 & 703, Ashoka Aptts.
Plot No. 36/2, Rohini, Sector-9,
Delhi-. .........................................(A-1)
(Since proclaimed offender vide order dated 10.07.2018)
2. Narayan Diwakar
S/o Late Sh. Chatti Lal,
R/o G-30, Masjid Moth, Great Kailash,
Part-II, New Delhi-110048. ................ (A-2)
3. Daya Nand Sharma
S/o Late Sh. Ram Diwaya Sharma
R/o 1378, Rani Bagh, Shakur Basti,
Delhi-110034. ................................(A-3)
(Since expired. Proceedings against him stood abated vide
order dated 22.11.2017)
4. Uday Shankar Bhatnagar
S/o Late Sh. S.S. Bhatnagar,
R/o B-4/74, Type-II,
Delhi Administrative Flats,
Timar Pur, Delhi. ............................... (A-4)
5. Faiz Mohd.
S/o Sh. Gulam Mohd.
R/o 3794, Ahata Kitara,
Pahari Dheeraj,
Delhi-110006. ..................................... (A-5)
CBI Case No. 220/2019 Page No. 2 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
6. Ashwani Sharma
S/o Late Sh. R.K. Sharma,
R/o 291-A, Pocket-C, Mayur Vihar,
Phase-II, Delhi. .................................. (A-6)
7. Naveen Kaushik
S/o Late Sh. M.D. Sharma
R/o I-2/38, 2nd Floor,
Sector-16, Rohini,
New Delhi-110085. .............................. (A-7)
8. Kamal Singh
S/o Late Sh. Bakhtawar Singh
R/o 677, VPO Badli,
Delhi. ............................................... (A-8)
Date of Institution : 29.03.2007
Date of judgement reserved on : 16.12.2020
Date of pronouncement of judgement : 21.12.2020
J U D G E M E N T:-
1. The above named accused had been charge-sheeted by the CBI, the prosecuting agency in this case, for having committed offences punishable under Section 120B IPC r/w Section 420, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 as CBI Case No. 220/2019 Page No. 3 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) well as substantive offences thereof. The case relates to the alleged forgeries committed in the records of a Group Housing Society namely Swarn CGHS Ltd.
2. Accused Narayan Diwakar, accused D.N. Sharma, accused U.S. Bhatnagar, accused Faiz Mohd. and accused Kamal Singh were the public servants at the relevant time. Narayan Diwakar was posted as Registrar Cooperative Societies, New Delhi, D.N. Sharma was posted as Assistant Registrar (North-West Zone), U.S. Bhatnagar was posted as UDC in the office of Registrar, Faiz Mohd. was posted as Head Clerk and Kamal Singh was posted as LDC/Auditor in the said office. Accused Gokul Chand Aggarwal, Ashwani Sharma and Naveen Kaushik are private persons who are stated to have hatched the conspiracy involved in this case.
3. It appears that Swarn CGHS Ltd was registered as a Cooperative Group Housing Society on 27.07.1972 with 24 promoter members. It further appears that the members of the society were not taking any interest in the affairs of the society and the society failed to fulfil its statutory obligations as as provided under DCS Act, 1972 as well as Rules/Bylaws framed thereunder and therefore, an order dated 08.01.1979 was issued by the then Deputy Registrar Sh. Ashok Bakshi liquidating the society. Be it noted here that these factual aspects could not be verified either during the investigation of this case or during its trial before this Court as the original file containing the records about registration and liquidation of the society was stated to be not traceable in the office of Registrar, Co-operative Societies.
CBI Case No. 220/2019 Page No. 4 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Prosecution Case
4. It is alleged that on 08.08.2003 i.e. after about 24 years from the date when the society was put under liquidation, a request was submitted on behalf of the society by one Sh. Suresh Chand in the capacity of its Secretary, for cancellation of the liquidation order and revival of the society. The office address of the society was shown as 52, Samay Pur Road, Libas Pur, Delhi-110042. When the said request of the society was processed in the office of the Registrar Cooperative Society, New Delhi, it was found that the original file of the society is not traceable and further proceedings were conducted with the file which was reconstructed on the basis of documents supplied by the society.
5. It has been found during the course of investigation that all the documents submitted by the society were fictitious and forged. It came to be known that Suresh Chand is a non-existent person where as accused Gokul Chand Aggarwal was a regular visitor to the RCS office and was well known to the officers/officials of said office. It has been found during the investigation that Gokul Chand Aggarwal has forged the signatures in the name of Suresh Chand as Secretary on revival application, inspection report, minutes of meetings as also the signatures of 88 persons on various affidavits, signatures of 55 applicants on enrollment forms, signature of Ajay Gupta, Suresh Chand and Praveen Kumar as President, Secretary and Treasurer respectively on the audit report of the society as well as on the list of members of the society. He has also written the names of promoter members of the society and forged their signatures on the copy of CBI Case No. 220/2019 Page No. 5 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) bylaws of Swarn CGHS Ltd. He has also forged the registration certificate of the society dated 27.07.1972.
6. With regards to the affidavits of the members of the society, it was found during the investigation that the stamp papers do not bear the name and address of the stamp vendors. All the affidavits are shown to have been sworn on 28.11.2003 and attested by Sh. Arun Kumar Gupta, Notary Public whereas Arun Kumar Gupta had expired on 15.01.2002. This is clearly demonstrate that all these affidavits were forged. It is further alleged that accused Naveen Kaushik had forged various writings on the proceedings registers of the society in addition to the signatures on the nomination forms for the elections and also on the resignation letters. It has further been found that the documents including inspection reports, letters, election reports, affidavits, consolidated list of members, resignations/enrollments, receipts and payments as well as the balance-sheet etc. used for revival of the society were prepared on the computer of accused Ashwani Sharma.
7. The case of the prosecution is that since the accused public servants who dealt with the request of the society for its revival, had colluded with the private persons by joining hands with them as co- conspirators, none of them discharged his duties honestly, diligently and for the public good. With the result, none of these public servants, who were responsible officials/officers, made any effort at all to scrutinize diligently the documents submitted on behalf of the society and thus processed the file with closed eyes. In pursuance to the said conspiracy, allegedly, accused Faiz Mohd. put up the notes dated CBI Case No. 220/2019 Page No. 6 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) 02.12.2003, 03.12.2003 and 09.12.2003 mentioning about the request of the society for its revival and approval of its final list of members for allotment of land. He also recommended appointment of accused U.S. Bhatnagar as inspecting officer for verification of the records/documents of the society. The note was endorsed by accused D.N. Sharma (AR) and approved by accused Narayan Diwakar (Registrar). Accordingly, accused U.S. Bhatnagar was appointed as inspecting officer to report about the society but he, without making any verification of the society and its members, submitted a tailor made report in connivance with accused Gokul Chand Aggarwal. Accused D.N. Sharma blindly acted upon the said false report submitted by accused U.S. Bhatnagar and approved the revival of the society. The inspection report dated 30.10.2003 submitted by accused U.S. Bhatnagar bears the signature of non-existing person Suresh Chand as the Secretary of the Society. Accused Faiz Mohd., upon receipt of the inspection report, submitted noted dated 03.12.2003 recommending the revival of the society and approval of its freeze list of members. Finally, vide order dated 04.12.2003 passed by accused Narayan Diwakar, the society was revived. The reasons given by Narayan Diwakar for reviving the society are stated to be totally erroneous and extraneous which clearly show that he was bent upon reviving the society, being in criminal conspiracy with other accused persons. Sh. Mehta, Advocate and Ms. Shweta, Advocate, who are shown to have attended the Court of Registrar of Cooperative Societies on 04.12.2003 and 25.12.2003 on behalf of the society in connection with its revival request, have denied having represented the society before the Registrar. Also, vakalatnama of none of these two Advocates is in the file.
CBI Case No. 220/2019 Page No. 7 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
8. As per the prosecution, reports of GEQD, Hyderabad and GEQD, Shimla have affirmed the forgeries done in the records of the society by accused Gokul Chand Aggarwal, Naveen Kaushik and Ashwani Sharma.
9. After completion of the investigation and on the basis of facts and circumstances which emerged during the course of investigation, charge-sheet was submitted to the concerned Court against all the 8 accused. Sanction for prosecution u/s 19 P.C. Act, 1988 qua accused U.S. Bhatnagar and Kamal Singh duly accorded by their respective sanctioning authorities was filed along with the charge-sheet. No such sanction had been obtained qua other accused public servants probably for the reason that they had retired from services before filing of the charge-sheet.
