Delhi District Court
Cbi vs . 1 Yogi Raj, on 14 July, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 26/2011
RC S18 2006 E0001
U/s 120B r/w 420/468/471 IPC &
u/s 13 (2) r/w 13 (1) (d) & 15 r/w 13 (1) (d) of PC Act
Unique case I.D. No. 02406R0744722006
CBI Vs. 1 Yogi Raj,
Son of Sh. Girdhari Lal,
Resident of AP-77, Shalimar Bagh, Delhi.
2 Udhay Shanker Bhatnagar,
Late Sh. Shiv Shanker Bhatnagar,
Resident of B-479 Type-II,
Delhi Administration Flats, Timar Pur, Delhi.
3 Niranjan Singh,
Son of late Sh. Babu Lal,
Resident of 309, DDA Flats, Karkardooma,
Delhi-110091.
4 Faiz Mohammad,
Son of late Sh. Gulam Mohd.
Resident of 4794 Bara Hindu Rao,
Pahari Dhiraj, Sadar Bazar, Delhi.
5 Gokul Chand Aggarwal,
Son of late Sh. Jagdish Parshad Aggarwal,
Resident of A-603, Ashoka Apartment,
Plot No. 36/2, Rohini, Sector-IX, Delhi
6 Prahlad Kumar Thirwani,
Son of late Sh. Moti Ram Thirwani,
Resident of 348 E, Pocket-II,
Mayur Vihar Phase-I, Delhi.
7 Kamal Singh,
Son of Bhakhtawar Singh,
Resident of H. No. 677, Village & PO Badli,
Delhi.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 1 of 85
8 Narayan Diwakar,
Son of late Sh. C. Lal,
Resident of G-30, Masjid Moth,
Greater Kailash-II, New Delhi.
Date of Institution : 12.12.2006
Date of framing of charge : 13.08.2010
Date on which case was received on
Transfer by this Court : 07.10.2011
Date of conclusion of arguments : 08.07.2014
Date of Judgment : 14.07.2014
Memo of Appearance
Ms. Jyotsna Sharma Pandey, learned Sr. PP for CBI.
Sh. R.P. Shukla, learned defence counsel for A-1Yogi Raj.
Sh. S.K. Bhatnagar, learned defence counsel for A-2 U.S. Bhatnagar, A-3 Ram
Nath, A-4 Faiz Mohammad, A-6 P.K. Thirwani.
Sh. S.P. Mehta, learned defence counsel for A-5 Gokul Chand Aggarwal.
Dr. Sushil Kumar, learned defence counsel for A-7 N. Diwakar.
JUDGMENT
PROSECUTION SAGA 1.0 Present case relates to unlawful revival of defunct Ashoka Hotel Karamchari Cooperative Group Housing Society (hereinafter referred to as Ashoka CGHS).
1.1 CBI had been asked to conduct inquiry with respect to illegal and unlawful revival of numerous defunct Group Housing Societies vide order dated 02.08.2005 of Hon'ble High Court of Delhi passed in CWP No. 10066/2005. Separate enquiries were accordingly made qua each such society. Ashoka CGHS was also under scanner. As per the outcome of such preliminary inquiry, instant case i.e. RC S18 2006/E0001 was registered by CBI EOU-IV Branch, CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 2 of 85 New Delhi on 02.01.2006.
1.2 Ashoka CGHS was originally registered with Office of Registrar of Cooperative Societies (RCS) on 24.04.1972. Such Ashoka CGHS was having its registered address at A-9, Ashoka Hotel, Staff Quarters, New Delhi and was given registration number 123 (H) and it had 50 promoter members. It was having 125 members and following main office bearers as per the last legitimate election:-
S. No. Name Designation
1 Dr. B.C. Jain President
2 Shanti Sarup Upadhyaya Secretary
3 J.P. Ahluwalia Treasurer
1.3 Delhi Development Authority (DDA) offered 2.5 acres of land in
Pitam Pura vide its letter dated 25.11.1972 to Ashoka CGHS. Society also deposited earnest money of Rs. 5,000/- on 16.07.1973. RCS office also forwarded list of 125 members of society to DDA on 18.01.1974. Land was accordingly allotted by DDA on 03.02.1975. However, society failed to deposit the requisite cost of land with DDA and Sh. S.S. Upadhyaya, Secretary of the society informed DDA vide letter dated 14.07.1976 that Managing Committee of the society had, as per decision taken in its meeting held on 09.06.1976, recommended dissolution of the society. DDA accordingly informed RCS office and closed the allotment issue.
1.4 Sh. Ashok Bakshi, the then Deputy Registrar of RCS office issued Show Cause Notice no. F.47(123)/78/Coop/H/2610 dated 17.03.1978 as to why Ashoka CGHS be not brought under liquidation as it failed to take the land offered to it by DDA. Society was accordingly put under liquidation vide order no. F.46/47/123/78/H/Coop/126-132 dated 09.01.1979 passed by Sh. Ashok Bakshi.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 3 of 851.5 So far so good.
1.6 Sh. Gokul Chand Aggarwal (A-5), a private person, who otherwise had no concern with such society at all, fabricated various documents for the purpose of illegal revival of such defunct/liquidated society. He, impersonating himself as Hemant Kumar, a fictitious and non-existing person claiming to be the Secretary of the society, submitted application dated 16.09.2003 with Sh. Yogi Raj (A-1), Assistant Registrar, North-West, Office of RCS and requested for revival of society and cancellation of winding up order.
1.7 Matter was taken up in the office of RCS.
1.8 Curiously, no record of such society was available in the office of RCS. A circular was issued for the sake of formality and order for reconstruction of record was obtained in a jiffy. All the concerned officials of RCS office were acting in connivance and in league with said private person and record were reconstructed without bothering to ensure its authenticity.
1.9 Sh. Niranjan Singh (A-3) Dealing Assistant, in terms of criminal conspiracy and with fraudulent and dishonest intention, proposed name of Sh. U.S. Bhatnagar (A-2) as Inspecting Officer u/s 54 of Delhi Cooperative Societies Act 1972(in short DCS Act) to verify and examine the documents of such society.
1.10 A-2 gave a false report without making any enquiry or inspection. In such note/report dated 21.10.2003, he claimed that he had visited the office of society at A-603, Ashoka Apartment, Plot No. 36/2, Rohini, Sector-IX, Delhi and had even met Sh. Hemant Kumar, Secretary of the society and verified the records of the society produced by Hemant Kumar and found the same in order whereas the subsequent comprehensive investigation revealed that there was no such person with the name of Hemant Kumar and there was no such record kept CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 4 of 85 at such address either. He also falsely claimed in his inspection report that society had met all the statutory requirements. He thus confirmed that records were maintained and society was really willing to be revived. So much so, A-2 even permitted Gokul Chand Aggarwal (A-5) to sign as Hemant Kumar in his inspection report as if he was actually the secretary of the society.
1.11 A-3 Sh. Niranjan Singh, Dealing Assistant without making any scrutiny and while fully aware that report was incorrect and application was coming from unauthorized quarter, put up a note dated 03.11.2003 recommending revival of the society and approval of freeze strength of 145 members.
1.12 Sh. Yogi Raj (A-1), being integral part of such criminal conspiracy, did not verify the documents and recommended and forwarded the matter to Registrar, Cooperative Societies (RCS) for revival of such defunct society.
1.13 RCS initially returned the file to the concerned Zone with the direction for verification of members and to ascertain the audit and election status of the society. A-1 himself called for the original record from the society and verified the same himself as well. So much so, the alleged secretary submitted his own affidavit as well as the affidavits of all the 145 members to show that society wanted its revival.
1.14 A-4 Sh. Faiz Mohd, Dealing Assistant, who had replaced the earlier Assistant, was also part of the conspiracy and he too, put up a detailed note dated 24.11.2003 falsely mentioning therein that all the formalities had been completed. He also claimed that he had also seen the entire record of society. He thus prayed for consideration of request for revival.
1.15 A-1 Sh. Yogi Raj, knowing fully well that no verification had been actually done, again recommended the case for revival of society while CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 5 of 85 overlooking major discrepancies.
1.16 In terms of conspiracy, false record was prepared and it was shown that last GBM of the society was held on 29.06.2003 and the election of the Managing Committee had taken place under the supervision of one Sh. Pawan Kumar, Election Officer in which following persons were elected as office bearers:-
S. No. Name Designation
1 Balram Singh President
2 Kawaljit Singh Vice President
3 Hari Prakash Member Managing Committee
4 Hemant Kumar Member Managing Committee
5 Santosh Kumar Member Managing Committee
6 Vijay Arora Member Managing Committee
7 Smt. Kamla Arora Member Managing Committee
1.17 Meeting of the Managing Committee of the society purportedly
shown to have taken place under the chairmanship of Sh. Balram Singh on the same day in which Sh. Hemant Kumar was elected as Secretary and Sh. Santosh Kumar as Treasurer.
1.18 A-1 Sh. Yogi Raj, despite being conscious of the false report submitted by A-4 Faiz Mohd. & A-2 U.S. Bhatnagar, forwarded the file to the office of RCS with recommendation to consider the revival of Ashoka CGHS u/s 63 (3) DCS Act.
1.19 Sh. Narayan Diwakar (A-8) RCS, exercising his power u/s 63 (3) DCS Act, did not take any step to ascertain the genuineness of the documents as well as the identity of the so called office bearers of the society and cancelled the winding up order vide order dated 02.12.2003 with the condition that pending audit be completed within two months. Sh. Sanjeev Bharti was appointed CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 6 of 85 Election Officer to conduct the election of the Managing Committee of the society within two months.
1.20 Sh. Kamal Singh (A-7), LDC in the office of RCS was appointed Auditor to audit the accounts of the society for the period 1972-73 to 2002-03 and he, without any intimation/permission from the higher authorities, directed Sh. P.K. Thirwani (A-6) to conduct the audit of the society. A-6 P.K. Thirwani also, in connivance with his co-accused, prepared false audit report on the basis of forged documents provided by G.C. Aggarwal (A-5) at his office situated at Barakhamba Road. So much so, P.K. Thirwani (A-6) himself also signed as Balram Singh (alleged President), Hemant Kumar (alleged Secretary) and Vijay Arora (alleged as Treasurer), whereas those persons were eventually found to be fictitious and non-existing. Moreover, even otherwise treasurer was Sh. Santosh Kumar and not Vijay Arora. Such report was prepared by A-6 but signed by A-7.
1.21 Accordingly, freeze list was sent to DDA for allotment of land to Ashoka CGHS. Fortunately, the conspiracy got unearthed before the land could be allotted.
1.22 Investigation revealed that A-5 impersonated as Hemant Kumar, a non-existing person and furnished a bogus list of 145 members of the society for approval. Residential addresses of such members including office bearers were either found non-existent or incorrect. All the affidavits were also found to be forged. It was also learnt that in fact 62 such alleged members were already members of one Hem Kunt CGHS which was also lying defunct since 1990 and when some of them were contacted during investigation, they all claimed that they had never become member of Ashoka CGHS and never participated in any such meeting/election or furnished any such affidavit.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 7 of 851.23 CBI carried out investigation and seized various record and also obtained report of GEQD and concluded that all such RCS officials had conspired with G.C. Aggarwal (A-5) and abused their official position and processed and passed the order for revival of the society on the basis of forged and fabricated documents so that land was allotted by DDA to such society at reserved price.
COGNIZANCE AND CHARGES 2.0 Charge sheet was filed in the court on 12.12.2006 and cognizance was taken by the court on 02.01.2007 and all the accused were accordingly ordered to be summoned.
2.1 A-1 to A-8 were charged u/s 120-B r/w Section 511/420/468/471 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
2.2 A-1 was also saddled with substantive offences u/s 471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-2 with 468/471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-3 with 468/471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1)
(d) of Prevention of Corruption Act, A-4 with 471 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-5 with 468/471 and sec 511 r/w 420 IPC, A-6 468/471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, A-7 with 471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act & A-8 with 471 and sec 511 r/w 420 IPC & u/s 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
2.3 They all pleaded not guilty and claimed trial.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 8 of 85PROSECUTION WITNESSES 3.0 Prosecution was directed to adduce its evidence and has examined 38 witnesses.
3.1 Witnesses can be classified as under:-
(i) Witnesses related to post offices:-
PW30 Sh. Harkesh Vats, Postman, Delhi Cantt Post Office. PW31 Sh. Ram Kishan, Postman, Malviya Nagar Post Office. PW32 Sh. Ram Phal, Postman Malka Ganj Post Office.
PW33 Sh. Umed Singh, Postman, Rajouri Garden Post Office. PW34 Sh. Suresh Kumar, Postman, Rohini Sector-7 Post Office. PW40 Sh. Rakesh Kumar Sharma, Postman from Post office Jungpura
(ii) Witnesses related to Notary Public/stamp/false affidavits:-
PW9 Sh. Satbir, Stamp Vendor PW15 Sh. O. Vekateshwarlu, Asstt. Legal Advisor (Notary Cell), Ministry of L&J. PW20 Sh. Gaurav Gupta (son of Notary Public late Sh. Arun Kumar Gupta).
(iii) Members of Ashoka CGHS who denied having submitted any such affidavit or who denied being members of such CGHS:-
PW1 Smt. Kamla Arora.
PW2 Smt. Surender Kaur.
PW3 Smt. Adarsh Kaur.
PW8 Sh. S.S. Upadhayay.
PW12 Smt. Amarjeet Kaur. (for identifying signatures of her husband Preetam Singh) PW13 Smt. Vimla Vij.
PW16 Sh. Som Dutt Yadav.
PW22 Sh. Raj Kumar Sangwan.
PW23 Sh. Rajeev Kumar.
PW25 Sh. Jawahar Lal Sarin.
PW26 Sh. Paramjit Singh Bhatia.
PW27 Sh. Karam Chand.
PW28 Sh. Sunil Kumar Pandey.
(iv) Other Private persons/Members of Hemkunt CGHS PW12 Smt. Amarjeet Kaur. (Whose deceased husband Preetam Singh was member of Hemkunt CGHS) PW13 Smt. Vimla Vij PW17 Sh. Jagmohan Singh CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 9 of 85 PW26 Sh. Paramjit Singh Bhatia.
(v) Witnesses from RCS office:-
PW10 Sh. Sanjeev Bharti, Steno, RCS office.
PW11 Sh. N.S. Khatri, LDC, RCS Office.
PW19 Sh. Virender Kumar Bansal, Assistant Registrar, RCS Office. PW21 Sh. Sushil Kumar Sharma, UDC, RCS office.
PW29 Sh. Ashok Bakshi, Dy. Registrar, RCS Office.
PW35 Sh. Madan Pal Sharma, Assistant Registrar (Policy). PW37 Sh. Satya Parkash Sharma.
PW39 Sh. Daya Nand Sharma, Assistant Registrar.
PW41 Sh. Mahender Singh.
(vi) Witnesses related to investigation and sanction:-
PW4 Sh. R. Narayana Swamy (Sanctioning Authority qua A-3 & A-6). PW5 Sh. S.K. Khosla, who forwarded the sanction order qua A-1. PW6 Ms. Naini Jayaseelan (Sanctioning Authority qua A-7). PW45 Sh. Vijay Kumar (Sanctioning Authority qua A-2). PW42 Sh. M.C. Joshi, GEQD.
PW43 Insp. Manjeet Singh, investigating officer.
PW44 Sh. Kuldeep Mishra the then Assistant Superintendent Jail in whose presence specimen signatures of A-2 & A-5 were taken.
PW38 Sh. Kishore Kumar, CBI, EOU-IV, CGO Complex, Lodhi Road.
(vii) Other witnesses:-
PW7 Sh. Rakesh Kr. Khatik.
PW14 S.K. Abrol, official from the Bank where society actually held its account PW18 Sh. Paras Nath, Assistant Director (Personnel Branch), DDA. PW24 Sh. Vikas Jain.
PW36 Sh. S.L. Khatri, Secretary, Smarat Ashoka CGHS.
STATEMENTS OF ACCUSED(S) AND DEFENCE EVIDENCE
4.0 All the accused persons were asked to file written statements u/s 313 (5) Cr.P.C.
4.1 I would hasten to add that recording of statements of accused u/s 313 Cr.P.C. is indeed a very important stage. Accused can be generally questioned and can be asked to explain any circumstance appearing in evidence against him. Such questions can be put at any stage. However, after the prosecution evidence is complete, it is mandatory for the Court to explain the CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 10 of 85 circumstances appearing in evidence against him. Any such accused is required to be questioned generally about the case. However, by virtue of Amendment Act 5 of 2009, which came into effect on 31.12.2009, instead of preparing a questionnaire and putting across the same, any such accused can be permitted to file a written statement and in case any such written statement is filed, it amounts to sufficient compliance of Section 313 Cr.P.C.
4.2 In the present case, prosecution evidence was closed on 25.10.2013 and it was asked from all the accused whether they were desirous of filing any such written statement u/s 313 (5) Cr.P.C. or not. They all were also apprised that they would be required to make a mention about the deposition of all the witnesses and the documents exhibited during the trial in such written statement and would be also required to explain about the incriminating evidence or circumstance or documents proved during the trial. They were also told that they would be also required to specifically mention whether any witness or document was concerning them or not and to reveal their defence as well. In order to enable them, Ahlmad of the Court was also directed to provide them the entire evidence in soft form. Since all the accused expressed their willingness to file written statements u/s 313 (5) Cr.P.C., they were permitted to file the same. Accordingly, they all filed such written statements.
4.3 Suffice it to say that they all pleaded innocence and claimed false implication.
4.4 As far as A-5 is concerned, he did not desire to lead any evidence in defence. Other accused though desired to lead evidence in defence yet fact remains that only one witness entered into witness box as defence witness i.e. DW1 Narender Singh Khatri on behalf of A-2 U.S. Bhatnagar.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 11 of 85RIVAL CONTENTIONS 5.0 Ms. Jyotsna Sharma Pandey, Learned Sr. PP for CBI has contended that CBI has been able to prove its case to the hilt.
5.1 According to her, all the public servants-accused were hands-in- glove and were actively and intentionally helping private person i.e. accused Gokul Chand Aggarwal (A-5). They all knew that Ashoka CGHS was no more active as no one on its behalf ever sent any correspondence for revival. Either the record was not there in RCS office or such record was got out of sight. A-5 wanted to utilize the name and registration of such dormant society so that it could bag land from DDA. It was possible as allotment was to be on the basis of seniority which naturally related to date of registration.
5.2 A newly created society would not have got any land and, therefore, record was fabricated with active connivance of officials of RCS and it was shown that said society wanted its revival. She has thus prayed stern-most action against all the accused.
