Delhi District Court
Cbi vs . Srichand Etc (Chanderlok Cghs) on 10 July, 2023
CBI vs. Srichand etc (Chanderlok CGHS)
IN THE COURT OF SH. ANIL ANTIL, SPECIAL JUDGE,
PC ACT, CBI-15, ROUSE AVENUE DISTRICT COURT,
NEW DELHI
IN THE MATTER OF :
CBI No. : 214/2019
CNR No. : DLCT 110008612019
RC No. : 22(A)/2006/CBI/SCUV/SCRII/N. Delhi
U/Sec.: 120B IPC r/w Section 419/420/468/471
IPC and Section 13 (2) r/w Section 13 (1)
(d) of PC Act,1988.
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. Srichand
S/o Late Sh. Hari Singh
R/o H. No. 274A, PocketC,
Mayur Vihar, PhaseII,
Delhi.......................................................................(A1)
2. Anna Wankhede
S/o Sh. Porongi
R/o H. No. 148C, Pocket A2,
Mayur Vihar, PhaseII,
Delhi.......................................................................(A2)
3. K.A. Kanekar
Sh. Akoba Kanekar
R/o H. No. 172D, PocketB,
Mayur Vihar, PhaseII,
Delhi.................................................( Expired)....(A3)
CBI Case No. 214/19 1 of 158
CBI vs. Srichand etc (Chanderlok CGHS)
4. S.P. Saxena
S/o Late Sh. Raja Bahadur Saxena
R/o 64 Adarsh Purwal CGHS Ltd.,
Princess Park, Sector6, Dwarka,
New Delhi..........................................( Expired)...(A4)
5. Ashok Johri
S/o Late Sh. Mani Lal Johri
R/o 27A, Neelkanth Apartment,
46 IP Extension,
Delhi.....................................................................(A5)
6. Rohit Kumar
S/o Sh. Anil Kumar Saxena
R/o C34/D, Madhu Vihar,
Patparganj,
New Delhi.............................................................(A6)
7. P.K. Thirwani
S/o Late Sh. Moti Ram
R/o 348D, PocketII,
Mayur Vihar, PhaseI,
Delhi......................................................................(A7)
8. Narain Diwakar
S/o Late Sh. Chatthi Lal
R/o G30, Masjid Moth,
New Delhi.............................................................(A8)
9. Satish Singh Aswal
S/o Sh. Sukhdev Singh Aswal
R/o H. No. 813, Sector12,
R.K. Puram,
New Delhi.............................................................(A9)
10. Ramesh Chander
S/o Late Sh. Agya Ram
CBI Case No. 214/19 2 of 158
CBI vs. Srichand etc (Chanderlok CGHS)
R/o CD52F, DDA Flats,
Hari Nagar,
New Delhi........................................( Expired)...(A10)
11. Kishore Aggarwal
S/o Sh. Shyam Sunder
R/o P5, Gali No. 13,
Madhu Vihar,
Delhi....................................................................(A11)
12. Rajat Verma
S/o Sh. Dharminder Swaroop Saxena
R/o A2/701, Silver Estate Apartments,
Sector50,
Noida..................................................................(A12)
13. Neeraj Mahajan
S/o Sh. Yashpal
R/o 118/4, MES Officers Enclave,
Bibiwala Chowk,
Bhatinda,
Punjab..............................(DISCHARGED)...(A13)
14. Sanjay Kapasia
S/o Sh. Shiv Raj Singh
F382 Delta, Moida PS Kasna,
Distt. Gautam Budh Nagar.............................(A14)
15. Mohit Saxena
S/o Sh. Anil Kumar Saxena
R/o Flat No. 1011, Park Royal Apartments,
Sector9, Plot No. 10A, 1st Floor,
Dwarka,
New Delhi..........................................................A15)
16. Rameshwar Dayal
S/o Sh. Ram Richpal
CBI Case No. 214/19 3 of 158
CBI vs. Srichand etc (Chanderlok CGHS)
R/o 4/12, Bhola Nath Nagar,
Delhi..................................................................(A16)
Date of Institution : 22.07.2008
Arguments Concluded : 12.05.2023
Clarifications Sought : 06.06.2023
Announced on : 10.07.2023
Final Outcome : in terms of Para No.
of this Judgment :-
(i) A-5,A-7,A-8,A-9, A-15
& A-16 are acquitted ;
(ii) A-1, A-2, A-6,A-11, A-
12 & A-14 Convicted
JUDGEMENT
1. The prosecuting agency, CBI, charge-sheeted the above mentioned accused persons to face trial for having committing the offences punishable under Section 120-B IPC r/w Section 420, 468, 471 IPC and Section 13 (2) r/w Section 13(1)(d) of PC Act, 1988 as well as substantive offences thereof.
2. The present case relates to the alleged forgeries committed in the records of a Group Housing Society namely 'M/s Chander Lok CGHS' for its revival with the object to obtain land from the DDA at concessional rates on priority basis for developing Group Housing Society.
3. That the investigation was carried out, and on completion of the Preliminary Enquiry, present case was registered vide RC No. 22(A)/2006/CBI/SCU-V/SCR-II/N.Delhi CBI Case No. 214/19 4 of 158 CBI vs. Srichand etc (Chanderlok CGHS) on 02.03.2006 in compliance of the directions of Hon'ble High Court of Delhi passed on 09.01.2006, in Civil Writ Petition no.10066/2004 and CMS No. 15487/2005, under Section 120-B r/w 419/420/468/471 IPC and Section 13(2)r/w 13(1)(d) of P.C Act, 1988 and substantive offences thereof against accused Srichand(A-1) and 15 other persons in the matter related to illegality committed into the affairs of 'Chanderlok CGHS Society' by directing the CBI to investigate the irregularities/ illegalities.
4. Investigation revealed that during 1970-1980, or thereafter, a number of group housing Societies which were registered and had become defunct due to non-fulfillment of mandatory provisions of Delhi Cooperative Societies Act, 1972 (in short referred as DCS Act, 1972 and rules framed thereunder) were wound up by Registrar Cooperative Societies (in short referred as RCS).
5. That during the later part of 1990 and early 2000, the builders in-connivance with the officials of RCS office got these Societies revived on false/forged/fabricated document to cause undue gain to themselves and others to seek land from Delhi Development Authority (DDA) on priority basis, and the Societies were thereafter recommended for allotment of land by DDA.
6. The case of the prosecution, in brief, is that accused Srichand (A1) in conspiracy with his employees, friends and officials of the RCS office as well as other private persons got prepared/forged proceedings of the General Body Meetings etc. as well as the CBI Case No. 214/19 5 of 158 CBI vs. Srichand etc (Chanderlok CGHS) resignations and enrolments of the members of the society Chander Lok CGHS Ltd, and in pursuance to the said conspiracy, the said Society was got revived, its freeze list of 75 members was got approved and a plot of land bearing No. 13, Sector19, Dwarka was allotted to the Society by DDA upon which flats were later on constructed and alloted to its members.
7. Investigation revealed that Chanderlok Cooperative Group Housing Society (hereinafter referred to as "the Society") was registered with the office of RCS on 25.01.1980 vide Registration No.508GH with 52 promoter members. The Society had its registered office at 81, Adhchini, Mehrauli Road, New Delhi.
8. That Sh. Deep Chand was its initial President, Sh. Daya Nand was its VicePresident, Sh. Chander Pal was its Secretary and Sh. Rajbir was its Treasurer. Lateron, the society was placed under liquidation vide order dated 25.11.1987 on the basis of enquiry conducted by Sh. S.K. Panchal, Sub Inspector in the office of RCS, New Delhi under Section 55 of DCS Act, 1972. All the said office bearers of the society are stated to have died by the year 1999.
9. It is alleged that accused Srichand (A1) surreptitiously obtained records of the society including Proceedings Register and Membership Register after the death of its Secretary Sh. Chander Pal. He alongwith accused Anna Wankhade (A2) and K.A Kanekar (A3, since deceased) jointly prepared bogus minutes of the meetings dated 08.05.1981 showing the resignations of 10 promoter members and enrolments of 33 new members including accused Anna Wankhede, K.A. Kanekar and several 'bogus person's including Sh. Surender Pratap.
10. Investigation revealed that the strength of the society was CBI Case No. 214/19 6 of 158 CBI vs. Srichand etc (Chanderlok CGHS) increased from 52 to 75. False proceedings of another meeting dated 15.06.1986 were prepared by accused Anna Wankhede indicating the change of office address of the Society from Adhchini to 128, Vinoba Puri, Lajpat Nagar, New Delhi. It is stated that the owner of the said premises has denied having given the said premises to the Society at any point of time.
11. Investigation revealed that in the same minutes dated 15.06.1986, accused persons amongst others some ficticious ones are shown to have been elected the office bearers of the society, showing the accused Sh.Anna Wankhede to have been elected as its President, Smt.Kamlesh as its VicePresident, Sh.Surender Pratap as its Secretary, Sh. K.A. Kanekar as its Treasurer and Smt. Chandra Prabha as its Executive Member through a bogus proceedings.
12. Investigation also revealed that Sh. Surender Pratap is a 'bogus person' and his address recorded as G5, Sector12, R.K. Puram, New Delhi is nonexisting address. It is further stated that Smt. Chandra Prabha and Smt. Kamlesh are also non existing persons.
13. Further it is alleged that accused Sh. Anna Wankhede prepared false minutes of the several bogus meetings stated to have been held between the years 1986 and 1997.
14. That in the meeting dated 22.07.2001 election of the office bearers of the society is shown to have been conducted by a bogus Election Officer Sh.S.K. Sharma wherein the above office bearers were reelected. In another false minutes dated 03.09.2001 Sh. Surender Pratap is shown to have been appointed as 'Secretary' of the Society and Sh. K.A. Kanekar as its 'Treasurer'.
15. Investigation revealed that an application dated 07.09.2001 CBI Case No. 214/19 7 of 158 CBI vs. Srichand etc (Chanderlok CGHS) was submitted on behalf of the Society under the signature of 'bogus person's namely Sh.Surender Pratap as its 'Secretary' before the Assistant Registrar in the RCS office for revival of the Society and approval of its final list of members.
16. It was also mentioned in the said letter that shifting of the office of the Society from Adhchini to Vinoba Puri was informed to RCS office vide letter dated 18.06.1986.
17. Investigation revealed that accused Sh.Satish Aswal (A9), the dealing clerk in the RCS office dishonestly and fraudulently as well as by abusing of his official position submitted a note dated 14.09.2001 recommending sympathetic consideration of the request of the Society for approval of its list of 75 members.
18. That A9 also mentioned that the Society had, vide its letter dated 18.06.1986, submitted the list of 75 members for onward transmission for allotment of land, whereas no such letter was received in the RCS office from the Society, a fact which was allegedly concealed by accused Sh. Satish Aswal.
19. Investigation further revealed that he also concealed the fact that the enquiry under Section 55 of DCS Act had been conducted earlier by Sh. S.K. Panchal and the Society was found not existing at the given address.
20. It is alleged that accused Ramesh Chander (A10, since deceased), the then Assistant Registrar (South), also justified the recommendation of accused Sh. S.S.Aswal (A9) dishonestly and fraudulently vide his note dated 14.09.2001, and accordingly the file was sent to the Court of the Registrar, RCS.
21. Investigation revealed that Sh. Surender Pratap, a 'bogus CBI Case No. 214/19 8 of 158 CBI vs. Srichand etc (Chanderlok CGHS) person', is shown to have represented the Society before the Registrar on 04.10.2001 and 05.10.2001 and is also shown to have produced the original records of the Society for verification before accused Ramesh Chander (A10) on 08.10.2001 as well as 09.10.2001.
22. Accused Sh. Rameshwar Dayal (A16) (Inspector GradeII) is stated to have signed the notes prepared on 08.10.2001 and 09.10.2001 in this regard.
23. Investigation revealed that a subsequent note dated 10.10.2001 confirming the verification of the records of the Society and recommended revival of the Society under Section 63 (3) of DCS Act was also prepared and put up by accused Sh. Ramesh Chander, AR, South (A10).
24. That the Registrar i.e. accused Narain Diwakar (A8) is stated to have passed revival order dated 02.11.2001 delibrately ignoring the forgery of the records of the society in pursuance to the conspiracy with other coaccused persons.
25. Investigation revealed that the 'bogus person' Sh.Surender Pratap is shown to have produced the original records of the Society before accused Ramesh Chander AR, South (A10) again on 05.11.2001 and 07.11.2001 for its verification.
26. That the note prepared on that day, which is signed by accused Rameshwar Dayal, also mentions that the original records were checked and verified by AR South, it bears the signature of Sh Surender Pratap on its margin. The presence of said Sh. Surender Pratap is reflected in the notes dated 05.11.2001 & 07.11.2001.
27. Investigation further revealed that accused P.K. Thirwani (A7), Senior Auditor in the office of RCS submitted a bogus audit CBI Case No. 214/19 9 of 158 CBI vs. Srichand etc (Chanderlok CGHS) report dishonestly and by abusing his official position without actually visiting the registered office of the Society at Vinoba Puri, in order to ensure that the object of the conspiracy is achieved.
28. Investigation revealed that on the basis of the aforesaid note(s) prepared by accused Aswal, which were signed and approved by accused Rameshwar Dayal as well as Ramesh Chander, the case of the Society was forwarded to the DDA for allotment of land.
29. That accordingly Plot No. 13, Sector19, Dwarka, New Delhi was allotted to the Society by DDA. And, pursuant thereto, accused Sh. Mohit Saxena (A15) collected allotment letter from DDA and the possession of the plot was received by accused Sh. Neeraj Mahajan (A13, since discharged) in the capacity of VicePresident of the Society in the year 2004.
30. Investigation further revealed that Smt. Kamlesh and Smt. Chandra Prabha shown to have been elected as Members of the Managing Committee in the election held on 24.11.2002 by accused Sh. Anna Wankhede are also 'bogus persons.
31. That Sh. Ashok Kumar and Sh. Vinod Kumar, who are shown to have been elected as President and VicePresident respectively in the same election, have denied being the member of the said Socuiety at any point of time.
32. That the promoter members Sh. Chander Pal and Sh Rajbir shown to have attended the said meeting in the year 2002 had already expired in the year 1999 itself.
33. That Sh. Vijay Bajaj and Sh. Sandeep Basil who also are shown to have attended the said meeting have denied their signatures on these minutes and also the fact that any election was held in their CBI Case No. 214/19 10 of 158 CBI vs. Srichand etc (Chanderlok CGHS) presence.
34. Investigation revealed that in the meeting dated 23.12.2002, the address of the Society is shown to have been changed from Vinoba Puri to another false address i.e. Flat No. 302, 3 rd Floor, F16, Preet Vihar, New Delhi, but the owner of this flat has denied that any Society existed there at any point of time.
35. Investigation revealed that the office of the Society was again changed on papers from Preet Vihar to Flat No. 664, Princess Park Apartment, Plot No. 33, Sector6, Dwarka, New Delhi in terms of minutes of meeting dated 12.10.2003.
It is alleged that accused Sh. S.P. Saxena had purchased the said flat in the name of his firm M/s GEE ESS Exim Pvt. Ltd and was residing there with his family.
36. That Dr. Ashok Kumar and Ms. Sangeeta, who are shown to have been elected as Executive Members in the election held on 26.12.2003, have denied that they had ever became the members of the Society at any point of time. In the same meeting, Ashok Kumar is shown to have been elected as President, accused Neeraj Mahajan as VicePresident and accused Sh. Rohit Saxena as Executive Member.
37. That another election of the executive body of the Society is stated to have been conducted on 07.11.2004 by Election officer Sh. N.K. Basil, but Sh.Basil has denied having conducted any such election and stated that his neighbour Sh. Saxena must have used his name.
38. Investigation further revealed that in another bogus meeting dated 19.01.2004 stated to be held under the Chairmanship of Sh. Kishore Aggarwal (President) and also attended by Sh. Rohit Saxena CBI Case No. 214/19 11 of 158 CBI vs. Srichand etc (Chanderlok CGHS) (Secretary) and Sh. Sanjay Kapasia (Treasurer), it is shown that 15 members including promoter members Sh. Chander Pal and Sh. Deep Chand have resigned from the membership of the Society, whereas Sh. Chander Pal had died in the year 1999 and Sh. Deep Chand had died in the year 1983.
39. Investigation further revealed that the accused S/Sh. Anna Wankhede (A2), K.A. Kanekar (A3), Rohit Saxena (A6), Kishore Aggarwal (A11), Rajat Verma (A12), Neeraj Mahajan (A13) and Sanjay Kapasia (A14), while working as office bearers of the society during different periods of time, have shown and accepted bogus resignations of various promoter members and also inducted various bogus members in the society vide false minutes of meeting dated 08.05.1981, 15.9.2001, 21.01.2003, 06.02.2003, 19.01.2004, 16.02.2004 & 02.03.2004.
40. Accused Sh. S.P. Saxena is also alleged to have falsely shown that Sh. Shashank Sharma of M/s 4th Dimension was engaged the Architect at the time of obtaining the NOC from DDA Group Housing Cell whereas the said firm was never engaged as Architect by the Society.
41. Investigation revealed that an account of the Society was opened in PNB, Patparganj Branch, Delhi by accused Sh. Kishore Aggarwal (A11) and Sh. Rajat Verma (A12) giving fake address of the Society and the accused Mohit Saxena (A15) was the introducer for the said account. Later on the names of accused Sh. Rohit Saxena (A6) and Sh. Neeraj Mahajan were added as operators of the said account.
42. Investigation further revealed that the GEQD Shimla, in his opinion, has confirmed that accused Sh. Anna Wankhede (A2) CBI Case No. 214/19 12 of 158 CBI vs. Srichand etc (Chanderlok CGHS) has forged the signatures of various members of the Society. The writings of the accused Sh. Ashok Johri (A5) have also been confirmed on the proceeding register of the Society.
43. That the writings and signatures of the accused Sh. Rohit Kumar (A6), Sh. Kishore Aggarwal (A11), Sh.Rajat Verma (A12), Sh.Neeraj Mahajan (A13, since discharged), Sh. Sanjay Kapasia (A
14) and Sh. Mohit Saxena (A15) have also been confirmed on various documents related to the Society vide which false records were manufactured.
44. That on the basis of the evidence so collected during the course of investigation, it is the case of prosecution that the above mentioned accused persons entered into a criminal conspiracy with common object to get the Society revived on forged and fabricated document to seek allotment of land at concessional rates from the DDA, and thus they all have also committed the offences punishable under Section 120-B IPC r/w Section 420/467/468/471 IPC & Section 13(2) r/w Section 13(1)
(d) of PC Act 1988.
45. Sanction for prosecution of the accused Satish Singh Aswal and P.K. Thirwani public servants was duly obtained.
46. All the accused persons were summoned and compliance of Section 207 Cr.P.C was made.
47. And after passing a detailed order dated 29.01.2019 on the point of charge by the learned predecessor of this court, the charges here under mentioned were framed against the respective accused persons :-
i) For the offences punishable u/s 120B, readwith CBI Case No. 214/19 13 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Section 419/420/468 & 471 IPC and Section 13(2) readwith Section 13(1)d of P. C. Act, 1988 against all the 16 accused persons.
ii) For the offence u/s 13(2) readwith Section 13(1)(d) of Prevention of Corruption Act, 1988 against accused S/Sh. P.K. Thirwani (A7), Narain Diwakar, (A8) Satish Singh Aswal (A
9), Ramesh Chander (A10) & Rameshwar Dayal (A16).
iii) For the offence u/s 419/420 IPC against S/Sh.
Srichand (A1), Anna Wankhade (A2), K. A. Kanekar (A3), S.P. Saxena (A4), Ashok Johri (A5), Rohit Kumar (A6), Kishore Aggarwal (A11), Rajat Verma (A12), Neeraj Mahajan (A13), Sanjay Kapasia (A14) and Mohit Saxena (A15).
iv) For the offence u/s 468 IPC against accused Anna Wankhade (A2), Ashok Johri (A5), Rohit Kumar (A6), Kishore Aggarwal (A11), Rajat Verma (A12), Neeraj Mahajan (A13), Sanjay Kapasia (A14) & Mohit Saxena (A15).
v) For the offence u/s 471 IPC against accused Anna Wankhade (A2) & K. A. Kanekar (A13).
48. Accordingly, separate charges for the aforesaid offences were framed against all the accused persons to which they all pleaded not guilty and claimed trial.
49. Accused S/Sh. K.A. Kanekar (A3), S.P.Saxena (A
4) and Ramesh Chander (A10) had expired during course of trial after framing of charge, and the proceedings against them stood abated accordingly.
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PROSECUTION EVIDENCE :
50. Prosecution in support of its case has examined 107 witnesses and relevant testimony is noted hereunder.
51. PW1 Sh. Ajay Pal Singh deposed that his father Late Sh. Chander Pal had never taken any membership of the Cooperative Society. He after seeing the Affidavit (D13, Page No. 445/C) dated 04.10.2001 Ex.PW1/1 and Resignation cum Receipt dated 03.01.2004 (D6, Page No. 50) appearing at point Q1091 & Q1092 Ex PW1/2 denied the signatures on these documents to be of his deceased father.
He specifically deposed that his father expired in the year 1999 meaning thereby that these documents were prepared after the demise of his father.
52. PW2 Sh. Praveen Jain deposed that he had never taken the membership of Chanderlok CGHS, hence, no payment qua membership was paid to the said Society.
After seeing the list of members of the Society annexed with its Bye Laws (D13 Page no. 71/C) where his name is shown at serial no. 28, he denied his signatures appearing at point A in front of his name.
Witness also denied his signatures on the Affidavit dated 04.10.2001 (D13, page no. 423) Ex PW2/1 and ResignationcumReceipt dated 03.01.2004 (D6, Page no. 49) at point Q1089 & Q1090 on the same Ex PW2/2.
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He stated that his date of birth is 31.05.1954 and no
correspondence from the Society was received by him.
53. PW3 Sh. Arinder Singh Wadhwa deposed that he had never taken the membership of Chanderlok CGHS and after seeing the Membership Application Form of the Society Ex PW3/1 ( D13 Page no. 468/C), denied his signatures appearing on it.
Witness also denied his signatures on the Affidavit dated 04.10.2001 (D13, page no. 393/C) Ex PW3/2 and Resignation cum Receipt dated 25.12.2002 ( D6, Page no. 82) at point Q1150 & Q1151 on the same Ex PW3/3.
He stated that his date of birth is 07.10.1945 and no correspondence from the Society was received by him at any point of time.
54. PW4 Sh. Krishan Singh deposed that membership of Chanderlok CGHS was taken by him ; he identified his signatures on Membership Application Form (D13, page no. 519/C) Ex PW4/1 and Affidavit ( D13, page No. 41/C) Ex PW4/2.
But witness denied his signatures at points Q1049 & Q1050 on the ResignationcumReceipt dated 14.02.2004 Ex PW4/3.
55. PW5 Sh. Satish Kumar Gera deposed that Membership of the Chanderlok CGHS was taken in the joint CBI Case No. 214/19 16 of 158 CBI vs. Srichand etc (Chanderlok CGHS) name of his wife Mrs. Madhu Gera and himself from accused Sh. Rohit Saxena, Secretary, and he identified signatures appearing at point A on the Share Certificate bearing Serial No. 1581(D45) Ex PW5/1 of Sh. Rohit Saxena.
Witness also identified his signatures and signatures of his wife on the Membership Register of Chanderlok CGHS at serial no. 211, (D8 page no. 36) Ex PW5/2 and also on Special General Body Meeting held on 31.12.2006 appearing at point A against his name at serial no. 5 (D41 page no. 3) Ex PW5/3.
56. PW6 Sh. Surender Singh Pawar deposed that Membership of the Chanderlok CGHS was taken by him ; identified his signatures at serial no. 34 in the list of members annexed with its Byelaws (D33 at page no. 8) Ex PW6/1.
But witness stated that signatures on the Affidavit at points Q1853 & Q1854 (D13 page no. 418/C) Ex PW6/2 and the signatures appearing on Resignation letter dated 06.09.2001 & Receipt dated 13.10.2001 (D6, at page 91) at point Q1168 and Q1169 Ex PW6/3 are not his genuine signatures.
57. PW7 Sh. Krishan Kumar deposed that Membership of the Chanderlok CGHS was taken by him ; witness identified his signatures at serial no. 14 in the list of members annexed with its Byelaws (D33 at page no.8) Ex PW7/1 and on the Membership Application Form dated 08.10.1979 ( D13 at page no. 517/C) Ex PW7/2.
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Witness deposed that the signatures appearing on
the Affidavit at points Q1823 & Q1824 (D13 page no. 433/C) Ex PW7/3 and Resignation letter dated 24.12.2002 & Receipt dated 28.02.2002 (D6, at page 86) at point Q1158 and Q1159 Ex PW7/4 are not his signatures.
The specimen signatures of the witness was taken by the CBI from S226 to S230 (Colly.)(D286) Ex PW7/5.
58. PW8 Sh. Harsh Goel deposed that membership of the Chanderlok CGHS was taken by him, but thereafter he did not support the case of the prosecution.
