Delhi District Court
Cbi vs . Ajay Wahiwal Etc. (Dream House Cghs) ... on 22 March, 2014
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014
IN THE COURT OF SPECIAL JUDGEII
(PREVENTION OF CORRUPTION ACT 1988) CBI, ROHINI, DELHI
CC No. 18/2010
(Dream House CGHS)
CBI Vs 1 Ajay Wahiwal
S/o Sh. Lalchand
R/o C407/L, Gali No.17B, Bhajanpura, Delhi53.
2 Narayan Diwakar
S/o Sh. Chhati Lal
R/o 630, Masjid Moth, Greater KailashII, New Delhi.
3 Markanday Mishra
S/o Raj Narayan Mishra
R/o BI 38 A, Shalimar Bagh, Delhi - 88.
4 Smt. Shakuntla Joshi
W/o Late Shri Vinod Kumar Joshi
R/o 51, Suraj Nagar, Azadpur, Delhi.
Date on which the final arguments were concluded : 13.3.2014
Date of judgement : 22.3.2014
JUDGEMENT
Ld. Sr. Public Prosecutor submits that for the purpose of providing the housing to the citizen of Delhi on cooperative basis, the Parliament passed the Delhi Cooperative Societies Act 1972. These Cooperative Group Housing Societies (CGHS) were required to be registered with Registrar Cooperative Societies and these societies could apply to DDA for allotment of the land only through the CC No. 18/2010 Page 1/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Registrar Cooperative Societies (RCS). Of course the land would be allotted by DDA on the basis of the seniority of such societies, however this seniority, as per the policy framed by the office of RCS used to be considered on the basis of the date on which the Registrar sent the list of members of the society to DDA, after processing the application of such society. However, this criteria soon became the cause of large scale corruption in the office of RCS because the applications of the society were unnecessarily kept pending on account of various objections by the RCS office, whereas those, who could influence the RCS officials, their applications used to be processed quickly. Thus it created a situation where due to the misuse of the official position by the RCS officials, the societies which were registered late, were put higher in seniority by DDA officials for allotment of the land. This issue was raised in CWP No. 2885/90 i.e. Kaveri CGHS Vs Union of India, where High Court of Delhi passed an order dated 10.5.1991 to the effect that original date of registration of society with RCR Office was to be considered for establishing the seniority of the society for allotment of land by DDA.
Sh. Amritpal Singh, Ld. Sr. Public Prosecutor submits that earlier the date of seniority of the society for the purpose of allotment of land was considered on the basis of the date on which the Registrar used to CC No. 18/2010 Page 2/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 send the list of members of the society to DDA. This criteria gave unfettered powers in the hand of the registrar, who could delay or speed up the processing of the application for allotment of land by a society at his will. Ld. Sr. Public Prosecution submits that Hon'ble High Court of Delhi in the above stated writ petition changed the criteria in view of the rampant abuse of powers by the office of registrar cooperative society in the matter of sending the applications of the societies for allotment of land.
Ld. Sr. Public Prosecutor submits that however, the corrupt RCS officials in collusion with the builders evolved a new method to hood wing the spirit of the aforesaid judgement. The builders took up the old wound up/defunct societies and in collusion of the RCS officials got the same revived. Since Hon'ble High Court of Delhi had fixed the criteria that for the purpose of allotment of land, the original date of the registration of the society would be considered, such revived societies having an older date of registration, would be given priority in allotment of the land by DDA.
Ld. Sr. Public Prosecutor submits that this fraud came to the notice of Hon'ble High Court of Delhi in WP(C) No. 10066/2004 and therefore an order was passed, wherein it was observed that there appeared to be a nexus between the builders taking over the CC No. 18/2010 Page 3/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 cooperative movement in Delhi in connivance with the officials of Registrar of Cooperative Societies. It was observed that land in Delhi is alloted at a predetermined rate and not on the basis of the market value of the land. These cooperative societies were formed in order to provide flats at affordable price to middle income group and lower income group. It was observed that its element of profit making in view of difference of market value of land and value on which the land is allotted to the society, which has resulted in nexus between the builders and officials. In view of the enormous amount of money invested and involvement of the RCS officials & builders, nature of crime and voluminous records, High Court directed CBI to formulate a special investigating team to investigate the whole matter. Preliminary enquiry in respect of the each society in all 135 societies was conducted and in appropriate cases, the regular cases were registered including the present one.
As per prosecution case Dream House Cooperative Group Housing Society was formed in the year 1983 with the object to acquire land for the construction of flats for its members. In the form of application for registration, it was disclosed to be having its address at 23/1, Hari Niwas, Shakti Nagar, Delhi, a premises owned by Paramjeet Singh, founder Secretary of the Society. It obtained its CC No. 18/2010 Page 4/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 registration from the office of Registrar Cooperative Societies, Delhi in the year 1984 with 60 original/promoter members.
The following members were elected as founder office bearers and member of managing committee of the Society.
S. NAME ADDRESS OCCUPATION OFFICE TO
No. WHICH
ELECTED
1. G. S. Sachdeva E184, Greater Business President
Kailash, Part1,
New Delhi.
2. Sanjeev Narula BIA/36B, Janak Service Vice
Puri, New Delhi President
3. Paramjeet 23/1, Hari Niwas, Business Secretary
Singh Shakti Nagar.
4. J. K. Bajaj 27 D Kamla Nagar, Business Joint
Delhi. Secretary
5. Naresh Kumar 1137, Gulabi Bagh, Service Treasure
Verma Delhi.
Investigation further revealed that an application for registration of Society along with requisite documents such as Individual Affidavit, Intensive Enquiry Proforma, ByeLaws of the society, Minutes of General Body Meeting etc. was submitted to Registrar Cooperative Society for registration of the Society. Accordingly, as per provisions CC No. 18/2010 Page 5/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 of Delhi Cooperative Societies Act, 1972 (Act No.35 of 1972) the Dream House Cooperative Group Housing Society Limited with registered address 23/1, Hari Niwas, Shakti Nagar, Delhi - 110007 was registered in the office of Registrar Cooperative Societies vide registration no. 123B (GH) on 4.1.1984 as per certificate issued on 7.1.1984.
Investigation also revealed that a list of initially enrolled 60 members submitted by the Society was approved by the RCS office as final list for the purpose of allotment of land vide letter no. F.47/verif/Coop/NGH/85/20572058 dated 3.9.87 and the said list was forwarded to the Deputy Director (G/H), DDA, Vikas Sadan, I.N.A., New Delh for necessary action.
The investigation revealed that during occupancy period of founder managing committee one member resigned from the society and in place of him one more member was inducted in to society, which was subsequently approved by office of Registrar Cooperative Societies.
The investigation also revealed that the founder managing committee of the society again moved to the office of Registrar Cooperative Societies for its approval of further resignation of three members and enrollment of three more members in place of them.
CC No. 18/2010 Page 6/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 The investigation further revealed that in response to above and request of society, the office of Registrar Cooperative Societies issued notices and called for the original record of the society for the purpose of verification to which society failed to respond and accordingly no approval was granted in respect of these three members.
The investigation revealed that, except these four resignations and enrollments mentioned above, the founder Managing Committee of the Society had not referred any other case of resignation and enrollment to office of the Registrar Cooperative Societies for approval. Meaning thereby the founder Managing Committee of the Society accepted resignation and enrollment of only four members after the registration of Society.
Investigation also revealed that under the provisions of the DCS Act and Rule, a Society is required to perform certain statutory obligation and whereas the office bearers of the said society had not responded to various letters and directives issued by the RCS office and as there was no communication regarding its management and functioning in accordance with the DCS Act 1972 and DCS Rule 1973 and its registered bye laws and that the said society was not striving towards the purpose for which it as constituted, the said society was wounded up vide order no. F.47/1238/NGH/Coop/10411 to 10415 CC No. 18/2010 Page 7/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 dated 19.8.93. After passing this order, the society remained dormant till 1.1.2003.
Investigation further revealed that Ajay Wahiwal (A1) posing himself as President/Secretary of Dream House CGHS Ltd. submitted an application dated 2.1.2003 under his signature to the Registrar Cooperative Societies, Parliament Street, New Delhi for revival of Dream House Cooperative Group Housing Society. Along with this application series of documents such as coy of Minutes of Annual General Body Meeting held on 24.11.2002; copy of the audit report for the year 199091; copy of unaudited account of the Society with effect from 1.4.91 to 31.3.2002; copy of fresh list of 60 members; copy of member ship register; copy of resignation from membership in respect of original/promoter members; copy of receipt towards refund of share money in respect of promoter members shown to have been resigned; copy of minutes of Managing Committee Meeting showing resignation and enrollment of members; affidavit in respect of newly enrolled members; copy of receipt towards amount received in respect of enrolled members; copy of membership form in respect of enrolled members; copy of statutory affidavit executed by Ajay Wahiwal (A1) mentioning therein details of members resigned and enrolled; copy of certificate of the society certifying that no land has been offered to the CC No. 18/2010 Page 8/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 society by DDA till date were also filed.
Investigation also revealed that accused Ajay Wahiwal (A1) in his application for revival of the society mentioned that an election of Managing Committee of the society was conducted in Annual General Body Meeting held on 24.11.2002 and as per record he was Managing Committee Member only and certainly not President/Secretary of the society. Hence as per their own document he was not President/Secretary of the said society at the time of submitting the application for revival of the society.
Investigation revealed that there was misrepresentation in the said application by Ajay Wahiwal (A1) which the Registrar Cooperative Societies official deliberately failed to take notice, showing non application of mind.
During the course of investigation, Specimen signatures/handwritings of Ajay Wahiwal (A1) was obtained and sent to Government Examiner of Question Documents (GEQD) for expert opinion. Report received from GEQD confirmed, signature/handwriting of Ajay Wahiwal (A1) on application for revival of society, individual affidavit as well statutory affidavit, furnished by him at the time of revival of society.
CC No. 18/2010 Page 9/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Investigation further revealed that based on the above documents and claims, an order was passed by Narayan Diwakar (A
2) the then Registrar Cooperative Societies, which accepted the validity of submission and ordered for the revival of the society on 30.1.2003. The final list of 60 members submitted by Ajay Wahiwal (A1) was also forwarded to the Deputy Director (GH) DDA, New Delhi for allotment of land. It was followed by a letter vide which Ajay Wahiwal (A1) exercised his option regarding preference of location for land.
Investigation established that against this backdrop, it was found that this whole story of revival of the society was nothing more than a criminal conspiracy between Ajay Wahiwal (A1) and some other persons with Narayan Diwakar (A2), Dharmendra Singh Rana (A3/expired), Markanday Mishra (A4) and Shakuntla Joshi (A5) with fraudulent intention to secure the land at concessional rate/priority basis.
Investigation also revealed that sometime during 2002, accused Dharmendra Singh Rana (A3/expired) got details about nonfunctional status and got hold of some documents relating to this society. The circumstances as emerged during investigation indicates that Ajay Wahiwal (A1), who was keen to purchase Cooperative CC No. 18/2010 Page 10/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Group Housing Society, contacted the same Dharmendra Singh Rana (A3/expired) and knowingly obtained the details about nonfunctional status and some documents of the society from Dharmendra Singh Rana (A3) with a malafide intention in order to complete documentation work for revival of the society, on the basis of false documents with a sole intention to get land from DDA on concessional rate/priority basis.
Investigation has revealed that Ajay Wahiwal (A1) in his submission for revival of the society falsely claimed resignation of various members and tendered their forged resignations. There is both oral as well as documentary, evidence, which confirmed that contrary to his claim, he submitted forged documents showing the resignation of various original members, who had never resigned from the membership of the society.
As investigation revealed, founder Managing Committee of the Society had referred only four resignations of its members to the office of Registrar Cooperative Societies prior to winding up order for its approval Resignation in respect of remaining 17 members which were also used for revival of the society were not at all referred to the office of Registrar Cooperative Societies for approval. Investigation further revealed that in pursuance of a criminal conspiracy hatched amongst CC No. 18/2010 Page 11/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Ajay Wahiwal (A1) and official of Registrar Cooperative Societies such as Narayan Diwakar (A2), Markanday Mishra (A4), Shakuntla Joshi (A5), Ajay Wahiwal (A1) submitted false proceedings of managing committee of the society in his writing showing resignation of original members during the occupancy period of founder managing committee members of the society. The oficial of Registrar Cooperative Societies with criminal intention, knowingly and deliberately failed to take notice the important aspect of non referring of resignation of members to the Registrar Cooperative Societies and accepted the validity of submission. There is oral as well as documentary evidence, which confirmed that he submitted forged proceeding of managing committee showing the resignation of various original members.
Investigation further revealed that in case of enrollment also founder Managing Committee of the Society had referred only four enrollments of its members to the office of Registrar Cooperative Societies prior to winding up order for its approval. Enrollment in respect of remaining 17 members which were also used for revival of the society were not at all referred to the office of Registrar Cooperative Societies for approval. Investigation further revealed that in pursuance of criminal conspiracy hatched between Ajay Wahiwal CC No. 18/2010 Page 12/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 (A1) with official of Registrar Cooperative Societies such as Narayan Diwakar (A2), Markanday Mishra (A4), Shakuntla Joshi (A5), accused Ajay Wahiwal (A1) submitted false proceeding of managing committee of the society in his writing showing enrollment of members during the occupancy period of founder managing committee members of the society. The official of Registrar Cooperative Societies with criminal intention, knowingly and deliberately failed to take notice the important aspect of nonreferring of enrollment of members to the Registrar Cooperative Societies and accepted the validity of submission. There are both oral as well as documentary evidence, which confirmed that he submitted forged proceeding register showing the enrollment of various members. There is oral and documentary evidence, which prove that several members claimed to have been enrolled before the winding up order, actually signed their membership forms during the year 2002/2003.
Investigation also revealed that signatures of original members were forged in 2nd Membership Register purported to have been maintained by accused Ajay Wahiwal (A1), the xerox copy of which was shown at the time of consideration of the revival of society. Investigation has further revealed that there is sufficient evidence that signature of original members were also forged on receipt, meant for CC No. 18/2010 Page 13/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 refund of share money to the original members, which was shown at the time of consideration of the revival of society.
Investigation revealed that found managing committee members who were shown present in the managing committee meeting in the year 1993 and in passing resolutions for accepting resignation of original members and enrollment of new members, actually not conducted any of the said managing committee meeting. The investigation has also revealed that copy of minutes of said meeting was submitted for consideration for revival of the society.
Investigation established that a very crucial Annual General Body Meeting shown to have been held on 24.11.2002 i.e. just prior to revival of the society in which original/promoter members were shown to have attended, was actually not held. Investigation further revealed that copy of minutes of said meeting was submitted for consideration for revival of the society. Investigation further revealed that in this meeting founder managing committee was shown to have been replaced by new committee by conducting election. During the course of investigation sufficient evidences has emerged to prove the fact that no such meeting was ever held in the matter of Dream House Cooperative Group Housing Society. Investigation has further revealed that Ajay Wahiwal (A1) through this meeting was shown CC No. 18/2010 Page 14/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 member of managing committee of the society. It was done with a criminal intention to subsequently revive the society and fraudulently secure the land from DDA on priority basis and for this he obtained the details of society, prepared forged proceeding registers, without holding any General Body Meeting and Managing Committee Meeting, fraudulently removed the names of original members, without their knowledge and fraudulently introduced new members and prepared forged documents for supporting the same.