Charges Framed Against The Accused
10. Vide order on charge dated 04.03.2014, it was held that the charges under Section 120B IPC r/w Section 420, 468, 471 IPC r/w Section 468 IPC and Section 13 (2) & 13 (1) (d) of PC Act, 1988 are liable to be framed against accused Gokul Chand Aggarwal, Narayan Diwakar, D.N. Sharma, U.S. Bhatnagar, Faiz Mohd., Ashwani Sharma, Naveen Kaushik and Kamal Singh. It was further held that the charges for the substantive offence under Section 15 r/w Section 13 (1) (d) of PC Act, 1988 are liable to be framed against public servants namely Narayan Diwakar, D.N. Sharma, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh. It was also held that the charges for the substantive offences under Section 420 IPC r/w Section 511, 468 and 471 IPC r/w CBI Case No. 220/2019 Page No. 8 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Section 468 IPC are liable to be framed against accused Gokul Chand Aggarwal whereas charges for the substantive offences under Section 468 and 471 IPC r/w Section 468 IPC are also liable to be framed against accused U.S. Bhatnagar and Kamal Singh. It was further held that the charge for the substantive offence under Section 468 IPC is liable to be framed against accused Naveen Kaushik.
11. Before the charges could be framed against the accused, D.N. Sharma expired and accordingly proceedings against him stood abated vide order dated 22.11.2017. Accused Gokul Chand Aggarwal stopped appearing in this case w.e.f. 13.03.2018 and accordingly after completing the requisite process as envisaged by the Code of Criminal Procedure, he was declared proclaimed offender vide order dated 10.07.2018.
12. Accordingly, in terms of the order on charge dated 04.03.2014, charges were framed against accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd., Ashwani Sharma, Naveen Kaushik and Kamal Singh on 10.07.2018. All of them abjured their guilt and hence, the trial was held.
13. Prosecution has examined 47 witnesses to bring home the guilt of accused. All the incriminating facts and circumstances which emerged from the evidence led by the prosecution were put to the accused in their examination under Section 313 Cr. P.C. The accused denied all such facts and circumstances and claimed innocence.
14. Accused U.S. Bhatnagar and Kamal Singh examined one witness each in their defence who are DW-1 and DW-2. None of the CBI Case No. 220/2019 Page No. 9 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) remaining accused chose to produce any evidence in their defence.
15. I have heard Ld. Public Prosecutor as well as the Ld. Defence counsels in detail on various dates. With their help, the entire oral as well as documentary evidence has been perused. I have also gone through the written submissions filed on behalf of the accused.
Arguments on behalf of the parties
16. Ld. Public Prosecutor argued that there had been no activity at all in the society Swarn CGHS Ltd after it was put under liquidation vide order dated 08.01.1979. He submitted that after about 24 years, the society was sought to be revived on the basis of fictitious and forged documents including the fictitious membership list. It is his submission that accused Gokul Chand Aggarwal was the main conspirator, who, with the active assistance from accused Ashwani Sharma and Naveen Kaushik and in pursuance to a well hatched conspiracy, forged the entire records of the society and annexed the same with the application for revival. He argued that the manner in which the application for revival of the society was processed in the RCS office blindfoldedly without raising any suspicion about the same and without conducting any bonafide verification of the records, even though the original file related to the society was not traceable, clearly manifests that those who dealt with it i.e. accused Faiz Mohd., U.S. Bhatnagar, Kamal Singh and Narayan Diwakar had joined the conspiracy along with these private accused and were acting in collusion with them. He argued that several persons who are shown to be the members of the society, have deposed before this Court that they had never become member of the said society and the evidence CBI Case No. 220/2019 Page No. 10 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) also shows that the affidavits of all the 144 members of the society had been manipulated/forged. It is his submission that accused Narayan Diwakar, the then Registrar Cooperative Societies, approved the revival of the society mechanically without ensuring actual bonafide verification of the records of the society including its membership list while also deliberately ignoring that the original file was not traceable in the office which was a good ground to put the records submitted by the society under intense scrutiny. He also pointed out that the GEQD opinion has confirmed forgery of documents by accused Naveen Kaushik and Ashwani Sharma. According to the Ld. Public Prosecutor, the evidence on record establishes the guilt of all the accused beyond any reasonable doubt and all of them are liable to be convicted.
17. Ld. Counsel for accused Narayan Diwakar argued that this was not a case in which society had been finally wound up and thus could not be revived. He pointed out that the society herein was only under liquidation when it was revived by the order passed by this accused and therefore, there was no requirement of any document for the purpose of its revival as its registration had not been yet cancelled. He argued that the accused, being the Registrar Cooperative Societies at the relevant time, adopted provisions under Section 54 and 56 of DCS Act in order to reach his own "subjective satisfaction". It is his submission that the Registrar may not follow the requisite procedure but still he can be subjectively satisfied that revival of the society is made out. He vehemently argued that the charges of the criminal conspiracy and corruption are not made out against this accused at all for the reason that the revival order passed by him was neither illegal CBI Case No. 220/2019 Page No. 11 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) nor contrary to the public interest. He submitted that there is nothing on record to show that the revival of the society was influenced by any corrupt or illegal means or was passed by him by abusing of his official position. He argued that the file was processed in its normal course and there was nothing unusual to raise suspicion. It is his submission that the evidence led by the prosecution nowhere suggests that the report of accused U.S. Bhatnagar was false or that he had given a false report on the asking of this accused Narayan Diwakar. He also argued that Mr. Mehta and Ms. Shweta whose names appeared as counsels for the society Swarn CGHS Ltd. in the order-sheet passed by the Registrar N. Diwakar, do not necessarily indicates that these two advocates were PW7 and PW8 who have been examined as prosecution witnesses and who have denied having appeared for the society in the Court of Registrar in this case. The Ld. Counsel argued that the prosecution has failed to prove the charges against this accused and hence he is liable to be guilty. It was also argued by the Ld. Counsel that whole trial against this accused is vitiated in the absence of sanction for his prosecution u/s 197 Cr. P.C which, according to the Ld. Counsel, was mandatory for the reason that he was a public servant and the acts for which he has been arraigned as accused in this case, were performed by him during the course of discharge of his functions as such public servant.
18. On behalf of accused Faiz Mohd., it was argued by his counsel that the file had been dealt with by Niranjan Singh before it was handled by this accused and the file had been reconstructed during the time it was being dealt with by Niranjan Singh but despite the same, Niranjan Singh has not been arraigned as an accused in this CBI Case No. 220/2019 Page No. 12 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) case. He further argued that the records of the society were checked by accused D.N. Sharma (Zonal Assistant Registrar) and not by this accused. Thus, according to the Ld. Counsel, no positive act in favour of the society was done by this accused and therefore, he cannot be stated to have committed any illegal act or that he was acting in conspiracy with other accused. He submitted that there is no evidence that this accused demanded any bribe from any person in this case or obtained any pecuniary advantage from any person. According to the Ld. Counsel, this accused had no knowledge that the documents submitted on behalf of the society were forged and he performed his functions bonafide without any illegal intention.
19. As regards accused U.S. Bhatnagar, it was argued by his counsel that there is no evidence to show that he had given a false verification report qua society in question. He submitted that this accused had conducted verification of the society as per prevalent rules and practices and the report submitted by him was absolutely correct. According to the Ld. Counsel, there is no allegation that he had violated any provisions of DCS Act and the Rules/Directives issued from time to time in this regard while discharging his duties in the RCS office. Ld. Counsel pointed out that there is no evidence to show that he demanded any bribe whatsoever for giving false report or that he had received bribe from any person or that any recovery had been made by CBI from him.
20. Arguing on behalf of accused Kamal Singh, Ld. Counsel submitted that he had entered into the scene after the revival order was passed by the Registrar and therefore, he cannot be said to be CBI Case No. 220/2019 Page No. 13 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) co-conspirator. He argued that the audit report submitted by this accused was examined by the officials/officers posted in the RCS office at the relevant time and none of them pointed out any irregularities in the same. He contended that the freeze list of the members of the society had already been approved much before the submission of the audit report by this accused and therefore, no criminal intent can be attributed to him. He also pointed out that there is no allegation to the effect that accused Kamal Singh had violated any of the provisions of DCS Act or the Rules framed thereunder or that any pecuniary gain was caused to him or anybody else by his alleged acts. He urged this Court to acquit the said accused.
21. A common submission was made on behalf of accused Faiz Mohd., U.S. Bhatnagar and Kamal Singh that since they were public servants and the acts imputed to them were performed by them during the discharge of official functions as public servants, it was mandatory for CBI to obtain separate sanction for their prosecution u/s 197 Cr. P.C qua offences under IPC alleged against them. It was argued that in the absence of any such sanction, the entire trial held against them was illegal and hence they deserve to be acquitted.
