Delhi District Court
Cbi vs . Narayan Diwakar & Ors. on 5 January, 2012
IN THE COURT OF SH.R P PANDEY: SPECIAL JUDGE (CBI)01
ROHINI COURTS:DELHI
RC13(E)/2005/CBI/BS&FC/N.Delhi
U/s120B r/w Sec.419/420/465/467/468/471 IPC
13 (2) r/w 13(1)(d) of PC ACT, 1988
CBI CASE No.62/08
CENTRAL BUREAU OF INVESTIGATION, NEW DELHI
VS
1.NARAYAN DIWAKAR S/O LATE SH.CHHATHI LAL R/OG30, MASJID MOTH, NEW DELHI38
2. SITA RAM GOYAL S/O SH.RAMDHARI GOYAL R/O56A, SURAJ NAGAR, AZADPUR DELHI33
3. RAJ BHUSHAN CHAUHAN S/O SH.KESAR SINGH CHAUHAN R/OH.No.8, PANCH MAHAL APARTMENT PLOT NO.47, PATPARGANJ DELHI92 CBI No.62 of 2008 Page No.1 of 68 CBI Vs. Narayan Diwakar & Ors.
4. RAM NATH S/O SH.BISHAN LAL R/O192, GALI NO.9 WEST GURU ANGAD NAGAR LAXMI NAGAR DELHI92
5. DEEN BANDHU PRASAD S/O LATE SH.DHODHA PRASAD R/OA45, SITA PURI, PARTII GALI NO.3 (NEAR DABRI VILLAGE) NEW DELHI
6. ASHUTOSH PANT S/O SH.MAHESH CHAND PANT R/OB160, GALI NO.2, SADAT PUR COLONY DELHI94
7. P K THIRWANI S/O LATE SH.MOTI RAM THIRWANI R/O348E, POCKET2, MAYUR VIHAR DELHI91 ... ACCUSED CBI No.62 of 2008 Page No.2 of 68 CBI Vs. Narayan Diwakar & Ors.
Date of institution 22.01.07 Date on which case 15.12.11 Reserved for order Date of Order 05.01.12 CASE ID02404R0649892007 ORDER ON CHARGE:
1. Accused Narayan Diwakar (A1); Sita Ram Goyal (A2); Raj Bhushan Chauhan (A3); Ram Nath (A4); Deen Bandhu Prasad (A5); Ashutosh pant (A6) and P K Thirwani (A7) have been charge sheeted by CBI to face trial for offences punishable u/s 120B r/w Sec. 420/468/471 IPC, Section 13(2) r/w 13(1)(d) of PC Act, besides substantive offences u/s 420/511/468/471 and Section 15 r/w 13(1)(d) of PC Act.
2. Arguments on charge as advanced by ld.Public Prosecutor and accused persons/their ld.counsels have been heard and written arguments as filed by accused/Narayan Niwakar (A1) and Sita Ram CBI No.62 of 2008 Page No.3 of 68 CBI Vs. Narayan Diwakar & Ors.
Goyal (A2) have also been perused.
3. The case of the prosecution is that pursuant to the order of Hon'ble High Court dated 02.08.05 in WP(C) No.10066/04 directing CBI to conduct thorough investigation in the whole matter relating to 135 Co operative Group Housing Societies (in short CGHS), a preliminary enquiry was registered against few societies including Birla Udyog Emp.CGHS Ltd. (hereinafter referred as society) and enquiry was taken up. The enquiry was converted into a regular case and instant RC was registered with the allegations that the Birla Udyog CGHS was registered with registration no.47 (GH) on 09.06.1971 with the Registrar of Co operative Societies (hereinafter referred as RCS) which was brought in liquidation on 29.09.86. During investigation, it was revealed that the said society was registered with 17 promoter members with the address of the society as Opposite Swadeshi Store, Birla Mill, Subzi Mandi, CBI No.62 of 2008 Page No.4 of 68 CBI Vs. Narayan Diwakar & Ors.
Delhi. It was lying defunct since long.
4. Investigation revealed that during the year 200304, accused Narayan Diwakar (A1) then RCS, Delhi; Sita Ram Goyal (A2) then Assistant Registrar (AR) (West) in the office of RCS, Delhi; Raj Bhushan Chauhan (A3) then Dealing Assistant West Zone; Ram Nath (A4) then Inspector, GradeII, Coordination Branch of RCS; Deen Bandhu Prasad (A5) then LDC, GradeIV; and P K Thirwani (A7) then Sr.Auditor RCS, Delhi, all being public servants entered into a criminal conspiracy with Ashutosh Pant (A6), who is a private person, with a common object to cheat Delhi Development Authority (in short DDA) for allotment of land in the name of the said society, on the basis of false list of 119 members forwarded to DDA by RCS for allotment of the land.
5. Pursuant to the said criminal conspiracy, accused/Ashutosh CBI No.62 of 2008 Page No.5 of 68 CBI Vs. Narayan Diwakar & Ors.
Pant (A6) illegally started to control the affairs of the defunct society to facilitate its revival and forged records were prepared by him which were accepted by accused/Narayan Diwakar (A1), who was then RCS, for passing the order for revival of the society.