In this category interestingly an important evidence emerged on record that original member namely Ram Pyari was also shown to have attended above crucial Annual General Body Meeting of the Society held on 24.11.2002. Investigation has however established that she had expired in the year 1994.
Investigation revealed that members who were shown to have been enrolled in the year 1993 had become the members of the society at the instance of Ajay Wahiwal (A1). Investigation has further revealed that these members were inducted in the society by Ajay Wahiwal (A1) some time in the year 2002/2003 and not in 1993.
Investigation also revealed that forged proceedings register since inception of the society, was maintained by Ajay Wahiwal (A1), in CC No. 18/2010 Page 15/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 which the details of "non existing" proceedings from 1983 to 2002 were drawn. This register also contains Minutes of Managing Committee meeting during the year 1993, in which resignation and enrollment of new members were shown. Investigation revealed that minutes of Managing Committee meeting during the year 1993 was drawn by Ajay Wahiwal (A1) in his own handwriting. Investigation has also revealed that accused Ajay Wahiwal (A1) was shown to have been inducted in the society in the year 1993 through approval of Managing Committee meeting, which have been drawn by himself. Investigation has also revealed that he had drawn proceeding of managing committee meeting in his own hand writing for the year 1991 & 1992, that is prior to his induction, even if we consider his induction as member in the society in the year 1993.
Investigation has revealed that 02 important notices which were seized during the house search from the residential premises of Ajay Wahiwal (A1), relating to Annual General Body Meeting held on 24.11.2002 were also forged.
Investigation has revealed that even after revival of the society Ajay Wahiwal (A1) with preplanned act and criminal intention, started weeding out original members from the membership of the society and within very short span of time forged resignations of CC No. 18/2010 Page 16/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 several original members were brought on record/created without their knowledge to obtain complete control in affairs of the society by resorting to fraudulent means. Investigation further revealed that resignation of original members after revival of the society also, were shown without their knowledge, who had never resigned from the membership of the society.
The investigation has also established that in this conspiracy, Ajay Wahiwal (A1) was helped by Dharmendra Singh Rana (A 3/expired) and official of Registrar Cooperative Societies such as Narayan Diwakar (A2), Markanday Mishra (A4) and Shkuntla Joshi (A5), who knowingly and deliberately played specific roles in revival of the society. While Dharmendra Singh Rana (A3) was instrumental in providing the details of the society to Ajay Wahiwal (A1), the officials of Registrar Cooperative Society facilitated the revival by accepting the forged documents knowingly and deliberately and by passing the order dated 30.1.2003 for revival of Dream House Cooperative Group Housing Society.
Investigation further revealed that the application for revival of Dream House Cooperative Group Housing Society was received in the office of Registrar Cooperative Societies on 2.1.2003. The same was processed in the file by Markanday Mishra (A4), Dealing Asstt, who CC No. 18/2010 Page 17/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 recorded his note dated 8.1.2003 recommending to send the file in the court of Registrar Cooperative Society for further necessary action and submitted the file to Shakuntla Joshi (A5) the then Assistant Registrar (North). He did not recommend to appoint any official to verify the records and address of the society mentioned in the revival application submitted by Ajay Wahiwal (A1) as should have been done in the normal course.
Investigation also revealed that Shakuntla Joshi (A5) in utter disregard to the procedure being followed in RCS office, simply forwarded the file to RCS office. Thereafter, Reader to RCS recorded his note in the file mentioning therein that a proposal for revival of the society under Section 63(3) of DCS Act, 1972 has been forwarded by Asstt. Registrar, if agreed, a notice be issued to the society for initial hearing before Registrar Cooperative Society. Narayan Diwakar (A2) the then RCS approved the same on 13.1.2003. Accordingly, a letter dated 13.1.2003 was issued to the society wherein direction was made to the secretary and president of the society to appear in the court of the Registrar Cooperative Societies on 21.1.2003 along with all original record pertaining to the society for examination/verification. Thereafter as per note sheet, Narayan Diwakar (A2) recorded his note that Dr. Ram Singh, President of the CC No. 18/2010 Page 18/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Society appeared before RCS on 21.1.2003. However, he did not mention any thing as regard to verification/examination of original records of the society, which have been called for vide letter dated 13.1.2003. The proceedings were adjourned to 28.1.2003 with a driection to send the file to the concerned zone for zonal verification. Investigation however established that instead of Dr. Ram Singh, the president of the society was one Ram Singh who never attended the proceedings before the Registrar and before official of Registrar Cooperative Societies.
Investigation revealed that Markanday Mishra (A4) while posted as Grade III/UDC (Dealing Assistant), in the office of RCS, New Delhi, during the year 20022003 entered into a criminal conspiracy with accused Ajay Wahiwal (A1), Dharmendra Singh Rana (A3/expired) both private persons, Smt. Shakuntla Joshi (A5) the then Assistant Registrar (North) and Narayan Diwakar (A2) the then Registrar Cooperative Society and in furtherance of the said conspiracy, he knowingly accepted false/forged documents, which were submitted by Ajay Wahiwal (A1).
Investigation has further revealed that Markanday Mishra (A4) in furtherance of the above said criminal conspiracy, dishonestly/fraudulently and willfully put up favourable Note CC No. 18/2010 Page 19/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 recommending revival of the society, on the basis of false/forged documents, without checking genuineness of the documents submitted for revival of the society, knowing that the documents so submitted were not genuine. He also never proposed for any enquiry or inspection of the society under any provision of DCS Act. Not only Markanday Mishra (A4) in furtherance of the above said criminal conspiracy, fraudulently and willfully submitted a note that he had verified the record of the society from originals. He did not willfully highlighted the irregularities/illegalities committed by the office bearers of the society in respect of records put up by the society.
Investigation further revealed that Markanday Mishra (A4) dealing assistant put up a detailed note on 27.1.2003 and submitted the forged deal on file in the form of inventory of verified documents for revival of the society. He willfully did not carry out any enquiry about resignation and enrollment of 17 members shown to have been accepted during the occupancy period of previous managing committee for which no intimation at any point of time was given to Registrar Cooperative Society. Further he willfully neglected and avoided summoning any member of previous managing committee to verify authenticity of above resignation and enrollment.
CC No. 18/2010 Page 20/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Investigation also revealed that Markanday Mishra (A4), knowingly and deliberately ignored, in the capacity of UDC (dealing assistant), the complaint filed by Paramjeet Singh, Founder Secretary of the Society about fake revival of the society on the basis of forged and false documents, which was marked to him. It is established during the course of investigation that the said complaint was received in the office of Registrar Cooperative Societies on 21.3.2003 and subsequently was marked to AR (North) on 27.3.2003. Assistant Registrar (North) had marked the same to Markanday Mishra (A4) for further necessary action. But Markanday Mishra (A4) sat over the complaint without any specific reasons and thereby allowed Ajay Wahiwal (A1) and Narayan Diwakar (A2) to get away with the conspiracy of the revival of Dream House Cooperative Group Housing Society. Paramjeet Singh and another member of Founder Managing Committee Naresh Kumar Verma also met him several times and requested appropriate action on complaint, even then he did not take any action. Complaint was not only specific but which clearly mentioned the facts regarding its fraudulent revival, fake documents, forged signature and falsity of various records submitted to RCS. In time proper action on the part of Markanday Mishra (A4) would have avoided the trauma caused to Paramjeet Singh, who was forced to file CC No. 18/2010 Page 21/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 another complaint with the Economic Offence Wing, Crime Branch, Delhi Police, because of the inaction on the part of Markanday Mishra (A4) in particular.
Investigation revealed that Narayan Diwakar (A2) the then Registrar Cooperative Societies in his order dated 30.1.2003 revived the Dream House Cooperative Society subject to the condition that the pending audit shall be got completed within two month time and the final list of 60 members sent to DDA but Markanday Mishra (A4) willfully put up the final list of the society for onward submission to DDA prior to completion of audit of the society.
Investigation revealed that Smt. Shakuntla Joshi (A5) while working as Assistant Registrar (North), during the year 20022003 entered into a criminal conspiracy with accused Ajay Wahiwal (A1), Dharmendra Singh Rana (A3/expired) both private persons, Markanday Mishra (A4), the then UDC, in office of Registrar Cooperative Societies, Delhi and Narayan Diwakar (A2) the then Registrar Cooperative Societies, Delhi dishonestly/fraudulently did not take any action for verification/inquiry about the society or its members under Section 54 & 55 of DCS Act, 1972 before seding the file to Registrar Cooperative Societies for revival of the society.
CC No. 18/2010 Page 22/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Investigation further revealed that Smt. Shakuntla Joshi (A5) in furtherance of a criminal conspiracy, fraudulently and willfully, she allowed the submission of forged papers (submited by A1, Ajay Wahiwal) without due application of mind and appropriate verification and during the course of submission of file to the Registrar Cooperative Societies, Smt. Shakuntla Joshi (A5) failed to make any noting in the file and simply endorsed the misleading representation made by accused Markanday Mishra (A4).
Investigation also further revealed that Smt. Shakuntla Joshi (A
5) the then Assistant Registrar forwarded a detailed note put up by Markanday Mishra (A4), UDC, on 27.1.2003 and submitted the forged deal on file in the form of inventory of verified documents for revival of the society. She willfully did not carry out any enquiry about resignation and enrollment of 17 members shown to have been accepted during the occupancy period of previous managing committee for which no intimation at any point of time was given to Registrar Cooperative Society. Further she willfully neglected and avoided summoning any member of previous managing committee to verify authenticity of above resignation and enrollment. Smt. Shakuntla Joshi (A5), the then Assistant Registrar especially keeping in view the order of revival dated 30.1.2003, she misrepresented the CC No. 18/2010 Page 23/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 fact regarding filing of fresh affidavit by all the 60 members before the Registrar Cooperative Societies which formed the part of said revival order. Copy of said revival order was forwarded to Smt. Shakuntla Joshi (A5) but then also she failed to take notice of the number of affidavits available in the file. Investigation has revealed that fresh affidavits by all the 60 members were never filed.
Investigation also revealed that Narayan Diwakar (A2) in his order dated 30.1.2003 revived the Dream House Cooperative Society subject to the condition that the pending audit shall be got completed within two month time and the final list of 60 members sent to DDA, but Smt. Shakuntla Joshi (A5), willfully sent the final list of the society to Assistant Registrar (Policy) for further submission to DDA, prior to completion of audit of the society.
Investigation has revealed that Narayan Diwakar (A2) the then Registrar Cooperative Societies grossly abused his powers and official position with a criminal intention and in furtherance of a criminal conspiracy, Dream House Cooperative Group Housing Society was allowed to get revived nearly after 10 years, without ascertaining the authenticity of the applicants and veracity of documents and without even obtaining any detail from the original promoter members. Investigating has also revealed that in furtherance of conspiracy false CC No. 18/2010 Page 24/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 noting have been made on records and attempts have been made to dilute complaint which could have exposed the falsification of documents as well conspiracy, hatched by Ajay Wahiwal (A1).
Investigation also revealed that Narayan Diwakar (A2) in his noting dated 21.1.2003, pertains to Dream House Cooperative Group Housing Society, he has mentioned that "Dr. Ram Singh, President of the society appeared before him in his office". Investigation however established that instead of Dr. Ram Singh, the president of the society was Ram Singh who never attended the proceedings before the Registrar and before official of Registrar Cooperative Societies. Further Narayan Diwakar (A2) has not mentioned any thing as regard to verification/examination of original records of the society, which have been called for vide letter dated 13.1.2003.
Investigation has revealed that in revival order dated 30.1.2003 Narayan Diwakar (A2) made a reference that records regarding holding of election of M.C. of the society on 24.11.2002 have been verified and found in accordance with the provisions of the cooperative law. Investigation has however established that said election was never held and any original/promoter members had never participated in the said election.
CC No. 18/2010 Page 25/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Investigation revealed that Narayan Diwakar (A2) in his revival order has mentioned that fresh affidavit in respect of all the 60 members of the society have also been filed. Investigation has however established that none of the original/promoter members whose names were allegedly considered for revival of the society were found to have been filed. Further he did not make any personal attempt to ensure filing of fresh affidavit by all the 60 members.
Investigation also revealed that in main file dealing with Dream House Cooperative Group Housing Society, no reference of revival order dated 30.1.2003 was available in noting part of the said file.
During the course of investigation sufficient evidence, documentary as well as oral has emerged to establish the facts related to forgeries, fake documents and illegality of revival order. It was already in knowledge of Narayan Diwakar (A2). This was however established when a complaint dated 21.3.2003 was filed by Paramjeet Singh, founder secretary of the society, which was endorsed by Narayan Diwakar (A2), but he prevail upon the complaint for not pursuing the matter. Investigation has further revealed that Paramjeet Singh personally met Narayan Diwakar (A2) several times but instead of taking action Narayan Diwakar (A2) advised him that if his name is retained in the revival list by the society, there is no reason for him CC No. 18/2010 Page 26/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 to insist for taking action on the complaint. Although, the complainant Paramjeet Singh continued his efforts, but Narayan Diwakar (A2) and his office slept over the matter and ultimately he had to approach EOW Delhi Police.
Investigation revealed that being aggrieved by the deliberate inaction of Registrar Cooperative Societies office, he filed another complaint in the office of Economic Offence Wing of Delhi Police. It was revealed during investigation that the complaint was initiated by Paramjeet Singh on 14.6.2004, when his efforts making the complaint before RCS office was futile and under scored by the RCS official. Thereafter, it was revealed that the accused Ajay Wahiwal (A1) and his associates had contacted Paramjeet Singh where he agreed for a compromise in the matter as all these persons agreed to resign from the society unconditionally and all the right of Dream House CGHS was returned to him. The said complaint was withdrawn by Paramjeet Singh after the documents in possession of Ajay Wahiwal (A1) was handed over to Paramjeet Singh and an undertaking for dissociating himself from the society was given by accused Ajay Wahiwal (A1). While filing the said complaint, pursuing and settlement of the matter, promoter members namely Rajinder Singh and Naresh Kumar Verma also accompanied Paramjeet Singh.
CC No. 18/2010 Page 27/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Ld. Sr. Public Prosecutor submits that in view of the above facts and circumstances, it is clear that Ajay Wahiwal (A1) had forged documents and presented the same to RCS office and A2 to A4 being public servants, who had abused their official position and that all of them were in conspiracy with each other.
CHARGE After hearing arguments, a charge under Section 120B IPC read with Section 420 read with 511 and Section 468/471 IPC read with Section 13(2) read with Section 13(1)(d) read with Section 15 of Prevention of Corruption Act 1988 was framed against all the accused persons.
A charge was framed under Section 13(2) read with Section 13(1)(d) read with Section 15 of Prevention of Corruption Act 1988 against accused Narayan Diwkar, Smt. Shakuntla Joshi and Markanday Mishra.
A separate charge was framed against accused Ajay Wahiwal under Section 420/511 IPC and under Section 468/471 IPC.
All the accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE Prosecution examined following witnesses :
PW1 Ms Vijayshri Gulati was posted as Statistical Investigator CC No. 18/2010 Page 28/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 in the office of Assistant Registrar (North) Cooperative Societies at Parliament Street, New Delhi w.e.f. 30.1.2003 to 14.5.2007. She maintained the diary register (D33) as Ex.PW1/1, which was maintained from 5.1.2001 to 26.3.2003. She testified that in this register at page no. 138 at serial no. 133, there is an entry dated 27.3.2003 in respect of a complaint received from Dream House Cooperative Group Housing Society bearing registration no. 1238.