Witness failed to identify the accused and his signatures ( Rohit Saxena ) on the counterfoil of the receipt in his name.
Witness was declared hostile and was cross examined by the learned PP for CBI.
59. PW9 Sh. Ram Krishan deposed that he had never taken the membership of Chanderlok CGHS and after seeing the Affidavit dated 04.10.2001 (D13, page no. 415/C) Ex PW9/1 and ResignationcumReceipt dated 06.01.2004 (D6, Page no.42) Ex PW9/2 point Q1150 & Q1151, witness denied his signatures appearing on the same.
He stated that his specimen signatures S221 to S 225 Ex PW9/3 Colly. ( D285 ) were taken by the CBI.
Witness was cross examined by the learned defence
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counsels to show that he had taken the membership of the Chanderlok CGHS through Sh. Chander Pal, who was his friend ; also on the aspect to state ResignationcumReceipt letter Ex PW9/2 is without his father's name and other particulars.
60. PW10 Sh. Sunny Solanki deposed that membership of the Chanderlok CGHS was taken by him ; Share certificate was issued to him alongwith counterfoil of membership slip by the Society in that regard.
61. PW11 Sh. Rajiv Aggarwal deposed that membership of the Chanderlok CGHS was taken by him ; had paid membership fee of Rs. 10,710/ and at that time official work of the Society was lookedafter by accused Mr. S.P.Saxena and Mr. Rohit Saxena ; that Share Certificate was issued to him alongwith counterfoil of membership slip by the Society in that regard.
Witness identified his signatures appearing at point A against his name at Serial no. 188 on the Membership Register ( D8 at page no. 31) of Ex PW11/1.
62. PW12 Sh. Narendra Prakash deposed that membership of the Chanderlok CGHS was taken by him ; had paid membership fee of Rs. 10,710/ and at that time official work of the Society was lookedafter by accused Mr. S.P.Saxena (President), Mr. Pawan Kumar (Treasurer) and Mr. Rohit Saxena working there ; Share Certificate was issued to him alongwith counterfoil of membership slip by the Society in that regard.
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Witness identified his signatures appearing at point
B against his name at Serial no.189 on the Membership Register ( D8 at page no. 31) Ex PW11/1.
Witness was also cross examined by the learned PP for CBI on some aspects.
63. PW13 Ms. Shobi Sahni deposed that she had never taken the membership of Chanderlok CGHS, had not heard the name of Society and denied her signatures on the Membership Application Form of the Society Ex PW13/1 ( D13 Page no. 469/C), and Affidavit dated 04.10.2001 ( D13, page no. 394/C ) Ex PW13/2.
She stated that her specimen signatures S254 to S 258 Ex PW13/3 Colly. (D285) were taken by the CBI.
64. PW14 Mrs. Harpyari @ Kamlesh deposed that she had never taken the membership of Chanderlok CGHS ; did not know any person by the name of Srichand ; had not attended any meeting of the Society and denied her signatures appearing on Minutes of Proceeding Register (D10) dated 23.12.2002 ; 22.01.2003 ; 06.02.2003 and 27.02.2003 at point Q600, Q611, Q618 and Q628.
She also denied her signatures on the Membership Application Form Ex PW14/1 (D36 Page no.11) at point Q863 and Affidavit dated 04.10.2001 ( D13, page no. 381/C ) at point Q1924 and Q1925 Ex PW14/2.
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Witness stated that her specimen signatures S329/1
to S346 Ex PW14/3 Colly. ( D296 ) were taken by the CBI.
65. PW15 Sh. Rajiv Solanki deposed that he had taken membership of Chanderlok CGHS through his uncle and Flat no. 1001 was allotted to him.
66. PW16 Sh. Amit Grewal deposed that he had taken membership of Chanderlok CGHS through a known person, and he did not support the case of the prosecution.
Witness was crossexamined by the learned PP for CBI.
67. PW17 Sh. Amresh Kumar deposed that he had taken membership of Chanderlok CGHS through one Sh. Pawan Ji and Flat no. B602 was allotted to him.
68. PW18 Sh. Vineet Goel deposed that he had taken membership of Chanderlok CGHS through one colleague Mr. Ram Kishan Gupta ; paid Rs. 3435 lacs and Flat no. A401 was allotted to him.
69. PW19 Sh. Deepak Goel deposed on the similar lines as deposed by PW18 and stated that he had taken membership of Chanderlok CGHS through one colleague Mr. Ram Kishan Gupta ; paid Rs. 3435 lacs and Flat was allotted to him on the fourth floor of the said Society.
70. PW20 Sh. Madhu Sudan deposed that he had never taken the membership of Chanderlok CGHS ; denied his CBI Case No. 214/19 21 of 158 CBI vs. Srichand etc (Chanderlok CGHS) signatures at serial no. 77 at point Q578 on Ex PW20/1 and on the Membership Application Form Ex PW20/2 (D13 Page no.454/C) at point Q578 and Affidavit dated 04.10.2001 ( D13, page no. 379/C ) at point Q1928 and Q1929 Ex PW20/3.
71. PW21 Raj Pal Solanki deposed that membership of the Society was taken in the name of his son Mr. Kamal Solanki and he identified his signatures at point A (D8, page no.
28) Ex PW21/1 of the Membership register ; that a sum of Rs. 34 lacs was paid and flat was allotted to them. He stated that he knows accused Mr. Rohit Saxena.
72. PW22 Sh. Vikas Solanki deposed that membership of the Society was taken by him and he identified his signatures in the membership register of Chanderlok CGHS at point A ( D8 page no. 35) Ex PW22/1.
73. PW23 Ms. Sushma deposed that she is not aware whether her husband had taken the membership of the Chanderlok CGHS, and now her husband is bed ridden for the last about 12 years, but She identified her signatures on the Resignation Letter dated 02.01.2005 and Receipt dated 19.07.2005 at point A and A1 (D3 at page no.6) on Ex PW23/1.
74. PW24 Sh. Sanjay Kumar Goel deposed that membership of Chanderlok CGHS was taken through one Sh. Pawan Aggarwal ; approximately a sum of Rs. 40 lacs was paid and Flat no. A102 has been allotted to him.
CBI Case No. 214/19 22 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
75. PW25 Sh. Brij Bhushan deposed that membership of Chanderlok CGHS was taken ; approximately a sum of Rs. 42 lacs was paid and Flat no. 603 has been allotted to him.
76. PW26 Sh. Bishan Swaroop deposed that membership of Chanderlok CGHS was taken through one Sh. Anand Prakash ; approximately a sum of Rs. 42 lacs was paid and Flat no. B101 has been allotted to him.
77. PW27 Ms. Rashmi Solanki deposed that membership of Chanderlok CGHS was taken through her uncle Sh. Rajpal Solanki and Flat no. A6021 has been allotted to her. She also identified her signatures appearing at serial no. 202 (D 8 page no. 3540 of Membership Register.
78. PW28 Sh. Anand Prakash Gupta deposed that membership of the society was taken ; flat was allotted and he had sold the same.
Witness was crossexamined by the learned PP for CBI as he did not support its case.
79. PW29 Sh. Sanjay Aggarwal deposed that membership of Chanderlok CGHS was taken ; a sum of Rs. 35 lakhs was paid in total and flat has been allotted to him.
80. PW30 Sh. Virender Kumar Khaneja deposed that he had taken the membership ; identified his signatures at point B against his name shown at Sl.no. 199 (D8, page 354) of Membership Register.
Witness stated that flat has been allotted to him by
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the Society.
81. PW31 Sh. Arun Kumar Mittal deposed that he had taken the membership ; identified his signatures at point A against his name shown at Sl.no. 162 (D8, page no. 27) of Membership Register, and stated that flat was allotted to him by the Society ; which has been sold by him.
82. PW32 Sh.Ajay Dhar deposed that he had taken the membership of Chanderlok CGHS through one broker namely Mr. Praveen ; he identified his signatures at point A against his name shown at Sl.no. 147 (D8, page no. 24) of Membership Register and stated that Flat no. B701 allotted to him by the Society has been sold.
83. PW33 Sh.Rajesh Prabhakar deposed that he had taken the membership of Vasudhara CGHS Ltd through accused Mr. S.P.Saxena ; he was appointed as Secretary of said Society by accused Mr. S.P.Saxena, who was managing some other Societies at the same time and used to appoint the Presidents, Secretaries and other office bearers of the said Societies, and also used to prepare documents required for the same, and stated that he used to obtain his signatures on blank cheques of the said Society.
Witness also deposed that he also knows accused Mr. Mohit Saxena, nephew of accused Mr. S.P.Saxena and identify him.
84. PW34 Sh.Rajesh Drall deposed that he had taken CBI Case No. 214/19 24 of 158 CBI vs. Srichand etc (Chanderlok CGHS) the membership of Chanderlok CGHS in the year 2003 and lateron tendered his resignation from the membership of the Society. He stated that he never participated in the Election of the Society and denied his signatures appearing at point A on D13 page No. 743/C Ex PW34/1.
85. PW35 Sh. Sunil Kumar deposed that he had taken the Joint membership of Chanderlok CGHS in the year 2003 alongwith his wife ; and lateron tendered their resignation from the membership of the Society ; identified his signatures as well as the signatures of his wife at point A &B (D3 page no.9) Ex PW35/2.
He deposed that he had never participated in the Election of the Society and denied their signatures appearing on the nomination form (D13, page no. 740C) Ex PW35/1.
86. PW36 Sh.Umesh Singh deposed that he had taken the membership of Chanderlok CGHS in the year 2003. He deposed that he had never participated in the Election of the Society and denied signatures appearing on the nomination form (D13, page no. 739C) Ex.PW36/1; and lateron tendered his resignation from the membership of the Society. ; identified his signatures at point A & B (D3 page no.9) Ex PW36/2.
87. PW37 Ms. Sangeeta Anand deposed that she had never taken the membership of Chanderlok CGHS ; after seeing the Membership Register Ex PW37/1 (D8) where her name is shown at serial no. 100, denied her signatures appearing at point CBI Case No. 214/19 25 of 158 CBI vs. Srichand etc (Chanderlok CGHS) A in front of his name.
She deposed that she had not attended any meeting of the Society and denied her signatures appearing on Proceeding Register of the Society, where her name is shown at serial No. 7 at page no. 43 at point Q713 ; Page no. 51, Serial no.7 ; Page no. 56, Serial No.7 ; Page no. 68, Serial No. 7, page no.76, Serial No.2.
She also denied her signatures at point Q797 at page no. 78 ; at point Q805 at page no. 82 and at point Q813 at page no. 85 and on the Election file of the Society Ex PW37/2( D4) at point Q1293 at page no. 37.
88. PW38 Sh.Suresh Anand deposed that he is in the Real Estate business ; he knows accused Sh. S.P.Saxena as he is also in the business of Real Estate and Cooperative Group Housing Societies, his brother Mr. Anil Saxena and his nephews Sh. Mohit Saxena and Sh. Rohit Saxena, who were also working in the office of accused Sh. S.P.Saxena.
He deposed that he had advanced a friendly loan of Rs. 6 lacs by way of cheque to accused Sh. S.P.Saxena, which was lateron repaid by way of a cheque issued from bank account of M/s Chanderlok CGHS Ltd.
89. PW39 Ms. Renu Maggo deposed that she became the member of Chankerlok through Mr. Suresh Anand ; lateron she resigned from the membership ; amount was refunded to her ; she identified her signatures on Resignation letter at point A (D CBI Case No. 214/19 26 of 158 CBI vs. Srichand etc (Chanderlok CGHS) 3, page no. 21) Ex PW39/1 and Receipt ( D3 at page no. 22) Ex PW39/2.
90. PW40 Sh. Virender Saini deposed that he became the member of Chankerlok through Mr. Suresh Anand ; lateron he resigned from the membership ; amount was refunded to him ; he identified his signatures on Resignation letter at point A (D3, page no. 23) Ex PW40/1 and Receipt ( D3 at page no. 24) Ex PW40/2.
91. PW41 Sh. Prem Prakash deposed that he had taken the membership of the Chanderlok CGHS through Mr. Suresh Anand ; paid Rs. 38 lacs and flat bearing no. A403 was allotted to him.
92. PW42 Sh.Parveen Kumar deposed that he is in the business of properties ; that accused Mr. S.P.Saxena asked him to arrange members for the Society ; he recommended Mr. Goyal and Mr. Dhar for taking the membership of Chanderlok CGHS and a sum of Rs. 10,000/ was received by him as commission from them. He deposed that he did not know how accused Sh. S.P.Saxena was concerned with the said Society.
Cross examined, though not on much aspect, to state that membership was taken through Mr. Suresh Anand
93. PW43 Sh. Mahesh Kumar Goyal deposed that he had taken the membership of Chanderlok CGHS and after some time he received call informing him that Society is being discontinued ; he had not attended any meeting of the Society ;
CBI Case No. 214/19 27 of 158 CBI vs. Srichand etc (Chanderlok CGHS) he identified his signatures appearing at point A (D13 at page no. 738) of the General Body Meeting held on 07.11.2004 Ex PW43/1.
94. PW44 Sh. Sanjay Basil deposed that he had not taken the membership of Chanderlok CGHS Ltd. ; he knew accused Sh. S.P.Saxena as they both were resident of same Society namely Aashirwad CGHS, Patparganj, Delhi.
Witness after seeing the Membership Register of Chanderlok CGHS Ltd (D8) where his name is mentioned at Serial no. 88 at page no.14, Ex PW44/1 and on the Minutes of the Proceedings Register of the Society (D9) (where his name is mentioned at serial no. 24 dated 24.11.2002) ( page no. 63 ) ; Election Nomination Form, Ex PW44/2 page No. 58 (D4) ; Resignation letter dated 09.03.2003 Ex PW44/3 (D6,page no.
61) and Receipt (D66 at page no. 60), he denied the signatures to be his genuine signatures.
95. PW45 Sh. Vinod Kumar deposed that he had not taken the membership of Chanderlok CGHS Ltd. ; he knew accused Sh.S.P.Saxena as they both had worked together at HRPU, Dehradun, and after his retirement he purchased property at Patparganj, Delhi.
Witness after seeing the Membership Register of Chanderlok CGHS Ltd (D8) where his name is mentioned at Serial no. 91 at page no.15, Ex PW45/1 ; Minutes of the Proceedings Register of the Society (D9) where his name is CBI Case No. 214/19 28 of 158 CBI vs. Srichand etc (Chanderlok CGHS) mentioned at serial no. 12 dated 24.11.2002 ( page no. 63 ) ; Authority Letter dated 03.02.2003 (D11 page No. 24/C) at point Q2740 Ex PW45/2 ; and Resignation Letter dated 05.03.2003 (D6 page no. 58) Ex PW45/3 denied the signatures to have been made by him.
96. PW46 Sh. Dharambir Singh deposed that :
(i) he was working in the Audit branch of RCS and his duty was to ensure that all the documents as per the check list are annexed with the audit report, he identified the signatures of accused Mr. P.K. Thirwani, Senior Auditor in RCS office on the audit reports of Chanderlok CGHS Ex PW46/1 (D12 at page no. 7/C to 15/C) at point A.
(ii) in terms of his second deposition recorded on 01.02.2020 he stated that specimen signatures of accused Srichand from S274/1 to S328/1 already exhibited PW105/30 (D295) in his presence.
97. PW47 Sh. Sunil Pawar deposed that he is in the business of construction and M/s Chanderlok CGHS engaged him for the construction work ; the tender documents were signed by Mr. Rohit but he failed to identify accused S.P.Saxena and Mohit Saxena.
Witness was cross examined by the learned PP for CBI.
98. PW48 Ashok Kumar deposed that he had not taken the membership of Chanderlok CGHS Ltd. He knew CBI Case No. 214/19 29 of 158 CBI vs. Srichand etc (Chanderlok CGHS) accused S.P.Saxena who was working as a Property Dealer, and he met him while he was in search of a premises to run his medical clinic.
Witness after seeing his name mentioned at Serial no. 95 at page no.16 of the Membership Register of Chanderlok CGHS Ltd (D8) Ex PW48/1 denied his signatures at point Q 594 and also at point X1, X2 & X3 on the Minutes of the Proceedings Register of the Society (D9) where his name is mentioned at serial no.14 dated 24.11.2002 (page no.1,6,7,10,11, 14,15,17,18,21,22,25,30,32 to 37,39,40,42,43,45,51,56,62,63,68, 73,76,78,85).
Witness also denied his signatures at point A on page no. 15 (D4), Election Nomination Form Ex PW48/2 ; at point A on the Letter dated 13.12.2002 written on behalf of the Society to the Asstt. Register ( South) (D13 page no. 690/C) Ex PW48/3, and on another Letter dated 28.02.2003 written on behalf of the Society to the Punjab National Bank for opening of account of the Society (D49 page no.9) Ex PW48/4.
99. PW49 Sh. Shashank Sharma deposed that he is Architect by profession ; that accused Mr. Saxena provided him the description of plot of the land allotted to Chanderlok CGHS for preparation and providing the concept designs.
He proved the letter dated 06.09.2004 Ex PW49/1 written to his firm M/s 4th Dimension by the Society.
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100. PW50 Sh. Ved Prakash @ Varun Khanna deposed that he knows accused Mr. Anna Wankhede, who met him in DDA office in 1980's when he visited there for allotment of a Flat ; the premises where he was residing with his joint family is a three storeyed house, the 2nd and 3rd floor of the said house was never let out to 'Chanderlok CGHS' and no meting of any such housing Society had taken place in the said house.
101. PW51 Amit Khullar deposed that he is an Architect by profession ; his brother Sh. Pankaj Khullar, wife Ms. Anubha Khullar and Sh. Deepankar Majumdar are his partners in firm known as M/s ENAR Consultants, A45/2, Neb Valley, IGNOU Road, New Delhi.
He stated that around 20062007 he was awarded contract for architectural services for Chanderlok CGHS Ltd and initially he met accused Mr. Saxena (correctly identified him in the court) in that regard.
He stated that one Mr. Rohit or Mr.Puneet had signed the contract which was awarded to him, and Mr. Ishwar Singh Chaudhary & Mr. Pawan used to meet him at the site of the Society.
102. PW52 Ms. Madhu Saxena is wife of accused S.P.Saxena. She deposed that she has a bank account with PNB Patparganj, Delhi, she used to handover blank signed cheques to her husband Sh. S.P.Saxena, and she was not aware how much money was transferred from her account to M/s Chanderlok CBI Case No. 214/19 31 of 158 CBI vs. Srichand etc (Chanderlok CGHS) CGHS.
103. PW53 Sh. Syed Shamsher Ali Ahmad deposed that he was posted as LDC in the Office of Registrar Cooperative Societies from 10.06.1968 to 21.09.2001 ; he identified his signatures on notice dated 20.09.2001 issued to President/Secretary of Chanderlok CGHS Ltd (D34 page no. 60) Ex PW53/1, and the signatures of accused RCS Officials on official records/notings/correspondences.
104. PW54 Sh. Yogesh Rastogi deposed that he is in the business of construction under the name and style of M/s Chinar Promoters Pvt Ltd ; he knew accused Sh.. S.P.Saxena ; that he came to know from one of his employees that Society is in need of money and accordingly he helped and issued a cheque of Rs. 15 lacs to the Society, and the said amount was duly repaid to him by the Society.
105. PW55 Sh. S.C. Panchal deposed that he was posted as SubInspector in the office of RCS and in the year 1987 was appointed as an 'Enquiry Officer' to conduct inquiries in respect of Chanderlok CGHS ; that he visited at the address of the Society, where no office bearer met him ; he prepared his inspection report dated 15.05.1987 (D13 page no. 121/C) Ex PW55/1; and had issued letters dated 15.04.1987 & 05.05.1987 (D13 page no. 119/C & 120/C) Ex PW55/2 and Ex PW55/3 for conducting the inspection but no response was received from the Society.
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106. PW56 Sh. Parveen Bansal deposed that he had taken the membership of Chanderlok CGHS through one Mr. Saxena ; identified his signatures at serial no.197 (D8, page no.
33) of the Membership Register of the Society Ex PW56/1 ; a sum of Rs. 44 lacs was paid to the Society and flat no. 76 was allotted to him. Witness failed to identify accused Sh. S.P.Saxena.
107. PW57 Ms. Kavita Sharma deposed that in the year 2004 she was working as Receptionist in the office of accused Sh.. S.P.Saxena at Patparganj, Delhi where Sh. Saxena was doing the work related to the Cooperative Group Housing Societies.
She stated that Sh. Mohit Saxena, Sh. Rohit Saxena (nephews of Sh. S.P.Saxena ), Sh. Sanjay Kapasia, Sonu Gupta and Sh. A.K. Johari were working together in the same office and accused persons namely Sh Kishore Kumar Aggarwal and Sh. Neeraj Mahajan used to visit the said office.
She was not cross examined by any accused except accused A6 and A15 (Rohit & Mohit)
108. PW58 Sh. Virender Singh Verma was an official from DDA. He proved the correspondence between DDA and Chanderlok CGHS regarding allotment of land after receipt of freeze list from the office of RCS vide letter dated 12.02.2002 (D11 page no. 17/C), Ex PW58/1 ; allotment of land letter dated 31.12.2003 Ex PW58/2 ; letter dated 27.02.2004 regarding CBI Case No. 214/19 33 of 158 CBI vs. Srichand etc (Chanderlok CGHS) deposit of balance amount by the Society to DDA Ex PW58/3 ; authority letter in favour of accused Sh. Mohit Saxena (D11 page no. 90/C) Ex PW58/4 and possession letter dated 28.04.2004 Ex PW58/5.
He deposed that the possession of the land was received by accused Sh. Neeraj Mahajan vide letter (D11 page no. 95/C) Ex PW58/6, and proved No objection letter dated 24.01.2005 received from Neeraj Mahajan (D11 at page no. 116/C) ExPW58/7.
109. PW59 Sh. Anil Kumar Saxena deposed that he is director of M/s AMS Contractor Pvt Ltd. ; that accused Sh. S.P.Saxena is his brother and accused Sh. Rohit Saxena & Sh. Mohit Saxena are his sons.
He identified his signatures and signatures of his son Sh. Mohit Saxena on the account opening form related to his company ( D237) Ex PW59/1 and attested copy of Form 16 enclosed with the said account Opening Form (D238) Ex PW59/2, maintained at Nainital Bank.
110. PW60 Sh. D.N Saxena deposed that he was posted as ScaleI, Officer in Nainital Bank and accused Sh. S.P.Saxena had let out his house to the branch of Nainital Bank which was functioning from his house.
He deposed that account No. 6667 of Chanderlok CGHS Ltd was maintained in his branch and he identified the signatures of Sh. Neeraj Mahajan President, Sh. Rohit Saxena CBI Case No. 214/19 34 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Secretary and Sh Kishor Kumar Treasurer , on the Bank Account Opening Form and the photographs of the said persons pasted on the records of the bank Ex PW60/1.
The account was jointly operated by Sh. Kishore Kumar Aggarwal (A11) and Sh. Rohit Kumar Saxena (A6).
He deposed that M/s Emerald Builders also had their account in his branch, and he vide a letter dated 22.06.2007 under his handwriting and signatures handed over certain documents to the CBI and identified the same as Ex PW60/2 (Colly.).
111. PW61 G.M.V. Ramna deposed that he was posted as Branch Manager in Punjab National Bank and account of Chanderlok CGHS was opened on 28.02.2003 with his branch.
He identified the signatures and photographs of accused Kishore Kumar and Rajat Verma on the same at Point X1 and X2 (D49 at Page no.1 ) and also the signatures of accused Mohit Saxena on the account Opening Form Ex PW61/1.
The account was jointly operated by Sh. Rajat Verma (A12) and Sh. Kishore Aggarwal (A11).
112. PW62 Sh. R.S. Rawat deposed that he was working as Asstt. Supdt. in Passport Office and on the direction of his senior officers he visited CBI Office where specimen signatures and handwriting of various persons were taken in his CBI Case No. 214/19 35 of 158 CBI vs. Srichand etc (Chanderlok CGHS) presence.
He proved the specimen signatures/writing of accused Kishore Aggarwal (D263) (S84 to S98) Ex PW62/1 (Colly.) ; accused Rohit Kumar (D265) (S109 to S118) ExPW62/1 (Colly.) ; accused Rajat Verma (D266) (S119 to S123) Ex PW62/3 (Colly.) and accused Sanjay Kumar Kapasia (D269) (S134 to S138) Ex PW62/4 (Colly.).
113. PW63 Sh.Rajesh Bansal deposed that he had taken the membership of Chanderlok CGHS ; after seeing the membership register of the Society, he identified his signatures at point A at Serial no. 193 of page no. 33 Ex PW56/1.
Later on flat was allotted to him after deposit of Rs. 35 lacs by him.
114. PW64 Sh.Shailender Solanki deposed that he had become a member of the Chanderlok CGHS and paid Rs. 10,000/ ; at that time accused Mr. S.P.Saxena was looking after the affairs of the Society ; after seeing the membership register of the Society he identified his signatures at point A at Serial no. 207 of page no. 35 Ex PW22/1.
He further deposed that total Rs. 40 lacs were paid by him and Flat no. B 403 was allotted to him.
