Delhi District Court
Cbi vs Rajeev Bansal on 17 October, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 40/15
ID No.02406R0104072014
CBI
. . . . Revisionist
Through: Shri Ratandeep Singh,
Addl. Public Prosecutor.
Versus
1. RAJEEV BANSAL
S/o Sh. Kapoor Chand Bansal
R/o F26/2, Sector7, Rohini,
Delhi and permanent R/o 73,
Surya Nagar, Agra, U.P.
Through : Sh. S. Balaji, Advocate
2. NEERAJ GULATI
S/o Sh. S.C. Gulati
R/o C9/9595, Vasant Kunj,
New Delhi and permanent
R/o Vill. & Post Pandori
Bansan, Tehsil Dina Nagar,
Distt. Gurdas Pur, Punjab
Through : Sh. Puneet Mittal, Advocate
CR No. 40/15 1 of 16
3. ARUN SHIVANI
S/o Sh. Saindas Partabrai Shivani
R/o B5 & 6, 4032,
Vasant Kunj, New Delhi
Through : Sh. Ghan Shyam Sharma,
Advocate
4. SANJEEV MALHOTRA
S/o Sh. K.C. Malhotra
R/o 197, 2nd Floor, Tagore Garden,
New Delhi (since he had expired
on 17.04.2011 hence, proceedings
against him stood abated vide
order dated 02.08.2011)
Through : None
5. SANJEEV VATS
S/o Sh. Harish Chand
R/o RZT203, Uttam Nagar,
Delhi 110059
Through : Sh. Puneet Mittal, Advocate
__________________________________________________________
Date of Institution : 02.05.2014
Date of receipt of file in this court
by way of transfer on : 25.02.2015
Date when arguments were heard : 26.09.2015
Date of Judgment : 17.10.2015
JUDGMENT :
1. The present revision petition filed by revisionist/CBI under CR No. 40/15 2 of 16 section 397/401 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") seeks to challenge the validity, legality and propriety of order dated 10.12.2013 passed by learned Chief Metropolitan Magistrate, (in short "CMM"), SouthEast District, Saket Courts, New Delhi in RC No.DAI2006A0048 titled as CBI Vs. Rajeev Bansal & Ors.
2. Pursuant to directions passed by Hon'ble High Court of Delhi in Civil Writ Petition No.10066/2004, FIR in the case was registered on the basis of complaint made by complainant Ms. Mridula Shukla, Inspector CBI, ACB, New Delhi against Shri Neeraj Gulati, office bearer of the society, other unknown office bearers of APNI CGHS Society and RCS officials under section 120B read with section 420/468/471 of The Indian Penal Code (in short "IPC") and section 13 (2) read with 13 (1) (d) of The P.C. Act, 1988.
3. Complainant alleged in the complaint that the Managing Committee Proceedings Register and other records pertaining to resignation and enrollment of members of APNI CGHS Society Limited, 659, Double Storey, New Rajinder Nagar, Delhi were dishonestly falsified/caused to be falsified by Shri Neeraj Galati and other office bearers of the society in pursuance of their criminal conspiracy amongst themselves and others during the year CR No. 40/15 3 of 16 19902005 with the object of inducting fresh members in violation of the provisions of Delhi Cooperative Societies Act and Rules for their ulterior motives. Shri Neeraj Gutali got elected as the Joint Secretary in the election in which he himself was acting as the Election Officer and thereby dishonestly violated the Delhi Co operative Societies Act and Rules. In pursuance of the aforesaid criminal conspiracy, Shri Neeraj Gulati attended the office of RCS and presented the records of the society, ever for the first time despite issuance of notices for winding up of the society by the RCS for recommending the case of the society to Delhi Development Authority (DDA) for allotment of land. The RCS authorities in pursuance of criminal conspiracy finalized the list of members of the society without verification. Shri Neeraj Gulati pursued the matter of allotment of land to the society with DDA and the same was allotted.
4. After registration of the FIR in the case, matter was investigated as per law. Respondent Rajeev Bansal, Neeraj Gulati, Arun Shivani, Sanjeev Malhotra and Sanjeev Vats were found involved in the commission of offence in the case and therefore, on conclusion of investigation, they were charge sheeted to face trial.
