Delhi District Court
Cbi vs Markandey Mishra Etc. (Nishat C.G.H.S) ... on 5 March, 2025
IN THE COURT OF SH. JAGDISH KUMAR SPECIAL
JUDGE (PC ACT) (CBI)-16, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
CBI Case No.:96/2019
CBI Vs Markandey Mishra etc
( Nishat C.G.H.S)
CNR No.: DLCT11-000406-2019
RC No.9/2006/EOU-VI/CBI New Delhi
Central Bureau of Investigation
Versus
1. Sh. Markandey Mishra (A-1)
S/o Sh. Raj Narayan Mishra
R/O B-1-38A, Shalimar Bagh
Delhi-88
2. Smt. Shakuntala Joshi (A-2)
W/O Late Sh. V.K. Joshi
R/O 51, Suraj Nagar,
Delhi-33
3. Sh. Narayan Diwakar (A-3)
S/O Late Sh. Chhati Lal
R/o G-30, Masjid Moth,
Kailash Colony-II,
New Delhi-48
4. Sh. Vishwa Nath Agarwal (A-4)
S/O Sh. Jagdish Prasad Aggarwal
G-30 Masjid Moth,
Greater Kailash
CBI Vs Markandey Mishra & Ors 1/131
CBI Case No.:96/2019
CNR No.: DLCT11-000406-2019
RC No.9/2006/EOU-VI/CBI New Delhi
New Delhi
5. Sh. Mohit Saxena (A-5)
S/O Sh. Anil Kumar Saxena
R/O 1011, Park Royal Apartment,
Sector-09, Dwarka,
Delhi-75
6. Sh. Ashok Kumar Chaudhary (A-6)
S/o Sh. Dhoom Singh
R/O 186/1, Gautam Nagar,
New Delhi 49
7. Sandeep Sahni (A-7)
S/O Sh. Charanjit Lal Sahni
R/O 34/13, East Patel Nagar,
New Delhi-08
8. Sh. Ashwani Sharma (A-8)
S/O Sh. R.K. Sharma
R/O 291-A, Pocket-C, Mayur Vihar
Phase-II. Delhi-91
9. Sh. Ashutosh Pant (A-9)
S/o Sh. Mahesh Chand Pant
R/O B-160, Shadatpur, Karawal Nagar,
Delhi-94
10. Sh. P.K. Thirwani (A-10)
S/O Late Sh. Moti Ram Thirwani
R/O BE-89, Hari Nagar,
New Delhi
11. Naveen Kaushik (A-11)
S/o Sh. Mahindra Dutt Sharma
CBI Vs Markandey Mishra & Ors 2/131
CBI Case No.:96/2019
CNR No.: DLCT11-000406-2019
RC No.9/2006/EOU-VI/CBI New Delhi
R/o I-2/32, IInd Floor, Sector-16, Rohini, New
Delhi.
12. S.P. Saxena (A-12)
S/o Late Sh. Raja Bahadur Saxena
R/O 664, Princess Park,
Sector-6, Dwarka,
Delhi-75
(proceedings already stands abated vide order dated 29.05.2023.)
13. Sh. S.K. Sharma (A-13)
S/o Sh. Surender Prakash Sharma.
R/O 1516, Delhi Govt Flats,
Gulabi Bagh,
Delhi-1100 07
(proceedings already stands abated vide order dated 10.09.2018.)
Date of Institution : 27.12.2007.
Date of Arguments: 28.02.2025.
Date of Judgment :05.03.2025.
JUDGMENT:
CASE OF THE PROSECUTION
1. In pursuance to the orders dated 9.01.2006 & 13.02.2006 of Hon'ble High Court of Delhi passed in C.W.P. No. 10066/2004 and CMS 15487/2005, P.E SIJ 2006-E-0001 dated 09.03.2006 was registered in CBI EOU-VI to enquire into the matter relating to CGHS scam.The present case was registered on the CBI Vs Markandey Mishra & Ors 3/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi basis of complaint of Sh. Devinder Singh, Inspector on 1.12.2006 against Shri Markandey Mishra, Dealing Asstt. Smt. Shakuntala Joshi, Asstt. Registrar (N), N. Diwakar, the then RCS and Vishwanath Aggarwal, Mohit Saxena, Ashok Kumar Choudhary and Sandeep Sahini, all residents of Delhi and some other unknown persons u/s 120-B r/w 420, 468, & 471 IPC r/w Section 13 (2) r/w 13 (1) (d) of PC Act 1988 relating to affairs of Nishat Cooperative Group Housing Society (hereinafter referred to as "The said Society").
2. It is alleged that aforesaid accused entered into a criminal conspiracy during the period 2000- 2001 onwards and in furtherance of the said criminal conspiracy, through submission of a slew of forged records, the said society was fraudulently revived on 01.11.2002, as the said society had been put under liquidation on 27. 09.1989. A freeze list was sent to DDA for 90 members on 8.11.2002 for allotment of land at cheaper rates. It is alleged that since revival, the society has been controlled by private persons Vishwanath Agarwal, Mohit Saxena, CBI Vs Markandey Mishra & Ors 4/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Ashok Kumar Choudhary, and Sandeep Sahini who aided the society financially in procurement of land and also obtained contract for construction of flats at plot No. 5, Sector-9, Dwarka, New Delhi. And also enrolled new members after accepting forged resignations of some of the old members.
3. The investigation revealed that the said society was registered with Registrar Cooperative Societies, Delhi on 19.02.1980 at the request of Sh. Abdul Malik the then Secy having a strength of 69 members with registered office at 764, Library Qureshi Nagar, Sadar Bazar, Delhi. The said society after its registration could not pursue its object on account of a dispute on its registered office, which was sealed under Court orders, the documents of the said society remained locked till the year 2002-2003. As a result thereof, there was no activity in the affairs of the said society during 1980 to 2002. As the society failed to respond to various queries of RCS, Delhi, issued from time to time relating to verification of records in respect of the members etc., the said society CBI Vs Markandey Mishra & Ors 5/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi was put under liquidation by RCS on 27.09.1989.
4. The investigation in this case has revealed that during 2000-2001, accused S. P. Saxena, Mohit Saxena, Ashwani Sharma, Ashutosh Pant and Naveen Kaushik (all private persons) and Markandey Mishra, Dealing Assistant, Smt. Shakuntala Joshi, AR (N), Nirayan Diwakar, the then RCS and SK Sharma, the then Asstt. Grade Ill, (all public servants working in office of the Registrar of Cooperative Societies, Delhi) entered into a criminal conspiracy with the object of causing revival of the defunct Nishat CGHS through fraudulent and dishonest means and for obtaining land from DDA at cheaper rates.
5. The investigation revealed that in furtherance of the said criminal conspiracy, accused Ashutosh Pant while impersonating as Anand Ballabh, submitted request for revival of Nishat CGHS along with various documents to Narayan Diwakar, RCS on 05.09.2002 under the forged signatures of Pawan Khosla, who was shown to be acting as a President of the CBI Vs Markandey Mishra & Ors 6/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi said society. Though he was not even a member of the said society.
6. The investigation also revealed that as part of the criminal conspiracy, all the documents submitted by Shri Ashutosh Pant for revival were false documents. And in most of that documents the forgeries was committed by Ashutosh Pant in conspiracy with Ashwani Sharma and Naveen Kaushik. The addresses of the members of the said society were non- existing or false. Similarly, false documents in support of the proceedings of the management committee and AGM were submitted in addition to other documents relating to the holding of elections of the society.
7. The investigation further disclosed that in furtherance of the said criminal conspiracy Smt. Shakuntala Joshi the then AR(N) directed Sh. Markandey Mishra, dealing Assistant to conduct the verification of the documents. Who as a part of the conspiracy, by abusing his official position as a public servant in the capacity of dealing clerk, fraudulently and dishonestly with an ulterior motive did not CBI Vs Markandey Mishra & Ors 7/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi verified resignations/enrollments of some of the members from the original records of the society available with him. He submitted a false report dated 22.10.2002, relating to verification of records of society, to Smt. Shakuntala Joshi in which he had recommended the cancellation of the winding up order of the said society.
8. The investigation further disclosed that in furtherance of the said criminal conspiracy, Shri Ashutosh Pant impersonated himself as Anand Ballabh, who was non-existent entity, with the full knowledge of Markandeya Mishra on 11.10.2002 and 14.10.2002 for verification of records.
9. The investigation further revealed that as a part of the conspiracy Smt. Shakuntala Joshi, the then AR(N) abused her official position as a public servant. She fraudulently and dishonestly, forwarded the said report directly to N. Diwakar the then RCS, Delhi without verifying the records submitted by the society with those available in her office. She also by passed the normal channel of Dy. Registrar and CBI Vs Markandey Mishra & Ors 8/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Joint Registrar of the office of RCS while recommending the case of the society for revival.
10. The investigation further disclosed that in furtherance of the said criminal conspiracy, the society was ordered to be revived by Shri N Diwakar, while acting as a public servant in the capacity of RCS Delhi. He dishonestly issued revival order dt. 01.11.2002 by abusing as his official position as such public servant, on the basis of slew of forged documents.Thus, Nishat CGHS was fraudulently revived by Sh. N. Diwakar in criminal conspiracy with the aforesaid co- accused persons on 01.11.2002.
11. The investigation further disclosed that said order of revival was conditional one and Shri N Diwakar had directed to conduct the pending audit of the society within two months. He also appointed Shri Sushil Kumar Sharma, a Clerk Grade III for conducting the election of the management committee of the said society.
12. The investigation further disclosed that in furtherance of the criminal conspiracy, Shri Ashutosh Pant impersonated himself as Anand CBI Vs Markandey Mishra & Ors 9/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Ballabh, in the proceedings dated 24.10.2002 before N. Diwakar. Anand Ballabh was non- existant entity. These facts were in the full knowledge of N Diwakar.
13. It is further disclosed in the charge sheet that in pursuance of said criminal conspiracy the condition for revival was fulfilled by Sh. P.K. Thirwani, the then Auditor, in the office of RCS, Delhi. Who fraudulently and dishonestly abused his official position as a public servant and submitted a false undated audit report in respect of the audit of the said society for the period 1979-1980 to till 2002. In the said audit report Sh. Ashutosh Pant has forged the signatures of Anand Ballabh.
14. The investigation has further revealed that in furtherance of the said conspiracy, P.K. Thirwani did not examine the accounts of the society. Similarly without verifying the balance sheets submitted by the society through Ashwani Sharma to him, he issued undated audit report by signing the documents submitted to him by the said society. The same was bearing signatures of Harish Bisht as CBI Vs Markandey Mishra & Ors 10/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Treasurer, Pawan Khosla as President and Anand Ballabh as Secretary. In pursuance of said criminal conspiracy, Sh. Ashutosh Pant has forged the signatures of Anand Ballabh on said documents. While Sh Pawan Khosla has denied his signatures and membership of the said society.
15. The investigation further disclosed that in pursuance of said criminal conspiracy the other condition relating to holding of election of the Members of the management committee was fulfilled by Sh. S.K. Sharma, the then Clerk, Grade-III who fraudulently and dishonestly, while abusing his official position as a such public servant. He has submitted a false election report in respect of the election of the society shown to have been conducted on 22.12.2002 resulting in the election of Vishwanath Aggarwal as President of the society as well as other members of the Management committee including the post of Secretary and Treasurer. The said General Body meeting was purportedly attended by 53 members and most of the signatures of the said CBI Vs Markandey Mishra & Ors 11/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi members were forged by Ashwani Sharma.
16. The investigation further revealed that in pursuance of the aforesaid criminal conspiracy, the freeze list of 90 members of the said society (Nishat CGHS) was forwarded to Asstt. Registrar (Policy) office of the RCS Delhi by Smt. Shakuntala Joshi for allotment of land at subsidized rate vide letter dated 8.11.2002.
17. The investigation further revealed that the case of Nishat CGHS was received vide letter no. F-47/19/RCS/Policy/185 dated 10.01.2003 from the Asstt. Registrar (Policy) office of the RCS, Delhi by DDA. The Nishat CGHS having approved membership of 90 members was given an offer of the allotment of 5000 Sq. Mtrs. land costing Rs.2,52,80,000/- vide letter no.F.7(04) 2003/GH/DDA/662 dated 03.02 2003.
18. The investigation further revealed that in pursuance of the said criminal conspiracy, the letter of allotment of land was collected by Mohit Saxena from the DDA as per the authorization of the secretary dated 03.02.2003. Mohit Saxena was authorized to collect the CBI Vs Markandey Mishra & Ors 12/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi allotment letter by resolution passed in the meeting held on 02.02 2003 by the society which was forwarded to DDA by Ashutosh Pant by forging the signatures of Anand Ballabh.
19. The investigation also revealed that society deposited Rs.88,51,000/- vide challan no. 038286 dated 15.03.2003 and furnished the application form for allotment of land, on 17.03.2003. The said society was allotted Plot No.-05, Sector-19, Dwarka measuring 5000 Sq. Mtrs. costing Rs.2,52,80,000/- which intimated to the society vide letter no. F.7(04) 2003/GH/DDA/8225 dated 31.12.2003.The investigation further revealed that S.P. Saxena (proceedings already stands abated) Vishwanath Agarwal Mohit Saxena, Ashok Kumar Choudhary and Sandeep Sahani as a part of criminal conspiracy took possession of the land through Sh. Radhey Shyam Sharma. Mohit Saxena as part of the criminal conspiracy, pursued the matter with DDA after he was co-opted as a member of the M.C. on the basis of forged proceeding of the M. C. CBI Vs Markandey Mishra & Ors 13/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi prepared by Sh. A. K. Johri at the dictation of Sh. S. P. Saxena in the office of S. P. Saxena at Madhu Vihar, Delhi.
20. As per the charge sheet, as a part of the criminal conspiracy, Sh. Sandeep Sahni and A. K. Chaudhary financed the first installment due to DDA, to the tune of Rs.20.00 lakhs on the promise of award of contract for construction of 90 flats by the said society. Subsequently, the contract was allotted to M/S Prime Developers, a firm owned by both of them. In addition to this, the society had also taken loans from five firms viz. Excellent computers, Karma Automobiles, Neelgiri Polymers, Sushil Raj and Company to the tune of Rs. 18 lacs. The loans to the tune of 38.00 lakhs were raised for making payment to the DDA in March, 2003 as the said society had only funds to the tune of Rs. 54,16,000/-.
21. The investigation has further revealed that M/s Prime Developers has constructed 90 dwelling units and construction of all the flats was almost completed.
22. The investigation further revealed that in CBI Vs Markandey Mishra & Ors 14/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi pursuance of the aforesaid criminal conspiracy Ashwani Sharma had forged the signatures of the members of the Management Committee on the proceedings purportedly held on 25.11.2002, 2.2.2003. The proceedings vide which members were enrolled/ resignation accepted in the Management Committee register show that Sh. V.N. Aggarwal had signed the proceeding register as the President of the Society.
23. The investigation further revealed that it was Shri V.N. Aggarwal who was controlling the affairs of the said society from 5.3.2003 onwards. The resignations of members from S.No. 1 to 104 are not available with the said society as prior to registration of the case, Sh. V. N. Aggarwal had lodged a false report with P.S Dabri, Palam mentioning therein that these documents and other records were stolen which resulted in registration of case bearing FIR No. 57/2005. The founder members have denied to have submitted their resignations.
24. The investigation has further revealed that in furtherance to the said criminal conspiracy, CBI Vs Markandey Mishra & Ors 15/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Vishwanath Aggarwal in order to attract persons desirous of purchasing flats, published an advertisement in newspaper calling upon public to purchase flats in the Oscar Apartment, Plot No.-05, Sector-19, Dwarka Delhi. Accordingly most of the members contacted him for flats and were given the membership of Nishat CGHS, Dwarka.