In the crossexamination he stated that he can not identify the accused Mr. S.P.Saxena.
115. PW65 Sh.Sanjeev Bansal deposed that he became CBI Case No. 214/19 36 of 158 CBI vs. Srichand etc (Chanderlok CGHS) a member of Chanderlok CGHS in the year 2004 and paid Rs. 10,710/ in cash to accused Mr. Rohit Saxena and a share certificate (D45) bearing certificate no.1568 Ex PW65/1 was issued to him ; after seeing the Share Certificate and Membership Register of the Society, he identified his signatures at point C at Serial no. 198 of page no. 34 Ex PW65/2.
116. PW66 Sh.Rajesh Aggarwal deposed that he became a member of the Chanderlok CGHS and paid Rs. 10,700/ ; at that time his uncle introduced him with the owner of the Society namely Mr. S.P.Saxena ; after seeing the membership register of the Society, he identified his signatures at point C at Serial no. 191 of page no. 31 Ex PW11/1.
He further deposed that total Rs. 34 lacs were paid by him and Flat no. B503 was allotted to him.
117. PW67 Sh. Amit Bansal deposed that accused Mr. S.P.Saxena is his soninlaw married with his daughter Ms. Manishi Bansal ; lateron they were inducted as Director of M/s GEE ESS EXIM Pvt. Ltd and flat no. 664, Pinces Park Apartment is in the name of aforesaid company where accused S.P..Saxena used to reside.
118. PW68 Sh. Pawan Aggarwal deposed that he became a member of the Chanderlok CGHS through accused Ram Kishan Gupta and paid Rs. 10,700/ in cash ; had heard that the affairs of the Society were looked after by accused Mr. S.P.Saxena ; after seeing the membership register of the Society CBI Case No. 214/19 37 of 158 CBI vs. Srichand etc (Chanderlok CGHS) he identified his signatures at point A at Serial no.155 of page no.25 Ex PW68/1.
He further deposed that total Rs. 34 lacs were paid by him and Flat no. B503 was allotted to him.
119. PW69 Sh. Mahi Pal Singh deposed that he was working as UDC in Directorate of Vanaspati, Ministry of Food & Supply Govt., and on the direction of his senior officers he visited CBI Office where specimen signatures and handwriting of a person was taken in his presence. He proved the specimen signatures/writing of accused Anna Wankhede (D262) (S1 to S83) Ex PW69/1 (Colly.)
120. PW70 Sh. Deepak Mohan ( the then Principal Secretary Land & Building interalia, GNCT ) accorded sanction to prosecute accused Mr. Satish Singh Aswal, RCS employee.
121. PW71 Sh. Sanjay Sehgal deposed that he was working as Inspector SCR II Branch, CBI, New Delhi, and he remained witness of taking of specimen signatures and handwriting of a person. He proved the specimen signatures/writing of accused Sh. Mohit Saxena (D283) (S378 to S392) Ex PW71/1 (Colly.).
122. PW72 Sh. Mahipal deposed that he was Constable in CBI, endorsed with the task to deliver notice u/s 160 Cr.P.C, and which remained undelivered.
123. PW73 Sh. Suraj Bhan deposed that he was CBI Case No. 214/19 38 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Constable in CBI, endorsed with the task to deliver notice u/s 160 Cr.P.C. and which remained undelivered.
124. PW74 Capt. Sh.Kamal Gurnani is the father of Ms. Ritu Gurnani and stated that after marriage her daughter got settled in Dubai ; the membership of the Society was taken by Ms. Ritu Gurnani ; he identified the signatures of his daughter at different pages.
After seeing the ResignationcumReceipt dated 11.01.2005 (D3 at page no. 4) Ex PW74/1 and specimen writings/signatures at D280 ( S188 to S192) Ex PW74/2 (colly.) he identified the signatures there to be of his daughter.
He first identified but laeron denied the signatures of her daughter on the Nomination Form (D4 at page no. 14) Ex PW74/3.
125. PW75 Sh. Sushil Kumar Sharma deposed that he knows accused Mr. Srichand ; got job through him in the year 1996 and worked in the offices of COSMOS CGHS Ltd and NAVAL Technical CGHS ; was provided DDA Flat in Phase II, Mayur Vihar for his residence purpose ; and Mr. Anna Wankhede, Mr. K.A Kanekar, Mr. Abhay Singh, Mr. Patras and Mr. Mohan Lal used to work with accused Srichand, and that he used to visit their office generally on Saturday's and Sunday's.
Witness deposed that he can identify the signatures of accused Mr. Anna Wankhede and Mr. Srichand as he had seen them writing and signing, but after seeing the documents i.e. CBI Case No. 214/19 39 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Minutes of Meetings (D9) of different dates denied the signatures to be that of of Mr. Anna Wankhede (A2) and Mr. Srichand (A1).
Witness also failed to identify his specimen signatures and handwriting taken by the CBI during investigations on the sheets from S264 to S343 (D294) Ex PW75/1.
The witness was declared hostile and was cross examined by the learned PP for CBI.
126. PW76 Sh. Jagdish Prasad deposed that he was working as Senior Asstt. in NTPC and remained witness of specimen signatures and handwriting taken in his presence.
He proved the specimen signatures/writing of accused Sh. Sushil Kumar Sharma (D294) (S264 to S343) Ex PW76/1 (Colly.).
This witness was reexamined in pursuance to Court order dated 28.01.2020 and he proved specimen signatures/writing of accused Mr. Keshao Akoba Kanekar (K.A.Kanekar) (D293) (S259 to S263) Ex PW102/17 (Colly.)
127. PW77 Sh. Mahesh Kumar Gandhi deposed that he was posted as Deputy Manager in Punjab National Bank. He handed over some documents to SI Vinod Kumar as required by him ; witness also proved the Statement of account bearing his signature and seal in the name of 'account holder' Chanderlok CBI Case No. 214/19 40 of 158 CBI vs. Srichand etc (Chanderlok CGHS) CGHS (D50) Ex PW77/2.
128. PW78 Sh. Mohan Lal also deposed on the similar lines as deposed by PW75. He additionally stated that neither he nor his wife had become member of Chanderlok CGHS, and he denied the signatures of his wife ( PW14 Smt. Harpyari @ Kamlesh ) on the proceedings register of the Society (D10) at number of places.
He also failed to identify signatures of accused Srichand (A1), and thereafter was declared hostile by the prosecution on the said aspect.
129. PW79 Sh. Chander Chandwani deposed that he was posted as Senior Manager in Punjab National Bank Bhikaji Cama Place, New Delhi, and on 30.04.2007 his senior officer directed him to visit CBI Office on 01.05.2007, and in his presence office of Chanderlok CGHS Ltd was searched, certain files were seized. He identified the search list (D15) Ex PW79/1 prepared pursuant thereto.
130. PW80 Sh. M.D. Sharma deposed that he was working as Assistant Registrar in the office of RCS and proved on record the original record of the Society handed over to CBI vide a letter (D54) bearing his signatures at point A Ex PW80/1 and letter Ex PW80/2 (D54D64) .
131. PW81 Sh. S.K. Nagpal was the Postmaster at Himatpuri, Delhi, and he identified the signatures of deceased Sh. Chanderbhan the then SubPostmaster on a letter dated CBI Case No. 214/19 41 of 158 CBI vs. Srichand etc (Chanderlok CGHS) 29.05.2007 Ex.PW81/2 sent to CBI in response to a letter dated 28.05.2007 Ex PW81/1.
132. PW82 Sh. Shiv Shankar Sharma was posted as Branch Manager, Delhi State Cooperative Bank Ltd. He identified the letter dated 20.02.2007 (D206) written by Smt. Birbala Deswal to the CBI Ex PW82/1 and alongwith this letter, specimen signature card of the account of Chanderlok CGHS, Statement of account and certified copy of Ledger Ex PW82/2 (Colly.) were sent to CBI and he identified the signature of Smt. Deswal on the same.
133. PW83 Sh. P.L Narasimham was posted as Manager Operations in Nainital Bank and deposed that a letter dated 02.03.2007 addressed to CBI was written by him and he handed over some documents relating to Chanderlok CGHS, and witness proved his signature on the same at point A (D197) Ex PW83/2.
134. PW84 Sh.Sandeep Sahni deposed that he is in the business of construction and knew accused Mr. S.P.Saxena ; they both were Directors of the company M/s Prime Point Developers Pvt Ltd. He handed over certain documents as required by the CBI vide production memo dated 09.04.2007 (D246) Ex PW84/1 (Colly.) and identified his signatures on the same at point A.
135. PW85 R.B. Bhosale was a Government examiner and had examined the questioned signatures and the writings of CBI Case No. 214/19 42 of 158 CBI vs. Srichand etc (Chanderlok CGHS) the present case pursuant to the exhibits sent by the CBI for analysis, and proved his reports Ex PW85/3 and supportive detailed reasons for opinion Ex PW85/4. His detailed opinion is discussed in the main part under analysis where ever necessary.
136. PW86 Sh.Sanjay Kumar Jaiswal deposed that in the year 20052006, membership of Chanderlok CGHS was taken by him through his friend and he paid Rs. 10,000/ ; after seeing the membership register of the Society, he identified his signatures at point B at Serial no.212 of page no.36 (D8) Ex PW5/2.
He further deposed that total Rs. 4042 lacs were paid by him and Flat no. 303 was allotted to him.
137. PW87 Sh. Narender Kumar deposed that he was a Constable in CBI and was tasked to effect service of notice upon addressee Mr. Pradeep Kumar Dua, and same remained unserved as there was no place with the name 'SOMI VIHAR'.
138. PW88 Sh. Rajesh Kumar deposed that he was a Constable in CBI on deputation and was tasked to effect service of notice upon addressee Mr. Yogesh Shah, Sh. Arjun Dass, Sh. Vijender Gupta and Sh. Rakesh Jain. Same remained unserved for the reasons "does not reside at the given address ", and duly proved on record his report in that regard vide Ex PW88/1 to Ex PW88/4 (D315, D320, D323 & D324 ) respectively having his endorsement on the back of it.
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139. PW89 Sh.Harish Sood deposed that in the year 20042005 the membership of Chanderlok CGHS was taken by him and after seeing the membership register of the Society he identified his signatures at point A at Serial no.122 of page no.20 (D8) Ex PW89/1.
Witness identified his signatures at point B on the Minutes of Meeting dated 31.12.2006 (D41) Ex PW5/3 but he denied his signatures at Q1305 on the Nomination Form of Neeraj Mahajan, Vice President (D4 page no. 39) Ex PW89/2, and at Q1277 on the Nomination form of Ms. Kamlesh, Member, (D4 at page no.12) Q1227 Ex PW89/3.
His specimen signatures were taken by the CBI from S149 to S153 Ex PW89/4(Colly.) (D272).
140. PW90 Sh. Rakesh Mehta the then Chief Secretary accorded sanction to prosecute accused Mr. P.K. Thirwani.
141. PW91 Sh. R.K. Aggarwal the then DSP and part of the team which executed the Search Warrants and the documents seized thereto from the Site office of Chanderlok Plot No. 13, Sector19, Dwarka, Delhi were proved on record vide Ex PW79/1.
142. PW92 Sh Lalit Kumar deposed that in the month of April/May, 2007 he was posted as Manager (Civil) in Punjab National Bank, and on the direction of his Chief Manager he visited CBI office and raid was conducted on a construction site CBI Case No. 214/19 44 of 158 CBI vs. Srichand etc (Chanderlok CGHS) of the Society ; some documents were sized by the CBI team and search list was prepared duly signed by him ; he proved the search list dated 01.05.2007 Ex PW79/1 bearing his signatures at point A.
143. PW93 Sh. Ajit Singh deposed that he was working as Junior Engineer in CPWD and provided the details of the staff quarters under his signatures at point A, Ex PW93/1.
144. PW94 Sh. Deepak Kumar deposed that he was working as Accounts Officer in the MTNL, AGCR Enclave Delhi and knows Mr. Hansraj, Chief Account Officer in MTNL.
He proved the letter dated 06.08.2007 (D257) vide which certain documents related to the landline telephone number 22452219 installed at the office address i.e. C34/D, Patparganj, Madhu Vihar, New Delhi in the name of Ms. Madhu Saxena, bearing the signatures of Mr. Hansraj were handed over to the CBI.
145. PW95 Sh. Alok Singh Chouhan deposed that he is posted as Manager, Axis Bank, Palam Branch, New Delhi ( earlier known as UTI Bank ) and knows Mr. K.K. Srivastava, who has since then retired in the month of JuneJuly, 2019. He identified the signatures and seal of Mr. Srivastava on a letter dated 17.02.2007 (D51) Ex PW95/1 vide which the documents related to SB Account no. 132010100066149 in the name of Chanderlok Group Housing Society was handed over to the CBI.
146. PW96 Ms. Tarika deposed that she is posted as CBI Case No. 214/19 45 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Branch Manager in PNB, Patparganj branch, where saving bank account in the name of Chanderlok Cooperative Group Housing Society was maintained and she attested the copy of the Statement of account of the Society for the period 24.03.2003 to 09.05.2005 Ex PW96/1.
She also proved Certificate u/s 65B of Evidence Act and under Section 2A of Banker's Books Evidence Act Ex PW96/2 and Ex PW96/3 respectively.
147. PW97 Sh. Vivek Panwar deposed that he is posted as Assistant Branch Manager in Delhi State Cooperative Bank, Mehrauli Branch, where saving bank account in the name of Chanderlok Cooperative Group Housing Society was maintained.
He proved the Statement of account No. 1600 in the name of Chanderlok CGHS Ltd from 30.07.1994 upto 01.09.2010 Ex PW97/1 ; he also proved certificate u/s 65B of Evidence Act and under Section 2A of Banker's Books Evidence Act bearing his signatures at point A on Ex PW97/2 and Ex PW97/3 respectively.
148. PW98 Sh. Sanjay Vats deposed that he was Constable in CBI, endorsed with the task to deliver notice u/s 160 Cr.P.C. in the name of Sh. Ashok Chawla and Sh. Anil Kumar, and which remained unexecuted for the reasons 'incomplete address/addressee not found' respectively. He duly proved on record the notice and the unsuccessful execution via his endorsement on Exh. PW98/1 and Ex.PW98/2 respectively.
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149. PW99 Sh. Ombir Singh deposed that he was Constable in CBI, endorsed with the task to deliver notice u/s 160 Cr.P.C. in the name of Sh. Sapan Gupta and which remained unexecuted for the reasons 'address could not be located'. He duly proved on record the notice and the unsuccessful execution via his endorsement on Exh. PW99/1.
150. PW100 Ms. Ruchi Singh was posted as Senior Branch Manager in Nainital Bank, I.P. Extension Branch, New Delhi. She deposed that her branch was maintaining the accounts of accused Sh.S.P.Saxena, M/s Emerald Builders Pvt Ltd, Saving Bank account in the name of Association for Welfare of Delhi and M/s Chanderlok CGHS.
She proved the statement of account of the said accounts holder provided to the CBI under her signatures vide Ex PW100/1 ; Ex PW100/4, Ex PW100/7 and Ex PW100/10.
She also proved certificate u/s 65B of Evidence Act and under Section 2A of Banker's Books Evidence Act bearing her signatures at point A vide Ex PW100/2, Ex PW100/3, Ex PW100/5, Ex PW100/6, Ex PW100/8 and Ex PW100/9 respectively.
151. PW101 Sh. Santosh Kumar the then Inspector deposed that he had received certain documents via production memo dated 09.04.2007 on the instructions of IO of the case Sh. Javed Siraj and proved on record said memo as per Ex PW84/1 (colly. ) bearing his signatures.
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152. PW102 Sh. Vinod Kumar the then Inspector in the CBI and was deputed to assist the main IO Sh. Javed Siraj. He collected various records of the Society from different banks in terms of the documents exhibited as Ex PW95/1 (colly.) from UTI bank ; Ex. 102/1 (colly.) from PNB, Patparganj Branch ; Ex. 83/1 & Ex.83/2 ( Colly.) from Nainital Bank, and Ex. 82/1 & Ex. 82/2 (colly.) from Delhi State Co operative Bank Limited.
He also obtained specimen signatures / handwriting of accused persons namely :
Anna Wankhede from S1 to S83 (D262) ;
Kishore Kumar Aggarwal from S84 to S98(D263) ;
Ashok Kumar from S99 to S108 ( D264) ;
Rohit Kumar Saxena from S109 to S118 (D265) ;
Sanjay Kapasia from S134 to S138 ( D296) ;
Mohit Saxena from S203 to S207 (D283) ;
Ashok Kumar Johri from S208 to S220 (D284) ;
K.A. Kanekar from S259 to S263 (D293).
AND Witnesses/Other persons namely Mr. Rajat Verma from S119 to S123 (D266), Ms. Sangeeta from S130 to S133 (D268).
Mr. Sanjeev Basil from S139 to S143 (D270).
Mr. Vinod Kumar from S144 to S148 (D271).
CBI Case No. 214/19 48 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Mr. Harish Sood from S149 to S153 (D272).
Mr. Mahesh Kumar Goel S154 to S158 ( D273).
Mr. Rajesh Kumar from S159 to S163 (D274) & S164 to S168 (D275).
Mr. Pritam Singh from S169 to S173 (D276).
Ms. Sushma from S174 to S177 (D277).
Sh. Prem Prakash from S178 to S182 (D278).
Sh.Sushil Kumar Soni from S183 to S187 (D 279).
Ms Ritu Gurnani from S188 to S192 (D280).
Sh. Umesh Singh from S193 to S197 (D281).
Sh.Narender umar Basil from S198 to S202 (D282).
Mr. Sushil Kumar Sharma from S264 to S343 (D294).
He also recorded the statement of number of witnesses during the investigation of the case.
153. PW103 Sh. Arun Gupta deposed that at the relevant time he was posted as Senior Branch Manager, PNB and account of the Chanderlok CGHS was in his branch ; that on receipt of a letter dated 23.04.2007 from CBI he provided the required records of the account holder to CBI and sent the same vide his letter dated 08.06.2007 ( D65) Ex PW103/1.
Witness identified the 30 original cheques (D62,D 72,D74,D76,D84,D87,D88, and D90 to D100) which he had sent alongwith the letter to CBI Ex PW103/2(Colly), five CBI Case No. 214/19 49 of 158 CBI vs. Srichand etc (Chanderlok CGHS) vouchers (D73, D75, D85.D86 to D89) Ex PW103/3 (Colly.) and statement of account/record (D201 to D205) sent vide his letter dated 22.06.2007 Ex PW103/4 (Colly.). The witness identified his signatures at point A.
154. PW104 Sh. Vijay Kumar the then Inspector in EOUI, CBI, was tasked with conducting the preliminary enquiry. He proved on record a receipt memo dated 27.10.2006 Ex. PW104/1 (D2) vide which the documents/ files and registers (from D3 to D14) of the society were handed over to the main IO Sh. Javed Siraj of the case.
155. PW105 Sh. Javed Siraj is the main IO who conducted the entire investigation of the case ; recorded statement of witnesses, collected documents and other reports concerning the case from various agencies/departments, and after completion of the investigation, the chargesheet was prepared and filed by him in the court.
His further testimony is discussed lateron as and when references are made to the ocular evidence and documentary evidence accordingly.
156. PW106 Sh. S.K Sharma at the relevant time was posted as Manager PNB and account of the Chanderlok CGHS was in his branch.
He identified the signatures of Sh. Ashok Grover, the then Chief Manager on the letter dated 06.06.2007 and stated that 28 Original cheques were handed over by him to IO Javed CBI Case No. 214/19 50 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Siraj and proved the letter alongwith cheques (D105) Ex PW105/2 ( Colly.).
157. PW107 Sh Bharat Anand deposed that he is in the business of construction at Noida ; had not taken the membership of the Chanderlok CGHS Ltd ; had purchased the Flat no. 302, 3rd Floor, F16, Preet Vihar, New Delhi in the year 2002, however the said flat was never let out to Chanderlok CGHS.
158. After closure of the prosecution evidence separate statement of accused persons under Section 313 Cr.P.C were recorded accordingly.
159. Brief of Statement of accused persons recorded u/s 313 Cr.P.C.
160. Accused Srichand A-1 in his statement denied the allegations of prosecution and feigned ignorance about the deposition of witnesses. With respect to GEQD opinion, he submitted that the opinion is unscientific and moreover, it is biased and prepared at the behest of CBI.
161. He also denied his specimen handwriting and signatures taken by the IO during investigations stating that he was a tutored witness.
162. He further stated that he has been falsely implicated in the present case ; no witness has deposed against him ; there is nothing against him in the entire case put up by the prosecution and that he is innocent and investigation is biased and misleading.
163. Accused Anna Wankhede (A-2) also denied the CBI Case No. 214/19 51 of 158 CBI vs. Srichand etc (Chanderlok CGHS) case of prosecution and submitted that none of the witnesses have deposed against him.
164. He disputed the GEQD opinion stating it to be totally biased and unreliable.
165. He stated that no witness has deposed against him ; that he was not the beneficiary, no flat was ever allotted to him in the Society and nothing incriminating was recovered from his possession ; there is absolutely no incriminating evidence against him, that he is innocent and has been falsely implicated in the present case.
166. Accused K.A. Kanekar (A-3) and S.P. Saxena (A-
4) after their examination under Section 313 Cr.P.C expired and proceedings against them stands abated, hence, their respective statement recorded u/s 313 Cr.P.C at the time of trial are not discussed here.
167. Accused Ashok Johri (A-5) denied the case of prosecution ; claimed his innocence and stated that there is no allegations against him and he is not involved in the present case in any manner.
168. Accused further stated that he was shocked when it came to his knowledge that a case has been filed against him by the CBI ; the real culprits have been cited as witness ; that due to the non professional conduct of the prosecution agency his life has been damaged ; and stated that no witness has deposed against him.
169. He further stated that he was part time Steno/Typist CBI Case No. 214/19 52 of 158 CBI vs. Srichand etc (Chanderlok CGHS) of accused Mr. S.P.Saxena and used to work on the dictation of Mr. Saxena ; it is a false case and his name has been misused by some unscrupulous persons.
170. Accused Rohit Kumar @ Rohit Saxena (A-6) deposed that he has no knowledge about the people who became members before he became the office bearer of the Society ; there were various documents of the former members and also some resignations in the records pertaining to the Society, and the said persons became member when he had no affiliation with the Society, and one person namely Sh. Chanderpal had made various of his friends and acquaintances member of the Society who later tendered their resignations to the said Sh. Chanderpal.
171. He further stated that since the matter is quite old and he had not dealt personally with all the members, therefore, he can not say who all took its membership and who all resigned from its membership.
172. Accused stated that his specimen signatures were not taken ; the report submitted by the prosecution is unreliable and has been made at the behest of CBI ; it is unscientific, inconsistencies and faults are in the opinion of GEQD expert.
173. He stated that he has been falsely implicated without their being any criminality in his acts ; he was not in conspiracy with anyone ; have not misused the position as a Secretary of the Society ; neither forged anybody signatures not mis-represented any fact before any authority ; no witness deposed that he had misused his powers for some beneficial reasons and there is no evidence of undue benefit to him.
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174. Accused P.K.Thirwani (A-7) denied the allegations of prosecution and submitted that he has been falsely implicated in the present case ; none of the witness has deposed against him except the IO, who has done the partial investigation with malafide and biased intention to implicate him and has made false statement against him in support of his case.
175. He stated that it is a false case based on wrong interpretation of laws/evidence ; that task of audit of the Society was assigned to him after approval of the RCS ; he conducted the audit of the society and raised serious objections which shows he was not in collusion with any person of the Society.
176. That it was the duty of the concerned zone to take necessary steps of compliance qua removal of objections from the Society before sending the same to Policy Branch for onward transmission to DDA.
177. He denied having committed any offence. He stated that he did his duties in good faith ; audit was conducted by him as per records produced by the Society after its revival and CBI has not obtained proper sanction for prosecution u/s 197 Cr.P.C for IPC offences and as per Section 95 of the DCS Act, 1972 no Suit or prosecution can be launched against the RCS Officials.
178. Accused Narain Diwakar (A-8) pleaded his innocence and submitted that he had no knowledge of the case ; this is a false case against him ; the investigation was biased and no witness has deposed against him.
179. He further stated that he has been falsely implicated in the present case on the basis of assumption and presumptions CBI Case No. 214/19 54 of 158 CBI vs. Srichand etc (Chanderlok CGHS) only ; that he dealt with the files as per the prevailing provisions of DCS Act and Rules and it was the duty and responsibility of the Management Committee of the Society to furnish true and correct information and that the liquidation proceedings were never finalized.
180. He further stated that sanction u/s 197 Cr.P.C to prosecute him as per the CBI manual was not obtained and for want of Sanction either u/s 197 Cr.P.C or under Section 19 of P.C Act relief of dropping of proceedings be granted to him.
181. He stated that he had no personal interest or stake in the Society in question ; that whatever was done that was as per law ; that his order was an appeal-able one and it is a matter of record that order passed by him was never set aside.