6. Pursuant to the criminal conspiracy, accused/Aashutosh Pant (A6) had changed the office address of the society as WZ3352, Mahendra Park, Rani Bagh, Delhi34 in the minutes of the Special General Body meeting dated 10.09.79, which was prepared by him. He also submitted an application dated 07.07.03 in the assumed name of one Sh.Jagroop Sharma purported to be the President of the society for cancellation of winding up order dated 29.09.86 in the West Zone office of RCS, Delhi. The said letter was accepted by Sh.Yogi Raj, then AR (West) and was diarized by accused/R B Chauhan (A3), then dealing assistant, on 17.07.03. The said application dated 07.07.03 was CBI No.62 of 2008 Page No.6 of 68 CBI Vs. Narayan Diwakar & Ors.
processed on 18.11.03 by accused R B Chauhan (A3), then dealing assistant and accused/Sita Ram Goyal (A2) without verifying the fact that the society was lying dormant for more than 17 years. Accused/R B Chauhan (A3), then dealing assistant in furtherance of the criminal conspiracy had dishonestly put up a proposal stating that the main file of the society was not traceable and proposed to issue a circular to carry out inspection u/s 54 of DCS Act, 1972 to verify the present status/factual position of the society. The said proposal was dishonestly recommended by accused Sita Ram Goyal (A2), who was AR (West) and was approved by accused/Narayan Diwakar (A1) who was then RCS. Accordingly, a circular was issued by accused/Sita Ram Goyal (A2) ion 28.11.03 to trace out the main file of the society and to carry out the inspection of the office address of the society.
7. Investigation also revealed that pursuant to the aforesaid CBI No.62 of 2008 Page No.7 of 68 CBI Vs. Narayan Diwakar & Ors.
criminal conspiracy, accused/Sita Ram Goyal (A2) had deputed accused Ram Nath (A4), vide order dated 28.11.03, to conduct the inspection of the society and verify the records and submit his report within 15 days and accused Ram Nath (A4) had submitted a false report on 12.12.03 containing the fact that he had visited the office address of society at WZ3352, Mahindra Park, Rani Bagh, Delhi34 and met Sh.Jagroop Sharma, President of the society, who had produced the records of the society, membership register was compelte in all respects, the society had shifted from Opposite Swadeshi Store, Birla Mill, Subzi Mandi, Delhi to WZ3352, Mahindra Park, Rani Bagh, Delhi34 vide management committee resolution passed on 23.05.79 and subsequently approved by special General Body meeting held on 10.09.79 and lastly that all the records were found under the safe custody of Sh.Jagroop Sharma, President of the society. CBI No.62 of 2008 Page No.8 of 68
CBI Vs. Narayan Diwakar & Ors.
8. Investigation disclosed that the society never functioned at WZ3352, Mahindra Park, Rani Bagh, Delhi34 and M.C. Resolution and Special General Body Meeting proceedings have been forged by accused/Aashutosh Pant (A6).
9. Investigation has then disclosed that pursuant to the criminal conspiracy, accused/Sita Ram Goyal (A2) issued circular dated 28.11.03 to trace out the main file of the society to different Zones and without waiting for the reply from the concerned Zones, he issued a letter dated 09.12.03 addressed to the President/Secretary of the society at WZ3352, Mahindra Park, Rani Bagh, Delhi34 in connivance with accused/R B Chauhan (A3) and the said letter was delivered to accused/Aashutosh Pant (A6) by accused/R B Chauhan (A3), on 09.12.03 without obtaining the full particulars of the recipient of the letter. CBI No.62 of 2008 Page No.9 of 68
CBI Vs. Narayan Diwakar & Ors.
10. Pursuant to this criminal conspiracy, accused/R B Chauhan (A3), then dealing assistant, dishonestly put up another note on 15/16.12.04 based on the false inspection report of accused Ram Nath (A4) and proposed for initiation of quasi judicial proceedings u/s 63 of DCS Act, 1972. the said proposal was forwarded by accused/S R Goyal (A2) to accused/Narayan Diwakar (A1), then RCS, Delhi, on 16.12.03. Accused/Narayan Diwakar (A1) dishonestly approved the said recommendation to issue a notice to the President/Secretary of the society for initial hearing on 23.12.03. Thereafter on 16.12.03, Reader of RCS issued a letter addressed to the President/Secretary of the society to appear before RCS on 23.12.03 and the said letter was given by him to accused/Ashutosh Pant (A6) by hand. In the order sheet dated 23.12.03, accused/Narayan Diwakar (A1) has dishonestly and falsely shown the presence of Sh.Jagroop Sharma, so called President of the society and ordered for verification of records pertaining to membership, CBI No.62 of 2008 Page No.10 of 68 CBI Vs. Narayan Diwakar & Ors.
audit, election and to conduct spot verification of the members and thereafter file was sent to AR(West). Accused/Ram Nath (A4) was deputed by accused/S R Goyal (A2), vide order dated 31.12.03 to conduct physical verification of members at random and submit his report within 3 days. In compliance of the said order, accused/Ram Nath (A4) dishonestly submitted a false report on 05.01.04 mentioning that he visited the residence of members, namely, S/Sh.Jagroop Sharma (M No.
75); Golesta Joseph (M No.90); R Viren Trikey (M No.102); Serverensiya Hembrom (M No.116) and Jit Ram (M No.119).
