Delhi District Court
Cbi vs . Gokul Chand Aggarwal & Others on 23 August, 2011
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI.
CBI No. 70/11
RC No. 19(E)/2005/CBI/EOW1/New Delhi.
CBI Vs. Gokul Chand Aggarwal & Others
(Sunny CGHS)
Reserved for order on : 01.08.2011
Date of Order : 23.08.2011
O R D E R O N C H A R G E
1.The case of the CBI, in brief, is that Sunny Cooperative Group Housing Society (CGHS) Ltd. registered on 30.12.1983 vide Registration No. 1206 (GH) with 65 promoter members, having its registered address at 104, Raja House, Nehru Place, New Delhi19 was wound up on 30.07.1990 for noncompliance of various provisions relating to elections etc under the Delhi Co operative Societies Act, 1972 (hereinafter referred to as 'the DCS Act'). Accused Gokul Chand Aggarwal impersonated as 'Pawan Kumar' a self styled Secretary of the society and moved an application dated 21.11.2002 to the Registrar CoOperative Societies (RCS), New Delhi with a request to cancel the winding up order and for revival of the society. Accordingly, accused Faiz Mohammad, was appointed as an Inspecting CBI No. 70/11 Page 1/18 Officer u/s 54 of DCS Act by Maan Singh, the then AR (South). Accused Faiz Mohammad GRII, submitted a report without any visit/inspection and verification about the genuineness of the society to AR (South) on 1.6.2003 with the recommendation that the society was operational at its office address.
2. Investigation revealed that Pawan Kumar, a self styled secretary of the society and Ajay Kumar Goel, Treasurer of the society, were brothers of Gokul Chand Aggarwal and had never been the members of the society. Accused Gokul Chand Aggarwal who was controlling the society had forged several documents which were submitted to the office of the RCS for the revival of the society. Further, one Ashutosh, who had been appointed as an Election Officer of the society, had been shown to have conducted a false election of the society. It is also alleged that Narayan Diwakar, the then RCS, was a party to the criminal conspiracy and by abusing his official position, he ordered for the fraudulent revival of the society on the basis of false and forged documents without proper enquiry and also approved the list of members and forwarded the same to DDA for allotment of land with a view to cause wrongful gain to the builder mafia and others and corresponding loss to the Government.
3. Investigation further revealed that Shri Jasvir Singh, the then Secretary of the society, vide his application dated 8.4.1988 CBI No. 70/11 Page 2/18 requested the RCS for the approval of the freeze list of the society. As requested, the list of 65 members was approved by the office of the RCS and the same was forwarded to the DDA for allotment of land vide letter dated 24.5.1988 under the signature of Sh Chhotey Lal, the then AR (NGH), O/o the RCS, New Delhi. It was further revealed that after approval of the list of members, the RCS office sent number of letters and reminders to the President/Secretary of the society requesting them to hold Special General Body Meeting (GBM) and produce the list of members so that the election could be conducted but the society did not respond to those letters and reminders. A show cause notice dated 15.5.1990 was issued to the society to explain as to why the society should not be wound up u/s 63 (2) (b) of the DCS Act to which no response was received. As such, the society was ordered to be wound up vide order dated 30.7. 1990 passed by Sh Satish Mathur, Dy. Registrar (GH) on the ground of nonconducting of election.
4. The investigation further revealed that after more than about 12 years of winding up of the society, one Pawan Kumar, a self styled Secretary of the society submitted an application dated 21.11.2002 with a request for the revival of the society stating therein that shortcomings had been removed and the elections was held in the year 2002. It was revealed during the CBI No. 70/11 Page 3/18 investigation that Pawan Kumar is the cobrother of Gokul Chand Aggarwal. He denied to have signed or submitted such kind of letter. GEQD has confirmed that Pawan Kumar had not signed the above mentioned letter.