5.3 Sh. R.P. Shukla has defended A1 Yogi Raj as well as A-3 Niranjan Singh. Qua A-1 Yogi Raj, his contentions can be summarized as under:-
i FIR could not have been registered as there was no such direction contained in order dated 2.8.05 passed by Hon'ble High Court of Delhi in CWP No. 10066 of 2004.
ii Even if the FIR had been registered unauthorizedly, the investigation could not have been carried out for want of authorization u/s 6 of DSPE Act.
iii Assistant registrar has not deviated from the established norms and has acted upon the reports submitted by his subordinates, from time to time, and at no point of time, he could have inferred that any document was forged or fabricated.CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 12 of 85
iv If Assistant Registrar was acting in connivance with private persons then he would not have recommended inspection u/s 54 DCS Act.
v As Assistant Registrar, he was found bound to follow the directions of his superior and, therefore, the matter was processed in view of the specific directions contained in order dated 2.8.2000 passed by Sh. R.K. Srivastava the then RCS.
vi He had no reason to meet any of the office bearers and rather the inspection was recommended and he had no reason to disbelieve the inspection report. On the basis of report furnished by his subordinate staff which was duly supported with documents, as Assistant Registrar, he could not have smelt anything fishy as in terms of section 41 of DCS Act such record was required to be held as prima facie admissible.
vii Lastly, taking shelter behind general defence as envisaged u/s 76 of IPC, prosecution is misconceived.
5.4 He has also relied upon the various authorities and provisions of law which I would deal at appropriate places.
5.5 Sh. S.K. Bhatnagar, Learned defence counsel for A-2 U.S. Bhatnagar, A-4 Faiz Mohammad, A-6 P.K. Thirwani and A-7 Kamal Singh has contended that all of them are innocent and have been unnecessarily arraigned as accused. It has been argued that they had merely discharged their respective official duties and had no reason whatsoever to disbelieve or suspect the record submitted before them. It has also been asserted that even otherwise it remained a mere case of preparation and not attempt. It has also been argued that even otherwise, all such public servants enjoyed immunity from prosecution u/s 95 of DCS Act.
5.6 As regards A-2 U.S. Bhatnagar, it has been argued that inspection had been carried out and such inspection report could not be impeached during the trial. It has been claimed that there was no dereliction of duty on his part at CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 13 of 85 all. His house-search did not yield anything incriminating and there is no evidence of his getting any pecuniary advantage either. Sanction for his prosecution u/s 19 PC act has been challenged and it has also been stressed that there was mandatory requirement to obtain sanction u/s 197 Cr.P.C. It has also been claimed that he had no role in revival as such and, therefore, there was nothing to infer him as a co-conspirator. It has also been argued that he had no reason to detect any forgery and rather he should have been made a witness.
It has been claimed that CBI has not collected any evidence to show that society had its office at NDSE, Part-I, New Delhi and not at A-603, Ashoka Apartments, Rohini. Rather, it stand proved that Ashoka CGHS had its office at A-603, Ashoka Apartments, Rohini as no undelivered letter issued for such address is found in record of RCS. According to him, even Assistant Registrar had confirmed the genuineness of the claim of society by verifying the same from original record and, therefore, there was no reason for him to have smelt anything fishy and moreover, in such a backdrop, the report given by him had become totally inconsequential. It has been claimed that there is nothing on record which may indicate that he had permitted A-5 to sign as Hemant Kumar in inspection report.
5.7 As regards A-3 Niranjan Singh, though his notings have been admitted yet it has been vehemently claimed that he was merely a Dealing Assistant who was acting under the directions of his superiors. He had merely put up the papers before his superiors and all the decisions were taken by his superiors only. It has been contended that he cannot be hauled up merely because he had put up the papers before his superior in discharge of his official duties. It has been argued by Sh. R.P. Shukla, Learned defence counsel for A-3 that he had only put up solitary note dated 03.11.2003 and thereafter he was transferred and was no longer in RCS office and cannot be held liable for any subsequent act related to alleged revival.
5.8 As regards A-4 Faiz Mohd., his notings though have been admitted yet it has been vehemently claimed that he was merely a Dealing Assistant who CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 14 of 85 was acting under the directions of his superiors and was only required to ensure receipt and dispatch of dak. He had merely put up the papers before his superiors and all the decisions were taken by his superiors only. It has been contended that he cannot be hauled up merely because he had put up the papers before his superior in discharge of his official duties. Moreover, even the note in question i.e. note dated 24.11.2003 was in fact got typed by A-1 Yogi Raj. According to him, even Assistant Registrar had confirmed the genuineness of the claim of society by verifying the same from original record and, therefore, his putting up any noting automatically pales into insignificance. It has been also claimed that all the RCS officials have rather been cheated by imposter A-5 Gokul Chand Aggarwal who posed as Hemant Kumar. It has been claimed that there was no dereliction of duty on his part at all. His house-search did not yield anything incriminating and there is no evidence of his getting any pecuniary advantage either. It has also been stressed that there was mandatory requirement to obtain sanction u/s 197 Cr.P.C. It has also been claimed that he had no role in revival as such and, therefore, there was nothing to brand him as a co-conspirator.
5.9 As regards A-6 P.K. Thirwani, it has been argued that he had allegedly entered the scene after the revival order only and, therefore, there was no question of him being dubbed as conspirator. According to Sh. Bhatnagar, learned defence counsel, he had actually not done any audit for Ashoka CGHS at all and at request of his co-accused Sh. Kamal Singh, he had merely, in his hand, written the Audit Report. He was not the one who had conducted the Audit. Merely because, report was in his hand would not tantamount to hold that he had done the Audit. Any forgery on his part has also been vehemently denied.
5.10 As regards A-7 Kamal Singh, it has been argued that he had done the audit on the basis of record produced before him. It has been asserted that neither he committed any forgery nor he was co-conspirator by any stretch of imagination. It has been contended that even PW21 Sushil K Sharma, official of CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 15 of 85 audit section of RCS did not find anything against him. Rather, he had done the audit sincerely and even pointed out some objections.
5.11 Sh. S.P. Mehta, learned defence counsel for A-5 Gokul Chand Aggarwal has fervently contended that he has been falsely implicated. According to him, he has been dragged into this case on pure conjectures and prosecution has not been able to prove its case qua him in any manner whatsoever. His arguments can be summarized as under:-
a) He had never visited the office of RCS in connection with Ashok CGHS and no prosecution witness, including officials of RCS, has even made a whisper to that effect.
b) There is nothing to indicate that he had purchased the stamp papers for affidavits in question.
c) Testimony of PW8 Sh. Upadhyaya does not impeach him in any way.
d) Obtainment of specimen handwriting of A-5 and the manner thereof were in flagrant violation of law. Such opinion even otherwise does not castigate him.
e) Investigation is tainted and motivated. f) There is no wrongful loss or wrongful gain to anyone. g) There is no false inducement. 5.12 Dr. Sushil Kumar, learned defence counsel has defended
accused N. Diwakar (A-8). He has contended that CBI has not been able to bring on record any fact or circumstance which may indicate his involvement in any manner whatsoever. Dr. Kumar has not disputed that accused N. Diwakar was posted as Registrar in the office of RCS at the relevant time and had dealt with the matter related to cancellation of winding up order in question. It has, however, been argued that he had acted in discharge of his official duties and had primarily relied upon documents placed before him by the society as well as various notings prepared by his subordinates. According to him, nothing could remotely suggest any forgery or fabrication of record. It has also been contended that since accused N. Diwakar was acting in discharge of his official CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 16 of 85 duties, prosecution could not have been launched against him without obtaining mandatory sanction u/s 197 Cr.P.C. It has also been argued that no prosecution witness has whispered even a single word about any involvement of accused N. Diwakar and he cannot be held guilty merely on surmises and conjectures derived from the notings alone. It has also been vehemently stressed that in view of the specific provisions appearing in DCS Act 1972, he was well within his right to cancel the winding up the order u/s 63 (3) of DCS Act. It has also been argued that prosecution has not even attempted to examine the concerned advocate who had allegedly represented the society during such proceedings when the winding up order was recalled and, therefore, prosecution has not been able to prove its case even otherwise. It has also been argued that Court should rather draw adverse inference for holding her back.
5.13 Citing various provision of DCS Act and also relying upon various precedents, it has been averred that even otherwise in any such situation, RCS did not have any option but to cancel the winding up order. Additionally, it has been contended that CBI had conducted a full-fledged preliminary inquiry and FIR was registered thereafter only and as per the outcome of such preliminary inquiry, no case was found made out against accused N. Diwakar and, therefore, his name did not figure as an accused in the FIR in question. This rather indicates that he has been made a scapegoat and his name has been added subsequently with some ulterior motives.
5.14 Finally, reliance has also been placed u/s 76/79 of IPC and it has been claimed that accused cannot be questioned because the act was done by him in good faith for discharging his official duties and, therefore, he was enjoying immunity from prosecution. In support of his contentions, he has also relied upon various judgments which I would advert to at appropriate places.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 17 of 85EVALUATION OF EVIDENCE 6.0 I have carefully perused the entire material available on record and given my thoughtful consideration to the rival contentions.
6.1 I would also hasten to add that all public servants-accused have no qualm regarding office notings or their signatures wherever appearing in the relevant file.
6.2 Let me first find out the status of the record, if any, pertaining to Ashoka CGHS as available with office of RCS.
6.3 Reference be made directly to the relevant notings. These notings have been proved as Ex. PW39/A (16 noting sheets contained in D-5/1).
6.4 PW39 Sh. Daya Nand Sharma remained posted as Assistant Registrar, North-West, RCS office in 2003 and he was shown correspondence file pertaining to Ashoka CGHS. Such file contained 16 noting-sheets and 235 other pages and he identified signatures of all the concerned public servants- accused on the noting-sheets. Signatures of accused N. Diwakar are at point A, of Yogi Raj are at point B, of Niranjan Singh are at point C and of Faiz Mohd. are at point D on the relevant pages.
6.5 First noting is of 23.09.2003. Such noting had been prepared on the basis of one request in writing received from one Sh. Hemant, Secretary of Ashoka CGHS. Such application of Ashoka CGHS dated 16.09.2003 is at page 4C of D-5/1. It is signed at point Q1by one Sh. Hemant as Secretary of Ashoka CGHS. Vide such letter, Ashoka CGHS informed RCS office that Managing Committee of society had conducted fresh elections on 29.06.2003 and all the Books of Accounts had been drawn up in the prescribed proforma and all the shortcomings, on the basis of which the society had been earlier ordered to be CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 18 of 85 wound up, had been removed and, therefore, it was prayed that the winding up order may be cancelled and society may be permitted to function.
6.6 As per noting dated 23.09.2003 prepared by accused Niranjan Singh, Dealing Assistant, the main file of the society was not available/traceable in the North-West Zone and it could have been tied/lying with other Zone and, therefore, it was proposed that a circular may be issued to all the Branches/Zones to search and trace out such record.
6.7 It, thus, becomes apparent that when this application dated 16.09.2003 was received in the office of RCS, no record of Ashoka CGHS was found available in the office of RCS. In other words, it was missing.
6.8 It will now be appropriate to observe as to when such Ashoka CGHS had actually come into existence and what was its eventual fate?
6.9 It would be now appropriate to right away take up the testimony of PW8 Sh. S.S. Upadhayay, a very key witness who even remained office bearer of Ashoka CGHS. One another important office bearer of actual Ashoka CGHS i.e. Mr. Ahluwalia died before he could be contacted by CBI.
6.10 PW8 Sh. S.S. Upadhayay worked in Ashoka Hotel from January 1960 to January 1995 and he deposed that he had formed a society in the year 1973 with the name of Ashoka Hotel Karamchari CGHS and he was its Secretary. He also deposed that one Dr. B.C. Jain was its President and Sh. J.P.S. Ahluwalia was its Treasurer and official address of society was 9A, Ashoka Hotel Staff Quarters. Such quarter had been allotted to Dr. B.C. Jain by the Management of Ashoka Hotel. He also deposed that their society was allotted 2.5 acres of land by DDA and such land was at Pitam Pura and they were asked to deposit Rs. 5,000/- as advance and the land was allotted @ Rs. 100 per square meter and such amount of Rs. 5,000/- was, in fact, deposited with DDA CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 19 of 85 and then members of the society were asked to deposit further cost of land but the members were not in a position to pay the cost of the land and, therefore, they wound up the society and also withdrew the amount of Rs. 5,000/- from DDA. He also deposed that society was having its bank account with Central Bank of India, Ashoka Hotel branch and after such winding up, all the concerned documents were returned to Registrar office and acknowledgment was also received. In his cross-examination, he admitted that he was not having any such receipt/acknowledgment as the matter was old and society had been wound up long back. He also claimed that since all the documents were returned to RCS office, he was not any having document with him. Be that as it may, fact remains that his testimony seems completely unimpeached and uncontroverted. His deposition clearly indicates that society was not in a position to pay the cost of the land to DDA and, therefore, such society was wound up and even earnest money of Rs. 5,000/- was withdrawn from DDA. His testimony also clearly indicates that society was having its banker as Central Bank of India, Ashoka Hotel Branch.
6.11 During investigation, IO Sh. Manjeet Singh had also contacted Central Bank of India, Ashoka Hotel Branch, New Delhi and vide letter Ex. PW43/E (D-21), Central Bank of India informed that they were not having any such account of Ashoka CGHS at that time (i.e. in the year 2006). With respect to the record related 1972 to 1979, it was informed that old record had been destroyed as per the guidelines.
6.12 As per the testimony of PW14 Sh. Surinder Kumar Abrol, such society was not having any account with Delhi State Cooperative Bank. In this regard, reference be made to his letter Ex. PW 4/A (D-10).
6.13 It would now be important to see the testimony of concerned official of DDA.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 20 of 856.14 PW18 Sh. Paras Nath remained posted in GH Branch of DDA and was looking after matters related to allotment of land, mutation, transfer, conversion etc. He deposed that land used to be allotted to cooperative societies on the basis of recommendations received from the office of RCS as per seniority of registration and subject to availability of land. He deposed that he handed over documents pertaining to Ashoka CGHS to CBI. Such record was available with GH Branch of DDA. Seizure memo in this regard has been proved as Ex. PW18/A (D-6) and such file related to Ashoka CGHS contained 4 noting pages and 56 correspondence pages. Entire such file has also been proved by PW18 Sh. Paras Nath as Ex. PW18/B (nothing-sheets) and Ex. PW18/C (correspondence file). He also deposed that sum of Rs. 5,000/- had also been refunded to the Secretary of the society vide cheque no. 575406 dated 25.10.1976. Such noting clearly indicates that society had applied for allotment of land in Paschim Puri area and it had also deposited Rs. 5,000/- towards earnest. Society was then offered land in Pitam Pura area but society did not make any payment towards cost of the land and, therefore, offer of land to the society was cancelled. It also becomes apparent that Sh. S.S. Upadhayay himself had collected the aforesaid cheque on 15.11.1976 from the office of DDA. Such correspondence file Ex. PW18/C also contains various details regarding the office address of the society, its registration number, date of registration and list of its members. Such society was registered on 24.04.1972 and it consisted of employees of Ashoka Hotel. It was having 125 members. There is one very important letter dated 14.07.1976 written by Ashoka CGHS whereby its Honorary Secretary Sh. Upadhyaya informed DDA that the Managing Committee of Ashoka CGHS, in terms of meeting dated 09.06.1976, recommended dissolution of the society as the terms & conditions prescribed by DDA were not acceptable to its members and accordingly it was prayed that the earnest money may be refunded and acting on the aforesaid request, the amount was refunded. It is also important to mention that such file also contains order of Sh. Ashok Bakshi dated 09.01.1979 whereby such society was put under liquidation. As already noted above, entire file pertaining to Ashoka CGHS CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 21 of 85 was shown to concerned official of RCS office and noting sheets were collectively exhibited as Ex. PW39/A and defence did not ask any question about any documents appearing either in correspondence file or even with respect to the notings.
6.15 Testimony of PW29 Sh. Ashok Bakshi also clearly indicates that Ashoka CGHS was put under liquidation by him vide order Ex. PW29/A. Nobody knows as to what steps were taken by such liquidator.
6.16 Fact, however, remains that the record collected from the DDA clearly indicates that Ashoka CGHS had decided to dissolve itself way back in 1976 and had even sought the refund from DDA.
6.17 Thus, after 1976, there was no activity in Ashoka CGHS. It seemed quite obvious as well. There was no reason for there being any activity as the society itself had decided for its dissolution. After 27 years, all of a sudden, an application for revival of society is received and one copy of the liquidation order is enclosed with such request and it is prayed that the society may be revived as all the shortcomings had been removed.
6.18 It is really inexplicable as to why the officials of RCS did not even try to seek any record or corroboration from the office of DDA or from liquidator. Why no action was taken against anyone for alleged missing record? It is obvious that no departmental enquiry was ever initiated by anyone against anyone.
6.19 If request had been made to DDA and even to the concerned liquidator, information coming from those quarters would have certainly shown that the society had itself decided to dissolve itself and was not willing to function at all.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 22 of 856.20 Rather, it was proposed to issue a circular in order to find out such record. Such proposal was approved by accused Yogi Raj and then also by accused N. Diwakar. Accordingly, a circular was issued on 03.10.2003 by Sh. Yogi Raj. Such circular is at page 5C of D-5/1. All the Branches/Zonal Offices were directed to search for the file and it was also mentioned that in the event, no reply was received within the stipulated period of one week, it would be presumed that no such file was lying in their Branch/Zone. Since no reply was received, it was further proposed by accused Niranjan Singh that the file be reconstructed from the record available with the society and accused U.S. Bhatnagar may be appointed inspecting officer to verify and examine the record. Such noting dated 15.10.2003 was also eventually approved by A-8 N. Diwakar on 16.10.2003.
6.21 According to the case of CBI, Ashoka CGHS had already taken a decision to dissolve itself and there was no question of it making any request more so after 27 years and A-5 Gokul Chand Aggarwal in connivance with officials of RCS knitted a conspiracy and submitted an application projecting himself to be Secretary of such society and prayed for its revival. It has been argued by Ms. Sharma that even actual record was got out of the sight by the official of RCS so that their misdeeds were not exposed and for namesake a circular was issued to search out for the record.
6.22 As per the report of A-2 U.S. Bhatnagar, records were seen and verified from the file of the society and such record also contained copy of registration certificate, copy of registration of bye-laws of the society copy of the proceedings of GBM dated 29.06.2003 and copy of agenda notice dated 02.06.2003 and copy of service proof of agenda notice, copy of liquidation order, copy of unaudited account since registration and copy of nomination forms. Such record is also contained in file D-5/1. During the processing of such alleged request for revival, the Secretary of the society had also furnished affidavits of its members and their respective application forms also.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 23 of 856.23 PW8 Sh. S.S. Upadhayay was shown all such record, which had been inspected and verified by A-2 U.S. Bhatnagar, and after going through the same, he claimed that list of 145 members of Ashoka CGHS which was at pages no. 214 to 217 was a bogus one. He also claimed that name of none of the employees of Ashoka Hotel was found mentioned in such list Ex. PW8/A. It, however, seems that due to some oversight, prosecution, while exhibiting document, gave number to such list as Ex. PW9/A instead of Ex. PW8/A. 6.24 PW8 Sh. S.S. Upadhayay also deposed that his name was also figuring in his such list but particulars including his age and address were wrong. He was then shown certificate of registration and he claimed that even such certificate of registration Ex. PW8/B was bogus. According to him, their society never worked from 7-B, Co-operative Group Housing Society, 7-DSET-I and rather their registered office was A-9, Ashoka Hotel Staff Quarters. Such certificate of registration has been proved as Ex. PW8/B (page 172C of D-5/1) which evidently and manifestly becomes a forged one in light of testimony of PW8 Sh. S.S. Upadhayay.