The entry was proved as Ex.PW1/2. She testified that this complaint was marked to Sh. Mishra. She further testified that a complaint no. 2784 dated 23.3.2003 placed at page no. 332 in file D6 was handed over to Markanday Mishra, the Dealing Assistant.
PW2 J. R. Rasiya was posted as Inspector in the office of Assistant Registrar (North) in the year 2006. He had produced the original diary register and handed over to CBI vide production cum seizure memo Ex.PW2/A. He also identified diary register (D33) as Ex.PW1/1.
PW3 Manmohan Singh was posted as a Head Clerk/Reader to RCS w.e.f. 1.5.2000 to 15.7.2003. As a reader his duty was to maintain the files, to put up the cases to RCS, to issue notices to societies and to send back the files to the zone and to maintain the dispatch register etc. He testified that the file of Dream House CGHS CC No. 18/2010 Page 29/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 (D6) was maintained in North District, which was proved as ex.PW3/A. He testified that the note sheet in this file at page 16/N is in his own hand writing. He proved the signatures of Narayan Diwakar (A2) as well as some other proceedings.
PW4 Inspector Sukhdev Singh testified that he was posted as Sub Inspector with Economic Offences Wing of Delhi Police. A complaint of Paramjeet Singh was received on 18.6.2004 with regard to fraudulent revival of Dream House CGHS on the basis of forged documents and wrong representation by accused Ajay Wahiwal (A1). He had handed over the original complaint of Paramjeet Singh and his hand written withdrawal application to Inspector J. R. Katyar, CBI. He proved the production cum receipt memo Ex.PW4/A (D48).
PW5 Azad Kumar testified that he was conferred the powers to attest the documents by Central Government as a Notary Public and that he also had the powers to attest the documents as Oath Commissioner. On seeing the affidavit dated 24.1.2003 of Ajay Wahiwal (A1), he testified that the seal of Oath Commissioner placed at point A do not pertain to him. Moreover, the address mentioned in the seal i.e. LBlock, Vikas Bhawan, New Delhi does not belong to him. He further testified that the round seal appended on all the three pages at points B does not belong to him. He proved his specimen CC No. 18/2010 Page 30/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 signatures and hand writing, which are Ex.PW5/A. He also proved that the affidavit dated 24.1.2003 of Ajway Wahiwal (A1) does not bear his signatures as Oath Commissioner. He testified in the same manner in respect of the other affidavits of Ajay Wahiwal (A1).
PW6 Ram Prakash testified that he was working as a Field Officer in Aggarwal M. M. & Associates, Architects since 1984 and that he had met Ajay Wahiwal (A1) through his father at his residence. He testified that father of Ajay Wahiwal (A1) was one of the members of Cooperative Societies. He further testified that Dharmender Singh Rana used to come to his office and he (Dharemender Singh Rana) told him that he had a Cooperative Society for which he wanted to provide some membership to some persons. Ajay Wahiwal (A1) had asked for the membership of some society. Therefore, Dharmender Singh Rana got signed some papers including some blanck papers, forms and affidavits from Ajay Wahiwal (A1). No transaction regarding any money took place between Ajay Wahiwal (A1) and Dharmender Singh Rana. After some Ajay Wahiwal(A1) called him (i.e. PW6) over phone and told him that there is some dispute regarding ownership of the society as Dharmender singh Rana had earlier said that he was the owner of the said society, whereas the other persons were claiming to be the owner of the said society. On CC No. 18/2010 Page 31/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 this he (i.e.PW6) told Ajay Wahiwal (A1) that if there is any such dispute in the society, he had to resign from the membership of the society. In cross examination, he testified that Dharmender Singh Rana had kept the papers and other documents with him including the affidavits where signatures of Ajay Wahiwal (A1) were obtained. He testified that Dharmender Singh Rana had got the signatures of Ajay Wahiwal (A1) on some papers including proceeding registers after saying that these signatures are necessary for inducting the members. He testified that Ajay Wahiwal (A1) put his signatures in good faith. He testified that other claimant of the society was Paramjeet Singh. However he was made available about the said complaint by Ajay Wahiwal (A1). Thereafter, he made a call to Dharmender Singh Rana with request to deposit the papers of the society in the Crime Branch. But he (i.e. Dharmender Singh Rana) asked him (i.e. PW6) that Ajay Wahiwal (A1) would come to collect the same. The witness testified that by this way, the accused Ajay Wahiwal (A1) deposited the papers concerning the society with the Crime Branch. He further testified that all relevant papers including the forms, affidavits and their attestation concerning the society had undertaken to be done by Dharmender Singh Rana. He further testified that as per the his knowledge, Ajay Wahiwal (A1) never CC No. 18/2010 Page 32/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 visited the office of RCS.
PW7 Balram Singh testified that he was running a business of building material for the last 8 to 10 years and that Ajay Wahiwal (A
1) is his cousin brother in law. He testified that he never became the member of any Cooperative Group Housing Society. He testified that the application for membership Ex.PW7/A (at page no. 49 of D13) bears his signatures. It was got signed by one Mr. Rana from him. In cross examination by Ld. Sr. Public Prosecution he stated that he became member of Dream House Cooperative Group Housing Society in the year 2003 but not on 14.2.1993 as mentioned in the application for membership Ex.PW7/A. PW8 Rajiv Kumar testified that he was the member of Dream House CGHS and accused Ajay Wahiwal (A1) was his class fellow. He also proved his application of withdrawal of membership, which is Ex.PW8/A1 (placed at page 28 of D13). He proved his signatures on the affidavit dated 24.1.2003 and he also testified that at page 381 of the file D6, he had put his signatures on the GBM dated 24.11.2002. However he had not attended this meeting. He testified that the signatures were obtained by Dharmender Singh Rana. Sh. A. P. Singh, Ld. Sr. Public Prosecutor declared him hostile and cross examined the witness.
CC No. 18/2010 Page 33/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 PW9 Tulsi Dass Malhotra testified that Ajay Wahiwal (A1) is his childhood friend. On seeing the proceedings of Annual General Body Meeting dated 24.11.2002 (placed at page 315 to 319 in file D
6) wherein he has been shown as Election Officer. He testified that he never functioned as Election Officer in conducting the election of Dream House CGHS, nor he recognize the hand writing appearing on the said proceedings. He testified that even the resignation and receipt placed at page no. 32 to D13 do not bear his signatures.
PW10 Sanjiv Mittal testified that he became the member of Dream House CGHS in the year 1983 and that he never resigned from the membership of the society. On seeing the photo copy of the resignation letter dated 5.3.1993 (placed at page 208 in file D6), he testified that the signatures appearing at point X against his name are not his. Same was his testimony in respect of original resignation letter Ex.PW10/G1 (placed at page no.2 in file D40, D44 and D47). Similarly, on seeing the photo copy of receipt Ex.PW10/H and the original receipt Ex. PW10/H1, he testified that he did not receive any refund from the society and the signatures on these receipts are not his.
PW11 Rajender Singh was the promoter members. He testified that he remained active in the affairs of the society for about 3 to 4 CC No. 18/2010 Page 34/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 years and after that members lost interest in the society as no land was allotted. He testified that he never resigned from the membership of the society. On seeing the resignation letter dated 10.1.1992 (placed at page no.1 of D44), he testified that the signatures at point A do not belong to him. Similarly, on seeing the membership register (D11), he testified that the signatures appearing at point X at serial no.15 on page 4 do not belong to him.
PW12 Prem Kumar Khosla testified that he was a promoter member and that resignation letter dated 10.1.1993 (placed at page no. 205 of D6) do not belong to him nor he had received any refund from the society and that the signatures appearing on the receipt do not belong to him.
PW13 Damodar Bajaj is also a promoter member and testified that he never resigned from the society nor he received any refund. He also testified that the resignation letters of Jai Kishan Bajaj and Smt. Rajwanti Bajaj do not bear her signatures. Similarly, they did not receive any refund from the society and that their signatures on the receipts have been forged.
PW14 Harkirat Singh and PW15 Nirmaljeet Singh are also promoter members and had denied having resigned from the membership.
CC No. 18/2010 Page 35/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 PW16 Rajesh Kumar, PW17 Mukesh Kumar, PW18 Sanjay Kumar and PW19 Amit Kumar Jain, however, testified that they became the members through one Dharmender Singh Rana in the year 2002.
PW20 Suresh Bajaj is a promoter member, who testified that he became the member of the society 12 to 13 years ago through his brother Jai Kishan bajaj, who was friend of Paramjeet Singh to whom this society belonged. Ld. Sr. Public Prosecutor submits that due to inadvertence, he has stated that he was made a member 12 or 13 years ago. In fact he became the member in the year 1983, which is proved by the fact that his name figures at Sl. No.51 in the list of promoter members Ex.PW10/D. PW21 Paramjeet Singh testified that Dream House CGHS was formed by him in the year 198384 and at initial stages, Sh. G. S. Sachdev was President; Sh. Naresh Verma was Treasurer and he himself was the Secretary of the society. The original strength of the society at that time was around 60 and office address of the society was 23/1, Hari Niwas, Shakti Nagar, Delhi. He testified that Dream House CGHS was wound up during the year 1993 and that they never challenged the winding up order dated 19.8.1993. He proved various documents pertaining to this society and testified that he came to CC No. 18/2010 Page 36/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 know about Ajay Wahiwal (A1) when he got the information of revival of the society in the year 200405, as he got a notice for conducting the election of the society. He write a letter dated 21.3.2003 addressed to Registrar, which is Ex.PW1/3 regarding the fraudulent revival of Dream House CGHS with connivance of RCS officials. He also proved that the signatures against his name in the meeting dated 24.11.2002 placed at page no. 319 to 315 in file D6 (Ex.PW20/B) do not belong to him. He also testified that the letter dated 13.1.2003 (placed at page no. 133/C in file D6) issued by reader to RCS was never received at his address. He testified that no person by the name of Ram Singh, Balram Singh, Manoj Kumar, Rajiv Kumar and Ajay Wahiwal had been the members of Dream House CGHS.
He proved his various other letters and testified that when no action was taken in pursuance to his complaint dated 21.3.2003, he personally met the Dealing Assistant Markanday Mishra and the RCS Narayan Diwakar but none of them did anything. Narayan Diwakar told him that when his name was in the list of membership, then he should have no objection in this regard. He also told that the names of other members at his (i.e. PW21) instance could also be added if he wanted to add in the list of member. Since no action was taken by the CC No. 18/2010 Page 37/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 office of Registrar Cooperative Societies, then he made a complaint in the office of Joint Commissioner of Police, Economic Offences Wing, Crime Branch, Delhi Police. He proved his complaint dated 17.6.2004 as Ex.PW21/A26. He, however, withdrew this complaint pursuant to a compromise reached between the parties vide letter Ex.PW4/A1. He produced these documents to Inspector P. K. Tiwari vide productioncumreceipt memo dated 16.8.2005 (Ex.PW21/A28). He proved the various other documents. He also proved the letter dated 14.2.2003 placed at page 8 in file D7 (Ex.PW21/A33), which was received at his address. It was in respect of conducting of election of the society.
He testified that when he lodged the complaint against Ajay Wahiwal (A1) to Joint Commissioner, Delhi Police, he approached him stating that he (i.e. PW21) had sold the society to one Dharmender Singh Rana. On this he (i.e. PW21) bring Dharmender Singh Rana if he had sold the society to him. But they never brought Dharmender Singh Rana before him. He testified that he never resigned from the society.
PW22 Manoj Kumar testified that he became the member of the society through Ajay Wahiwal (A1). He did not give ay money for obtaining the membership of the society. But he never resigned from CC No. 18/2010 Page 38/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 the membership of the society. He testified that in the minutes of meeting dated 24.11.2002, his name appears against serial no.45 and that the signatures also belong to him but he did not join this meeting.
PW23 Vimal Kumar testified that he became the member of the society through Ajay Wahiwal but he did not pay any amount for obtaining membership. He testified that signatures on the minutes of meeting dated 16.2.2003 belong to him but he had not attended the meeting. He, however, proved his signatures on the withdrawal form and membership application.
PW24 G. S. Sachdeva is one of the founder members of the society and testified that he resigned from the membership of the society and that he never attended the meeting dated 24.11.2002. He testified that the resignation letter and the receipt placed at page no. 14 in file D44 to D47 does not bear his signatures as he neither resigned from the membership of the society nor received refund from the membership of the society.
PW25 Pradeep Kumar Singh had witnessed the taking specimen signatures of different persons by the by the officials of CBI.
PW26 P. K. Das, the Deputy Chief Manager in Oriental Bank of Commerce testified that he along with V. K. Arora, the Deputy Chief Manager had witnessed the search of residence of Mr. Lal Chand and CC No. 18/2010 Page 39/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 the documents were seized from the said premises vide a search list.
PW27 S. K. Khosla, Deputy Secretary in the Directorate of Vigilance, Government of NCT, accorded sanction under Section 19 to prosecution Smt. Shakuntla Joshi (A4).
PW28 D. S. Verma was Superintendent in the office of RCS. He proved the letter dated 22.9.2006 vide which he provided certain information in respect of Narayan Diwkar (A2), Smt. Shakuntla Joshi(A4) and Markanday Mishra (A3).
PW29 M. S. Sharma was posted as Assistant Registrar in the office of RCS w.e.f. 21.10.2004 to 5.6.2006. He proved two letters dated 27.2.2006 and 4.4.2006 written to CBI vide which certain information was given to them.
PW30 Naresh Kumar Verma is the promoter member apart from proving various other documents. He testified that he had never resigned from the membership of the society nor had ever received the refund of Rs.100/ as shown in the receipt.
PW31 Krishan Gopal Kashyap remained posted as Deputy Director (GH) w.e.f. 19.10.2004 to 31.8.2009. Vide his letter dated 1.3.2006, he produced certain documents to S. K. Jha, Superintendent of Police, CBI. Similarly he proved the another letter dated 3.5.2006 vide which he provided certain documents to J.R. CC No. 18/2010 Page 40/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Katiar, Inspector of Police, CBI.
PW32 T. Joshi is the hand writing expert.
PW33 Raman Vij proved the death certificate of Smt. Ram Pyari, who died on 6.4.1994.
PW34 Anil Kumar, the Executive Engineer, produced documents i.e. one application form for admission of MBA Programme in respect of Ajay Wahiwal (A1) to Inspector J. R. Katiyar. He also proved a letter dated 18.5.2006 issued by Ashok Kumar Sharma, Assistant Registrar.
PW35 Ashok Kumar Sharma, the Assistant Registrar in the Regional Center of Indiar Gandhi National Open University, proved the letter dated 18.5.2006 in respect of admission of Ajay Wahiwal (A
1).
PW36 Inspector S. L. Garg, EOWII, handed over the documents mentioned in production cum receipt memo dated 8.8.2005 (D61) to Inspector P. K. Tiwari. He testified that these documents had been received by him from the DDA.
PW37 C. S. Prakash Narayanan testified that in the year 2005, he was posted on deputation as Inspector in EOWI. On 5.8.2005, he received the documents vide memo daed 5.8.2005 from the office of RCS and on 8.8.2005, he handed over the same to Inspector P. K. CC No. 18/2010 Page 41/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Tiwari.
PW38 C. M. Sharma, the Controller of Accounts, accorded sanction to prosecute accused Markanday Mjishra (A3).