25. During investigation, the members from S.No. 105 onwards have admitted to have resigned from the society and also stated that they had taken up the membership of the society through Vishwanath Aggarwal. And it was during his period as president of the society that 163 members, including 104 members as mentioned above, resigned out of a total enrollment of 253 members.
26. As per the allegations in the charge sheet, a spree of resignations/enrollments started and as a result thereof an amount of Rs. 15.99 crores was collected by the society which also includes equalization charges of 48.10 lacs from newly enrolled members. The society at present has 90 members from membership No. CBI Vs Markandey Mishra & Ors 16/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi 110 to 253 and members from Sl. No. 111, 112, 115 to 120, 122, 124 to 134, 136 to 149, 151 to 156, 158, 160, 164, 167, 173 to 177, 189 to 193 have resigned.
27. The investigation has further revealed that in pursuance of the criminal conspiracy S. P. Saxena also received a cheque bearing no. 219506 dated 12.03.2003 for Rs.3.00 lakhs from S. K. Jain and assured him about his membership in the society through Sh. Praveen Jain.
28. The investigation revealed that the aforesaid facts of commission of offence have been corroborated by the witnesses during the course of investigation, the documents have also been collected which also confirm the aforesaid facts. It is alleged that the GEQD, Shimla vide his opinion bearing No. CX-233/2007 dated 29.09.07 has also corroborated the factum regarding the forgery committed by the various accused as mentioned in the charge sheet.
29. The investigation reveals that accused Markandey Mishra, Dealing Asstt., Smt. Shakuntala Joshi, Asstt. Registrar (N), N. CBI Vs Markandey Mishra & Ors 17/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Diwakar, the then RCS, P. K. Thirwani, the then auditor and Sushil Kumar Sharma the then Clerk Gr.lll and Vishwanath Aggarwal, Mohit Saxena, Sandeep Sahini, Ashok Kumar Choudhary, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik have committed offences punishable u/s 120 B IPC r/w 419, 420, 468, 471 IPC and Section 13 (2) r/w 13 (1) (d) of PC Act, 1988.
30. The investigation also revealed that in addition to this Shri Markandey Mishra, Dealing Asstt., Smt. Shakuntala Joshi, Asstt. Registrar (N), N. Diwakar, the then RCS, P. K. Thirwani, the then auditor, Sushil Kumar Sharma the then Clerk Gr.III and Vishwanath Agarwal, Mohit Saxena, Sandeep Sahini, Ashok Kumar Choudhary, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik have committed offences punishable u/s 20 B IPC r/w 419, 420, 468, 471 IPC and Section 13 (2) r/w 13 (1) (d) of PC Act, 1988.
31. It is further alleged that accused Markandey Mishra, Dealing Asstt., Smt. Shakuntala Joshi, Asstt. Registrar (N), N. Diwakar, the then RCS, CBI Vs Markandey Mishra & Ors 18/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi P. K. Thirwani, the then auditor and Sushil Kumar Sharma the then Clerk Gr.Ill has also committed substantive offences punishable u/s 13(2) r/w 13(1)(d) of P. C. Act.
32. It is alleged that accused Vishwanath Agarwal has also committed substantive offences u/s 420 and 471 I PC; accused Ashwani Sharma has committed substantive offences u/s 468 and 471 IPC; accused Ashutosh Pant has also committed substantive offences u/s 419,468 and 471 IPC and accused Naveen Kaushik has also committed substantive offences u/s 468 IPC. The charge sheet has been filed accordingly.
FRAMING OF CHARGES
33. Vide detailed order dated 15.03.2021, Ld. Predecessor of this Court decided the charges against the accused persons. Accordingly, charges were framed on 21.10.2021 against accused persons as under:
1 Markandey Mihsra Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(2) r/w CBI Vs Markandey Mishra & Ors 19/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi 13 (1) (d) of PC Act,1988 2 Shakuntala Joshi Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(2) r/w 13 (1) (d) of PC Act,1988 3 Narayan Diwakar Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 13(2) r/w 13 (1) (d) of PC Act,1988 4 Vishwa Nath Agarwal Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 AND substantive offences u/s 420 and 471 IPC 5 Mohit Saxena Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 .
Ashok Kumar Choudhary Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 7 Sandeep Sahni Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 8 Ashwani Sharma Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988 AND Substantive offences U/S 468/471 IPC.
CBI Vs Markandey Mishra & Ors 20/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi 9 Ashutosh Pant Under section 120 B r/w 419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC Act,1988.
AND
substantive offences u/s
419/468/471 IPC
10 P.K.Thirwani Under section 120 B r/w
419/420/468/471 IPC and Sec.
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
Substantive offences U/S 13(2)
r/w 13 (1) (d) of PC Act,1988
11 Navin Kaushik Under section 120 B r/w
419/420/468/471 IPC and U/S
13(2) r/w 13 (1) (d) of PC
Act,1988
AND
Substantive offences U/S 468 IPC
12 S.P.Saxena Under section 120 B r/w 419/
419/420/468/471 IPC and U/S
13(2) r/w 13 (1) (d) of PC
Act,1988
34. All the accused persons pleaded not guilty to the aforesaid charges so framed and claimed trial.
ABATEMENT OF PROCEEDINGS AS AGAINST THE ACCUSED S.P.SAXENA (A-12) AND S.K.SHARMA (A-13)
35. Here it is pertinent to mention that during the pendency of the present case, accused CBI Vs Markandey Mishra & Ors 21/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi S.P.Saxena (A-12) and S.K. Sharma (A-13) have expired and proceedings against them were abated vide order dated 29.05.2023 and 10.09.2018.
PROSECUTION WITNESSES.
36. In order to prove its case, the prosecution has examined 15 ( Fifteen ) witnesses. For the sake of convenience, the witnesses have been categorized in different groups. Although, the detailed testimonies of the prosecution witnesses shall be discussed herein after in the subsequent para's. However, it would be appropriate to discuss in brief the testimonies of these witnesses to have an overview of the nature and kind of evidence which has come on the record. The witnesses who are promoter members and were falsely shown to have resigned or the witnesses who were falsely shown as member of the society .
37. PW 6 is Pawan Khosla, who has deposed that since the year 1998, he was doing the business of Printing. He never became the member of the society namely Nishat CGHS. He has deposed that he never remained the President of any society including the Nishat CGHS.
CBI Vs Markandey Mishra & Ors 22/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
38. He has been shown document placed at D-26, an affidavit dated 30.09.2002 and an affidavit dated 26.08.2002, Ex. PW6/A and Ex. PW4/X, purported sworn in his name to which he has deposed that the said affidavits does not bear his signatures at points A. He has also been shown document (D-12, page 109 to 110), an application dated 04.09.2002 Ex. PW6/B, a request for revival of Nishat Cooperative Society Limited North Zone. He has deposed that he never signed Ex PW6/B, as a President of the society and denied his signature at point A on that exhibit. He has also been shown document ( D-20) ie audit report Ex PW6/C ( colly). He has deposed that the audit report does not bear his signatures at page 169, 170, 175, 176, 182, 183, 189, 190, 195, 196, 200, 203, 210 and 211. He has also been shown a document (D-15), the list of members Ex. PW6/D (colly.) in respect of Nishat CGHS at page 123 to
129. He has deposed that the aforesaid list does not bear his signatures as President at points A.
39. He has deposed that he never appeared or visited the office of RCS and never met any Registrar of the societies. He has deposed that he even did not CBI Vs Markandey Mishra & Ors 23/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi meet or visit the Registrar, office of Registrar of Cooperative Societies on 08.10.2002.
40. He has been shown a document (D-21) annual general body meeting dated 23.06.2002, Ex. PW4/X8 (colly.). He has deposed that the said annual general body meeting does not bear his signature at point A. He has also been shown a document ( D-22), meeting of management committee dated 23.06.2002,Ex. PW6/F. He has deposed that the said meeting of management committee does not bear his signature as President at point A.
41. He has been shown document ( D-22) meeting of management committee dated 25.07.2002, Ex. PW6/G. He has deposed that the aforesaid meeting of management committee does not bear his signature as President at point A. He has also been shown document ( D-22), meeting of management committee dated 30.10.2002 Ex. PW6/H. He has deposed that the aforesaid meeting of management committee does not bear his signature as President at point A.
42. He has been shown a document ( D-22), meeting of management committee dated 09.11.2002, Ex CBI Vs Markandey Mishra & Ors 24/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi PW6/I; document ( D-22) meeting of management committee dated 25.11.2002 Ex. PW6/J; document ( D-22) meeting of management committee dated 22.12.2002,Ex. PW6/K; document (D-22) meeting of management committee dated 15.01.2003, Ex. PW6/L; document (D-22) of management committee dated 02.02.2003, Ex. PW6/M; document placed at D-24, from page 4 to 10, special general body meeting dated 05.03.2003 regarding election Ex PW6/N; document (D-24) special general body meeting dated 05.03.2003 regarding election, Ex PW6/O. He has deposed that the aforesaid documents does not bear his signature.
43. He has deposed that accused Ashutosh Pant may be known to his in-laws but not to him.
44. This witness has been cross examined on behalf of accused Narayan Diwakar and rest of the accused persons adopted the same cross examination as has been done on behalf of accused Narayan Diwakar. However cross examination on behalf of accused Markandey Mishra and Shakuntla Joshi, nil despite given opportunity to them.
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45. PW 7 is Sh Abdul Malik, who has deposed that the said society (Nishat CGHS) was registered with the office of Registrar Cooperative Societies in the year 1979 or 1980. He was the Secretary of the said Society and at that time, the society was registered with 70 members. He has deposed the society was registered probably at a address 7642, Quresh Nagar, Sadar Bazar, Delhi-110006.
46. He has deposed that after a short while there was a dispute and the working of the society was stopped. All the records and documents pertaining to the said society were in the possession of one Sh. Chirabudeen, Advocate who was the President of the Society, who has already expired.
47. He has deposed that as per his knowledge, the society remained locked till 1990 and thereafter it was unlocked. He has deposed that he do not have any knowledge about any type of communication pertaining to the said society with any department or a person. He do not remember as to when the society went into the liquidation. He has further deposed that since within one year of registration of the said society, there was a dispute and thereafter he did not take part of any type of CBI Vs Markandey Mishra & Ors 26/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi proceedings pertaining to the said society.
48. He has further deposed that two persons namely Tomar and Saxena might have contacted the President Sh. Chirabudeen but nobody had contacted him. Once Sh. Chirabudeen had told him that above mentioned persons had contacted him. He has deposed that he never resigned from the aforesaid society. Even none of the original members had resigned from the said society.
49. He has deposed that documents ( D-6) the application for registration of the society Ex. PW7/A (colly.) bears his signatures as a Secretary at points 'A' and as a member at points 'B'. He has deposed that the Bye laws of the society along with the list of members Ex PW7/B ( Colly) bears his signatures at each of the pages at points A. He has deposed that at the time of registration, he had submitted an affidavit dated 16.10.1979 Ex. PW7/C, which bears his signatures at points 'A'. He has deposed that affidavit ( D-26), Ex. PW7/D was never executed by him, which was shown to have been executed in the year October, 2002. Ex PW7/D does not bear his signatures at points 'A'.
50. He has been shown proceeding register ( D-21). CBI Vs Markandey Mishra & Ors 27/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi He has deposed that he had never attended any meetings of the present society including the meetings dated 23.06.2002 Ex. PW4/X-8 (colly.) The General Body Meetings dated 23.06.2002 Ex. PW6/E (colly.) does not bear his signature at point 'A' against serial no.1. His signatures have been forged by someone. He has also been shown proceeding register (D-23). He has deposed that he had never attended any meetings of the present society including the meetings dated 15.04.2003,Ex. PW7/E. He does not know as to how his name has been shown in the said meeting, as one of the members who had attended the meeting. He has also been shown proceedings Register ( D-24). He has deposed that he had never attended General Body Meeting, dated 02.12.2002, Ex. PW6/N as someone has forged his signature against serial no. 18 at point 'A' .
51. This witness has been cross examined on behalf of accused Vishwanath Aggarwal, but not by rest of the accused persons despite the opportunity being given to them.
52. PW 8 is Sh Mukesh Bhardwaj, he has deposed that in the year 2003, he was running Tour and Travel CBI Vs Markandey Mishra & Ors 28/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Private Limited Company in the name of M/s R.J. Tour and Travel Limited at 15-A/56, Saraswati Marg, Karol Bagh, New Delhi-11005. He has deposed that his friend namely Pratap Rustogi was the member of the said society. He asked him (PW8) to become the member of the said society. Since, he was in need of a house, therefore, he became the member of the said society in the year 2003.
53. He has deposed that one Sh. V.N. Aggarwal who was the President of the society was a Builder and looking after the society. He had made a total payment of Rs. 8 lakhs in two or three installments. The entire payment was made by him through cheques. He has deposed that as and when, he visited V.N. Aggarwal along with his friend Sh. Pratap Rustogi, they came to know that some land has been allotted to the said society. He has deposed that he informed Sh. V.N. Aggarwal that he would have to take bank loan for the payment in respect of flat. He has deposed that V.N. Aggarwal told him that he would provide him required document to facilitate the bank loan. He has further deposed that after repeated request CBI Vs Markandey Mishra & Ors 29/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi for getting a flat, he could not succeed. He has deposed that he requested to refund his deposited amount of Rs. 8 Lakhs and V.N. Aggarwal has refunded his deposited amount. He has deposed that he had deposited the amount in the name of the society Nishat CGHS through cheque.
54. This witness has not been cross examined on behalf of any of the accused persons despite the opportunity being given to them.
55. PW9 is Sh Guljar Ahmed, he has deposed that during the year 1979, he was doing the business with his father and they were skin merchant. He has deposed that his father had made him a member of CGHS. The name of the said society was Nishat Cooperative Group Housing Society. He has deposed that he do not remember the year when he became the member of the said society, but its around 20-22 years old matter.
56. He has deposed that he had never resigned from the said society. He do not remember if he had signed some affidavit or not in the year 2002. He has been shown a document/affidavit dated 17.10.1979 ( D-7 ). He has deposed that said affidavit Ex. PW-9/A bears his signatures at points CBI Vs Markandey Mishra & Ors 30/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi A. He has also been shown another affidavit dated 01.10.2002, ( D-26 ) After going through the same, he has deposed that it does not bear his signatures at points A. He had never executed the aforesaid affidavit Ex PW9/B and had never signed the same. He has deposed that one Chiragguddin Qureshi was the Advocate and the Secretary of the said society as he was known to his father. He has deposed that he do not know any person in the name of Pawan Khosla, Kewal Krishan and Anand Ballabh in respect of the said society.
57. This witness has not been cross examined on behalf of any of the accused persons despite the opportunity being given to them.
58. PW 10 is Sh Pratap Rastogi, who has deposed that he along with his wife had become a member of Nishat CGHS during the year 2003-2004 through Sh. Vishwanath Aggarwal who was looking after the present society affairs. He has deposed that he had deposited Rs. 110/- towards membership fee. Apart from that he had paid Rs. 8,00,000/- in his name and Rs. 2,00,000/- in his wife name through account payee cheque to Vishwanath Aggarwal. CBI Vs Markandey Mishra & Ors 31/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi He has deposed that the payments have been deposited in respect of getting flats from the present society. His membership number was 128 and his wife's membership number was 129.
59. He has deposed that he along with his wife resigned from the society as he did not like the location of the plot of land allotted to the society and the layout design of the flat. He has deposed that he and his wife got their payment refunded from the society. He has deposed that he never filed any affidavit in the present society and he was not aware that he was not entitled to have two flats in CGHS at that time.