22. Ld. Counsel appearing for accused Ashwani Sharma submitted that the entire search in the house of this accused, in which a hard disc is stated to have been recovered from his computer containing certain incriminating documents related to this case, has been conducted in an illegal manner without complying with the provisions of Section 165 Cr. P.C. He pointed out that there is no authorisation on record in favour of Insp. Naresh (PW44) who conducted the said CBI Case No. 220/2019 Page No. 14 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) search. The search report was not sent to the concerned Court immediately after the search was concluded. He also pointed out that the search list as well as its annexures which have been filed before this Court are only photocopies and the annexures do not bear the signature of accused Ashwani Sharma at any place which fact creates a doubt in the genuineness of the said list. It is submitted by the Ld. Counsel that there is no evidence to show as to where the hard disc had been kept after it was allegedly recovered during the above search and before it was sent to CFSL, Kolkata for examination. It has also been pointed out by the Ld. Counsel that the original hard disc has not been produced on record and only certain printouts alleged to have been taken out from the same, have been filed on record but those too are not supported by any certificate under Section 65B of Indian Evidence Act. He further argued that even if these printouts are assumed to be genuine, their perusal shows that these documents were created in the year 2004 whereas the society had been revived in December, 2003 which fact is enough to suggest that these alleged incriminating printouts had nothing to do with the revival of the society. It is further submitted by the Ld. Counsel that expert Sh. I.S. Rao, who his stated to have examined hard disc and given the report, has not been examined and in his place Sh. N.C. Sood was examined who has merely identified the signatures of I.S. Rao on his report. Thus, according to the Ld. Counsel, accused were deprived of valuable right to cross-examine I.S. Roa on the aspect of the procedure adopted by him in examining the hard disc as well as on other aspects and therefore, the said report cannot be considered at all. Ld. Counsel further pointed out that the prosecution has not led any evidence to show that CFSL, Kolkata had been notified under Section 79 of the CBI Case No. 220/2019 Page No. 15 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Information Technology Act, 2002 for conducting examination of electronic documents/equipments and for this reason also the report of I.S. Rao is inadmissible in evidence. Ld. Counsel concluded by saying that there is no cogent and legally admissible evidence on record to establish the charges against this accused and therefore, he is liable to be acquitted.
23. On behalf of accused Naveen Kaushik also, it was argued by the Ld. Counsel that there is no legally admissible and trustworthy evidence on record to prove the charges against him. Referring to the testimony of PW46, who is stated to have been witness to the taking of specimen signatures/handwritings of this accused, Ld. Counsel argued that one cannot say with certainty that the person whose specimens were taken in the presence of this witness was accused Naveen Kaushik. Further, it is the submission of the Ld. Counsel that there is no original documents on record which allegedly has been forged by accused Naveen Kaushik and bears the signatures/writings allegedly forged by him. Ld. Counsel pointed out that all the documents which are alleged to have been forged by this accused i.e. nomination forms, proceedings registers, resignation letters etc. are the photocopies which do not fall within the ambit of "Secondary Evidence" envisaged by Section 63 of Indian Evidence Act and therefore, they cannot be looked into at all. It is his submission that even the expert opinion had been sought on these very photocopies without their being any evidence to show that these were true copies of their originals and thus the opinion of the handwriting expert deserves to be discarded on this point also. On these submissions, Ld. Counsel prayed for acquittal of this accused too.
CBI Case No. 220/2019 Page No. 16 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Court discussion on the evidence led by the parties and their rival submissions:-
24. It is the case of the prosecution that all the seven accused had entered into a criminal conspiracy and in pursuance thereof cheated the RCS office by forging documents on the basis of which the society Swarn CGHS Ltd. was got revived vide order dated 05.12.2003 passed by accused Narayan Diwakar, the then Registrar Cooperative Societies.
25. The 47 witnesses examined by the prosecution to bring home the guilt of accused can be classified conveniently into following heads:-
(I) Persons who had never become member of the society but have been shown to be the members of the society:-
PW-1 Sh. Daljeet Singh
PW-2 Sh. Pulkit Jain
PW-3 Sh. Deepak Talwar
PW-4 Sh. Inder Bhavan Singh
PW-5 Sh. Balwant Singh
PW-9 Sh. Ajay Gupta
PW-12 Sh. Paramjit Singh
PW-14 Sh. Badri Prasad
PW-26 Smt. Sarita Jain
PW-31 Sh. Balbir Singh
PW-35 Sh. Harjit Singh
CBI Case No. 220/2019 Page No. 17 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) PW-36 Sh. Tarlochan PW-40 Sh. Gurmeet Singh (II) Persons who had become members of the society in the year 1980 but denied their signatures on the membership application forms and affidavits in their names:-
PW-6 Sh. Vinod Kumar Singhal
PW-27 Sh. Sushil Kumar Singhal
(III) Other public witnesses:-
PW-7 Sh. S.P. Mehta
PW-8 Ms. Shweta Mishra
PW-10 Sh. Goverdhan Lal
PW-11 Sh. Gaurav Gupta
PW-13 Sh. Dwarka Nath Sareen
PW-15 Sh. Awnish Kumar
PW-34 Sh. Bisan Dass
PW-39 Sh. Krishan Kumar Bablani
PW-45 Sh. Ravinder Kumar Bansal
PW-46 Sh. R.S. Rawat
(IV) Witnesses from RCS office:-
PW-16 Sh. Sanjeev Bharti
PW-17 Sh. N.S. Khatri
PW-23 Sh. Ashok Bakshi
CBI Case No. 220/2019 Page No. 18 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) PW-24 Sh. Satya Prakash Sharma PW-25 Sh. Jagmal Singh PW-28 Sh. Yogi Raj PW-29 Sh. Virender Kumar Bansal (V) Postmen:-
PW-18 Sh. Rati Ram
PW-19 Sh. Ashok Kumar
PW-20 Sh. Chander Pal Singh
PW-21 Sh. Subhash Chander Bhardwaj
PW-22 Sh. Rajender Singh
(VI) Sanctioning Authority:-
PW-30 Sh. Vijay Kumar
PW-33 Ms. Naini Jayaseelan
(VII) Witnesses from CBI:-
PW-32 Sh. Lakhmi Chand
PW-37 Sh. Ram Kumar Aggarwal
PW-38 Sh. Shyam Lal Garg
PW-42 Sh. Santosh Kumar
PW-43 Sh. Binay Kumar
PW-44 Sh. Naresh Kumar Sharma
CBI Case No. 220/2019 Page No. 19 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) (VIII) CFSL Expert/ GEQD:-
PW-41 Sh. P. Venugopala Rao PW-47 Sh. N.C. Sood
26. It appears that a Cooperative Group Housing Society with the name Swarn CGSH Ltd. was registered in the office of Registrar Cooperative Societies, New Delhi in the year 1972 under the Registration No. 117 (H). The society had later on been put under liquidation vide order dated 08.01.1979 passed by PW23 Sh. Ashok Bakshi who was posted as Deputy Registrar in the office of Registrar Cooperative Societies, New Delhi at that time. It is further evident from the record that the application dated 08.08.2003 had been submitted in the RCS office on behalf of the society seeking its revival. The original application is on record in the file D-2 (I) Ex.PW43/2. Even though none of witnesses has referred to this application during their deposition yet it is not disputed by any of the accused. Since it has emerged as undisputed document, the same is hereby marked as Ex.J-1. This application bears the signature of one Mr. Suresh Chand in the capacity of the Secretary of the Society. It is on the letterhead of the society showing its address as 52, Samaypur Road, Libas Pur, Delhi-110042.
27. Along with the application for revival of the society, copies of the proceedings registers, affidavits of the members, membership application forms etc. were submitted in the RCS office. However, several members whose names find mention in the membership list submitted along with the revival application have been examined as CBI Case No. 220/2019 Page No. 20 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) witnesses in this Court as PW1, PW2, PW3, PW4, PW5, PW9, PW12, PW14, PW26, PW31, PW35, PW36 and PW40. They have categorically denied having become members of the society at any point of time. They have also denied their signatures on the membership application forms as well as the affidavits in their names.
PW6 and PW27 had become members of the society in the year 1980 but have denied their signatures on the membership application forms and the affidavits in their names stating that somebody has forged their signatures on these documents. PW 15 who was working as sub vendor under the stamp vendor namely P.R. Bhatia having licence No. 262, is relevant witness in this regard. When he was shown the 144 affidavits in the names of members of the society, copies of which were annexed along with the revival application, he stated that he did not sell stamp papers on which these affidavits have been prepared. Moreover, these affidavits are purported to have been attested by Sh. Arun Kumar Gupta, Notary Public on 28.11.2003. However, it has come in the evidence of PW11 that his father Sh. Arun Kumar Gupta, Notary Public had expired on 15.01.2002. Therefore, it is evident that the seal and signature of Sh. Arun Kumar Gupta, Notary Public had been forged upon these affidavits by somebody in the year 2003 in order to project falsely that these were genuinely attested by him.