5. Learned CMM, after hearing arguments of both the parties on the aspect of framing of charge and on perusal of material on CR No. 40/15 4 of 16 record, was pleased to discharge all the respondents vide order dated 10.12.2013.
6. Feeling aggrieved by the impugned order dt. 10.12.2013 passed by learned CMM, the revisionist/CBI has preferred the present petition.
7. On notice, respondents appeared with their counsel to contest the petition of CBI. Written submission was filed on behalf of respondent no.1. Respondents Neeraj Gulati and Sanjeev Vats filed written reply to the revision petition.
8. I have heard the submissions advanced by Shri Ratandeep Singh, learned Additional Public Prosecutor for CBI, Shri S. Balaji, learned counsel for respondent no.1, Shri Puneet Mittal, learned Counsel for respondent no.2 & 5 and carefully perused the record of the case.
9. It was submitted by learned Additional PP for CBI that the impugned order dated 10.12.2013 passed by learned CMM is improper, erroneous, bad in law and not based on true appreciation of material on record. He further submitted that the impugned order passed by learned CMM reflects lack of application of judicial mind wherein entire factual position of the case has been kept out of consideration zone. He further argued that learned trial court by discarding the GEQD opinion without any valid and CR No. 40/15 5 of 16 cogent reasoning has acted contrary to law and has not considered the factual scenario of the case in true perspective rendering the order unsustainable in law. He further submitted that the trial court while directing the discharge of the accused persons acted in hasteful manner by ignoring the materials which clearly demonstrate their active participation in revival of the defunct society APNI CGHS Society on the basis of false/forged records in this case. He further argued that the material brought on record by CBI clearly suggests prima facie involvement of all the respondents in the case and there was no occasion to throw away the prosecution version at the stage of consideration on charge. He further argued that the observation of Hon'ble High Court passed in W.P. (C.) No.1877/2011 dated 26.05.2013 cannot be the sole ground to set the respondents in the case at liberty in the absence of any other just and proper reasoning. He further submitted that the impugned order passed by learned CMM is totally unjustified and unreasonable and the same needs to be set aside by this court.
10. Per contra, it was submitted by learned counsel for respondents that there is no infirmity or illegality in the impugned order passed by learned CMM and he has passed a well reasoned order on the basis of material available on record after appreciating the contentions of both the parties and the same does not call for CR No. 40/15 6 of 16 any interference by this court. They further submitted that prosecution did not take note of the order passed by Hon'ble High Court of Delhi dated 26.05.2010 in W.P. (C.) No.1877/2010 in the matter of APNI CGHS Vs. RCS & Anr. and learned trial court after relying upon the observations passed in the said case has rightly discharged the respondents. It was further argued that learned CMM has rightly discarded the opinion of GEQD which was obtained on the basis of specimen handwriting of respondent which was illegally taken by the IO of the case. It was further argued that no criminality can be attributed towards any of the respondents, no loss has been caused to any public or private person and therefore, no offence is made out against any of the respondents and learned CMM after considering the entire material on record has rightly discharged the respondents from the offences in respect of which charge sheet was filed against them. In support of their submissions, learned Counsel for respondents relied upon the judgments mentioned in the written submissions.
11. I have considered the rival submissions of both the parties and perused the record of the case.
12. Trial court record shows that the investigating officer on conclusion of investigation filed charge sheet against respondents Rajeev Bansal, Neeraj Gulati, Arun Shivani, Sanjeev Malhotra and CR No. 40/15 7 of 16 Sanjeev Vats, office bearers of APNI CGHS Society for having committed the offence punishable under Section 120B IPC read with section 420/467/468/471 IPC. Respondent Rajeev Bansal, Neeraj Gulati, Arun Shivani, Sanjeev Malhotra and Sanjeev Vats were also charge sheeted to face trial for substantive offence punishable u/s 420/471 IPC. Respondent Rajeev Bansal was further charge sheeted to face trial for having committed the substantive offence punishable u/s 467/468 IPC.