60. This witness has been cross examined on behalf of accused Narayan Diwakar and Vishwanath Aggarwal but not by rest of the accused persons despite the opportunity being given to them.
61. PW11 is Sh Ravi Kapur, who has deposed that he had availed the membership of Nishat CGHS in the year 2004. He had taken the membership through Sh. Vishawanath Aggarwal. He has deposed that he do not know the exact status of said Vishwanath Aggarwal in the said society, but he was the main person who was representing the CBI Vs Markandey Mishra & Ors 32/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi society. And the entire deal took place with him only. He has deposed that he had been allotted the flat in the said society against Membership No.
169. He has deposed that he do not know as to who has constructed the flats in the said society but Sh. Viswanath Aggarwal was always a contact point for them all time. He has deposed that he do not exactly remember as to how much payment was made by him, but as per his memory, he had made a payment of Rupees around 48 Lakhs to the society for the allotment of the flat.
62. He has deposed that at the time of availing membership in the said society, he did not make any enquiry about the background of the said society and even Vishwanath Aggarwal had not told him anything about the said society.
63. This witness has been cross examined on behalf of accused Narayan Diwakar and Vishwanath Aggarwal but not by rest of the accused persons despite the opportunity being given to them.
64. PW12 is Dr Rakesh Kapur, who has deposed that he had availed the membership of Nishat CGHS in the year around 2004 and had taken the membership through Sh. Vishawanath Aggarwal. CBI Vs Markandey Mishra & Ors 33/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi He has deposed that he do not know the exact status of said Vishwanath Aggarwal in the said society, but he was the main person who was representing the society and the entire deal took place with him only.
65. He has deposed that he had been allotted the flat in the said society against Membership No. 170. He do not know as to which company had constructed the flats in the said society, but Sh. Viswanath Aggarwal was always a contact point for them all time. He has deposed that as per his memory, he had made payment of Rupees around 48 lakhs to the society for purchase of the flat. The said payment was comprising of cash as well as through cheque. The cheque was issued in the name of society only. He has deposed that at the time of availing the membership in the said society, he did not make any enquiry about the background of the said society. Even Vishwanath Aggarwal had not told him anything about the said society. He has deposed that he do not have any knowledge about the advertisement regarding the available vacancy in the membership of the said society.
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66. This witness has been cross examined on behalf of accused Narayan Diwakar and Vishwanath Aggarwal but not by rest of the accused persons despite the opportunity being given to them.
67. PW14 is Sh Dayanand Gupta, he has deposed that In the year 2004, he was residing at RZ-686, Main Road, Palam Colony, Delhi and at that time he was doing the business of clothes/textiles. He knew Vishwananth Aggarwal as he used to come to his shop to buy the clothes. He has deposed that he had taken the membership of the present society in the year 2004 on asking of one Sanwar Mal. He has deposed that he had made a payment of Rs. Around 25 Lakhs to the society against the allotment of flat. The said payment was made by cheque in the name of the society. He has deposed that he had handed over the cheque to one Sh. Radhey Shyam. As per his memory, Sh. Radhey Shyam was the treasurer of the society. He has deposed that once he was elected as a President and once as a Secretary in the managing committee of the said society. He has further deposed that as per his memory, when he was the Secretary of the society, Sh. Radhey Shyam was CBI Vs Markandey Mishra & Ors 35/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi the Treasurer and Vishwananth Aggarwal was the President. He has deposed that Sh Radhey Shyam used to operate the bank account pertaining to the society during the time when he (PW14) was the Secretary of the society.
68. He has further deposed that he had attended few meetings pertaining to the society but do not remember the exact date of his visit at the construction site. Again deposed that he had never visited the construction site. He has deposed that one Sh. Sandeep Sahani was carrying the construction and the name of the construction company was Prime Developers.
69. He has further deposed that he do not know who had made the payment to the DDA on behalf of the society as he became the member of the present society after the allotment of the land. He has deposed that he came to know that the present society has been revived prior to that I was not aware about the same.
70. He has further deposed that he has attended proceedings dated 20.06.2005, Ex PW14/A; proceedings dated 27.07.2005, Ex PW14/B; proceedings dated 10.08.2005, Ex PW14/C; CBI Vs Markandey Mishra & Ors 36/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi proceedings dated 02.09.2005, Ex PW14/D; proceedings dated 20.10.2005, Ex PW14/E; proceedings dated 14.11.2005, Ex PW14/F; proceedings dated 20.12.2005, Ex PW14/G; proceedings dated 20.01.2006, Ex PW14/H; proceedings dated 18.02.2006, Ex PW14/I and proceedings dated 23.03.2006, Ex PW14/J and which bears his signature at point A on all the aforesaid proceedings.
71. He has further deposed that during the investigation, his specimen signatures/writings were taken by the CBI from S-298 to S-300 vide Ex PW14/K ( Colly) which bears his signatures at points 'A' on each pages.
72. In the cross examination, being conducted by Learned Senior PP for CBI, he has deposed that Vishwananth Aggarwal had told him that the documents pertaining to the present society have been stolen by someone but he was never told by him that for that he had lodged an FIR. He has further deposed that he do not remember if Sh. Vishwananth Aggarwal had told him or not that he had taken Rs. 38 Lakhs as a loan from Sh. Sandeep Sahani.
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73. This witness has been cross examined on behalf of accused Narayan Diwakar and Vishwanath Aggarwal but not by rest of the accused persons despite the opportunity being given to them.
Witnesses from the office of Registrar Cooperative Society.
74. The office of RCS is the controlling and supervising Government authority over the Co- operative Group Housing Societies. It is a matter of fact that a file pertaining to each of such societies is also maintained in the office of RCS from the stage of its formation and registration and all communications made with the society are placed in such a file by the office of RCS.
75. In the present case also, the allegations against the private accused persons are that they submitted a false list of members which was based upon forged and fake resignations and enrollments. The file was processed in the office of RCS and some of the RCS officials were also allegedly involved in the conpiracy. Certain officials/officers during the relevant time who had actually processed the file pertaining to the present society, were either CBI Vs Markandey Mishra & Ors 38/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi posted as dealing assistants, or Assistant Registrar, and finally all proposals were approved by the Registrar, RCS.
76. The prosecution has examined an official from the RCS office to prove the proceedings, notings and certain communications between the office of the RCS and the society,as maintained in the office of RCS. In this regard, prosecution has examined following witness from the office of RCS.
77. PW 5 Sh Harjeet Singh Choudhary, remained posted as Assistant Registrar ( North ) in the office of RCS New Delhi from 02.06.2006 to 10.09.2007. He has deposed that the file Ex. PW5/A indicate that the said file was maintained by the office of RCS and it pertains to the Nishat CGHS.
78. This witness has been cross examined on behalf of accused Vishwanath Aggarwal, Mohit Saxena and P.K. Thirwani, but not by rest of the accused persons despite the opportunity being given to them.
Sanctioning Authority
79. In the present case, there are allegations that CBI Vs Markandey Mishra & Ors 39/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi accused Smt. Shakuntala Joshi the then AR(N) directed accused Markandey Mishra, dealing Assistant to conduct the verification of the documents, who as a part of the conspiracy, fraudulently and dishonestly did not verify the resignations/enrollments of some of the members from the original records of the society available with him. He submitted a false report dated 22.10.2002, relating to verification of records of society to Smt. Shakuntala Joshi in which he had recommended the cancellation of the winding up order of the society. The allegations are also there that as a part of the conspiracy accused Shakuntala Joshi, the then AR(N) fraudulently and dishonestly, forwarded the said report directly to N. Diwakar the then RCS, Delhi. She had not verified the records submitted by the society with those available in her office. The allegations are also against her she had by passed the normal channel of Dy. Registrar and Joint Registrar of the office of RCS while recommending the case of the society for revival. There are also allegations that in furtherance of the said criminal conspiracy, the society was ordered to be revived by Shri N CBI Vs Markandey Mishra & Ors 40/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Diwakar, while acting as a public servant in the capacity of RCS Delhi and he dishonestly issued order dt. 01.11.2002 by abusing his official position being public servant. He has issued the order on the basis of slew of forged documents submitted by Sh. Ashutosh Pant which had been forged by Ashwani Sharma, and Naveen Kaushik.
80. There are allegations in pursuance of said criminal conspiracy one of the condition for revival was fulfilled by accused P.K. Thirwani, the then Auditor, in the office of RCS, Delhi. Who fraudulently and dishonestly by abusing his official position as a public servant submitted a false undated audit report in respect of the audit of the society for the period 1979-1980 to till 2002 in which Sh. Ashutosh Pant has forged the signatures of Anand Ballabh. At the conclusion of the investigation they have also been charge-sheeted. Since they were the public servants, hence during the investigation requisite sanction u/s 19 of Prevention of Corruption Act, 1988 was obtained by the IO. The authorities which had accorded the sanction to prosecute the above named accused persons, have been examined as prosecution CBI Vs Markandey Mishra & Ors 41/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi witnesses, which are as under:
81. PW 1 is Sh C.M. Sharma, who has deposed that in the year 2007, he was posted as Comptroller of Accounts in Principal Pay and Accounts office, GNCT of Delhi. He has deposed that he had received a request for sanction in respect of accused Markandey Mishra, who was posted in his department from the office of RCS, Delhi. He has deposed that he has granted sanction order dated 24.12.2007 Ex PW1/A for prosecution of accused Markandey Mishra after pursing all relevant documents received from CBI including statement of witnesses and the report of the IO to form his opinion.
82. This witness has been cross examined on behalf of the accused Markandey Mishra but not by rest of the accused persons despite the opportunity being given to them.
83. PW2 is Sh Ashutosh Kumar, who has deposed that during the year 2007 to 2010 he was posted as Addl. Secretary, Directorate of Vigilance, Govt. of NCT Delhi. He has deposed that in the month of May, 2008, a request for issuing sanction to prosecute A2 Shakuntala Joshi was received. He CBI Vs Markandey Mishra & Ors 42/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi had processed the file as the competent authority was the Lt. Governor of Delhi, who had authorised him to authenticate his orders.
84. He has deposed that the file alongwith all the documents received was sent to the office of the Lt. Governor where it was scrutinized at various levels. After due application of mind, when it came back with the orders, he issued the sanction order dated 12.05.2008 on behalf of and in the name of the Lt. Governor vide Ex. PW 2/A and the covering letter is Ex. PW 2/B.
85. This witness has been cross examined on behalf of the accused Shakuntla Joshi but not by rest of the accused persons despite the opportunity being given to them.
86. PW3 is Sh Rakesh Mehta, who has deposed that he was posted as Chief Secretary from December 2007 to March 2011. He has deposed that CBI had sent a report in the matter relating to some society when accused P. K. Thirwani was posted as Auditor in the office of RCS. On the basis of the investigation, documents and the statements of witnesses, CBI had requested for sanction for prosecution in the year 2008. After going through CBI Vs Markandey Mishra & Ors 43/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi the records submitted by the CBI, he found it a fit case for grant of sanction for prosecution against accused P. K. Thirwani. He has granted sanction order Ex. PW 3/A for the prosecution against accused P. K. Thirwani, who was a Grade I DASS Officer. He (PW3) was the competent authority to remove him.
87. This witness has been cross examined on behalf of the accused P.K.Thirwani,but not by rest of the accused persons despite the opportunity being given to them.
Expert witness.
88. During the course of investigation certain specimen and admitted writings/signatures were sent to GEQD for examination by the CBI to establish the case of forgery and role of accused persons who committed the forgery. Prosecution has examined PW4 as expert to prove the report Ex PW4/B, PW4/E and PW4/F.
89. PW 4 is Sh S. Ahmed, AGEQD, he has deposed that GEQD, Shimla had received the present case from SP, CBI, EOU-VI, New Delhi vide letter no. 102/3/9/2006-EOU-VI/DLI dt. 11.05.2007 along CBI Vs Markandey Mishra & Ors 44/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi with 3 annexures,Ex. PW4/A (colly.)
90. He has deposed that present case was allotted to him and he has examined the questioned documents with the specimen documents. He prepared his opinion bearing no. CX233/2007 dt. 29.09.2007 and the same was sent to SP, CBI, EOU-VI, New Delhi vide covering letter dt. 07.11.2007, which bears the signature of Sh. N.C. Sood. He has identified the signature of Sh. N.C. Sood at point A. He has identified his signature at points A on both the pages of the opinion Ex. PW4/B. He has also identified the signature of Sh. Mohinder Singh, Dy. GEQD at points B on both the pages of the opinion.
91. He has deposed that the documents were independently examined by Sh. Mohinder Singh, Dy. GEQD also. The reasons for the opinion were also sent along with the opinion. He has identified his signatures at points A on each page of the reasons for the opinion Ex. PW4/C.
92. He has further deposed that another set of documents were received for examination from SP, CBI, EOU-VI, New Delhi vide letter no. 9697/EOU-VI dt. 24.12.2007,Ex. PW4/D. He has CBI Vs Markandey Mishra & Ors 45/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi deposed that the said documents were also allotted to him and he has examined the questioned documents with the specimen documents. He has prepared the supplementary opinion bearing no. CX233/2007 dt. 20.02.2008, Ex. PW4/E and the same was sent to SP, CBI, EOU-VI, New Delhi vide covering letter dt. 28.02.2008 which bears the signature of Sh. N.C. Sood. He has identified his signature at point A on the opinion. He also identified the signature of Dr. B.A. Vaid, Dy. GEQD at point B on the opinion.
93. He has further deposed that the documents were independently examined by Dr. B.A. Vaid, Dy. GEQD also. The reasons for the supplementary opinion were also sent along with the opinion. He has identify his signatures at point A on the supplementary reasons for the opinion Ex. PW4/F.
94. This witness was cross examined on behalf of accused Ashwani Sharma, Ashutosh Pant, Naveen Kaushik, Vishwanath Aggarwal, and Mohit Saxena and not by remaining accused persons despite opportunity being given to them.
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95. One of the allegations against the accused persons is that some of the accused persons got forged the record of the society. To establish the same, during the investigation, IO has taken the specimen handwritings/ signatures of certain persons including accused persons. While taking the said specimen handwritings/signatures, some witnesses were called to witness such proceedings by the CBI. Those persons have been examined by the CBI as prosecution witnesses which are as under:-
96. PW 13 is Sh Ashok Kumar, who has deposed that during the year 1996-1997, he used to reside in the house of S.P. Saxena (proceedings already stands abated) as a tenant and that is why he was known to him. S.P. Saxena was a property dealer. He has deposed that once he had gone to him ( S.P.Saxena) to collect the insurance premium then S.P. Saxena asked him as to how he usually spent time on weekends i.e. Saturday and Sunday. He ( S.P. Saxena) offered him part time job on Sunday for one hour. He has deposed that S.P. CBI Vs Markandey Mishra & Ors 47/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Saxena (proceedings already stands abated) used to dictate him and he used to write. Once he asked him to write the proceedings. PW13 told him that he do not know as to how the proceedings are to be recorded. Then he told him that he would dictate it to him and then he has to write it. He has deposed that the said proceedings were pertaining to some society.