28. Hence, no doubt can be entertained with regards to the fact that the entire records of the society had been forged in the year 2003 in order seek its revival. The membership list contains the names of the persons who had never taken membership of the society. Some of the names mentioned in the list have been found to be fictitious during the course of investigation as they could not be traced at all. The affidavits CBI Case No. 220/2019 Page No. 21 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) in the names of the members have been manipulated and forged. Even the signature of the Notary Public has been forged on those affidavits. It is, thus, manifest that the revival application had been sought on the basis of totally forged and fictitious documents.
29. The crucial question which now arises for consideration is whether the forgery in the records of the society was done in pursuance to any conspiracy as alleged by the prosecution and if so who were the conspirators and who is the actual imposter?
30. Sections 120 A and 120 B of the Indian Penal Code make conspiracy a substantive offence and renders the mere agreement to commit an offence punishable. The elements of a criminal conspiracy have been stated to be :-
(a) an object to be accomplished,
(b) a plan or a scheme embodying means to
accomplish that object,
(c) an agreement or understanding between two or
more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
31. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in CBI Case No. 220/2019 Page No. 22 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means. The essential ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evident or by circumstantial evidence or by both.
32. Like most crimes, conspiracy also requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the acts, and the intention to achieve the unlawful object of that agreement constitutes the required mental state. To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy. A major problem arises in connection with the requirement of an agreement in determining the scope of a conspiracy - who are the parties and what are their objectives. This determination is critical, since it defines the potential liability of each accused.
33. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give arise to a conclusive and irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the CBI Case No. 220/2019 Page No. 23 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
[See State Vs. Nalini (1999) 5 SCC 253, Yakub Razak Menon Vs. State of Maharashtra (2013) 13 SCC 1, Isher Singh Vs. State of A.P. (2004) 11 SCC 585, State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600, State of Karnataka Vs. J. Jayalalitha (2017) 6 SCC 263, Firozuddin Basheeruddin Vs. State of Kerala (2001) 7 SCC 596].
34. Upon receipt of the said revival application in the RCS office, a note dated 25.09.2003 has been put up wherein it is mentioned that the main file of the society is not available/traceable in the zone and it might have been tied up/lying with file of other zone and if agreed, circular may be issued to all the branches/zones to search/trace the same and if found, same ma be returned to this zone. The said note appears to have been approved by all the senior officers including the Registrar Narayan Diwakar. In the subsequent note dated 15.10.2003 prepared by Niranjan Singh, the then Head Clerk, it has been mentioned that the circular was issued to all the branches/zones vide letter dated 06.10.2003 to trace out the main file of the society within a week but no reply is received from any branch/zone and thus we may construct the main file from the records available with the society and appoint U.S. Bhatnagar, UDC, Grade-III as inspecting officer under Section 54 of DCS Act, 1972 to verify/examine the records of the society to bring out the factual position. PW28 has identified the CBI Case No. 220/2019 Page No. 24 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) signature of Niranjan Singh at point P-1 below this note and that of accused D.N. Sharma (since deceased), the then Assistant Registrar at point P-2. Accused D.N. Sharma has advised to wait for further one week and ultimately vide his endorsement dated 20.10.2003 approved the proposal to reconstruct the main file from the records submitted on behalf of the society. The proposal was ultimately approved by the Registrar i.e. accused Narayan Diwakar on 21.10.2003. PW16 has identified the signature at point A-1 below the said note in this regard.
35. It then appears that accused U.S. Bhatnagar, who was appointed as inspection officer for the society to examine and verify its records in order to bring out the factual position, submitted his report dated 30.10.2003 stating therein that :-
(i) He visited the office of the society at 52, Samay Pur Road, Libas Pur, Delhi-110042 on 30.10.2003 and met Suresh Chand, Secretary of the Society;
(ii) Suresh Chand produced all the relevant records of the society which showed that there are 144 members existing in the society but the list of members has not been approved by the RCS office;
(iii) Records of the society reveal that its registered office is E-159, Masjid Moth, New Delhi and present correspondence address is 52, Samay Pur Road, Libas Pur, Delhi-110042 which has been approved in the General Body Meeting dated 27.07.2003;CBI Case No. 220/2019 Page No. 25 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
(iv) The membership register is complete in all respect;
(v) The accounts of the society are pending for audit since its registration and the society has prepared upto date accounts till 31.03.2003 which have been seen by him and are ready for audit;
(vi) The proceedings registers is complete and the
proceedings of the last meeting of Managing
Committee held on 29.07.2003 have been found duly recorded therein;
(vii) Election of the Managing Committee of the Society was conducted in the General Body Meeting held on 27.07.2003 as per the DCS Act and the Rules framed thereunder;
(viii) All the society records are found under the safe custody of Suresh Chand, Secretary of the Society, who is the custodian of the records.
36. Perusal of the note dated 03.11.2003 prepared by Niranjan Singh (Head Clerk) shows that a letter dated 24.10.2003 had been issued to the Secretary of the Society directing him to produce the original records/documents for the purpose of reconstruction of the file of the society and in response to the same, following documents/records had been produced and taken on record:-
CBI Case No. 220/2019 Page No. 26 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
(i) Copy of registration certificate.
(ii) Copy of registered by-laws of the society.
(iii) Copy of proceedings of General Body Meeting dated 27.07.2003.
(iv) Copy of agenda notice dated 01.07.2003.
(v) Copy of service proof of agenda notice.
(vi) Copy of unaudited account since registration.
(vii) Copy of liquidation order under Section 63.
(viii) Copy of the nomination forms.
37. Upon receipt of the above noted documents from the society as well as inspection report submitted by accused U.S. Bhatnagar, the above note dated 03.11.2003 was prepared by Niranjan Singh with the request to the competent authority to consider the revival of the society under Section 63 (3) of DCS Act, 1972 and to approve the freeze strength of 144 members of the society for onward transmission to DDA for allotment of lands. This note has been approved by accused D.N. Sharma on the same day. PW28 identified his signature at point P-7 below the said note. Thereafter, vide endorsement dated 06.11.2003 upon the said note duly signed by the Registrar Narayan Diwakar at point A-2, notice was issued to the President/Secretary of the Society under Section 63 (3) of DCS Act, CBI Case No. 220/2019 Page No. 27 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) 1972 for initial hearing in the Court of the Registrar on 25.11.2003.
38. The order dated 25.11.2003 passed by the Registrar Narayan Diwakar shows that one Ms. Shweta, Advocate was present on behalf of the society. The Registrar directed his Reader to send the file to the concerned zone for verification of the membership and also to ascertain the audit/election position and adjourned the proceedings to 04.12.2003.
39. Below the aforesaid order dated 24.11.2003, there is a note dated 02.12.2003 prepared by accused Faiz Mohd. mentioning therein that Suresh Chand, Secretary of the Society attended the office on the said date and accordingly, original records of the society were verified. PW17 has identified the signature of accused Faiz Mohd. at point 'X' below the said note. PW28 has identified the signature of accused D.N. Sharma at point P-8 below the said note who has approved the same. The note is Ex.PW17/A. Thereafter, there is a detailed typed note prepared by accused Faiz Mohd. dated 03.12.2003 giving therein the entire history of the society including its resignation/fresh enrollments approved from time to time with the request for revival of the society under Section 63 (3) DCS Act, 1972 and approval of its freeze list of 144 members. In this note, it has been stated that there were 24 promoter members of the society and further 127 have been enrolled prior to 30.06.1986 but no member has been enrolled after 01.07.1986. It has also been stated that 7 members had resigned prior to 30.06.1986 and none had resigned after 01.07.1986. Accordingly, the membership freeze strength was taken as 144. This note has been duly approved by D.N. Sharma, the then Assistant Registrar vide CBI Case No. 220/2019 Page No. 28 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) his endorsement dated 03.12.2003 bearing his signatures at point P-9 which has been duly identified by PW28.
40. Thereafter, the hearing of the case took place in the court of Registrar Narayan Diwakar on 04.12.2003. The order passed by the Registrar on that date shows the presence of one Sh. Mehta, Advocate on behalf of the society. It would be apposite to reproduce the order passed by the Registrar Narayan Diwakar on that date:-
"4-12-2003 Shri Mehta, Adv. Representing the Society present.