13. Chapter XIX of The Code of Criminal Procedure deals with the trial of warrant cases by Magistrates. The relevant provisions contained in Section 239 & 240 Cr.P.C. are extracted herein below for ready reference and for deciding the matter in controversy in this case: "239. When accused shall be discharged - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
CR No. 40/15 8 of 16
240. Framing of charge - (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried".
14. A bare look at the aforesaid provisions of law shows that at the time of consideration on the point of charge, the Magistrate is required to look into the police report and the documents send alongwith it. No other material is to be considered at this stage. Accused is given opportunity of being heard at the point of charge. The documents submitted by accused if any, is not to be considered at this stage.
15. It was held in Raj Kumar Sharma Vs State of Delhi, 2010 (I) C. C. Cases (HC) 337 that the Court is not required to see the probative value of different material, which had been filed CR No. 40/15 9 of 16 alongwith the charge sheet at the time of framing of charge. Court at the time of framing of charge is not expected to do meticulous dissection or evaluation of evidence produced by prosecution.
16. In State of Orissa Vs Debendra Nath Padhi, JT 2004 (10), SC 303, it was held that at the stage of framing of charge, roving and fishing enquiry is impermissible. It is well settled that at the stage of framing of charge, the defence of the accused cannot be put forth. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and the documents submitted there with and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police.
17. The case of prosecution is based on documentary as well as oral evidence. As per allegations made in the charge sheet, seventeen persons have been shown as members of the society, but they have denied having any link with the society. As per the opinion of GEQD, the entries in the Proceedings Register of the Society regarding the enrollment of these seventeen persons have been done by respondent no.1 Rajeev Bansal. Five persons have CR No. 40/15 10 of 16 been shown as resigned from the society, but they have denied giving any resignation. As per the opinion of GEQD, the entries in the Proceedings Register of the Society regarding the resignation of these five persons have been done by respondent no.1 Rajeev Bansal. Three affidavits of promoter members submitted at the time of registration of the Society (in 1983) are false and as per opinion of GEQD, the signatures on the affidavits are in the handwriting of respondent no.1. It is further alleged that at the time of registration of the Society, respondent No.1 got his wife enrolled as a member without disclosing that she was his wife.
18. Respondent Neeraj Gulati was the secretary of the Society during the period 1997 and pursuant to letter dated 05.12.1997, he being the secretary submitted up to date list of existing members, list of enrollment from the beginning, list of resigned members from the beginning, photocopy of existing members, photocopy of all the resignations, photocopy of the proceedings of the last elections and his affidavit as secretary of the Society regarding the members who had resigned and their resignations accepted by the society alongwith particulars of the members enrolled in lieu thereof. In the course of investigation, it was found that seventeen members denied to have any link with the society at any point of time. They stated that they have neither taken any membership of CR No. 40/15 11 of 16 the Society nor ever resigned from the membership of the Society. They denied to have even filled up the application for membership of the Society nor they sent any resignation letters under their signatures to the Society. These seventeen members are alleged to have been falsely and dishonestly shown enrolled as members of the Society by Shri Rajiv Bansal with intention to cheat RCS, Delhi and DDA during the period 1983 to 1997. Shri Neeraj Gulati falsely mentioned the names of above seventeen members in the list of members submitted to RCS for obtaining the land from DDA under his signatures with intention to cheat RCS and DDA.
19. Investigation of the case has revealed that after allotment of land by DDA, entries in the Proceedings Register regarding false resignation and acceptance in respect of seventeen members having membership No.118, 178, 150, 164, 197, 204, 184, 182, 212, 174, 172, 168, 189, 140 and 196 were dishonestly made and the same were dishonestly authenticated by Shri Neeraj Gulati. It was further revealed that respondent Arun Shivani, treasurer of the Society made endorsement regarding the acceptance of resignations under his signatures on the forged resignations letters of Ms. Seema Swami, Lalit Kumar, Rajesh Ahuja, B.K. Gupta and Rakesh Gupta. The endorsement regarding acceptance of resignation on the forged resignation letter of Shri Bharat Didwania was made by Shri CR No. 40/15 12 of 16 Rajeev Bansal under his signatures.