6.25 I am quite sure that RCS office would have some record with it which could have easily substantiated the falsity or exposed the deceptiveness of such registration certificate. However, no attempt to verify such registration certificate was made. Sh. S.S. Upadhayay was then shown bye-laws and such bye-laws were also labelled as bogus. Naturally, these bye-laws had been submitted in 2003 for the purpose of illegal revival of the society and Sh. Upadhayay claimed that no Mr. Hemant was ever its member. He also deposed that even the list of promoter members Ex. PW8/D (page 155C of D-5/1) was bogus and he denied his own signatures and also of Sh. J.P.S. Ahluwalia.
6.26 It is thus very much apparent that in the year 2003, the record, which had been furnished in the office of RCS by one Mr. Hemant, was fabricated and not authentic.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 24 of 856.27 Let me also see the proceeding register.
6.28 Such proceeding sheets have been exhibited as Ex. PW13/C and by virtue of such proceedings, it was attempted to show that a meeting had taken place on 29.06.2003 at A-603, Ashoka Apartment, Plot No. 36/2, Sector-7, Rohini, Delhi under the chairmanship of Sh. S.S. Upadhayay and such meeting was attended by 97 members and the members had resolved to revive the society. Such meeting was also purportedly attended by one Ms. Vimla whose name appears at serial no. 7 and who was having membership no. 131 and she denied having attended any such meeting and she also denied her signatures at point A on Ex. PW13/C. 6.29 I have already discussed above that when Ashoka CGHS had allegedly prayed for its revival in the year 2003, it also gave a list of its 145 members. According to prosecution, such list is made-up and in order to substantiate such fact, my attention has been drawn towards the testimony of PW1 Smt. Kamla Arora, PW2 Smt. Surender Kaur, PW3 Smt. Adarsh Kaur, PW16 Sh. Som Dutt Yadav, PW22 Sh. Raj Kumar Sangwan, PW23 Sh. Rajiv Kumar, PW25, Jawahar Lal Sarin, PW27 Sh. Karam Chand and PW28 Sh. Sunil Kumar Pandey. I have seen their testimony very carefully and it becomes apparent that a very big fraud was played and a bogus list was furnished in order to somehow get the land allotted from DDA.
6.30 PW1 Smt. Kamla Arora has claimed that she was never member of any such society. She also claimed that application Ex. PW1/A (page 434C of D-5/2) was not bearing her signatures and similarly she denied her signatures on affidavit Ex. PW1/B (page 96C of D-5/2). It is also important to mention that such affidavit has also been exhibited as Ex. PW9/A96. Similarly, PW2 Smt. Surender Kaur denied her signatures on application Ex. PW2/A (page-353C of D-5/2) and affidavit Ex. PW2/B (page 15C of D5/2). This affidavit has also been additionally exhibited as Ex. PW9/A15. Similarly, PW3 Smt. Adarsh Kaur also CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 25 of 85 denied her signatures on application Ex. PW3/A (page 355C of D-5/2) and on affidavit Ex. PW3/B (page 17/C of D5/2). PW16 Sh. Som Dutt Yadav has out- rightly denied that he was ever member of Ashoka CGHS. Similarly, PW22 Sh. Raj Kumar Sangwan has deposed that he was never member of any such society and he rather learnt about his name only when he was called by CBI. He claimed that neither he himself nor any member of his family had ever applied for membership of any such CGHS. Similarly, PW27 Sh. Karam Chand has deposed that he never became member of any housing society and he never applied for membership in any CGHS in Delhi. He also claimed that he never heard about Ashoka CGHS. His name also appears as member in the list furnished in the year 2003. To the similar effect is the testimony of PW28 Sh. Sunil Kumar Pandey.
6.31 Deposition of aforesaid witnesses clearly indicate that a bogus list had been furnished. Registered office of the society was A-9, Ashoka Hotel Staff Quarters and a wrong address was furnished with some ulterior motive. In this regard reference be also made to the testimony of PW25 Sh. Jawahar Lal Sarin. He is resident of B-7, NDSE Housing Society, South Extension Part-I and he claimed that no society was ever functioning from his house. During cross- examination, he was specifically put a question and it would be useful to extract such question and the corresponding answer:
Q I put it to you that in Ex. PW8/B, the address is mentioned as 7B, Cooperative Housing Society, 7 DSET-1 and this address is different from your said address. What do you say?
Ans. To me it appears to be a typographical error by the sender and he wanted to mention my address.
6.32 Undoubtedly, address is not very clear but fact remains that as per the evidence and uncontroverted testimony of Sh. S.S. Upadhayay, Ashoka CGHS was having its office at A-9, Ashoka Hotel Staff Quarters and not CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 26 of 85 anywhere else and, therefore, the testimony of PW25 Sh. Sarin gives necessary impetus to the case of prosecution. It is really astonishing as to why RCS official did not even try to ascertain the recorded address of such society. I am not ready to buy that each such basic detail was not available with the office of RCS. Curiously, copy of liquidation order submitted before the office of RCS itself indicated that such Ashoka CGHS was having its office at A-9, Ashoka Hotel Staff Quarters and despite that RCS officials did not try to find out the reason behind such anomaly and difference in address. Such address of NDSE- Part-1 was never recorded anywhere at the time of original registration in 1972 and thus even the Registration Certificate had been fabricated.
6.33 Elections had purportedly been conducted in January 2003 under the chairmanship of Sh. S.S. Upadhayay but Sh. Upadhayay had not said so at all. He was available for cross-examination and if any of the accused wanted to show that the proceeding register was containing correct record and that the election was in fact held on 29.06.2003, it could have very well easily put a specific question in this regard to him. Nothing of that sort had been done. No suggestion was put to him on this score.
6.34 Let me now see as to who was this mysterious Hemant who had prayed for revival of society vide letter dated 16.09.2003.
6.35 According to specific case of CBI, it is A-5 Gokul Chand Aggarwal who impersonated as Hemant and had been interacting with the various officials of RCS for illegal and unauthorized revival of Ashoka CGHS. As already discussed above, no one had ever approached RCS for the last 27 years and it was only in the year 2003 that one application purportedly signed by one Hemant, Secretary of Ashoka CGHS is received whereby it is prayed that the shortcomings had been removed, therefore, winding up order be cancelled and society be allowed to function.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 27 of 856.36 A-5 Gokul Chand Aggarwal has pleaded innocence. According to him, he had no concern with the society in question and he was neither its member nor its office bearer and he never signed in any capacity whatsoever in connection with the any of the alleged documents related to Ashoka CGHS. He also claimed that he never visited the office of RCS in connection with alleged revival. His such stand is very much apparent from the comprehensive written statement filed by him u/s 313 (5) Cr.P.C.
6.37 Let me see as to who can establish that it was A-5 only who had been appearing before the office of RCS and representing Ashoka CGHS pursuant to application dated 19.09.2003.
6.38 I have seen various notings contained in D-5/1. As already noted above, there is no dispute with respect to the notings and the signatures of various RCS officials appearing thereon. Reference be also made to the testimony of PW39 Sh. Daya Nand Sharma who was shown the correspondence file pertaining to Ashoka CGHS and who identified signatures of accused Yogi Raj, Faiz Mohd., Ram Nath and N. Diwakar. When his deposition was recorded, all the concerned public servants-accused claimed that they did not dispute their signatures on such notings and they all except accused P.K. Thirwani stated before the court on 15.02.2013 that they did not dispute the exhibition of report of Sh. M.C. Joshi, GEQD either.
6.39 Someone, in flesh and blood, must have been interacting with the RCS officials but it is surprising as to why none of such RCS official mustered courage and revealed the name of that person. None of them admitted before the Court that it was A-5 Gokul Chand Aggarwal who had been interacting with them and who had been representing Ashoka CGHS. For totally unfathomable reasons, they have chosen to remain tight-lipped and even during the course of final arguments, they did not dare to raise accusing finger towards A-5 Gokul Chand Aggarwal. Should I assume their silence to be an indicator of their being CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 28 of 85 co-conspirator with A-5 Gokul Chand Aggarwal? Suffice it to say that in written statement u/s 313 (5) Cr.P.C. only A-4 Faiz Mohd. had shown some guts in this regard. In Para-15 of his written statement (Ex. A-4), he claimed that RCS officials had been apparently duped by said impersonator Sh. Gokul Chand Aggarwal who posed as Hemant, Secretary of society.
6.40 Though CBI was having sufficient evidence with it, yet, I strongly feel that in such type of matters, it would have certainly given extra momentum to its case if it had chosen to make at least one such RCS official as approver so as to acquire additional corroboration on this crucial aspect of the case.
6.41 I would hasten to supplement that one Mr. Hemant was in fact a genuine member of Ashoka CGHS whose name is found mentioned at serial no. 42 of the list of members. As per the charge-sheet, Sh. Hemant has been labeled as non-existing/fictitious person. Defence cannot be permitted to take out any advantage on this score. CBI merely wants to emphasize and stress that though the application had come from one Hemant who signed as Secretary of Ashoka CGHS but in fact actual Ashoka CGHS had never authorized any such Hemant and it is only in that context that that Hemant has been claimed to be a non-existing/fictitious person.
6.42 In the notings, presence of such Hemant is nowhere specifically mentioned except for 21.11.2003 but undoubtedly, concerned RCS officials must be in touch with him. As per report of Insp. U.S. Bhatnagar, he had gone to the office of the society and met Hemant, Secretary of the society who had produced the relevant record. Matter was thereafter sent to the Court of RCS for consideration where one Rashmi Gulati, Advocate represented the society.
6.43 Naturally, such Rashmi Gulati is found to be an important witness. Her statement u/s 161 Cr.P.C. was recorded during the investigation and as LW23 she had claimed that she never appeared before RCS and she was only CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 29 of 85 contacted by one Sri Chand and she never filed any Vakalatnama. Such key witness was, however, not examined by the prosecution.
6.44 PW41 Sh. Mahender Singh also remained posted in RCS office and he was in North-West Zone till 2005. He claimed that there were two Assistant Registrars in North-West RCS office i.e. he himself and A-1 Yogi Raj. He deposed that accused Gokul Chand Aggarwal also used to frequently visit RCS office and used to meet A-1 Yogi Raj. So much so, he also claimed that whatever letter or correspondence used to be meant for Gokul Chand Aggarwal, he used to give the same to him under acknowledgment/ signatures as per the orders of Sh. Yogi Raj. He also deposed that he could not identify his signatures as such Gokul Chand Aggarwal used to make different types of signatures. He also deposed that Gokul Chand Aggarwal used to collect letters with respect to two or three societies. Needless to say that during the trial, PW41 Sh. Mahender Singh also correctly identified Sh. Gokul Chand Aggarwal.
6.45 Sh. Mehta, learned counsel for A-5 has contended that testimony of PW41 Mahender Singh does not take the case of CBI anywhere as his testimony is vague and unspecific. He has also claimed that no definite reference was made by said witness to any document on which Sh. Gokul Chand Aggarwal might have signed before him and this witness also did not make reference to any specific document which might have received by Gokul Chand Aggarwal directly from him. Undoubtedly, his testimony is not very pinpointed and clear- cut qua Ashoka CGHS but it does indicate that accused Gokul Chand Aggarwal used to frequently visit the RCS office and also used to meet accused Yogi Raj. He also used to collect letters with respect to two or three societies and used to sign differently. This particular aspect of the case could not be dislodged even when this witness was grilled by the counsel for A-5 Gokul Chand Aggarwal during the cross-examination. Moreover, A-5 has not bothered to explain as to why he had been going to RCS office.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 30 of 856.46 Now comes a very significant evidence against A-5 Gokul Chand Aggarwal.
6.47 During investigation, CBI took the help of handwriting expert and sent various questioned handwritings and signatures to CFSL Chandigarh and as per the report of such expert, it was found that it was A-5 Sh. Gokul Chand Aggarwal who had been signing as Hemant besides other office bearers.
6.48 On this aspect, defence has seriously disputed the manner of taking specimen handwriting/signatures. It has been argued that specimen handwriting/signatures had been taken without the orders of the Court and moreover accused was coerced to write specimen writing in a specific manner which was absolutely against the principles of taking specimen handwriting/signatures for the purpose of comparison. Specimen handwriting of Gokul Chand Aggarwal had been taken when he was in judicial custody in other case and was lodged in Central Jail Tihar.
6.49 In this regard, reference be made to the testimony of PW44 Sh. Kuldeep Mishra who was posted as Assistant Superintendent, Central Jail No. 4 during the relevant period. He has deposed that CBI officials had come to Tihar for obtaining specimen signatures of some of the accused who were lodged in Tihar Jail and he deposed that signatures of accused Gokul Chand Aggarwal had been taken by CBI in his presence.
6.50 Such specimen sheets have been proved as Ex. PW42/A (S-1 to S-22 of D-10). Undoubtedly, specimen handwriting had been taken without express and specific order of the Court. PW43 Sh. Manjeet Singh has also admitted such fact though he somewhat clarified that since he had taken the permission from the Court to interrogate him, taking of specimen handwriting and signatures was also with the permission from the Court. He, however, admitted that he did not recall whether he had taken any specific permission from the CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 31 of 85 Court for taking specimen handwriting. He claimed that he was provided a separate room and one assistant was deputed by Jail Superintendent and then he had taken the specimen handwriting. He also deposed that specimen handwriting of any such person is taken by showing questioned documents and any such accused is then asked to write in the same manner. He denied that procedure adopted by him for taking specimen handwriting was wrong. He also denied that such specimen handwriting had been taken when witness Kuldeep Mishra was not present.
6.51 I would like to mention right here that there is no specific suggestion that these specimen handwritings were not of Gokul Chand Aggarwal. There is also no suggestion that Gokul Chand Aggarwal had been coerced to give specimen handwriting.
6.52 Undoubtedly, as per one judgment of our own High Court relied upon by defence and cited as Sapan Haldar & Anr. Vs. State 191 (2012) DLT 225, Delhi High Court, investigating officer has no power to take specimen handwriting or signatures but there is one Apex Court ruling on the same issue which is to the contrary. In the case of Ravindra Singh @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, Hon'ble Apex Court has, in no uncertain terms, held that investigating officer has power to take specimen signature during the investigation even without permission of the Court and that report of any such expert based on such specimen signatures/writing could be used as evidence. Reference be also made to Umesh Kumar Vs. State of A.P. 2013 (IX) AD SC 581 which declares that even if a document is obtained in improper and illegal manner, there is no bar to its admissibility provided such document is relevant and its genuineness is also substantiated. Viewed from any angle, I do not find merit in the defence contention that the specimen handwriting/ signatures could not have been taken without the orders of the Court. Moreover, accused Gokul Chand Aggarwal was already running in judicial custody and was lodged in Tihar Jail in connection with other cases and investigating officer had CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 32 of 85 gone to interrogate him with a specific permission of the Court. Since interrogation was as per order of the Court, while interrogating, such investigating officer was not prohibited or debarred from taking specimen handwriting of any such accused under interrogation. As I have already observed above, there is no suggestion to PW43 Sh. Manjeet Singh (IO) or to PW44 Sh. Kuldeep Mishra (attesting witness) that A-5 Gokul Chand Aggarwal was coerced to give specimen handwriting/ signatures and, therefore, it has to be necessarily inferred that A-5 had given his specimen handwriting/signatures voluntarily.
6.53 PW42 Sh. M.C. Joshi had examined the documents in question. His qualifications evidently make him fall within the category of expert. He is having vast experience in the field of examination of handwriting and at the relevant point of time, he was Assistant Government Examiner of Questioned Documents, Directorate of Forensic Sciences, Ministry of Home Affairs, Government of India and was posted in Chandigarh. He was supplied with questioned documents as well as the specimen handwritings of various accused including A-5 Gokul Chand Aggarwal and after careful and thorough scientific examination, he gave opinion.
6.54 As per report of PW42 Sh. M.C. Joshi Ex. PW42/C (part of D-11), questioned handwriting had been written by one and same person i.e. A-5 Gokul Chand Aggarwal (author of specimen handwriting from S-1 to S-22). Such questioned handwritings are as under:-
S. Q Number Description of document D, Page & Exhibit Signed as No. Number 1 Q1 Letter to cancel the windup D-5/1, 601 Hemant, Secretary, Ashoka Hotel order u/s 63 of Ashoka Karamchari CGHS.
Karamchari CGHS.
2 Q2 R.C.S.D From No. 13 D-5/1, 263 Hemant, Secretary, Ashoka Hotel
Ex. PW8/B Karamchari CGHS.
3 Q3-Q18 Bye-laws of CGHS Ltd. D-5/1, 265-295 Hemant, Secretary, Ashoka Hotel
Ex. PW8/C Karamchari CGHS.
4 Q19 Name of promoter member. D-5/1, 297 Hemant, Secretary, Ashoka Hotel
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 33 of 85
Ex. PW8/D Karamchari CGHS.
5 Q20-Q26 Proceeding Register D-5/1, 249-261 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
6 Q27-Q33 Nomination forms D-5/1, 235-247 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
7 Q34-Q37 Meeting notice letter D-5/1, 227-233 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
8 Q38-Q41 Photocopy of UPC receipt D-5/1, 219-225 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
9 Q42 Inspection report D-5/1, 213 Hemant, Office Bearer of Ashoka Hotel
Karamchari CGHS.
10 Q43 Letter for submission of record D-5/1, 211 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
11 Q44-Q47 Affidavit of Hemant Kumar. D-5/1, 201 & 203 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
12 Q48 & Q49 Affidavit of Balram Singh. D-5/1, 205 Balram, President, Ashoka Hotel
Karamchari CGHS.
13 Q50 List of present Managing D-5/1, 181 Hemant, Secretary, Ashoka Hotel
Committee Karamchari CGHS.
14 Q51-Q58 Affidavit of Hemant Kumar. D-5/1, 159-171 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
15 Q59, Q62, Q65 List of members of Ashoka D-5/1, 145-151 Balram, President, Ashoka Hotel
& Q68 CGHS Karamchari CGHS.
16 Q60, Q63, Q66 List of members of Ashoka D-5/1, 145-151 Kawaljit Singh, Vice President, Ashoka
& Q69 CGHS Hotel Karamchari CGHS.
17 Q61, Q64, Q67 List of members of Ashoka D-5/1, 145-151 Hemant, Secretary, Ashoka Hotel
& Q70 CGHS Karamchari CGHS.