182. That during his tenure as Registrar he had worked tirelessly for getting the entire department computerized and under his instructions records of more-than 5000 different kinds of Societies in the department were uploaded on the website. That he is innocent and be acquitted accordingly.
183. Accused Satish Singh Aswal (A-9) denied the case of prosecution ; pleaded his innocence and submitted that IO has falsely implicated him as an accused ; IO did not conduct any definitive investigation and did not bring on record that Sh.Surender Pratap was an existing person.
184. That IO misrepresented the actual facts of the case on the basis of a perfunctory investigation based on whims, fancies, assumptions and presumptions.
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185. That he had performed his duties with full devotion under the provisions of CCS Rules and DCS Act/Rules, therefore, there was no illegality or irregularity in his functions.
186. Accused Kishore Aggarwal (A-11) also denied the case of prosecution and submitted that he has been falsely implicated in the present case ; has not committed any illegal Act ; has no role in the revival of the Society or allotment of the land ; had not taken any benefit from the Society or from any member and not beneficiary.
187. That he was briefly associated with the Society and during his tenure he did not introduced any PW to the Society nor removed any such PW from its membership.
188. That CBI has acted in an arbitrary manner to pick and choose and implicate whoever was associated with Chanderlok CGHS Ltd.
189. Accused Rajat Verma (A-12) stated that he is innocent and has been falsely implicated as an accused in the present case only on the basis of assumptions ; he has no role in the revival of the Society ; that he became the member of Society through accused Mr. S.P.Saxena ; no offence or illegality was committed by him during his membership tenure.
190. That he had not taken any benefit from the Society or from any member, and not the beneficiary in any manner, and have not caused any loss to the government department or to any individual, nor removed any PW from the Society, nor introduced as such.
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191. Accused Sanjay Kapasia (A-14) denied the case of prosecution ; pleaded his innocence and stated that he has been falsely implicated in the present case ; have not violated any provisions of the DCS Act ; have no role in the revival of the Society ; not taken any benefit from the Society or from any member and not caused any loss to the government.
192. That CBI had acted in an arbitrary manner to pick and choose policy to implicate the persons associated with the Society.
193. Accused Mohit Saxena (A-15) denied the allegations of prosecution and submitted that he was neither the Office bearer of the Society nor had any role to play in resignation of the membership, revival of the Society and was not the beneficiary ; has been falsely implicated and charge-sheeted without their being any evidence against him.
194. He stated that he was only part time employee of the Chanderlok Society and used to do limited work of the Society ; the charge sheet has no corroborating evidence to show as to how the investigating officer concluded that the said address was a bogus address ; that the faulty investigation was conducted by the IO ; that it is a false case and no witness has deposed against him.
195. Accused Rameshwar Dayal (A-16) denied the allegations of prosecution levelled against him ; pleaded his innocence and narrated that he had worked with full devotion under the provisions of CCS Rules, and DSCS Act and Rules and there was no illegality or irregularity in his functions.
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DEFENCE EVIDENCE : -
196. Accused P.K. Thirwani (A-7) Satish Singh Aswal (A-
9) and Kishore Aggarwal (A-11) has lead defence evidence and examined witnesses in support of their defence.
197. Accused Satish Singh Aswal (A-9) in support of his defence has examined only one witness.
198. Sh. Rattan Pal Singh DW-1 deposed that he is working as Assistant in the office of SDM, Saket New Delhi and produced the file related to accord of Sanction for prosecution of accused Satish Aswal.
199. Accused P.K. Thirwani (A-7) in support of his defence has examined two witnesses namely Sh. S. Bhattacharya, Senior Assistant in the Directorate of Vigilance DW-2, and Sh. Aakash Bhardwaj as DW-3 Ahalmad in the Court of Sh. Sameer Bajpai, learned Special Judge, CBI-14, P.C Act.
200. Sh. S.Bhattacharya, DW-2 deposed that he is Senior Assistant in the Directorate of Vigilance, Govt of NCT of Delhi and produced the summoned file i.e. the file related to accord of Sanction for prosecution of accused P.K. Thirwani.
201. Sh. Aakash Bhardwaj, DW-3 Ahalmad of the learned Court, produced the original chargesheet related to FIR no. RC- 6(S)/2006/CBI/SCB-II/DLI dated 13.07.2006
202. Accused Sh. Kishore Aggarwal (A-11) examined one witness in his defence.
203. Sh. Sandeep Kumar, DW-4, Judicial Assistant in the Office of Registrar Cooperative Societies, produced the CBI Case No. 214/19 58 of 158 CBI vs. Srichand etc (Chanderlok CGHS) summoned record and proved the record provided to the accused under RTI and after comparison the said documents were exhibited as Ex DW4/A (colly.)
204. Prosecution did not cross examine any of the defence witness despite being given opportunity.
FINAL ARGUMENTS :
205. A lengthy arguments were addressed by learned PP for CBI as well as by all the defense counsels during hearing of the case, and number of judgments were also cited at bar in support of their respective claims and the same have been dealt with at the time of appreciation of evidence underneath.
ANALYSIS & FINDINGS :
206. So, the first thing to consider is the Status of documents/records of the Society, whether they are forged and fabricated, and whether the Society was revived on the basis of said false documents.
207. The prosecution have examined PW-4 Sh. Krishan Singh, PW-5 Sh. Satish Kumar Gera, PW-6 Sh. Surender Singh Pawar, PW-7 Sh. Kishan Kumar & PW-8 Sh. Harsh Goel, and they all have deposed to the fact that they had become member(s) of the Society, some of them were promoter members, but they all denied having ever resigned from its membership, or having attended any GBM, or any other proceedings of the Society, which purportedly are shown in the records of the Society in their names, wherein their presence is also specifically marked.
208. These witnesses identified their signatures on the CBI Case No. 214/19 59 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Membership Application Form during their examination, but deposed further to the fact that they had never tendered any Resignation, and the Affidavit(s)/receipts alongwith Proceeding Register produced on record, allegedly in their name(s) are false and fabricated.
209. They also denied their signatures appended on the letters, affidavits, receipts and Proceeding(s) Register etc which are part of Ex D-6, D-8, D-13 & D-41.
210. PW-34 Sh. Rajesh Drall, PW-35 Sh. Sunil Kumar & PW-36 Sh. Umesh Singh have also testified to the fact that though they had taken the membership of the Society but had never participated in any Election proceedings of the Society and the signatures appearing on the nomination forms in their name(s) ( part of D-13, page no. 743/C, 740/C and 739/C ) are not their genuine signatures.
211. The original Secretary of the Society Sh. Chander Pal though had expired in the year 1999 but his affidavit and resignation-cum-receipt are also shown to have been tendered/ issued in the year 2001 & 2004 respectively.
212. Similarly, other category of witnesses namely - PW 3 Sh. A.S.Wadhwa deposed that he had never taken the membership of Chanderlok CGHS and denied his signatures on the Membership Application Form of the Society Ex PW3/1 ( D 13 Page no. 468/C), Affidavit dated 04.10.2001 (D13, page no. 393/C) ExPW3/2 and ResignationcumReceipt dated 25.12.2002 ( D6, Page no. 82) at point Q1150 & Q1151 on the CBI Case No. 214/19 60 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Ex PW3/3.
213. Even though his wife name and date of birth were wrongly mentioned but he admitted to the fact that his personal details i.e. his name, father's name and address are correctly mentioned in the records of the Society, implying thereby, that his details have been used by the accused persons to show him as a fake member of the Society.
214. PW-9 Sh. Ram Kishan also denied having ever taken the membership of the Society and the signatures appended on the affidavit, resignation-cum-receipt exhibited as Ex PW9/1 and Ex PW9/2 respectively.
215. And during cross- examination, he admitted to know Srichander Pal who was his close friend, but denied having taken the membership or the signatures appended thereto.
216. Similarly, PW-13 Smt Shobi Sahni, PW-20 Sh. Madhu Sudan, PW-37 Smt. Sangeeta Anand, PW-44 Sh. Sanjay Basil, PW-45 Sh. Vinod Kumar and PW-48 Sh. Ashok Kumar testified that they had never taken the membership of Chanderlok CGHS and that the proceedings of the Society including the signatures appended against their names are forged and fabricated.
217. PW-44 and PW-48 have further denied having submitting any Election Nomination Form and the signatures affixed thereto on the said form ( Part of D-4).
218. Further, the witnesses PW72 Sh. Mahipal, PW73 Sh. Suraj Bhan. PW87 Sh. Narender Kumar, PW88 Sh.
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Rajesh Kumar, PW98 Sh. Sanjay Vats and PW99 Sh.
Ombir Singh, who were entrusted with the notice under section 160 CrP.C for effecting service upon the Members allegedly shown in the records of the Society, have deposed to the fact that the notices remained un-executed for the reasons that "no such person at the given address " or that " address does not exist"
indicating the falsity of the records in respect of Members of the Society.
219. Many of the witnesses were cross-examined by the learned defence counsel(s) for the accused persons to impeach their credibility but nothing has come on record to doubt their veracity or the fact that :
220. Witnesses were not the members of the Society or that they had ever resigned from the membership ;
221. or to say with respect to witnesses who had not taken the membership that they were its original members or the fact that the signatures appended on the records of the Society corresponding to their names are genuine signatures ;
222. or that the alleged members who were not found residing at the given addresses in terms of the process server report were existing and genuine members.
223. The cross-examination of the aforementioned witnesses was mainly confined to give suggestions about the genuineness of their signatures or about their details being incorrectly mentioned in the Application Forms, Affidavits, Resignation letters and other documents.
CBI Case No. 214/19 62 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
224. But witnesses specifically denied the alleged signatures appended on the purported original record of the Society in their names. The process reports have also not been impeached to a great extent by the defence counsels during their cross-examination.
225. Defence has also not led any evidence thereafter to contradict the stand taken by the witnesses, or to prove the fact that signatures appended on the documents are genuine signatures of the respective witnesses. No expert was examined to controvert their deposition to that extent. Nor any evidence was led on record to show that the process report were false and the alleged members of the Society were genuine.
226. Pertinent to mention here, that the said witnesses are independent public witnesses who either were the genuine members of the Society at the time of its inception and themselves seems to be the victim of the illegal acts of the accused persons, or the persons who were completely unaware about them being inducted as members of the Society, only their personal details were used by the accused persons to fabricate the records of the Society for their ulterior motive.
227. The factum of forgery of the resignation letters and affidavits is further corroborated by the testimony of GEQD expert Sh. R.B. Bhosle (PW-85) in terms of his opinion Ex PW85/3 duly supported with reasons for opinion Ex PW85/4 wherein he has stated that the signatures and the handwriting examined by him does not matched with the specimen / admitted signatures of the witnesses, and that many of the signatures were CBI Case No. 214/19 63 of 158 CBI vs. Srichand etc (Chanderlok CGHS) appended by accused persons namely Anna Wankhede and K.A. Kanekar amongst others.
228. The original members of the Society who had never resigned but are shown to have resigned from the membership ;
members who never took its membership are shown to be its members without their consent and knowledge ; some other false members are shown to its members by using the personal details of some unknown persons.
229. So, appreciating the testimonies of the witnesses noted above and the GEQD opinion, I have no hesitation to say, that the prosecution has successfully proved the fact that the records of the Society were manipulated, the documents furnished before the RCS Office were forged and fabricated, prepared and presented only for the purpose of revival of the Society with the ulterior motive to claim priority to get the land allotted from DDA.
230. Pertinent to note that it was not a mere coincidence that forged and fabricated documents were got prepared or furnished by the persons (accused persons) for revival of the Society, nor it appears to be an act of negligence or inadvertence, but the manner in which the documents were fabricated and presented, and the Society so revived, can not be act of one person but indicator of the role and acts of different persons involved thereto, and which goes a long way to establish the factum of existence of the conspiracy.
231. The next question that now arises for consideration is whether the accused persons were part of the conspiracy CBI Case No. 214/19 64 of 158 CBI vs. Srichand etc (Chanderlok CGHS) pursuant to which the documents of the Society were forged and fabricated, the Society was revived, false resignations were accepted, freeze list was approved and sent to DDA, and further proceedings of the Society were manufactured malafidely with the object to seek land at concessional rates on priority basis.
232. Before I proceed further, it would be useful to discuss the relevant provisions of the Conspiracy and the governing Principles thereto. Same are reproduced as under :-
(i) 120A IPC
233. Section 120-A IPC defines Criminal Conspiracy which reads as under: - 120-A. Definition of Criminal Conspiracy- When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation:- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that CBI Case No. 214/19 65 of 158 CBI vs. Srichand etc (Chanderlok CGHS) object.�
(ii) Section 120B IPC Punishment for criminal conspiracy:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upward, shall where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner, as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or fine or both.
234. It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are:-
a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished ;
b) a plan or scheme embodying means to accomplish that object;
c) an agreement or understanding between two or more of the CBI Case No. 214/19 66 of 158 CBI vs. Srichand etc (Chanderlok CGHS) accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means.
235. Thus, the gist of offence of criminal conspiracy is an agreement to break the law. The agreement may be express or implied, or in-part express and in-part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by accomplishment of its object or by abandonment or frustration.
236. It must be noted that the Conspiracy is hatched in secrecy and as such direct evidence is seldom available. Similarly, agreement of conspiracy can also be proved either by direct evidence or by circumstantial evidence or by both.
237. It is not necessary that the prosecution has to bring on record express proof of the agreement so entered, the acts and the conduct of the parties appreciated in correct prospective go a long way to infer and establish the existence of conspiracy.
238. Since the Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in reference to common design :-
Where there is reasonable ground to believe that CBI Case No. 214/19 67 of 158 CBI vs. Srichand etc (Chanderlok CGHS) two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
239. The law expounded by the Superior Courts on the subject and its governing principle may now be referred to have better understanding of the facts of the case and the evidence so produced on record.
240. The Hon'ble Supreme Court in Ram Narayan Poply Vs. Central Bureau of Investigation, AIR 2003, SC 2748 the Hon'ble Supreme Court observed that : �"the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub section (2) of Section 120-A, then in that event mere proof of CBI Case No. 214/19 68 of 158 CBI vs. Srichand etc (Chanderlok CGHS) an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120-B.".
(Emphasis supplied)
241. In another landmark judgment on the aspect of conspiracy, wherein the Hon'ble High Court has succinctly summarized the applicable principles on the said subject, after re-visiting the entire case law, in a case titled as Rakesh Kumar & Ors. Versus State, 2009 (163) DLT 658, observed as under: -
.......134. After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled-out:-
A. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy CBI Case No. 214/19 69 of 158 CBI vs. Srichand etc (Chanderlok CGHS) it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State v. Nalini, (1999) 5 SCC 253).
B. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- participators in the main object of the conspiracy.
It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But CBI Case No. 214/19 70 of 158 CBI vs. Srichand etc (Chanderlok CGHS) then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (See the decisions of Supreme Court reported as Yash Pal Mittal v. State of Punjab, AIR 1977 Supreme Court 2433 and State v. Nalini, (Supra)] C. It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
D. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of CBI Case No. 214/19 71 of 158 CBI vs. Srichand etc (Chanderlok CGHS) communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 Supreme Court 439; Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, AIR 1981 Supreme Court 1062; and Kehar Singh v. State AIR 1988 Supreme Court 1883) E. A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the Society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.
F. Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators. In short, the section can be analyzed as follows:-
(1)There shall be a prima facie evidence affording a reasonable ground for a Court to believe that CBI Case No. 214/19 72 of 158 CBI vs. Srichand etc (Chanderlok CGHS) two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 81 of 183 entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v. State of Maharashtra, AIR 1957 Supreme Court 747.) Here it is pertinent to refer to a classic judgment of three Hon'ble Judges Bench of the Honble Supreme Court in Bhagwan Swarup v.
State of Maharashtra, AIR 1965 SC 682 (known as 2nd Caveeshar case) in which his lordship Honble Sh. Justice Subba Rao, had already spoken for the bench analysed the ingredients of Section 10 as culled out above in the judgment of our Hon�ble High Court in Rakesh Kumar (supra), which amounts to repetition, if quoted again.
It would be profitable to draw reliance from yet another judgment of the Hon'ble Supreme Court of the same strength (Three Hon'ble Judges) in Nalini case (supra) relied upon by the defence, which reads It is not that immediately the object of conspiracy is achieved, Section 10 becomes inapplicable. For example principle like that of res gestae as contained in Section 6 of the Evidence Act will continue to apply. (Para 582). Therefore, the res gestae i.e. the acts, circumstances and the statements that are incidental to the principal fact of a litigated matter and are admissible in evidence in view of their relevant association with that fact, cannot be CBI Case No. 214/19 73 of 158 CBI vs. Srichand etc (Chanderlok CGHS) ignored since the same become relevant in view of Section 6 of the Indian Evidence Act, 1872.
242. It may also be noted that mere agreement to commit a conspiracy is a punishable offence.
243. So, essentially, in case of criminal conspiracy the court has to infer certain facts and circumstances to arrive at its conclusion of existence of conspiracy and the involvement of the persons so conspiring from their acts and attending circumstances.
244. So, keeping these fundamental and governing principles of law relating to conspiracy in mind, I proceed to examine the case of each accused qua his involvement, if any, in the conspiracy and other offences in terms of the charges so framed against them.
245. Taking first the case of A-1, A-2 and A-3 (since expired).
246. In terms of the allegations so levelled by the prosecution these three accused entered into criminal conspiracy with other co-accused persons including the officials of RCS office with an object to revive the defunct Chanderlok Cooperative Group Housing Society by preparing false and fabricated documents to get the land from DDA at concessional rates.
247. This set of accused persons was instrumental in initiating the entire process to get the Society revived upon false and fabricated records, which they successfully did so, and the land was finally alloted to the aforesaid Society, flats were CBI Case No. 214/19 74 of 158 CBI vs. Srichand etc (Chanderlok CGHS) constructed and alloted to its members thereafter.
248. It may be noted that the Society was registered on 25.01.1980 with 52 Promoter members ; and subsequently, due to non compliance of DCS Rules and Provisions, the Society was placed under liquidation on 25.11.1987 in terms of section 55 of DCS Act, 1972.
249. It is alleged that A-1 Srichand surreptitiously obtained the records of the Society after the death of Sh. Chander Pal Honorary Secretary of the Society, and alongwith Sh. Anna Wankhede(A-2), deceased accused K.A. Kanekar (A-3) fabricated the records of the Society by writing bogus minutes of meetings & election proceedings starting from 08.05.1981 till 1997/2001, showing the resignation of 10 promoter members and adding 33 new members, out of which some were bogus, one of them being Sh. Surender Pratap who was lateron shown as the President of the Society before the RCS Officials.
250. Further, an election dt. 24.11.2002 is also alleged to have been conducted by accused Sh. Anna Wankhede wherein Sh. Ashok Kumar and Sh. Vinod Kumar were shown elected as President and Vice-President respectively and Smt. Kamlesh and Smt. Chander Prabha as its member of Management Committee.
251. Prosecution have examined Sh. Ashok Kumar as PW-48 and he has deposed that he never became member of any Cooperative Group Housing Society including that of Chanderlok CGHS. He denied the signatures at Point Q-594 in the Membership Register (Ex.PW-8/1) appended against his name.
CBI Case No. 214/19 75 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
252. PW-48 also denied the signatures appended in the proceedings register (D-9) particularly in the minutes of meeting dt. 24.11.2002, at Points X-1, X-2 & X-3, amongst other signatures appended in his name at various other places in the aforesaid proceedings register (D-9).
253. PW-48 further denied having filed any election nomination form Ex. PW-48/2 and the signatures affixed there, including that on letter dt 13.12.2002 Ex. PW-48/3 written to the RCS Officials, and on letter dt 28.02.2003 Ex. PW-48/4 written allegedly in his name to Punjab National Bank to open the account of the Society.
254. Similarly, PW-45 Sh. Vinod Kumar allegedly shown elected as President of the Society has also specifically denied having taken the membership of Chanderlok CGHS at any point of time.
255. He also denied the signatures appended on the Membership Register at serial no.91 Ex PW45/1 ; Proceedings Register at serial no.12 in terms of minutes of meeting dated 24.11.2002 ; authority letter dated 03.02.2003 at point Q-2740, exhibited as Ex PW45/2, and resignation letter dated 05.03.2003 purportedly in his name Ex PW45/3.
256. During their cross-examination nothing suspicious has come on record qua their deposition or to show the fact that they had taken the membership of aforesaid Society and / or had participated in its proceedings thereto. Nor any evidence in defence was led by the accused persons contrary to the deposition of PW-45 and PW-48.
CBI Case No. 214/19 76 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
257. Most of the accused have not even cross-examined them, and the one who cross-examined the witnesses, their cross-examination was also confined primarily to give denial suggestions only.
258. Importantly, Sh. Ashok Kumar PW-48 is shown to have been elected as the President and PW-45 Sh. Vinod Kumar as Vice-President of the Chanderlok CGHS in the alleged election so conducted on 24.11.2002.
259. Appreciating the testimony of these witnesses, it proves a fact that the election proceedings dated 24.11.2002 and the minutes of meeting written thereto are totally false and fabricated record and all these proceedings were conducted under the agesis of accused Anna Wankhede, as a President and accused K.A. Kanekar as its treasurer.
260. Further, testimony of GEQD Expert Sh. R.B. Bhonsle (PW-85) may also be noted, wherein in terms of the opinion so furnished by him and exhibited as Ex. PW-85/3 it has been specifically opined that the signatures appended as noted in the tabular form hereunder:-
Sr. Name of File Document Questioned
No. accused No. Signatures Taking
1. Anna D-9 Proceeding Q-2, Q-3, Q-7 to Q-9, Q-11, Q-13,
Wankhede Register Q-15, Q-18, Q-20, Q-23, Q-25, Q-
(A-2) 33, Q-36 to Q-38, Q-42, Q-278, Q-
289, Q-300, Q-399, Q-409, Q-411,
Q-412, Q-415, Q-417, Q-425,
Q436, Q-440, Q-442, Q-444
D-8 Member- Q-549, Q-550, Q-554, Q-556, Q-
ship 558, Q-560, Q-562, Q-564, Q-566,
Register Q-568, Q-570, Q-577, Q-578, Q-
CBI Case No. 214/19 77 of 158
CBI vs. Srichand etc (Chanderlok CGHS)
581, Q-582, Q-585, Q-587
D- Application Q-842 TO Q-844, Q-846, Q-848, Q- 36 Form 850 TO Q-856, Q-858 to Q-860, Q-
62, Q-864, Q-866, Q-868, Q-870, Q-872, Q-874 to Q-876, Q-878 to Q-880, Q-882, Q-884 to Q-886, Q-
888 to Q-892, Q-894 to Q-896, Q-
898 to Q-900, Q-902 to Q-904, Q-
906, Q-907 D- RCS File Q-1908, Q-1909, Q-1912, Q-1913, 13 No.47/508/ Q-1928, Q-1929, Q-1934 to Q- GH/ Comp 1937, Q-1944 & 1945, Q-1436, Q-
1437, Q-1439, Q-1440, Q-1442, Q-
1443, Q-1445, Q-1446, Q-1448, Q-
1449, Q-1451, Q-1452, Q-1454, Q-
1455, Q-1457, Q-1458, Q-1460, Q-
1461, Q-1463, Q-1464, Q-1466, Q-
1467, Q-1469, Q-1470, Q-1472, Q-
1473, Q-1475, Q-1476, Q-1478, Q-
1479, Q-1481, Q-1482, Q-1484, Q-
1485, Q-1487, Q-1488, Q-1490, 1491, Q-1493, Q-1494, Q-1496, Q-
1497, Q-1499, Q-1500, Q-1502, Q-
1503, Q-1505, Q-1506, Q-1508, Q-
1509, Q-1511, Q-1512, Q-1514, Q-
1515, Q-1517, Q-1518, Q-1520, Q-
1521, Q-1523, Q-1524, Q-1526, Q-
1527, Q-1529, Q-1530, Q-1532, Q-
1533, Q-1535, Q-1536, Q-1538, Q-
1539, Q-1541, Q-1542, Q-1544, Q-
1545, Q-1547, Q-1548, Q-1550, Q-
1551, Q-1553, Q-1554, Q-1556, Q-
1557, Q-1559, Q-1560, Q-1562, Q-
1563, Q-1565, Q-1566, Q-1568, Q-
1569, Q-1571, Q-1572, Q-1574, Q-
1575, Q-1577, Q-1579, Q-1580, Q-
1582, Q-1583, Q-1585, Q-1586, Q-
1588, Q-1589, Q-1592, Q-1594, Q-
1595, Q-1597, Q-1598, Q-1600, Q-
1601, Q-1603, Q-1604, Q-1606, Q-
1607, Q-1609, Q-1610, Q-1612, Q-
1613, Q-1615, Q-1616, Q-1618, Q-
1619, Q-1621, Q-1622, Q-1624, Q-
1625, Q-1627, Q-1628, Q-1630, Q-
1631, Q-1633, Q-1634, Q-1636, Q-
1637, Q-1639, Q-1640, Q-1642, Q-
1643, Q-1645, Q-1646, Q-1648, Q-
CBI Case No. 214/19 78 of 158 CBI vs. Srichand etc (Chanderlok CGHS) 1649, Q-1651, Q-1652, Q-1654, Q-
1655, Q-1657, Q-1658, Q-1660, Q-
1661, Q-1663, Q-1664, Q-1666, Q-
1667, Q-1669, Q-1670, Q-1672, Q-
1673, Q-1675, Q-1676, Q-1678, Q-
1679, Q-1681, Q-1682, Q-1684, Q-
1685, Q-1687 Q-1688.
have been appended by accused Anna Wankhede (A-2).