5. It was further revealed that during the investigation that accused Gopal Singh Bisht submitted a note regarding application for revival and accused Maan Singh (since expired) proposed for the appointment of an inspector u/s 54 of the DCS Act. Accused Faiz Mohammad, Gr11 was appointed as Inspector by Maan Singh vide order dated 20.05.2003 with approval of Narayan Diwakar, the then RCS. Accused Faiz Mohammad submitted a report dated 1.6.2003 to the effect that the society had shifted its office to 4720/47, Regar Pura, Karol Bagh, New Delhi5 and that he met Gokul Chand Aggarwal, President of the society at the said address, who produced all the original documents of the society including the audited accounts upto 198687, and unaudited accounts till 200203 and informed that last election of the society was held on 20.10.2002. This report also bears the signature of accused Gokul Chand Aggarwal as the President of the society. GEQD has confirmed the same. This report was submitted to the AR (South) on 4.6.2003. Accused Faiz Mohammad also enclosed a copy of the Proceedings Register of the General Body Meeting held on 20.10.2003 in which 35 CBI No. 70/11 Page 4/18 members were shown to have attended and signed. Out of these 35 members, most the members were traced out and examined and they denied to have attended such meeting and further denied their signatures on the copy of the minutes of the meeting and further denied their signatures on the copy of the minutes of the meeting containing the resolution that RCS may be moved for the revival of the society. Further, accused Gokul Chand Aggarwal, Satish Aggarwal (brother of Gokul Chand Aggarwal), Ajay Kumar Goel (Cobrother of Gokul Chand Aggarwal), Pawan Kumar (cobrother of Gokul Chand Aggarwal), B M Gupta (relative of Gokul Chand Aggarwal), Smt Hitesh Gupta (sister in law of Gokul Chand Aggarwal) and Smt Vijay Arora (daughter of Gokul Chand Aggarwal) were shown to have been elected as President, Vice President and Management Committee (MC) Members respectively. The meeting was shown to have been chaired by one Baljeet Singh, who had denied to have attended such meeting.
6. The investigation revealed that accused Faiz Mohammad submitted a false inspection Report dated 1.6.2003 with connivance of accused Gokul Chand Aggarwal. All the office bearers of the society were happened to be close relatives of accused Gokul Chand Aggarwal and the address of the society i.e Regar Pura, Karol Bagh, New Delhi happened to be the CBI No. 70/11 Page 5/18 residential address of Pawan Kumar, brother of accused Gokul Chand Aggarwal. All the office bearers have denied their membership of the society as well as their signatures on the papers submitted to the office of the RCS, New Delhi. Pawan Kumar has also denied the existence of the said society at the said address.
7. The investigation further revealed that accused Gopal Singh Bisht, the dealing Assistant in the office of RCS, submitted a note dated 4.6.2003 and proposed for the revival of the society which was approved by Maan Singh and the file was submitted to the RCS. A hearing was shown to have taken place on 8.7.2003 and the presence accused Gokul Chand Aggarwal had been recorded by Narayan Diwakar, the then RCS, after which the file was sent to the concerned zone for verification. Accused Gopal Singh Bisht put up a letter dated 18.7.2003 signed by Maan Singh, addressed to the President/Secretary of the society with its address as 104, Raja House, Nehru Place, New Delhi19, owned by Shri Jasvir Singh, the Founder Secretary of the society, who had sold the said premises to one Pramod Ahuja in 198687. This letter appears to be collected by accused Gokul Chand Aggarwal personally as Pramod Ahuja has denied to have received such letter in 2003. In response to this letter, accused Gokul Chand Aggarwal produced the original CBI No. 70/11 Page 6/18 documents of the society with its covering letter dated 21.7.2003 as per the note recorded by Gopal Singh Bisht. However, the photocopies thereof, duly attested by accused Gokul Chand Aggarwal, were submitted. GEQD has confirmed the signatures of accused Gokul Chand Aggarwal on all these documents in token of having attested the same. Pawan Kumar who was shown the custodian of the said documents has completely denied these facts and his knowledge about the said society.
8. The investigation further revealed that a list of present members submitted by accused Gokul Chand Aggarwal contained 65 members, out of which 48 were promoter members and remaining 17 members were newly enrolled members. The said list contained the signature of accused Gokul Chand Aggarwal as President, Satish Aggarwal as Vice President and Pawan Kumar as Secretary. GEQD has confirmed that accused Gokul Chand Aggarwal has forged the signatures of Satish Aggarwal and Pawan Kumar. Satish Aggarwal and Pawan Kumar had also denied their signatures which was confirmed by GEQD. It was further revealed that 17 newly enrolled members were shown to have been enrolled against the resignation of 17 members. The newly inducted members including the close relatives of accused Gokul Chand Aggarwal have denied their membership and signatures. Some members have also been found to be non CBI No. 70/11 Page 7/18 existent. GEQD has confirmed that most of the signatures of newly inducted members had been forged by accused Gokul Chand Aggarwal. GEQD has also confirmed that accused Gokul Chand Aggarwal attested the photocopies of resignations of 17 promoter members. Out of these 17 promoter members, some members were traced out and were examined. They denied their signatures on the photocopies of the resignations. GEQD has confirmed that the unaudited accounts of the society for the period 19872003 have been countersigned by accused Gokul Chand Aggarwal. Besides this, GEQD has further confirmed that accused Gokul Chand Aggarwal forged the signatures of Pawan Kumar and Ajay Kumar Goel as the Secretary and Treasurer on the original audit papers seized from the office of the RCS. The Management Committee members of the society who had been shown to have attended the meetings dated 14.7.1988, 20.9.1988 and 18.11.1988 as per the copies of the Proceedings Register submitted to the RCS, have denied to have attended the said meetings. GEQD has confirmed that the body of the affidavit in respect of newly inducted members were filled up by accused Gokul Chand Aggarwal in his own handwriting.