18 Q74-Q75 Affidavit of Hemant Kumar D-5/2, 3385 Hemant Kumar.
Ex. PW9/A104
19 Q76-Q77 Affidavit of Balram Singh D-5/2, 3465 Balram.
20 Q80 Consolidated list of member D-5/2, 2631 Hemant, Secretary, Ashoka Hotel
resigned Karamchari CGHS.
21 Q81-Q84 Receipt of withdrawal of D-5/2, 2633-2639 Hemant, Secretary, Ashoka Hotel
membership Karamchari CGHS.
22 Q85-Q88 Consolidated list of member D-5/2, 2641-2647 Hemant, Secretary, Ashoka Hotel
enrolled Karamchari CGHS.
22 Q89-Q126 Applications for becoming D-5/2, 2649-2723 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
23 Q127 Application for becoming D-5/2, 2725 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW1/A Karamchari CGHS.
24 Q128-Q161 Applications for becoming D-5/2, 2727-2793 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
25 Q162 Application for becoming D-5/2, 2795 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW12/B Karamchari CGHS.
26 Q163 Application for becoming D-5/2, 2797 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
27 Q164 Application for becoming D-5/2, 2799 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW26/D Karamchari CGHS.
28 Q165 Application for becoming D-5/2, 2801 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
29 Q166 Application for becoming D-5/2, 2803 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW26/C Karamchari CGHS.
30 Q167-Q203 Applications for becoming D-5/2, 2805-2877 Hemant, Secretary, Ashoka Hotel
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 34 of 85
member of Ashoka CGHS. Karamchari CGHS.
31 Q204 Application for becoming D-5/2, 2879 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW13/A Karamchari CGHS.
32 Q205 Application for becoming D-5/2, 2881 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
33 Q206 Application for becoming D-5/2, 2883 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW3/A Karamchari CGHS.
34 Q207 Application for becoming D-5/2, 2885 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Karamchari CGHS.
35 Q208 Application for becoming D-5/2, 2887 Hemant, Secretary, Ashoka Hotel
member of Ashoka CGHS. Ex. PW2/A Karamchari CGHS.
36 Q208A, Q209- Applications for becoming D-5/2, 2889-2915 Hemant, Secretary, Ashoka Hotel
Q211A & member of Ashoka CGHS. Karamchari CGHS.
Q212-Q220
37 Q221-Q231A Receipts D-5/2, 2917-2937 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
38 Q231-Q243 Receipts D-5/2, 2939-2963 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
39 Q244 Receipt D-5/2, 2965 Hemant, Secretary, Ashoka Hotel
Ex. PW12/A Karamchari CGHS.
40 Q245-Q257 Receipts D-5/2, 2967-2991 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
41 Q258 Receipt D-5/2, 2993 Hemant, Secretary, Ashoka Hotel
Ex. PW13/B Karamchari CGHS.
42 Q259-Q264 Receipts D-5/2, 2995-3005 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
43 Q306 Balance-sheet as on 31.03.03 D-13, 1273 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
44 Q307 Balance-sheet as on 31.03.03 D-13, 1273 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
45 Q309 Receipt & payment account for D-13, 1275 Balram Singh, President, Ashoka Hotel
the year ending 31.03.03 Karamchari CGHS.
46 Q310 Receipt & payment account for D-13, 1275 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.03 Karamchari CGHS.
47 Q313 List of member resigned D-13, 1279 Hemant, Secretary, Ashoka Hotel
during the 02-03 Karamchari CGHS.
48 Q314-Q318 List of members for the period D-13, 1281-1289 Hemant, Secretary, Ashoka Hotel
1974-75 to 2002-03 Karamchari CGHS.
49 Q319 List of present Managing D-13, 1291 Hemant, Secretary, Ashoka Hotel
Committee Karamchari CGHS.
50 Q320 Balance-sheet as on 31.03.02 D-13, 1293 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
51 Q321 Balance-sheet as on 31.03.02 D-13, 1293 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
52 Q323 Receipt & payment account for D-13, 1295 Balram Singh, President, Ashoka Hotel
the year ending 31.03.02 Karamchari CGHS.
53 Q324 Receipt & payment account for D-13, 1295 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.02 Karamchari CGHS.
54 Q328 List of member resigned D-13, 1299 Hemant, Secretary, Ashoka Hotel
during the year 01-02 Karamchari CGHS.
55 Q329 Balance-sheet as on 31.03.01 D-13, 1301 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
56 Q330 Balance-sheet as on 31.03.01 D-13, 1301 Hemant, Secretary, Ashoka Hotel
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 35 of 85
Karamchari CGHS.
57 Q332 Receipt & payment account for D-13, 1303 Balram Singh, President, Ashoka Hotel
the year ending 31.03.01 Karamchari CGHS.
58 Q333 Receipt & payment account for D-13, 1303 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.01 Karamchari CGHS.
59 Q336 List of member resigned D-13, 1307 Hemant, Secretary, Ashoka Hotel
during the year 00-01 Karamchari CGHS.
60 Q337 Balance-sheet as on 31.03.00 D-13, 1309 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
61 Q338 Balance-sheet as on 31.03.00 D-13, 1309 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
62 Q340 Receipt & payment account for D-13, 1311 Balram Singh, President, Ashoka Hotel
the year ending 31.03.00 Karamchari CGHS.
63 Q341 Receipt & payment account for D-13, 1311 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.00 Karamchari CGHS.
64 Q344 List of member resigned D-13, 1315 Hemant, Secretary, Ashoka Hotel
during the year 99-00 Karamchari CGHS.
65 Q345 Balance-sheet as on 31.03.99 D-13, 1317 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
66 Q346 Balance-sheet as on 31.03.99 D-13, 1317 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
67 Q348 Receipt & payment account for D-13, 1319 Balram Singh, President, Ashoka Hotel
the year ending 31.03.99 Karamchari CGHS.
68 Q349 Receipt & payment account for D-13, 1319 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.99 Karamchari CGHS.
69 Q351 List of member resigned D-13, 1323 Hemant, Secretary, Ashoka Hotel
during the year 98-99 Karamchari CGHS.
70 Q352 Balance-sheet as on 31.03.98 D-13, 1325 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
71 Q353 Balance-sheet as on 31.03.98 D-13, 1325 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
72 Q355 Receipt & payment account for D-13, 1327 Balram Singh, President, Ashoka Hotel
the year ending 31.03.98 Karamchari CGHS.
73 Q356 Receipt & payment account for D-13, 1327 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.98 Karamchari CGHS.
74 Q359 List of member resigned D-13, 1331 Hemant, Secretary, Ashoka Hotel
during the year 97-98 Karamchari CGHS.
75 Q360 Balance-sheet as on 31.03.97 D-13, 1333 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
76 Q361 Balance-sheet as on 31.03.97 D-13, 1333 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
77 Q363 Receipt & payment account for D-13, 1335 Balram Singh, President, Ashoka Hotel
the year ending 31.03.97 Karamchari CGHS.
78 Q364 Receipt & payment account for D-13, 1335 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.97 Karamchari CGHS.
79 Q367 List of member resigned D-13, 1339 Hemant, Secretary, Ashoka Hotel
during the year 96-97 Karamchari CGHS.
80 Q368 Balance-sheet as on 31.03.96 D-13, 1341 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
81 Q369 Balance-sheet as on 31.03.96 D-13, 1341 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
82 Q371 Receipt & payment account for D-13, 1343 Balram Singh, President, Ashoka Hotel
the year ending 31.03.96 Karamchari CGHS.
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83 Q372 Receipt & payment account for D-13, 1343 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.96 Karamchari CGHS.
84 Q375 List of member resigned D-13, 1347 Hemant, Secretary, Ashoka Hotel
during the year 95-96 Karamchari CGHS.
85 Q376 Balance-sheet as on 31.03.95 D-13, 1349 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
86 Q377 Balance-sheet as on 31.03.95 D-13, 1349 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
87 Q379 Receipt & payment account for D-13, 1351 Balram Singh, President, Ashoka Hotel
the year ending 31.03.95 Karamchari CGHS.
88 Q380 Receipt & payment account for D-13, 1351 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.95 Karamchari CGHS.
89 Q383 List of member resigned D-13, 1355 Hemant, Secretary, Ashoka Hotel
during the year 94-95 Karamchari CGHS.
90 Q384 Balance-sheet as on 31.03.94 D-13, 1357 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
91 Q385 Balance-sheet as on 31.03.94 D-13, 1357 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
92 Q387 Receipt & payment account for D-13, 1359 Balram Singh, President, Ashoka Hotel
the year ending 31.03.94 Karamchari CGHS.
93 Q388 Receipt & payment account for D-13, 1359 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.94 Karamchari CGHS.
94 Q391 List of member resigned D-13, 1363 Hemant, Secretary, Ashoka Hotel
during the year 93-94 Karamchari CGHS.
95 Q392 Balance-sheet as on 31.03.93 D-13, 1365 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
96 Q393 Balance-sheet as on 31.03.93 D-13, 1365 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
97 Q395 Receipt & payment account for D-13, 1367 Balram Singh, President, Ashoka Hotel
the year ending 31.03.93 Karamchari CGHS.
98 Q396 Receipt & payment account for D-13, 1367 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.93 Karamchari CGHS.
99 Q399 List of member resigned D-13, 1371 Hemant, Secretary, Ashoka Hotel
during the year 92-93 Karamchari CGHS.
100 Q400 Balance-sheet as on 31.03.92 D-13, 1373 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
101 Q401 Balance-sheet as on 31.03.92 D-13, 1373 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
102 Q403 Receipt & payment account for D-13, 1375 Balram Singh, President, Ashoka Hotel
the year ending 31.03.92 Karamchari CGHS.
103 Q404 Receipt & payment account for D-13, 1375 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.92 Karamchari CGHS.
104 Q407 List of member resigned D-13, 1379 Hemant, Secretary, Ashoka Hotel
during the year 91-92 Karamchari CGHS.
105 Q408 Balance-sheet as on 31.03.91 D-13, 1381 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
106 Q409 Balance-sheet as on 31.03.91 D-13, 1381 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
107 Q411 Receipt & payment account for D-13, 1383 Balram Singh, President, Ashoka Hotel
the year ending 31.03.91 Karamchari CGHS.
108 Q412 Receipt & payment account for D-13, 1383 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.91 Karamchari CGHS.
109 Q415 List of member resigned D-13, 1387 Hemant, Secretary, Ashoka Hotel
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during the year 90-91 Karamchari CGHS.
110 Q416 Balance-sheet as on 31.03.90 D-13, 1389 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
111 Q417 Balance-sheet as on 31.03.90 D-13, 1389 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
112 Q419 Receipt & payment account for D-13, 1393 Balram Singh, President, Ashoka Hotel
the year ending 31.03.90 Karamchari CGHS.
113 Q420 Receipt & payment account for D-13, 1393 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.90 Karamchari CGHS.
114 Q423 List of member resigned D-13, 1395 Hemant, Secretary, Ashoka Hotel
during the year 89-90 Karamchari CGHS.
115 Q424 Balance-sheet as on 31.03.89 D-13, 1397 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
116 Q425 Balance-sheet as on 31.03.89 D-13, 1397 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
117 Q427 Receipt & payment account for D-13, 1399 Balram Singh, President, Ashoka Hotel
the year ending 31.03.89 Karamchari CGHS.
118 Q428 Receipt & payment account for D-13, 1399 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.89 Karamchari CGHS.
119 Q431 List of member resigned D-13, 1403 Hemant, Secretary, Ashoka Hotel
during the year 88-89 Karamchari CGHS.
120 Q432 Balance-sheet as on 31.03.88 D-13, 1405 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
121 Q433 Balance-sheet as on 31.03.88 D-13, 1405 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
122 Q435 Receipt & payment account for D-13, 1407 Balram Singh, President, Ashoka Hotel
the year ending 31.03.88 Karamchari CGHS.
123 Q436 Receipt & payment account for D-13, 1407 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.88 Karamchari CGHS.
124 Q439 List of member resigned D-13, 1411 Hemant, Secretary, Ashoka Hotel
during the year 87-88 Karamchari CGHS.
125 Q440 Balance-sheet as on 31.03.87 D-13, 1413 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
126 Q441 Balance-sheet as on 31.03.87 D-13, 1413 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
127 Q442 Receipt & payment account for D-13, 1415 Balram Singh, President, Ashoka Hotel
the year ending 31.03.87 Karamchari CGHS.
128 Q443 Receipt & payment account for D-13, 1415 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.87 Karamchari CGHS.
129 Q446 List of member resigned D-13, 1417 Hemant, Secretary, Ashoka Hotel
during the year 86-87 Karamchari CGHS.
130 Q447 Balance-sheet as on 31.03.86 D-13, 1419 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
131 Q448 Balance-sheet as on 31.03.86 D-13, 1419 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
132 Q450 Receipt & payment account for D-13, 1423 Balram Singh, President, Ashoka Hotel
the year ending 31.03.86 Karamchari CGHS.
133 Q451 Receipt & payment account for D-13, 1423 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.86 Karamchari CGHS.
134 Q454 List of member resigned D-13, 1427 Hemant, Secretary, Ashoka Hotel
during the year 85-86 Karamchari CGHS.
135 Q455 Balance-sheet as on 31.03.85 D-13, 1429 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
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136 Q456 Balance-sheet as on 31.03.85 D-13, 1429 Hemant, Secretary, Ashoka Hotel
Karamchari CGHS.
137 Q457 Balance-sheet as on 31.03.85 D-13, 1429 Santosh Kumar, Treasurer, Ashoka Hotel
Karamchari CGHS.
138 Q458 Receipt & payment account for D-13, 1431 Balram Singh, President, Ashoka Hotel
the year ending 31.03.85 Karamchari CGHS.
139 Q459 Receipt & payment account for D-13, 1431 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.85 Karamchari CGHS.
140 Q462 List of member resigned D-13, 1435 Hemant, Secretary, Ashoka Hotel
during the year 84-85 Karamchari CGHS.
141 Q463 Balance-sheet as on 31.03.84 D-13, 1437 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
142 Q464 Balance-sheet as on 31.03.84 D-13, 1437 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
143 Q466 Receipt & payment account for D-13, 1439 Balram Singh, President, Ashoka Hotel
the year ending 31.03.84 Karamchari CGHS.
144 Q467 Receipt & payment account for D-13, 1439 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.84 Karamchari CGHS.
145 Q470 List of member resigned D-13, 1443 Hemant, Secretary, Ashoka Hotel
during the year 83-84 Karamchari CGHS.
146 Q471 Balance-sheet as on 31.03.83 D-13, 1445 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
147 Q472 Balance-sheet as on 31.03.83 D-13, 1445 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
148 Q474 Receipt & payment account for D-13, 1447 Balram Singh, President, Ashoka Hotel
the year ending 31.03.83 Karamchari CGHS.
149 Q475 Receipt & payment account for D-13, 1447 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.83 Karamchari CGHS.
150 Q478 List of member resigned D-13, 1451 Hemant, Secretary, Ashoka Hotel
during the year 82-83 Karamchari CGHS.
151 Q479 Balance-sheet as on 31.03.82 D-13, 1453 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
152 Q480 Balance-sheet as on 31.03.82 D-13, 1453 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
153 Q482 Receipt & payment account for D-13, 1455 Balram Singh, President, Ashoka Hotel
the year ending 31.03.82 Karamchari CGHS.
154 Q483 Receipt & payment account for D-13, 1455 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.82 Karamchari CGHS.
155 Q486 List of member resigned D-13, 1459 Hemant, Secretary, Ashoka Hotel
during the year 81-82 Karamchari CGHS.
156 Q487 Balance-sheet as on 31.03.81 D-13, 1461 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
157 Q488 Balance-sheet as on 31.03.81 D-13, 1461 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
158 Q490 Receipt & payment account for D-13, 1463 Balram Singh, President, Ashoka Hotel
the year ending 31.03.81 Karamchari CGHS.
159 Q491 Receipt & payment account for D-13, 1463 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.81 Karamchari CGHS.
160 Q494 List of member resigned D-13, 1467 Hemant, Secretary, Ashoka Hotel
during the year 80-81 Karamchari CGHS.
161 Q494/1 Balance-sheet as on 31.03.80 D-13, 1469 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
162 Q495 Balance-sheet as on 31.03.80 D-13, 1469 Hemant, Secretary Ashoka Hotel
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 39 of 85
Karamchari CGHS.
163 Q496 Balance-sheet as on 31.03.80 D-13, 1469 Santosh Kumar, Treasurer, Ashoka Hotel
Karamchari CGHS.
164 Q497 Receipt & payment account for D-13, 1471 Balram Singh, President, Ashoka Hotel
the year ending 31.03.80 Karamchari CGHS.
165 Q498 Receipt & payment account for D-13, 1471 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.80 Karamchari CGHS.
166 Q501 List of member resigned D-13, 1475 Hemant, Secretary, Ashoka Hotel
during the year 79-80 Karamchari CGHS.
167 Q502 Balance-sheet as on 31.03.79 D-13, 1477 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
168 Q503 Balance-sheet as on 31.03.79 D-13, 1477 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
169 Q505 Receipt & payment account for D-13, 1479 Balram Singh, President, Ashoka Hotel
the year ending 31.03.79 Karamchari CGHS.
170 Q506 Receipt & payment account for D-13, 1479 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.79 Karamchari CGHS.
171 Q509 List of member resigned D-13, 1483 Hemant, Secretary, Ashoka Hotel
during the year 78-79 Karamchari CGHS.
172 Q510 Balance-sheet as on 31.03.78 D-13, 1485 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
173 Q511 Balance-sheet as on 31.03.78 D-13, 1485 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
174 Q513 Receipt & payment account for D-13, 1487 Balram Singh, President, Ashoka Hotel
the year ending 31.03.78 Karamchari CGHS.
175 Q514 Receipt & payment account for D-13, 1487 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.78 Karamchari CGHS.
176 Q517 List of member resigned D-13, 1491 Hemant, Secretary, Ashoka Hotel
during the year 77-78 Karamchari CGHS.
177 Q518 Balance-sheet as on 31.03.77 D-13, 1493 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
178 Q519 Balance-sheet as on 31.03.77 D-13, 1493 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
179 Q521 Receipt & payment account for D-13, 1495 Balram Singh, President, Ashoka Hotel
the year ending 31.03.77 Karamchari CGHS.
180 Q522 Receipt & payment account for D-13, 1495 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.77 Karamchari CGHS.
181 Q525 List of member resigned D-13, 1499 Hemant, Secretary, Ashoka Hotel
during the year 76-77 Karamchari CGHS.
182 Q526 Balance-sheet as on 31.03.76 D-13, 1501 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
183 Q527 Balance-sheet as on 31.03.76 D-13, 1501 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
184 Q529 Receipt & payment account for D-13, 1503 Balram Singh, President, Ashoka Hotel
the year ending 31.03.76 Karamchari CGHS.
185 Q530 Receipt & payment account for D-13, 1503 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.76 Karamchari CGHS.