97. This witness has been shown the proceedings dated 23.06.2002 placed at D-22, Ex. PW6/F; proceedings dated 25.07.2002 placed at D-22, Ex. PW6/G; proceedings dated 18.08.2002 placed at D-22,Ex. PW13/A; proceedings dated 15.09.2002 placed at D-22 Ex PW13/B; proceedings dated 30.10.2002 placed at D-22 Ex PW6/H; proceedings dated 09.11.2002 placed at D-22 Ex PW6/I; proceedings dated 25.11.2002 placed at D-22, ExPW6/J; proceedings dated 22.12.2002 placed at D-22, Ex PW6/K; proceedings dated 15.01.2003, placed at D-22, Ex PW6/L; proceedings dated 02.02.2003 placed at D-22, Ex PW 6/M; proceedings dated 04.02.2003 placed at D-22, Ex PW13/C and proceedings dated 05.03.2003 placed at D-22, Ex PW13/D. He has CBI Vs Markandey Mishra & Ors 48/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi deposed that all the proceedings were recorded by him on the dictation of S.P. Saxena.(proceedings already stands abated)
98. He has been shown the proceedings Ex. PW13/E of taking over of specimen signatures/writings from S-278 to S-283. He has deposed that aforesaid proceedings were recorded by the IO during the investigation. He has deposed that IO had taken his specimen signatures/handwritings which bears his signatures at points 'A'.
99. He has deposed that he know one person namely Sh. A.K. Gupta who used to visit the office of S.P. Saxena (proceedings already stands abated). As per his memory, Sh. A.K. Gupta was an Advocate. Once he had been taken to the office of RCS by Sh. A.K. Gupta at the instance of Sh. S.P. Saxena for revival of some society.
100. This witness has been not been cross examined by any of the accused persons despite opportunity being given to them.
Witnesses from CBI
101. In the present case, the FIR was registered pursuant to the orders dated 9.01.2006 & CBI Vs Markandey Mishra & Ors 49/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi 13.02.2006 of Hon'ble High Court of Delhi , a preliminary enquiry was conducted by the CBI officer and at the conclusion of the preliminary enquiry, a regular case was registered. During the investigation certain documents were received and seized from the office of RCS and also from the office of DDA. From the stage of carrying out preliminary enquiry till filing of charge-sheet, the officers from CBI, who one way or another, were part of the investigation have been examined as prosecution witnesses, which are as under:
102. PW 15 is Inspector Devender Singh, he has deposed that during the year December, 2006, he was posted in CBI, EOU-VI, EO-II Zone, New Delhi as Inspector. He has deposed that he had conducted a preliminary enquiry in the present case and submitted his detailed PE report to SP concerned. He has deposed that vide complaint dated 01.12.2006, Mark PW15/A with request to register a regular case bears impression of his signatures at points 'A'. He has deposed that the FIR dated 01.12.2006 Ex. PW15/B was initially marked to Inspector B.S. Jha and bear the signature of Sh. M.C. Joshi, the then SP, CBI at CBI Vs Markandey Mishra & Ors 50/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi points 'A'.
103. He has deposed that during preliminary enquiry, he had collected certain documents from V.N. Aggarwal, the President of Nishat CGHS.
104. He has deposed that the receipt memo dated 02.05.2006, Mark PW15/C bears impression of his signatures at point 'A'. He has also identifies the impression of signatures of Sh. V.N. Aggarwal at points 'B' as who has signed in his presence.
105. He has further deposed that after registration of regular case, the documents were handed over to the IO of the present Inspector B.S. Jha vide handing over/taking over memo dated 21.12.2006.
106. He has deposed that vide Handing Over/Taking Over memo, Mark PW15/D, he had handed over the documents Mark PW15/E (colly.) to Inspector B.S. Jha, IO of the present case.
107. He has deposed that the letter dated 24.12.2007, Ex. PW4/D,bears the signatures of the then SP , Sh. S.K. Peshin at point 'A'. He has further deposed that the letter dated 11.05.2007, Ex.
PW4/A bears the signatures of the then SP Sh. A.K. Ohri at point 'A' and signatures of Sh. B.S. Jha at points 'B'.
CBI Vs Markandey Mishra & Ors 51/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
108. He has deposed that proceedings of taking over of specimen signatures/writings from S-1 to S-302 Ex. PW15/F (colly.) bears the signatures of Sh. B.S. Jha, the then IO of the present case at points 'X'.
109. This witness was cross examined on behalf of all the accused person except accused Mohit Saxena despite opportunity being given to him. STATEMENTS OF ACCUSED PERSONS UNDER SECTION 313 Cr PC
110. After conclusion of prosecution evidence. The statements of accused persons u/s 313 Cr.PC were recorded on 05.06.2024 and 08.07.2024 by this Court.
111. During the statement recorded u/s 313 CrPC, of accused Markandey Mishra he has answered to most of questions in the manner as either " I have no knowledge or it is matter of record. " However he has answered differently to few questions. Out of the questions whose answers were given differently by the accused Markandey Mishra were basically pertain to the evidence which has come on record during the deposition of PW1 CBI Vs Markandey Mishra & Ors 52/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi C.M. Sharma. The accused has answered the question on sanction as: " The sanction order was issued mechanically without application of mind. No documents were forwarded by CBI to the sanctioning authority. The sanction order was issued as replica of the draft sanction order sent by CBI. It is an invalid sanction order."
112. When the accused Markandey Mishra was asked as to why this case is against him , he replied that "None of the prosecution witnesses have deposed anything incriminating against him.". Accused Markandey Mishra opted to lead evidence in his defence and has examined Sh Anurag Singh as DW1.
113. Similarly, the answers given by accused Shakuntla Joshi , during the statement recorded u/s 313 Cr PC, were to most of the questions put to her as either " I have no knowledge " or " it is a matter of record" However she has answers to few questions.
114. To answer the questions regarding regarding issuance of sanction order Ex PW2/A against her. She has replied that " It is incorrect. The sanction order was issued mechanically without application of mind. No documents were forwarded by CBI to the CBI Vs Markandey Mishra & Ors 53/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi sanctioning authority. The sanction order was issued as replica of the draft sanction order sent by CBI. It is an invalid sanction order.".
115. When the accused Shakuntla Joshi was asked as to why this case is against her. She has replied that "None of the prosecution witnesses have deposed anything incriminating against me. Accused Shakuntla Joshi opted to lead evidence in her defence and has examined Sh Mukesh Kumar as DW2.
116. In reply to the question whether she wants to say anything else , she replied:
" It is a false case against me. There is no incriminating and legally admissible evidence on record against me. None of the prosecution witnesses have deposed anything incriminating against me during trial. There is no evidence on record as to which rules, regulations/circular was violated by me in the discharge of my official duty. No incriminating material has been recovered from me. No incriminating evidence on record could be connected to me during the course of trial. There is no evidence on record of any pecuniary advantage having been obtained by me at any point of time. There is no evidence (oral, documentary/circumstantial) on record against me to establish my involvement in the alleged criminal conspiracy. I acted bonafide in the discharge of my official duty.
My prosecution is void-ab-initio for want of mandatory prosecution sanction u/s 197 CBI Vs Markandey Mishra & Ors 54/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Cr.P.C. I am innocent."
117. Similarly, the answers given by accused Narayan Diwakar, during the statement recorded u/s 313 CrPC, to most of the questions put to him were either " I do not know or the witnesses have not stated anything as against me" However he answered differently to few questions.
118. In respect of the question regarding not signing of application dated 04.09.2002 by PW6 as President of the said society. He replied that " I do not know. The witness had not stated anything as against me."
119. When the accused Narayan Diwakar was asked as to why this case is against him, he replied that "
This is a false and baseless case against me.".
120. In reply to the question whether he wants to say anything else , he replied:
"I have been falsely implicated in the present case. No PW,s have deposed as against me. I would further like to submit that In the present case the Liquidation proceedings were never finalized. By the operation of law (Rule 105 DCS Rules) the winding-up proceedings stood automatically terminated by after three years (maximum period). As per Rule 105 of the Delhi Cooperative Rules 1973 there is a provision for the deemed termination of the winding- up proceedings (maximum 3 years after the passing of the winding-up order) after which CBI Vs Markandey Mishra & Ors 55/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi the Registrar is bound to cancel the winding-up orders by passing an order to this effect in view of the Judgment of the Division Bench of the Hon'ble Delhi High Court (VIKAS CGHS v. RCS etc.). I complied with the said orders of the Hon'ble Delhi High Court.
I was appointed as the Registrar Cooperative Societies (RCS) Delhi under S.3 of the Delhi Cooperative Societies Act, 1972. At the time of the passing of the order(s) of cancelling the winding-up I was aware of the judgment delivered by the Double Bench of the Hon'ble Delhi Court in the Civil Writ Petition No. 1767 / 1986 case entitled "VIKAS COOPERTIVE GROUP HOUSING SOCIETY LTD. V. RCS "(decided on 21st Nov. 1986).
Secondly it is submitted that cancelling the winding-up order of the society had nothing to do with the availability or the verification of the records. The only aspect that was to be taken into account was the provision of Rule 105 of the Delhi Cooperative Societies Rule, 1973. Therefore the act(s) performed by me were done in absolute good faith taking all the necessary steps as provided under the law. The copy of the judgment in "VIKAS CGHS v. RCS" is enclosed here- with. There is no circumstance appearing against me. Therefore I may kindly be acquitted.
It is also pertinent to mention that the CBI has neither obtained sanction to prosecute under S.197 Cr.P.C. nor under S.19 of the PC Act. The said two sanctions operate in distinct mechanism and were mandatory even for a retired public servant. As per the newly amended law i.e. Prevention of Corruption Act, (amended till 2018) applicable even to the present case (pending CBI Vs Markandey Mishra & Ors 56/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi trial) the sanction under S.19 of the PC Act is now mandatory even for the retired public servants. Needless to mention that the provision of S.13(1)(d) of the old PC Act, 1988 has now been repealed. The present case is devoid of merits and also suffers the discrepancy due to the later amendments of 2018 which are applicable to the present pending case.
Furthermore, it will be relevant to add that Dr. Kamini Lau the Ld. Spl. Judge : CBI had referred by way of reference under S.395 Cr.P.C. raising the question of scope & applicability vis-à-vis S.19 of the P.C. Act in respect of retired servants in the pending cases where the sanction under S.19 of the PC Act has not been taken in respect of the retired public servants. Thus the reference of the matter relating to the applicability of the newly amended PC Act (2018 amendment) is still pending before the Division Bench of Hon'ble Delhi High Court. The Hon'ble Madras High Court in the matter "M.Soundararajan v. State"
Crl.A.(MD) No.488 of 2018 has observed:
"14. By amending paragraph 8 in Part A of the Schedule to the Prevention of Money laundering Act, 2002 certain offences under the prevention of corruption Act,1988 are included to the PMLA,2002. Since, offence analogous is already in statute prior to the amendment, Chapter IV A and section 19 of the Prevention of Corruption (Amendment) Act, 2018 alone will fall away from protection given under Article 20 (1) of the Constitution and therefore will have application to the pending cases either under investigation or pending trial after investigation."
Charges of conspiracy levelled under section 120(B) IPC are not sustainable CBI Vs Markandey Mishra & Ors 57/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi against me. During my tenure as RCS, Delhi from 2001 to 2004 the entire RCS office was fully computerised by launching its own website on which about 10 lakh data was uploaded to cover to various information pertaining to about 5000 Cooperative Societies including the group housing societies with details of management committee of all societies, particulars of individual members, its election and audit position were given for the information to all concerned and the effected citizens of Delhi. A wide publication was also given this website through local newspapers and electronic media. There was facility for any type of enquiry complaint from the effected / interested persons of the public in order to speedy redressal of their complaints and grievances. The RCS office was given the distinction of completing the gigantic task of computerization in a fixed time schedule. For this achievement, a letter of appreciation was given by the Chief Secretary of the Govt. of NCT of Delhi. It is therefore emphasized that in the face of such a transparency in the working of the department there cannot be any scope for any conspiracy of any kind either with any official of the department or the persons outside. It is established factor that transparency and conspiracy cannot go together."
121. He has opted to lead evidence in his defence and has examined Sh Saroj Chandra Pradhan as DW3.
122. The accused Vishwa Nath Aggarwal was examined U/S 313 CrP.C. During the statement CBI Vs Markandey Mishra & Ors 58/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi recorded u/s 313 CrPC, he has answered to most of the questions as "I do not know or it is incorrect". However he answers differently to few questions.
123. To the questions, as deposed by PW.8 Sh Mukesh Bhardwaj that you were the President of the society and was a Builder and was looking after the society. He replied that " It is incorrect which is evident from his cross examination."
124. To the question, as deposed by PW.10 Sh Pratap Rastogi that he along with his wife had become a member of Nishat CGHS during the year 2003-2004 through you as you was looking after the affairs of present society. He replied that " He along with his wife resigned from the society and got their refund back from the society."
125. When the accused Vishwa Nath Aggarwal was asked as to why this case is against him ,he replied that " This is a false case against me."
126. In reply to the question whether he wants to say anything else , he replied:
"I have been falsely implicated in this case. It is submitted that there is not any material in the chargesheet to show my involvement in the present matter. I was involved in this matter because I was the president of the society for some time but investigating agency failed to appreciate the fact that I CBI Vs Markandey Mishra & Ors 59/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi was became the member of the society after the alleged revival of the society."
127. He has opted to lead evidence in his defence and has examined Sh Ramasray Singh as DW4 and Shri Ram as DW5.
128. The accused Mohit Saxena was also examined U/S 313 Cr P.C. He has answered to almost of the questions put to him that " I do not know. "
129. When the accused Mohit Saxena was asked as to why this case is against him. He replied that " This is a false case filed by the IO against me with malafied intention. He has not conducted fair and proper investigation. Further, he has made me scapegoat in this case with vested interest. The investigation conducted by IO was perfunctory, unfair, partial, shoddy and was in not in accordance with law."
130. In reply to the question whether he wants to say anything else , he replied that :
"I am innocent. Investigation conducted by the investigating officer in this case is perfunctory, partial, improper and shoddy. Further, the investigating officer has not taken my specimen handwriting / signatures, nor I have given any specimen handwriting / signatures in this case. I will file my written submission u/s 313(5) Cr.P.C."
131. Accused Mohit Saxena has not led evidence in his defence.
CBI Vs Markandey Mishra & Ors 60/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
132. Accused Ashok Kumar Choudhary was also examined U/S 313 Cr P.C. He has answered to all the questions put to him that " I do not know "
133. When he was asked as to why this case is against him , he replied that " It is a false case against me"
134. In reply to the question whether he wants to say anything else , he replied that :
"I have been falsely implicated in this case due to biased and perfunctory investigation conducted by the IO. There is no evidence against me either oral, documentary or circumstantial. However I will file my written submission at the time of final arguments."
135. Accused Ashok Kumar Choudhary has not led evidence in his defence.
136. The answers given by accused Sandeep Sahni, during the statement recorded u/s 313 Cr.PC to the questions put to him are that " I do not know "
137. When he was asked as to why this case is against him , he replied." It is a false case against me"
138. In reply to the question whether he wants to say anything else , he replied that :
"I have been falsely implicated in this case due to biased and perfunctory investigation conducted by the IO. There is no evidence against me either oral, documentary or circumstantial. However I will file my written submission at the time of final arguments."
139. Accused Sandeep Sahni has not led evidence in CBI Vs Markandey Mishra & Ors 61/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi his defence.
140. Accused Ashwani Sharma , during the statement recorded u/s 313 Cr.PC, has answered to all the questions put to him. He replied that " I do not know "
141. When he was asked as to why this case is against him , he replied that " This is a false case filed by the IO against me with malafied intention. He has not conducted fair and proper investigation. Further, he has made me scapegoat in this case with vested interest. The investigation conducted by IO was arbitrary, unfair and was not in accordance with law."
142. In reply to the question whether he wants to say anything else , he replied that :
"I am innocent. Investigation conducted by the investigating officer in this case is perfunctory, partial, improper and shoddy. Further, the investigating officer has not taken my specimen handwriting / signatures, nor I have given any specimen handwriting / signatures in this case. I will file my written submission u/s 313(5) Cr.P.C."