PW39 Ram Singh testified that he became member of the society 10 to 12 years ago but did not pay any amount to become the member. He did not remember if he had resigned from the membership. He testified that the signatures on the application for membership does not belong to him. He never attended the meeting dated 24.11.2002 and that he never remained President of the society. However, he admitted his signatures on the resignation letter but he denied his signatures on the proceeding register (D10 and D42). He also denied having attended any meeting dated 16.3.2003 vide whichhe was shown having been elected as the President of the society by Election Officer M. Kandaswami. He also denied his signatures on the minutes of Special General Body Meeting dated 5.4.2004.
PW40 V. K. Bansal remained posted as Assistant Registrar in the office of RCS and he testified the procedures and practices, which are followed in the office of RCS.
PW41 Inspector J. R. Katiyar is the Investigating Officer of this case.
CC No. 18/2010 Page 42/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 PW42 A. K. Yadav was the Office Superintendent in the Department of Education, Government of Nct but he was attached with CBI in CGHS Scam cases. He proved the specimen signatures/hand writing of Ajay Wahiwal (A1), which are S460 to S 675 collectively exhibited as Ex.PW32/PA. He testified that accused Ajay Wahiwal (A1) had given these specimen signatures voluntarily in his presence. He also proved the specimen hand writing of Lal Chand, the father of accused Ajay Wahiwal (A1), which are from S 680 to S693, which are already exhibited as E.PW32/PB. Statements under Section 313 CrPC.
Accused Ajay Wahiwal (A1) in his statement under Section 313 CrPC denied having given any specimen signatures to CBI. He denied his signatures and hand writings on all the questioned documents including the letters sent to RCS. He stated that he never engaged with any CGHS except that he was made a member of this society by D. S. Rana. He stated that he was introduced to D.S. Rana by Ram Prakash (PW6) and therefore in good faith he became the member of the society. He stated that all the documents pertaining to the society were with D. S. Rana, who got the society revived in league with Paramjeet Singh (PW21). He stated that Paramjeet Singh had handed over the documents of the society to D. S. Rana. When the society got CC No. 18/2010 Page 43/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 revived, the intimation regarding this was sent to the office of the society and Paramjeet Singh received it. Then greed crept in his mind and he made a false complaint with EOW in league with the officials of Economic Offences Wing (EOW) to grab the documents of the society and he was able to get the same from D. S. Rana. He stated that although police had no powers to effect a compromise in the offences of forgery, fraud etc, still the compromise arrived with the aid of officials of EOW. He stated that as soon as he came to know that there was a dispute between D. S. Rana and Paramjeet Singh for the control of the documents and functioning of the society, he resigned from the membership of the society and never had any concern with it. He stated that he never got refund of his money from the society. He stated that his alleged signatures on the letters sent to RCS have been forged by D. S. Rana and that he has not returned any proceedings.
Accused Narayan Diwkar (A2) took the defence that he had done all acts in good faith.
Accused Markandey Mishra (A3), the dealing clerk, has stated in his statement under Section 313 CrPC that as a dealing assistant he was duty bound to accept the documents, which were submitted by the society and the verification of the documents by him was done by CC No. 18/2010 Page 44/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 comparing the photo copies of the documents submitted by the society with their originals produced by the society. It is stated that being a dealing clerk, he had no authority to carry out physical inspection and the registrar used to hold the court manned by the staff and being quasi judicial authorities, he never acts on the recommendations of a clerk.
Accused Smt. Shakuntla Joshi (A4) has stated that she originally took the job as stenographer and after various promotions, she became a DANICS Official and that she was never complicit with the other accused persons and had acted bonifide. She stated that she only forwarded the proposal of dealing clerk to the registrar. Defence Evidence Accused Ajay Wahiwal (A1) examined Shed Faisal Huda (A 1/DW1), who is a hand writing expert.
Accused Narayan Diwakar (A2) and Markandey Mishra (A3) did not examine any witness in defence.
Accused Smt. Shakuntla Joshi (A4) examined two witnesses in defence, who are as under :
1) Devender Kumar (A4/DW1) is UDC in Department of Education, Old Secretariat and he proved the service record of Smt. Shakuntla Joshi (A4). He testified that Smt. Shakuntla Joshi (A4) CC No. 18/2010 Page 45/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 was appointed as Stenographer on 10.5.1973 and promoted as stenographer instructor and thereafter was promoted as Sr. P. A. till 28.9.2000 after which she was promoted as Assistant Registrar Cooperative Societies in DANICS cadre on 4.9.2000. He also testified that prior to promotion to ARCS, Smt. Shakuntla Joshi (A4) had made a request by a letter dated 10.2.2000 requesting that she may be promoted to the post of Principal Private Secretary in the Public Grievances Commission. He proved letter as Ex.A4/DW1/B.
2) Dilip Bhattacharya (A4/DW2) is a retired UDC. He testified that he remained posted in the office of RCS w.e.f. 28.2.1997 to November 2003. He stated that he remained posted in Old Secretariat Building of the office of RCS in North Zone somewhere from 2001 to 2002 and Smt. Shakuntla Joshi (A4) was posted in the same building.
He stated that earlier North Zone of the office of RCS was situated in Old Secretariat Building and the main office of RCS was at Parliament Street, where registrar used to sit. The office of North Zone was shifted to Parliament Street by the end of December 2002. Kaveri CGHS Judgement of High Court of Delhi Sh. Amritpal Singh, Ld. Sr. Public Prosecutor argues that in Kaveri Cooperative Group Housing Society Ltd. Vs Union of India (AIR 1991 Delhi 217), Delhi High Court had ordered the criteria of CC No. 18/2010 Page 46/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 seniority of the society as per the date of their registration, so as to stop the bunglings in the office of RCS. But the RCS officials were smart enough to defeat the purpose of that judgement and had invented a new trick by fraudulently reviving the defunct societies at the instance of builder mafia. This was done because the registration number of such society would be up in seniority list on account of its early date of registration.
For sake of understanding the logic of Hon'ble High Court of Delhi in Kaveri CGHS judgement, I would like to reproduce the relevant paragraphs from this judgement as under :
"Where in respect of allotment of land by the Delhi Development authority (DDA) to the Group Housing Societies, under the Delhi Development Authority (Disposal of Developed Nazul Land) Rules (1981) framed under S. 22 read with S. 56 of the Delhi Development Act (1957), an office memorandum was issued determining seniority on the basis of finalisation of list of members of such societies by the Registrar, Cooperative Societies, instead of earlier criteria of date of registration of such Societies, the said office memorandum was unreasonable and hence arbitrary. The main principle which has been set out in the said office memorandum is that the seniority is to be determined with effect from the date on CC No. 18/2010 Page 47/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 which the papers of the Society have been found in order and approved by the office of the Registrar, Cooperative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so filed. This criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of the Registrar of Cooperative Societies.
There may be cases, and they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which show that with no fault of the societies they have been relegated to a lower position in the seniority list, as there are societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list originally filed."
CC No. 18/2010 Page 48/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 In this judgement it was specifically held that land was to be allotted to the society according to the seniority i.e. date of registration. The purpose of this judgement was to restrict the powers of RCS so that these powers are not abused. Ld. Sr. Public Prosecutor submits that the facts of the present case show that RCS officials and builder mafia joined hands and made most of the new criteria laid by Hon'ble High Court, by reviving the old defunct/wound up societies by creating fake members and fake documents, which would have greater chance of allotment of land due to its higher seniority. Powers of police to take handwriting sample during investigation Sh. M. K. Gupta, adv of accused Ajay Wahiwal (A1). has referred to Sapan Haldar & Anr. Vs. State 191(2012) Delhi Law Times 225 of High Court of Delhi decided on 25.5.2012 and submit that the Investigating Officer had no power to take/specimen signatures. On the other hand, Ld. Sr. Public Prosecutor has referred to Ravinder Kumar @ Dara Singh Vs Republic of India AIR 2011 SC 1436 in which Supreme Court of India held that Investigating Officer had power to take specimen signatures during investigation. Ld. Sr. Public Prosecutor submits that in Sapan Haldar cae, the parties did not bring the aforesaid judgement to the notice of the High Court of Delhi.
CC No. 18/2010 Page 49/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 I have considered the rival contentions. The Supreme Court of India, in State of Bombay V. Kathi Kalu Oghad & Ors. AIR 1961 Supreme Court 1808, considered this issue in detail and held that police does not require the permission of the Magistrate before taking the specimen hand writing of an accused during investigation. Relying upon the ratio of Kathi Kalu case, Supreme Court of India in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, where a question was raised about the admissibility of the specimen signatures of the accused taken during investigation by police without permission of the Magistrate, has held that taking of specimen signatures/writings of accused for examination by expert during investigation, without permission of the Magistrate, is proper and report of expert based on such signatures/writings can be used as evidence against the accused. In this judgment, the Supreme Court had also noticed a recent amendment of 2006 (i.e. Section 311A IPC). Relevant portion of para no. 35 of this judgment contain the rival submission put before it, which is reproduced as under :
"Another question which we have to consider is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen CC No. 18/2010 Page 50/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10: AIR 1961 SC 1808. This larger Bench was constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M. P. Sharma & Ors. Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077:
(AIR 1954 SC 300)."
The Supreme Court of India then upheld the view of Orissa High Court which had held that police had power to take specimen signatures of accused during investigation. Thus, I find no illegality in taking of specimen signatures of the accused Ajay Wahiwal by the CBI during investigation.
Evidentiary value of the opinion of hand writing expert It is submitted by Sh. M. K. Gupta, Adv. for accused Ajay Wahiwal (A1) that convicting an accused on the opinion of hand CC No. 18/2010 Page 51/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 writing expert would be a highly dangerous proposition. Ld. Defence Counsel has referred Magan Bihari Lal Vs State of Punjab, AIR 1977 SC 1091 in his support. Ld. Defence Counsel has drawn my attention to the facts of the said judgment, wherein the sole evidence against the accused was the opinion of handwriting expert. It was held that it would be extremely hazardous to condemn the accused merely on the strength of opinion evidence of a handwriting expert without substantial corroboration.
I have considered the case law cited by Ld. Defence Counsel. Section 45 of the Indian Evidence Act lay down that when the court has to form an opinion as to the identity of hand writing or finger impressions, the opinions upon that point of the persons expert in that science are relevant facts. If the two hand writings match with each other, this itself is an evidence as per the Indian Evidence act. To say it differently, the matching of two hand writings is itself a substantial evidence u/s 45 of Indian Evidence Act and the opinion of the hand writing expert is sought only to facilitate the court to form an opinion on this point. The appropriate interpretation of Section 45 of Indian Evidence Act is that court is competent to form its own opinion on the point of identity of hand writing and for that purpose the court may call for the report of a hand writing expert. Therefore, the relevant CC No. 18/2010 Page 52/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 fact before this court is the matching or non matching of the hand writing of an accused with the questioned hand writing. If the hand writings match, there cannot be any hitch in convicting the accused even if further corroborative evidence is not available. I quote from the judgment dated 5.7.2011 passed by the division Bench of Hon'ble Mr. Justice S. Ravindra Bhatt and Hon'ble Mr. Justice G. P. Mittal in Jaipal Vs State Criminal appeal No. 137/98 and Rajendra Vs State Criminal Appeal No. 181/98 as under :
"it is true that except the handwriting Expert's report Ext.PW4/A there is no corroboration that the ransom letter Ext.PW12/A was in the handwriting of Appellant Jaipal. The question was dealt in detail by the Supreme Court in Murari Lal v. State of M. P., AIR 1980 SC 531. The Court observed that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration."
It is pertinent to note that High Court of Delhi had relied upon Murari Lal v. State of M.P., AIR 1980 SC 531 wherein Hon'ble Supreme Court held that there was no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted CC No. 18/2010 Page 53/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 upon, unless substantially corroborated. In this judgement Hon'ble Supreme Court analyzed various judgements on this issue including "Magan Bihari Lal" cited by Ld. Defence Counsel. Hon'ble Supreme Court specifically noted that the observations in "Magan Bihari Lal"
do not lay down any legal principle. I would like to quote from this judgment extensively as under:
"An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion on a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnessthe quality of credibility or incredibility being one which an expert shares with all other witness, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (para 4) Expert testimony is made relevant by S.45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to CC No. 18/2010 Page 54/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 identity of handwriting is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to S. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the Court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells that 'A fact is said to be provided when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Further, under S. 144 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
(Para 6) There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. (Cases law discussed).
(Para 11) Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is CC No. 18/2010 Page 55/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.
(Para 12) In view of the above stated law, I am of the opinion that when a case is being pressed by the prosecution solely on the basis of handwriting expert, the court should be very cautious and the reasons for the expert opinion must be carefully examined. In case where reasons for opinion are convincing and there is no reliable evidence throwing a doubt upon it, the testimony of handwriting expert may be accepted. It is, however, relevant to mention here that in the present case, prosecution is not solely relying upon the opinion of hand writing expert, rather submitted substantial corroborative evidence has been pressed against accused Ajay Wahiwal.
Notings in D6 15/N May kindly peruse the letter placed opposite in the file received from the President of the Dream House Coop. G/H Society Ltd.
Wherein it has been requested that the Society may be revived.CC No. 18/2010 Page 56/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 In this context, it is submitted that the society was registered in this office vide Regd. No. 1238 on 41--1984 (RCS at Pg. 103/C). the list of members of the (Pg. 112/C) society was sent to DDA and the approval list of the members may kindly be seen from Pg 105/C to 107/C. Perusal of the winding up order of the society at Pag 140/C reveals that the society was put under liquidation owing to the following reasons on 19893 :
1) Non holding of AGBM.
2) Non conduction of election.
3) Non conduction of audit etc. Now, as the society has informed this office vide its letter dated 2103 (P144/C) has informed this office about the completion of the statutory obligation, if agreed, as may send the file in the Court of RCS for further n/a as requested by the society.
Submitted pleas D.A. AR(N) 8.1.2003 8.1.2003 Reader to RCS 16/N The proposal of revival of the DREAM HOUSE C.G.H.S. Hs been forwarded by the AR (North), under Section 63 of D.C.S. Act 1973. The society was liquidated on 1981993 for not holding AGB meeting, election etc. & has now completed all formalities as per noting of the zonal branch.
Hence, Notice to the society, if agreed, may be sent for initial hearing.
Submitted please.
R.C.S
Reader N. Diwakar
16.1.2003 13.1.2003
CC No. 18/2010 Page 57/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014
17/N
21.01.2003
Dr. Ram Singh, President of the society present.
Reader is directed to send the file to the concerned zone for zonal verification.
Proceedings adjourned for 28.01.2003.
AR(North) for compliance pl. (N.DIWAKAR)
R.C.S.
18/N
The proposal in the file is regarding revival of the Dream House CGHS Ltd. Registration No. 1238, 23/1 Hari Niwas, Shakti Nagar, Delhi7.