11. During the investigation, it was disclosed that S/Sh.Jagroop Sharma and Jit Ram were found non existent and Smt.Golesta Joseth; Sh.R Viren Trikey and Smt.Serverensiya Hembrom have denied being member of the society or being verified by any RCS official. Accused/S R Goyal (A2) and R B Chauhan (A3) prepared a false report regarding CBI No.62 of 2008 Page No.11 of 68 CBI Vs. Narayan Diwakar & Ors.
verification of documents and dishonestly submitted on 06.01.04 and 07.01.04 mentioning that the original records of the society have been verified list of 42 members who resigned prior to 30.06.86, list of 144 members enrolled before 30.06.86, application form, share money received and resolutions of MCS of newly enrolled members, fresh affidavits of 119 members of the society, have all been verified. Investigation revealed that signatures of Ch.Lal Singh, Treasurer/Executive Member, were forged by accused/Aashutosh Pant (A6) on election proceedings, special general body meeting, application forms for the membership, affidavits etc which have been confirmed in GEQD opinion.
12. In pursuance to the above criminal conspiracy, accused/S R Goyal (A2) and R B Chauhan (A3) dishonestly recommended to RCS/accusedNarayan Diwakar (A1) to consider revival of society u/s CBI No.62 of 2008 Page No.12 of 68 CBI Vs. Narayan Diwakar & Ors.
63 of DCS Act, 1972, approval of freeze list of 119 members for allotment of land. Thereupon, accused/Narayan Diwakar (A1) being RCS, Delhi, on 08.01.04 made an order, wherein he had falsely shown presence of one Sh.M C Pant, Secretary of the society. During investigation Sh.M C Pant has denied as ever being member or having attended any proceedings of the society. Further, on 22.01.04, accused/Narayan Diwakar (A1) made an order in the order sheet, wherein he has falsely shown presence of Sh.Jagroop Sharma, President of the society, a non existent person. Accused/Narayan Diwakar (A1) dishonestly cancelled the winding up order of the society and in furtherance of criminal conspiracy, he revived the society by order dated 29.01.04 subject to the condition that audit shall be got completed within two months time and appointed accused/Deen Bandhu Prasad (A5) as Election Officer.
13. Investigation revealed that pursuance to the criminal CBI No.62 of 2008 Page No.13 of 68 CBI Vs. Narayan Diwakar & Ors.
conspiracy, accused/S R Goyal (A2) had forwarded the list of 119 members to AR (Policy) on 30.01.04 in contravention of the conditions stipulated in the revival order and AR (Policy) forwarded the list of 35 societies including the instant society to DDA for allotment of land and in the said list, the instant society was shown as functional as per the records of the department.
14. During investigation, it was found that pursuant to the criminal conspiracy, accused/Deen Bandhu Prasad (A5), then LDC, GradeIV had falsely prepared a election report of the society showing presence of 29 members in the election of M C Meeting held on 29.09.04. It was found that said election report was in fact prepared by accused/Aashutosh Pant (A6), who also forged signatures of Ch.Lal Singh and Sh.S M Mehdi, as confirmed by GEQD.
CBI No.62 of 2008 Page No.14 of 68
CBI Vs. Narayan Diwakar & Ors.
15. Investigation has also revealed that pursuant to the criminal conspiracy, accused/P K Thirwanni (A7) then Sr.Auditor in the RCS Office had prepared a false audit report on 03.02.04 showing that an amount of Rs.10,000/ as on 31.03.03 was available in the account of the society at DSC Bank, Darya Ganj, Delhi, whereas the account of the society was already closed in the year 1990 hence there was no question of showing a balance of Rs.10,000/ in its account on 31.03.03.
16. It is alleged that he did not conduct the audit of the society at its registered office by violating the provisions of Rule 84(5) of DCS Rule 1973 and he in criminal conspiracy with accused/Aashutosh Pant (A6) dishonestly omitted to obtain the signature of three office bearers i.e S/Sh.Jagroop Sharma, President; Mahesh Chander, Secretary and Lal Singh, Treasurer and written their names to give credence to their signatures and thus he dishonestly abused his official position as public CBI No.62 of 2008 Page No.15 of 68 CBI Vs. Narayan Diwakar & Ors.
servant by corrupt and illegal means with the object to show that the said society was functional.
17. Investigation has further revealed that pursuant to the said criminal conspiracy, accused/Aashutosh Pant (A6), in collusion with other accused persons prepared false election report by accused/Deen Bandhu Prasad (A5) and forged signatures of S/Sh.Lal Singh and S M Mehdi, members as also signatures for S/Sh.Ashok Kumar Verma; Lal Singh; Nemi Chand; Ajai Kumar; Kailash Singh; P S Manchanda; Ram Bilas Mehto; S M Mehdi; Smt.Anandam E; Bir Singh Bisht; Baldev Singh; G S Bhullar; G S Khurana and G P Vajirani, on affidavits, application forms, special general body meetings and MC meetings, books of accounts, election proceedings and winding up order as confirmed by GEQD.
CBI No.62 of 2008 Page No.16 of 68
CBI Vs. Narayan Diwakar & Ors.
18. During the course of arguments, sanction for prosecution of accused Raj Bhushan Chauhan (A3); Ram Nath (A4); Deen Bandhu Prasad (A5) and P K Thirwani (A7) was obtained by CBI and as per records accused Narayan Diwakar (A1) and Sita Ram Goyal (A2), it is mentioned that they have respectively retired on 30.04.02 and 31.10.06, hence sanction for prosecution was not required.