143. Accused Ashwani Sharma has not led evidence in his defence.
144. Accused Ashutosh Pant, during the statement recorded u/s 313 Cr.PC, has answered to all the questions put to him that " I do not know "
145. When he was asked as to why this case is against CBI Vs Markandey Mishra & Ors 62/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi him , he replied that " This is a false case filed by the IO against me with malafied intention. He has not conducted fair and proper investigation. Further, he has made me scapegoat in this case with vested interest. The investigation conducted by IO was arbitrary, unfair and was not in accordance with law."
146. In reply to the question whether he wants to say anything else , he replied that :
"I am innocent. Investigation conducted by the investigating officer in this case is perfunctory, partial, improper and shoddy. Further, the investigating officer has not taken my specimen handwriting / signatures, nor I have given any specimen handwriting / signatures in this case. I will file my written submission u/s 313(5) Cr.P.C."
147. Accused Ashutosh Pant has not led evidence in his defence.
148. The answers given by accused P.K. Thirwani, during the statement recorded u/s 313 CrPC, to most of the questions put to him were either " I have no knowledge or "It is a matter of record. I had conducted the Audit of the Society in good faith, as per the documents/ records produced by the society." However, he answered differently to few questions.
149. When the accused accused P.K. Thirwani was asked as to why this case is against him , he replied that " I do not know. However the FI R was CBI Vs Markandey Mishra & Ors 63/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi wrongly registered "
150. In reply to the question whether he wants to say anything else , he replied:
"I was falsely implicated in the present case. Investigation was biased and defaulty. There is no incriminating evidence as against me. I have already suffered enormously because of this false case. I humbly pray to this Hon'ble Court to kindly acquitted me in the interest of justice."
151. Accused P.K. Thirwani has not led any defence evidence.
152. The answers given by accused Naveen Kaushik, during the statement recorded u/s 313 CrPC, to all the questions put to him were " I do not know" .
153. When the accused Naveen Kaushik was asked as to why this case is against him , he replied that "
This is a false case filed by the IO against me with malafied intention. He has not conducted fair and proper investigation. Further, he has made me scapegoat in this case with vested interest. The investigation conducted by IO was arbitrary, unfair and was not in accordance with law."
154. In reply to the question whether he wants to say anything else , he replied:
" I am innocent. Investigation conducted by the investigating officer in this case is perfunctory, partial, improper and shoddy. Further, the investigating officer has not taken my specimen handwriting / signatures, nor I have given any specimen handwriting / signatures in this case. I CBI Vs Markandey Mishra & Ors 64/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi will file my written submission u/s 313(5) Cr.P.C."
155. Accused Naveen Kaushik has not led evidence in his defence.
Defence on behalf of accused Markandey Mishra.
156. Accused Markandey Mishra examined one witness in this defence namely Anurag Singh (DW1). DW1 Anurag Singh is Assistant Section Officer, Principal Accounts Office, GNCT,Delhi. He has produced file/record Ex DW1/A ( Colly) pertaining to the sanction for prosecution against accused Markandey Mishra.
Defence on behalf of accused Shakuntla Joshi.
157. Accused Shakuntla Joshi has also examined defence witness in her defence namely Mukesh Kumar, (DW2). DW2 Mukesh Kumar is Assistant Section Officer, Directorate of Vigilance, GNCT, Delhi. He has produced file/record Ex DW2/A ( Colly) pertaining to the sanction for prosecution against accused Shakuntla Joshi. Defence on behalf of accused Narayan Diwakar.
158. Accused Narayan Diwakar has examined defence witness in his defence namely Sh Saroj Chandra Pradhan (DW1). Through this witness the accused CBI Vs Markandey Mishra & Ors 65/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Narayan Diwakar wants to prove on record that he has work to streamline the functioning of Co operative Group Housing Society and to maintain the record.
Defence on behalf of accused Vishwanath Aggarwal.
159. Accused Vishwanath examined two defence witness in his defence one is Sh Ramasray Singh (DW4) and another is Sh Shri Ram (DW5). DW4 Ramasray Singh, Manager Newspaper Veer Arjun has brought on record the publication of Newspaper Veer Arjun circulated on 27th December, 2010, vide Ex DW4/A.
160. DW 5 Shri Ram is dispatcher of the Statesman Newspaper. He has placed on record, the attested copy of relevant page No.13 of Newspaper statesman published on 27.12.2010 on behalf of Nishat CGHS, vide Ex PW5/1.
161. I have heard Ld Counsel for the accused persons as well as Ld Senior PP for CBI and have gone through the file also. I have considered the submissions being made my Learned counsels as well as evidence on record.
162. Ld Senior PP for CBI has argued that prosecution CBI Vs Markandey Mishra & Ors 66/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi has proved its case beyond reasonable doubts against the accused persons. Ld Senior PP for CBI has argued that the sanction in the present case has been accorded by the competent authority against the accused persons qua offences under Prevention of Corruption Act. And so far as sanction U/S 197 Cr P C is concerned, there is no need to obtain the same as the Act being done by the accused persons was not within the ambit of their official work to consider the same being done by them in discharge of their official duty.
163. Learned Senior PP for CBI has relied upon the following case law:
I) Hema Vs State of Madrass Crl. Appeal No.31 of 2013 State of Appeal.
ii) Murari Lal Vs State of MP AIR 531
iii) K. Satwant Singh Vs The State of Punjab, 1960 AIR 266, 1960 SCR (2)89
iv)Rakesh Kumar & Ors. Vs State Crl. Appeal No.19/2007.
v) L. Narayan Swami Vs State of Karnataka Crl. Appeal No.721 of 2016
vi) Harihar Prasad etc Vs State of Bihar 1972 CRIL J707, (1972) 3 SCC 89
vii) Sahabuddin & Anr Vs State of Assam (Criminal Appeal)
viii) Munna Lal Vs State of Uttar Pradesh criminal Appeal no-490 of 2017
ix)Shambhoo Nath Mishra Vs State of UP AIR 1997 Supreme Court
x) Yash Pal Mittal Vs State of Punjab 1978 CBI Vs Markandey Mishra & Ors 67/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi SCR
xi)Umesh Kumar Vs State of A.P. decided on 06/09/2013, criminal Appeal No-1305 of 2013.
xii) Darshan Lal Vs State decided on 31/07/2009, criminal Appeal No-73/2001.
xiii) State of Maharastra Tr. CBI Vs Mahesh G Jain 28/05/2013, criminal Appeal No-2345/2009
xiv) Jayawant Dattatray Suryarao Vs State of Maharastra decided on 5th of November, 2001
xv) Pyare Lal Bhargava Vs State of Rajasthan decided on 22 October, 1962.
164. On the other hand, Ld Counsel for accused persons have vehemently argued that prosecution has failed to prove charges being framed against the accused persons.
165. Having considered the argument of the Ld Counsel for CBI and accused persons, hereinafter I am dealing with the case of the prosecution and complicity of accused persons.
166. There is undisputed fact that the said society was registered on 19.02.1980 having a strength of 69 members and having its registered office at 764, Library, Qureshi Nagar, Sadar Bazar, Delhi.
167. It is also undisputed fact that the said society after its registration could not pursue on account of a dispute on its registered office which was sealed under Court orders and documents of the CBI Vs Markandey Mishra & Ors 68/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi society remained locked till the year 2002-2003. There was no activity in the affairs of the society during 1980 to 2002. As the society failed to respond to various queries of RCS, Delhi, issued from time to time relating to verification of records in respect of the members etc., the said society was put under liquidation by RCS on 27.09.1989.
168. Since in the charge sheet there are allegations that the said society was allegedly revived on 01.11.2002 after making forgery in the documents of the said society by hatching a conspiracy. During the course of argument these fact has not even argued by any of the counsel appearing on behalf of accused who have been charge-sheeted on this aspect.
169. The mute question before this Court is whether any forgery has been committed in the documents to get revive said society. Or forgery being committed in the proceedings during the year 2002-2003, if yes by whom.
170. The testimony of PW 5 proves the fact that Ex PW5/A ( Colly ), placed at D-6 to D-20 is the file which has to be remained in the possession of CBI Vs Markandey Mishra & Ors 69/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi R.C.S Office, Delhi. But same was handed over by accused Vishwanath Aggarwal to PW 15 during the preliminary enquiry. The PW6 proves the facts that he had not filed the revival application of said society Ex PW6/B dated 04.09.2002. He also proves that the audit report Ex PW6/C does not bears his signatures at page No.169, 170,175,176,182,183,189,190,195,196,200,203,21 0 and 211. He has also deposed that he has not signed document Ex PW6/D to Ex PW6/O ( the proceedings of said society during the period from 23.06.2002 to 05.03.2003). PW13 has deposed that the proceedings in proceeding register of said society Ex PW6/F to PW6/M were in his hand writing. He has also deposed that Ex PW13/A to PW13/E were in his handwritings. These evidence being deposed PW5, PW6 and PW13 proves the facts that the proceedings contained in D-22 and exhibited by these witnesses in their testimonies are false. And forgery was committed qua these exhibits, as stated above by them in their testimonies. These are the proceedings vide which decision were taken for revival of the said society and accepted resignation and enrollment of new CBI Vs Markandey Mishra & Ors 70/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi members as well as election of Management Committee of said society. All these evidence proved that the society was revived on the basis of forged documents by making forgery in the record and false proceedings containing in D-22 were recorded.
171. It would be appropriate to discuss here the law relating to sanction for prosecution against accused persons has been accorded properly by the competent authority on perusal of record/ material available before it. To say whether the sanction has been granted after due application of mind by the sanctioning authority. As some public servants are also being charged with the offence in the present trial.
172. The sanction for prosecution of a public servant for the offence under P.C. Act is required U/S 19 (1) of P.C Act . Before further proceeding I would like to reproduce Sub Section (1) of Section 19 of the PC Act.
"19. Previous sanction necessary for prosecution.-- (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 CBI Vs Markandey Mishra & Ors 71/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
173. On bare perusal of language of the section 19 (1) of P.C Act, the court is precluded from taking cognizance of an offence under certain sections mentioned in this provision if prosecution wants to prosecute a public servant. The sanction must be from competent Government, it may be Central CBI Vs Markandey Mishra & Ors 72/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Government or State Government, as the case may be. Even otherwise, if the cognizance is taken, this issue can be raised subsequently and prosecution/ proceeding can be dropped if there is no valid sanction on record. The provision deals the intention of the legislature to protect a public servant against harassment and malicious prosecution.
174. The Hon'ble Apex Court in the case of Mohd.
Iqbal Ahmed v. State of Andhra Pradesh (1979 Cai LJ 633) has observed as under:
"The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."
175. The Privy Council in the case of Gokul-chand Dwarkadas Momrka v. The King (AIR 1948 PC
82) has observed as under:
"The sanction to prosecute is an important matter, it constitutes a condition precedent to the Institution of the prosecution and the Government has an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient."
176. In the case of Bhagwan Mahadeo Sathe Versus CBI Vs Markandey Mishra & Ors 73/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi State and Another, 2010 SCC OnLine Bom 2350, it was held that:-
"12. In the present case, the record indicates that the draft sanction letter was forwarded to the sanctioning authority along with the other papers. The actual sanction which is granted is verbatim reproduction of the draft sanction. This also clearly discloses that there was a non-application of mind while granting sanction to prosecute. Under all these circumstances, in my view, the prosecution has failed to establish its case beyond reasonable doubt. The judgment and order passed by the Sessions Court is set aside and the Appellant is acquitted for the offences of which he is charged. The Appellant is on bail. His bail bond shall stand cancelled. Appeal is, accordingly, allowed and disposed of."
177. In the case of CBI v. Ashok Kumar Aggarwal, Crl.
Appeal No. 1838/2013 date of decision 22.11.2013. it was held that:
13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, In every Individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage CBI Vs Markandey Mishra & Ors 74/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non- application of mind.
16. In view of the above, the legal propositions can be summarised as under:
16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its CBI Vs Markandey Mishra & Ors 75/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi mind on the same and that the sanction had been granted in accordance with law."
178. In the case of the State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268, Hon'ble Supreme Court dealt with a case under the provisions of the 1988 Act, wherein the prosecuting agency had submitted a very detailed report before the sanctioning authority and on consideration of the same, the competent authority had accorded the sanction.
Hon'ble Supreme Court found that though the report was a detailed one, however, such report could not be held to be the complete records required to be considered for sanction on application of mind to the relevant material on record and thereby quashed the sanction.
179. Having considered the totality of the facts of the present case, the law and evidence as brought on record. Now let us discuss the case hereinafter. Finding qua accused Markandey Mishra .
180. The allegations against accused Markandey Mishra, are that he in furtherance of the criminal conspiracy with co-accused persons, being dealing Assistant in the office of RCS, Delhi, was directed by Smt. Shakuntala Joshi AR(N) to CBI Vs Markandey Mishra & Ors 76/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi conduct the verification of the documents of said society. He by abusing his official position as a public servant in the capacity of dealing clerk, fraudulently and dishonestly with an ulterior motive did not verify resignations/enrollments of some of the members from the original records of the society available with him. He submitted a false report dated 22.10.2002, relating to verification of records of society to accused Shakuntala Joshi in which he had recommended the cancellation of the winding up order of the society.
181. To prove its case against accused Markandey Mishra the prosecution has totally relied upon the document D-13 as adduced on record through Ex PW5/A ( Colly). As per allegations, vide D-13 he has made office notings on the file of said society in conspiracy with other co-accused persons. The question arises whether prosecution has proved the signatures/initial of accused on file notings vide D-13 ( Ex PW5/A colly ) The prosecution has not brought on record the fact that accused Markandey Mishra has dealt with file notings D-13 ( Ex PW5/A Colly). The prosecution has relied upon CBI Vs Markandey Mishra & Ors 77/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi the testimony of PW 5 to connect accused Markandey Mishra with the complicity of present case qua his notings and his indulgence in conspiracy. But PW5 has deposed in his examination in chief that he has not worked with accused Markandey Mishra. The prosecution has not got identified the signatures of accused Markandey Mishra on D-13 ( Ex PW5/A colly) through any witness. Even the prosecution has not brought on record any evidence that accused Markandey Mishra was posted in the office of RCS at relevant time when notings on the file of the said society was allegedly made. No witness has deposed these facts on record. The prosecution has failed to discharge its duty to bring on record the fact that accused Markandey Mishra has dealt with D-13 ( Ex PW5/A colly). On the other hand, accused Markandey Mishra in his statement recorded U/S 313 Cr P C has categorically denied to deal with D-13 ( Ex PW5/A colly). He has denied his signatures on D-13 ( Ex PW5/A colly). On perusal of signature of accused Markandey Mishra as appended on charge and statement recorded U/S 313 Cr P C, it seems that his CBI Vs Markandey Mishra & Ors 78/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi signature are different from signatures/initial from D-13 ( Ex PW5/A colly). The prosecution has not proved the minimum required condition that signatures on D-13 ( Ex PW5/A Colly) were appended by accused Markandey Mishra. It was required to be proved on record. In the absence of any evidence connecting the accused Markandey Mishra with document D-13 ( Ex PW5/A colly), he cannot be connected with offence charge against him.
182. Moreover, to prosecute accused Markandey Mishra for the offences under Prevention of Corruption Act, sanction U/S 19 of P.C Act is essential. In order to prove the sanction for prosecution against accused Markandey Mishra. The prosecution has examined PW 1 Sh C.M. Sharma. He has deposed that he has received a request for sanction from CBI in respect of accused Markandey Mishra. He has deposed that he had perused all relevant documents received from CBI including statement of the witnesses and report of IO to form his opinion for giving sanction for prosecution of accused Markandey Mishra.