186 Q533 List of member resigned D-13, 1507 Hemant, Secretary, Ashoka Hotel
during the year 75-76 Karamchari CGHS.
187 Q534 List of member enrolled during D-13, 1509 Hemant, Secretary, Ashoka Hotel
the year 75-76 Karamchari CGHS.
188 Q535 Balance-sheet as on 31.03.75 D-13, 1511 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 40 of 85
189 Q536 Balance-sheet as on 31.03.75 D-13, 1511 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
190 Q538 Receipt & payment account for D-13, 1513 Balram Singh, President, Ashoka Hotel
the year ending 31.03.75 Karamchari CGHS.
191 Q539 Receipt & payment account for D-13, 1513 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.75 Karamchari CGHS.
192 Q542 List of member resigned D-13, 1517 Hemant, Secretary, Ashoka Hotel
during the year 74-75 Karamchari CGHS.
193 Q543 List of member enrolled during D-13, 1519 Hemant, Secretary, Ashoka Hotel
the year 74-75 Karamchari CGHS.
194 Q544-Q548 List of member for the period D-13, 1521-1529 Hemant, Secretary, Ashoka Hotel
74-75 to 02-03. Karamchari CGHS.
195 Q549 Balance-sheet as on 31.03.74 D-13, 1531 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
196 Q550 Balance-sheet as on 31.03.74 D-13, 1531 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
197 Q552 Receipt & payment account for D-13, 1533 Balram Singh, President, Ashoka Hotel
the year ending 31.03.74 Karamchari CGHS.
198 Q553 Receipt & payment account for D-13, 1533 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.74 Karamchari CGHS.
199 Q556 List of member resigned D-13, 1537 Hemant, Secretary, Ashoka Hotel
during the year 73-74 Karamchari CGHS.
200 Q557-Q558 List of member enrolled during D-13, 1539-1541 Hemant, Secretary, Ashoka Hotel
the year 73-74. Karamchari CGHS.
201 Q559-Q561 List of members for the year D-13, 1543-1547 Hemant, Secretary, Ashoka Hotel
73-74 Karamchari CGHS.
202 Q562 Receipt & payment account for D-13, 1549 Balram Singh, President, Ashoka Hotel
the year ending 31.03.73 Karamchari CGHS.
203 Q563 Receipt & payment account for D-13, 1549 Hemant, Secretary, Ashoka Hotel
the year ending 31.03.73 Karamchari CGHS.
204 Q565 Balance-sheet as on 31.03.73 D-13, 1551 Balram Singh, President, Ashoka Hotel
Karamchari CGHS.
205 Q566 Balance-sheet as on 31.03.73 D-13, 1551 Hemant, Secretary Ashoka Hotel
Karamchari CGHS.
206 Q569 List of member resigned D-13, 1555 Hemant, Secretary, Ashoka Hotel
during the year 72-73 Karamchari CGHS.
207 Q570-Q571 List of member enrolled during D-13, 1557-1559 Hemant, Secretary, Ashoka Hotel
the year 72-73 Karamchari CGHS.
208 Q572-Q573 List of members for the year D-13, 1561-1563 Hemant, Secretary, Ashoka Hotel
72-73. Karamchari CGHS.
209 Q-574 List of present Managing D-13, 1565 Hemant, Secretary, Ashoka Hotel
Committee Karamchari CGHS.
210 Q575 List of Books of Accounts & D-13, 1567 Hemant, Secretary, Ashoka Hotel
Records. Karamchari CGHS.
6.55 Aforesaid report of Sh. Joshi would definitely indicate that it was
A-5 Sh. Gokul Chand Aggarwal who had been writing and signing as Balram Singh, Hemant and Santosh Kumar. Though Sh. Joshi has been grilled exhaustively yet fact remains that defence could not show any infirmity either in CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 41 of 85 the report or in the deposition of expert.
6.56 PW35 Sh. M.C. Joshi was asked numerous questions. I have seen questions and corresponding answers put to him and his evidence remains unshaken, fully believable and reliable. He was asked as to what precautions were to be taken for taking specimen handwritings. He claimed that he could not comment because that was the job of the concerned investigating officer. He, however, supplemented that any expert generally and invariably wants to ascertain the commonality of the writing characteristic between the two sets. He also deposed that sufficient handwritings had been supplied to him for comparison. He also deposed that specimen handwritings were found freely written with continuity, speed and freedom. He also deposed that he did not observe any material dissimilarity characteristics between questioned and specimen writing. It would be also important to mention that expert had labelled the writer of specimen writing as a 'versatile' writer and, therefore, a specific question in this regard was put to him. It will be worthwhile to extract such question and corresponding answer:
Q The opinion "that the writer of specimen writing is a versatile writer who has got more than one form of character at his command and can switch over at will from one design of letter to the other design etc." is contrary to the Handwriting Principles (i. e. 'the handwriting of every mature writer is personal and individual to him, two different persons cannot write in similar style, a writer cannot exceed his writing skill and ability, a person cannot adopt different styles of writings at different times as to change one's normal style of writing is an exceedingly difficult task, handwriting does not exclusively depends upon the physical movement of the hand or the writing instrument used)?
A It is correct that a person cannot exceed from the skill of the writing what he possesses but authorities do say that some improvement over that is possible with sufficient exercise and practice. In this case, I have written the word "versatile writer" to prove the point that he writes few characters varying in form but the same were duly accounted for from his specimen writings.CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 42 of 85
6.57 All in all his examination clearly indicates that he noted various features which confirmed that all such questioned writings and specimen writings were written by one and the same person and the variations noted were mere natural variations.
6.58 There is nothing to show that Sh. Joshi did not apply proper procedure for comparison purpose. Opinion of expert is relevant fact as per Section 45 of Indian Evidence Act.
6.59 Expert has come out unscathed despite such comprehensive cross-examination.
6.60 In Murari Lal vs. State Of Madhya Pradesh 1980 AIR 531SC, it has been laid down that there is no rule of law that opinion evidence of a hand-
writing expert must never be acted upon unless substantially corroborated. Here, the court has, even otherwise, corroboration from neutral corner. An expert opinion is required to be tested by the acceptability of the reasons given by him. An expert only deposes and not decides. Here. GEQD has withstood the test of cross-examination and has furnished the court with the necessary scientific criteria for testing the accuracy of his conclusion. I have also myself evaluated such reasoning in the backdrop of questioned and specimen handwritings and the opinion given by Sh. Joshi cannot be faulted with.
6.61 A-5 Gokul Chand Aggarwal has not bothered to explain as to how his signatures are appearing on the aforesaid questioned places. He has not bothered to explain as to why he had been going to the office of RCS. His keeping mum on this aspect and offering no explanation clearly indicates his complicity and it becomes abundantly clear that it was he who had been representing Ashoka CGHS. It becomes perceptible that he had been interacting CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 43 of 85 with RCS officials on behalf of Ashoka CGHS. It was he who had produced various documents related to Ashoka CGHS.
6.62 I have already made reference above with respect to the affidavits furnished by members of the society. These 145 affidavits have been exhibited as Ex. PW9/A1 to Ex. PW9/A145. These affidavits are purportedly given by members of Ashoka CGHS wherein they all had undertaken that they were not members of any other Group Housing Cooperative Society in Union Territory of Delhi and they also did not own any lease hold or free hold plot or house in Union Territory of Delhi either in their names or in the names of their spouse or dependents including unmarried children.
6.63 All such affidavits were purportedly purchased on 18.11.2003 and non judicial stamp papers of Rs. 10/- each had been sold by one Sh. Satvir, stamp agent having licence No. 489 who was designated stamp agent for Janakpuri area and affidavits, typed on such stamp papers, were attested by one Sh. Arun Kumar Gupta who was Notary Public approved by Government of India vide registration No. 741/97.
6.64 Let me now see as to what such stamp vendor has to offer.
6.65 PW9 Sh. Satvir has deposed that he was designated stamp agent for Janakpuri area in the year 2004. He was shown all such 145 affidavits Ex. PW9/A1 to PW9/A145 as well as Ex. PW9/A146, Ex. PW9/A147 and Ex. PW9/A148 and he noticed the rubber stamp appearing on the reverse of all said affidavits and admitted that all these stamp papers had been purchased from him. He deposed that he had sold the same and also made entry in this regard in his register. PW9 Satvir Singh also categorically deposed that all such stamp papers had been sold by him to G.C. Aggarwal. He even correctly identified him during recording of his deposition. He also deposed that such Sh. G.C. Aggarwal had come to him twice or thrice before purchase of such stamp papers CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 44 of 85 and on some occasions he had sent his some assistant for such purpose. Though, he was grilled in cross-examination by learned counsel for A-5 but fact remains that his testimony could not be impeached on this crucial aspect of the case.
6.66 Evidence of identification of an accused in the court by a witness is substantive evidence whereas that of identification in test identification parade is not substantive one and the same can be used only to corroborate identification of accused by a witness in court. Failure to hold test identification parade does not make the evidence of identification in court inadmissible but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction unless it is corroborated by any other evidence. In exceptional circumstances, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence can also form the basis of conviction. The effect of not holding a prior test identification parade has been examined in considerable detail by a three-Judge Bench in MALKHANSINGH AND OTHERS V. STATE OF MADHYA PRADESH, 2003 (5) JT (SC) 323. Reference be also made to of DANA YADAV @ DAHU V. STATE OF BIHAR 2002 A.I.R. (SC) 3325.
6.67 In the present case though ideally, CBI should have taken requisite steps to hold TIP and should have got A-5 G.C. Aggarwal identified from the concerned stamp vendor and also from the concerned RCS official but the omission on this score does not go to the root of the matter particularly in view of the other corroborating incriminating evidence.
6.68 These affidavits were manifestly forged and fabricated and testimony of PW20 Sh. Gaurav Gupta also corroborates the same.
6.69 Sh. Arun Kumar Gupta, advocate was Notary Public who expired way back on 15.01.2002. His death certificate has been proved as Ex. PW43/H CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 45 of 85 (D-34). Since he had already died, there was no question of his attesting any such affidavit in November 2003.
6.70 PW20 Gaurav Gupta was shown all such affidavits and he claimed that all these affidavits were not bearing signatures or initials of his father. He thus out-rightly denied and disowned signatures of his father on all such affidavits. Merely, because the seal of his father had been appearing would not take defence contention anywhere as the unrebutted testimony of PW20 Gaurav Gupta clearly go on to show that all these affidavits were forged and fabricated as these were shown to have been attested by the Notary Public Sh. Arun Kumar Gupta in November 2003 whereas Sh. Arun Kumar Gupta had died on 15.01.2002. Testimony of PW15 Sh. O. Vekateshwarlu also indicates that Sh. Arun Kumar Gupta had been appointed as Notary Public and he had expired on 15.01.2002.
6.71 A-5 Gokul Chand Aggarwal had been representing Ashoka CGHS and it can be safely inferred that he was the one who had obtained all these non judicial stamp papers and then fabricated the affidavits and submitted the same in the office of RCS in order to cheat and in order to obtain land illegally and dishonestly. He was not authorized by the actual society and he took advantage of the fact that such society was completely inactive and lying dormant. He, therefore, prepared false documents and projected himself as the authorized representative of such society. Bogus minutes of meeting were prepared and application for revival of society was moved praying for cancellation of winding up order.
6.72 I have also seen the testimony of various Postmen i.e. PW30 Sh. Harkesh Vats, PW31 Sh. Ram Kishan, PW32 Sh. Ram Phal, PW33 Sh. Umed Singh, PW34 Sh. Suresh Kumar and PW40 Sh. Rakesh Kumar Sharma and they all were also unable to deliver the registered letters on the respective addressees.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 46 of 856.73 It has also been argued from the side of defence that the deposition of postmen has no real credibility or sanctity. I am, however, not impressed with such contention. Any such postman is also a public servant and there is a presumption u/s 114 of Indian Evidence Act that an official act has been performed regularly. Undoubtedly, it would have been better if investigating agency had also recorded statements of the neighbours and adjacent residents in order to fully demonstrate that the addresses were fake and that no such person/member had been residing at the given addresses. Still keeping in mind the material placed before the court, it cannot be said that the reports given by the concerned postmen are liable to be discarded. It cannot be said that merely because the envelopes had been dispatched by CBI, the postmen would give a false report or that they would give reports as per the whims and fancies of CBI.
6.74 Thus the testimony led by prosecution and the various documents proved during the trial clearly indicate that there was never any genuine attempt for revival of society or for cancellation of winding up order after 1979. Ashoka CGHS was never active after 1976-77.
6.75 My foregoing discussion also indicate that it was A-5 Gokul Chand Aggarwal who had been appearing in the office of RCS and before the office of Assistant Registrar (North West) in connection with the unauthorized, illegal and dishonest revival of such society. It cannot be said to be a case of mere preparation. Number of documents were forged and were presented in the office and so much so, after the alleged order of revival, a freeze list was also sent to Assistant Registrar (Policy) on 11.03.2004 with request to forward the same to DDA for allotment of land. However, the illegal activities came to light before any land could be allotted and it is only in that perspective that the case is being claimed as a case of attempted cheating. Otherwise, for all practical purposes, the cheating was complete.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 47 of 856.76 PW19 Sh. Virender Kumar Bansal also remained posted in RCS and he deposed about the procedure related to DCS Act & Rules made thereunder. He also handed over various documents to CBI. He had handed over files related to various societies including Ashoka CGHS. His seizure memos have been proved as Ex. PW19/A and Ex. PW19/B. 6.77 It will be valuable to make mention about one of such files handed over by PW19 Sh. V.K. Bansal to IO Manjeet Singh. IO Manjeet Singh has also deposed that he had also issued notices u/s 160 Cr.P.C. to President, Secretary and all the members of Ashoka CGHS for examination but these notices were received back unserved due to non-existence of such persons at the given addresses. All such notices have been collectively exhibited as Ex. PW43/J (D-35). One such process server i.e. PW38 HC Kishore Kumar was also deputed for service of notices and he had been handed over 16 such notices for execution of service and he deposed that he had visited all such 16 addresses and none of the process could be served upon the addressee. I have seen his report Ex. PW38/A1 to Ex. PW38/A16 and these reports also indicate that the addresses were bogus and no such addressee was found residing at the given address at all. These undelivered letters also corroborate that the record furnished was false and fabricated and the addresses of its alleged members were found to be wrong.
6.78 Testimony led before the court also indicates that A-5 must have somehow got the record of Hemkunt CGHS and picked up names of members of such CGHS and incorporated those names in the fake list of members of Ashoka CGHS.
6.79 He was the one who had furnished a bogus list of 145 members of the Ashoka CGHS and 62 of such alleged members were actually found to be the members of one Hem Kunt CGHS which was also lying defunct since 1990 and when some of them were contacted during investigation, they all claimed CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 48 of 85 that they had never become member of Ashoka CGHS and never participated in any such meeting/election or furnished any such affidavit. Reference be made to the testimony of PW12 Smt. Amarjeet Kaur whose deceased husband Preetam Singh was actually member of Hemkunt CGHS, PW13 Smt. Vimla Vij, PW17 Sh. Jagmohan Singh and of PW26 Sh. Paramjit Singh Bhatia. Testimony of PW17 Sh. Jagmohan Singh is of very vital importance on this score and his deposition clearly indicates that Hemkunt CGHS was lying defunct. A bare comparison of the two lists would reveal that names of members of Hemkunt CGHS were picked up as it is and incorporated in fake list of Ashoka CGHS, inter alia, from Sr. 88 to 145.
6.80 It cannot be said that A-5 G.C. Aggarwal has been unnecessarily involved. My foregoing discussion clearly indicates his complicity. There is no merit in the defence contention that there was no cheating as there is no complainant who might have claimed before the Court that there was any false inducement. Sh. S.P. Mehta, learned defence counsel has contended that there is no wrongful loss to anyone and there is no corresponding wrongful gain to anyone and, therefore, crucial ingredients of cheating are completely missing. He has also speculated that the loss could have been either DDA or to the RCS and there is no such evidence on record.
6.81 To me, in such type of complicated and tricky matters, there may not always be a complainant, in body and soul, before the Court in stricto sensu. Apparent objective of the conspiracy was to grab the land. It becomes very much palpable that for all practical purposes, the real aggrieved person would be the next eligible society which would have been allotted the land, otherwise. Therefore, there is attempt to cause wrongful loss to such eligible society and there is an attempt to have wrongful gain by A-5 purportedly representing a society which was defunct and not eligible at all.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 49 of 85EVALUATION OF ROLE OF PUBIC SERVANTS 7.0 Let me now see the role of RCS officials.
7.1 Surprisingly, during the course of arguments, they all have tried to exculpate themselves and have passed on the buck upon their co-accused. They have evidently indulged into a blame game. Dealing Assistants have claimed that they had merely put up the papers and were not concerned with the revival at all. A-4 has also claimed that note was rather prepared by Assistant Registrar whereas Assistant Registrar wants to assert that he, believing the noting prepared by Dealing Assistants, had merely forwarded the file to the court of RCS. RCS has contended that in view of the scrutiny and verification report placed before him, he had no option but to pass the order of cancellation of winding up of the Ashoka CGHS.
7.2 Let me again revert to the relevant notings.
7.3 These notings are very important, decisive and vital and court can always draw logical and natural inferences from such notings. I am fortified in this regard by the judgment delivered by our own High Court in the case of Runu Ghosh Vs. CBI Criminal Appeal 482 of 2002 decided on 21.12.2011. Notings have been collectively exhibited as Ex. PW39/A and it has already been observed in the foregoing discussion that all the concerned public servants- accused do not dispute these notings and their respective signatures appearing thereon.
7.4 The first such noting is of 23.09.2003 and is at page 1/N (internal page). This noting has been prepared by A-3 Niranjan Singh. In his statement u/s 313 (5) Cr.P.C.,A-3 has not disputed his notings. He also admits his signatures. He claimed that documents were placed before him in routine and as per the documents so furnished, he had prepared noting. Another Dealing CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 50 of 85 Assistant A-4 Faiz Mohd has also claimed that he had prepared the notings on the basis of report of inspector and the verification aspect was undertaken by his superior i.e. Sh. Yogi Raj, Assistant Registrar. According to him, he had not violated any provision of DCS Act or Rules made thereunder and he cannot be held responsible for the revival of Ashoka CGHS. He also claims that he had, even otherwise, never dealt with the case of revival of society and was not even computer savvy and the noting in question, though signed by him, was in fact got typed by A-1 Sh. Yogi Raj. He also claimed that RCS officials have been duped by A-5 Gokul Chand Aggarwal who posed as Hemant, Secretary of Ashoka CGHS. According to him, he had no knowledge about commission of any offence and as Dealing Assistant, he had no means to evaluate the genuineness of the documents submitted by the society. He was only required to put the papers before his superiors and moreover, there were no norms specifying and elaborating his duties. It has also been argued from his side that there was no evidence of criminal conspiracy.