19. It has been submitted by Sh.J S Wadia, ld.Special Public Prosecutor for CBI that there is sufficient oral and documentary evidence against the accused persons that they have committed the offence under various sections as mentioned above.
20. The accused persons and their ld.counsels have submitted that there is no evidence against accused persons and they have been falsely implicated in this case.
CBI No.62 of 2008 Page No.17 of 68
CBI Vs. Narayan Diwakar & Ors.
21. Accused/Narayan Diwakar (A1) besides advancing arguments on the point of charge, also argued his three applications, which have been taken up for their disposal together with arguments on charge. His applications are u/s 227 Cr.PC for his discharge; seeking appropriate direction for invoking doctrine of parity in view of the policy decision of the CBI and additional submissions objecting to the jurisdiction of this court to try the present case with reference to the judgment of Hon'ble Supreme Court in A Subair Vs. State of Kerala, 2009 Cri.LJ 3450. He has also filed composite written arguments on charge as well as his pending applications.
22. It has been argued by him that CBI had illegally investigated this case and the court should not proceed with the trial as a mute spectator and be party to the illegal investigation. He has relied upon CBI No.62 of 2008 Page No.18 of 68 CBI Vs. Narayan Diwakar & Ors.
judgment of Hon'ble Delhi High Court in R R Kishore Vs. CBI, 2006 VIII AD (Delhi) 545 in which it was held by Hon'ble Delhi High Court that if no objection is taken at the initial stage and trial proceeds then the same can be set aside only if it has resulted in miscarriage of justice. It was further observed by Delhi High Court that if the illegal investigation is brought to the notice of trial court at the initial stage then the court ought not to proceed with the trial and direct reinvestigation so that defect in investigation is cured. It has been argued by accused/Narayan Diwakar (A1) that the CBI has launched an illegal and unfair prosecution against him. This court does not find any illegality in the investigation of the case and law does not confer a right on an accused to seek the direction for reinvestigation of a case.
23. He has argued that the ld.Public Prosecutor has no locus standi as his appointment is not validly notified u/s 24/25 Cr.PC and urge CBI No.62 of 2008 Page No.19 of 68 CBI Vs. Narayan Diwakar & Ors.
that on this account, he has been deprived of fair prosecution as the prosecutors of CBI are subordinate and under strict control of CBI and have been assigned with the dual function of investigating as well as prosecuting which is against the mandate of criminal procedure code.
24. The procedure and manner of appointment of public prosecutor is contained in Section 24 of Cr.PC and it is no where stated in that section that the Public Prosecutors are appointed by the Director of CBI, as they are recruited through Union Public Service Commission (UPSC) and appointed by the President of India.
25. It has been submitted by ld.Public Prosecutor that after pronouncement of judgment in S B Sahaney and Others Vs. State of Maharashtra and Anr., 1995 SUPP (3) SCC 37, the prosecution department of CBI has been made a separate department and the CBI No.62 of 2008 Page No.20 of 68 CBI Vs. Narayan Diwakar & Ors.
Director of Prosecution is made the head of department and public prosecutors are answerable to him. He has then submitted that under these circumstances, it can not be said that the prosecution department is under the direct influence of Director CBI.
26. Since the Public Prosecutors of CBI are appointed u/s 24 of Cr.PC by the order of Hon'ble President of India, therefore, there is no substance in the submissions of accused that Public Prosecutors are appointed by the Director CBI and work under his direct control.
27. It has been submitted by the accused that the charge sheet has not been filed as per the provisions of Section 173 of Cr.PC as it bears the signature of ld.Public Prosecutor besides the Superintendent of Police (SP) and Investigating Officer (IO) of the case. Hence it is argued by him that in the present case the prosecutor, who is involved in CBI No.62 of 2008 Page No.21 of 68 CBI Vs. Narayan Diwakar & Ors.
the investigation, can not fairly prosecute as he has become the part of the investigation. In this case, I find that there is no signature of Public Prosecutor on the charge sheet and furthermore when the charge sheet is endorsed by the Public Prosecutor, it does not violate the mandate of Hon'ble Supreme Court in R Sarla Vs. T S Valu, AIR 2000 SC 1731, wherein the Hon'ble Supeme Court had laid down as under: "that the investigation and prosecution are two different facets in the administration of criminal justice. The role of public prosecutor is inside the court and whereas the role of the investigating officer to investigate the case is outside the court. Normally the role of the public prosecutor commences after the investigating agency presents the case in the court on the culmination of investigation. Involving the public prosecutor in investigation is injudicious as well as pernicious in law. The investigating officer can not be directed to consult the public prosecutor and submit a charge sheet in tune with the opinion of the public prosecutor."
28. In fact the observation of Hon'ble Supreme Court in above referred case clarifies that the IO can not be directed by the court to CBI No.62 of 2008 Page No.22 of 68 CBI Vs. Narayan Diwakar & Ors.
consult the public prosecutor and submit a charge sheet in tune with the opinion of the public prosecutor. However, in case IO finds some difficulty during the investigation, he is not precluded from seeking opinion of the public prosecutor. Thus, I find that there is no such mandate of the court of law that the public prosecutor can not be consulted by the IO. Recommendation, if any, of the public prosecutor on the charge sheet may not amount to any interference with the investigation because by that time the investigation is already complete as only before filing charge sheet the endorsement of public prosecutor may be obtained in some cases. In my view, it does not violate the mandate of law or result into any prejudice to the accused.