The concerned zonal AR is also present and stated that an inspection u/s 54 of the DCS Act, 1972 was done by an Inspector of the Department who has given his favourable report. He further stated that he has checked up and verified each and every paper submitted by the Society. The Society has also submitted list of members as on date. The documents regarding holding of election are also scrutinized and found the same in order and as per DCS Act and Rules. He further stated that the society has prepared its books of accounts and submitted un-audited accounts till 31.03.2003. The concerned zonal officer finally recommended the case for the revival of the Society.
The winding up order passed by the then Dy. Registrar shows that proper procedure was not CBI Case No. 220/2019 Page No. 29 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) followed while winding up the society as the reasons given were not adequate for initiating such an extreme step for winding up the society. If there was any mis- management in the Society, it was appropriate to initiate action u/s 32 for setting the right working of the Society and then restoring the cooperative management. Such orders for winding up without proper application of mind is not conducive for revitalization and re-strengthening of the cooperative movement in Delhi.
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 decide the matter u/s 63.
There is nothing on record 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 order was passed, large number of societies were sound up without any valid and convenient reasons. It also appears that the Society was not given sufficient shortcomings mentioned in the notice issued by the RCS.
In view of the above, case is reserved for orders.
(N. Diwakar) R.C.S."CBI Case No. 220/2019 Page No. 30 of 66
CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
41. Thereafter, the Registrar i.e. accused Narayan Diwakar passed a detailed order dated 05.12.2003 thereby cancelling winding up order dated 08.01.1979 issued against the society and directing revival of the society with immediate effect subject to the condition that pending audit shall be got completed within two months time. He also appointed Sh. Sanjeev Bharti, Grate-III as election officer to conduct the election of the Managing Committee of the Society within two months of the date of the order.
42. The manner in which the application for revival of the society was processed in the RCS office as indicated by the above mentioned notes clearly reflects that the entire process was a mere formality or an eye wash and it had already been decided by the officers/officials posted in that office at the relevant time that the society has to be revived at any cost. Manifestly, there was no actual, honest and diligent effort to verify the records produced on behalf of the society including its membership list notwithstanding the fact that the revival was sought after about 24 years from the date when the society had been put under liquidation. No effort was made to check the identity of the person who had submitted the revival application on behalf of the society i.e. Suresh Chand as well as the other Managing Committee Members.
43. The revival application has been signed by one Suresh Chand in the capacity of the Secretary of the Society. His signatures also appeared at point Q-1 on the margin portion against note dated 02.12.2003 Ex.PW17/A indicating that he had produced the original records of the society before accused Faiz Mohd. on that day for CBI Case No. 220/2019 Page No. 31 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) verification. However, no such office bearer of the society namely Suresh Chand could be traced during the entire investigation in this case. As per the expert opinion of GEQD, Hyderabad Ex.PW41/2, these two signatures in the name of Suresh Chand along with the several other signatures on the records of the society in the name of Suresh Chand have been found to have been appended by accused Gokul Chand Aggarwal. It is, thus, manifest that accused Gokul Chand Aggarwal was fictitiously acting as the Secretary of the Society under the assumed fictitious name Suresh Chand and he had appeared before accused Faiz Mohd. on 02.12.2003 along with the original records of the society.
44. At the cost of repetition, it is to be noted herein again that the society was being sought to be revived after about 24 years from the date it had been put under liquidation. Further, the original file of the society maintained in the RCS office at the time of its registration was not traceable. These two circumstances were sufficient to cause alarm in the minds of the officers/officials posted in the RCS office who dealt with the revival application, requiring the representations made on behalf of the society would have been put to strict scrutiny. To the contrary, the application has been processed in a totally cavalier and malafide manner. No sincere effort has been made to trace the original file of the society. It is evident from the fact that the circular dated 06.10.2003 stated to have been issued to all the branches/zones to trace the original file of the society has not been brought on record. Nothing has been pointed out from the record from the side of the accused to show that any such circular had actually been issued and had been actually received by all the branches/zones CBI Case No. 220/2019 Page No. 32 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) in Delhi. The matter has not been reported to police and no departmental enquiry was initiated to identify the delinquent officials in whose custody the file should have been and who were responsible for its loss/misplacement.
45. One wonders as to where was the hurry in reconstructing the file of the society from unverified copies submitted on behalf of the society, without making strenuous effort to trace the file and without initiating the departmental eqnuiry in this regard. The file was an official record and its disappearance from the office could not have been taken so lightly. Loss or misplacement of official record from a Government office is a very serious issue which cannot be ignored or brushed under the carpet without fixing the responsibility on the delinquent officials. The revival of society could have waited for few more days or months. Since it was already lying dormant for about 24 years, a few more days a months would not have made any difference at all. The conduct of the Registrar Narayan Diwakar and his subordinate in the office on this issue raises a well founded suspicion that the file of the society may have been deliberately concealed and thrown away so as to make out a case for its misplacement/loss which would make the process of revival of the society easier on the basis of fictitious/forged documents.
46. A new file appears to have been reconstructed on the basis of the records submitted on behalf of the society by taking its genuineness for granted. The identity of the person submitting the record namely Suresh Chand was neither checked nor verified at any step by any of officials/officers particularly accused Faiz Mohd., U.S. CBI Case No. 220/2019 Page No. 33 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Bhatnagar, Kamal Singh and Narayan Diwakar. It is evident that none of these accused, who dealt with the revival application of the society, acted bonafidely, honestly, diligently and for the public good. In fact, they do not appear to have been discharging their functions as a public servants but only as the aids/facilitators for the private accused who had hatched the conspiracy with the object of getting the society revived on the basis of fictitious/forged documents. It is clear from their conduct that they too had joined conspiracy and thus were dancing to the tunes of private accused particularly Gokul Chand Aggarwal, who was the main conspirator and the brain behind the entire conspiracy.
47. Had these accused been honest and diligent in discharge of their functions as public servants in the RCS office, they would have easily detected the forgery in the records of the society. It was not a herculean task but only required the will and intent to discharge the public functions honestly. The copy of registration certificate of the society filed along with the revival application shows its registered office address as A-104, Phase-III, Ashok Vihar, New Delhi. It could not be compared or verified from the office record as the office record of the society was not traceable. So, eqnuiry should have been made at this address to find out as to whether any society actually functioned from there and if so, till when. Such an equiry would have revealed that no society was having its office at this address and its owner had no concern with the society Swarn CGHS. PW13 was the owner of this house till the year 2007 and has deposed that no society was having its office in the said premises. Further, the revival application shows the office address of the society as 52, Samay Pur CBI Case No. 220/2019 Page No. 34 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Road, Libas Pur, Delhi-110042. No enquiry was made to ascertain as to when and under which resolution of General Body or the Managing Committee was the office address shifted from Ashok Vihar to Libas Pur and whether intimation about the same was given to the RCS office. Furthermore, the inspecting officer i.e. accused U.S. Bhatnagar, in his report, has stated that registered address of the society is E- 159, Masjid Moth, New Delhi. Neither he nor any other officer has visited the said address for verification. No enquiry was made at all to know when and under which circumstances was registered office address of the society shifted to Masjid Moth address.
48. Secondly, membership list of the society which was submitted for revival contained the names of 144 members with the assertion that all of them had been inducted prior to the cut off date i.e. 30.06.1986 and none of them was enrolled thereafter. In fact, it has been stated that there were 24 promoter members of the society at the time of its formation in the year 1972. The record further show that 7 members resigned in various dates in the year 1973 whereas 127 fresh members were enrolled on various dates w.e.f. 11.08.1972 till 15.02.1975. Thus, it was stated that no member had been inducted in the society after February, 1975. The revival was sought in the year 2003 i.e. after about 28 years from the date when last member had been inducted in the society in the year 1975. In such a situation, it was not only proper but also incumbent upon the officers posted in the RCS office including the Registrar to issue notices to all the members in order to ascertain whether all of them are still alive and willing to continue their membership of the society. 28 years is a long period of time and anything could have happened during the said period. No CBI Case No. 220/2019 Page No. 35 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Rule and Regulation was required for doing so. Any honest and diligent officer would have resorted to this process in these circumstances in order to ensure that membership list of the society to be forwarded to DDA for allotment of land to the society contains the names of only bonafide members and not those of unwanted & fictitious persons as well land grabbers/property dealers. Since, no such effort was made by any of the accused public servants namely Narayan Diwakar, Faiz Mohd., U.S. Bhatnagar and Kamal Singh, who were involved in the revival process of the society in one way or the other, it is limpid that they were not performing their duties for public good but were acting only for personal gains or for causing benefit (pecuniary or otherwise) to the other conspirators i.e. private accused.