In this context, it is submitted that the above society was put under liquidation vide Order No. F.47/1238/NGH/Coop/10411 to 10415 dated 10.8.93 owing to the following reasons :
1. None holding of Annual General Body Meeting.
2. Non holding of Election of the Managing Committee of the society.
3. Non conduction of Audit of accounts of the society.
It is further submitted that the society vide letter dated 2.1.03 (Page 144/C) had requested this office for revival of the society and accordingly the same was sent to the court of RCS for further orders. RCS vide his order dated 21.1.03 (Pg. 17/N) sent this file for zonal verification and the proceedings was adjourned for 28.1.03. In compliance with the order of RCS, the office bearers of the society attended the office alongwith the original records for verification and the following records were provided :
1. Membership Register.
2. Proceedings Register relating to holding of GBM.
3. Proceedings Register of Managing Committee approving the resignations/enrollments.
4. Audit report for the year 199091.
5. Unaudited accounts of the society w.e.f. 1.4.91 to 31.03.02.
CC No. 18/2010 Page 58/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 During the course of verification of records of the society, it was seen that the Annual General Body meeting of the society was held on 24.11.2002 and election of the Managing Committee of the society was also held and in that very meeting,it was also decided to approach the RCS for revival of the society. A copy of the minutes of AGBM may kindly be seen from Pages 327 to 331/C. A copy of the Audit Report for the year 199091 may kindly be seen from Pages 160 to 173/C. The society has also produced the unaudited accounts of the society w.e.f. 1.4.91 to 31.3.02 and the same may kindly be seen from Pages 174 to 199/C. The society has also submitted a list of 60 members which may kindly be seen at Pages 332/C. In this context, it is submitted that the Freeze list of the society of 60 members was approved by this office and the final list of 60 members was sent to DDA vide this office letter No.F.47/Verif./Coop/NGH/85/2058 dated 3.9.87 (Page 112/C) and the approved list of 60 members may kindly be seen from Pages 105/C to 107/C please.
The society has informed that out of the approved list of 60 members, the Managing Committee of the society has accepted the resignations of 21 members from time to time as detailed at Page 335/C and as detailed below :
All these resignations are prior to the liquidation of the society. The society has provided photocopies of resignation letters, MC Resolutions and receipt in respect of refund of the share money and the same have been verified from originals. All these documents may kindly be seen from Pages 200/C to 266/C. This office has already approved the resignations fo Sh. Anil Kumar, MS No.5 vide letter dated 7.6.88 (Page 117/C).
19/N The remaining 20 resignations from S.No. 2 to 21 are to be taken on record. Details of the 21 resigned members is as under : SNO. MS Name of Member Date of Date of Date of No. Resignation MC refund Resolution of share 1 5 Sh. Anil Kumar 22.04.88 06.05.88 06.05.88 ...................................
21 29 Sh. Prem Khosla 10.03.93 20.03.93 25.04.93 CC No. 18/2010 Page 59/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Consequent upon the resignations of the 21 member, the MC of the society has enrolled 21 new members as detailed at Page 334/C and as detailed below. The society has produced photocopies of application forms, MC Resolutions and receipts of deposit of share money. All these have been verified from originals. Individual Affidavits have been provided by all the newly enrolled members. All these documents may kindly be seen from Pages 259 to 326/C. All these enrolments are prior to the liquidation of the society. Out of the 21 enrollments, this office has already approved the enrollments of Shri Sanjay Chopra MS No.61 vide letter dated 7.6.88 (P 117/C. The remaining 20 enrollments are to be taken on record. Details of the 21 enrolled members is as under : S.No. MS Name of the Member Date of Date of Date of No. Application MC Payment of Approval S.M.
1. 61 Sh. Sanjay Chopra 06.05.88 09.05.88 09.05.88 ..............................................
11 71 Sh. Balram Singh 14.02.93 15.0293 20.02.93 20/N 12 72 Sh. Joginder Singh 22.02.93 28.02.93 28.02.93 .............................................
21 81 Sh. Mukesh Kumar 10.05.93 11.05.93 15.05.93 The list of 60 members as provided by the society may kindly be seen from Paged 332/C to /C. The certificate of he society certifying that no land has been offered to the society by DDA till dated may kindly be seen at Pages 336/C. The statutory affidavits of the society containing all the details may kindly be seen from Pages 333 to 335. Copies of the Membership Register may kindly be seen from Pages 149/C to 159/C. Details of the existing 60 members in the society is as under : S.No. MS.NO. Name of the Member CC No. 18/2010 Page 60/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 1 1 Sh. Paramjeet Singh .....................
36 54 Smt. Rajwanti 21/N 37 55 Sh. Shyam Lal ..................
60 81 Sh. Mukesh Kumar In view of the position explained, it is seen that the society has conducted the election on 24.11.2002 and has submitted unaudited accounts of the society upto 31.3.02 and vide its letter dated 2.1.03 has also requested this office for appointment of Auditor and the society has held its Annual General Body Meeting on 24.11.02. The society has also submitted a list of 60 existing members. The President and the Secretary have filed individual affidavits (Page 338 to 339) wherein they have undertaken to abide by the DCS Act & Rules and also complete all the statutory obligation bestowed upon them. The society has further affirmed that no court case/enquiry etc. is pending against the society.
In view of the above, if agreed, we may send the file to the Court of RCS for cancellation of the Winding up order of the Dream House Coop. G/H Society Ltd. Regd. No. 1238 if deemed it. The statutory Affidavit of the society may kindly be seen from Pages 333 to 335/C and the 06 Point Affidavit filed by the society may kindly be seen at Page 340/C. Submitted please.
D.A. ASSISTANT REGISTRAR (N)
27.1.2003 27.1.2003
READER TO RCS
22/N
28.01.2003
CC No. 18/2010 Page 61/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014
Sh. Ajay, Secy. Of the society present and stated that verification has been done.
The case is reserved for orders.
(N.DIWAKAR) R.C.S. Revival order IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW DELHI110001.
Case No.RCS/007/03/223743 Dated : January, 30, 2003 ORDER Whereas the DREAM HOUSE COOPERATIVE GROUP HOUSING SOCIETY LTD. (Regd. No.1238), 23/1, Hari Niwas, Shakti Nagar7 was issued a Show Cause Notice vide Office Orders no. F.47/1238/NGH/Coop/9713 dated 11693 u/s 63(2) of Delhi Cooperative Societies Act, 1972 mainly on the following grounds:
1) The Society failed to send any intimation pertaining to holding of its Annual General Meeting since registration.
2) The Society has failed to conduct the election of the Managing Committee since its inception, inspite of requisition u/s 30(1) and SCN u/s 30 (ii) of DCS Act, 1972.
3) The Society has failed to get its accounts audited since registration.
4) The Society failed to comply with the directives issued by this office from time to time.
And whereas, the society failed to respond to the above mentioned Show Cause Notices u/s 63 dated 110693, the society was put under liquidation vide this office order No.F.47/1238/NGH/Coop/1041115 dated 190893.
And whereas, the society vide its letter dated 02012003 requested for revival of the society u/s 63(3) of the D.C.S. Act, 1972 and has submitted the following clarification and requested the Registrar Cooperative Societies for the withdrawal of winding up order dated 190893.
1) The election of the M.C. Of the Society was conducted in the AGBM of the Society held on 24112002.
2) A list of 60 members drawn afresh as per the records of the Society for verification.
CC No. 18/2010 Page 62/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014
3) The accounts of the society have been prepared and are ready for audit purpose.
And whereas, Dr. Ram Singh, President of the society appeared before this court on the dates fixed. He stated that in the General Body Meeting held on 24112002, elections for the Managing Committee of the society were got conducted strictly in accordance with the provisions of law. It was also stated that list of 60 members as on dated has been drawn up in the prescribed proforma on the basis of the record of the society and had also been submitted for verification. As regards Audit, it was mentioned that all the pending accounts are ready for Audit and filed photocopies of the unaudited accounts of the society. The President and Secretary of the society made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 24012003 to this effect. They were directed to file all the original records before the Asstt. Registrar concerned for verification.
And whereas, it was reported by the Asstt. Registrar (North) that the original records were produced by the society and were got verified. The society had submitted the list of 60 members as on dated and unaudited accounts till the period ending 31032002. The records regarding holding of election of M.C. Of the Society on 24112002 have been verified and found in accordance with the provisions of the cooperative law. The application forms, share money receipts and resolution of M.C. Of newly enrolled members have also been verified from the original records. Fresh affidavits in respect of all the 60 members of the society have also been filed. It has been mentioned in the report of Asstt. Registrar (South) that the society was put under liquidation vide order dated 190893 and liquidator was also appointed, but the liquidator, till date, has given no final report. The society has tried to remove the shortcomings on the basis of which the society was put under liquidation. The M.C. Of the society was continuously managing the affairs of the society and was instrumental in its effect to revive the society. Therefore, in absence of finalization of liquidation proceedings, action initiated u/s 63 of D.C.S. Act, 1972 has become a nullity.
I have gone through the submissions made by the President and Secretary of the society, affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (North).
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed. I N. Diwakar, Registrar Cooperative Societies, Govt. Of NCT of Delhi, hereby cancel the winding up order dated 20.0893 issued to the DREAM HOUSE COOP. G/H SOCIETY LTD. (Regid. No.1238/GH) in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the DREAM HOUSE COOP. GROUP HOUSING SOCIETY LTD. (Regd. No.1238/GH) is hereby revived with immediate effect subject to the condition that the pending Audit shall be got completed within two months time and the final list of 60 members sent to DDA.
In addition to above, keeping in view the Principal of natural justice and cooperative spirit, I hereby appoint Sh. M. Kandswamy, Gr.III of this department as Election Officer to conduct the election of the Managing Committee of the society within CC No. 18/2010 Page 63/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 two months of the issue of this order. The President/Secretary of the society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the society.
Announced.
(N. DIWAKAR)
No. RCS/007/03/223243 REGISTRAR COOP. SOCIETIES
Copy to dated 30.1.2003
1. The President/Secretary,
Dream House Coop. G/H Society Ltd, 23/1, Hari Niwas, Shakti Nagar, Delhi
2. Joint registrarI .......................
Notings on the file In the 'Runu Ghosh Vs. CBI (CRL. A. 482/2002 decided on 21.12.2011), it has also been held that since the offences of corruption are done under the cloak of official duties and in a very clever and shrouded manner, the only evidence available is note sheets written or approved by public servants and the court would be fully justified to draw appropriate inferences from such note sheets. This court has to carefully peruse the note sheets to consider as to whether there has been any abuse of powers, as per Section 13(1)(d)
(ii) or whether the public servant has acted without any public interest to obtain pecuniary advantage to any person, bringing the case under Clause (iii) of Section 13(1)(d) of Prevention of Corruption Act 1988.
Legal issue raised by accused Narayan Diwakar (A2) Sh. Abhishek Prasad, Adv. (Ld. Amicus Curie) argues that the CC No. 18/2010 Page 64/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Registrar had cancelled the winding up order in exercise of the powers under Section 63(3) of DCS Act.
It is argued that once a society is not liquidated within three years, the society automatically revives and winding up order looses its steam. Therefore, it is argued that Narayan Diwakar had no option but to revive such a society. It is argued that in none of the cases, Narayan Diwakar had rejected application for revival as he was bound to revive the society by the mandate of law. Further elaborating this issue, Ld. Defence Counsel has drawn my attention Rule 105 of DCS Act 1972, which is reproduced as under :
"105. Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar.
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings."CC No. 18/2010 Page 65/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 It is submitted that as per the rules the winding up proceedings shall be closed within one year from the order of winding up unless the period is extended by the Registrar. It is submitted that the Registrar can extend this period for three years and shall immediately after the expiry of three years from the date of the order of winding up society, deem that liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings.
Thus, it is argued by Ld. Defence Counsel, not only Registrar was within his rights to cancel the winding up order but it would be more appropriate to say that he was bound by the law quoted above to cancel the winding up order and revive the society.
Ld. Defence Counsel has referred to the judgement dated 21.11.1986 passed by Hon'ble High Courtof Delhi in Civil Writ Petition No. 1767/1986 in Vikas CGHS Vs. RCS and I reproduce the last paragraph of the same as under :
"There is an application (C.M. 3058/86) on behalf of Shri Nirmal Singh and Shri Pitam Singh for being impleaded as parties in the petition. The contention is that for the last number of years no annual general meeting CC No. 18/2010 Page 66/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 has been held for electing members of the committee. The petitioner has no objection to the holding of the annual general meeting for the election of the members of the committee. We direct that the Registrar shall within three months made arrangements for the holding of the elections and the elections shall be held under the supervision of the Registrar or his nominee. Another contention raised is that the petitioner society have removed 60 persons from the membership and made 42 new members. It is contended that before an election is held it should be decided as to who are the members of the society. We leave this to the Registrar to decide as to who are the legally admitted members of the petitioner society. If any member is aggrieved against his removal from the membership of the society or against the induction of a new members to the society he can take appropriate steps in accordance with law."
The above mentioned part shows that High Court has left it for the Registrar to decide as to who are the legally admitted members of the society. In other words, High Court was of the view that if the liquidation proceedings have not been terminated as per Rule 105 of DCS Rules, the society still survives because winding up order has not been taken to its logical conclusion by completely liquidating the CC No. 18/2010 Page 67/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 society, but in respect of verifying the members of the society, it was held that it was purely within the domain of the Registrar. I may repeat that this court is not disputing the powers of the Registrar, as it cannot, being not an appellate authority upon the RCS and therefore cannot and should not question the legality of the order. The simple issue before this court is as to whether as the time of the passing of the revival order and approving/sending the list of members to DDA for allotment of land, the accused had the knowledge that fraud is being played or documents are forged or the members fake. Therefore, real issue is not the revival order and powers to do so by the Registrar, rather the issue is the intention involved in approval of freeze list of fake members and sending the same to DDA for allotment of land. I have already held that as per dicta of 'Runu Ghosh' case, such intention has to be seen from the note sheet and order available on file.
Stressing the point that the Narayan Diwakar was acting in judicial capacity, Ld. Defence Counsel has drawn my attention to Section 77, 78 and 79 IPC, which are reproduced as under :
77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he CC No. 18/2010 Page 68/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 believes to be, given to him by law.
78. Act done pursuant to the judgment or order of Court - Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
My attention has also been drawn to Section 76(j) of DCS Act, which provides appeal against the winding order under Section 63 of DCS Act. Ld. Defence Counsel has drawn my attention to Section 19 IPC, which defines 'judge'. I reproduce the same as under :
19. "Judge". The word "Judge" denotes not only every person who is officially designated as a Judge, but also every persons, who is empowered by law to give, in any CC No. 18/2010 Page 69/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.
I have considered the submissions of Sh. Abhishek Prasad, Adv. Ld. Amicus Curie for accused Narayan Diwakar (A2) and I find no substance in this submission. To say that while exercising the powers under Section 63(3) of DCS Act in cancelling of winding up order of a society, the Registrar was acting judicially has not been accepted by CC No. 18/2010 Page 70/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Delhi High Court in Narayan Diwakar Vs CBI 129 (2006) DLT decided on 7.3.2006. This petition was filed by this accused raising same pleas and claiming the protection available to a judge under Section 19 IPC and Section 2 of Judges (Protection) Act 1985. Hon'ble Mr. Justice R. C. Jain of Delhi High Court rejected the said pleas of this accused and opined as under :
"15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Cooperative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large ramifications in the society.
Thus, it is clear that he cannot avail the protection of being a judge while passing the revival order, if prosecution is able to prove 'bad faith' on his part.CC No. 18/2010 Page 71/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Ajay Wahiwal (A1) I am taking up the submissions of Sh. M. K. Gupta, adv. for accused Ajay Wahiwal (A1) under the following heads :
(1) Whether the documents of the society were recovered from the house of accused Ajay Wahiwal (A1).