29. It has been further argued by accused/Narayan Diwakar (A1) that he being Registrar of Cooperative Societies was acting as quasi judicial officer u/s 3 of DCS Act, 1972 and, therefore, order, if any CBI No.62 of 2008 Page No.23 of 68 CBI Vs. Narayan Diwakar & Ors.
passed by him, could not be questioned in any court of law on whatsoever grounds. He has argued that as per Section 94 of the DCS Act, he had all the powers of civil court and hence as per Section 95 of the same Act, no suit or prosecution or any other legal proceedings would lie against him or any person subordinate to him in respect of anything done in good faith or purported to have been done under this Act.
30. In this respect, I find that role assigned to the applicant in the charge sheet is that he, in conspiracy with other accused persons, including his subordinate officials and private public person dishonestly and fraudulently revived Birla Udyog Employees CGHS on the basis of forged and fabricated documents submitted by accused/Ashutosh Pant (A6) and he further falsely and dishonestly shown the presence of one Jagroop Sharma, so called President and M C Pant, so called Secretary CBI No.62 of 2008 Page No.24 of 68 CBI Vs. Narayan Diwakar & Ors.
of the society and fraudulently mentioned in his revival order dated 29.01.04 that winding up order which was passed by the then Dy.Registrar was not in accordance with laid down procedure, as the reasons for winding up of the society were not adequate for initiating such an extreme step, despite the fact that Sh.Satish Mathur in whose name the winding up order was stated to had been made, was never posted as Dy.Registrar during the relevant time. Investigation had also revealed that date and dispatch number of winding up order were forged by accused/Ashutosh Pant (A6). Thus, his acts, as alleged in charge sheet do not amount to doing the same in good faith, therefore, his claim for any protection is not tenable.
31. It has been further argued by accused no.1 that no offence is made out u/s 13 of PC Act as the prosecution has to prove that he had accepted either any bribe or any pecuniary advantage which is neither CBI No.62 of 2008 Page No.25 of 68 CBI Vs. Narayan Diwakar & Ors.
shown in the charge sheet nor statement of any of the prosecution witnesses recorded by IO. He has relied upon judgment cited as State of M P Vs. Sheetla Sahai & Ors., (2009) 3 RCR (Crl.) 835, wherein while awarding the tender, the accused public servants had allegedly put the Government to the loss to the extent of Rs.1,02,46,200/. However, Hon'ble Supreme Court held that the said award of contract was the need of the hour and that besides the fact that the accused had caused wrongful gain to the third party, section 13(1)(d) of PC Act shall still be not attracted as it requires that the award of the contract, given by the accused public servant was by abusing his position as a public servant. In Sheetla Sahai's case (supra), Hon'ble Supreme Court, after going through the facts of the case, had observed that decision of the accused therein at the relevant time, was rather in the interest of State. But in the present case, I find that the land was sought to be allotted to the society having fictitious members whereas the society had allegedly been CBI No.62 of 2008 Page No.26 of 68 CBI Vs. Narayan Diwakar & Ors.
liquidated, which do not show that the act was in the interest of State. Thus the facts of Sheetla Sahai's case could not be related to the facts of the present case and as such the ratio of law propounded by Hon'ble Supreme Court in that case is not applicable to the facts & circumstances of the present case.
32. Accused/Narayan Diwakar has also relied upon judgment titled as A Subair Vs. State of Kerala, but I find that the said case was primarily the case of illegal gratification where no demand could be proved. Since instant case is not the case involving illegal gratification, therefore, there is no force in the submission of accused that demand should have been one of the ingredients of the offence alleged against him, which is lacking. Thus, he can not claim parity to the accused in A Subair's case (supra).
CBI No.62 of 2008 Page No.27 of 68
CBI Vs. Narayan Diwakar & Ors.
33. The accused has further submitted that CBI has not adhered to the CBI Crtime Manual and he has also relied upon judgment cited as Shashi Kant Vs. CBI, AIR 2007 SC 351 and P Sirajudeen Vs. State of Madras, AIR 1971 SC 520, to contend that the Central Government has laid down certain procedures for conducting the investigation including the mode and manner in which the preliminary inquiry should be conducted by CBI which can later on be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizance offence.
34. It is further argued that as soon as it is decided to register a PE, the SP of CBI will take action to get the PE registration report prepared, which will invariably be vetted by him and it can even be drafted by him in case of important inquiries. It is submitted that in the present case, the CBI Crime Manual was not adhered to as neither the CBI No.62 of 2008 Page No.28 of 68 CBI Vs. Narayan Diwakar & Ors.
approval from the director of CBI was obtained for registration of PE nor the SP of CBI converted the PE into a regular case.
35. In the instant case, the charge sheet shows that pursuance to the directions of Hon'ble High Court, vide order dated 02.08.05 passed in writ petition (Civil) NO.10066/04, the CBI conducted a thorough investigation in the matter of 135 Cooperative Group Housing Societies and thereupon the preliminary inquiry was registered and subsequently converted to regular FIR. The charge sheet does not disclose any such deviation by the CBI while registering or investigating the instant case.