CBI Vs Markandey Mishra & Ors 79/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
183. However, PW 1 in the cross examination has deposed as to how he has accorded sanction against accused Markandey Mishra. The relevant portion of his cross examination is as follows:
"The request for grant of sanction aforesaid was received from CBI directly in my office. No office note was written by my staff while putting up the request of CBI to me for grant of sanction in this case. I cannot say the said file contained how many pages...... Draft chargesheet of the case was also not received from CBI. I did not discuss the case with the IO before granting the sanction. I did not take any legal opinion for forming my opinion.......I had not sought any comments or clarifications from the office of RCS before granting the sanction. It is correct that sanction order Ex. PWI/A does not contain any reference to the nature of documents and the details of the witnesses whose statement I had perused. ...It is correct that I have not been shown the said file today in court also. It is wrong to suggest that the said file has not been shown to me as the file would reflect non-application of mind on my part"
184. On perusal, the witness is unable to disclose clearly the material which he has perused before granting sanction for prosecution against accused Markandey Mishra. On perusal of documents Ex DW1/A ( Colly). It reveals that list of documents alongwith gist in the form of calander of evidence documentary were sent only. The complete set of CBI Vs Markandey Mishra & Ors 80/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi documents were not sent to the sanctioning authority. Similarly gist of oral evidence was sent and statement of witness being recorded were not sent. It shows that complete evidence were not sent to the sanctioning authority for its perusal. So the testimony of PW 1 is dubious regarding perusing the material /evidence by him before according sanction. So in view of the law as discussed in the preceding paragraph coupled with the testimonies of PW1 and DW.1 the prosecution has failed to prove the sanction order against accused Markandey Mishra being accorded by applying mind by the sanctioning authority. Finding qua accused Shakuntla Joshi
185. The allegations against accused Shakuntla Joshi are that while she was working as AR(N) in the office of R.C.S Delhi. She has abused her official position as a public servant. She has fraudulently and dishonestly, forwarded the report directly to Narayan Diwakar the then RCS, Delhi without verifying the records submitted by the society with those available in her office. She has bypassed the normal channel of Dy. Registrar and Joint Registrar of the office of RCS while she CBI Vs Markandey Mishra & Ors 81/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi recommended the case of the society for revival.
186. On perusal of record, it reveals that the prosecution has not examined any witness from the office of RCS, Delhi who can depose a fact that Shakuntla Joshi was posted in RCS Office at the relevant time when file notings vide D-13 and D-15 were prepared and she has appended her signatures on it. To prove its case against accused Shakuntla Joshi, the prosecution has solely relied upon the testimony of PW 5 to connect her with the complicity of present case and her indulgence in conspiracy. But PW5 has deposed in his examination in chief that he has not worked with accused Shakuntla Joshi. Accused Shakuntla Joshi has denied her signatures being appended by her on the document D-13 and D-15 ( Ex PW5A colly). Even in her statement recorded U/S 313 Cr P C she has categorically denied that she has dealt with this file and denied her signatures on these documents D-13 and D-15 ( Ex PW5A colly). The prosecution must have called any person who could have proved a fact that accused Shakuntla Joshi has dealt with the file of the said society and appended her signatures on it. The prosecution has CBI Vs Markandey Mishra & Ors 82/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi not proved the minimum required fact which has to be proved on record. In the absence of any evidence connecting the accused Shakuntla Joshi with document D-13 and D-15 ( Ex PW5/A colly), she cannot be connected with offence charge against her. Even otherwise, the prosecution has unable to brought into the notice of this Court whether accused Shakuntla Joshi could not have sent the file directly to the Court of Registrar of Co operative Societies. The prosecution has unable to brought any evidence on record which shows that accused Shakuntala Joshi has obtained any monetary gain in the revival of the said society. There is no evidence which shows that forged signatures were appended on the document by any person in her presence. The evidence are short to hold her guilty for the offences charged with.
187. Moreover, to prosecute accused Shakuntla Joshi, for the offences under Prevention of Corruption Act, sanction U/S 19 of P.C Act is essential. To prove sanction for prosecution against accused Shakuntla Joshi, the prosecution has examined PW 2 Sh Ashutosh Kumar. He has deposed that he had received a request for issuing sanction to prosecute CBI Vs Markandey Mishra & Ors 83/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi accused Shakuntla Joshi. He has deposed that he had processed the file as the competent authority was the Lt Governor of Delhi, who had authorized to him to authenticate his ( Hon'ble Lt Governor) orders. He has deposed that whole file alongwith all the documents received, and was sent to the office of Lt Governor where it was scrutinized at various levels. He has deposed that after due application of mind, when it came back with orders, he issued sanction order Ex PW2/A on behalf and in the name of the Lt Governor.
188. PW2 in his cross examination has deposed as to how the sanction for prosecution against accused Shakuntla Joshi was accorded. The relevant portion of his cross examination is as follows:
" I do not remember all the documents that were received with the file. The FIR was there and there were other related documents. ......... I did not prepare the sanction order myself. However, it was done in the normal process followed by the department where the draft is put up which is then vetted and finalized. I think the draft sanction order was prepared at the level of the UDC. I do not remember clearly which documents were sent by me with the draft sanction order to the office of the LG but all documents which substantiated the case were sent.
189. On perusal of the statement of PW 2. This witness has unable to disclose clearly the material which he has sent to the sanctioning authority for its CBI Vs Markandey Mishra & Ors 84/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi perusal before granting sanction for prosecution against accused Shakuntla Joshi.
190. On perusal of Sanction file Ex DW2/A ( Colly). It reveals that the file/record which was sent to office of Lt Governor contains only S.P report in brief containing only allegation, result of investigation and Calandar of evidence (Documentary), Calandar of evidence (Oral) and draft sanction order, for obtaining sanction for prosecution of accused Shakuntla Joshi. The complete set of documents were not sent to the sanctioning authority. Similarly gist of oral evidence was sent only and statement of witnesses being recorded in complete were not sent. It shows that complete evidence were not sent to the sanctioning authority for its perusal. So the testimony of PW 2 is dubious regarding perusing the material /evidence by the sanctioning authority before according sanction. So in view of the law of sanction, as discussed in the preceding paragraphs coupled with the testimonies of PW2 and DW.2, the prosecution has failed to prove the sanction order against accused Shakuntla Joshi being accorded by applying the mind by the sanctioning authority. CBI Vs Markandey Mishra & Ors 85/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Finding qua accused Narayan Diwakar.
191. The allegations against accused Narayan Diwakar are that in furtherance of criminal conspiracy with other co-accused persons in the capacity of RCS Delhi, he dishonestly issued revival order dt. 01.11.2002. The said order was passed on the basis of slew of forged documents submitted by Sh. Ashutosh Pant which had been forged by Ashwani Sharma, and Naveen Kaushik. There are allegations that accused Ashutosh Pant impersonated himself as Anand Ballabh, who was non-existent entity within the full knowledge of Narayan Diwakar, in the proceedings presided by Narayan Diwakar on 24.10.2002, in which the request of the society was heard by Sh. Narayan Diwakar.
192. Ld Counsel for accused Narayan Diwakar has vehemently argued that, firstly there is no sanction for prosecution U/S 197 Cr P.C against accused Narayan Diwakar and consequent upon that the accused cannot be prosecuted for the offence Under section 120 B r/w 420/468/471 IPC.
193. It is further argued by Ld Counsel for accused Narayan Diwakar that sanction for the offences CBI Vs Markandey Mishra & Ors 86/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi charged against accused under Prevention of Corruption Act have also not been taken by the prosecuting agency. It is submitted that the amendment has been made in Section 19 of Prevention of Corruption Act in the year 2018. By amendment sanction for prosecution has been made necessary for retired public servant also. And no Court can take cognizance against a public servant for the offences under Prevention of Corruption Act without sanction. It is vehemently argued that this amendment should be considered retrospective. In this way sanction was necessary against accused Narayan Diwakar to prosecute him for the offence under Prevention of Corruption Act.
194. On the other hand, Ld Senior PP for CBI has argued that the prosecution has successfully proved the allegations against the Narayan Diwakar by leading cogent evidence.
195. It is further argued by the Ld Senior PP for CBI that since the act done by accused Narayan Diwakar was not a part of his official duty rather he was indulged in conspiracy with other public servants and private persons who have been CBI Vs Markandey Mishra & Ors 87/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi charged in the present case. In that way no sanction is required against accused Narayan Diwakar U/S 197 of Cr.P.C.
196. It is further argued that since the accused Narayan Diwakar has retired from his services prior to amendment of Section 19 of P.C Act. Hence no sanction is required for prosecution of him for the offence under Prevention of Corruption Act. If it could have been the intention of the legislature then this could have been mentioned in the amendment itself that this provision is applicable with retrospective. It is submitted that section is clear and no sanction U/S 19 of P.C Act is required in case of accused Narayan Diwakar.
197. After considering the arguments of Ld Counsel for the Narayan Diwakar and Ld Senior PP for CBI. As Narayan Diwakar has been charged for the offence Under section 120 B r/w 419/420/468/471 IPC and Sec. 13(2) r/w 13 (1) (d) of PC Act,1988 and substantive offences u/s 13(1)(d) punishable u/s13 (2) of Prevention of Corruption Act 1988.
198. On perusal, it is admitted position of the prosecution that there is no sanction being obtained U/S 197 of Cr.P.C to prosecute accused Narayan CBI Vs Markandey Mishra & Ors 88/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Diwakar and same is also not there on record.
199. Before adverting to the facts of the case and whether sanction U/S 197 Cr P C is required or not, I would like to reproduce Section 197 Cr. P.C. Section 197 of the Cr.PC reads as under:
"197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a CBI Vs Markandey Mishra & Ors 89/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Penal Code, 1860.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein,the expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any CBI Vs Markandey Mishra & Ors 90/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
200. On perusal of Section 197 of the Cr PC, it provides that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government. The law pertaining to the grant of sanction under Section 197 is no longer res CBI Vs Markandey Mishra & Ors 91/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi integra. The essential requirements of Section 197 Cr. P.C. is that an accused should be alleged of having committed an offence while acting or purporting to act in discharge of his official duty. There must be a reasonable connection between the act and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
201. The Hon'ble Supreme Court Rakesh Bhatnagar Vs Central Bureau of Investigation , 2023 SCC OnLine Del 7440 has held that :-
"62. According to the ratio laid down in A. Srinivasa Reddy (supra), the individual against whom the allegations are made, ought to be a 'Public Servant' whose appointing authority is the Central Government or the State Government to entitle him to the protection under section 197 Cr.P.C. and not to every public servant. In the present case, undoubtedly, the petitioner is a DANICS officer and his appointing authority is the Central/State Government. There is equally no doubt in the mind of this Court that the allegations against the petitioner are of offences in the discharge of his official duties and as such the rigors of N.K Ganguly (supra) shall apply on all fours and it would be imperative for the prosecution to have obtained the sanction under section 197 Cr. P.C. As such, it is apparent that the CBI Vs Markandey Mishra & Ors 92/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi prosecution of the petitioner for the aforesaid offences in the absence of the appropriate sanction under section 197 Cr.P.C. would be untenable.
63. Mr. Goel did not dispute the fact that there is no sanction under section 197 Cr. P.C. obtained from the Competent Authority against the petitioner. Having regard to the said admission, and also considering the ratio laid down by the aforesaid authoritative judgments of the Supreme Court, this Court quashes the charges framed against the petitioner under sections 420, 468 and 471 read with 120B IPC."
202. In the case of A. Sreenivasa Reddy v. Rakesh Sharma, (2023) 8 SCC 711 , it was held by Hon'ble Supreme Court that:-
"41. Sub-section (1) of Section 197CrPC shows that sanction for prosecution is required where any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Article 311 of the Constitution lays down that no person, who is a member of a civil service of the Union or State or holds a civil post under the Union or State, shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of Section 197CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.
59. From the aforesaid, it can be said that there can be no thumb rule that in a prosecution before the court of CBI Vs Markandey Mishra & Ors 93/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only pre- requisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the Cr PC on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official CBI Vs Markandey Mishra & Ors 94/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi duty is not used as a cloak for illicit acts."
203. On perusal of above referred judgments of Hon'ble Superior Courts, it is clear that to commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the Cr PC on such reasoning. The safe and sure test is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. Then it may fall within his/her official duty in that circumstances, obtaining of Sanction U/S 197 Cr P C is necessary.
204. Here in the present case, the allegations against accused Narayan Diwakar are that he had revived the said society on the basis of forged documents. The act of revival of the said society is official duty and if he could have not done act to revive the said Society then it could have been considered as dereliction of his official duty.
205. The fact whether he was indulge in conspiracy is a matter of appreciation of evidence on record, which has to be considered by the Court on the CBI Vs Markandey Mishra & Ors 95/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi basis of material being produced before Court.
206. Admittedly accused Narayan Diwakar was an I.A.S and his appointing authority was either Central Government or State Government, therefore, the protection as available U/S 197 Cr P C is to be granted to him for the prosecution U/S Under section 120 B r/w 419/420/468/471 IPC, which is not there on record.
207. So far as allegations of conspiracy against accused Narayan Diwakar with co-accused in reviving of the said society is concerned. There is no direct evidence being brought on record by the investigating agency. There is also no evidence that he was hand in glove with any of the accused persons. There is no evidence at all that he has got any monetary benefit from any of the co-accused in the process of revival of the said society. The alleged proceedings qua completion of formalities for revival of the society could have been completed at various stages subsequently. But there is no evidence on record qua mens rea on the part of accused Narayan Diwakar. The revival may be wrong decision or it may be over looking of some facts or due to negligence. But in the CBI Vs Markandey Mishra & Ors 96/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi absence of mens rea and in the absence of gaining any monetary benefit it may be difficult to hold him guilty for the offences charges against him. For the sake of argument, if some persons had appeared before accused Narayan Diwakar as Anand Ballabh as Secretary of Management Committee of said society and he had marked his attendance as functionary of the society. It is not sufficient to hold accused Narayan Diwakar as guilty of conspiracy. It may be negligence, but it does not qualify the principle of criminal jurisprudence that charge have been proved beyond reasonable doubt. There is no evidence on record that accused Narayan Diwakar was knowing the actual functionaries of said society or the persons appeared before him were known to him. Then how it can be said that he had hatched conspiracy with other accused persons. So the prosecution has failed to prove charges against accused Narayan Diwakar for offences charged with.
Finding qua accused Vishwanath Aggarwal .
208. The allegations against accused Vishwanath Aggarwal are that he in furtherance of criminal CBI Vs Markandey Mishra & Ors 97/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi conspiracy with other co-accused persons, during the period from 1982 to 2003 submitted slew of forged records, of the said society. And he alongwith other accused persons got fraudulently revived the said society on 01.11.2002. And also a freeze list was sent to DDA for 90 members on 8.11.2002 for allotment of land at cheaper rates. There are also allegations that since revival of the said society. The said society has been controlled by accused Vishwanath Agarwal alongwith other private accused persons, Mohit Saxena, Ashok Kumar Choudhary, and Sandeep Sahini. The charge is also against accused Vishwanath Aggarwal that he alongwith co-accused have forged the signatures on the proceeding of Management Committee meeting dated 25.11.2002 and 02.02.2003. He was also controlling the affairs of the said society since 05.03.2003. He alongwith other co-accused persons have also enrolled new members after accepting forged resignations of some of the old members but dishonestly lodge the FIR for stolen of old record of the said society.