261. PW-75 Sh. Sushil Kumar Sharma though was declared hostile by the prosecution, however, his testimony is relevant to connect accused A-1 Srichand with co-accused Sh. Anna Wankhede (A-2) and Sh. K.A. Kanekar (A-3) (since deceased) and to show that they all were working in connivance with each other.
262. PW-75 testified that he knew accused Srichand who was having his office initially at D-43 Kondli Village, and lateron shifted to 304A, Pocket C, Mayur Vihar, Phase-II, Delhi, and that accused Anna Wankhede (A-2) alongwith some other persons was also working with Srichand (A-1) there in the said office, and work related to Cooperative Housing Societies was being done in the office of accused Srichand (A-1).
263. Similarly, PW-78 Sh. Mohan Lal, who was an associate of accused No.1 Srichand, though did not support the case of the prosecution in entirety, but he also deposed to the fact that accused Anna Wankhede (A-2) was an employee of accused Srichand (A-1) , and accused Srichand used to do work related to the Cooperative Housing Societies at his address in Mayur Vihar, Phase-II, Delhi.
CBI Case No. 214/19 79 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
264. Implying thereby that accused Anna Wankhede (A-
2) and accused K.A. Kanekar (A-3) were working in-tandem and under the instructions of A-1 Srichand wherein the work of the different Societies was being carried out by them.
265. As noted above, the testimony of GEQD Expert also strengthen the said fact wherein it can be seen that almost entire record of the Society was initially fabricated under the signatures of accused Anna Wankhede (A-2), and he was working in concert with accused Srichand (A-1) to achieve their motive. Therefore, the complicity of the accused A-1 and A-2 in preparing and fabricated the forged records of the Society at hand is established beyond any iota of doubt.
266. Further, it is evident from the Notings of the officials of the RCS that accused A-2 & A-3 alongwith Sh. Surender Pratap, the then Secretary had appeared before the RCS Office with these false records of the Society claiming it to be a genuine record to get the Society revived with the object to seek land from DDA at concessional rates.
267. Sh.Surender Pratap the then Secretary of the Society, whose presence is marked with his signatures in the official record, had also specifically appeared before A-10 on different dates i.e. 08.10.2001, 09.10.2001, 05.11.2001 and 07.11.2001 amongst others, with the original records of the Society.
268. And, thereby a false report was got prepared by A-10 in the presence of Sh. Surender Pratap, Secretary of the Society, stating to have cross-checked and verified the original records so produced with the official records, which infact was an incorrect CBI Case No. 214/19 80 of 158 CBI vs. Srichand etc (Chanderlok CGHS) statement, reflecting the complicity of accused A-1, A-2 & A-3 with accused A-10 Ramesh Chander, the then Assistant Registrar, and premised on the said positive report when the revival order was passed by (A-8) the then Registrar, RCS.
269. Now coming to the case of Accused Ashok Johri (A-5)
270. The main allegations against accused A-5 are that he also malafidely fabricated the records of the Society, and huge amount was also withdrawn from the accounts of the Society on his behalf, which thereby reflects that he was also part of the conspiracy with other co-accused persons.
271. In support of their case against this accused (A-5), prosecution has heavily relied upon the testimony of GEQD expert, wherein in terms of the opinion so furnished, A-5 has been attributed with the authorship of the Election proceedings / Meetings of the Society in the Register ( D-10) so maintained and used subsequently thereafter before the concerned authorities.
272. In terms of the opinion given by PW-85 Mr. Bhosle and proved on record vide Ex PW85/3, the proceeding register (D-10) of the Society was in the handwriting of accused Ashok Johri (A-5) when questioned writings thereto were analyzed with his specimen writings from S-208 to S-220.
273. Pertinently, in terms of the statement made under section 313 Cr.P.C, accused Ashok Johri (A-5) himself is not disputing the work/writing the proceedings of the Society so done by him.
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274. But it is his plea that he was a part time Steno-Typist working with accused S.P.Saxena (A-4), and the typing work and other official work of the Society was done by him on remuneration basis, as per the instructions and/or the dictations given by accused Sh.S.P.Saxena without having any real knowledge or malafide intention or being involved into the affairs of the Society in any manner whatsoever.
275. The defence so taken by the accused Ashok Johri finds support from the testimony of one of the main witness namely Ms. Kavita Sharma examined as PW-57.
276. She was working as a Receptionist in the office of accused S.P.Saxena (A-4 ) at Madhu Vihar, and she testified that accused A.K.Johri (A-5) alongwith other accused Mohit Saxena, Sanjay Kapasia, and one Sh. Sonu Gupta ( not accused here/nor witness here ) used to work in the office of accused S.P.Saxena (A-4 ) at that time.
277. It may be noted that besides the allegations of him (A-5) writing the proceedings in the Register of the Society, there is absolutely no other allegation of any nature qua his role in the affairs of the Society ; nor was he shown as a member of the Society at any point of time. In fact no role has been attributed to him in the entire case besides writing the proceedings register of the Society concerned.
278. And, importantly the said proceeding register (D-
10) is of the period 23.12.2002 to 18.08.2004, a period subsequent to the revival of the Society and forwarding the freeze list to DDA for allotment of land.
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279. Therefore, merely because he was working as a Steno/Typist in the office of the main accused Sh. S.P.Saxena (A-4) and doing the work as dictated and/or assigned, is by itself not sufficient to attribute him the role of a co-conspirator ; or to say that the records were fabricated by him in conspiracy and in- connivance with accused Srichand (A-1), Anna Wankhede (A-
2) and/or Sh. S.P.Saxena (A-4) or with any other accused for that matter, in absence of any other supportive material thereto.
280. Nextly, in terms of the statement of the account of the Society maintained with PNB for the period 24.03.2003 to 09.05.2005 duly proved on record exhibited as ExPW96/1, supported with certificate u/s 65B of Evidence Act and under Section 2A of Banker's Books Evidence Act Ex PW96/2 and Ex PW96/3 respectively, and relied upon by the prosecution reflects that :
281. the disbursement pattern mostly of Rs. 4000/ and/or Rs. 5000/each month, except one entry of Rs.15,000/ in the month of March, 2005, into the account of A.K.Johri (A5) is being given as a renumeration for the work done by him, and is indicative of his status as an employee of accused S.P.Saxena (A
4).
282. This fact further strengthen the case of accused A.K.Johri (A5) viz-a-viz that he was an employee or may be associated with the office of accused S.P.Saxena (A-4) and was being paid for his services so rendered from the account of Society concerned.
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283. Drawing the inference, it may be also noted that the prosecution witness PW-57 Ms. Kavita Sharma, heavily relied upon by the prosecution, was also paid a monthly salary/ remuneration in the said pattern of Rs. 3000/- each month from the account of the Society, which is evident from the account exhibited above, and pertinently she has been cited as a witness in the present case. Can she be also said to be part of the conspiracy just for being employed and doing miscellaneous work in the office of accused S.P.Saxena (A-4 ) ?
- I would say No.
284. The test is that of mens-rea and consensus-ad-idem which is lacking here in the case of accused Ashok Johri (A-5).
285. Going a step further, even mere knowledge on the part of a person is not sufficient to say that he was part of the conspiracy. Implying thereby, merely because the proceedings in the register were written by A-5 is not sufficient to arrive at a conclusion of him being part of the conspiracy with co--accused persons in absence of requisite mens-rea to commit the crime, an essential component of criminal jurisprudence.
286. Further, there is also nothing on record in the form of documentary or oral testimony to say that accused A-5 had impersonated any person as a member of the Society or in any other capacity before any authority and /or in the proceedings of the Society so fabricated thereto.
287. It is alleged that A-5 had deposited large sum of money into the account of Chanderlok Group Housing Society.
The original cheque(s) Ex.PW103/2 (colly.) especially dated CBI Case No. 214/19 84 of 158 CBI vs. Srichand etc (Chanderlok CGHS) 06.01.2005, 27.01.2005 and 09.02.2005 have been signed under the signatures of one Sh. Ashok Kumar Johri as its 'President' and by the 'Secretary' ( name not mentioned nor can be deciphered only signatures in short are appended ) of a different Society by the name 'Vasundhra Cooperative Group Housing Society'.
288. But the fact remains, the prosecution has failed to produce any thing on record to show who all were the members of the Management Committee of said 'Vasundhra Cooperative Group Housing Society.' at the relevant point of time.
289. Nor the said signatures/writings on the aforesaid cheques of the aforesaid Society in the name of Ashok Kumar Johri, reflecting signed as 'President', were sent for GEQD analysis to connect accused A-5 with the forgery, if any committed thereto.
290. Thereby, no incriminating circumstances can be inferred from the aforesaid cheques against A-5, except to say that he was, or may be since not proved, was acting as a 'President' of 'Vasundhra Cooperative Group Housing Society', and he may be liable for any illegality in the case of the said Society pending adjudication, if any, but the said cheques are of no assistance to the case of the prosecution against the accused A-5 herein in the given facts and circumstances.
291. Appreciating the above facts and circumstances, it is difficult to say that A-5 was part of the conspiracy so hatched or had played any active role in pursuance to that.
292. Benefit of doubt thereby needs to be given to accused A-5 qua his complicity in the present case. Charges CBI Case No. 214/19 85 of 158 CBI vs. Srichand etc (Chanderlok CGHS) against him accordingly stands not proved.
293. Taking the case of the accused persons namely Sh.Narain Diwakar (A-8), Sh. Satish Singh Aswal (A-9), Sh. Ramesh Chander (A-10, since expired ) and Sh. Rameshwar Dayal (A-16) working in the office of RCS at different posts at the relevant time :-
294. Accused ( A-8 ) was the Registrar RCS who finally passed the revival order of the Society on the basis of the Notings of the officials concerned .
295. Accused (A-9) was the dealing Assistant who had prepared the initial note for revival of the Society in question ;
296. Accused (A-10) was the Assistant Register South who had submitted the verification record of the Society on the note(s) prepared by A-9 and in terms of the directions issued by A-8 in his revival order.
297. Accused (A-16) was working as inspector Grade II and had endorsed the note by A-9 and A-10 by signing the same.
298. The allegations against all of them are almost similar to the fact that they all acted malafidely pursuant to the criminal conspiracy, and/or abused their position(s) as a public servant and got the Society revived on the basis of false and forged documents.
299. Prosecution has examined PW53 Sh. Syed Shamsher Ali Ahmad, LDC in the Office of Registrar Cooperative Societies to prove the Notings/records of RCS of the relevant period ; also the signatures of Sh. Narain Diwakar, CBI Case No. 214/19 86 of 158 CBI vs. Srichand etc (Chanderlok CGHS) RCS at point A1 to A5 on the records including the revival order dated 01.11.2001 at point A on Ex PW53/2.
300. PW53 further identified the signatures of accused Sh. Ramesh Chander (Assistant Registrar) at point B1 to B6 on Noting file ( D14 ) and on letter dated 20.11.2001 addressed to AR Policy (D33 page no. 16) Ex PW53/3.
301. The aforesaid Noting file is an official record of the RCS Office which has not been disputed by the aforesaid accused persons. Their plea is that they had performed their duties diligently and honestly in the normal course of their official functions, and the file of the concerned Society was processed as per the documents so received from its office bearers at the relevant time.
302. Learned PP submitted that Sh. Surender Pratap was a ''bogus person'' and his presence was deliberately marked by the officials of the RCS to complete their proceedings/records which shows that the file was processed malafidely by the accused persons in furtherance of the conspiracy so hatched to revive the Society on forged documents.
303. Whereas, the counsel for accused persons submitted that prosecution has miserably failed to prove the fact that Sh. Surender Pratap was a "bogus person", or that accused persons had knowledge about the forgery of the records, if any, and thereby the case of the prosecution can not stand against them in the given facts and circumstances.
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304. The entire case of the prosecution qua these accused primarily hinges upon the issue whether Sh.Surender Pratap shown as a 'Secretary' of the Society concerned and had allegedly appeared before the RCS officials number of times is a fictitious person ?
305. Prosecution have examined two witnesses namely PW93 Sh. Ajit Singh and PW105 Sh. Javed Siraj IO of the case, in support of this issue to prove the fictitious/bogus identity of Sh. Surender Pratap. But in my considered opinion the testimony of these two witnesses fails to elicit any gainful fact to show that Sh. Surender Pratap is a 'bogus' person.
306. PW93 produced the details of the Staff Quarters of CPWD Ex PW93/1 to show that no quarter with address furnished in respect of Sh. Surender Pratap existed as per official records. And I may say that merely because the address does not exists or a false address is mentioned in the record is not itself sufficient to infer that the person is an imaginary, nonexistent or to say a bogus identity.
307. Further, during his crossexamination PW93 admitted to the fact that the aforesaid document Ex PW93/1 was not prepared in his presence ; he had received the same alongwith the records from the previous Junior Engineer, and that he had no personal knowledge about the official flats mentioned in the said document.
308. Thereby, the testimony of PW93 is of no relevance, CBI Case No. 214/19 88 of 158 CBI vs. Srichand etc (Chanderlok CGHS) neither to prove the fact that the address/flat does not exists nor to say that Sh. Surender Pratap was an imaginary person.
309. The testimony of PW105 Sh. Javed Siraj may also be noted in that regard, wherein he admits that besides giving a notice to the department concerned/CPWD to verify the factum of the address, no other investigation was carried out by him to show the nonexistence of Sh. Surender Pratap or to show that he was a 'bogus person'.
310. IO also admitted to the fact that he did not inquire from the CPWD when the government flats at Sector 12, R.K. Puram were numbered or renumbered.
311. The inquiry from the concerned department regarding employment of Sh. Surender Pratap, if any, was also not undertaken by the IO for reasons unexplained.
312. Pertinently, IO admitted that his entire conclusion that Sh. Surender Pratap is a non existent person is based only on the fact that "I had sent a notice under section 160 Cr.P.C addressed to Sh. Surender Pratap r/o G5, Sector 12, R.K.Puram, New Delhi which is a government flat owned by Estate Officer, CPWD. In response to this notice, the CPWD had written to me that there is no such flat no. G5, Sector 12, R.K. Puram, It is on this basis that I conclude that Surender Pratap is a nonexistent person.
313. Further, during crossexamination about his investigation from the previous management of the Society of the CBI Case No. 214/19 89 of 158 CBI vs. Srichand etc (Chanderlok CGHS) year 1981 regarding existence of Sh. Surender Pratap, IO stated that all the members of the Management Committee of the said year had already expired by that time.
314. But come next question, he was doubtful about the existence of other persons who were the office bearer of the said Society in the year 1981 i.e. namely S/Sh. Om Parkash, Dhanwar Singh, Daya Nand, Nirmal Singh, Laxman Singh, Sukhbir Singh, Abdul Sattar, Sohan Sharma, Jai Singh and Dharam Pal, or whether they had expired before commencement of the investigation of this case, raising serious doubt over the investigations so carried out by the IO qua the nonexistence of Sh. Surender Pratap in terms of the stand taken by the investigating agency.
315. Further without venturing into the genuineness of his membership, as per records of the Society so produced, Sh. Surender Partap is shown as a member with Membership no. 72 and elected as 'Secretary' of the Society concerned in the year 08.05.1981.
316. It may also be noted that he had appeared number of times before the RCS officials as the 'Secretary' of the concerned Society during the proceedings undertaken by the then Registrar / Asstt. Registrar and other Officials of the RCS. His signatures are also appended at number of places on the Official Notings in the file of the Society maintained with RCS Office.
317. The said questioned signatures of him were also sent for analysis to the CFSL, and relevant to note, none of them were CBI Case No. 214/19 90 of 158 CBI vs. Srichand etc (Chanderlok CGHS) found matching with the specimen signatures of any of the accused persons here.
318. It can further be seen that Sh. Surender Pratap had also appeared before the 'Auditor' of the Society during its Audit and had signed at numerous places as a 'Secretary' alongwith accused Anna Wankhede (A2) and accused K.A Kanekar (A3) as 'President' and 'Treasurer' of the Chanderlok CGHS respectively, but no effort was made by IO to carry out investigation qua Surender Pratap on these aspects for the reasons best known to the IO.
319. Appreciating the testimony of PW93 and PW105 and the documents so produced on record in the name and under the signatures of Sh. Surender Pratap and his appearance noted before various government officials, this court does not find favour with the investigating officer to say Sh. Surender Pratap was a nonexistent person.
320. A similar instance of the IO may also be noted at this stage, wherein it is stated that Smt. Chander Prabha & Smt Kamlesh Kumari, shown as a member of the Management Committee of Chanderlok CGHS, are also 'bogus person' as per his investigation.
321. But IO Sh. Javed Siraj admitted in his cross- examination that the address of Smt. Chander Prabha & Smt. Kamlesh so mentioned were found not existing when some official was sent at their given addresses, and that thereby he concluded that they were the 'bogus person's, which I may state is CBI Case No. 214/19 91 of 158 CBI vs. Srichand etc (Chanderlok CGHS) a wrong assumption and conclusion based on surmises.
322. He was also quite evasive in the cross-examination on the direct questions put by the learned defence counsel to impeach his testimony to the effect that he even did not recollect the name of the person whom he had sent to aforesaid addresses nor the complete address(s) to which he was sent.
323. He did not even record their statements to that effect ; the report allegedly submitted by the said process server/person is also not made part of the charge sheet, thereby making it a hearsay evidence having no evidentiary value at all.
324. IO even admitted in his cross-examination that there is no document or any material annexed with the charge sheet to show that Smt. Chander Prabha or Kamlesh were a 'bogus person'.
325. Whereas, Sh. Mohan Lal (PW78) deposed to the fact that his wife Smt. Har Pyari is also known as Smt. Kamlesh and that she had not taken the membership of the concerned Society, contradicting the stand taken by the Investigating Officer.
326. Additionally, defence via testimony of DW3, Ahalmad of the Court, also produced a copy of charge sheet filed by CBI vide FIR no. RC-6(S)/2006/CBI/SCB-II/DLI dated 13.07.2006 titled as CBI Vs. Srichand & Ors (Sri Chitrakoot CGHS), wherein a person by the name of Sh. 'Surender Pratap' is shown as its member and actively involved into the affairs of the said Society and is stated to have expired prior to filing of the CBI Case No. 214/19 92 of 158 CBI vs. Srichand etc (Chanderlok CGHS) charge sheet in terms of the final report submitted by the investigating officer.
327. And interestingly, most of the accused in the present case namely Srichand, Anna Wankhede and K.A. Kanekar, are also accused in the aforesaid case of Sri Chitrakoot CGHS.
328. No effort seems to have been made by the IO to match the handwriting and/or the signatures of Sh. Surender Pratap thereto with the other one so mentioned in the Society of Sri Chitrakoot CGHS.
329. The stand taken by the prosecution herein seems to be have been belied by the investigation so carried out by the IO and the statements made in the aforesaid case of Sri Chitrakoort CGHS.
330. It was convenient for the investigating officer to label a person as bogus without carrying out actual and proper investigation in that regard. A Cutshort method approach seems to have been adopted by the IO to conclude his investigation.
331. I may add that investigation on the said aspect qua identification of Sh. Surender Pratap is carried out in a very callous and cursory manner without making any efforts to trace him or to establish his identify, or may be intentionally to give benefit to him.
332. On the contrary, the defence has demonstrated that by all possibilities Sh Surender Pratap was an existing person, who was also involved into the affairs of other Society by the name Sri Chitrakoot CGSHS and had expired during the CBI Case No. 214/19 93 of 158 CBI vs. Srichand etc (Chanderlok CGHS) investigation of the case.
333. The forgone discussion highlights the fact that the conclusion so arrived by the IO is totally based upon frivolous presumptions, without carrying out proper and necessary investigation in that regard.
334. So, the contention of the prosecution here to say that accused Sh. Surender Pratap was a bogus identity does not inspire the confidence of the Court. The prosecution has miserably failed to prove that Sh. Surender Pratap was a non existent person.
335. Now, keeping the finding in mind that Sh. Surender Pratap was not the 'bogus person', the Note(s) so prepared by the accused persons (A9, A10 and A13) and the order of the revival passed by accused A8 may be looked into to see if any malafide or fraudulent intention can be attributed to their acts.
336. First taking the case of A9 Sh. Satish Singh Aswal, dealing Assistant who had put up the Note from page no.11/N to 14/N (D14) in the RCS file for sympathetic consideration for the revival of the Society Chanderlok CGHS.
337. The Note so put by A9 simply narrates the facts of the Society regarding the request received from the 'Secretary' of the Society for its revival. Thereafter past aspect of the registration of the Society is stated. It talks about notice under Section 63 of DCS Act, 1972 and the grounds mentioned therein. Then about the liquidation order dated 25.11.1987 vide which the CBI Case No. 214/19 94 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Society was put under liquidation, and appointment of Sh Vijay Kumar as Liquidator of the Society.
338. The Note further mentions about a request letter dated 07.09.2001 received on behalf of the 'Secretary' Sh. Surender Pratap seeking the revival of the Society and the clarifications, so put forth by the Society thereafter.
339. It states about the documents submitted by the Society in terms of the list so mentioned at page no. 12/N and page no. 13/N, and further the names of the elected members of the Management Committee elected unanimously in the GBM dated 02.09.2001 as per the records submitted on behalf of the Society.
340. It also mentions about the dispatch of the winding up order to the Society at its old address, and that the Society thereafter had changed the aforesaid address to 128 Vinoba Puri, Lajpat Nagar, New Delhi24, as per GBM dated 15.06.1996 ; and a copy of UPC dated 18.06.1986 placed (at 116/C ) vide which the said fact was communicated to the RCS Officials in terms of the records so produced by the Society.
341. Learned PP contended that the said UPC was a forged document and no such intimation was ever given by the Society to the RCS Officials and the said fact was deliberately wrongly mentioned by A9 in connivance with coaccused.
342. But the prosecution has failed to prove that the said UPC was a false and forged document or that it was never CBI Case No. 214/19 95 of 158 CBI vs. Srichand etc (Chanderlok CGHS) dispatched from the concerned Post Office, nor that the address of Vinoba Puri was a false address of the Society. Moreover, it was A10 who in terms of the notings of the RCS file had verified the original records of the Society.
343. IO of the case admitted during his crossexamination that he had not seized any document from the post office in the present case. He stated that he was not able to recall whether any dispatch register was taken from the RCS Office ; or, whether liquidator Sh. Vijay Kumar was examined ; or, whether any investigation on these aspects regarding the records of the post office or of the Society was carried out.
344. IO in the cross-examination admitted to the fact that he had not seized any document from the post office in relation to this case and that he was no able to recollect whether any dispatch register was seized from the RCS Office.
345. He was not able to recollect whether UPC receipt had been annexed with the revival application. In fact, he was not able to recall whether he had conducted any investigation on the said UPC to ascertain whether it was a genuine document or whether the postal article covered under the said UPC was received in the RCS Office or not.
346. The testimony of the IO itself reflects that no investigation at all was carried out by him on the aspect of falsity of the UPC.
347. IO seems to be deliberately taking the aid of short memory not to answer the specific and direction questions put to CBI Case No. 214/19 96 of 158 CBI vs. Srichand etc (Chanderlok CGHS) him as he knew that no investigation was done by him on these material aspects, which certainly reflects great lacuna in the case of prosecution.
348. Further, PW55 Sh. S.K. Panchal was appointed as Inquiry Officer to conduct an inquiry of the Chanderlok CGHS in terms of Section 55 of the DCS Act. He was examined and during his testimony he deposed that he had sent a notice to produce the record of the aforesaid Society at the address i.e. 81 Adchini, Main Mehraulli Road through registered post and no response was received in pursuance thereto.
349. PW55 had also physically conducted the inquiry and found that the said Society was not existing at the aforesaid address of Adchini, mentioned therein in terms of his testimony and report Ex PW55/1 and Ex PW55/3, which proves the fact that the Society was not functioning at its registered address of Adchini in the year 1987, which was mentioned in the records at the time of its registration. Implying thereby, the Society by that time i.e. in the year 1987, when PW55 visited there, had changed its official/registered address to some other place.
350. It to a great extent supports the defence of the accused persons that no Society was existing at 81, Adchini at the given time and it had shifted its address to 128, Vinoba Puri, Delhi in the month of June, 1986.
351. It can be seen that the facts narrated by accused Mr. Satish Singh Aswal (A9) in his Notings simplicitor talks about the inception of the Society and various proceedings/meetings CBI Case No. 214/19 97 of 158 CBI vs. Srichand etc (Chanderlok CGHS) that had taken place, and importantly the factual aspect is also taken from the documents and other records which was submitted on behalf of the Society.
352. There are no allegations of any nature to say that accused Satish Singh Aswal had himself prepared any false document, or had recorded any information which was not available in the records of the Society submitted to him for his perusal.