49. The arguments raised on behalf of accused Faiz Mohd. that the file of the society had been reconstructed during the time it was being dealt with by Nirajan Singh and no positive act in favour of the society was done by accused Faiz Mohd. which fact totally exculpates him from any liability in this case, is found to be without any merit. It is true that the copies of various documents related to the society were taken on record by D.N. Sharma, the then Zonal Assistant Registrar vide his note dated 03.11.2003 for reconstruction of the file. However, perusal of the note dated 02.12.2003 Ex.PW17/A of accused Faiz Mohd., clearly shows that the original records of the society had been produced by fictitious person Suresh Chand before him for verification. It was required by him to check the identity and authority of the person producing the records of the society before him, which he has not done. It also needs to be noted here that in terms of the order dated 25.11.2003 passed by the Registrar Narayan Diwakar, accused D.N. CBI Case No. 220/2019 Page No. 36 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Sharma (AR) had written a letter dated 28.11.2003, a copy of which is in the file D-2 (I) Ex.PW43/2, requesting the President/Secretary of the Society to produce the complete records of the society in original before him on 03.12.2003 at 11:30 am for verification. It is not understandable how and under whose authority did accused Faiz Mohd. verify the original records of the society on 02.12.2003 when the society was required to produce the original records before accused D.N. Sharma on 03.12.2003. His conduct clearly shows that he was a part of the conspiracy and was discharging his functions only for the benefit of the persons who were interested in revival of the society on the basis of fictitious documents.
50. Ld. Counsel for accused U.S. Bhatnagar argued that there is no evidence to show that he had given a false verification report qua the society in question and that he had conducted the verification of the society as per the prevalent rules and practices. In his report Ex.PW17/D, he states that the registered address of the society is E- 159, Masjid Moth, New Delhi and its present correspondent address is 52, Samay Pur Road, Libas Pur, Delhi-110042. Accordingly, he visited the said office of the society in Libas Pur to check the records of the society. He does not appear to have made any enquiry as to why the records of the society have been kept at Libas Pur office whereas its registered office is in Masjid Moth. Further, his report indicates that he too had met the fictitious person Suresh Chand claiming himself to be a Secretary of the Society and who purportedly produced all the relevant records of the society before him. He too did not check the identity and authority of the person producing the records of the society before him. The signatures in the name of Suresh Chand at CBI Case No. 220/2019 Page No. 37 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) point Q-15, on his report, as per the opinion of GEQD Ex.PW41/1, is appended by accused Gokul Chand Aggarwal. Hence, it is quite clear that he did not conduct the inspection in fair, proper, honest and diligent manner but believed the representations of accused Gokul Chand Aggarwal who impersonated as Suresh Chand before him and accordingly, gave a false report to the benefit of the conspirators.
51. So far as the Registrar i.e. accused Narayan Diwakar is concerned, apart from his conduct discussed in Paragraph Nos. 44 to 48 hereinabove, a bare perusal of his order dated 05.12.2003 vide which he directed the revival of the society, shows that he deliberately did not apply his mind to the facts and circumstances in which the society was sought be revived after a gap of about 24 years from the date it had been put under liquidation. He has proceeded to pinpoint unnecessary lacunas in the order dated 08.01.1979 vide which the society had been put under liquidation. The order nowhere reflects his subjective satisfaction to the fact that the society needs to be revived for the benefit of its members. He has blindfoldedly believed the representations of the Assistant Registrar (North-West) that the Managing Committee of the Society was continuously managing the affairs of the society without bothering to ascertain if that was so, why did the Managing Committee maintain eerie silence for a long period of 24 years after the society was put under liquidation in the year 1979. He permitted a couple of lawyers to represent the society during the hearings before him without recording their complete names and without obtaining proper vakalatnamas/authority letters from them. His conduct also shows that the revival of the society was a foregone conclusion and he was conducting the proceedings only as a formality CBI Case No. 220/2019 Page No. 38 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) without any bonafide intention to enquire into the actual affairs of the society.
52. It is very difficult to accept that these officers posted in the RCS office at the relevant time and dealt with the revival application of the society, were so inefficient as not to know how to deal with the revival application in such a situation. They were not fresh appointees but were very experienced officers. It also cannot be a mere coincidence that both of them dealt with the file of the society in such a negligent and inefficient manner. Their acts of commission or omission, discussed hereinabove, leave no doubt in one's minds that they had been doing so upon obtaining pecuniary advantage either for themselves or for some other persons.
53. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or CBI Case No. 220/2019 Page No. 39 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal misconduct, -
(d) if he, -
...................................................
...................................................
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
CBI Case No. 220/2019 Page No. 40 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
54. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary
advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section
13);
(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub- section (1) (d) (i) (iii) of Section 13);
55. Thus, in order to attract Section 13 (1) (d) (ii), the prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person without any public interest. Use of CBI Case No. 220/2019 Page No. 41 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
56. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
57. Upon the detailed analysis of the said provision of law, Hon'ble High Court, in the aforesaid judgement, came to the conclusion that mens rea is inessential to convict the accused for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, CBI Case No. 220/2019 Page No. 42 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) it has been observed in Para No. 73 of the judgement is as under :-
Para No. 73. "Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court-the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)
(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".CBI Case No. 220/2019 Page No. 43 of 66
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58. Explaining the concept of "public interest", there Lordship referred to the judgement of Supreme Court in LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgement:-
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined toe act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgement, has examined the concept, in NOIDA Entrepreneurs Associate."
59. Their Lordships also referred to another judgement of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under : -
The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by Crl. A. Nos. 482/2002, 509/2002 and 536/2002 Page 54 virtue of which he acts on behalf of the State or public body is ultimately CBI Case No. 220/2019 Page No. 44 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
60. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned CBI Case No. 220/2019 Page No. 45 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) public servant are absolutely unfair, unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
61. It is true that in this case, CBI has not produced any evidence to show that accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh had received any valuable thing or pecuniary advantage for themselves. However, it is manifest beyond any reasonable doubt that they had been acting in collusion with the private accused/conspirators who were interested in the revival of the society on the basis of fictitious documents and were assisting them in every possible way to ensure that the society gets revived on the strength of fake documents. Certainly, they have acted without any public interest.
62. So far as charge of conspiracy framed against these four accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh is concerned, reference to Section 10 of Indian Evidence Act is necessary. It may be noted here that very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicates that it would not be entertained at a public place or on a high pedestal. Such agreement are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult together direct evidence to prove a conspiracy. Considering this difficulty, Section 10 of the Indian Evidence Act was enacted which reads as under :-
"10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired CBI Case No. 220/2019 Page No. 46 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
63. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
(i) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy ;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the other ;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ;CBI Case No. 220/2019 Page No. 47 of 66
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(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ;
(v) It can only be used against co-conspiractor and not in his favour.
64. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not CBI Case No. 220/2019 Page No. 48 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
65. In the instant case also there is no direct evidence on record to show that there had been any agreement between these four accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh on one hand and the private accused on the other hand. However, the evidence on record clearly shows that these four accused had been acting in connivance with the private accused. The criminal acts performed by these four accused were certainly the result of an agreement between them and the private accused. Therefore, the evidence on record provides prima-facie reasonable grounds to CBI Case No. 220/2019 Page No. 49 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) believe that they conspired with the private accused and the object of the conspiracy was to get the dormant society revived on the strength of fake/forged documents. Therefore, whatever has been done by each of the accused is evidence against each of them. The prosecution has been successful in establishing the charge of conspiracy against these two accused also.
66. It was contended on behalf of accused that there was no cheating at all as no wrongful has been caused to anyone and there was no corresponding wrongful gain to anybody on account of alleged acts of the accused and therefore, the ingredients of Section 415 IPC are not fulfilled. According to them, there is nothing on record to suggest that any loss was caused either to DDA or to RCS office. The submission is that since the crucial ingredient of the offence of cheating is missing, accused cannot be convicted for the said offence or for the offence of conspiracy. I find these contentions and submissions made on behalf of accused absolutely devoid of any merit.
67. The definition of cheating is provided in section 415 of Indian Penal Code. One of the essential ingredients of the offence of cheating is that the alleged act must have been committed either dishonestly or fraudulently. Section 24 of the Indian Penal Code defines dishonestly as under :
"Dishonestly : Whoever does anything with the intention of causing a wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.CBI Case No. 220/2019 Page No. 50 of 66
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68. Section 25 of the Indian Penal Code defines Fraudulently as under :
"Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
69. The fact that the records related to the society had been forged extensively in order to seek its revival, clearly indicates that all this was being done for some financial gain. It cannot be said that the forgery and fabrication of the records was being done merely out of fancy. It is a matter of common knowledge that the newly created society in the year 2003 would not have got any land from DDA or would have to wait for a very long time for the same as there was long queues of the societies seeking allotment of land from DDA. The land was to be allotted by DDA on the basis of the seniority which was fixed on the basis of the date of registration of the societies with the RCS office. It is for this reason that the documents related to the society in question were fabricated/forged in the year 2003 for its revival as it was registered with the RCS office in the year 1972 and therefore, entitled for allotment of land on priority basis. It is true that no loss has been suffered either by DDA or RCS office but it cannot be said that no loss was suffered by any person at all. The real aggrieved person was the next eligible society which was entitled for allotment of Landon the basis of the seniority and whose place was taken by Swarn CGHS Ltd. which was revived on the basis of false/fake documents. No doubt can be entertained regarding the fact that the office bearers of the society and other private persons who were involved in the conspiracy for its revival, would have obtained huge CBI Case No. 220/2019 Page No. 51 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) financial gain wrongfully in case their criminal acts would not have been exposed.