36. It has been submitted by accused that requirement of Section 3 of DSPE Act has not been fulfilled by CBI as the offences under DCS Act, 1972 are not at all notified by the Government for CBI No.62 of 2008 Page No.29 of 68 CBI Vs. Narayan Diwakar & Ors.
investigation by CBI. In this respect, it suffice to observe that the accused is not being prosecuted for any offence under the DCS Act and, therefore, there can not be any issue regarding non notification of offences under DCS Act, 1972.
37. Accused/Narayan Diwakar (A1) has further submitted that the consent of State has not been obtained before commencing the investigation which is violative of Section 6 of DSPE Act.
38. In this respect, I fully agree with the submissions of ld.Special Public Prosecutor for CBI that the issue was answered by Hon'ble High Court in Crl.M C No.2784/07 dated 17.09.07, wherein it was observed as under: "The investigation was referred to CBI in this case by the High Court. Once investigation of a case is given by the High CBI No.62 of 2008 Page No.30 of 68 CBI Vs. Narayan Diwakar & Ors.
Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI. Investigation is done by police under Cr.PC. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the charge sheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
39. In this respect the matter stands finally settled by the Judgment of Constitution bench of Supreme Court in State of West Bengal & Others Vs. Committee for Protection of Democratic Rights CA No.624950/2001 decided on 17.02.10 wherein Hon'ble Supreme Court had observed as under:
44.Thus, having examined the rival contentions in the context of CBI No.62 of 2008 Page No.31 of 68 CBI Vs. Narayan Diwakar & Ors.
the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In CBI No.62 of 2008 Page No.32 of 68 CBI Vs. Narayan Diwakar & Ors.
certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution , the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also CBI No.62 of 2008 Page No.33 of 68 CBI Vs. Narayan Diwakar & Ors.
necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution. CBI No.62 of 2008 Page No.34 of 68
CBI Vs. Narayan Diwakar & Ors.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the CBI No.62 of 2008 Page No.35 of 68 CBI Vs. Narayan Diwakar & Ors.
Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of the either the doctrine of separation of power or the federal structure.
45. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this court and the High Courts have CBI No.62 of 2008 Page No.36 of 68 CBI Vs. Narayan Diwakar & Ors.
not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
40. Thus, I find that there has been no violation that Section 3 & 6 of DSPE Act by the CBI as claimed by accused/Narayan Diwakar (A1).
41. It has been submitted by accused/Narayan Diwakar that there was no illegality in the order of setting aside the winding up of the society because as per the judgment of Hon'ble Delhi High Court in Vikas CGHS Vs. Registrar of Cooperative Societies & Ors (Civil Writ No. 1767/96) and as per Rule 105 of DCS Act, 1972, the winding up proceedings of a society has to be closed within one year from the date of winding up unless the period is extended by Registrar and proviso to Sub Rule 1 of Rule 105 provides that Registrar can extend the period not CBI No.62 of 2008 Page No.37 of 68 CBI Vs. Narayan Diwakar & Ors.
exceeding six months at time and the extension can only be granted for a period of three years. It was observed by Hon'ble High Court that in their view it has to be assumed that the order passed u/s 63 of DCS Act was cancelled and the society continues to exist. Thus, it has been submitted by accused/Narayan Diwakar (A1) that even without his order the society in question was deemed to be existing and thus there was no impact of revival order passed by him. In the present case, this issue is not in question and in fact the allegations against accused/Narayan Diwakar (A1) are very clear that he passed the order of cancellation of winding up of the society in conspiracy with other accused persons for the purpose of obtaining for himself or for private accused persons a valuable thing or pecuniary advantage i.e. allotment of land by DDA at cheaper rate and thus he abused his position as a public servant without holding any public interest while holding office as a public servant. CBI No.62 of 2008 Page No.38 of 68
CBI Vs. Narayan Diwakar & Ors.
42. Arguing his application to invoke the doctrine of party, it has been submitted by accused/Narayan Diwakar (A1) that as per circular no.02/2010 dated 11.03.10, a policy decision was taken by CBI clarifying that employees of National Agricultural Cooperative Marketing Federation of India Limited (NAFED) are not public servants under P C Act, 1988, hence there would be no requirement of seeking permission of the Government u/s 6A of DSPE Act, 1946 or sanction of the Government for prosecution u/s 19 of the PC Act, 1988. Accused/Narayan Diwakar (A1) was working as a Registrar of Co operative Societies and he was not an employee of a society registered under DCS Act, hence he or other employees of RCS can not claim parity with employees of NAFED, who may be employees of that society. Thus, I find that none of the legal submission and applications of accused/Narayan Diwakar (A1), as discussed above, hold any merits, hence dismissed.
CBI No.62 of 2008 Page No.39 of 68
CBI Vs. Narayan Diwakar & Ors.
43. He has also relied upon judgment of Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar reported as 1979 Cri.LJ 154, wherein it was held by Hon'ble Supreme Court that while considering the question of framing of charge, the court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
44. We have already seen as to what are the allegations against accused/Narayan Diwakar (A1) and we will see what is the evidence arrayed by the prosecution against accused/Narayan Diwakar and his other coaccused persons.