20. As per allegations made in the charge sheet, Shri Neeraj Gulati vide his letter dated 05.12.1997 submitted the records called for by the RCS and his affidavit to the RCS. He submitted false list of existing members to RCS including seventeen bogus members dishonestly with intent to cheat RCS as well as DDA for obtaining allotment of land from DDA. The list was also signed by Shri Sanjeev Malhotra, President of the Society and Shri Sanjeev Vats, the then treasurer of the Society. All the three office bearers of the Society dishonestly signed on the list of existing members/freeze list despite the fact that the seventeen members were fake members of the Society and their applications and affidavits were also false.
21. Statement of witnesses have been recorded u/s 161 Cr.P.C. who have supported the aforesaid allegations against the respondents. The GEQD has also given positive opinion about the questioned signatures of respondent Rajeev Bansal, Neeraj Gualti and Arun Shivani.
22. A bare look at the order of learned trial court shows that he has minutely examined the evidence on record including the evidentiary value of the handwriting experts. It was held by Hon'ble Delhi High Court in Raj Kumar Sharma's case (supra) that at the time of framing of charge, the court is not required to see CR No. 40/15 13 of 16 the probative value of different material filed alongwith the charge sheet produced by the prosecution. The court at the time of framing of charge is not expected to do meticulous dissection or evaluation of evidence produced by the prosecution. Learned trial court in complete ignorance of the mandate of Hon'ble High Court preferred to minutely examine the evidentiary value of the prosecution evidence which is impermissible at this stage.
23. Learned trial court also relied upon the judgment/order dated 26.05.2010 passed by Hon'ble Delhi High Court in W.P. (C) No. 1877/2010 titled as Apni Cooperative Group Housing Society Limited Vs. Registrar Cooperative Societies & Anr. I have gone through the order passed by Hon'ble High Court of Delhi and perused the entire record of the case. FIR in the case was registered on the basis of directions passed by Hon'ble High Court of Delhi on 02.08.2005 in W.P. (C.) No.10066/2004 titled as Yograj Krishan Cooperative Group Housing Society Vs. DDA & Anr. Record shows that after conclusion of investigation, CBI filed charge sheet against respondents on 20.12.07. In W.P. (C) No. 1877/2010, CBI was not a party. The order was passed by Hon'ble High Court on 26.05.2010. The factum of filing of charge sheet against the respondents/office bearers of the Society was not brought to the notice of Hon'ble High Court of Delhi. Despite CR No. 40/15 14 of 16 filing of charge sheet and pendency of the same before the trial court, the office bearers of the society preferred not to bring the same to the notice of Hon'ble High Court. There has been no challenge to the filing of charge sheet against the respondents by CBI before Hon'ble High Court of Delhi. Moreover, no direction in respect of the pendency of the present charge sheet qua respondents has been passed by Hon'ble High Court of Delhi. In the given facts and circumstances of the case, learned trial court was not justified to come to the conclusion that no criminality can be attributed to the respondents in view of observations of Hon'ble High Court of Delhi.
24. The judgment relied upon by learned trial court titled as A.P. Narang Vs. CBI, Crl. Rev. No.397/2010 is not applicable in the facts and circumstances of the case as in the said case, Shri V.K. Talwar was found to be a genuine member of the Society. He had made payment of initial membership fee of Rs.100/ and did not make any further payment to the Society either towards purchase of the land despite demand notices or subsequently during construction of the flats of the society towards construction. While in the present case, several members have been shown to be the members of the society who were in fact not the members of the society. Some members are alleged to have resigned from the CR No. 40/15 15 of 16 society. The said members denied to have resigned from the society. Some members have been found to be fake and non existent. Thus, the judgment as relied upon by learned trial court is not at all applicable in this case.
25. On careful perusal of entire material on record, this court finds that there is sufficient material on record to frame charge against the respondents for the offences in respect of which charge sheet has been filed against them. The impugned order dated 10.12.2013 passed by learned CMM palpably suffers from illegality. Therefore, the same is set aside. Matter is remanded back to the court concerned for framing of charge against respondents on the basis of material on record.
26. Parties are directed to appear before the learned trial court on 29.10.2015 at 2:00 PM.
27. A true copy of the judgment along with TCR be sent back to court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. on 17.10. 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No. 40/15 16 of 16