353. Simply just because a Note was prepared by him is not sufficient to attribute any illegality or malafides on his part to say that it was done in pursuance to a conspiracy with other co accused.
354. A Note for sympathetic consideration is also not in my considered opinion sufficient to impute any illegality or criminality or an act with an ulterior motive, more the so, when the final authority to consider the application for revival of the Society and to approve its revival was with the Registrar, RCS Officials. And there is nothing on record to indicate that A9 had exerted any kind of influence upon the Registrar (A8) at the time of passing of the Revival Order of the concerned Society.
355. Records of the Society so produced before the RCS Officials reflects that the address of the Society was changed to Vinoba Puri, Delhi.
356. Learned PP contended that the said address of the Society was a false address and the Society was also not CBI Case No. 214/19 98 of 158 CBI vs. Srichand etc (Chanderlok CGHS) functioning at the said address of Vinoba Puri Delhi.
357. He has relied upon the testimony of PW50 Sh. Ved Parkash @ Varun Khanna, who stated that House No.128, is a three storeyed constructed house ; first floor was sold by his father somewhere in the year 1980's and was not able to recollect the exact year ; ground and 2nd floor was in the occupation of his family till 2016. He stated that he had never heard of Chanderlok CGHS nor had he seen office of any Society in his house at any point of time.
358. But in the crossexamination, he himself is admitting to the fact that he was settled in Mumbai since 1981 and was not even aware of any search conducted by the CBI at his premises, nor was he aware about the official work of Mr. Batra who was residing on the first floor of the house.
359. So, it is apparent that PW50 was not the permanent resident or to say occupant of the aforesaid House No.128, Vinoba Puri, Delhi, nor was he having any personal knowledge about its occupants and their professional work/functions etc. Thus, this witness does not prove any fact to say that Chanderlok Society was not being run, or any meeting / any proceedings of it had not taken place at the given address at any point of time in light of the fact that he himself was not the permanent resident/ occupant of the said place during the relevant period.
360. The testimony of PW50 is of no assistance to the case of prosecution to say that the address of 128, Vinoba Puri, Chanderlok CGHS was a false address of the Society, if at all.
CBI Case No. 214/19 99 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Besides that there is no witness on this aspect. Thereby, the fact that Society was not having its official address at Vinoba Puri remains not proved by the prosecution.
361. Further more, nothing has come on record that accused A9 has derived any undue advantage or financial gain to himself in the entire series of transactions.
362. In totality of the facts and circumstances, as discussed above, no criminality or legality can be attributed to the act of accused Mr. Satish Singh Aswal (A9) and accordingly, he is entitled to be given benefit herein.
363. The case of accused Sh. Rameshwar Dayal (A16)
364. In terms of the alllegations against the accused Sh. Rameshwar Dayal (Inspector GradeII), is stated to have signed the Notes prepared by coaccused Satish Singh Aswal on 08.10.2001 and 09.10.2001 in that regard, and thereafter again on 05.11.2001 & 07.11.2001, wherein Sh. Surender Pratap is shown present with the original records of the Society and his signatures are also taken on the Noting sheets of the RCS office.
365. It is stated by the learned PP that the signatures so affixed by A16 were in pursuance to the conspiracy, as Sh. Surender Pratap was an imaginery person, and the favourable note was thereby endorsed by him to give benefit to the accused persons related to revival of the Society.
366. As already discussed above with the findings by this Court that the prosecution has failed to establish that Sh. Surender Pratap was a nonexistent identity and the case of the prosecution on the said CBI Case No. 214/19 100 of 158 CBI vs. Srichand etc (Chanderlok CGHS) aspect is totally false and misleading.
367. Therefore, the primarily charge against A16 that he had malafidely endorsed the relevant notes wherein presence of Sh. Surender Partap is also noted can not be sustained in the given facts and circumstances.
368. In so far as his signatures on the Noting file is concerned, the same were affixed on the notes already prepared by A9 and A10, and except the signatures no role or any other act has been attributed to him in the entire series of proceedings as noted in the official file. A16 has not prepared even a single note concerning the Society in question.
369. Besides that, there is absolutely nothing on record qua his role into the present case, nor any investigation on other aspects have been conducted by the Investigating Agency to show his involvement in the case at hand or to show he derived any kind of benefit or undue advantage.
370. Simplicitor signing a Note in a routine manner put up by a subordinate official in discharge of his official duties, without even recommending anything on record, by no strech of imagination and /or rational basis can be said to have been done in pursuance to a conspiracy.
371. Prosecution thereby has failed to prove its case against accused Mr. Rameshwar Dayal (A16) in terms of the charges so levelled against him.
372. The case of accused Narain Diwakar (A-8).
373. The allegations against the accused (A-8) are that he being the Registrar of the Cooperative Societies passed a revival CBI Case No. 214/19 101 of 158 CBI vs. Srichand etc (Chanderlok CGHS) order of defunct Society dishonestly on the basis of false and fabricated documents without verifying the address of the Society and genuineness of its members, and ignoring the fact that Sh. Surender Pratap was a 'bogus person'.
374. The revival order dated 01.11.2001 passed by accused A-8 is not disputed by him. It was contended that the order was passed in discharge of his official duties in-exercise of the powers envisaged under Section 63(3) of the DCS Act, after checking the records of the Society so produced before him and considering the Notes/proceedings so put up by the subordinate officials.
375. It is stated that there was no ambiguity or illegality in the revival orders so passed by him and that the said order was never challenged by any person and thereby has attained finality, and this court can not sit in review over the said order in terms of the express bar imposed vide DCS Act and Rules.
376. Undisputably, there is no direct evidence to demonstrate the fact that the revival order was passed by accused A-8 in connivance with co-accused and/or pursuant to a conspiracy.
377. Ld. PP has referred to the revival order dated 01.11.2001 to state that it was passed in a mechanical manner without checking and verifying the original records, which implies that accused was hand-in-glove with other co-accused persons, and the revival order was so passed in furtherance of the conspiracy to give benefit to the accused persons.
378. I have carefully gone through the Noting(s)/ CBI Case No. 214/19 102 of 158 CBI vs. Srichand etc (Chanderlok CGHS) proceedings of the RCS Office from its Noting file (D-14) including the revival order passed by accused Narain Diwakar.
379. It can be seen that vide Noting(s) dated 14.09.2001, an application under Section 63(3) DCS Act, 1972 was received in the RCS Office, South Jurisdiction, on behalf of the 'Secretary' of the Society Sh. Surender Pratap.
380. A note in that regard mentioning the entire factual matrix of the Society and all other details of the proceedings/ affairs of the Society was prepared by accused Satish Singh Aswal (A-9) and forwarded to the concerned Asstt Registrar(s) Sh. Ramesh Chander (A-10, since deceased) for appropriate directions.
381. Thereafter, accused A-10 also prepared a Note dated 14.09.2001 detailing the facts vide which the Society was put under liquidation and the non-compliance of the liquidation order in terms of Section 105 of the DCS Act, in reference to the recommendations of accused A-9.
382. It may further be seen that thereafter in terms of Notings dated 08.10.2001 & 09.10.2001, Sh. Surender Pratap, alleged Secretary of the Society had appeared before accused A- 10 with the original records, who in-turn verified the records and cross-checked the same available with the file, and no ambiguity was noticed thereto.
383. The application was thereafter put up by accused A- 10 for consideration before the Registrar RCS Sh. Narain Diwakar (A-8) for appropriate action in that regard, and a notice in that regard was issued to the President/Secretary of the Society CBI Case No. 214/19 103 of 158 CBI vs. Srichand etc (Chanderlok CGHS) to appear before the Registrar with the original records of the Society for further consideration of the application.
384. It is important to note that when the proceedings were undertaken by Sh. Narain Diwakar (A-8), on dated 04.10.2001, Sh. Anna Wankhede (A-5) in the capacity of a 'President' alongwith accused Sh.Surender Pratap, alleged 'Secretary' and accused K.A. Kanekar, 'Treasurer' of the Society were physically present before him at the time of hearings on the application, which is evident from Page 15/N of the Noting file of RCS (D-14).
385. The proceeding(s) register and the membership book are also stated to have been produced before the Registrar (A-8) by the then Management of the Society at the time of hearing.
386. Relevant to note is the fact that all the three persons who had appeared before the RCS on behalf of the Society were duly shown its member, and also elected as President, Secretary and Treasurer of the Society respectively, as per the General Body Meeting/elections held on 02.09.2001, in terms of the original records of the Society so produced before the Registrar at the relevant point of time, there is no dispute to the said fact.
387. And pertinently, accused A-8 had specifically directed the file of the Society be sent to the concerned Zone with the directions to the AR concerned to verify the records and submit its report by next date i.e. 16.10.2001.
388. Pursuant thereto, the records of the Society are stated to have been again checked in original and cross-checked CBI Case No. 214/19 104 of 158 CBI vs. Srichand etc (Chanderlok CGHS) with the official records of the Society by accused Ramesh Chander (A-10, deceased) in terms of his Notings dated 11.10.2001, and the records were found to be in order.
389. Accused Ramesh Chander (A-10) further stated to have checked the records pertaining to meeting/elections held on 02.09.2001 and had found the said records in accordance with the provisions of DCS Act & Rules.
390. Accused A-10 further recommended for its revival subject to the condition of getting the un-audited accounts of the Society audited as per rules.
391. So, no fault can be attributed to the act of accused A-8 who had passed the orders after considering the verification reports and the relevant notes submitted by his subordinate officials.
392. The fault or the illegality in the entire process is the verification report of accused A-10 Sh. Ramesh Chander the then Asstt. Registrar (South) on whose affirmative verification report the revival order was passed by the Registrar Sh. Narain Diwakar (A-8).
393. This court is conscious of the fact that it is not exercising an appellate jurisdiction over the revival order passed by the Registrar, but confining itself to the aspect of malafide and dishonest intention, if any, on the part of the Register, the order dated 02.11.2001 was also gone through for the limited purpose in that regard, but in light of above discussion, no infirmity as such was noticed in the Revival Order to reflect any malafide or dishonest intention as such on his part.
CBI Case No. 214/19 105 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
394. - Further, there is nothing on record to show that there was any deviation in the process in which the application was forwarded, considered and approved by Registrar to impute any malafide intention on his part.
395. The contention of the learned PP that Sh. Surender Pratap was a 'bogus person' already stands dealt with and rejected herein above, in the earlier part of this judgment.
396. Learned PP further argued that accused A-8 had passed similar conditional orders in many cases of other Group Housing Societies handled by him and therefore reading the provision of Section 15 of the Evidence Act, the act of the accused can not be said to be accidental or intentional, and that it was done with a particular knowledge and intention to give benefit to the accused persons.
397. I do not concur with the submissions of the learned PP so advanced.
398. In terms of Section 15 of evidence Act the question of relevancy of a fact comes into only when the dispute is whether an act was accidental or intentional or done with particular knowledge or intention.
399. Herein the said question does not arise at all, as admittedly the revival order was passed by the Registrar in terms of his powers conferred under Section 63(3) of DCS Act.
400. Therefore, the question whether it was accidental or done with particular knowledge or intention is of no relevance to the facts of the case.
CBI Case No. 214/19 106 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
401. Nor simplicitor on that basis accused A-8 can be held guilty of committing any offence under IPC or P.C Act in absence of other incriminating material against him.
402. Further, the prosecution has also failed to produce any thing on record, in the form of independent evidence to show that any of the accused persons or any other person had met A-8 at any point of time, prior or even subsequent, to passing of the revival order in that regard, except in terms of the presence so marked at the time of the proceedings conducted for revival of the Society.
403. Nor is there is anything on record to indicate that any financial advantage was derived by A-8 by the said act. There is absolutely no investigation on the said aspect.
404. Nor is there any thing on record to show that any preference over others was given to the Society in question by A- 8, in terms of the Notification dated 08.08.2000 vide which RCS had ordered to submit all the pending applications for the revival of the defunct societies to himself.
405. Nor it is the case that the case of any defunct Society was ever rejected by Registrar (A-8) during his tenure while exercising his powers in terms of Clause (3) of Section 63 of DCS Act.
406. It is also far fetched an arguments to conceive that Registrar RCS was expected to personally and physically visit the office of the Society to verify its records or to call up each member of the Society for its verification. And argument by learned PP in contrary to that does not find favour with the Court.
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407. And more importantly, the identity of the so-called management of the Society who had appeared before the Registrar Cooperative Society is not disputed (except the case of Sh. Surender Pratap as discussed above ) to say not established.
408. Further, there is also nothing on record to indicate that accused Sh. Satish Singh Atwal (A9), Sh. Ramesh Chander (A10), Sh. Rameshwar Dayal (A16) and accused Sh. Narain Diwakar (A8) had any prior concert in that regard or was there any meeting of mind between them in that regard during this period, prior or thereafter, when the application for revival was received and final order was passed by accused Sh. Narain Diwakar (A8) vide order dated 01.11.2001.
409. Non compliance of some provisions of the DCS Act on behalf of the society and which could have been noticed had he been more vigilant is not itself sufficient to attribute mens-rea to him under the criminal jurisprudence.
410. There is thus no overwhelming and glaring fact to show that A-8 had abused his official position or that the 'revival order' of Society was passed in furtherance of any conspiracy with co-accused persons.
411. Thereby, drawing any inference of dishonest intention and conspiracy from the stand alone act of accused A8, in absence of other evidence, would not be a safer proposition in the facts of the present case, and accused Narain Diwakar (A8) is entitled to benefit accordingly.
412. The role of accused P.K.Thirwani (A7).
CBI Case No. 214/19 108 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
413. It is alleged that accused P.K. Thirwani (A7) was appointed as Auditor in the present case to conduct the Audit of the Society, and he also dishonestly and fraudulently conducted the Audit of the Society from the period 19801981 to 20002001 without visiting the Registered Office of the Society which was mandatory in terms of the DCS Act & Rules, and submitted a favourable Audit report to assist the accused persons.
414. PW46 Sh. Dharambir Singh was examined by the prosecution to prove the Audit report of Chanderlok CGHS submitted by accused P.K. Thirwani (A7) and his signatures appearing on it Ex PW46/1 (D12 at page no. 7/C to 15/C) at point A.
415. The Audit report ExPW46/1 and his signatures are not disputed by accused Mr. Thirwani even otherwise.
416. The only question that arises for consideration is whether the Audit report submitted by Mr. Thirwani is a false and/or whether just because Mr. Thirwani did not visit the official address of the Society would make him a coconspirator in the present case.
417. In so far as, the Audit Report of the Society is concerned, the same was prepared as per the documents and other records of the Society furnished by the then management in terms of the elected representatives of the Society. The same management had also appeared before the RCS Officials at different stages when the file for revival was processed.
CBI Case No. 214/19 109 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
418. The report as submitted by A9 was also pursuant to the directions passed by the Registrar, RCS at the time of revival of the defunct Society to get the audit of the Society done for the year 19801981 to 2001, and which as evident from the Audit report has been prepared separately for each year indicating the Income and the Expenditure account at the end of each successive year.
419. The list of the members of the Society are also mentioned alongwith the balancesheet as per ledger and bank statement of the concerned Society so furnished before him by the Management.
420. The audit of each year so carried out by accused (A
9) is also duly signed by the members of its management, who were elected representatives in terms of the records of the Society.
421. No foul play can be noticed in the said Audit Report which appears to have been prepared as per the records submitted to the Auditor by the then Management of the Society.
422. Learned PP had argued that accused (A7) had not visited the Registered Office of the Society alleged to be at Vinoba Puri, and that it was a false address in terms of the investigation carried out by the IO.
423. It is stated that had he (A7) visited the said office, he would have come to know that no Society was functioning from there and the records of the Society were false, and thereby, CBI Case No. 214/19 110 of 158 CBI vs. Srichand etc (Chanderlok CGHS) fabrication of the records carried out by coaccused persons would have been noticed and come to light, and that he deliberately submitted a false report.
424. I do not agree with the contentions of the learned PP. It is too hypothetical and assumptive, premised on number of variables infused with if's and but's, and does not lead to any inference that the Auditor was acting in connivance with co accused persons. The arguments of the prosecution to that extent is based on surmises and conjectures.
425. Nextly, it was stated by learned PP that in terms of the rule 84(5) so notified under the DCS Act, it is mandatory for an auditor to conduct the audit of the Society at its registered address with the exception to specific directions by the Registrar thereto.
426. The said rule noted. But at the same breath, the prosecution has failed to highlight any Rule or Provision of the DCS Act to state if the Audit report is prepared without visiting the registered office it is a sham or a false document liable to be rejected at threshold, or to say that it tantamounts to an illegal act. It may be an infraction of a rule but to bring it within the ambit of criminal act would be stretching it too far to be justified on legal principles.
427. Moreover, it can be seen from the Audit report Ex PW46/1 (D12) that accused (A7) has not only given correct factual position of the Society in terms of the documents so submitted to him, but has also given suggestions and necessary CBI Case No. 214/19 111 of 158 CBI vs. Srichand etc (Chanderlok CGHS) objections highlighting the short comings and irregularities qua noncompliance of DCS Act and Rules.
428. The Audit report ExPW46/1 so submitted by A7 can not be said to be dehors the record of the Society and can not be termed as a 'false report' in terms of Section 464 of the IPC.
429. It was further contended by the learned PP that A7 had carried out the Audit of the Society without any prior permission of the RCS officials.
430. But it may be noted that the Audit was carried out pursuant to the directions of the Register (A8) passed at the time of revival of the Society and the Report submitted thereafter by A7 was never objected to by any of the dealing officials of the RCS. Nor any evidence is led by the prosecution on this aspect.
431. On the contrary, in terms of Auctioncum Appointment Letter for conducting Audit dated 04.06.2003, the report submitted by accused (A7 ) was duly approved by the then AR (South) on 06.06.2003 under his signatures. Therefore, now it does not lie on the part of the prosecution to say that the Audit was without approval of the competent authority.
432. Substantive charges under Section 13(1)(d) r/w 13(2) of P.C. Act were also framed against the accused P.K. Thirwani.
433. Before proceeding further, it may be noted that absolutely no evidence has been led by the prosecution to say CBI Case No. 214/19 112 of 158 CBI vs. Srichand etc (Chanderlok CGHS) that Mr. Thirwani had obtained any valuable thing or pecuniary advantage either to himself or to any other person.
434. The duties of the Auditor are to check the financial statements and viability of Society/Company or an Organization. He is not expected to don the hat of an investigating officer and embark upon investigative journey to find out the genuineness/ fakeness of the members of the Society ; more the so, when there was nothing suspicious in the records and the order was passed by the competent authority to audit the records of the Society for the given period.
435. The Auditor was simply required to telly the accounts ledger books, bank statements, liabilities, expenditure, assets and other financial related issues of the Society.
436. In the given facts, simply because, at later point of time the forgery of the records of the Society was discovered, A7 cannot be fastened with the criminal liability on the allegations of him not visiting the registered office of the Society, or to say, his acts were motivated by extraneous considerations, or to say that he was also part of the conspiracy vide which the records were fabricated and Society was revived.
437. His act of not visiting the registered address of the Society has no relation with the offence of forgery of the records, nor has any bearing on the subsequent acts vide which the file of the Society was forwarded to DDA for allotment of land. In light thereof he is entitled to be given benefit against the charges pressed against him.
CBI Case No. 214/19 113 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
438. Now the case of accused Kishore Kumar Aggarwal (A11), Rajat Verma (A12), Rohit Saxena (A6) and Sanjay Kapasia ( A14) is taken up together as they were working as President/ Secretary / Treasurer at the relevant period of Chanderlok CGHS.
439. Allegations against these accused persons are also similar to the effect that they accepted forged and fabricated resignations of members including that of some Promoter members and Other bogus members being the office bearer as President, Secretary and Treasurer of the Society at different times.
440. Further that they also opened the bank account of the Society with UTI bank exhibited as Ex.102/1(colly.), with PNB, Patparganj Branch Ex.83/1 & 83/2 ( Colly.), and with Nainital Bank Ex. 82/1 & 82/2 (colly.), and took loan from Delhi State Cooperative Housing Society allegedly showing a false address of the Society.
441. It is stated that they were also part of the conspiracy with other coaccused persons and the acts attributed to them were done in furtherance of the conspiracy to seek land from DDA.
442. Perusal of the proceeding registers (D9 & D10) reflects that accused Sh. Kishore Aggarwal (A11) and Rajat Verma (A12) were acting as Office bearers of the Society as 'Executive Member' and 'Secretary' respectively in the meetings CBI Case No. 214/19 114 of 158 CBI vs. Srichand etc (Chanderlok CGHS) held on 22.01.2003, 06.02.2003 & 07.04.2003, in which 17+13+4 (34) false resignations of the Promoter members and other bogus members were accepted consecutively.
443. Out of which prosecution have examined four witnesses namely PW3, PW7, PW37, PW44 in support of their case to show the falsity of the resignation letters.
444. Regarding other ten alleged members out of 45, witnesses have been examined to state that no person was found residing at the given address in terms of the records of the Society, and thereby the said persons whose presence was marked and the signatures appended thereto in the said meetings are also fictitious persons.
445. Similarly, accused Sh. Kishore Aggarwal (A11) as 'President' with accused Sh. Rohit Saxena as 'Secretary' and accused Sanjay Kapasia as 'Treasurer' of the Society in the meetings held on 19.01.2004.,16.02.2004 & 02.03.2004 had accepted 15+20+21 (56) false resignations of its fictitious members including some of the Promoter members.
446. Out of 56, prosecution have examined six witnesses namely PW1, PW2, PW4, PW9, PW13 & PW20 in support of their case to state that the resignations/receipts were false and fabricated. Regarding other Seven alleged members witnesses/process servers have been examined to state that 'person / address was not found existing' as per records of the Society. Remaining are stated to be fictitious persons wherein CBI Case No. 214/19 115 of 158 CBI vs. Srichand etc (Chanderlok CGHS) details of some unknown persons have been used by the accused persons to complete the record of the Society.
447. PW2 Sh. Praveen Jain, PW9 Sh. Ram Krishan, PW13 Ms. Shobi Sahani, PW20 Sh. Madhu Sudan and PW45 Sh. Vinod Kumar specifically stated that they had not taken the membership of Chanderlok CGHS nor any payment of membership was paid by them, and therefore there was no question of them resigning from the membership of the Society, and the resignations & receipts and other documents of the Society in their name(s) and under their purported signatures are forged and fabricated.
448. PW4 Sh. Kishan Singh Sejwal, though stated that he had taken the membership but denied having resigned from the Society at any point of time, and that the signatures purportedly in his name at points Q1049 & Q1050 on the ResignationcumReceipt dated 14.02.2004 Ex PW4/3 are not his genuine signatures.
449. In crossexamination witness reiterates and corroborates his statement regarding taking membership, signing some documents initially, and denied having resigned from the Society and the signatures appended on the Ex PW4/3.
450. Similarly, PW3 Sh. Arinder Singh Wadhwa and PW44 Sh. Sanjay Basil whose resignations were accepted and receipts issued during the tenure of Sh Kishore Aggarwal (A11) as its Executive Member and Sh. Rajat Verma (A12) as CBI Case No. 214/19 116 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Secretary have also deposed to the fact that Membership of the Chanderlok CGHS was not taken by them. They further denied their purported signatures on the resignations and receipts Ex PW3/3 and Ex PW44/3 respectively, and nothing suspicious has come in their crossexamination to create a doubt over their testimonies.
451. PW7 Sh. Krishan Kumar also deposed that though Membership of the Chanderlok CGHS was taken by him but he had never resigned from the Society and signatures appearing on Resignation letter dated 24.12.2002 & Receipt dated 28.02.2002 (D6, at page 86) at point Q1158 and Q1159 Ex PW7/4 are not his signatures, and relevant to note that his resignation was accepted by accused A11 & A12 acting as 'Executive Member' and 'Secretary' of the Society on a meeting held on 22.01.2003.
452. Similarly, as discussed earlier, PW45 Sh. Vinod Kumar and PW48 Sh.Ashok Kumar, who are shown as Vice President and President respectively, have specifically denied ever taking the membership of the Society and also denied the number of signatures appended in their names in the proceeding register reflecting in the various minutes of meetings of the Management Committee.
453. The said fact is also corroborated by the GEQD expert in terms of Para 3 with respect to accused Ashok Kumar and Para 11 in respect of accused Vinod Kumar of his report Ex CBI Case No. 214/19 117 of 158 CBI vs. Srichand etc (Chanderlok CGHS) PW85/5 whereby it has been opined that the signatures affixed in the name of Sh. Ashok Kumar and Sh. Vinod Kumar as President and Vice President of the Society on the proceeding register does not match with their specimen signatures respectively.
454. Thereby there was no question of them being present in any of the meetings wherein accused Rajat Verma (as Secretary) and Kishore Aggarwal (as member executive) are also shown as its members, and they have themselves admitted the said proceedings undertaken on behalf of the Society.
455. Further, falsity of the proceedings undertaken by A 11and A12, is also evident from the fact that resignation of Sh. Vinod Kumar PW45 with membership no. 91, also mentioned as Vinod Rai at some places, is shown on dated 05.03.2003 and corresponding No Dues Receipt is issued on 10.03.2003.