CBI No.62 of 2008 Page No.40 of 68
CBI Vs. Narayan Diwakar & Ors.
45. Accused/Narayan Diwakar (A1) then working as Registrar of Cooperative Societies knowing fully well that original file of the society had not been placed before him, on the basis of a false note put by A3, based on false inspection report of A4, put up to him through A2 for proceedings u/s 63 of DCS Act, 1972 (for revival of wound up society), without ensuring genuineness of the records submitted on behalf of society, approved issuance of the notice to President/Secretary of the society, which was delivered by his Reader to A6 by hand. A1 also falsely shown presence of one Jagroop Sharma, a nonexistent person, as President of the society in the order sheet dated 23.12.03 and ordered for verification of records pertaining to membership, audit, election and spot verification. A4 was deputed by A2 for this purpose vide order dated 31.12.03 to conduct physical verification of members at random and submit his report within 3 days, who submitted a false report on CBI No.62 of 2008 Page No.41 of 68 CBI Vs. Narayan Diwakar & Ors.
05.01.04 stating that he visited residence of some members who were either non existent or not the members of society who denied and stated that RCS official never visited them. A2 and A3 prepared a false report regarding verification of documents submitted on 06.01.04 and 07.01.04 mentioning that original records of the society i.e list of 42 members who resigned prior to 30.06.86, list of 144 members enrolled before 30.06.86, fresh affidavits of 119 members etc have all been verified. In fact signature in the name of one Chaudhary Lal Singh, Treasurer/executive member of the society were forged by A6 on election proceedings, special general body meeting and application forms for membership, affidavits etc., which has been confirmed by GEQD opinion. Pursuant to this criminal conspiracy, accused nos.2 & 3 had recommended to RCS (A1) for revival of society u/s 63(3) of DCS Act, 1972 as also approval of freeze list of 119 members for allotment of land. RCS (A1) made an order on 08.01.04 on the order sheet wherein he has falsely shown CBI No.62 of 2008 Page No.42 of 68 CBI Vs. Narayan Diwakar & Ors.
presence of Mr.M C Pant, Secretary of society, who denied having over become member of society or attended any such proceeding. Again on 22.01.04, he made an order showing presence of one Jagroop Sharma as President of society, who is nonexistent person. He falsely mentioned that the winding up order of the society passed by then Dy.Registrar, was not in accordance with laid down procedure and reasons for initiating such an extreme step were not adequate. The date and dispatch number of the said winding up order were found forged by A6, is confirmed by GEQD, no person in the name of Sh.Satish Mathur was posted as DR during 1986 when the said winding up order was stated to had been passed by DR. The order was passed by him on 29.01.04 reviving the society vide order dated 29.01.04 subject to the condition that audit of society shall be got completed within two months time and he also appointed Deen Bandhu Prasad, Gr.IV as Election Officer. I have gone through the documentary and oral evidence arrayed CBI No.62 of 2008 Page No.43 of 68 CBI Vs. Narayan Diwakar & Ors.
by the prosecution to prove all these allegations and find that a prima facie case exists against accused/Narayan Diwakar (A1) that he abused his official position by corrupt and illegal means as public servant by entering into criminal conspiracy with other accused persons for achieving aforesaid ends.
46. Accused no.2/Sita Ram Goyal has also filed written arguments praying for his discharge. He has submitted that when the society was wound up for its nonfunctioning/not holding AGM, non compliance of audit of its accounts and elections etc., the revocation of winding up order in respect of such a society, was not at all justified under the DCS Act & Rules and its conditional revival was altogether a farce and abuse of power by RCS when the shortcomings were not removed or rectified. According to him, RCS (A1), knowing well that he was going to superannuate on 30.06.04, had created and executed an CBI No.62 of 2008 Page No.44 of 68 CBI Vs. Narayan Diwakar & Ors.
strategy to implement his game plan to revive such societies after December, 2002. He submitted that for all practical purposes, he being AR was junior most officer in the department and worked under dictate/order/instructions of RCS (A1) in good faith only and RCS was in fact functioning in connivance with his personal staff i.e. officials working in personal branch. He alleged that RCS (A1) was actually running his office just like a proprietorship firm because there was no policy decision of the Government to revive each and every society and rather it was stage manged by A1. To elucidate this allegation, he has submitted that there is every reason to believe that the then RCS and his personal staff had managed to dictate their own terms in the alleged cases as no original record was ever produced before AR since RCS himself used to requisition the record on notice(s) issued by his Reader, the cases were kept for orders but no orders were pronounced by RCS in open court and his Reader functioned as extrajudicial authority who used to record CBI No.62 of 2008 Page No.45 of 68 CBI Vs. Narayan Diwakar & Ors.
minutes/remarks on the file before transferring the file to Zonal Office. He alleged that in all cases Reader to RCS was a party to alleged scam of fabricating and manipulating the matter in the manner devised by RCS (A1).
47. Accused Sita Ram Goyal (A2) has alleged that RCS (A1) ordered for audit of society for more than 15 years in one go, in each case, knowing fully well that an Auditor could not undertake audit work of the society for more than three years at a time in terms of Rule 84(1) of DCS Rules, 1973. RCS had never ordered for the 'table audit' of the society in the RCS office and the Auditor (A7) was duty bound to conduct its audit at its registered office under Rule 84(5) of DCS Rules, 1973 and that no intimation was given to the society for commencement of its audit as envisaged under Rule 84(6). He also alleged that accused/P K Thirwani (A7) who conducted audit was only posted as CBI No.62 of 2008 Page No.46 of 68 CBI Vs. Narayan Diwakar & Ors.