Sh. M. K. Gupta, adv. argues that no documents were recovered from the house of accused Ajay Wahiwal (A1). Ld. Defence Counsel has drawn my attention to the cross examination of PW41 J.R. Katiyar, the Investigating Officer, in which the accused Ajay Wahiwal (A1) has put a specific suggestion that no document was recovered from the search and that these documents have been planted by CBI. I have considered the submission and I do not find any substance in the submission. The Investigating Officer Inspector J. R. Katiyar (PW41) has testified that during the course of investigation, in pursuance to a search warrant dated 3.4.2006 issued by Special Judge, CBI, Patiala House Court, New Delhi, a search was conducted on 4.4.2006 at the residence of accused Ajay Wahiwal (A1) at C407/L, Gali No.17B, Bhajan Pura, Delhi53 in presence of two independent witnesses namely V. K. Arora and P. K. Das, both the officers from Oriental Bank of Commerce, Connaught Place, New Delhi. PW41 testified that Lal Chand, the father of accused Ajay Wahiwal, also present during the CC No. 18/2010 Page 72/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 course of the search and a copy of search list was given to him and his signatures as token of receipt was also obtained, which is available at point C on the search list. He identified his own signatures at point D and the signatures of independent witnesses at point A and B. He testified that vide this search list (D16), the documents which are D 17 (Ex.PW26/B) and D18 (Ex.PW26/C) were recovered. It is pertinent to note that prosecution also examined P. K. Dass, the independent witness, the Deputy Chief Manager in Oriental Bank of Commerce at Harsha Bhawan, Connaught Place, New Delhi. Ld. Defence Counsel cross examined this witness in detailed but was unable to assail the testimony of PW26 and PW41. Hence, I do not find any substance in the submissions of Ld. Defence Counsel that no documents were recovered from the house of accused Ajay Wahiwal (A1).
(2) Did the police take specimen hand writing of accused Ajay Wahiwal (A1) forcibly.
Ld. Defence Counsel has drawn my attention to the cross examination of the Investigating Officer (PW41) in which accused had given a suggestion that the Investigating Officer had forced accused Ajay Wahiwal (A1) to write the sample signatures/hand writing exactly similar to the questioned documents and did not permit him to CC No. 18/2010 Page 73/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 write in his natural way.
It is pertinent to note that this court put a question no. 365 in which attention of the accused was drawn that his specimen signatures S460 to S679 (Ex.PW32/PA) were taken by the Investigating Officer, A1 stated that he did not know anything about it. However, in answer to question no. 401, he admitted that Inspector J. R. Katiyar had taken his specimen signatures but he denied that PW42 A. K. Yadav was present at that time. In the entire statement under Section 313 CrPC, accused did not raise the plea that his sample signatures/hand writing were taken forcibly by the Investigating Officer. Therefore, a bald suggestion to that effect has no value.
(3) Role of Dharmendra Singh Rana In the charge sheet, Dharmendra Singh Rana was also mentioned as an accused but he was not charge sheeted as he has expired during investigation. Ld. Defence Counsel has drawn my attention to the statements of PW7, PW8, PW16, PW17 and PW18, who have testified that Dharmendra Singh Rana had inducted them the members of this society. It is argued by Ld. Defence Counsel that this evidence shows that the society was being managed by Dharmendra Singh Rana and accused Ajay Wahiwal (A1) has been CC No. 18/2010 Page 74/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 falsely implicated in this case by CBI because Dharmendra Singh Rana was dead and someone has to be a made scapegoat. I disagree with his submission. Although it appears that Dharmendra Singh Rana must be having active role in this society in enrolling the members of the society. However, I refer to the statements of PW22 Manoj Kumar and PW23 Vimal Kumar, who have testified that accused Ajay Wahiwal (A1) had made them the members of the society. PW21 Paramjeet Singh has testified that when he made a complaint to Economic Offences Wing of Delhi Police, accused Ajay Wahiwal (A1) returned the original documents of the society to him. Moreover, some documents pertaining to the society, which are D17 and D18, were also recovered by police from the residence of accused Ajay Wahiwal (A1). It shows that at the time of revival of the society, accused Ajay Wahiwal (A1) was handling the documents and was enrolling the fresh members in the society.
(4) Ram Singh (PW39) Ld. Defence Counsel has drawn my attention to the noting dated 21.1.2003 Ex.PW3/A3 (placed at page 17/N of D6), wherein accused Narayan Diwakar had noted the presence of Ram Singh. The prosecution had examined Ram Singh as PW39. He testified that he became member of the society 10 to 12 years ago. It is argued by Ld. CC No. 18/2010 Page 75/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Defence Counsel that his testimony before the court that he never attended any meeting and never remained the president of the society is falsified from the fact that the noting dated 21.1.2003 before Registrar shows his presence in the office and that it shows that he was in possession of the records of the society, which is contrary to the prosecution case that the records were in possession of accused Ajay Wahiwal (A1). I disagree with his submission. In the notings, the presence show is that of Dr. Ram Singh and it is not clear that it was PW39, who had appeared as president before the RCS. In fact accused Ajay Wahiwal (A1) has also not suggested to PW39 that actually he was the resident of the society and had appeared before the RCS office for revival of the society. Hence, I disagree with the submission of Ld. Defence Counsel that Ram Singh was handling the society as President at the time of revival of society. (5) Two affidavits of Ajay Wahiwal (A1) and his signatures on revival application.
Ajay Wahiwal (A1) had filed two affidavits both dated 24.1.2003 in which he has undertaken that the society is ready to take responsibility if any member had resigned and that society had paid cash to resigned members towards their share money and that he will hold Annual General Body Meeting, Election, Audit etc. as per rules of CC No. 18/2010 Page 76/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 the Delhi Cooperative Society Act 1972 and Rules 1973. These affidavits are placed at page 329 and 328 of D6 and have been marked as Ex.PW32/A14 and Ex.PW32/A15.
As per prosecution accused Ajay Wahiwal (A1) purportedly acting as President/Honorary Secretary for Dream House CGHS moved an application dated 2.1.2003 before the Registrar praying that winding up order of the society may be cancelled and society may be revived. This application is Ex.PW32/A20 placed at page no. 131/C of D6. As per prosecution, the signatures of Ajay Wahiwal (A1) are present at Q211. However, accused had denied these signatures and has relied upon the testimony of hand writing expert examined by him as A1/DW1. My attention has been drawn to his report Ex.A1/DW 1/3, wherein it is clearly mentioned that this signatures had not been written by Ajay Wahiwal (A1). The hand writing expert has also placed on record the enlarged photographs of Q211 and S460, which are the specimen signatures of Ajay Wahiwal. On the contrary, Ld. Sr. Public Prosecutor has relied upon the reasons given by hand writing expert examined by prosecution as PW32. PW32 has given the reasons for his opinion, which are Ex.PW32/PY. I reproduce the relevant portion of the same at page 13 as under :
"Similarities are also observed in the in conspicuous details of CC No. 18/2010 Page 77/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 writings characteristics in the signatures, some of these are : similar manner of execution of the letter 'A' with nature of its commencing stroke, angularity at the top, curvature in the first and second arm as well as eyelet formation to retraced formation at the foot of second arm is observed similar with similar variation; manner of connection of letter 'A' with succeeding letter 'j' with similar movement and freedom as well as nature of curvature in the body of letter 'j' along with its connection with succeeding letter 'a' with simplified nature of letter 'a' with compact oval and its connection with succeeding letter 'y' is observed similar with similar variation; peculiar manner of formation of letter 'y' with the nature of its body and its connection with preceding letter and direction of extended finish of the staff of letter 'y' is observed similar with similar variation; nature and location of dots add flourishing line is also observed similar with similar variation."
Whereas the hand writing expert has given detailed reasons as to how the signatures of Ajay Wahiwal (A1) on the application and the affidavits are similar to specimen signatures of Ajay Wahiwal (A
1). The report also specifically deals with the signatures at Q211 as well as his signatures on the two affidavits already mentioned, which are Q140, Q141, Q143 and Q144. However, the defence hand writing expert has placed on record the enlarged photograph of Q211 and enlarged photograph of specimen signature of S460 as well as the enlarged photographs of Q140, Q141, Q143 & Q144. On perusal of these enlarged photographs of questioned and specimen signatures, I CC No. 18/2010 Page 78/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 am left in doubt that they have been written by one and the same person and I fully agree with the opinion of PW32 T. Joshi and reject the evidence of the defence expert. Thus it stands proved that it was accused Ajay Wahiwal (A1), who had moved the application before RCS praying for revival of the society and had also filed the affidavits Ex.PW32/A14 & Ex.PW32/A15.
(6) Whether accused Ajay Wahiwal (A1) was instrumental in reviving the society.
Ld. Defence Counsel has argued that it was D. S. Rana, who was handling the society. It is argued that Paramjeet Singh had himself given all the documents of the society to D. S. Rana. Ld. Defence Counsel has drawn my attention to the original show cause notice dated 11.6.1993 (placed at page no. 19 and 20 of D17). Ld. Defence Counsel submits that this is a show cause notice issued by Joint Registrar to Dream House CGHS at the address of Paramjeet Singh. It is submitted that this show cause notice should be in possession of Paramjeet Singh and it is he who must have given it to D. S. Rana. But the society was revived, Paramjeet Singh became greedy and filed complaint against D. S. Rana. It is argued that many of the witnesses have also stated that it was D. S. Rana, who had made them the members of this society.
CC No. 18/2010 Page 79/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Thus it is argued that benefit of doubt should be given to accused Ajay Wahiwal (A1) as the society was being run by D. S. Rana. I have considered the submissions. It appears that D. S. Rana had got the documents of the society and had also enrolled some new members but thereafter it appears that the documents of the society were given to accused Ajay Wahiwal (A1). It is proved that it was accused Ajay Wahiwal (A1), who had moved the application for revival before RCS. It was this accused, who had filed the affidavits, taking the responsibilities of holding election, audit etc. as per law and rules. Further when his house was searched, original documents pertaining to this society were found. Hence, I am left in doubt that accused Ajay Wahiwal (A1) somehow got the documents of the society and thereafter, he enrolled new members with the previous dates and then moved an application for revival of the society. For the purpose of revival of the society, he also presented his two affidavits taking responsibilities of the resigned members as well as owning the responsibilities to hold elections etc. as per DCS Act & Rules.
(7) Minutes of meeting As per the testimony of PW21 Paramjeet Singh, accused Ajay Wahiwal (A1) had returned all the documents of the society to him and thereafter he had handed over these documents to CBI vide CC No. 18/2010 Page 80/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 productioncumreceipt memo dated 20.4.2006 (D40). Vide this memo, one proceeding register (D41) was also seized and as per the testimony of PW32 (GEQD), the hand writing at Q160 and Q161 which are the portions of the minutes of meeting dated 10.8.1991, Q165 and Q166 which are the portion of the proceedings dated 7.6.1992, Q170 and Q171 which are the portions of the proceedings dated 20.12.1992, Q176 and Q177 which are the portions of minutes of meeting dated 10.1.1993, Q181 and Q182 which are the portions of proceedings dated 25.1.1993, Q186 and Q187 which are the portions of proceedings dated 15.2.1993, Q191 and Q192 which are the portions of the proceedings dated 28.2.1993, Q196 and Q197 which are the portions of the proceedings dated 20.3.1992, Q202 and Q203 which are the portions of the proceedings dated 11.5.1993, Q207 and Q208 which are the portions of the meeting dated 22.10.2002, Q209 and Q210 which are the proceedings dated 25.11.2002 are all found to have been written in the hands of accused Ajay Wahiwal (A1). PW32 T. Joshi has given his details reasons for his opinion which I reproduced as under : "My opinion that the person who wrote the blue enclosed writings and signatures stamped and marked S460 to S469, S521, S523, S525, S527, S529, S614 to S679 and A18 also wrote CC No. 18/2010 Page 81/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 the red enclosed writings and signatures similarly stamped and marked Q26. Q128, Q129, Q134, Q135, Q140, Q141, Q143, Q144, Q160, Q161, Q165, Q166, Q170, Q171, Q176, Q177, Q181, Q182, Q186, Q187, Q191,Q192, Q196, Q197, Q202, Q203, Q207, Q208, Q209, Q210 and Q211, is based on the following considerations Both the questioned and standard writings and signatures agree in general writing habits of movement, speed, alignment, skill, relativeslant, relativesize, relativeproportion, curves;
terminal, junctions and connections etc. The questioned and standard writings and signatures also show characteristic similarities in individual writing habits some of which are :
similar manner of execution of letter 'S' with similar curvature in the body and direction of finish; manner of execution of letter 'N' with retracing nature in its initial staff at placed and direction of finish; similar manner of formation of letter 'a' with similar commencing stroke, angularity at the top and formation of crossing stroke is observed similar in the questioned and the specimen writings; similar manner of formation of letter 'M' with nature of angularity at the shoulder, relative position of one shoulder with respect to another shoulder as well as connection of letter 'M' with succeeding letter 'a' and connection of letter 'a' and succeeding letter 'n' in the word 'Managing' is observed similar with similar variations; peculiar formation of letter 'o' with relatively small size and its connection with succeeding letter 'f' with peculiar formation at top and direction of finish if letter 'f' in the word 'of' is observed similar with similar variation; connection of first letter 'e' with second letter 'e' CC No. 18/2010 Page 82/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 as well as connection letter 't' with succeeding letter 'I' in the word 'Meeting' is observed similar with similar variation; the impulse in the body of the letter 'w' with peculiar connection of letter 'w' with succeeding letter 'i' in the word 'with' is observed similar with similar variations; manner of formation of the letter 't' and its connection with succeeding letter 'o' is observed similar in the word 'to' in the questioned and specimen writings; similar manner of formation of letter 'f' and its connection with succeeding letter 'I', formation of letter 'c' and direction of finish of letter 'e' in the word 'office' is observed similar with similar variation; manner of formation of letter 'C' with hooked commencement at places and its combination with succeeding letter 'o' as well as freedom of movement in the formation of succeeding letters 'p', 't', and letter 'e' in the word 'complete' is observed similar with similar variation; manner of formation of letter 's' and its connection with succeeding letter 't' with the nature of 'tcrossing' from the foot of letter 't' in the word 'against' is observed similar with similar variations; similarities are also observed in the word 'Committee', 'Resolved', 'accounts', 'immediately', 'membership', 'have', 'in', 'JOGINDER SINGH', 'JAI' as well as figures '3', '4', '7' etc. in respect of various strokes in the letters and their connection with preceding and succeeding letters alongwith detailed curvature in the body, relative spacing, relative proportion of various connecting strokes in the questioned and specimen writings observed similar with similar variations."CC No. 18/2010 Page 83/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Ld. Defence Counsel has assailed this opinion and has denied having written all these proceedings. He has also relied upon the evidence of his defence expert and his report Ext.A1/DW1/3. I have perused this report and I am of the opinion that when the defence expert has given a wrong report on the signatures of Ajay Wahiwal, this shows that the handwriting expert is giving a biased report. The specimen signatures of accused Ajay Wahiwal and the questioned signatures of Ajay Wahiwal on the revival application and on his affidavits are not only unmistakably the same but by no stretch of logic it can be said that they have been written by different persons. In fact, the enlarged photographs of those signatures placed on record by the defence expert are an ample proof that the defence handwriting expert has blatantly given a wrong opinion on those signatures. The reason is obvious. In view of such tainted and biased opinion even when there is clear similarity on the handwriting, the entire report of the handwriting expert would have to be rejected especially in view of the detailed reasons given by PW32 who is an experienced and independent government examiner. Furthermore, it must be kept in mind that this register was in the hands of accused Ajay Wahiwal who had handed over the same to Paramjeet Singh (PW21) when Paramjeet Singh had made a complaint to EOW. In CC No. 18/2010 Page 84/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 such circumstances, burden lies upon accused Ajay Wahiwal as to in whose handwriting these proceedings have been written. This burden lies upon him especially in view of the fact that accused Ajay Wahiwal himself is shown to have been enrolled in the proceedings dt. 15.02.1993 (Q186 and Q187). Thus, accused Ajay Wahiwal who is claiming to be a member of this society since the year 1993 and is in possession of proceeding registers coupled with the fact that he had actively pursued the revival of the society, he must be presumed to have the knowledge as to who had written these minutes of meetings in the proceeding register. He does not explain as to who has written these proceedings. This is another reason to rely upon the handwriting expert's report that the same were actually written by accused Ajay Wahiwal.