7.5 A Dealing Assistant cannot be permitted to shift the blame on to his superiors. Primary job of Dealing Assistant is to find out the previous record pertaining to such society and then to put up appropriate note. Niranjan Singh did not make any effort to trace out the record. He did not bother to collect information from DDA or from the office of Liquidator. Such society had approached the RCS office after 27 years and Dealing Assistant(s) were least perturbed by this long and unexplained hiatus. A lame and false stand was taken that file was not available. A circular was got issued merely on papers. I am really not able to understand as to why such undue haste was shown for a society which had woken up from its slumber abruptly and that too after 27 years of its taking a decision to the contrary.
7.6 Dealing Assistants should have got skeptical when such society had approached RCS after a gap of 27 years. Dealing Assistants were, to say the least, required to collect entire record either from their own office or from the CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 51 of 85 office of concerned liquidator or from DDA. No effort was made to trace the record. Moreover missing of official record is a very serious thing. RCS officials took the matter very lightly. No one even bothered to initiate any departmental action against the custodian of such file. No enquiry was conducted either. There is a strong possibility that such file might never be a missing one and rather for apparent reasons, RCS officials did not bring it to the light. Such society, way back in seventies, had decided to dissolve itself. Such original file would have naturally proved to be a big stumbling block and, therefore, it was attempted to portray as if the file had gone missing and therefore, file was ordered to be constructed merely on the basis of record produced by A-5 who was impersonating as its secretary in terms of conspiracy.
7.7 Dealing Assistants did not take any step towards verification and rather believed the version of A-5 as gospel truth. So much so, they did not even ask for the identity proof of the A-5. Moreover, the reason given in the revival application was altogether different. The society had claimed vide its letter dated 16.09.2003 (which is evidently false and fabricated) that the elections had been conducted in June, 2003 and all the short comings had been removed. However, they did not try to seek the entire record regarding meetings, audit, election which might have been held during the intervening period of 27 years. It was proposed that Sh. U.S Bhatnagar may be appointed as inspecting officer to verify and examine the record of the society which proposal was eventually approved by A-8 N. Diwakar on 16.10.2003. It really does not matter much whether Niranjan Singh, Dealing Assistant was transferred out after his noting dated 03.11.2003. He was also part of conspiracy and played his bit with full knowledge and awareness.
7.8 There is needless quickness on the part of RCS officials. No effort was made to locate the file. Rather, it was assumed that there was no possibility of its being found out and reconstruction was approved in no time. There is a general conception in the minds of the public that the government departments CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 52 of 85 work very slow and at a snail pace but the present case, in a direct contrast, indicates that a government department was working with extra ordinary alacrity and swiftness of a rabbit. Moreover haste was shown for a society which was otherwise in a deep slumber and had rather itself decided to dissolve itself.
7.9 Now comes the role of A-2 U.S. Bhatnagar.
7.10 He goes to the office of the society and also meets Hemant, its alleged Secretary of the society. Such Hemant produces all the records before him and also reveals that the society had its registered office at NDSE-1, New Delhi but the correspondence address was A-603, Ashoka Apartments, Sector-9, Rohini, New Delhi. He claimed that membership register was complete in all respects though the accounts were not audited since registration. This abnormal and unusual feature also does not disturb him at all. He also reports that society had prepared up to date accounts till 31.03.2003 which had been verified by him. He also claims that as per the proceedings register, the last meeting was held on 29.06.2003 and all the records were found under the safe custody of Sh. Hemant. He finally observed as under:-
"The present Managing Committee has maintaining the records as per the statutory requirements and is instrumental in its efforts for revival of the society for providing dwelling units to its members for having shelter of their own."
7.11 Such inspection report dated 21.10.2003 bears signatures of Sh. U.S. Bhatnagar.
7.12 Before discussing in detail his such report, it would be useful to recall the stand of A-2 Sh. U.S. Bhatnagar. His explanation given u/s 313 (5) Cr.P.C. is very cryptic. He has simply passed on the buck to CBI claiming that CBI has failed to prove that he had permitted Gokul Chand Aggarwal to sign as CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 53 of 85 Hemant He has also claimed that CBI has failed to prove that A-603, Ashoka Apartments, Sector-9, Rohini, New Delhi was a non-existing or fictitious address.
7.13 When his statement in support of his written statement u/s 313 (5) Cr.P.C. was recorded, he admitted that he had conducted the inspection of the society and had gone to the address of Rohini and whatever record was made available to him by the accountant of such society was seen by him and he prepared the report accordingly.
7.14 His such report is nothing but a bundle of lies. It has already come on record that the address of A-603, Ashoka Apartments, Sector-9, Rohini, New Delhi was not the authentic address of such society. There was no question of there being any record lying there. Moreover, it was only correspondence address and it is not explained as to why Inspecting Officer did not visit the registered address. He also claimed that as per the proceedings register, last meeting was held on 29.06.2003. However, that was not the last meeting. Rather it was the only meeting. There is no record whatsoever prior to 29.06.2003 and such fact was enough to raise doubt. Thus, the manner in which the report was prepared was unmistakably sending a wrong message. It was suggestive of the fact that the proceedings were complete and the meetings were being held regularly till 2003.
7.15 As I have already noticed above, A-2 Sh. U.S. Bhatnagar has come up with evasive answers and has not even bothered to explain as to whom he had met and when he had gone to A-603, Ashoka Apartments, Sector-9, Rohini. It was expected of him that he would have at least given the name of that person or would have at least identified him. If at all, he felt that he had been cheated at the hands of A-5 Gokul Chand Aggarwal, he should have explicitly claimed so. His keeping mum on this crucial aspect makes him co-conspirator with A-5 Gokul Chand Aggarwal. His inspection report bears signatures of one CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 54 of 85 Mr. Hemant at Q 42. Report of GEQD also nails down A-5 Gokul Chand Aggarwal as the person who had signed on such report.
7.16 Sh. S.K. Bhatnagar, learned counsel for A-2 U.S. Bhatnagar, Inspecting Officer has contended that there was no pre-requisite for inspection u/s 54 of DCS Act and moreover no procedure regarding inspection has been laid down anywhere. It has also been argued by him that no departmental action was ever taken against the Inspecting Officer and this also clearly indicates that he had not misused or abused his office. It has been again stressed by Sh. Bhatnagar that revival was not based on his inspection report and rather revival order was passed by RCS after perusing entire record. I am, however, not impressed with such argument. Even if there was no laid down procedure for inspection, Inspecting Officer had no business to give a false report. His false report also manifestly paved way for revival of society.
7.17 On the basis of such false report, A-4 Faiz Mohammad prepared noting dated 24.11.2003. Faiz Mohammad has claimed himself not to be a computer literate. According to him, such note was got typed by A-1 Yogi Raj. This also shows that he was rather a part of conspiracy. If he is to be believed then he did not try to verify the record himself and succumbed to the pressure of his superior and believed the false inspection report prepared by A-2 Sh. U.S. Bhatnagar without any hesitation and murmur.
7.18 Sh. Yogi Raj was also integral part of conspiracy. Matter was sent to the court of RCS by him but he was asked to verify the record. Accordingly, he called President/ Secretary of the society. Sh Hemant Kumar appeared before him on 21.11.2003. He then personally examined and verified the record. There was no record of any previous meetings for all those 27 years. Accused Yogi Raj, however, feels satisfied and again matter is directed to be placed before the court of RCS.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 55 of 857.19 I have seen the proceedings which took place in the court of RCS and nowhere presence of President or Secretary of Ashoka CGHS is found recorded. Sh. N. Diwakar was a seasoned and responsible officer holding a very high position. He must have also immediately learnt that such society had appeared on the stage after exceptionally long hiatus and he should have ensured the personal appearance of the President and Secretary of the society and should have also taken on record their identity proofs. Nothing of that sort was done by him. Matter was taken up by the court of RCS on 27.11.2003 and at that time one Ms. Rashmi Gulati, advocate had appeared on behalf of the society. Sh. N. Diwakar permitted the society to be represented by an Advocate without there being any Vakalatnama. There is no authorization or Vakalatnama in the record of RCS and it is very surprisingly as to how he permitted her to represent the society without any written authorization. Arguments were heard same day and the matter was reserved for orders. Sh. N. Diwakar did not find any necessity of insisting on personal appearance of office bearers of the society and did not even try to interact with them. It was obligatory because the society had woken up from its deep slumber and had made representation after 27 years.
7.20 Accused N. Diwakar also passed the order of cancellation of winding up in a manner as if he was hearing an appeal. He had no business to do that. In the garb of passing on undue benefit to a private person, he started finding defects in liquidation order which had been passed more than two decades back. He also did not try to find out as to why the liquidator was not able to carry out the process of winding up. This also shows his active involvement with such private person. Moreover, as per Section 46 of DCS Act, every cooperative society is required to submit statements and balance sheet in the prescribed form to Registrar annually and in the present case, Registrar did not even try to notice that no such statement had been furnished by the society.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 56 of 857.21 Sh. Yogi Raj also cannot be permitted to claim that he had merely presented the record. His own notings, as already discussed above, indicates that the documents submitted by the society had been personally verified by him also. Again, as is the case with the other public servants-cum-accused, even the Assistant Registrar Sh. Yogi Raj has nowhere bothered to apprise the court as to who was that representative of the Ashoka CGHS who had been appearing in the court of RCS or who had been interacting with him from time to time. He also does not want to expose A-5 Gokul Chand Aggarwal for the reasons best known to him.
7.22 As far as A-7 Kamal Singh is concerned, it has been argued that he was not in the scene before the cancellation of winding up order and he, therefore, cannot be dubbed as co-conspirator. In his statement u/s 313 (5) Cr.P.C., A-7 admitted that he had done the audit of Ashoka CGHS but he supplemented that these were on the basis of the documents furnished by the society. Undoubtedly, his role begins at a subsequent stage but then conspiracy is not an act of single transaction. It is a chain consisting of numerous inseparable links. Merely, because he was asked to conduct the audit after the cancellation of winding up order, does not mean that he had no role to play or was not part of the conspiracy. In such type of intricate and complex matters related to conspiracy, it is sometimes difficult to pin-pointedly decipher as to when such conspiracy actually starts and when it actually comes to an end. There are number of players and keeping in mind their respective roles, they chip in as and when they are required. Moreover, the final aim of such conspiracy was to have an eventual order of allotment from DDA and with that ulterior objective, audit was sine qua non.
7.23 Option-cum-appointment letter has been proved as Ex. PW21/A whereby accused Kamal Singh was given the task of auditing the record. Such audit had been conducted by A-7 Kamal Singh. His report dated 15.12.2003 has been proved as Ex. PW21/B (D-13).
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 57 of 857.24 Names of Balram, Hemant and Vijay Arora are mentioned on internal page No. 154 of report Ex. PW21/B. Even as per the proforma, such officials i.e. President, Secretary and Treasurer were required to sign.
7.25 Though Kamal Singh was the Auditor, the report is in the hands of A-6 Thirwani.
7.26 A-6 P.K. Thirwani also does not dispute his handwriting. His only explanation is that he himself had not done the audit and as per the request of Kamal Singh, he merely penned it. There is no other involvement of A-6 P.K. Thirwani. There are certain names/signatures of alleged office bearers of Ashoka CGHS on such audit report. Handwriting of A-6 P.K. Thirwani are at points Q 300 to Q 305. But, there is nothing to show that he permitted anyone to sign as imposter on such portion of the report. Merely because, he has written the names of such office bearers, he cannot be dubbed as co-conspirator. He was only requested to write the report. He is not the one who prepared the report or did the auditing. These are two different things. He simply obliged his colleague and wrote the details. These must have been written by him at the asking of Kamal Singh. CBI has nowhere proved that such report was prepared at the spot and that even A-6 P.K. Thirwani had met the imposter and permitted to sign him on other pages of audit report. The portion attributed to A-6 P.K. Thirwani does not make him liable. There should have been some additional material to infer his complicity which is evidently missing. Hence, A-6 P.K. Thirwani is entitled to benefit of doubt.
7.27 However, A-7 Kamal Singh cannot seek any exoneration.
7.28 According to Sh. Bhatnagar, the auditor cannot be said to be a part of any conspiracy. It has been argued that he had rather pointed out various infirmities and objections. I am, however, not impressed with this contention at CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 58 of 85 all as though he noted several points but fact remains that he also permitted A-5 to sign the same in an apparent fraudulent and illegal manner. The audit was also completed with extra ordinary quickness and was finished in a day.
7.29 As per the audit report, 21 M.C. Meetings were held. However, no record of such M.C. Meeting has seen the light of the day. Share certificates were also found to be issued to some of the members only. No bank record was checked and verified during such audit which was also somewhat mandatory. Auditor Sh. Kamal Singh did not smell anything fishy even when he found that there was no bank transaction for last so many years. He completed the audit by merely directing to obtain a balance confirmation certificate from the bank and that too from a bank where such Ashoka CGHS was not maintaining any account. He should not have completed the audit and should have examined the bank record himself.
7.30 I have also seen the evidence of solitary defence witness DW1 Sh. Narender Singh Khatri and I think that concerned accused or even his co- accused cannot dig out any advantage from his testimony. Any inspector, provided with a challenging and enormous task of visiting the spot and verifying the record, cannot be heard saying that revival order had nothing to do with his inspection report. He is also a very important character like his other co-accused and without the help of his false report, the revival was not possible.
7.31 RCS officials also cannot take any shelter behind Sec 34 DSC Act while claiming that Act was required to be construed liberally and they had no magic wand to assess the authenticity of documents and also that as per sec 41 of DCS Act, rather all such documents were to be assumed as prima facie evidence. If such analogy is accepted than any stranger would merely walk in RCS office and would get a favourable order in no time. If such contention is accepted then where is the requirement of deployment of government officials at all levels? Job of all such RCS officials was to scrutinize the record and CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 59 of 85 correlate those with the official record and then to decide the application in the most judicious manner. Undoubtedly, even RCS officials can be duped by any smart trickster in any given case. After all, they are also human beings. But, here, the situation is totally different and all the concerned RCS officials rather deliberately entertained impersonator. There would have certainly been some tacit understanding that they all would get something in return once the land was allotted by DDA. The other ugly and greedy side of human nature overpowered their better side and in terms of some unstated arrangement, they did not even blink for a second while clearing the decks for allotment.
7.32 It will be very curious to note that such unauthorized private person i.e. A-5 Gokul Chand Aggarwal had been interacting with the officials of RCS with respect to two matters. To his utter dismay and misfortune, both such matters are pending adjudication before this court itself. The other case is of Anand CGHS (CC No. 02/2011) in which he impersonated as one Ram Avtar. Here he has assumed the identity of one Hemant in particular. Public servants-accused did give a damn to such plain and evident act of A-5 Gokul Chand Aggarwal and permitted him to interact and sign as two different persons during the same period. This fact itself is a big pointer towards their active and malafide involvement and signifies their collusion with A-5 Gokul Chand Aggarwal.
7.33 Thus, the conspiracy is writ large and it becomes very much evident and palpable that RCS officials were hell bent in passing undue and dishonest advantage to an unauthorized person i.e. Sh. Gokul Chand Aggarwal. All the norms and basic principles were kept aside and in a jiffy, everything was done. All such officials of RCS were hardly bothered about the unusual characteristics of such bogus application and did not feel perturbed as to why such society had approached them so belatedly and without mandatory record. Record was reconstructed with undue haste without scrutinizing own record or record from official liquidator or from DDA. No attempt was made to collect ID CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 60 of 85 proof of Hemant Kumar who was allegedly secretary of such Ashoka CGHS. Had they been even touch careful, they would have certainly come to know that the person approaching them was not a representative of society at all. Rather bogus inspection report was prepared. Moreover, the case of revival was never pertaining to North-West Zone. It is quite possible that registered address of society in question was shown changed so that such request could be entertained by the public servants-accused in question and not by the actual dealing zone. This also suggests some tacit understanding between them and A-5 well in advance. Thus, in a calculated and pre-planned manner, Ashoka CGHS was revived and freeze list was sent to DDA for allotment of land. Fortunately, the conspiracy got unearthed before the land could be allotted. Thus the involvement of all the public servants accused, except A-6 P.K. Thirwani, is clearly made out.
LEGAL ISSUES RAISED BY THE PUBLIC SERVANTS 8.0 It is now appropriate to take up the legal issues raised by the public servants.
8.1 Needless to say that the object behind the requirement of obtaining sanction of prosecution a public servant is to have a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. Admittedly, sanction is required to be given after considering the relevant material but it is not must for any such sanctioning authority to mandatorily examine the original record and, therefore, even if it is assumed that the original record was not sent to the competent authority, it would not render the sanction invalid.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 61 of 858.2 While relying on Mohd. Iqbal Ahmad v. State of A P 1979(2) SCR 1007, wherein it has been held that a trial without a sanction renders the proceedings ab initio void, Sh. S.K. Bhatnagar has contended that sanction u/s 19 of Prevention of Corruption Act has not been obtained from the competent authority. However, he has not been able to develop this argument in any substantial manner. I have seen the testimony of concerned sanctioning authorities. I have also seen their cross-examination and I have not been able to find out any material which may even remotely indicate that sanction was obtained from incompetent authority.
8.3 PW4 Sh. R. Narayana Swamy had accorded sanction qua two of the accused persons i.e. A-3 & A-6. PW5 Sh. S.K. Khosla had authenticated the sanction order qua A-1 and PW45 Sh. Vijay Kumar had accorded sanction of prosecution of A-2. PW5 Sh. S.K. Khosla has deposed that sanction for prosecution of accused Yogi Raj was granted by Lieutenant Governor, Delhi who was competent authority to remove him and such sanction order was authenticated by him. PW4 Sh. R. Narayana Swamy was posted as Chief Secretary, Govt. of NCT of Delhi at the relevant time and nothing has been brought on record by the defence to show that he was not competent to accord the sanction.
8.4 Sh. S.K. Bhatnagar has attempted to contend that sanction for prosecution should have been taken from that particular official only who was posted as Competent Authority at the time of the commission of offence. I am, however, not impressed this argument at all. It is only required to be seen whether the sanction has been obtained by the competent authority or not. It is the office which matters and not the person occupying the office. Conspiracy was unearthed subsequently and after thorough investigation, when the roles of the respective public servants were ascertained and their involvement was noticed, steps were taken to obtain sanction for their prosecution and, therefore, in such scenario, obtainment of sanction for prosecution from the then competent CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 62 of 85 authority cannot be said to be wrong by any stretch of imagination and, therefore, Sh. S.K. Bhatnagar cannot dig out any advantage from Parkash Singh Badal and Anr vs State Of Punjab 2006(4) Crimes 388 SC and R.S. Nayak v A.R. Antulay (1984 (2) SCC 183). Moreover, merely because there is any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Reference in this regard be also made to decision of Apex Court in the case of State of Bihar & Ors. Vs. Rajmangal Ram [Criminal Appeal No. 709-710 of 2010 (DOD: 31.03.2014)]. Here, there is nothing to show or prove that there was any failure of justice or serious prejudice to the accused because of the alleged improper sanction.