209. It is argued by Ld Counsel for accused CBI Vs Markandey Mishra & Ors 98/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Vishwanath Aggarwal that the allegations against him are that resignation of members from S-1 to S-104 are not available with the society as prior to registration of the case, accused Viswanath Aggarwal had lodged a false report with P.S Daabri, Palam mentioning therein that these documents alongwith other records are stolen which resulted into registration of FIR No. 57/05, P.S Dabri, Palam Delhi. But the said FIR is not part of the chargesheet and hence this fact cannot be read against accused Vishwanath Aggarwal.
210. It is argued by Ld Counsel for accused Vishwanath Aggarwal that accused has provided and handed over all the relevant documents of this case to the Investigation agency. It is submitted that in D-3, Receipt Memo, particular of documents show accused Vishwanath Aggarwal has handed over the elaborated list of the documents to the investigating agency. But it reveals that complete file has not been placed on record by the investigating officer which shows casual manner of investigation by the investigating officer.
211. It is argued on behalf of accused Vishwanath Aggarwal that there is a lapse on the part of the CBI Vs Markandey Mishra & Ors 99/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi investigation agency with regard to the documents. As accused Vishwanath Aggarwal has provided the documents which were sought from him despite the fact that no notice u/s 91 of CrPC was served upon accused Vishwanath Aggarwal by the investigating agency. The investigating officer would have served notice to the accused in case the investigating officer had more queries or requirement of more documents. It is further argued that casualness of IO in investigating the case also reveals that IO has mentioned different case/Registration number on D-3 and D-4.
212. It is further argued that whole case of the prosecution is based upon the testimony of PW-6 Pawan Khosla but investigating agency has not taken his specimen signatures to get opinion with the document and proceeding conducted by him where he has been shown as functionary of the said society.
213. It is further argued by the Ld Counsel for accused Vishwanath Aggarwal that the IO has not made any person as witness from those who had attended the M.C meeting dated 25.07.2002 and 30.10.2002 vide which discussion taken place CBI Vs Markandey Mishra & Ors 100/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi regarding revival of the said society.
214. It is submitted that R.N. Pandey and Vijay Rawat have not been examined as they have participated in the meeting of management committee dated 04.02.2003 and 05.03.2003. It is further submitted that accused Vishwanath Aggarwal was elected as President in the meeting dated 05.03.2003, Radhey Shyam as Treasurer of the society and Savita was also elected member of Managing Committee but they have not been made either as accused or witness, by the IO.
215. It is further submitted that some of the person like Abdul Malik S/o Sh. Nirajudin have been shown to be present in the meeting dated 15.04.2003 during the tenure of accused Vishwanath Aggarwal. Similarly there are two Gulzar Ahmed one is PW 9. But the prosecution shows the wrong affidavit of another Gulzar Ahmed to PW9 in his examination.
216. It is further argued by the Ld Counsel for accused Vishwanath Aggarwal that the specimen signatures of accused places as S-284 to S-288 are doubtful as he was in custody at the relevant time, when alleged specimen signatures were taken. It is CBI Vs Markandey Mishra & Ors 101/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi submitted that accused has not taken any monetary benefit from said society and whatever money was deposited by the members of the society the same were used for the construction of the flats of the said society. And in that way testimony of PW8, PW10, PW11 and PW12 were not helpful to the prosecution. The other witness as has been shown as member of the society were not denied their membership, being false. It is submitted that accused Vishwanath Aggarwal has not committed any offence.
217. On the other hand, it is argued by the Ld Senior PP for CBI that accused Vishwanath Aggarwal and S.P. Saxena (proceedings already stands abated) were the main conspirator who have got forged the documents and got revived the said society. It is further argued that prosecution has proved its case to the extent that accused Vishwanath Aggarwal with other accused persons were involved in the conspiracy for revival of the said society and subsequently committed forgery in proceeding of the said society. They have cheated the DDA.
218. Having considered the arguments and rival contention being raised by the parties. One fact CBI Vs Markandey Mishra & Ors 102/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi which is proved on record beyond reasonable doubt is that the document Ex PW5/A ( Colly) which was seized by the officer conducting preliminary inquiry, was handed over by accused Vishwanath Aggarwal to the IO vide Mark 15/C (D-3).
219. On perusal of document Ex PW6/B (D-12) which is a part of file Ex PW5/A ( Colly), it reveals that this application dated 04.09.2002, vide which a request was made to the office of RCS,Delhi for revival of the said society, was made by one Pawan Khosla (PW6). But PW6 Pawan Khosla has stated that he had not made or filed this application before R.C.S Office for revival of the said Society. The fact is proved that the application for revival of the said society bears the signatures of Pawan Khosla which was not actually signed by Pawan Khosla (PW6), who was never became member of the said society.
220. The argument of Ld Counsel for accused Vishwanath Aggarwal that specimen signatures of PW6 were not obtained by the investigating officer for getting matching of his signatures on the document Ex PW6/B is not sustainable. PW6 CBI Vs Markandey Mishra & Ors 103/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Pawan Khosla has deposed in the Court. His testimony falls in the category of direct evidence. PW6, being witness, has not identified his signatures in the Court on document Ex PW6/B. So his testimony cannot be discarded. If accused Vishwanath Aggarwal could had disputed that Pawan Khosla is deposing falsely qua his testimony and denying his signatures being put by him ( PW 6) on Ex PW6/B. He could have get rebut that testimony, but same has not been done/rebutted. Merely saying that specimen of PW6 were not got matched with Ex PW6/B is not sufficient.
221. One most incriminating fact against accused Vishawanath Aggarwal is that as it is admitted position that he has handed over the documents to the IO vide document mark PW15/C (D-3). These documents are exhibited as Ex PW5/A ( Colly). On perusal of Ex PW5/A ( Colly) it reveals that this document contains original record of RCS office. This fact has also proved by PW 5 while he has deposed that this record pertains to R.C.S office. It is the accused Vishawanath Aggarwal to clarify the fact as to how this record of RCS came into his CBI Vs Markandey Mishra & Ors 104/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi possession. Because this fact has to be disclosed by accused Vishwanath Aggarwal himself U/S 106 of Indian Evidence Act. The involvement of accused Vishwanath Aggarwal in forging the documents and proceeding of said society proved through this sole circumstance, as the RCS office record could not have been in his possession.
222. The another incriminating evidence against accused Vishawanth Aggarwal is the proceedings exhibited as Ex PW6/J (D-22), the proceedings dated 25.11.2002. Vide this proceedings accused Vishawanath Aggarwal had became the member of the said society. Undoubtedly, a person can become the member of any society by filing application or forms to the Management Committee of the society. Accused Vishwanath Aggarwal could have also made said applications or forms for becoming member of the said society to its Management Committee. In that proceedings Pawan Khosla has been shown as a President. The witness PW6 has deposed that he never became member of the said society. PW6 has categorically deposed that he has not moved application Ex PW6/B. PW13 has also proved the fact that all the CBI Vs Markandey Mishra & Ors 105/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi proceedings which were recorded by him were on the dictation of S.P. Saxena.(proceedings already stands abated) The PW 13 had never participated in the proceeding/meetings of the said society. It means that accused Vishwanath Aggarwal was making application for becoming member of the society to a person who was not functionary of the said society. It clear proves the complicity of accused Vishwanath Aggarwal in commission of offence as alleged against him in conspiracy with accused S.P. Saxena.(proceedings already stands abated).
223. Even otherwise, on perusal Ex PW6/F, Ex PW6/G, PW6/H, Ex PW6/I, Ex PW6/J,Ex PW6/K,Ex PW6/L ,Ex PW6/M and Ex PW13/C (D-22), it reveals that Pawan Khosla was remained President of the society. These proceedings are continued being falsely written by PW 13 on the instruction of S.P. Saxena. (proceedings already stands abated) The Ex PW13/C, the meeting of GBM dated 04.02.2003, shows that agenda was fixed for election of new Management Committee of the said society. The date of election was fixed as 05.03.2003 and on that date accused CBI Vs Markandey Mishra & Ors 106/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Vishwanath Aggarwal was elected as President of the said society. But these all false proceedings were written by PW 13 which were got written on the dictation of accused S.P. Saxena. (proceedings already stands abated). The document Ex PW6/C ( Audit report ) also find mentioned signature of Pawan Khosla but he denied to put his signatures on this document. The accused Vishwanath Aggarwal has became member of the said society within one month of revival of said society ( Ex PW6/J). Though these proceedings were false proceedings. All these facts shows that accused Vishawanath Aggarwal was hand in glove with accused S.P. Saxena (proceedings already stands abated) by forging the signatures of Pawan Khosla. All these proceedings contained in document D-22 exhibited (PW5/A colly) which are proved by PW6 and PW13 shows that accused Vishwanath Aggarwal was indulged in conspiracy in reviving of the said society on the basis of forged document alongwith accused S.P Saxena (proceedings already stands abated), Vide proceedings dated 25.07.2002, decision was taken for revival of the said society.
CBI Vs Markandey Mishra & Ors 107/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
224. The fact is also proved on record in the given circumstances and evidence brought on record, that land to the said society could not have been allotted if that society could not have been revived. It is admitted position that DDA was allotting the land to the society on the basis of their date of registration on priority basis i.e on seniority basis.
225. The argument of Ld Counsel for accused Vishwanath Aggarwal that some of the office bearers of the Management Committee were not made either witness or accused; or argument that investigation was not conducted fairly by the investigating agency is not sustainable. While dealing with the allegations against accused Vishwanath Aggarwal this Court has to consider the evidence which has been brought on record. And whether these evidence are sufficient or not, to give findings about the complicity of accused Vishwanath Aggarwal for commission of offence.
226. So far as the argument of Ld Counsel for accused Vishwanath Aggarwal that prosecution has not placed on record the copy of FIR bearing No.57/05 being registered as PS Dabri, Palam Delhi qua theft of some original record of the said society. In CBI Vs Markandey Mishra & Ors 108/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi this regard a fact has been brought on record by PW14 in his cross examination, being conducted by Sr PP for CBI that accused Vishwanath Aggarwal had told him that documents pertaining to present society were stolen by someone. This admission by accused Vishwanath Aggarwal does not fall within the ambit of confession to PW 14. Rather it proves the fact that accused Vishwanth Aggarwal has disclosed this fact to PW14. In his statement ( recorded U/S 313 Cr P C) accused Vishwanath Aggarwal stated that he do not remember the conversation he had with PW14 qua this fact. It means that he has not specifically denied the fact that he has not disclose the same to PW 14. While on the other hand, PW14 deposed in Court that fact of stolen of record of the said society was told to him by accused Vishwanath Aggarwal. This fact is admissible against accused Vishwanath Aggarwal. It seems that accused Vishwanth Aggarwal may have lodged that FIR to conceal the facts from the Investigating agency qua forgery in the documents. This observation also got strength from D-22, as pages of register prior to proceeding dated 23.06.2002 are being removed CBI Vs Markandey Mishra & Ors 109/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi from the register ( D-22).
227. Though Accused Vishwanath Aggarwal has examined two witnesses in his defence DW 4 Ramasray Singh and DW5 Shri Ram. DW 4 placed on record a newspaper namely Veer Arjun dated 27.10.2010 while DW 5 placed on record a copy of Newspaper The Statesman dated 27.12.2010. The purpose of accused Vishwanath Aggarwal to examined these two Dws are that the said society has published a public notice in the newspaper to clarify the names of the members who has already resigned and induction of new members. The objection was called from the public at large to file their objections to the publication, if they have any objection. The document is not helpful to accused Vishwanath Aggarwal as alleged forgery was completed prior to publication of public notice. Even it reveals that the public notice was published to cover up the FIR being registered against the accused persons.
228. So in view of the discussion above, I hold accused Vishwanath Aggarwal guilty for the offence U/S 120 B r/w 420/468/471 IPC APPRECIATION OF EVIDENCE AGAINST CBI Vs Markandey Mishra & Ors 110/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi ACCUSED MOHIT SAXENA, ASHWANI SHARMA, ASHUTOSH PANT AND NAVEEN KAUSHIK.
229. Before discussing evidence against these four accused persons. I deem it appropriate to specify their role as per charge being framed against them. ROLE OF ACCUSED MOHIT SAXENA.
230. The allegations against accused Mohit Saxena are that in pursuance of the criminal conspiracy, the letter of allotment of land was collected by him from the DDA. As per the authorization by the secretary dated 03.02.2003, he was authorized to collect the allotment letter in pursuance of resolution passed in the meeting held on 02.02.2003 by the said society. The said authorization was forwarded to DDA by Ashutosh Pant by forging the signatures of Anand Ballabh. ROLE OF ACCUSED ASHWANI SHARMA .
231. The allegations against accused Ashwani Sharma are that in pursuance of criminal conspiracy with other co-accused persons he had forged the signatures of the members of the Management Committee on the proceedings purportedly held on 25.11.2002 and 2.2.2003. Vide these proceedings members CBI Vs Markandey Mishra & Ors 111/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi were enrolled and resignation of some members were accepted in the Management Committee register. That register shows that the said proceeding register was signed by Sh. V.N. Aggarwal as the President of the Society. Similarly without verifying the balance sheets submitted by the society, accused Ashwani Sharma got issued undated audit report by signing the documents. The said documents bearing signatures of Harish Bisht as Treasurer, Pawan Khosla as President and Anand Ballabh as Secretary. The allegations are that most of the signatures of General Body Meeting purportedly signed by accused Ashwani Sharma. ROLE OF ACCUSED ASHUTOSH PANT
232. The allegations against accused Ashutosh Pant are that in furtherance of the criminal conspiracy with other co-accused persons he ( Ashutosh Pant ), while impersonating as Anand Ballabh, has submitted request for revival of Nishat CGHS. He has submitted the application for revival to Narayan Diwakar, RCS on 05.09.2002 under the forged signatures of Pawan Khosla. Pawan Khosla has been shown to be acting as a President of the CBI Vs Markandey Mishra & Ors 112/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi said society. Though he was not even a member of the said society.
ROLE OF ACCUSED NAVEEN KAUSHIK.
233. The allegations against accused Naveen Kaushik are that he in furtherance of the criminal conspiracy alongwith co-accused Ashwani Sharma made forgery on all the documents submitted by accused Ashutosh Pant for revival of the said society. FINDING QUA ACCUSED MOHIT SAXENA, ASHWANI SHARMA, ASHUTOSH PANT AND NAVEEN KAUSHIK.
234. Considering the arguments of learned Counsel for these four accused persons and Learned Sr PP for CBI. It is clear that there is no direct evidence or witness being produced by the prosecution which can show or depose that the alleged forgery being committed by these four accused persons were done by them in his or her presence. The case of the prosecution lies against these accused person upon the sole evidence of hand writing expert PW4. Sh S. Ahmed, who has submitted his report vide Ex PW4/B, PW4/C, PW4/E and PW4/F.
235. Now question arises whether these four accused persons can be held guilty on the basis of expert's CBI Vs Markandey Mishra & Ors 113/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi evidence. Before giving any observation I would like to mention here the observations of Hon'ble Superior Courts which guided how the hand writing expert's evidence has to be considered. I would also like to mention here the certain basic principles which are required to be considered while acting upon the opinion of hand writing expert.
236. The entire process of examination of documents by an expert can be looked at three stages i.e i) taking over of specimen signatures/handwriting pertaining to the accused persons (ii) sending the same to the GEQD alongwith questioned documents and (iii) the report of the GEQD given after examination, on the basis of material sent to expert.