(8) Resignations of original members Prosecution examined PW10 Sanjiv Mittal one of the promoter members. However, he testified that he had not signed the resignation letter Ext.PW10/G1 nor he had received a refund of his share money of Rs. 2100/.
Similarly, PW11 Rajender Singh the original promoter member had denied having resigned from the membership of the society. He also denied his signatures on the resignation letter Ext.PW11/B. CC No. 18/2010 Page 85/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 PW12 Prem Kumar Khosla is also a promoter member. He also denied having resigned from the membership of the society. He also stated that the signatures on the resignation letter dt. 10.01.1993 Ext.PW12/B do not belong to him.
Same is the cases of PW13 Damodar Bajaj, PW14 Harkirat Singh, PW20 Suresh Bajaj and PW21 Paramjeet Singh. It is pertinent to note that Paramjeet Singh was shown having resigned from the membership in the proceedings dt. 31.01.2003 written in the proceeding register D10 Ext.PW22/PA. However, his name was not deleted from the list of members given to RCS. I may mention here that this register D10 is the proceedings register which was handed over by accused Ajay Wahiwal to Paramjeet Singh and Paramjeet Singh had handed over the same to CBI.
Although, there is no evidence that the resignation letters of the promoter members were forged by accused Ajay Wahiwal. However, accused will have to explain as to why these resignations were in his possession before he delivered the same to Paramjeet Singh. This leads to the inference that either he himself had got these fake resignation letters prepared or at last he had the knowledge of those being forged resignations.
CC No. 18/2010 Page 86/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 I may point out that noting dt. 27.01.2003 (placed at page 19/N & 20/N in file D6) would show that as many as 21 new members were enrolled out of which first four members were enrolled in the year 1989 but thereafter from serial no. 5 i.e. Ajay Wahiwal to serial no. 21 Mukesh Kumar, all the members are shown to have been enrolled in the year 1993.
PW7 Balram Singh, PW8 Rajiv Kumar, PW16 Rajesh Kumar, PW17 Mukesh Kumar, PW18 Sanjay Kumar, PW19 Amit Kumar Jain, PW22 Manoj Kumar, PW23 Vimal Kumar and PW39 Ram Singh whose names find mention in the list of 21 persons in the noting have testified that they were made the members in or around the year 2003 i.e. about 1012 years before the date of recording their evidence. I may point out that one file D18 was recovered from the house of accused Ajay Wahiwal which was collectively exhibited as Ext.PW26/C. It contains the original resignation letters, copy of the bye laws and one application of Sanjay Kumar (PW18) which is an application for enrolling the members of the society. Under his signatures on this application, the date is mentioned as 23.01.2003 whereas in the aforesaid note, the name of Sanjay Kumar (at serial no.
16), his date of enrollment is shown to be of the year 1993. thus, it stands proved that these members were enrolled in or around the year CC No. 18/2010 Page 87/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 2003 and not in the year 1993. It is true that many of these witnesses have stated that they were made the members by D.S. Rana but PW 22 Manoj Kumar and PW23 Vimal Kumar have stated that accused Ajay Wahiwal had made them members. Thus, it can be safely presumed that accused Ajay Wahiwal was having the full knowledge that the new 17 members are falsely being shown to have been enrolled on the previous dates. I may point out as per the noting (page 19/N of D6) total 21 members had resigned. The intimation of resignation of first four members had been given to the RCS office and appropriate noting is available on record. However, fake resignation letters of remaining 17 members have been shown, most of whom have been examined before this court and have testified that they had never resigned from the membership of the society. Thus, I am convinced that accused Ajay Wahiwal is responsible for dishonestly representing to RCS that 17 original members had resigned in the year 1993 and new 17 members had been enrolled in the year 1993. It must not be forgotten that these resignation letters were accepted vide the minutes of meeting written in the proceeding register D41. I have already discussed above as to how these proceedings have been written in the hand of accused Ajay Wahiwal.
CC No. 18/2010 Page 88/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Now it is to be seen as to what documents accused Ajay Wahiwal (A1) filed before RCS and what the same prove?
1) His own affidavits Ex.PW32/A13 and Ex.PW32/A14 (placed at page no. 326 and 327 of D6), were sworn on 24.1.2005 by accused Ajay Wahiwal (A1). In affidavit Ex.PW32/A14, he has shown himself to be Secretary of Dream House CGHS. In affidavit Ex.PW32/A15, he has taken the responsibilities that he would hold the annual general body meeting, election, annual audit, audit compliance etc. as per the provisions of Delhi Cooperative Societies Act 1972 and Delhi Cooperative Societies Rules 1972. This proves that while moving application for revival, it was A1, who was in control of this documents of society and also was ready to do anything required to control the entire society. Hence, he is responsible for filing all the fake and forged documents before RCS.
ATTEMPT & OFFENCE Sh. M. K. Gupta, Adv. for accused Ajay Wahiwal has referred to a few authorities and submits that the act of Ajay Wahiwal does not fall within the definition of attempt u/s 511 CrPC. It is argued that offence of attempt to cheat would be constituted only if DDA had offered the possession of the plot and in pursuance to it, Ajay Wahiwal had deposited the price of such plot with DDA, but, due to CC No. 18/2010 Page 89/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 some reason the possession of land were not delivered to him. I disagree with his submissions. He attempted to cheat the RCS office when he filed an application for revival with fake resignation letters of 17 members. However, of course, this cheating would fall short of Section 420 IPC because there was no delivery of the property. By submitting forged resignation letters of 17 members and by filing false minutes of meeting of society, Ajay Wahiwal dishonestly induced the RCS officials to revive the society. Hence, his offence is reduced to Section 417 IPC. Therefore, instead of convicting the accused Ajay Wahiwal u/s 420 r/w 511 IPC, I convict him u/s 417 IPC.
Accused Ajay Wahiwal has prepared false proceedings on back dates with a view to cheat RCS office, as already discussed. Therefore, I convict him u/s 468 IPC.
Further, accused Ajay Wahiwal had used these fake proceedings and forged resignation letters of 17 promoter members before RCS as genuine, therefore, I convict him u/s 471 IPC.
I would discuss in later part of the judgement as to how he cannot be convicted for the offence of conspiracy with RCS officials. RCS OFFICIALS Sh. Amrit Pal Singh, Ld. Sr. Public Prosecutor has drawn my attention to the following points in support of his case:
CC No. 18/2010 Page 90/111CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014
1. The fact of resignation letter of four members namely Anil Kumar, Surjit Singh, R.K. Gupta and Ravi Kumar has been noted in the notings in D6. However, there is no intimation to RCS office of the resignations of the remaining promoter members. Further, there was no intimation to RCS office that new 17 members had been enrolled in the year 1993. Therefore, when this society has come for revival after 10 years of its winding up, the RCS officials should have been alert and should have asked the question as to why the intimation of these enrollments and resignations was not sent to the RCS office in the year 1993.
2. Ld. Sr. Public Prosecutor has drawn my attention to the fact that the show cause notice Ext.PW21/A12 (placed at pages 122/C & 121/C of D6) was sent to the society on 11.06.1993 and the society was wound up vide order 19.08.1993. The noting dt. 27.01.2003 written by Markandey Mishra shows that the resignations of 17 members were accepted from 10.01.1993 to 25.04.1993 and new members including Ajay Wahiwal were enrolled from 20.02.1993 to 15.05.1993. It is argued by Ld. Sr. Public Prosecutor that it means that around the time of sending the show cause notice and before the winding up order, the society was active in enrolling the new members. Still, it is surprising that no effort is made by the society to CC No. 18/2010 Page 91/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 stop the winding up of the society and intimating the society of resigned & newly enrolled members. This circumstance also proves that the RCS officials knew that fraudulent resignations and enrollments were being presented to RCS office.
3. Ld. Sr. Public Prosecutor has drawn my attention to the copy of the winding up order available in D17 which was recovered by CBI from the house of accused Ajay Wahiwal vide search memo Ext.PW26/A (page 17 of D16). Ld. Sr. Public Prosecutor has drawn my attention to the diary/dispatch number written below the order as 1041110415. My attention has been drawn by Ld. Sr. Public Prosecutor to the original winding up order placed at page no. 128/C of D6. It is submitted that this is the exact copy of this original order which shows that this photocopy had been taken from the records of RCS office. Ld. Sr. Public Prosecutor has drawn my attention to the black irregular lines seen on the original order and the photocopy of the order which also proves that the copy available in D17 is the exact copy of the original order available in the RCS file. Hence, it is submitted that it is clear that accused Ajay Wahiwal was in conspiracy with the RCS officials and was able to take out the copy of the original order from the RCS file. Ld. Sr. PP has submitted that the original order would show that the copy of it was sent to the CC No. 18/2010 Page 92/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 President/Secretary of the society. My attention has been drawn to page no. 11 of D7 which was recovered from Paramjeet Singh. It contains the copy of the winding up order received by the society and it only bears the no. 10411 with a tick mark on the President/Secretary of the present society. Hence, Ld. Sr. PP argues that in this way it stands proved that accused Ajay Wahiwal was in conspiracy with the RCS officials and he had taken the copy of winding up order directly from the office of RCS.
4. Ld. Sr. Public Prosecutor has drawn my attention to the testimony of PW21 Paramjeet Singh who has testified that he had made a complaint that when the society was revived, he got the notice from the RCS office for conducting the elections of the society. This is how he came to know about its fraudulent revival of the society.
Therefore, he wrote a letter dt. 21.03.2003 addressed to the Registrar which is Ext.PW1/3 in which he informed that society has been revived fraudulently with the connivance of the RCS office. Ld. Sr. Public Prosecutor has drawn my attention to the letter placed at page 332 of D6 was received by Narayan Diwakar on 21.03.2003 and marked it to JR who signed it to AR and thereafter the letter reached to the dealing clerk Markandey Mishra. In this letter it has been specifically mentioned that this society has been revived fraudulently CC No. 18/2010 Page 93/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 in collusion with the RCS officials and have changed its management body and have applied for allotment of land to DDA. PW21 has also testified that he had personally met Narayan Diwakar and Markandey Mishra. However, they did not take any action on this complaint. Hence, it is argued that all these circumstances clearly show that the RCS officials were in league with Ajay Wahiwal in executing this conspiracy and the offences.
Sh. Abhishek Prasad, adv. (Amicus Curie) for accused Narayan Diwakar (A2) and Smt. Shakuntla Joshi (A4) argues that there is no direct evidence of the public servants hobnobbing with ajay Wahiwal (A1).
It is argued by Ld. Defence Counsel that the facts and circumstances in which the act of public servants is to be seen, are altogether different from the other cases of society scam decided by this court. Ld. Defence Counsel argues that unlike the other cases decided by this court, neither the file has been taken up by the public servants of another zone, nor it is a case where the address of the society has been changed nor the name of the society has been changed so that the process of revival does not come to the notice of the original managing committee nor it is a case in which the resignation of all the members were forged and the list of member CC No. 18/2010 Page 94/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 was totally changed. Therefore, it is argued that in this case at the most the public servants should be presumed to have acted in highly negligent manner and no inference of their being dishonest or their having abused the official position should be drawn.
Sh. Abhishek Prasad, adv. (Amicus Curie) for accused smt. Shakuntla Joshi (A4) has drawn my attention to the defence witness Devender Kumar (A4/DW1), who brought the service record of accused Smt. Shakuntla Joshi (A4). It is argued that through out her career, she worked as stenographer and before she was promoted as Assistant Registrar Cooperative Societies in Danics Cadre on 4.9.2000, she had made a request by a letter dated 10.2.2000 stating that she may be promoted to the post of Principle Private Secretary. Thus it is argued that Smt. Shakuntla Joshi (A4) did not have much experience or knowledge of adminisration work when she was posted as AR in the office of RCS. My attention has been drawn by Ld. Defence Counsel to the testimony of Dilip Bhattacharya (A4/DW2) in which he testified that upto the year 2002, the office of North Zone, where Smt. Shakuntla Joshi (A4) was posted, was situated in Old Secretariat Building and thereafter in December 2002 North Zone of RCS was shifted to Parliament Street where the main office of RCS was situated. My attention has been drawn to the notings prepared CC No. 18/2010 Page 95/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 by the Dealing Assistant wherein she has simply put her signatures and referred the matter to the Registrar. It is argued by Sh. Abhishek Prasad, adv. that this is a case of pure non application of mind on her part and at the most, negligent and inexperienced manner in discharge of official duties.
Sh. Abhishek Prasad, adv. submits that the prosecution has not been able to prove the mens rea on part of the public servant. Therefore, it is to be seen as to whether this case falls within the mischief of Section 13(1)(d)(iii) of Prevention of Corruption Act 1988, regarding which Hon'ble High court of Delhi in Runu Ghosh Vs CBI (supra) has held that the mens rea is not an essential ingredient. However sh. Abhishek Prasad, adv has drawn my attention to para 78 and 79 of the judgement that as per this judgement itself, only those cases would be prosecutable under Section 13 (1)(d)(iii), where the acts have been done with complete and manifest disregard to the norms and manifestly injurious to public interest. It is argued by Ld. Defence Counsel that unlike the other societies, which had been wound up 20 to 30 years ago, it is a case where the society was wound up only 10 years ago. Ld. Defence Counsel argues that this is the case where out of 60 promoters members, only 17 were changed by the persons, who were holding the documents of the society and CC No. 18/2010 Page 96/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 remaining 43 had still been shown as the original members and their names had also been sent to DDA by the office of RCS. It is submitted that it would have been a different case, had most of the members been changed by the persons holding the society which could have made the RCS officials alert enough to do further probing in the matter. Ld. Defence Counsel argues that most of the members are same and address of the society remains same. All the records were produced before the Dealing Clerk and except the issue of non intimation of 17 resigned and 17 newly enrolled members to RCS office, there is nothing glaring on the record to show that there was some fraud involved.
Regarding 17 resignations and 17 new enrollments, of which no intimation was sent to the office of RCS, Ld. Defence Counsel has drawn my attention to the fact that initially the list of the members was sent to DDA vide letter dated 3.9.1987 (Ex.PW21/A6, placed at page no. 101/C of D6). Thereafter the notings would show that members of the society became disinterested, as the society did not respond to the notice of the RCS to conduct the elections. Hence, a show cause notice for winding up the society was issued. Ld. Defence Counsel submits that it is natural for the RCS officials to presume that when the society had become defunct and not taking interest in CC No. 18/2010 Page 97/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 running the society, the office bearers of the society should have become lax in interacting with the RCS office specially when they are not even responding to the notices of the RCS office. It is argued by Sh. Abhishek Prasad, adv. that it is not uncommon that societies lose interest and stop interacting with the RCS office. Hence, it is submitted that no inference should be drawn from this simple fact that the RCS office did not start inquiring as to why the intimation of 17 resignations and 17 new enrollments was not sent to the RCS office.