8.5 It has been contended by all Public Servants-accused(s) that no mandatory sanction has been obtained u/s 197 Cr.P.C. and, therefore, the proceedings are bad in law. Such contention is also somewhat misplaced.
8.6 There is no fun in seeking sanction for prosecution twice. Prevention of Corruption Act is special statute and sanction given under Section 19 of PC Act automatically embraces the similar provision of sanction contained in Section 197 of Cr.P.C. Moreover, if defence contention is accepted that even after obtaining sanction under Section 19 of PC Act, another sanction under Section 197 of Cr.P.C. would also be required to be obtained. Thus, the very purpose of Section 19 of PC Act and the legislative intent would stand negated and frustrated by such interpretation.
8.7 In the case of Neera Yadav Vs CBI (2006)2 All L.J. 442 also, it has been observed by Full Bench of Allahabad High Court that for the offences covered under Prevention of Corruption Act, 1988 sanction under Section 19 is sufficient and no further sanction is required under Section 197 of Cr.P.C. It has been observed in that case as under:-
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 63 of 85(I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.
(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120-B, I.P.C. and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120-B, I.P.C.
(III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty."
8.8 Reference be also made to Dharambir Khattar and others vs. Central Bureau of Investigation (2009) 159 DLT 636.
8.9 As regards accused N. Diwakar, sanction u/s 19 of PC act was not required because he was no longer in service when the charge-sheet was filed for the purposes of taking cognizance. Similarly, no sanction u/s 19 of PC Act qua accused Faiz Mohd. was sought as he had already retired by the time charge-sheet had been laid before the Court.
8.10 It is naturally little bit complex whether in such a situation, CBI should have obtained sanction u/s 197 of Cr.P.C. or not. Defence has relied upon following judgments on the point of sanction u/s 197 Cr.P.C.:-
1 State of M.P. Vs. Sheetla Saha 2009 (VIII AD) SC 630 2 C.P. Thakur Vs. CBI 2009 (110) DRJ Page 1 3 K.R. Purushothaman Vs. State of Kerala (2005) 12 SCC 631 4 R.B. Pillai Vs. State of Kerala AIR 1996 SC 90.
5 Dawarika Prasad Vs. State 1996 (2) CC Cases 6 Delhi CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 64 of 85 8.11 Keeping in mind the peculiar facts of the aforesaid cases, I am of the view that the defence cannot dig out any advantage from the aforesaid judgments. I need not remind myself that such accused have also been charged for committing criminal conspiracy. In Harihar Prasad v. State of Bihar (1972) 3 SCC 89 it has been held that as far as the offence of criminal conspiracy punishable under section 120-B was concerned, it could not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. It was thus held that it was not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and, therefore, want of sanction under Section 197 of the Code of Criminal Procedure was no bar to prosecution.
8.12 Here, accused N. Diwakar had no business to enter into criminal conspiracy with others. His such act of criminal misconduct does not make him entitled to seek immunity under the protective umbrella of Section 197 of the Code of Criminal Procedure. The upshot of the aforementioned discussion is that whereas sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same.
Merely because he was Registrar at that moment and passed an order as Registrar would not mean that sanction was required because his act of entering into criminal conspiracy had nothing to do with his official business.
8.13 Dr. Sushil Kumar Gupta has also relied upon various following judgments:-
Sl. Title of the case along with citation Issue No. 1 Union of India Vs Major J.S. Khanna & Ors - 1972 Lack of procedure does not Cr.LJ-849 amount to commission of offence CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 65 of 85 2 K.R. Purushothaman Vs State of Kerala - (2005) Inapplicability of Section 13 12 SCC-631 (1) (d) 3 A. Subair Vs State of Kerala 2009 CRI. L.J. 3450 Inapplicability of Section 13 (1) (d) 4 Major S.K. Kale Vs State of Maharashtra - 1977- Onus of proof in case of Sec. AIR (SC) - 822 13 (1) (d) 5 S.P. Bhatnagar Vs State of Maharashtra - AIR What amounts to abuse of (SC) - 1979-826 position? 6 Abdulla Mohammed Pagarkar Vs. State - AIR Irregularities in execution of (SC) - 1980-499 work - Not a misconduct 7 Subhash Parbat Sonvana Vs. State of Gujarat Analysis of word "obtains" as Cr.L.J.-2002-2787 mentioned in Section 13 (1) (d) of PC Act. 8 R. Balakrishna Pillai Vs. State of Kerala AIR-2004- Existence of Actus Reus and SC-1012. Mens Rea is must. 8.14 I have seen all the aforesaid judgments and I have no hesitation in
holding that defence cannot dig out any advantage from these precedents in present context.
8.15 It is not a simple case of public servants acting carelessly or inattentively. Present is also not a case of mere breach of procedure. It's not a run-of-the-mill kind case of demand and acceptance. It is an unusual and atypical case whereby attempt was made to ensure that pecuniary advantage is received by a person who was not even authorized by the concerned society to appear before RCS with any request. Prosecution has proved its case in affirmative and onus has not been shifted at all. In Major J.S. Khanna (supra), Supreme Court observed that regarding the allegation that the firm Auto Stores was non-existent firm, there was no conclusive evidence to show that the accused officers knew that there did not exist any such firm. As regards the allegation that the goods were purchased without following the usual procedure, the Supreme Court held that it was possible that the goods might have been required immediately especially in an emergency like the one which was then prevailing and an officer might find it difficult, if not impossible, to go through the routine procedure possible and desirable in peace time. It was also held that CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 66 of 85 though the accused might not have been careful or was grossly negligent yet his action was not actuated with criminal intent. As regards the irregularities in procedure committed by the accused, it was held that a procedure might not be in accordance with the rules prescribed for purchases, but that such a breach or procedure did not surely mean fraud or any other criminality. Here the facts are entirely different. In Major S.K. Kale(supra) also, the facts projected before the court did not show that the accused had used any corrupt or illegal means. In S.P. Bhatnagar (supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused contractors in regard to a contract of rock cutting and filling work by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. Supreme Court held that analysis of the circumstantial evidence did not lead to an unerring certainty that the accused 1 and 2 (the Engineering Manager and Senior Engineer respectively of the Indian Oil Corporation) acted with dishonest or corrupt motive or abused their position in having the contract in question entrusted to the accused No.4 or that they had a hand in the removal of the level plan and work sheet from the file and substitution by false documents. In Abdulla Mohammed Pagarkar (supra), after going through evidence on record, the Supreme Court held that though the work was got executed in flagrant disregard of the relevant rules, such disregard did not amount to any of the offences alleged against them. It was also held that the onus of proof of the existence of every ingredient of the charge always rested on the prosecution and never shifted. There cannot be any qualm with such legal proposition but facts presented and proved before me tell a different tale and reveal misuse and abuse of office.
8.16 Moreover, each case has its own peculiarity and special features. Factual matrix of any two cases would never be same and, therefore, disposal of cases by blindly placing reliance on a precedent is not proper because one additional or different fact may make a world of difference between conclusions in two cases. Reference in this regard be made to Union of India & Anr. vs. CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 67 of 85 Arulmozhi Iniarasu & Ors (2011) 9 SCR 12.
8.17 Learned defence counsels have vehemently contended that it was not a case of attempted cheating even. It has been argued that since DDA had also sent back the matter for re-verification, there was no attempt either. According to them, at best it would remain in the realm of preparation. In this regard, reliance has been placed on Malkiat Singh & Anr Vs State Of Punjab 1970 AIR 713, wherein it has been held that the test for determining whether acts constitute mere preparation and not an attempt is whether the overt acts already done are such that if the offender changes his mind and does not proceed further, the acts already done would be completely harmless. There cannot be any qualm with the legal proposition but it becomes very much evident, in the instant case, that there was clear cut case of attempt to cheat. Various documents were fabricated and forged and were submitted. I would rather go to the extent of commenting that the moment an application from unauthorized quarter was entertained by the officials of RCS in terms of criminal conspiracy, the offence of attempted cheating was complete.
8.18 It has next been contended that the registration of FIR was bad in law as no consent from the competent government had been obtained. This argument is fallacious. Present FIR has been registered on the basis of clear cut directions issued by Hon'ble High Court of Delhi in its order dated 02.08.2005 passed in WP (C) No.100066 of 2004. A copy of this order was placed on record by the defence during the course of final arguments and the Hon'ble Division Bench of High Court of Delhi directed CBI to conduct thorough investigation in all the matters of 135 Cooperative Societies. It was also directed that CBI Director would formulate a specific investigating team headed by an officer not below the rank of DIG to investigate the whole matter and pursuant to such specific directions, the preliminary inquiry was conducted in the present matter also and as per the outcome of such preliminary inquiry, FIR was CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 68 of 85 registered. No illegality can be found on this aspect of registration of FIR.
8.19 Reliance on Maya Wati Vs. Union of India 2012 (Criminal Law Journal) 4282 Supreme Court is misplaced in the present context. In that case Apex Court had directed inquiry with respect to the various irregularities committed by the officials/persons in Taj Heritage Corridor Project and simultaneously, it was also directed that the assets of concerned officials/individuals as related to the aforesaid project be also investigated in order to ascertain whether there was misappropriation of funds with regard to out flow of Rs. 17 crores released for the construction of said project. CBI, misinterpreting such directions, also registered a separate case related to disproportionate assets against Ms. Maya Wati and it was in that context that Hon'ble Apex Court had held that there was no specific direction regarding lodging of FIR in the matter of disproportionate assets.
8.20 In the present case, as is evident from the aforesaid directions contained in order dated 02.08.2005, the directions were pinpointed and CBI was specifically asked to investigate all the matters related to 135 Cooperative Societies and, therefore, there was no requirement of obtaining any consent of State Government or Central Government as the case may. State of West Bengal v. The Committee for Protection of Democratic Rights 2010 (2) S.C.A.L.E. 467 is a landmark judgment wherein the Supreme Court has held that High Court can direct CBI to investigate an offence without the consent of the state government within whose territorial jurisdiction the offence is alleged to have taken place. Relevant extract is as under:-
" In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 69 of 85 the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
8.21 Sh. N. Diwakar has relied upon various provisions of DCS Act and Rules made thereunder and while heavily relying upon those provisions and one judgment of Hon'ble Delhi High Court given in the case of Vikas CGHS Vs. RCS (CWP No.1767 of 1986 DoD 21.11.1986), it has been argued that RCS had no option but to order the cancellation of winding up order as the liquidation proceedings were not completed within the stipulated period. I have carefully gone through the aforesaid judgment of Vikas CGHS and there cannot be any qualm with respect to the related provisions and the powers of RCS. However, the case of Vikas CGHS was on a different footings altogether. In that matter even after the order of liquidation, the land had been allotted by DDA and even the RCS had himself requested liquidator not to take any action as the time had been given to the concerned society. In that case, even the construction was mid-way and acting on the writ of Vikas CGHS, it was, therefore, held that the order dated 10.07.1986 regarding appointment of liquidator to receive all the records of the society was without any legal authority.
8.22 It would also be useful to extract section 63 of DCS Act, 1972 and Rule 105 of DCS Rules, 1973 which are as under:-
Sec 63: Winding up of co-operative societies.
(1) If the Registrar, after an inquiry has been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-
fourths of the members of a co-operative society, is of opinion that the society ought to be wound up, he may issue an order directing it to be wound up. (2) The Registrar may of his own motion make an order directing the winding up CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 70 of 85 of cooperative society-
(a) where it is a condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles. (3) The Registrar may cancel an order for the winding up of a co-operative society, at any time, in any case where, in his opinion, the society should continue to exist. (4) A copy of such order shall be communicated by registered post to the society and to the financing institutions, if any, of which the society is a member. (5) Notwithstanding anything contained in this section no co-operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
Rule 105: Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the Registrar extends the period. Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
Explanation - : In the case of co-operative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
2. Notwithstanding anything contained in the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claims of the society have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
3. The liquidator before submitting the final report may call a meeting of general body of CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 71 of 85 the society and place the report before it if permitted by the Registrar.
8.23 It becomes very much evident that Registrar could terminate the liquidation proceedings but in the present matter, the power has been used and the provision has been invoked in an apparent malafide manner. The records were not checked and rather were overlooked. Representatives of the societies were not called in person. Their identification documents were not collected. Without audit report, a conditional order was passed by RCS despite the fact that the society was lying completely inactive for last 27 years. The provision could have been invoked but the invocation of the provision was with undue haste and in a malafide manner and, therefore, no advantage can be drawn by Sh. N. Diwakar from aforesaid judgment given in Vikas CGHS case.
8.24 Dr. Sushil Kumar has also relied upon one judgment of our own High Court given in the case of A.K. Ganju Vs. CBI (Criminal MC 2384 of 2011 DoD 22.11.2013). Said judgment also does not come to his rescue because in that case the Hon'ble High Court had found that CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials posted with whom the conspiracy was hatched and by which petitioner. It was also felt that the charge sheet was vague and there was no evidence against the petitioners and even the witnesses had not supported the case of prosecution. It was in that peculiar context that the charge sheet in said case had been quashed. Here, as I have already discussed above that the investigation had been conducted on the basis of the specific directions given by the Hon'ble High Court of Delhi and, therefore, the conducting of preliminary inquiry and subsequent registration of FIR cannot be faulted with.
8.25 It does not really matter that the name of Sh. N. Diwakar was not shown as accused at that time of registration of FIR. Registration of FIR is only a starting step and not the concluding step. Moreover, FIR need not be an encyclopedia of the case and no accused can be permitted to claim exoneration CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 72 of 85 on this insignificant aspect.
8.26 Dr. Sushil Kumar has also contended that even the predecessor of Sh. N. Diwakar had been cancelling the liquidation order in the similar manner and, therefore, there cannot be said to be any malafide on the part of Sh. N. Diwakar. Sh. R.P. Shukla has also strongly relied upon one order dated 02.08.2000 of Sh. R.K. Srivastava, previous RCS. A copy thereof was also shown during the course of final arguments.
8.27 I am of the view that no benefit can be extracted from the aforesaid order. Undoubtedly, liquidation proceedings were required to be terminated within the stipulated time frame and opportunity is required to be given to the concerned Managing Committee of the Society so that the revival request is considered properly. In the garb of such general order, no public servant can throw all the mandatory cautions to the winds. Matter of any such society, which was making request for revival after 2 ½ decades, should have been taken up with extra care and caution. In the present case whereas excessive haste was shown and no care whatsoever was taken and the bogus documents were relied upon without even cross checking the official record. False inspection report was collected in terms of conspiracy and winding up order was cancelled in visible malafide manner.
8.28 Reliance has also been placed upon Section 93 DCS Act as well as on Section 76 and 79 of IPC and it has been argued that all such public servants are entitled to general defence and recognized general explanation and they cannot be held as offenders for an act which has been done by them in discharge of their public duties. However, these provisions contain words "good faith". My foregoing discussion would clearly indicate that the acts of public servants were not in good faith at all and, therefore, they cannot take shelter behind aforesaid provisions.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 73 of 858.29 Sh. N. Diwakar has also claimed that while acting as Registrar, he was discharging his duties as a judge and, therefore, he could not have been prosecuted at all. He had attempted to raise this issue earlier also but did not meet with any success. Reference in this regard be made to one judgment given by our own High Court on the basis of his own petition. In such judgment i.e. Narayan Diwakar Vs. CBI 129 (2006) DLT 258 it has been categorically held that any Registrar while exercising and discharging functions under DCS Act, 1972 cannot be deemed to be a judge and consequently cannot claim any protection from prosecution or other legal proceedings.
8.30 Sh. S.K. Bhatnagar, learned defence counsel has also contended that the alleged irregularities, if any, could have given rise to prosecution of offence under DCS Act and, therefore, the prosecution under IPC and PC Act was bad in law. I am not impressed with such contention at all. Offences provided under DCS Act are in the nature of penalty only and it does not take care of the specific acts of cheating, forgery and corruption. Moreover, with respect to any prosecution for violation of provisions of DCS Act, prosecution cannot be launched without the previous sanction of the Registrar. Here, the Registrar himself is involved. It will, therefore, be paradoxical and incongruous to have sanction from Registrar for his own prosecution. Moreover, as noted above, there was a conspiracy between public servants on one hand and a private person on the other and to achieve the final objective of such conspiracy i.e. unauthorized allotment of land, an application coming from unauthorized quarter was entertained and bogus records were accepted. False reports were generated and all these acts of cheating, forgery and corruption are not covered under the penalties or minor offences envisaged under DCS Act.
8.31 Sh. R.P. Shukla has also contended that Sh. Yogi Raj was not having any malafide intention and if at all he had any such intention then why he would have permitted inspection u/s 54 of DCS Act. I do not find any significance in such contention either. Even RCS had sent back the file for re-
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 74 of 85verification purposes and his such act would not mean that he was acting in good faith and, therefore, should be exonerated. The overall conduct clearly indicates malafide intention on the part of all the public servants.
8.32 It is settled proposition that it is not necessary that all the conspirators should participate from the inception to the end of the conspiracy. Some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy after playing their respective roles. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them would surely be liable for such offences. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts.
8.33 Relying on State of Maharashtra Vs. Som Nath Thapa JT 1996 4 SC 615, Ram Narain Popli Vs CBI 2003(3)SCC 641 and Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883, it has been argued that there is nothing to show meeting of minds and it has also been contended that mere knowledge would not be per se sufficient to make anyone co-conspirator. I have seen all the aforesaid judgments very carefully and I am of the considered opinion that defence cannot dig out any advantage from said judgments. In Ram Narain Popli (Supra), it has rather been held that for an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act and the agreement may be proved by necessary implication.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 75 of 858.34 Thus such agreement may be express or implied, or in part express and in part implied. In Kehar Singh (Supra), it has been observed that conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same and prosecution often has to rely on evidence of acts of various parties to infer that those were done in reference to their common intention. 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 till the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or otherwise. In A. Wati AO vs. State of Manipur, AIR 1996 SC 361, the accused I.A.S. Officer was party to conspiracy in giving contract in question to a black listed firm at an exorbitant rate and it was held that the involvement of the appellant in the conspiracy is so apparent that it cannot be said that there was any straining of the circumstances to connect the appellant with the crime and thus the guilt of the accused was proved beyond doubt.
8.35 The actus rues in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is also not necessary that each conspirator should have been in communication with every other. In Yash Pal Mittal v. State of Punjab [1977] 4 SCC 540, it has been laid down that the very agreement, concert or league was the ingredient of the offence and it was not necessary that all the conspirators must know each and every detail of the conspiracy as long as they were co-participators in the main object of the conspiracy. 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.
8.36 Thus, though there may be plurality of means sometimes even unknown to one another, amongst the conspirators, there must be unity of object or purpose. In achieving the goal several offences may be committed by some of CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 76 of 85 the conspirators even unknown to the others.