237. So far as the GEQD reports being given by the hand writing expert is concerned. I would like to mention here certain judgments being rendered by the Hon,ble High Courts as well as by the Hon'ble Supreme Court with respect to evidential value of hand writing expert. The Hon'ble Supreme Court of India in Ramesh Chandra Aggarwal Vs Regency Hospital Ltd (2009) 9 SCC 709 has held that "
CBI Vs Markandey Mishra & Ors 114/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Relevancy of Expert's Opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The validity of the process by which the conclusion is reached by the expert is also relevant". The Hon'ble Supreme Court in case titled State of H.P. Vs Jai Lal & Ors (1999) 7 SCC 280 has observed that "credibility of expert witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross examination". The Hon'ble High Court of Delhi in case titled Sandeep Dixit Vs State Crl Rev 260/2011 decided on 27th April 2012 has observed " that the opinion of an expert under section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration." Hon'ble Supreme Court of India in case titled as Murari CBI Vs Markandey Mishra & Ors 115/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Lal S/O Ram Singh Vs. State of Madhya Pradesh 1980 AIR 531 has observed that "We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted." The Hon'ble Supreme Court in CBI Vs Markandey Mishra & Ors 116/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi case titled State of Maharashtra Vs Damu S/O Gopinath Shinde & Others (2000) 6 SCC 269 has observed that " without examining the expert as a witness in court, no reliance can be placed".
238. In order to bring home the guilt against the accused persons, prosecution was under obligation to establish beyond all doubt that all the above mentioned processes at different stages were done and executed in accordance with law and there is no doubt in either of the said processes. In case it is found that there is a serious doubt in the story of the prosecution at any stage of the process, then obviously benefit would go to the accused persons.
239. So in view of the discussion above firstly I will consider whether taking of specimen signatures of accused persons, to get compare with the questionnaire document, is free from all encumbrances.
240. The specimen signatures/initial/handwriting of these four accused were obtained vide Ex PW15/F ( Colly). The Ex PW15/F( Colly) contains documents started from S-1 to S-302.
241. The specimen signatures/handwriting of accused CBI Vs Markandey Mishra & Ors 117/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Mohit Saxena were obtained vide Specimen sheet S-192 to S-277. These specimen handwriting and signatures were sent to expert for his opinion with the questioned document but on perusal these specimen handwriting/signatures sheet it shows that no independent witness was joined during the investigation while obtaining these specimen handwriting/signatures vide sheets S-192 to S-277.
242. Similarly, the specimen signatures/initial/ handwriting of accused Ashwani Sharma were obtained vide specimen sheet S-1 to S-117. Though S-1 was obtained in the presence of Gian Singh, Assistant Superintendent, Jail No.4 Tihar Central Jail New Delhi. But S-2 to S-117 find mentioned the initial of witness in whose presence specimen signatures/initial/ handwriting of accused Ashwani Sharma were obtained but the name, address or particular of witness is not mentioned
243. Similarly, the specimen signatures/initial/ handwriting of accused Ashutosh Pant were obtained vide specimen sheet S-118 to S-191. But those specimen sheets find mentioned the initial of witness in whose presence specimen CBI Vs Markandey Mishra & Ors 118/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi signatures/initial/ handwriting of accused Ashutosh Pant were obtained but the name, address or particular of witness is not mentioned.
244. The specimen signatures/initial/ handwriting of accused Naveen Kaushik were obtained vide specimen sheet S-289 to S-293. But those specimen sheets find mentioned the initial of witness in whose presence specimen signatures/initial/ handwriting of accused Naveen Kaushik were obtained but the name, address or particular of witness is not mentioned.
245. On perusal of these documents starting from S-1 to S-293 Ex PW15/F ( colly) ) it reveals that S-1 is having the name and address of the witness in whose presence the specimen signature of Ashwani Sharma were obtained. The specimen sheet S-2 to S-293 shows that specimen signatures/handwiring were obtained of above named four accused persons in the presence of witness. But that witness has not been examined by the prosecution. Though, PW15 has identified the signatures of the IO B.S. Jha, in whose presence specimen signatures of accused persons were obtained. And PW 15 has exhibited the document Ex PW15/F CBI Vs Markandey Mishra & Ors 119/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi ( colly). But merely identification of the signatures of I.O on specimen sheets does not prove the fact that the specimen signature were genuinely obtained by the IO. The simple reason for that is that the accused persons have no opportunity to cross examine the IO on the fact of genuiness of obtaining specimen signatures on these sheets. On the other hand, these four accused have denied the fact that their specimen signatures /initial/ handwriting were obtained. The prosecution has not examined the person who has witnessed the obtaining of specimen signatures /initial/handwriting vide S-1. Even some of the specimen sheets are having initial only of the witness in whose presence specimen signatures/initial/handwriting were obtained and some of the specimen sheets were not having any initial too of any witness.
So the obtaining of the specimen signatures/initial/handwriting of these four accused namely Mohit Saxena, Ashwani Sharma, Ashutosh Pant and Naveen Kaushik is not proved beyond reasonable doubt by the prosecution. In the given circumstances, the opinion/report of handwriting CBI Vs Markandey Mishra & Ors 120/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi expert cannot be considered against above named four accused persons. So the prosecution has failed to connect the above named four accused person with the offence they are charged with. Finding qua accused P.K. Thirwani
246. The allegations against accused P.K. Thirwani are that while he was working as Auditor in the office of R.C.S,Delhi and he fraudulently and dishonestly abused his official position as public servant and submitted a false undated audit report Ex PW6/C ( colly) of the said society for the period 1979-1980 to till 2002. The allegations are also there that the Audit Report was signed by Ashutosh Pant by impersonating himself as Anand Ballabh.
247. It is argued on behalf of accused P.K Thirwani that he has filed Audit report on the basis of documents only which were deposited in RCS office qua the audit of the said society and he was not involved in any criminal act.
248. On perusal of evidence on record there is no iota of evidence which shows that Ashutosh Pant appeared in person impersonating himself as Anand Ballabh before accused P.K. Thirwani. There is no witness who has deposed that he has CBI Vs Markandey Mishra & Ors 121/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi seen that Ashutosh Pant has signed on the Audit report in front of P.K. Thirwani. The prosecution has also unable to brought on record any evidence which shows that there was any manipulation in the Audit report Ex PW6/C ( Colly) except alleged signatures by the functionary of the said society. The prosecution has also not adduced any evidence on record that accused P.K. Thirwani was authorized to interfere in the functioning of the society except auditing the audit report. There is no evidence at all on record which shows that accused P.K. Thirwani was having any knowledge about identification of original functionary of the said society. There is no evidence on record that there is any monetary benefit obtained by accused P.K. Thirwani. There is also no evidence on record that the person who has represented himself Anand Ballabh has signed in presence of accused P.K. Thiwani. The testimony of PW 6 Pawan Khosla is no helpful to the prosecution to prove guilt of the accused P.K. Thirwani. The testimony of PW6 is only to the extent that he has not signed the Audit report Ex PE6/C ( colly).
249. As per the chargesheet accused P.K. Thirwani has CBI Vs Markandey Mishra & Ors 122/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi conducted the Audit of the said society in pursuance of the order of R.C.S dated 01.11.2002( revival order of the said society)
250. Section 53 of The Delhi Co-operative Societies Act 1972 prescribes the Audit of a Co-operative society and also describes the powers of the Auditor. The sub Section (4) of Section 53 of The Delhi Co-operative Societies Act 1972 prescribes that " The directors, managers, administrators and other officers of the society shall furnish to the person auditing the accounts of a co-operative society all such information as to its transactions and working of such person may require."
251. On perusal of sub Section (4) of Section 53 of The Delhi Co-operative Societies Act 1972, it reveals that it is not mandatory for the managing committee to appear in person before the Auditor. Which is required, as per Section 53 of The Delhi Co-operative Societies Act 1972, is the record has to be submitted to the Auditor and audit has to be conducted qua the financial status of the Co- operative society as describes in Sub Section 3 of Section 53 of the Act. If that was the mandate of law and accused P.K. Thirwani has took a defence CBI Vs Markandey Mishra & Ors 123/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi that record was submitted by the management committee and no person in his presence has put signatures. Then this explanation of accused P.K. Thirwani may be accepted in the absence of any other evidence on record. The mens rea is one of the essential ingredient for proving the guilty of a person. Here in the present case mens rea is also missing.
252. So the evidence adduced by the prosecution against accused P.K. Thirwani is not sufficient to prove his guilt beyond reasonable doubt for the offence Under section 120 B r/w 420/468/471 IPC and substantive offences U/S 13(2) r/w 13 (1) (d) of PC Act,1988.
253. Moreover, to prosecute a public servant for the offences under P.C Act, sanction U/S 19 of P.C Act is essential for prosecution. In order to prove sanction order against accused P.K. Thirwani the prosecution has examined PW 3 Sh Rakesh Mehta, Chief Secretary, Govt of NCT, Delhi.He has deposed that on the basis of investigation, documents and the statement of the witnesses submitted by the CBI with a report, he has accorded sanction order Ex PW3/A. CBI Vs Markandey Mishra & Ors 124/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi
254. The witness, PW 3 in the cross examination has deposed as to how he has accorded sanction against accused P.K.Thirwani. The relevant portion of his cross examination is as follows:
" It is correct that the co-operative societies work under the DCS Act. I had not read the DCS Act and Rules before according sanction. Vol. I generally had knowledge about them. I did not procure any legal opinion whether I was competent to grant sanction or not....I had granted sanction on the basis of the documents and the statements of witnesses received from CBI. I did not recommend any departmental enquiry against A10 P. K. Thirwani for the irregularities committed by him for which sanction for prosecution was granted. It is correct that I have not mentioned in the sanction order that there was any loss to the government or any benefit derived by A10 P. K. Thirwani. I have not mentioned in the sanction order that A10 P. K. Thirwani violated the provisions of DCS Act/Rules while auditing the society. I do not remember today whether I came across any statement of any witness or any document which was against A-10 P.K. Thirwani. I do not remember whether I had seen the FIR and the case diary file of this case before issuing sanction order"
255. On the other hand, DW 2 Mukesh Kumar has placed on record Ex DW2/A ( Colly). This document is the record of sanctioning authority which purported to had been perused by the sanctioning authority before according sanction for CBI Vs Markandey Mishra & Ors 125/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi prosecution against accused P.K. Thirwani. This document Ex DW2/A ( colly) does not find contained any material, statement of witnesses or any document which could have been gone through by the sanctioning authority before according sanction for prosecution against accused P.K. Thirwani. The record of Ex DW2/A ( colly ) indicates that only copy of S.P report, allegation in brief, Calendar of evidence ( documentary ), Calender of evidence ( oral) and draft sanction order has been sent by the concerned DIG with request letter for according sanction. The allegation in brief, Calendar of evidence ( documentary ) and Calender of evidence ( oral) cannot be substitute of material or statement of witnesses and incriminating material for according sanction for prosecution. The aforesaid documents does not give an opportunity to the sanctioning authority to apply its mind being a neutral person, while granting or refusing sanction for prosecution. So in view of the law as discussed in the preceding paragraph coupled with the testimonies of PW3, the prosecution has failed to prove the sanction order against accused P.K.Thirwani. CBI Vs Markandey Mishra & Ors 126/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Finding qua accused Sandeep Sahni and Ashok Kumar Choudhary.
256. The allegation against Sandeep Sahni and Ashok Kumar Chaudhary are that as a part of the criminal conspiracy, accused Sandeep Sahni and Ashok Kumar Chaudhary financed the first installment due to DDA, to the tune of Rs.20.00 lakhs on the promise of award of contract for construction of 90 flats by the said society. Subsequently the contract was allotted to M/S Prime Developers, a firm owned by both of them. There are allegations that M/s Prime Developers has constructed 90 dwelling units and construction of all the flats was almost completed. On consideration. Is the allegations and evidences against accused Sandeep Sahni and Ashok Kumar Chaudhary are sufficient to hold them guilty. This has to be examined hereinafter.
257. There is no direct evidence against accused Sandeep Sahni and Ashok Kumar Chaudhary that they have participated in any process for getting revive of the said society. The main allegations against them are that they have financed a sum of Rs.20.00 lakhs which was to be paid to the DDA on the promise of award of contract for CBI Vs Markandey Mishra & Ors 127/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi construction of flats of the said society.
258. But on perusal of charge sheet facts are also there that the said society has also borrowed from Excellent computers, Karma Automobiles, Neelgiri Polymers, Sushil Raj & Company to the tune of Rs. 18 lacs. The total amount was borrowed to the tune of Rs.38 lacs. But the document Audit report ie Balance Sheet as on 31st March 2004, (D-19) shows that Rs.38 lacs has been returned to the aforesaid landers. If the money was borrowed from some persons /companies and the same was returned to them then the evidence adduced on record is not sufficient to hold guilty the accused Sandeep Sahni and Ashok Kumar Chaudhary. And presume that they were indulge in conspiracy.
259. One aspect is also there in the present case, the investigating agency has not made other landers as accused persons. It seems that accused Sandeep Sahni and Ashok Kumar Chaudhary have been made accused only on the fact that they have constructed the said society. To construct a construction in itself is not sufficient to consider the indulgence of accused Sandeep Sahni and CBI Vs Markandey Mishra & Ors 128/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Ashok Kumar Chaudhary in a crime.
260. Moreover, as per the bye laws of said society Ex PW7/B, it is stipulated in clause 10(b) of the by laws, the capital shall composed of loans and deposits from members and non-members. It shows that said society may borrow loans from non-members also.
261. There is no evidence on record at all which shows that any monetary relief has been obtained by Sandeep Sahni and Ashok Kumar Chaudhary in addition to contract of construction of flat of the said society. So in view of the above, the prosecution has failed to prove its case beyond reasonable doubt against accused Sandeep Sahni and Ashok Kumar Chaudhary.
CONCLUSION:
262. In view of the foregoing discussions, I hold accused Vishwanath Aggarwal guilty for the offence U/S 120-B read with Section 420/468/471 IPC.
263. Since the evidence as brought on record is not sufficient beyond reasonable doubt to hold accused persons, namely Markandey Mishra, Shakuntla Joshi, Narayan Diwakar, P.K. Thirwani, CBI Vs Markandey Mishra & Ors 129/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi Mohit Saxena, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik, Ashok Kumar Choudhary and Sandeep Sahni, as guilty of offences charged with. The prosecution has also failed to prove on record the sanction against accused Markandey Mishra, Shakuntla Joshi and P.K. Thirwani. To prosecute these thee accused persons the sanction is foundation stone. And without proper sanction U/S 197 Cr P.C against accused Narayan Diwakar cognizance cannot be taken and case has to be dropped against him for the offences charged under IPC offences. So in view of the above discussion, accused persons namely Markandey Mishra, Shakuntla Joshi, Narayan Diwakar, P.K. Thirwani, Mohit Saxena, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik, Ashok Kumar Choudhary and Sandeep Sahni are acquitted. Bail bonds of accused Markandey Mishra, Shakuntla Joshi, Narayan Diwakar, P.K. Thirwani, Mohit Saxena, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik, Ashok Kumar Choudhary and Sandeep Sahni stand cancelled and their sureties also stands discharged.
264. Let digitally signed copy of the judgment be CBI Vs Markandey Mishra & Ors 130/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi uploaded on the Court's official website, Digitally signed by JAGDISH accordingly. KUMAR JAGDISH KUMAR Date: 2025.03.05 16:03:41 +0530 (Jagdish Kumar ) Special Judge (PC Act) (CBI) 16 Rouse Avenue District Courts New Delhi Announced in the Open Court today :05.03.2025 CBI Vs Markandey Mishra & Ors 131/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi CBI Vs Markandey Mishra & Ors 132/131 CBI Case No.:96/2019 CNR No.: DLCT11-000406-2019 RC No.9/2006/EOU-VI/CBI New Delhi