Sh. Abhishek Prasad, adv. has further drawn my attention to the language of the complaint written by Paramjeet Singh to the Registrar. I reproduce this complaint no. 2784 dated 21.3.2002 Ex.PW1/3 placed at page 332 of D6 as under :
The Registrar, Cooperative Group Housing Societies Ltd. Parliament Street, New Delhi110001.
Dar Sirs, Re: Dream House Cooperative Group Hosuing Society Ltd.
Regn. No. 1238.
I, the undersigned, is the Secretary of above referred society and is in possession of all important records/regis ter/documents of the above referred society. This society was gone in liquidation long back ago.CC No. 18/2010 Page 98/111
CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Now recently I come to know that this society has been revived by some persons fraudulently by taking in confidence some officials of your office. They have fraudulently changed its management body by making fake signatures. They have also applied for land to the DDA office and recently I have also received a notice of your office for conducting elections of the society.
Now, you are requested to look into the matter urgently and thoroughly take appropriate action and keep in abeyance all matter of this society till the question of ownership of society is settled.
Thanking you, Yours faithfully, for Dream House Coop. Group Hou sing Society ltd.
Place:23/A, Hariniwas Shakti Nagar, Delhi110007. (Paramjeet Singh) Dated:21.3.2003. Secretary Copy to:
1. The L.G. of Delhi
2. Sh. Madan Lal Khurana, M. P.
3. The Dy. Driector (Land) Group Housing DDA, Vikas Sadan, Delhi.
It is argued that perusal of this letter would show that Paramjeet Singh had stated that the society had been revived fraudulently by taking in confidence some RCS officials and they had fraudulently changed its management body by making fake signatures and to look into the matter urgently and thoroughly, take appropriate action and keep in abeyance all matters of the society till the question of CC No. 18/2010 Page 99/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 ownership of the society is settled. Sh. Abhishek Prasad, adv. argues that accused Narayan Diwakar (A2) did not try to suppress this letter rather he sent it to JR and through proper channel it landed in the hands of Dealing Clerk i.e. Markandey Mishra (A3). It is submitted that in view of the prayer that the matter should be kept abeyance till the question of ownership of the society is settled, there was nothing for Markandey Mishra (A3) to do in this matter. However, his bonafides can be seen from the fact that he placed this letter on the file i.e. D6. It is argued that even if it is presumed that Markandey Mishra (A3) was dishonest in not initiating the proceedings, fault could not lie upon Smt. Shakuntla Joshi (A4) and Narana Diwakar (A2).
Sh. Abhishek Prasad, adv. further argues that this complaint was made after three months from the revival. Hence from this subsequent conduct of Narayan Diwakar (A2), an inference of fraudulent intention in reviving the society should not be drawn.
Sh. R. P. Shukla, adv. for accused Markandey Mishra (A3) argues that it was Paramjeet singh (PW21), who had himself sold the documents to Ajay Wahiwal (A1) and that he himself is one of the persons, who is involved in the present fraud. Therefore, his testimony against Markandey Mishra (A3) that he had met him CC No. 18/2010 Page 100/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 pursuant to his complaint dated 21.3.2003 is highly doubtful. It is further argues as to how the original show cause notice issued by RCS for winding up the society was found from the house of Ajay Wahiwal (A1). Sh. R. P. Shukla, adv. argues that this document should have been in possession of Paramjeet Singh and it could not have been found with Ajay Wahiwal (A1) unless Paramjeet Singh had handed it over to Ajay Wahiwal (A1). It is argued that Paramjeet Singh had sold the documents of the society to Ajay Wahiwal (A1) and it was Paramjeet Singh himself, who is responsible for the forged resignation letters of 17 promoter members. It is argued that instead of making Paramjeet Singh as accused, CBI has examined him as PW21. I have perused the testimony of PW21 Paramjeet Singh. In cross examination, he testified that all the documents of the society remained in his possession. In cross examination by Sh. R. P. Shukla, adv., he tried to explain that it is possible that RCS officials, who used to come to him might have taken those documents because the members had lost the interest in the society. However, he strongly denied that he handed over these documents to D. S. Rana. In his examination in chief, PW21 has testified that when he lodged a complaint with RCS and thereafter to Joint Commissioner of Delhi against Ajay Wahiwal (A1), he (i.e. Ajay Wahiwal A1) approached CC No. 18/2010 Page 101/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 him and told that he (i.e. Paramjeet Singh PW21) had sold the society to D. S. Rana. PW21 testified that he told him (i.e. Ajay Wahiwal A1) to bring D. S. Rana but Ajay Wahiwal (A1) never brought D. S. Rana before him. Thus, it is clear that Paramjeet Singh had not sold the society to D. S. Rana or Ajay Wahiwal (A1) and I find substance in his testimony that when the election notice was received by him, he came to know that the society has been revived fraudulently.
Ld. Sr. Public Prosecutor argues that PW21 Paramjeet Singh has testified that when no action was taken in pursuant to his complaint dated 21.3.2003, he personally met Markandey Mishra (A3) and Narayan Diwakar (A2) but they had not done anything. Rather Narayan Diwakar (A2) told him that when his name was in the list of members he should not have any objection in this regard and that he could add the names of other members in the said list.
Ld. Sr. Public Prosecutor argues that these facts prove that the dishonest intention of Narayan Diwakar (A2), who instead of making an inquiry and taking action against the frauds, tried to hush up the matter.
Before discussing the circumstances in support of the respective stands of Ld. Defence Counsels and Ld. Sr. PP, I would like to discuss if there is any evidence on record to prove that accused Ajay Wahiwal CC No. 18/2010 Page 102/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 was colluding and was in conspiracy with the RCS officials namely Narayan Diwakar (A2), Markandey Mishra (A3) and Shakuntala Joshi (A4). Admittedly, there is no direct evidence to prove this fact. However, Ld. Sr. PP has referred to the copy of a winding up order which was seized from the house of accused Ajay Wahiwal. I have already discussed that this is the exact copy of the original winding up order which is placed in the official records maintained in the RCS (D
6). Therefore, I am convinced that this copy was taken with the help of some RCS official. However, the question is as to whether accused Ajay Wahiwal himself had taken this copy from the RCS officials or not. There is no evidence that accused Ajay Wahiwal himself had taken the copy from the RCS office. There is also no evidence as to which RCS official out of the accused persons present in the court had supplied this copy of winding up order to accused Ajay Wahiwal. Possibility of this copy having been supplied to D.S. Rana by some other RCS official can also not be ruled out. It is pertinent to note that profuse evidence is coming on record to show that prior to Ajay Wahiwal, D.S. Rana (since deceased) was in control of these documents and had enrolled members in the year 2003 including accused Ajay Wahiwal. It appears that later on the documents came in possession of accused Ajay Wahiwal who proceeded in the direction CC No. 18/2010 Page 103/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 of revival of the society. Therefore, possibility of this photocopy having been taken from the RCS office by D.S. Rana is highly probable. Hence, on this account, I would like to give benefit of doubt to all the accused persons as it does not stand proved that it were the accused persons facing trial who had delivered this copy to Ajay Wahiwal or to D.S. Rana.
The second issue from which inference of conspiracy is being drawn is non action of Narayan Diwakar and Markandey Mishra on the complaint of Paramjeet Singh. Ld. Defence Counsel has tried to answer this aspect by pointing out that although Paramjeet Singh had requested to look into the matter urgently and to take appropriate action, but, he also requested to keep in abeyance all the matters of the society till the question of ownership of society is settled. Ld. Defence Counsel has also submitted that Narayan Diwakar did not hush up the matter and instead of directly sending it to dealing clerk, he sent it to Jt. Registrar, who marked it to AR and finally the letter landed in the hands of Markandey Mishra. It is further argued that Markandey Mishra was probably swayed by the prayer to keep the matter in abeyance and therefore he simply placed the letter in the file and did not proceed further. Ld. Sr. Public Prosecutor points out that instead of taking any action, Narayan Diwakar tried to pacify CC No. 18/2010 Page 104/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 Paramjeet Singh telling him that since his name is in the list of members, why should he have any objection and that he could enroll a few more members.
I am of the opinion that the conduct of Narayan Diwakar and Markandey Mishra raises grave suspicion but at the same time the explanation given by Narayan Diwakar that he referred it to the Jt. Registrar and did not try to suppress the matter also appears to be plausible. I may mention that this complaint was not placed before Shakuntala Joshi, rather, some other Assistant Registrar deal with this complaint and marked it to Markandey Mishrathe dealing assistant. Again I would say that although the conduct of not initiating any note or action on this complaint by Markandey Mishra is highly suspicious, but, at the same time, this court cannot wish away the explanation of dealing assistant that he was rather impressed by the prayer of keeping the matter in abeyance.
Hence, drawing the inference of dishonest intention and conspiracy from three months subsequent conduct of Narayan Diwakar and Markandey Mishra would not be a safer proposition.
Now, I would like to read the notings written by Markandey Mishra, signed by Shakuntala Joshi and approved by Narayan Diwakar as well as the revival order passed by Narayan Diwakar. The CC No. 18/2010 Page 105/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 notings and the revival order have already been reproduced in the earlier part of the judgment. Perusal of the same would show that the only mistake by Markandey Mishra was that he did not raise an objection as to why the society did not intimate resignations of 17 promoter members and enrollment of 17 new members. Apart from this, there is no other glaring fact (except that the society was coming after ten years of its winding up) which could have alerted Markandey Mishra. It is not a case where official records were missing and a society was coming after an extremely long time for revival, as has happened in many other cases of society scam. In most of the cases where builders have taken up a defunct society for revival, they have resorted to two techniques, onechanging of the address of the society and, secondchange of the name of the society. This is done with a view that any correspondence of the RCS office does not reach the original office/office bearers of the society. In the present case, neither the address has been changed nor the name was changed before revival of the society. That is the reason that the copy of the revival order was sent to the Dream House Society at its original address namely 23/1, Hari Niwas, Shakti Nagar, Delhi, which is the residence of Paramjeet Singh (PW21). This is clear from the revival order below which it is specifically written as to whom the copies of CC No. 18/2010 Page 106/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 the order were to be supplied. Paramjeet Singh (PW21) also admits that he came to know about the revival of the society when he got a notice for conducting the election of the society. Had the RCS officials been hobnobbing with Ajay Wahiwal, the election notice would not have gone to the address of Paramjeet Singh, which is the original address of the society. Moreover, neither the address of the society has been changed nor the name of the society has been changed, therefore, there was no reason for the Assistant Registrar or the Registrar to propose or order for any inspection of the society. More so when, out of 60 members, only 17 have been shown resigned and 17 new members enrolled. I may point out that resignations and enrollment of the members in a society is a continuous process. Had most of the members resigned from the society or a large number of new members been admitted in the society, naturally it could have been said that it required some kind of physical verification of resignations or inspection.
Thus, in view of the above facts and circumstances, it is clear that a society was coming after ten years, of which only a few members had resigned and a few enrolled. Apart from it, there are no overwhelming and glaring facts to show that Markandey Mishra, Shakuntala Joshi or Narayan Diwakar had abused their official CC No. 18/2010 Page 107/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 position or were in conspiracy with Ajay Wahiwal or D.S. Rana (since expired). I also agree with the submissions of Sh. Abhishek Prasad, Ld. Amicus Curiae that facts and circumstances of the case are not so stark and glaring that this case is brought under the mischief of Section 13(1)(d)(III) of Prevention of Corruption Act, where mensrea is not an ingredient.
I would like to mention that when there is no direct evidence to show conspiracy between the accused persons and criminal misconduct with a view to render pecuniary advantage to some one, profuse circumstantial evidence should come on record so that court can form a definite opinion about the complicity of the accused persons in the crime. Here, the circumstances, of course, bring all the accused persons within the shadow of grave suspicion, so far as the question of conspiracy is concerned. But at the same time, these are not potent enough to pin them down, especially in view of the explanation given. Therefore, some circumstances do exist against the RCS officials, but the same are not overwhelmingly available in order to lead to an unmistakable inference of their involvement in the conspiracy and acting with a view to obtain pecuniary advantage to Ajay Wahiwal (A1). Hence, all the accused persons are being acquitted under Section 120B IPC. I also give benefit of doubt to RCS CC No. 18/2010 Page 108/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 officials and acquit them under Section 13(1)(d) of Prevention of Corruption Act, 1988.
To sum up In view of above discussion, I give benefit of doubt to accused Narayan Diwakar (A2), Markandey Mishra (A3) and Shakuntala Joshi (A4) and I acquit all of them.
Accused Ajay Wahiwal stands convicted u/s 417/468/471 IPC. Announced in the open court on 22.03.2014.
(Vinod Kumar) Special JudgeII, CBI P. C. Act, Rohini, Delhi CC No. 18/2010 Page 109/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 IN THE COURT OF SPECIAL JUDGEII (PREVENTION OF CORRUPTION ACT 1988) CBI, ROHINI, DELHI CC No. 18/2010 (Dream House CGHS) CBI Vs Ajay Wahiwal S/o Sh. Lalchand R/o C407/L, Gali No.17B, Bhajanpura, Delhi53.
O R D E R O N S E N T E N C E 24.03.2014 Sh. Amrit Pal Singh, Ld. Sr. PP for CBI prays for full dose of sentencing to the convict.
On the other hand, Sh. M.K. Gupta, Adv. for convict Ajay Wahiwal argues that the convict had been a loser throughout. It is submitted that he had purchased the documents from D.S. Rana and that ultimately he had to return the same to Paramjeet Singh, the actual office bearer of the society. It is further argued by Ld. Defence Counsel for convict that when the offence was committed, the convict was about 31 years of age and during the trial he had studied law and is now enrolled as an Advocate. Ld. Defence Counsel submits that the convict does not have much income because his whole time is spent defending this trial. He has two minor children to support and practically he and his family are dependent upon the pension of his father. Ld. Defence Counsel further submits that this is only one case against him and the convict is not involved in any other criminal case. Ld. Defence Counsel prays for the CC No. 18/2010 Page 110/111 CBI Vs. Ajay Wahiwal etc. (Dream House CGHS) Judgment dt. 22.3.2014 benefit of the probation.
I have considered all the facts and circumstances. The manner in which the forged resignation letters of 17 promoter members have been used by the convict in the present case, I am not inclined to grant the benefit of probation to him. However, this being the only case against him and that there is no evidence that he was a builder, a lenient view in sentencing him is required.
Considering all the facts and circumstances, I sentence the convict to rigorous imprisonment for six months and fine in the sum of Rs. 5000/ for the offence u/s 417 IPC.
I further sentence the convict to rigorous imprisonment for six months and fine in the sum of Rs. 5000/ for the offence u/s 468 IPC.
I further sentence the convict to rigorous imprisonment for six months and fine in the sum of Rs. 5000/ for the offence u/s 471 IPC.
All the sentences shall run concurrently.
Bail bonds and surety bonds are discharged.
File be consigned to record room.
Announced in the open court on 24.03.2014 (Vinod Kumar) Spl. JudgeII, CBI Rohini/24.03.2014 CC No. 18/2010 Page 111/111