8.37 There can be no two opinions about the fact that in such type of complex cases where public servants gel and mingle with private person, it is unfeasible to secure direct evidence. Here the manner in which the private person was entertained without even bothering to cross-check any record clearly suggest that all the concerned public servants had united together and were working in same direction with common ulterior and corrupt objective. Their acts and omissions provide a window to their mind(s). Undue haste shown to a sleepy stranger is also suggestive of dishonest intention. Circumstances proved during the trial clearly form a chain of events showing clear-cut and defined participation of each player.
8.38 It has been argued by Sh. S.K. Bhatnagar that when there was a specific statute i.e. DCS Act, there was no occasion for CBI to have prosecuted the accused under general law and in this regard Sh. S.K. Bhatnagar has heavily relied upon the case of Suresh Nanda Vs C.B.I 2008(3) SCC 674. Facts of that case were entirely different and in that case during search, passport of applicant was seized and impounded by police and his request for release of passport was declined and in that case, an issue was raised as to whether seizure u/s 102 or 104 of Cr.P.C. would prevail over section 10 of Passports Act which section also provided variation, impounding and revocation of the passports and travel documents. It was in that context that it was held that for the purpose of impounding of passport, special law would prevail over general law.
8.39 Sh. S.K. Bhatnagar has also contended that as per the decision given by Apex Court in State of Maharashtra Vs. Laljit Raj Ji Shah AIR 2000 SC 937, the officials of RCS cannot be said to be public servants and, therefore, they could not have been prosecuted. I have seen said judgment very carefully. In that case, accused persons were not the officials of RCS and were rather Chairman and members of the Managing Committee of cooperative societies. It CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 77 of 85 was only as per Section 161 of Maharashtra Cooperative Societies Act 1960 that these private persons were also deemed to be public servants. They were prosecuted under relevant penal provision of Prevention of Corruption Act also and it was, in that context, that it was held that they could not be prosecuted under the provision of Prevention of Corruption Act as they could not be said to be public servants falling within the definition of Section 21 of Indian Penal Code. Here, we are not concerned with any such member of Managing Committee of society. Here, we are concerned with the public servants employed in the office of RCS and they were certainly discharging public duties and fell within the definition of public servants and, therefore, defence cannot dig out any advantage from said judgment.
8.40 Accused N. Diwakar has also relied upon one judgment of our own High Court cited as Tilak Upbhokta Sahkari Store Ltd Vs. Registrar Cooperative Societies AIR 2003 Delhi 1. I have seen said judgment very carefully and there is no doubt that liquidation order of society is extreme punitive measure and should be, therefore, resorted to as a last alternate. It is also not in dispute that any such society under liquidation should always be given good chance and opportunity to remove defects and shortcomings. However, in the present case, situation is totally different and accused N. Diwakar did not take any real corrective measures. He finished the matter in one hearing. He never bothered to call the concerned office bearers of such society which was even otherwise very important because the society had approached the office of RCS after a very long interval. The manner in which he decided the matter does not show that he was bothered about taking any curative or corrective measures. His goal was only to get the society revived as quickly as possible and in order to do so, he rather found faults in the order of winding up as if he was sitting in appeal over such order.
8.41 Sh. Bhatnagar has relied upon Anil Kumar Bose Vs State Of Bihar 1974 AIR 1560 wherein it has been held that the evidence adduced must CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 78 of 85 establish beyond reasonable doubt means rea on their part of the accused and also that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only. My foregoing discussion clearly indicates that it was not a mere case of failure in performing duties.
8.42 Sh. Bhatnagar has relied upon S. SWAMINATHAN VS STATE OF DELHI 2008 CR.L.J. 1957 and has contended that Auditor and Inspector had merely certified the record and were not liable for forgery or for any other offence. However, situation is not akin here. In that case, a chartered accountant had merely certified a statement of fact based on the record produced by a company and it was held that charge of a conspiracy could not be framed against the chartered accountant unless there was some more material against such chartered accountant. Here, these accused are not private professionals. Rather, they happen to be public servants who had been shouldered with responsible work and they cannot seek exoneration on the basis of said authority.
CONCLUSION 9.0 Before concluding, it will be useful to extract clause (d) in Sub- Section (1) Section 13 of PC Act which reads as follows--
"A Public Servant is said to commit the offence of criminal misconduct- If he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage, or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or
(iii) while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest".CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 79 of 85
9.1 It is clear from a reading of clause (d) that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from he use of the word 'or' at the end of each clause. Thus under Sec.13 (1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act 1988. On the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position" as contemplated under Section 13(1)(d)(ii) in itself would satisfy the ingredients of criminal misconduct under Section 13(1)(d) of the Act, 1988. Similarly under 13(1)(d)(iii) obtaining for any person any valuable thing or pecuniary advantage without any public interest is a separate ingredient by itself.
9.2 Gist of the offence under Section 13(1)(d) is that anyone abusing his position as a Public Servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
9.3 The word "abuse" means misuse i.e., using his position for something for which it is not intended. Abuse can be inferred from various circumstances viz absence of power, exceeding jurisdiction in order to cause gain to others, completely irrelevant consideration or leaving out relevant and material consideration, malafide, unreasonableness, uncalled-for and excessive haste, undue favour to any party or person etc. Such abuse is naturally by "corrupt" or "illegal" means. Whether any public servant did abuse his position or not would essentially depend upon the facts of each case and no absolute rule can be postulated.
9.4 In Ram Prakash Singh vs. State of Bihar, AIR 1998 SC 296, appellant was working as Development Officer in the Life Insurance Corporation of India. Deep Narayan Singh who was co-accused, was also working with LIC CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 80 of 85 as Asst. Branch Manager, Patna. It was alleged by the prosecution that both these accused hatched a criminal conspiracy and in pursuance thereof introduced some false and fake insurance proposals to the Corporation in the name of non-existing persons as also without the knowledge and consent of the insurer in order to earn undue credit and promotions in the LIC on the basis of their inflated business. It was contended in support of the appeal that there was no loss to the Corporation since the insurance policies were not issued. It was also urged that the appellant did not gain any benefit out of these proposals. It was held by Apex court that it needs to be emphasized that the appellant being a Development Officer owed a greater responsibility to the LIC as well as to the clients and any such faked or forged proposals were bound to harm the reputation of the LIC and accordingly conviction under relevant provisions of PC Act and IPC was upheld. It is also important to mention that said case was also of attempted cheating. Under the Old Act, offence of criminal misconduct and offence of attempt to commit criminal misconduct were punishable under the same section and attracted same sentence. In the new Act whereas, offence of attempt has been separated and is relatively milder.
9.5 Here also, there is perceptible attempt to cause wrongful loss to the actual eligible society, in terms of seniority.
9.6 A defunct society was revived illegally and was made eligible for land allotment as its original registration was of the year 1972. Thus, there was an attempt to pass on pecuniary advantage to A-5 purportedly representing Ashoka CGHS. All the concerned officials of RCS abused and misused their public offices in such endeavour.
9.7 The act of concerned officials of RCS cannot be said to an act of mere negligence or dereliction of duty. They were rather actively involved and were hell-bent in ensuring that unauthorized and illegal request of A-5 was met with success. All the concerned officials of RCS were united together and were CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 81 of 85 consciously and knowingly helping one another for the purposes of attaining a common objective. They all displayed obstinate indifferences to the consequences of their acts and omissions and their conduct clearly depict complete disregard to the basic and commonsensical norms and therefore, their acts are nothing but criminal misconduct.
9.8 Now a very pertinent question arises. Whether it's a case of criminal misconduct or a case of attempted criminal misconduct? Trial is though not for attempt but for full-fledged offence.
9.9 It is manifest that all the concerned public servants had abused and misused their office. All had played their role to the perfection and also to the hilt. The moment letter was sent to DDA for allotment, nothing further was left for such RCS officials to do. Their objective was that a person portraying himself to be an authorized representative gets land. A defunct society was, therefore, revived. Thus, it was not a case of preparation from any angle.
9.10 Though, concerned public servants had misused and abused their office, the other crucial ingredient of obtainment of pecuniary advantage is still required to be established. Naturally, they all must have indulged in misconduct either because they had already been suitably rewarded or must have done so in anticipation of any gain for themselves or for anyone else.
9.11 Qua the first alternate, there is no evidence of their already getting any advantage to self or to others and it can only be inferred. But then any criminal trial cannot be permitted to culminate on the basis of pure guess work or imagination.
9.12 However, the other option is clearly found covered under sec 15 of PC Act.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 82 of 859.13 All such public servants had done whatever they were required to do. Thus misconduct, to that extent, was evidently complete. It was perceptibly done to drive pecuniary advantage either for themselves or for A-5 G.C. Aggarwal. Such stage would have certainly come only when the land was also eventually allotted. Thus, criminal misconduct was committed in order to attempt to obtain pecuniary advantage for self or for others. Pecuniary advantage cannot be always considered in terms of money. In PUSHKAR MAL VERMA Vs STATE (CBI) (CRL.M.C. 2691/2011 Date of Decision: 01.06.2012) our own High Court has observed that the words "pecuniary advantage" used in Section 13 (1)(d) were of wide amplitude and may not every time mean and have reference to taking of money in physical form. Providing employment to someone favourably against merit, may be due to relation of some other tangible or intangible consideration, would also be a case of pecuniary advantage to both employee and also the wrong doer. Both would in one way or the other be making pecuniary advantage, tangible or intangible. Applying same analogy, paving way for illegal allotment to a person not authorized would also be case of pecuniary advantage.
9.14 Conclusion is irresistible. Criminal misconduct was committed by all such public servants in order to attempt to obtain pecuniary advantage for self or for A-5 Sh. G.C. Aggarwal. Thus, offence u/s 15 of PC Act stands made out as the act remained in the territory of attempt only since the land was yet to be allotted.
9.15 PW43 I.O. Manjeet Singh is found well-versed with the intricacies of the case. He faced the exhaustive cross-examination fabulously and gave quick answers despite the fact his deposition had been recorded after considerable interregnum. I have minutely seen his testimony as well which remains unshaken, virtually.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 83 of 859.16 He deposed that he had also visited house of A-5 but did not find any incriminating document. He also volunteered that house of A-5 had already been searched in connection with investigation of other case. Merely because house search of any of the accused did not yield any incriminating material would not mean that accused are innocent. I.O. also deposed that complicity of A-5 G.C. Aggarwal was on the basis of report of GEQD as well as on the basis of other incriminating evidence.
9.17 I must also applaud the manner and level of investigation.
9.18 It was not open and shut case. I.O. Manjeet Singh did excellent job and carried out comprehensive investigation. It was not an easy job as all the concerned officials who had been dealing with the file in RCS office were acting in league with one another and, therefore, it was not simple to crack the conspiracy. GEQD also did a superb job.
9.19 However, I do feel that I.O. should be invariably joined from the point of examination of first witness till conclusion of evidence.
9.20 Director of Prosecution, CBI should give necessary directions in this regard by a general circular in order to ensure that a good investigation culminates in the manner it should be.
9.21 It's time for curtain's call.
9.22 Angle of conspiracy stands proved to the hilt. Complicity of concerned public servants accused is very evident. In so far as it relates to commission of substantive offences by concerned public servants, I do feel that preparation of false verification report and acceptance thereof is covered within the definition of criminal misconduct as well. It becomes very much manifest that all the concerned RCS officials and A-5 G.C. Aggarwal were rubbing elbows with CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 84 of 85 one another. RCS officials were supposed to apply horse sense and they rather completely ignored the basic things and the application in question was entertained without raising any eyebrow. Their acts and omissions are clear pointer towards their complicity and involvement.
9.23 In view of my foregoing discussion, I hold all the accused barring A-6 P.K. Thirwani guilty and convict them as under:-
1) A-1 to A-5, A-7 and A-8 are held guilty and convicted u/s 120-B read in conjunction with sec 468 IPC and sec 471IPC and also under sec 420 IPC read with sec 511 IPC and also under section 15 read with sec 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
2) A-1, A-2, A3, A4, A-7 and A-8 are also held guilty for substantive offences under sec 420 IPC read with sec 511 IPC & also u/s 15 read with 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act,
3) A-5 is held guilty for substantive offences under sec 468 IPC and sec 471 IPC and 420 IPC read with sec 511 IPC.
9.24 A-6 P.K. Thirwani is acquitted of all charges. His bail bonds are cancelled and his surety is discharged.
9.25 A copy of this judgment be also sent to the present Registrar of Cooperative Societies in Delhi and also to DDA for their information. A copy be also sent to Director (Prosecution), CBI.
Announced in the open Court on this 14th day of July 2014. (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 85 of 85 CC No. 26/2011 RC S18 2006 E0001 U/s 120B r/w 420/468/471 IPC & u/s 13 (2) r/w 13 (1) (d) & 15 r/w 13 (1) (d) of PC Act CBI Vs. Yogi Raj etc. Friday, July 18 2014 Present: Ms. Jyotsna Sharma Pandey, learned PP for CBI.
A-1 Yogi Raj in person.
A-3 Niranjan Singh in person.
A-2 U.S. Bhatnagar, A-4 Faiz Mohammad and A-7 Kamal Singh with Sh. S.K. Bhatnagar, learned defence counsel.
A-5 Gokul Chand Aggarwal with Sh. S.P. Mehta, learned defence counsel.
A-8 N. Diwakar in person.
1 I have heard Ms. Pandey, learned PP for CBI, learned defence counsels for the convicts and also the convicts.
2 Ms. Pandey has contended that none of the convict deserves any empathy. It has been argued that they all had entered into a criminal conspiracy and all the concerned public servants had abused and misused their public office in order to attempt to obtain unjustified pecuniary advantage for self and/or for convict G.C. Aggarwal. She has also prayed that convict G.C. Aggarwal also cannot be given any reprieve as he was the kingpin, mastermind and also architect of numerous false and forged documents.
3 It has also been argued that all such convicts, barring convict Kamal Singh, have already been held guilty in other cases of similar nature and, therefore, also they should be awarded maximum dosage. She has also contended that all such convicts are involved in multiple cases which also disentitles them to earn any compassion.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 86 of 854 From the side of defence, whereas, it has been prayed that they be shown maximum clemency. All the public servants have reiterated that there was no illegal agreement with any private person and they all had merely carried out their official duties with utmost good faith. It has also been claimed that they all had unblemished career and were not indicted at departmental level. It has also been claimed that they have already undergone agony of trial for a considerable period and their conduct during the trial was good and cooperative.
5 From the side of convict G.C. Aggarwal, it has been claimed that he has been made a scapegoat in the present matter and he had never actually represented the society in question and is not liable for the alleged acts.
6 I have heard all the convicts and considered the reasons for light sentence advanced by them. Following chart would show the various compassionate grounds projected from the side of defence:
S. No. Name of convict Compassionate ground cited
1 Yogi Raj i) Unblemished career.
ii) Physically handicapped and cannot walk without
support.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 2½ months.
2 Udhay Shankar Bhatnagar i) Unblemished career.
ii) Has to marry off his two daughters.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 6 months.
3 Niranjan Singh i) Unblemished career.
ii) Sole bread earner for the entire joint family.
iii) Remained in judicial custody for approximately 3 months.
4 Faiz Mohammad i) Unblemished career.
ii) Ill-health.
iii) Already retired from service.
iv) Remained in judicial custody for approximately 11 months.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 87 of 855 Gokal Chand Aggarwal i) Suffering from brain tumor.
ii) Remained in judicial custody for approximately 9 months.
6 Kamal Singh i) Unblemished career.
ii) Has to marry off his two daughters.
7 Narayan Diwakar i) Unblemished career.
ii) Contributed to civil services for more than 40 years.
iii) Had been a Commissioned Officer for ten years.
iv) Has already undergone heart surgery and knee replacement.
v) Remained in judicial custody for approximately 16 months.
7 Needless to re-emphasize that acts and omissions on the part of public servants were calculated, deliberate and with the object to permit an unauthorized person to strike a goldmine. Naturally, once the land had been eventually allotted, convict G.C. Aggarwal would have minted money as immovable property in and around Delhi against peanuts would have attracted many needy and greedy mortals. He could have and would have made anyone and everyone a member on his terms as the list furnished by him was a bogus one and since the actual society was lying completely dormant, no actual and legitimate member would have had any occasion to raise any grudge or concern. It is also quite palpable that once such land had been allotted to convict G.C. Aggarwal, it would have surely proved to be a windfall even for all such convicted public servants who must be having some unstated but tacit understanding with him. Fortunately, it remained a case of attempted cheating only as the conspiracy got unearthed before the land could be actually allotted at reserve price.
8 Keeping in mind the overall facts & circumstances and also taking stock of aggravating and mitigating circumstances, I sentence all the convicts as under:
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 88 of 85 (i) Yogi Raj
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(ii) Udhay Shankar Bhatnagar
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(iii) Niranjan Singh
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 89 of 85
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(iv) Faiz Mohammad
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(v) Kamal Singh
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 90 of 85
(vi) Narayan Diwakar
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 5,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 5,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 5,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 5,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 420/511 IPC One year Rs. 5,000/- Three months
2 15 PC Act One year Rs. 5,000/- Three months
(vii) G.C. Aggarwal
S. Under Section Period of Sentence Fine Amount Sentence in default of
No. (simple payment of fine
imprisonment)
1 420/511 r/w 120-B IPC One year Rs. 10,000/- Three months
2 15 PC Act r/w 120-B IPC One year Rs. 10,000/- Three months
3 468 IPC r/w 120-B IPC One year Rs. 10,000/- Three months
4 471IPC r/w 120-B IPC One year Rs. 10,000/- Three months
S. Substantive Offences/ Period of Sentence Fine Amount Sentence in default of
No. Under Section (simple payment of fine
imprisonment)
1 468 IPC Three years Rs. 10,000/- Six months
2 471 IPC Three years Rs. 10,000/- Six months
3 420/511 IPC Two years Rs. 10,000/- Six months
9 All the sentences would, however, run concurrently and convicts
would be entitled to benefit of Section 428 Cr.P.C.
10 Since it has also been brought to my notice that convicts have
already been held guilty in similar matter (s) and the sentence awarded therein is lying suspended pending adjudication of appeal (s), a question arises whether CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 91 of 85 this Court should pass any order directing that sentence, as awarded aforesaid in the present case, should also run concurrently with the previous sentence or not. Reference be made to Section 427 Cr.P.C. which provides as under:
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who had been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
11 It becomes apparent that legislative intention is that any subsequent sentence would commence on the expiration of the imprisonment to which any such convict has been previously sentenced and it is only as an exception that Court can direct subsequent sentence to run concurrently with the previous sentence. Keeping in mind the fact that eventually there was no loss to the government as DDA had not parted with the land, I order that sentence passed hereinabove would run concurrently with the previous sentence.
12 All convicts be sent to jail under appropriate warrants to serve the sentence.
13 A copy of judgment and order on sentence be supplied to convicts free of cost.
14 Ahlmad is directed to paginate and book-mark the entire file for digitization purpose.
CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 92 of 8515 File be consigned to Record Room.
Announced in the open Court On this 18th day of July 2014.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 26/2011 CBI Vs. Yogi Raj etc. Page 93 of 85