9. Investigation further revealed that Sunny CGHS Ltd was revived on 5.9.2003 and that a list of members had already been CBI No. 70/11 Page 8/18 sent to DDA on 24.5.1988. It came to light that Dy. Director (GH), DDA sent a letter dated 31.10.2003/3.11.2003 to the Secretary/President of the said society for their choice of preference of area for allotment of land to which Pawan Kumar, the socalled Secretary of the society replied vide letter dated 9.11.2003 and gave the three preferences i.e Dwarka, Dohini and Dhirpur. Investigation revealed that Naveen Kaushik, a private person forged the signatures of Pawan Kumar on the said letter. GEQD has given a positive opinion in this regard. Searches were conducted in the residence of accused Ashwani Sharma, in which a file relating to the said society containing one handwritten note with the names and addresses of newly inducted members was found in the said file. GEQD has proved that this handwritten note was in the handwritings of accused Naveen Kaushik.
10.During investigation a computer was recovered during the search from the office of accused Ashwani Sharma at 227C, PocketA, PhaseII, Mayur Vihar. Subsequently an opinion on the hard disk of that computer was obtained from GEQD, Shimla relating to this society. From the opinion report it is seen that most of the documents, which were retrieved from the said hard disk, were submitted for the revival of the society by accused Gokul Chand Aggarwal to the office of the RCS. Those CBI No. 70/11 Page 9/18 documents were typed and prepared in the said computer of accused Ashwani Sharma.
11. Investigation has further revealed that accused Sanjeev Bharti was appointed as an Election Officer in the said revival order of the then RCS, who had shown to have conducted the election of the society on 5.10.2003 and a report submitted to the RCS office on 10.10.2003. In this election meeting, accused Sanjeev Bharti had allegedly elected accused Gokul Chand Aggarwal as President, Satish Agarwal as Vice President and S/Shri Ajay Kumar Goel, Pawan Kumar, Ramesh Chand Gupta, Smt Alka Gupta and Smt Hitesh Gupta as Management Committee (MC) Members. He had also shown the presence of 23 members, who had purportedly signed the minutes of the election meeting, but those members, when examined, have denied to have attended any such meeting and further denied their signatures. One M C Member, Smt Alka Gupta, was found to be nonexistent.
12.Investigation has further revealed that audit of the society for a period of 198788 to 200203 was conducted by accused P K Thirwani at a stretch on the basis of documents submitted by accused Gokul Chand Aggarwal in the office of RCS. The audit reports including account papers contain the signatures of accused Gokul Chand Aggarwal, Pawan Kumar, Secretary, Ajay Kumar Goel, Treasurer and P K Thirwani, Auditor. Pawan CBI No. 70/11 Page 10/18 Kumar and Ajay Kumar Goel have denied their signatures on the said audit reports/ papers. GEQD has confirmed that accused Gokul Chand Aggarwal has forged the signatures of Pawan Kumar and Ajay Kumar Goel on the said audit papers. GEQD has further confirmed the genuine signatures of accused Gokul Chand Aggarwal and P K Thirwani on the said documents. Further, this report was received by accused Ashwani Sharma, who had signed on the report in token of having received a copy thereof and GEQD has confirmed his signatures. The aforesaid evidence would clearly prove the involvement of accused Gokul Chand Aggarwal, accused Ashwani Sharma and accused P K Thirwani because the audit had been conducted in the violations of DCS Rules, 1973 and forgery of signatures of Pawan Kumar and Ajay Kumar Goel by accused Gokul Chand Aggarwal had been facilitated by P K Thirwani. After completing the investigation, chargesheet was filed in the court against the accused persons for commission of offences under Indian Penal Code, 1860 (IPC) and Prevention of Corruption Act, 1988 ( P C Act).
13.I have heard Sh. Akhilesh, Ld. PP for CBI, Sh. S K Bhatnagar, Ld. Counsel for accused Faiz Mohammad, accused Naveen Kaushik and accused P K Thirwani, Dr. Susheel Kumar, Ld. Counsel for accused Narayan Diwakar. I have also gone CBI No. 70/11 Page 11/18 through the written submissions filed on behalf of accused Gokul Chand Aggarwal, accused Narayan Diwakar, accused Naveen Kaushik and accused Ashwani Sharma.