456. Whereas, as per the record (D10) Sh. Vinod Kumar is shown present in subsequent meetings of the Management Committee till 07.04.2003 as its PresidentcumChairman, during the tenure of these two accused persons.
457. Further, PW5 Sh. Satish Kumar Gera during his examination testified that the membership of the Society was taken jointly by him and his wife from accused A6 Rohit Saxena. He also identified the signatures of accused A6 at point A, appearing on the Share Certificate ( D45) Ex PW5/1 issued by accused A6.
458. The testimony of PW5 indicates active involvement CBI Case No. 214/19 118 of 158 CBI vs. Srichand etc (Chanderlok CGHS) of accused Rohit Saxena in the affairs of the Society, wherein A 6 had met him (PW5) at the Society Office and thereafter A6 had signed on the counterpart of the Share Certificates bearing Serial no.1581, (D45) issued to him.
459. All these witnesses were crossexamined by learned defence counsels on behalf of the respective accused persons but nothing has come on record to impeach their testimony to say that they were making false statements before the Court, nor to show that they had tendered the resignation(s) in question at any point of time.
460. PW-37 Sangeeta Anand also stated that she had not taken the membership and the signatures appended on the documents and the nomination forms are not her signatures. Her Membership application form D-37 at page no. 31 with her signatures was not sent for analysis/expert opinion alongwith her specimen signatures.
461. But she was not crossexamined by any of accused except to some extent by accused Rohit Saxena A6, who also gave 23 suggestions only to the fact that her specimen signatures were not taken by the CBI.
462. PW-38 Mr. Suresh Anand seems to be more actively involved into the affairs of the Society, then some of the accused persons here, in terms of the statement made by the witnesses who had taken membership through him and the friendly loan of Rs.6 lacs allegedly advanced to Mr. S.P.Saxena and repaid from the account of Chanderlok, and his association CBI Case No. 214/19 119 of 158 CBI vs. Srichand etc (Chanderlok CGHS) with accused Mr. S.P.Saxena.
463. But said again, there is no proper investigation qua his alleged role in the affairs of the Society by the IO for the reasons best known to him. So much weight-age can not be given to the testimony of PW-38. He may have signed Member-ship documents of the Society on behalf of his wife but the fact remains the same also tantamount to forgery and manipulation of records.
464. All the aforesaid documents i.e. Resignationscum Receipts, were also examined by the GEQD expert PW85, and he in terms of his report Ex PW85/3 that the questioned signatures on the said documents have been opined not to be under the signatures of the respective witnesses, in terms of the purported signatures on the resignation letters and receipt thereto.
465. Nextly, Forgery is also apparent on the face of the resignations so accepted during the tenure of accused Sh. Kishore Kumar Aggarwal (A11), Sh. Rajat Verma (A12) and Sh.Rohit Saxena (A6) to show their complicity in the case at hand :-
466. Interestingly, all the said 34 resignations accepted during tenure of A-11 (as a Executive member) & A-12 (as a Secretary), ; and 56 resignations accepted during tenure of A-11 (as President) A-6 (as a Secretary) and A-14 ( as a Treasurer), are in one and the same format, taken out mechanically in an identical manner ; with same identical placement of punctuations like comas (,) and full stops(.) wherever reflected, with identical CBI Case No. 214/19 120 of 158 CBI vs. Srichand etc (Chanderlok CGHS) reasons for resignations addressed to the Secretary Chanderlok CGHS.
467. The payments allegedly shown to have been refunded to the said resigned promoter/ other members is also made part and parcel of the resignation letter on the same page underneath, in complete disregard to the provisions of DCS Act and Rules.
468. The manner in which the resignations and receipts are printed on the same page and the manner in which payments are shown to have been made, are also in clear violation of the DCS Act and Rules.
469. And importantly, it may be noted that in the meeting of the Management Committee held on 19.01.2004 under the Chairmanship of A-11 ( as its President) & A-6 (as a Secretary) with accused Sh. Sanjay Kapasia A-14 (as its Treasurer), out of 14 members whose alleged resignation were accepted by the accused persons, two members namely Sh. Chander Pal and Sh. Deep Chand, had already expired in the year 1999 and 1983 respectively.
470. Herein, testimony of PW-1 Sh. Ajay Pal Singh may be referred to.
471. PW1 initially refuted the fact that Sh. Chander Pal (his deceased father) was a member of any Group Housing Society, in contradiction to the stand of the prosecution that Sh. Chander Pal was the promoter member, expired in the year 1999 and the affidavits, resignation, receipt purported in his name were CBI Case No. 214/19 121 of 158 CBI vs. Srichand etc (Chanderlok CGHS) prepared subsequently by the accused persons in the year 2001, and thereby intended to demolish the very basis of the case of the prosecution.
472. He was also not crossexamined by the prosecution on the said aspect to bring forth that Sh. Chander Pal whose details used by the accused persons was the founder member of the Chanderlok CGHS ; nor the signatures of Sh. Chander Pal in the original proceedings ( Part of D9 ) and which prosecution claims to be the original from page no. 1 to 8 of the said Proceeding Register were put to the witness, nor sent to the FSL for analysis to arrive at the conclusion that the same are of one and the same person.
473. But the fact remains, during his crossexamination and on the Court Question, it has come on record that his ( PW
1) Father's name ( Sh. Chander Pal ) and Grand Father's name ( Chaudhary Sh. Surat Singh ) are correctly mentioned and that during his childhood they had also resided at the Geetanjali Address so mentioned in the affidavit exhibited as Ex PW1/1.
474. Irrespective thereof, one fact is proved by his deposition that Sh. Chander Pal whose details and particulars were used by the accused persons Srichand (A1), Anna Wankhede (A2) and K.A. Kanekar (A3) had expired in the year 1999.
475. Further PW2, PW4, PW6 and PW7 have testified to the fact that the membership to the Society concern was taken CBI Case No. 214/19 122 of 158 CBI vs. Srichand etc (Chanderlok CGHS) by them through Srichander Pal, who used to work in some Emporium at Adchini, Delhi at the relevant time.
476. In fact, PW2 when confronted with notice dated 08.03.1989 during his examination, identified the signatures of Srichander Pal and stated that Srichander Pal had died in the year 1999.
477. To that extent the identify of Sh. Chander Pal and the factum of his death in the year 1989 stands established. Implying thereby that the Affidavit, Resignations, Receipt etc in his name are forged documents prepared after his demise in the year 20012004.
478. All these factors and the irregularities in the resignation letters were sufficient to raise a suspicion qua their genuineness but appears to have been deliberately and intentionally over looked by these accused persons for the ulterior motive.
479. Significantly, all the said resignations of the promoter members so accepted bears the date(s) of their tenure. So, implying thereby that the accused persons had also played active role not only in accepting those resignation but also in fabricating the same by putting the relevant dates of their acceptance to give an impression that the same were tendered and accepted by them in the normal course of the affairs of the Society, to induct the new members of their own choice with ulterior motives.
480. The question also arises how the dates were CBI Case No. 214/19 123 of 158 CBI vs. Srichand etc (Chanderlok CGHS) reflected on the said forged resignations or who had filled the dates on the above referred forged resignations, and no explanation of any kind is forthcoming on behalf of the accused persons in this regard.
481. At this stage, provisions of Section 106 of the Evidence Act may be noted, which states that - when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. And herein, besides vaguely stating in terms of their statement under section 313 CrPC that the resignations were accepted as per records, accused persons have remained completely silent and evasive on to the facts about the forgery of the resignation letters, the date(s) so mentioned on it by them or by any other person, or from where it came on record or as to who had handed over the said resignations to them.
482. It may be noted here that many of the office bearers of the Society, from whom at best they could have taken the records of the Society, are all accused herein.
483. From the ocular testimony of the witnesses namely PW-11, PW-12, PW21, PW-24, PW-25, PW-38, PW-42, PW- 44,PW-45, PW-48, PW-49, PW-52, PW-64, PW-68 and PW-84 most of whom have deposed to the fact either that the membership of the society was taken through accused Sh. S.P. Saxena (A-4) and/or that Mr. Saxena ( A-4 ) was managing the entire affairs of the Society regarding its membership, financial aspects and its construction thereto.
484. The documentary evidence produced on record in the form of Statement of Accounts of the Chanderlok CGHS CBI Case No. 214/19 124 of 158 CBI vs. Srichand etc (Chanderlok CGHS) reflects monetary transaction between accused Sh. S.P.Saxena and his associates, family members and the companies being run by him, are evident of the fact that accused Sh. S.P.Saxena (A-4) was one of the main key player in the entire case crime at whose behest the affairs of the Society were run by different persons primarily by S/Sh. Kishore Aggarwal (A-11), Rajat Verma (A-
12), Rohit Saxena (A-6) and Sanjay Kapasia (A-14) in the post revival scenario of the Society.
485. And prior to its revival, Sh. Srichand(A-1), the other key player, who alongwith A-2 and A-3 were primarily responsible for fabrication of the records of the Society and admission of his known persons into the society, without himself directly coming into picture.
486. The bank records so produced before the Court via testimony of witnesses PW-60, PW-61, PW-77, PW-79, PW-82, PW-83, PW-103 & PW-106 further corroborates the fact that practical functioning of the Society and its records were managed by accused S.P.Saxena (A-4), who was neither the member of the Society nor had any other association in any manner whatsoever with it.
487. Further, it can be seen that vide a meeting dated 12.10.2003, the then management of the Society had unanimously resolved to shift the official address of the Society to Flat no. 664, Princes Park Apartments, Sector-6, Dwarka, New Delhi with immediate effect, of which accused Kishore Aggarwal (A-11) and Rajat Verma (A-12) were member Executive and Secretary respectively.
CBI Case No. 214/19 125 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
488. The aforesaid Flat of Princes Park Apartment was purchased by accused S.P. Saxena in the name of his firm M/s GEE ESS Exim Pvt. Ltd and where he was residing at that time.
489. Further, accused A-2 Anna Wankhede (alleged Secretary), A-3 K.A Kanekar (alleged Treasurer since expired ) & Sh.Surender Pratap (alleged President) are shown to be the office bearers of the Society from 1983 onwards, and accused A-3 has specifically denied his association with the Society or its affairs of any nature whatsoever, in terms of his statement u/s 313 Cr PC, contradicting the stand taken by the co-accused persons and his resignation alongwith that of accused K.A. Kanekar was accepted during the tenure of accused A-11 and A-12 in the meeting held on 02.01.2003.
490. All the accused persons are completely silent and evasive on all these aspects in terms of their statements under Section 313 Cr.P.C.
491. So, the records, if so, taken from Srichand (A-1) and/or S.P.Saxena (A-4, since deceased) or from accused persons Anna Wankhede (A-2) and K.A. Kanekar (A-3), by these accused persons of subsequent management, it by itself shows their connivance with co-accused persons and their intention and knowledge qua the falsity of the records of the Society.
492. In addition to that, it may also be noted that the date on the 'Resignation(s)' on top and the date at the bottom of the same page under the heading 'Receipt(s)' reflecting the payment are different, and there is a gap of number of days, in some cases more than a month or so, in processing the final CBI Case No. 214/19 126 of 158 CBI vs. Srichand etc (Chanderlok CGHS) refund of the said resigned members.
493. So, I failed to comprehend how the signatures of above said persons came on the said receipts lateron, if it was not there at the time of accepting the respective resignation(s) on the dates so mentioned therein.
494. It is not the case of the accused nor can it be that the signatures on the receipts were appended by these persons lateron, at the time of receiving the refund of the share money / full and final settlement amount.
495. Implying thereby, that the alleged signatures of the members amongst others :
at Questioned Signatures - Q1091 (Resignation dated 03.01.2004) and Receipt Q-1092 dated 20.02.2004 in the name of his father Sh. Chander Pal, and accepted on 19.01.2004 • at Questioned Signatures- Q1150 (Resignation dated 25.12.2002) and Receipt Q-1151 dated 24.02.2003 in the name of Sh. Arinder Singh (PW-
3), and accepted on 22.01.2003 ;
• at Questioned Signatures- Q1049 (Resignation dated 14.02.2004) and Receipt Q-1050 dated 07.03.2004 in the name of Sh. Kishan Sejwal (PW-
4), and accepted on 16.02.2004 • at Questioned Signatures - Q1158 (Resignation dated 24.12.2002) and Receipt Q-1159 dated 28.02.2003 in the name of his father Sh. Krishan CBI Case No. 214/19 127 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Kumar (PW-7), and accepted on 22.01.2003 • at Questioned Signatures- Q-1077 (Resignation dated 06.01.2004) and Receipt Q-1078 dated 23.02.2004 in the name of Sh. Ram Kishan (PW-
9) and accepted on 19.01.2004 • at Questioned Signatures- Q1021 (Resignation dated 26.02.2004) and Receipt Q-1022 dated 10.04.2004 in the name of Shobi Sahni (PW-13) and accepted on 02.03.2004 • at Questioned Signatures- Q1033 (Resignation dated 21.02.2004) and Receipt Q-1034 dated 07.04.2004 in the name of Sh. Madhu Sudan (PW-
20) and accepted on 02.03.2004 • at Questioned Signatures- Q1110 (Resignation dated -NIL ) and Receipt Q-1111 dated 09.03.2003 in the name of Sh. Sanjiv Basil (PW-44) and accepted on 06.02.2003 • at Questioned Signatures- Q1105 (Resignation dated -05.03.2003 ) and Receipt Q-1106 dated 10.03.2003 in the name of Sh. Vinod Kumar (PW-
45) and accepted on 02.03.2004, were all affixed on the dates so mentioned during their tenure and accepted by these accused persons, with the receipts being part of the same document ; and purportedly issued subsequently, indicates the falsity of the records, and further to the points to the knowledge and active participation of CBI Case No. 214/19 128 of 158 CBI vs. Srichand etc (Chanderlok CGHS) the accused persons to its forgery.
496. Thus, to content that these accused persons were not aware about any manipulation in the resignation(s) and receipt(s) is absolutely without any substance and can not be accepted to be true in the given facts and circumstances, and does not find favour with the court.
497. It is not to be disputed that A-6, A-11, A-12 & A-14 came into picture after the Society was revived on 02.11.2001 and the freeze list of 75 members was sent to the DDA for allotment of land.
498. But important to note is the fact that prior to A-6, A-11, A-12 & A-14 taking over the alleged Management of the Society, only 10 such forged resignations of Promoter members of the Society were accepted in terms of the meeting dated 08.05.1981, whereby A-2 and A-3 amongst other were inducted as its members.
499. Whereas, about 90 such false resignations are accepted systematically and in a well thought manner during the tenure of these accused persons while acting as President/ Secretary/Chairman-cum-Treasurer (A-14) respectively in terms thereof which by itself is also sufficient indicator about their knowledge and intention, and involvement in the case at hand.
500. The act of the accused (A-6, A-11, A-12 & A-14 ) to accept such large number of false resignations with so many glaring discrepancies can not be classified as a coincidence or an inadvertence or negligence on their part.
CBI Case No. 214/19 129 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
501. Further, it can be noted that accused Rohit Saxena (A-6) has himself represented as the Secretary of the Society in the month of October, 2003 before the concerned Bank Officials before taking charge of the coveted post of the Secretary of the Society in December, 2003.
502. So, the prior authorization in his favour as a Secretary of the Society by the then management further points to the fabrication of the records of the Society as well as active involvement of accused Rohit Saxena (A-6) with co accused A-11 & A-12 in the said act.
503. The said fact of opening the bank account in the name of Chanderlok CGHS and its operations is also not disputed by the accused persons namely Sh Rohit Kumar Saxena, Sh. Kishore Aggarwal and Sh. Rajat Verma.
504. It was contended by accused persons that they were in the Management of the Society for a very short tenure of one year or so ; and there was no illegality in it and the accounts of the Society were operated in a routine manner, and there were no misappropriation or siphoning off the funds nor there was any illegality in availing the bridge loan from DCHFC.
505. The question herein is not about misappropriation of the funds of the society but the said references to the bank accounts do reflect the active participation of A6,A11 & A14 into the affairs of the Society including managing its financial aspects vide wherein the records of the Society were manipulated at the instance of deceased accused S.P.Saxena.
CBI Case No. 214/19 130 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
506. How and through what process and election, if any, A-6, A-11 & A-14 became its Secretary, President & Treasurer respectively is also conspicuously missing from the records. Their coming into its management on 26.12.2003 is fraught with illegality.
507. Further, it may also be seen that accused Sh. Rajat Verma (A12), in his capacity as a 'Secretary' of the Society accepted resignations of Ms. Chander Prabha and the committee unanimously appointed accused Sh. Kishore Aggarwal in her place as member of Executive Committee on a meeting held on 23.12.2002.
508. All these acts of the accused persons indicate their active participation in concert with coaccused to the fabrication and manipulation of the records of the Society.
509. It was contended by accused A6 and A11, that they themselves were expelled from the membership of the Society in the year 2004 which shows that they were innocent and had carried out their duties bonafidely during their tenure.
510. Said contention is refuted by learned PP stating that Sh. Rohit Saxena, A16 had remained into the affairs of the Society till 2012.
511. The expulsion of accused persons, if any, by subsequent management would not absolve them of their illegalities committed by them during their tenure.
512. Similarly, it was argued on behalf of A-14 accused Sh. Sanjay Kapasia that he had also resigned from the Treasurer CBI Case No. 214/19 131 of 158 CBI vs. Srichand etc (Chanderlok CGHS) of the Society as well as Membership of the Society in the year 2004 itself, but I would say after committing the illegality in the records of the Society and resigning subsequently would not wash the illegal acts so committed by him.
513. I may state that it is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. The part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. The actors may drop-out in between and others may join-in continuity to seek the common object.
514. Thus, it can be stated that the proceedings of the Society were carefully drafted by the accused persons in a calibrated manner to give it a colour of genuineness by showing the Refund receipt of subsequent date, as was mandated by the DCS Act and Rules, which on the face of it is contrary to the resignation-cum-receipt accepted by the accused persons and then filed on record.
515. It was a deliberated act on the part of the accused persons to further the cause of the conspiracy and it can not be said that they had no knowledge about the falsity of resignations / receipts.
516. Their act of accepting the false resignations by putting false dates on it(s) and fabricating the receipts in consequence thereto reflects their active participation into the fabrication of the record and the fact that they were part of the CBI Case No. 214/19 132 of 158 CBI vs. Srichand etc (Chanderlok CGHS) conspiracy and acted in pursuance thereto to achieve its object.
517. Learned defence counsel had claimed parity with co- accused Sh.Neeraj Mahajan who was discharged by the Hon'ble High Court vide order dated 17.09.2019.
518. But the case of Sh. Neeraj Mahajan is primarily on a different footing.
519. Mr Mahajan had acted only as a Vice-President of the Society during the relevant period. He was also not having custody of the records of the Society and the information about the members who had resigned through the false resignations were given by the then Secretary of the Society namely Sh. Rajat Verma (A-12) or Sh. Rohit Saxena (A-6) as per their tenure.
520. Nor there is anything on record to say that Sh. Neeraj Mahajan had played any fraud and had inducted any member known to him. He had also not operated the bank accounts of the society at any point of time.
521. Whereas, as discussed above there is plenty of evidence against the accused persons who had acted as a President, Secretary & Treasurer-Chairman of the Society and accepted the large number of false resignations reflecting their complicity in fabrication of the records to achieve the ultimate object of the conspiracy.
522. It was also argued on behalf of accused Sanjay Kapasia that information regarding the resignations and the payments made thereto to its members was furnished orally by the then Secretary, or Chairman at times, to the Committee CBI Case No. 214/19 133 of 158 CBI vs. Srichand etc (Chanderlok CGHS) members and he had no personal knowledge about the forgery of the said documents ; his role was limited to that of Treasurer only and there were no ambiguity was found in the accounts of the Society ; nor had he forged any document or inducted any member.
523. It was also contended by A-14 that subsequent to resigning from the membership he had worked as an employee in the office of accused Srichand for which he was paid periodically from the accounts of the Society and there was no illegality in the acts alleged to have been done by him.
524. Admittedly, accused Sh. Sanjay Kapasia (A-14) had no role in the revival of the Society, nor are there allegations that he forged the signatures or the writings of any person on the Society documents at any point of time.
525. And, I would have found force in the submissions of the learned counsel for A-14 that being the Treasurer his role was limited and confined only to the financial aspect of the Society, or that he merely participated in the proceedings in which the President and the Secretary had informed the Committee members about the aforesaid resignations tendered by the members, in terms of the proceeding register so placed before the Court and also relied upon by the prosecution, or that he was merely an employee in the office of accused Srichand (A-1).
526. But fact remains the role / act of A-14 is not only limited to a participant in the alleged meetings of the Society wherein forged resignations were accepted, but it is evident from the proceeding register D-10 that accused A-14 was instrumental CBI Case No. 214/19 134 of 158 CBI vs. Srichand etc (Chanderlok CGHS) in preparing the false proceedings of the Management of the Society dated 15.04.2004 held under his Chairmanship in the capacity as 'Treasurer' wherein Smt. Sangeeta, Smt. Kamlesh and Sh. Ashok Kumar are shown to be present as its members.
527. As noted above, PW-37 Smt. Sangeeta Anand, Sh. Ashok Kumar PW-48 and Smt. Kamlesh PW-14 have denied having ever become the member of the Society or having attended any such meeting of the Management Committee at any point of time.
528. The GEQD opinion in terms of questioned signatures at Q-792, Q-793, Q-794 / Q-998, Q-880 & Q-797 in the above said meeting dated 15.04.2004 (D-10) further fortifies the statement of the witnesses wherein it has been opined that the aforesaid signatures are not appended by the said witnesses respectively.
529. Further in terms of the meeting of the Management Committed held on 26.12.2003, wherein he was elected as an executive member and subsequently elected as Treasurer in the same meeting, his presence is also duly marked with his signatures on the aforesaid proceedings.
530. And, the manner in which the entire management including the Executive Members took over the charge over the Society is conspicuously missing from its proceedings.
531. It is mentioned in terms of the Agenda 5 of the minutes of meeting of the Management committee held on 01.11.2003 that the election to the post of five executive members alongwith President, Vice President and Secretary shall CBI Case No. 214/19 135 of 158 CBI vs. Srichand etc (Chanderlok CGHS) be conducted in the GBM to be held on 25.12.2003 and Sh. Parveen Kumar was appointed as Election Officer for the said purpose.
532. Thereafter no GBM was held. In fact no election appears to have taken place on 25.12.2003 and the records were simply manipulated by these accused persons by preparing /writing proceedings dated 26.12.2003 to give effect to their agenda of the conspiracy.
533. Thus, analyzing the facts which has surfaced during trial it can not be said that accused Mr. Sanjay Kapasia (A-14) was not actively involved in the affairs of the Society or to say he was not aware about the falsity of the record or that he had not fabricated the records of the Society or that he had merely acted as a 'Treasurer' of the Society.
534. The facts noted above thereby clearly indicates that A-14 was not only acting as a designated Treasurer but was actively involved in preparing the false record of the Society in concert with other co-accused persons to give resign to their illegal acts.
535. Now coming to the case of accused Mohit Saxena (A-15).
536. Allegations against accused Mohit Saxena are mainly that :-
- he collected allotment letter from the DDA on behalf of the Society ;
- he was a witness to a tripartite agreement and CBI Case No. 214/19 136 of 158 CBI vs. Srichand etc (Chanderlok CGHS) related documents related to the 'bridge loan' from Delhi Cooperative Hosing Finance Corporation for financing the project executed between the then management of the Society and other stake holders ;
- he acted as Introducer at the time of opening of the account of the Society with Punjab National Bank, Patparganj Branch by the members of the Management Committee namely A-11 and A-12.
- that a sum of Rs.3,00,000/-were transferred to M/s AMS Contractor owned by Sh. Mohit Saxena from the accounts of the Society on 01.06.2005, and therefore, it is stated that he was also part of the conspiracy and the acts were done in furtherance of the same to achieve its object.
537. On the other hand, the transactions noted above has not been denied by the accused Mohit Saxena. However, it is submitted that he was merely acting as an employee of the Society and all the transactions were done on his behalf diligently with all sincerity and without him being part of any conspiracy so alleged.
538. I also find force in the submissions of learned counsel for accused and the defence so put forth on his behalf.
539. Coming to the first allegations of A-15 collecting the allotment letter, there is no illegality or irregularity in the said act on his part. The meeting of the committee of the Society held on 15.04.2004 specifically had authorized him to collect the said CBI Case No. 214/19 137 of 158 CBI vs. Srichand etc (Chanderlok CGHS) letter from the DDA on its behalf, in terms of Agenda 4, noted above. Though the meeting was a false meeting, as observed earlier, the prosecution has failed to prove any thing on record that the said fact was within the knowledge of accused Mohit Saxena or that he was in any way associated with it.
540. The fact of A-15 being employed with the work of the Society is also reflected from the said meeting wherein his designation is stated to be that of 'Liaison Officer' of the Society.
541. So, simply acting in pursuance to the said authorization, it can not be said that A-15 was one of conspirators or that the letter was collected with the knowledge or intention about the illegality and /or forgery of the records of the Society.