70. Sh. Bhatnagar, Advocate appearing for A-4 U.S. Bhatnagar, A-5 Faiz Mohd. and A-8 Kamal Singh submitted that they were public servant at the time of the commission of alleged offence involved in this case, as defined u/s 21 of Indian Penal Code and thus was protected u/s 197 Cr. P.C. He argued that they were performing their duties as public servants for which they have been arraigned as accused in this case and therefore, it was necessary for CBI to obtain separate sanction for their prosecution u/s 197 Cr. P.C. Ld. Counsel for accused Narayan Diwakar also argued on the similar lines submitting that even though he had retired from the services before filing of the charge-sheet in this case, still CBI was required to obtain sanction for his prosecution u/s 197 Cr. P.C qua the offences under Indian Penal Code alleged against him. It was submitted that in the absence of sanction u/s 197 Cr. P.C qua these four accused public servants, the entire trial got vitiated and they are liable to be acquitted on this very score only. Ld. PP submitted that the sanction to prosecute a public servant u/s 197 Cr. P.C is not required particularly in the facts and circumstances of the present case as it was not the part of official duty of these accused to enter into a criminal conspiracy with other accused.
71. Law is well settled on this aspect. It is not every offence committed by a public servant that requires sanction for prosecution u/s 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official CBI Case No. 220/2019 Page No. 52 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) 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. Section 197 Cr. P.C does not extend its protective cover to every act or omission done by public servant but restricts its scope of operation to only those acts or omissions which are done by public servant in discharge of his official duty. Where the alleged act done by the public servant is merely cloak for doing the objectionable act, the protection u/s 197 Cr.P.C is not available. (See Raghunath Anant Govilkar Vs. State of Maharashtra & Others 2008 (1) RCR (Criminal) 1042, Hari Has Prasad 1972 (3) SCC 89, State of M.P. Vs. Sheetla Sahai & Others 2009 Crl. L.J 4436 and Chaudhary Praveen Sultana Vs. State of Bengal & Another 2009, Crl. L.J 1318.)
72. Thus while considering the requirements of sanction as contemplated by Section 197 Cr. P.C, the Court has to make the balance between the protection granted to the public servants and the safeguard available to the citizens against the excesses of the erring public servants. The acts of commission and omission done by the accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd and Kamal Singh, by no stretch of imagination, can be said to be the acts done by him in the discharge of his official duties or purported to be in the discharge of official duties. They have misused their office of public servant for doing things which are not permitted under the law. Their acts were dehors the duties which a public servant is required to discharge or perform. At no point of time did they act bonafidely in honest discharge of their duties. Hence, they are precluded from claiming protection u/s 197 Cr. P.C. CBI Case No. 220/2019 Page No. 53 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.)
73. Hence, these four accused public servants namely Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh are liable to be convicted as the charges against them stand proved beyond any doubt.
74. Now coming to the role attributed to private accused Ashwani Sharma and Naveen Kaushik who too have faced trial. The allegation against Ashwani Sharma is that most of the documents including Inspection Report, letters, affidavits, consolidated list of members (resignee as well as freshly enrolled), receipts, balance-sheet etc. used for revival of the society were prepared on his computer as the same were retrieved from the hard disc of his computer in the office of GEQD, Shimla.
75. It is alleged that during the investigation of another case related to Taj CGHS Ltd., search was conducted at the residence of accused Ashwani Sharma on 01.08.2005 by PW44 Inspector Naresh Kumar Sharma during which certain documents including a computer hard disc were recovered and seized. The hard disc was sent to GEQD, Shimla for retrieval of documents saved in it. It is contended that various documents related to Swarn CGHS were also found saved in the said heard disc.
76. PW44 has deposed that he had conducted search at the residence of accused Ashwani Sharma on 01.08.2005 on the directions of the then DSP, CBI, EOW-I, New Delhi in case No. RC-9 (E)/2005 which related to Taj CGHS Ltd. He further deposed that search was conducted in the presence of two independent witnesses CBI Case No. 220/2019 Page No. 54 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) namely Sh. Ravinder Kumar Bansal and Sh. Dinesh Kumar Nijhawan during which several incriminating documents including files, computer hard disc etc. were recovered and seized. He proved the copy of search list as Ex.PW44/1 and a separate list of documents & files recovered during the search as Ex.PW44/2. In the cross-examination, he stated that the search was conducted pursuant to the written directions of the then DSP P.K. Khanna who was the Investigating Officer of that case.
77. No such written directions stated to have been given by DSP P.K. Khanna to PW44 for conducting search have been produced in this case. There is no evidence to show or suggest that the provisions of Sections 100 and 165 Cr. P.C had been duly complied with. Here it would be useful to reproduce the observations of the Hon'ble Supreme Court of India in the case titled Yakub Abdul Rajaq Memon Vs. State of Maharashtra through CBI decided on 21.03.2013:-
221) Section 100 of the Code was incorporated in order to build confidence and a feeling of safety and security among the public. Section 100 clauses (4) to (8) stipulate the procedure with regard to search in the presence of two or more respectable and independent persons preferably from the same locality. The following mandatory conditions can be culled out from Section 100 of the code for a valid Panchnama:
(a) All the necessary steps for personal search of office (Inspecting officer) and panch witnesses should be taken CBI Case No. 220/2019 Page No. 55 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.
(b) Search proceedings should be recorded by the I.O.
or some other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchnama.
(d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchnama after the signature of the main I.O.
(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and time of commencing and ending must be mentioned in the Panchnama.
(f) The Panchnama should be attested by the panch witnesses as well as by the concerned I.O.
(g) Any overwriting, corrections, and errors in the CBI Case No. 220/2019 Page No. 56 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Panchnama should be attested by the witnesses.
78. Evidence on record nowhere shows as to what kind of pre search formalities were observed by PW44 before conducting the search and that the concerned CBI Court was informed about the search and the incriminating articles recovered during the search. Moreover, the material on the basis of which DSP P.K. Khanna arrived at the decision to get the residence of Ashwani Sharma searched, has not been placed on record in this case. In the absence of any such evidence, it cannot be said that the search was conducted legally and by following the relevant legal provisions.
79. Further, the originals of Ex.PW44/1 and Ex.PW44/2 have not been filed in this case. Neither was the procedure prescribed under Section 66 of the Indian Evidence Act, 1972 followed before tendering these photocopies in evidence nor has any reason been put forth for not producing the originals as specified under Section 65 of the said Act. Hence, these two documents cannot be considered and have to be discounted. Resultantly, there is no legally admissible record of the search in this case and it cannot be believed that the computer hard disc sent to GEQD, Shimla and examined by I.S. Rao was actually recovered during search at the residence of Ashwani Sharma.
80. Sh. I.S. Rao, who is stated to have examined the said hard disc and retrieved various incriminating documents from it related to this case, had expired before he could be summoned to depose herein. In his place, Sh. N.C. Sood, GEQD, Shimla appeared and identified the signatures of Mr. Rao on the report Ex.PW47/1. In the cross-
CBI Case No. 220/2019 Page No. 57 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) examination, he stated that he had not examined the CPU and hard disc himself in relation to this case and he has no personal knowledge about the manner in which Mr. Rao had examined the CPU and hard disc.
81. Thus there is no evidence on record that I.S. Rao was an expert in computer forensics as well as with regards to the process followed and mode used by him in examining the hard disc. He does not fall in the category of experts mentioned in Section 293 Cr. P.C whose reports are per se admissible in evidence. It was incumbent upon the prosecution to produce any other expert who would have explained the process followed by Mr. Rao in order to make his report trustworthy and admissible.
82. The incriminating documents stated to have been retrieved by Mr. Rao from the said hard disc are in the form of printouts which were forwarded to CBI by Sh. N.C. Sood vide letter dated 08.08.2006. The letter along with its annexures is Ex.PW42/10 (colly.). These are not supported by certificate u/s 65 (B) (4) of Indian Evidence Act to certify that these printouts were actually retrieved from the said hard disc. In the absence of any such certificate, it cannot be said that these printouts had been actually taken of the documents saved in the hard disc. Even the original hard disc was not produced before this Court any point of time during the entire trial.