14. Accused Maan Singh expired after the filing of chargesheet and, therefore, case against him stood abated.
15.Accused Narayan Diwakar contended that he has done nothing wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545 wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:
(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.
(b) Absence of notification U/s 3 of DSPE Act. (c) Registration of case under Section IPC instead of DCS Act which is a Special Act. CBI No. 70/11 Page 12/18
16. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.
17. It is contended that the noncompliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences, as notified, are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Cooperative laws. Thus, the investigation done by the CBI for the cooperative societies is in violation of Sec.3 as CBI No. 70/11 Page 13/18 it has no jurisdiction to conduct the investigation. In my opinion the Offences mentioned in the chargesheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.
18. Accused Narayan Diwakar has placed reliance upon the order dated 26.5.2011 passed by High Court of Delhi in WP (C) No. 2441/2011. I fail to understand how the said order is applicable to the facts of the present case. Accused Narayan Diwakar has also placed reliance upon order dated 20.7.2011 passed by Special Judge3, CBI, Patiala House Courts, New Delhi. I have gone through the said order. It was passed by Ld. Special Judge in the facts and circumstances of the case before him. Even otherwise, the said order dated 20.7.2011 is not binding upon this court.
19. All the accused have raised the contention that the DCS Act, is a complete self contained statue and, therefore, provisions of the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private cooperative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which CBI No. 70/11 Page 14/18 completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS.
The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In support of this contention, accused have relied upon judgments State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.
20. On the other hand, it is contended by Ld. PP Sh. Akhilesh for CBI that provisions under DCS Act and DCS Rules are for administration of Cooperative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. According to him, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law.
21. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, CBI No. 70/11 Page 15/18 1956 shall not apply to Cooperative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been chargesheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.
22. Accused Narayan Diwakar has relied upon judgment Vikas CGHS Vs. RCS, CWP No. 1767 of 1986 decided on 2.11.1986 by the High Court of Delhi. The said judgment is not applicable to the facts of the present case. After the judgment of Vikas CGHS (Supra), a direction was passed by the High Court of Delhi in CWP No. 10667/04 on 2.8.2005 directing CBI to investigate the present matter and other similar matters where group housing societies were fraudulently got revived. If there was no need of passing an order for setting aside the liquidation proceedings of Sunny CGHS, then there was no necessity for accused Narayan Diwakar to pass an order in the year 2003 for revival of the society. Accused Narayan Diwakar, therefore, cannot claim the applicability of the judgment Vikas CGHS (Supra) to the present controversy.
23. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of CBI No. 70/11 Page 16/18 the DCS Act, there is a presumption of genuineness of the documents filed in support of the application moved for revival of the society. In my opinion, the facts and circumstances of the present case primafacie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. The society which was not in existence was revived in the garb of being under liquidation on the strength of order dated 30.7.1990. Bogus documents were used. The modus operandi of reconstruction of documents was adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.
24. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Narayan Diwakar and his subordinate staff/coaccused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society and they forwarded the letter to DDA for allotment of land. The accused persons did everything they could do in furtherance of the conspiracy entered into between CBI No. 70/11 Page 17/18 them and just because land was not alloted to society is not a ground to discharge the accused. In fact Deputy Director (GH) DDA even sent a letter dated 31.10.2003/3.11.2003 to the Secretary/President of the said society for their choice of preference of area for allotment by land. The said letter was replied to by nonexistent Secretary, Pawan Kumar with signatures forged by accused Naveen Kaushik. Therefore, primafacie case of cheating is also made out against the accused persons.
25. In view of the above discussion, I am of the opinion that primafacie case is made out against Gokul Chand Aggarwal (A1), Faiz Mohammad (A2), Narayan Diwakar (A4), Naveen Kaushik (A5), Gopal Singh (A6), Ashwani Sharma (A7), P.K. Thirwani (A8) and Sanjeev Bharti (A9) for commission of offences U/s 120B r/w Sec. 420/468/471 IPC and Section 13(2) r/w 13(1) (d) of PC Act, 1988. Accused Gokul Chand Aggarwal (A1) and accused P.K. Thirwani (A8) are also liable to be charged u/s 120(B) r/w Sec. 419 IPC.
Announced today in open (PRAVEEN KUMAR) court on 23.8.2011. Special Judge, PC Act CBI3, Rohini Court, Delhi.
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