542. Nextly, being a witness to a deed/tripartite agreement is also no ground to state that it was done with a malafide or dishonest intention or in furtherance of a conspiracy. A witness to an execution of a document is simply a witness to the execution of a document by the parties thereto and not witness to the correctness of the contents written therein for that matter.
543. Similarly, him acting as an 'Introducer' to the persons/office bearers of the management committee for opening an account in any bank is no offence itself. The 'introduction' on part of A-15 was qua the persons named therein and not in respect of veracity of the documents / information of the Society mentioned in terms thereof.
544. Further, PW-61 Sh.G.M.V. Ramana, the then branch manager of Punjab National Bank has also testified to the fact CBI Case No. 214/19 138 of 158 CBI vs. Srichand etc (Chanderlok CGHS) that extracts of Minutes of the Meeting of the Committee of the Society vide which A-11 and A-12 were authorized to operate the said account jointly was also submitted to the bank at the time of opening of the said account.
545. Rightly or wrongly, but as per the records of the Society, A-11 was shown its President, Sh. Neeraj Mahajan was Vice-President and Sh. Rajat Verma A-12 as its Secretary. Thereby no illegality/foul play can be attributed to the act of A- 15 vide which he had simplicitor introduced the office bearers of the Society at the time of opening its account with the concerned bank.
546. It was contended by learned PP that address of the Society so mentioned in its record was false and therefore, it can be inferred that he was also part of the conspiracy or was having the knowledge of falsity of the record.
547. I do not concur with the submissions so advanced by learned PP for the reasons that the prosecution has failed to prove that the address of the society was a false or a non-existent at that time.
548. PW-107 Sh. Bharat Anand was examined lateron after the deposition of IO, wherein IO had admitted that the statement made by Mr. Anand was not part of the judicial record and that there is no material or document on record to reflect that the address of the Society at Preet Vihar was a false one.
549. The testimony of PW-107 is also of no assistance to the case of prosecution as he himself has admitted to the fact that he had never resided at the aforesaid flat ; he was not aware who CBI Case No. 214/19 139 of 158 CBI vs. Srichand etc (Chanderlok CGHS) was residing at the said flat between 2000 to 2005 ; nor was he having full knowledge about the tenant(s), his office(s) and nature of work being done there.
550. PW-107 admitted that one Sh. Pramod Kumar had set up his office in the said flat who was dealing in properties.
551. His testimony does not lead to any conclusion that the Chanderlok CGHS was not having the office at the said address i.e. Flat no 302, 3rd floor, F-16, Preet Vihar, Delhi or the address of the said flat was not used by the Society for its official purpose or that it was wrongly shown in the documents to be its registered address, as he himself had not resided there nor was he aware about the nature of work being done in the said office.
552. It is important to note that IO also admitted in his cross-examination the fact that the same address of Preet Vihar of the Society Chanderlok CGHS is mentioned in the DDA records. He also admitted to the fact that the letters so received in the DDA from the Society reflected the address to be that of Preet Vihar Office.
553. IO further admitted the fact that from the records of the DDA one postal envelope having the address of 'Preet Vihar' of the Society and shown to have been delivered at the said address was also recovered during investigation. He admitted that he did not inquire how the Society received the aforesaid postal envelope at the Preet Vihar address, if it was not its genuine address.
554. From the facts noted above and the admissions of the investigating officer, it can not be positively said that the CBI Case No. 214/19 140 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Society was not having its address in question at Preet Vihar, Delhi.
555. In so far as loan to M/s AMS is concerned, PW59 Sh. Anil Kumar Saxena in this regard deposed that he is one of the Directors of M/s AMS Contractor Pvt Ltd ; that accused S.P.Saxena is his brother and accused Rohit Saxena & Mohit Saxena are his two sons.
556. PW59 identified his signatures and signatures of his son Mohit Saxena (A15) on the account opening Form related to his company ( D237) Ex PW59/1 and attested copy of Form 16 enclosed with the said account opening form (D238) Ex PW59/2, maintained at Nainital Bank.
557. Relevant to note is the fact that he testified that his brother accused S.P.Saxena was looking after the work of M/s AMS Contractor and he had no information if any money was deposited in the aforesaid account of the company by way of cheque issued by Chanderlok CGHS.
558. The testimony of the witness examined by the prosecution itself is evident of the fact that affairs of M/s AMS Contractor and the Chanderlok CGHS Society were being managed by accused S.P.Saxena (A-4, since deceased).
559. Even otherwise, simply because A-15 was shown as one of the Directors of the Company is itself not sufficient to attribute any criminality on his part for the actions of the Company, if at all, there is any illegality in its functioning.
560. Nextly, the payments in terms of the allegations and CBI Case No. 214/19 141 of 158 CBI vs. Srichand etc (Chanderlok CGHS) reflected in the accounts of the Society with PNB, reveals that a sum of Rs.5000/- per month appears to have been paid to accused Mohit Saxena (A-15).
561. There are three entries of Rs.5000/- each in the month of March-2004, and two entries in the month of November-2004 and March-2005 each, reflected in the statement.
562. The learned PP submitted that the multiple entries in a given month does not indicate that the sum so paid was part of the salary, as was claimed by A-15.
563. However, after carefully examining the statement, it can be figured that there are some corresponding entries missing in the preceding months, wherein the double entries are reflected.
564. The sum so paid is fixed to Rs. 5000/- each ( per month ) though increased slightly towards the end by Rs. 500/-, but the payment so reflected in the statement do indicate that the sum was periodically paid towards the services rendered by a person i.e. A-15 in the present case, and it cannot be classified as a undue advantage or other illegal pecuniary benefit by any yardstick.
565. This, in-fact, is in-line to the case of the prosecution wherein his status is also noted as a 'representative' of the Society, and undertaking miscellaneous work on its behalf.
566. Except the allegations as discussed above and which also stands not proved, there are no other allegations of any forgery or manipulation in the records of the Society ;
CBI Case No. 214/19 142 of 158 CBI vs. Srichand etc (Chanderlok CGHS) additionally to the fact, that he was not anywhere involved in the process vide which the documents of the society were forged, Society was revived and false proceedings were created.
567. IO also admitted to the fact that none of the members examined by him informed that they had taken the membership of the Society through accused Mohit Saxena.
568. Simply being a nephew of A-4, the key player in the case crime, is no ground to attribute him the status of co- conspirator to say that he carried out the functions of the Society with the same intention and knowledge as that of A-4 and in furtherance of the conspiracy so hatched thereto.
569. Analyzing the facts noted above and the observations made thereto in my considered opinion prosecution has miserably failed to prove the allegations against the accused Mohit Saxena to say that he was part of the conspiracy or that he was involved in the affairs of the Society with dishonest intention in pursuit of its object.
570. OTHER COMMON ARGUMENTS
571. It was argued by the learned defence counsel that no offence under Section 420 IPC is made out nor there was any inducement and delivery of any property pursuant thereto.
572. I may say that the acts of the accused persons (A-1, A-2 and A-3) in getting the concerned Society approved on forged and fabricated and subsequently submitting the fake freeze list to DDA was fraudulent and dishonest directed to CBI Case No. 214/19 143 of 158 CBI vs. Srichand etc (Chanderlok CGHS) mislead/induce the concerned authority to allot land at subsidized rates.
573. The subsequent acts of accused Kishore Aggarwal A-11, Rajat Verma A-12, Rohit (A-6) and Sanjay Kapasia (A-14) whereby the false records of the Society were manufactured by showing false resignation of its members and inducting new members in their places have forfeited the rights of genuine members, the false proceedings of the Society were created by these accused persons, and premised on the aforesaid false record of the Society the land was allotted by the DDA to the Society.
574. So to say, that the act of the accused persons was merely a preparatory at best, or that no person was cheated, or that no offence of cheating is made out, is untenable in the given facts and circumstances.
575. All these acts of the accused persons discussed above fall within the ambit of offence of cheating and dishonestly inducing delivery of property as defined under Section 415 r/w 420 IPC.
576. Discussions Qua Sanction Of Government Officials
577. Common and specific contentions regarding Sanction u/s 197 Cr.PC & also for Section 19 of Prevention of Corruption Act ( Hereinafter called P.C. ACT) for prosecution of the accused Narain Diwakar and Rameshwar Dayal and consideration thereof.
578. In so far as accused Narain Diwakar and Rameswar Dayal are concerned, they by the time the charge sheet was filed CBI Case No. 214/19 144 of 158 CBI vs. Srichand etc (Chanderlok CGHS) had retired from the services and therefore no sanction in terms of Section 19 P.C. Act, nor under Section 197 Cr.P.C was taken by the CBI against these two accused persons.
579. Ld. Counsel for accused Narain Diwakar and Rameshwar Dayal argued that the sanction u/s 197 IPC has not been obtained for their prosecution and thereby the entire trial stands vitiated against them.
580. It is stated that accused persons were discharging their officials functions in terms of the allegations levelled against them, and therefore it was mandatory for the prosecution to take sanction prior to put them to face trial in the given case.
581. Learned counsel also relied upon the judgments qua sanction : State of Punjab Vs. Labh Singh 2014 SCC online SC 1019 ; Surinderjit Singh Maan & Anrs. Vs. State of Punjab arising out of SLP no. 3406 of 2008 ; Prof N.K. Ganguly Vs. CBI 2015 (12) Scale 500 ; S.Ramayya Munipalli Vs. State of Bombay 19 AIR, 1955 SCC 287 ; Amal Kumar Jha Vs. State of Chattisgarh 2016 Lawsuit (SC) 382 ; P.K Pradhan Vs. State of Sikkim (though CBI ) 13 ( 2001) 6 SCC 704, amongst others.
582. Per contra, learned PP argued that since both the accused persons namely Narain Diwakar and Rameshwar Dayal had retired from the services prior to taking cognizance of the offences by the Court, and thus there was no requirement of any Sanction to prosecute them in terms of Section 19 of P.C. Act.
583. It is stated that in so far as Sanction in terms of Section 197 Cr.P.C is concerned, accused persons are involved into the offence of Conspiracy and Cheating, with allegations of CBI Case No. 214/19 145 of 158 CBI vs. Srichand etc (Chanderlok CGHS) fabrication of record, and the act done by the accused persons does not fall within the ambit of discharge of their official duties and no Sanction under Section 197 Cr.P.C was thereby required.
584. At this stage, it would be useful to refer to the decision of the Hon'ble Federal Court in Dr. Hori Ram Vs Emperor AIR 1939 FC 43, which has been quoted with approval in number of judgments subsequently by the Hon'ble Supreme Court, wherein it was observed by Hon'ble Federal Court as under:
" I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests."
585. In one of the landmark judgment, titled as State of Kerala vs Padmanabhan Nayyar 1999 (3)SCR 864 the Hon'nble Apex Court has revisited almost all the earlier decisions on the same issue and has held as under:
"Ld. Single Judge of the High court declined to follow the aforementioned legal position (as discussed herein above) in the present court on the sole premise that offence u/s 406 IPC has also been fastened against the accused beside section 409 of IPC. We are unable to discern the rationale in the distinguishment. Section 406 & 409 of IPC are cognate offences in which the common component is criminal breach of trust. When the offender in the offence u/s 406 IPC is a public servant (or holding anyone of the position listed in the section) the CBI Case No. 214/19 146 of 158 CBI vs. Srichand etc (Chanderlok CGHS) offence would escalate to Section 409 of Penal Code. When this court held that in regard to offences u/s 409 IPC r/w Section 120B IPC, it is no part of the duty of the public servant to enter into criminal conspiracy for criminal breach of trust, we find no sense in stating that if the offence is u/w 406 IPC r/w 120-B IPC, it would make all the difference viz a viz section 197 of Code."
(Emphasis supplied)
586. In a very recent judgment in Amal Kumar Jha vs State of Chattisgarh 2016 Law Suit (SC)382, the Hon'ble Supreme Court of India while relying upon Hori Ram case (Supra), S.B.Saha (Supra) and in Baij Nath Vs State of MP 1966 AIR SC 220 amongst others has held as under:
" It is the quality of the act that is important and if fall within the scope and range of his official duties, the protection contemplated by Section 197 CrPC will be attracted. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under the color of the office held by him."
587. Strong reliance placed by the defence on the judgment of Prof. N.K. Ganguly ( Supra ) is misconceived.
588. The Hon'ble Supreme Court therein has taken note of a Constitution Bench Judgment titled as Satwant Singh Vs. State of Punjab ( AIR 1960 SC 266 ), wherein CBI Case No. 214/19 147 of 158 CBI vs. Srichand etc (Chanderlok CGHS) the Hon'ble Court has observed that :-
"It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section161 of IPC (since deleted), is one of them and the offence of cheating or abatement thereof is another... where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences...... the Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
(Emphasis supplied)
589. So, what is clearly discernible from the authorities cited above and the law on the point as discussed is that while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such mis-demeanor/act on his part can not by any legal yardstick be treated as an act in discharge of his official duties. In such a case, the protective umbrella CBI Case No. 214/19 148 of 158 CBI vs. Srichand etc (Chanderlok CGHS) under Section 197 Cr.P.C shall not be attracted.
590. It is the nature of the act that is important and if it is false within the scope and range of his official duties, the protection contemplated by Section 197 Cr.P.C will be available. But if the act is unconnected with the official duty, certainly there can be no protection in terms of the said provisions.
591. In the case at hand, as regards requirement of Sanction under Section 197 Cr.P.C for taking of cognizance is concerned, it is evident that the acts allegedly committed by accused Mr. Narain Diwakar (A-8) and Mr. Rameshwar Dayal(A-16) pertains to entering into criminal conspiracy with other co-accused persons, and to commit act of cheating and forgery of the records of the society with the malafide intention to revive it.
592. The alleged acts, in terms of the law discussed above, does not fall within the ambit of official functions, and therefore provisions of Section 197 Cr.PC are not attracted in the given facts and circumstances of the case, whether the charges so levelled are proved or not is a different case altogether.
593. The contentions raised on behalf of the accused persons accordingly stands rejected accordingly.
594. Sanction qua accused Satish Singh Aswal A-9 & accused P.K. Thirwani (A-7) :-
595. PW-70 Sh. Deepak Mohan Sapolia, the then Secretary Land & Building Govt of NCT of Delhi accorded sanction to prosecte accused Satish Singh Aswal (A-9).
CBI Case No. 214/19 149 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
596. He deposed that he had accorded sanction to prosecute accused Satish Singh Aswal, who was posted as LDC in his Office at that time, in terms of his Sanction Order Ex PW70/1. He stated that he was competent authority to remove A-9 from the services during his tenure in the year 2008.
597. PW-90 Sh. Rakesh Mehta the then Chief Secretary accorded sanction to prosecute accused Mr. P.K. Thirwani (A7) while he was posted as Supdt. Sarvodaya Bal Vidhyalya and was competent to remove him from the services during his tenure in the year 2008. He proved his Sanction order Ex PW-90/1.
598. The common question that arises for consideration is whether PW-70 and PW-90 were competent persons to grant Sanction to prosecute accused A-9 and A-7 respectively in the present case.
599. During his cross-examination, PW-70 admitted the fact that he had never worked in the Office of Registrar Cooperative Society at any point of time, and that he was not competent to remove A-9 from the services in the year 2001, when the alleged offence was committed by him while being posted as LDC in the RCS Office.
600. He admitted that he did not seek advise from the RCS Office or from the Vigilance Branch before passing Sanction order.
601. Similarly, PW-90 was also cross-examined on the same aspects that when the alleged offence was committed, accused was not working under him and that he was thereby not CBI Case No. 214/19 150 of 158 CBI vs. Srichand etc (Chanderlok CGHS) competent to accord sanction to prosecute him.
602. It was thus argued by the Ld. Defence Counsels that Sh. Sapolia ( PW-70) and Sh. Rakesh Mehta (PW-90) were not the competent authority to remove them from the services when the alleged offence was committed in terms of the allegations against the accused persons.
603. Reliance in that regard is placed on Clause 2 of Section 19 of P.C.Act to contend that the sanction so accorded thereby is bad in law and therefore they are entitled to be acquitted on this very count.
604. I do not agree with the contentions so raised.
605. Provisions of Section 19(1)(c) of PC Act specifically empowers the authority competent to remove an official/public servant from the services, in a case where accused is a Government Servant, to accord sanction to prosecute the said official for the offences alleged against him. It is not qualified nor its operation is limited by any other conditions thereto.
606. Clause (2) of Section 19 P.C Act comes into play only when there is a doubt about the Authority competent to remove an official/public servant from his office, and in that case, the Authority which was competent to remove him from his office at that time when the offence was alleged to have been committed, would be the Authority to accord Sanction to prosecute him.
607. In the present case, there is no such doubt regarding the competence of PW-70 to remove accused S.S. Aswal (A-9) or CBI Case No. 214/19 151 of 158 CBI vs. Srichand etc (Chanderlok CGHS) to PW-90 to remove accused P.K. Thirwani (A-7) from the services where they were employed at that time when the charge sheet was filed and cognizance of the offence was taken. The said plea of the defence thereby stands rejected.
608. Nextly, it was argued that competent authority had not applied its mind to the facts of the case prior to according sanction qua these two accused persons and thereby it has no validity in the eyes of law.
609. In the defence both the accused summoned the vigilance file relating to the sanction granted to them.
610. It was then argued by the defence counsels that besides the report of the Superintendent of Police concerned and some draft sanctioned orders, there is no other document in support thereof, therefore, it cannot be said that the Sanction Orders Ex PW70/1 and Ex 90/1 were passed with due application of mind after going through the relevant record of the case and the material collected by the IO during investigation.
611. The Vigilance File of accused persons have been perused. It contains draft sanction orders and report of concerned Supdt. of Police and Notings of the vigilance department with the documents showing the correspondence / movement of the file.
612. But it can be seen in the vigilance file of A-9 that in terms of the letter issued by the agency(CBI) vide 82/C to the then Chief Secretary, Govt of NCT of Delhi it is specifically stated that "the set of the original documents and exhibits including statements of witness have been kept ready for perusal by the Sanctioning Authority as and when required"
CBI Case No. 214/19 152 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
613. And, thereafter, it may also be noted that Sanction Order dated 16.07.2008 Ex PW70/1 in Clause-35 specifically mentions that :-
".......on consideration of facts and circumstances of the case and after fully and carefully examining the material including the statements of the witnesses recorded by the IO, under the provisions of Section 161 Cr.P.C and the documents collected during investigation and placed before me, in regard to the aforesaid allegations ...... " Emphasis Supplied.
614. It is evident that the Notings of the Vigilance Branch categorically mentions about the case of the accused Mr. S.S. Aswal in detail, his defence/explanation is also stated in terms of page 36/C, and thereafter the material in rebuttal to the explanation / his defence is also noted.
615. Besides that, PW-70 was not cross-examined by the defence on all these aspects regarding him not having seen the statement of the witnesses and / or the documents and exhibits of the case. Nor refuting the same being not produced by the IO for his perusal before granting the sanction.
616. Similarly is the case of A-7, wherein it can be seen that some correspondence between the departments and the agency had taken place regarding the supportive documents alongwith the report of the Supdt of Police.
617. But in the Notings so reflected in the files, the entire circumstances including the allegations against the accused A-7, his statement in defence are specifically stated. Copy of his statement in defence was also part of the concerned Vigilance CBI Case No. 214/19 153 of 158 CBI vs. Srichand etc (Chanderlok CGHS) File put up before the Sanctioning Authority.
618. PW-90 in cross-examination reiterated the fact that the sanction to prosecute the accused A-7 was accorded on the basis of the report received from the CBI and various documents which were placed before him by the Agency.
619. Appreciating the testimony of aforesaid witnesses, it can not be said that PW-70 or PW-90 had passed the Sanction Order mechanically simply on the basis of the report of the concerned SP without applying its own mind to the facts and circumstances of the allegations against accused persons, or to say it was passed without going through the relevant records of the case.
620. The case of Ashok Kumar Aggarwal Vs. CBI & Ors. (2016) 1 DLT (Cri) 539 is of no assistance to the case of defence.
621. In the said case the relevant material supportive of the explanation/defence of the official concerned received from foreign country through a FAX was not deliberately put by the agency before the Sanctioning Authority.
622. Whereas in the present case, relevant material including the explanation and the defence submitted by the accused appears to have been laid before the Sanctioning Authority in terms of the specific Notings of the Vigilance file.
623. Profitable reference can also be made to the case titled as C.S. Krishnamurthy Vs. State of Karnataka, 2005 CRI.L.J.2145, on the issue of validity of Sanction wherein the CBI Case No. 214/19 154 of 158 CBI vs. Srichand etc (Chanderlok CGHS) Hon'ble Supreme Court observed that :-
:".......The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind ."
(Emphasis supplied)
624. In light thereof, the contention of the learned counsel for the accused persons A-9 & A-7 cannot be sustained and stands rejected accordingly.
625. Qua evidentiary value of Expert Opinion
626. Again, common contentions were raised by the learned counsels for all the accused persons that GEQD opinion is not a substantive piece of evidence and conviction can not be solely based on it without its corroboration on material aspects from an independent source.
627. The law on the said aspect is no more res- integra. Question of Law on this count is well established. In fact, the authorities relied upon by the different counsels as well as the prosecution are no different on the point of law.
CBI Case No. 214/19 155 of 158 CBI vs. Srichand etc (Chanderlok CGHS)
628. To cull out the basic and the governing principle concerning an expert opinion, its admissibility and evidentiary value, it is stated that there is no hard and fast rule which has crystallized into a rule of law to state that an expert opinion is a weak type of evidence and can not be acted upon or considered without its substantial corroboration, or that it can only be used as a corroborative piece of evidence, or that conviction can not be predicated solely on the basis even if it inspire confidence and suffers from no ambiguity. Contrary is only a rule of caution (Murari Lal Vs. State of UP 1980 AIR 531).
629. So if the evidence of expert is clinching and trustworthy and, no prejudice or biased can be attributed to his testimony, I see no reason to disbelieve it or to state that it can not be acted upon without corroboration.
630. Moreover, as discussed in detail herein above, in the present case there is plenty of ocular and documentary evidence to support the case of the prosecution against the accused persons (wherein charges stands proved), which is duly corroborated by the testimony of the GEQD expert. The contention of the learned counsel for the accused persons is untenable and accordingly stands rejected.
631. Undoubtedly, there are number of lapses and lacunas in the investigation in the present case carried out in a very callous, unscientific and perfunctory manner but it in no manner prejudices the case of the accused persons against whom the prosecution has successfully proved by leading CBI Case No. 214/19 156 of 158 CBI vs. Srichand etc (Chanderlok CGHS) reliable and cogent evidence despite there being defective evidence. Nor can they claim parity in illegality or irregularity committed by the IO during investigation simplicitor on that count.
DECISION
632. Having regard to the above detailed discussion and the conclusion arrived at, the accused
(i) A-1 Srichand, A-2 Anna Wankhede, stand convicted u/s 120B r/w 419, 420, 468 & 471 IPC and Section 13(2) r/w Section 13(1)(d)of PC Act 1988.
(ii) Accused Rohit Kumar (A-6), Kishore Aggarwal (A-11), Rajat Verma (A-12) and Sanjay Kapasia (A-14) stand convicted u/s 120B r/w 420, 468 & 471 IPC.
(iii) Accused A-1 Srichand stands convicted for the substantive offence u/s 420 IPC. However, he is acquitted for the offence punishable u/s 419 IPC.
(iv) Accused A-2 Anna Wankhede stands convicted for the substantive offences u/s 419/420/468 & 471 IPC.
(v) Accused A-6 Rohit Kumar stands convicted for the substantive offences u/s 420 & 468 IPC. However, he is acquitted for the offence punishable u/s 419 IPC.
CBI Case No. 214/19 157 of 158
CBI vs. Srichand etc (Chanderlok CGHS)
(vi) Accused A-11 Kishore Aggarwal stands convicted for
the substantive offences u/s 420 & 468 IPC. However, he is acquitted for the offence punishable u/s 419 IPC.
(vii) Accused A-12 Rajat Verma stands convicted for the substantive offences u/s 420 & 468 IPC. However, he is acquitted for the offence punishable u/s 419 IPC.
(viii) Accused A-14 Sanjay Kapasia stands convicted for the substantive offences u/s 420 & 468 IPC. However, he is acquitted for the offence punishable u/s 419 IPC.
(ix) Accused Ashok Johri (A-5), P.K. Thirwani (A-7), Narain Diwakar (A-8), Satish Singh Aswal (A-9), Mohit Saxena (A-15) and Rameshwar Dayal (A-16) stands acquitted of all the charges so framed against them in the present case.
633. Let the convicted accused persons be heard on the quantum of sentence on 13.07.2023 at 02:00p.m.
Announced in the open court on this 10th Day of July, 2023. Digitally signed by ANIL ANTIL ANIL Date:
ANTIL (ANIL ANTIL) 2023.07.17 15:04:04 +0530 SPL. JUDGE (PC ACT): CBI-15 ROUSE AVENUE DISTRICT COURT NEW DELHI/10.07.2023 CBI Case No. 214/19 158 of 158