83. Hence, the prosecution has not adduced any cogent and legally admissible evidence to prove the hard disc in question had been recovered during search at the residence of accused Ashwani Sharma CBI Case No. 220/2019 Page No. 58 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) or that it contained any incriminating documents related to this case. The evidence on record also does not show that those very documents found saved in the said hard disc, were used for revival of the society Swarn CGHS Ltd. The prosecution has, thus, failed to establish the charges against this accused.
84. Qua accused Naveen Kaushik, it is alleged that he has forged the writings on the proceedings registers of the society in addition to the signatures of several members on the nomination forms for the election to the Managing Committee of the Society as well as on the resignation letters of various members. It is further alleged that the forgeries done by him have been confirmed by the GEQD, Hyderabad. According to the prosecution, S-223 to S-325 are the specimen writings/signature of accused Naveen Kaushik. As per the report of GEQD Ex.PW41/2, several questioned writings on various places in the proceedings registers of the society i.e. Q-894 to Q-902, the signatures on the nomination forms at points Q-706, Q-886 to Q-892 and the signatures of the members on several resignation letters i.e. Q-748 to Q-761 are in the handwriting of accused Naveen Kaushik and have been appended by him. However, it was vehemently argued by Ld. Counsel for the accused that the specimens S-223 to S-325 were not given by this accused and have been falsely attributed to him.
85. Law relating to the evidentiary value of expert opinion is very well settled. On this aspect, it is profitable to refer to the following observations of the Hon'ble Supreme Court in S. Gopal Reddy Vs. State of A.P. (1996) 4 SCC 596:-
CBI Case No. 220/2019 Page No. 59 of 66CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) "28. Thus the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering "conclusive" proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, while dealing with the evidence of a handwriting expert, this Court opined:
'7....... 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 presidential authority which holds that it is unsafe to base a conviction 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. 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 Ishwari Prasad Misra v. Mohd. Isa that expire evidence of handwriting can never be conclusive because it is, after all, opinion CBI Case No. 220/2019 Page No. 60 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee where it was pointed out by this Court that an 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. 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."
86. Thus, it is fairly settled that before acting upon the opinion of handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial. Following observations of the Supreme Court in Murari Lal vs. State of M.P. (1980) 1 SCC 704 in this regard also need to be kept in mind:-
"6. Expert testimony is made relevant by Section 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 CBI Case No. 220/2019 Page No. 61 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) questions as to identity of handwriting" is expressly made a relevant fact.... so, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be 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."
87. In view of the dictum of Murari Lal (supra), the opinion of handwriting expert may be relied upon to convict an accused if it is supported by detailed and convincing reason. In other words, the opinion of handwriting expert must be a reasoned one in order to pass the test of reliability and credibility. The reasons may be contained in the opinion itself or may be prepared separately but these must be prepared simultaneously alongwith the opinion. The prosecution must also prove that the specimen of the accused, on the examination of which the expert opinion has been rendered, were given by him voluntarily and in presence of an independent witness.
88. In the instant case, as already noted herein above, the specimens S-223 to S-325 are stated to be the specimen CBI Case No. 220/2019 Page No. 62 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) writings/signatures of accused Naveen Kaushik. PW46, is the witness to taking of specimens of accused Naveen Kaushik by the investigating officer. In his examination-in-chief, PW46 deposed that when he reached CBI office on that particular day in the year 2006, a CBI official took specimen signatures of a person in his presence and he signed those specimen sheets. He did not recollect the name of that person who gave specimens in his presence on that day. In the cross-examination, he deposed that he did not ask that person about his name and also did not check his identity documents. He could not tell the FIR number or the title of the case regarding which he had gone to CBI office on that day.
89. Thus, it does not appear that he had satisfied himself about the identity of the person who had given his specimens in his presence on that day. Having regard to such deposition of this witness, it cannot be said with certainty that the specimens S-223 to S-325 were in fact given by accused Naveen Kaushik. The possibility does arise that the person giving these specimens may have been somebody else and not this accused. It was necessary for the investigating officer to show to the witness and get checked by him the identity proof of the accused giving specimens in order to satisfy the witness about the identity of the accused. That having not been done, the contention that these specimens S-223 to S-325 are that of accused Naveen Kaushik become doubtful.
90. Further, I have perused the GEQD opinion Ex.PW41/2 as well as the supplementary opinion Ex.PW41/6. The prosecution has not filed any detailed "reasons" along with these two opinions. However, CBI Case No. 220/2019 Page No. 63 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) during the course of his deposition, PW41 stated that he had sent detailed "reasons" prepared by him to CBI in the year 2008 vide his letter dated 01.02.2008. He had brought a copy of "reasons" along with him which was taken on record and are marked as Ex.PW41/7 and Ex.PW41/8. It is clear from his deposition that he had not sent these "reasons" to CBI along with his two opinions in the year 2006 but he had sent these to CBI later on in the year 2008.
91. The opinion of an expert, in order to pass the test of credibility and reliability, must be "reasoned" one. "Reasons for opinion" may be contained in the opinion itself or may be prepared separately. But these must be prepared simultaneously along with the opinion and both the opinion as well as the "reasons" must be sent together to the investigating agency. In the case at hand, as noted hereinabove, "reasons" Ex.PW41/7 and Ex.PW41/8 were not sent by PW41 to CBI along with his opinions Ex.PW41/2 and Ex.PW41/5 but were sent almost two year thereafter. Had PW41 prepared the "reasons" too simultaneously along with the opinion, he would have sent both to CBI together. It is evident that the "reasons" Ex.PW41/7 and Ex.PW41/8 were not prepared by PW41 simultaneously along with his opinion but much later which dents the credibility and reliability of his opinions. Secondly, the fact that the original "reasons" which were sent by PW41 to CBI vide letter dated 01.02.2008 Ex.PW41/9 have not been filed by CBI along with the charge-sheet, indicates that either no such "reasons" were sent by PW41 to CBI or the CBI has deliberately withheld those from this Court probably for the reason that those did not suit its case. In either case, the copy of the "reasons" produced by PW41 during his deposition before this Court on 25.07.2019 appears CBI Case No. 220/2019 Page No. 64 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) to have been fabricated and does not inspire any confidence. In these circumstances of the case, the opinions of PW41 cannot be stated to be reasoned one and hence no reliance can be placed upon those for holding accused Naveen Kaushik guilty.
92. The opinions of PW41 cannot be considered even otherwise also. This is for the reason that he, admittedly, has compared only photocopies of disputed documents with the specimens of the accused. The original disputed documents were neither sent to him for examination by CBI nor did he call for those originals. He has himself admitted in his cross-examination that any writings/signatures cannot be seen in a correct manner in the photocopy and the colour/type of the ink used in writings/signatures, the type/colour of the original paper and the type of writing instrument used is not depicted in a photocopy. He also admitted that there is possibility of manipulation/alteration in a photocopy which cannot be identified easily and that the signature of one or more persons can be transplanted upon a photocopy. He further admitted that necessary characters of the handwritings/signatures cannot be examined in a photocopy clearly. Thus, as per the deposition of this witness himself, the opinions Ex.PW41/2 and Ex.PW41/5 were rendered by him on the basis of examination of only photocopies instead of their originals and therefore, those opinions cannot be made basis for conviction of an accused, more so, when there is no other corroborative evidence on record.
93. Hence, the prosecution has failed to adduce any reliable and legally admissible evidence to prove the charges against this accused CBI Case No. 220/2019 Page No. 65 of 66 CBI Vs. Gokul Chand Aggarwal etc. (Swarn CGHS Ltd.) Naveen Kaushik also.
Decision of the Court
94. Resultantly, in the light of the above discussion, accused Ashwani Sharma and Naveen Kaushik are hereby acquitted of all the charges. However, the accused Narayan Diwakar, U.S. Bhatnagar, Faiz Mohd. and Kamal Singh are hereby convicted under Section 120B IPC r/w Sections 420, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988. They are also convicted under Section 15 r/w Section 13 (1) (d) of PC Act, 1988.
Announced through Video Conferencing Digitally
signed by
on CISCO Webex Meetings App. VIRENDER
VIRENDER BHAT
BHAT Date:
2020.12.24
11:11:43
+0530
(VIRENDER BHAT)
SPL. JUDGE (PC ACT), CBI-15,
ROUSE AVENUE DISTRICT COURTS,
NEW DELHI/21.12.2020
CBI Case No. 220/2019 Page No. 66 of 66