Head Clerk in Audit Branch of RCS but never selected/appointed as Auditor. He has submitted that although the cut off date for sending the list of members to DDA was 31.10.03 but RCS continued his game plan for revival of societies beyond 31.10.03 and the said cut off date was never disclosed to him (A2).
48. As regards accused/R B Chauhan (A3), accused S R Goyal has submitted that he (R B Chauhan) was already working as Dealing Assistant in the West Zone of RCS Office, when he joined there as AR (West) on 14.10.03 on promotion to DANICS Cadre. It is submitted that A3 was well experienced and well known to the individual visitors of West Zone of RCS office and may have connived with them as he put up the application dated 07.07.03, filed by one Jagroop Sharma seeking cancellation of the winding up order on 18.11.03, in a calculated manner although the same was received in RCS office on 17.07.03. He (A3) had CBI No.62 of 2008 Page No.47 of 68 CBI Vs. Narayan Diwakar & Ors.
again put up the case file on 09.12.03 (page 3/N of D19) vide his typed note suggesting to requisition the records from the society for cross verification so as to enable the office to reconstruct the case file in terms order of RCS dated 28.11.03 (page 1/N of D19) which was accepted by him in good faith (page 3/N of D19). He has submitted that it was R B Chauhan (A3), being Dealing Assistant, who himself was exclusively monitoring the case file and must have delivered the impugned letter/order, which was otherwise to be issued under proper acknowledgment to its rightful addressee and the person to whom it was delivered, may be well known to him (A3).
49. He has then submitted that Dealing Assistant/R B Chauhan (A3) vide note dated 15.12.03 (5/N of D19) had, inter alia, mentioned that all records/documents pertaining to revival of society will be produced by its President, as and when directed and that he (A2) had CBI No.62 of 2008 Page No.48 of 68 CBI Vs. Narayan Diwakar & Ors.
relied upon inspection report made available to him by inspecting official, in good faith, as it was beyond his imagination that a false and fabricated report had been furnished by inspecting official. He has submitted that Deen Bandhu Prasad (A5) was posted as LDC in the personal branch of RCS, who had submitted a fake and fictitious election report highlighting that RCS office was in fact being run like a proprietorship firm of then RCS (A1). He has submitted that it is only for the then RCS (A1) to explain as to how he has shown presence of a nonexistent person Jagroop Sharma, President of the society along with concerned Dealing inspector on 22.01.04 (page 23/N of D19). He has also submitted that money was never demanded or accepted by him (A2), hence provisions of PC Act are not applicable qua him.
50. Thus, in nut cell , accused no.2 has submitted that he has done alleged acts in good faith and as per the directions of RCS (A1) CBI No.62 of 2008 Page No.49 of 68 CBI Vs. Narayan Diwakar & Ors.
under whose supervision he was functioning and that he became victim of the game plan hatched by RCS (A1) with other accused persons. This is in fact the defence of accused Sita Ram Goyal (A2), the credibility of which has to be tested only during the trial. At this stage, it is sufficient to say that he played a vital role in commission of alleged offence as he was the officer through whom all the notings were forwarded to RCS (A1) for his approval and thus in view of oral and documentary evidence available on record, I find that there is sufficient material available against him to prima facie show that he was involved with other accused persons in the criminal conspiracy as alleged. His submission that no money was demanded or accepted by him also does carry any weight as the demand and acceptance of money by the public servant is not the essential ingredient of an offence under Section 13(1)
(d) of PC Act.
CBI No.62 of 2008 Page No.50 of 68
CBI Vs. Narayan Diwakar & Ors.
51. Sh.R P Shukla, Advocate, who also appeared as a counsel for accused/Raj Bhushan Chauhan (A3) has submitted that he (accused/R B Chauhan) has been falsely implicated in this case and he had put up the note for revival of society (D19) in file in routine course on instructions of RCS (A1) and in fact he was not having any authority which could be misused by him and all the documents were seen by RCS who accorded approval based on documents. He has also submitted that there is no allegation that A3 had advised accused/Ashutosh Pant (A6) to fabricate documents and make an application for revival of the society.
52. The role and involvement of accused/R B Chauhan (A3) has been discussed above elaborately. There is sufficient oral and documentary evidence arrayed by the prosecution to substantiate the allegations against him. The charge sheet when read with statements of CBI No.62 of 2008 Page No.51 of 68 CBI Vs. Narayan Diwakar & Ors.
witnesses and documentary evidence i.e. files maintained at RCS office reveal that he worked as catalyst in the commission of offence. His defence that he was working in accordance with the instructions of his superiors only and not conspiring with other accused persons, has to be tested during the trial but at this stage it suffice to observe that there is overwhelmingly sufficient material on record in the form of documentary as well as oral evidence to take a prima facie view that he conspired with other accused persons for revival of the society.
53. Sh.S K Bhatnagar, Advocate, appearing for accused/Ram Nath (A4) has argued some legal issues which have already been dealt with while dealing with arguments of accused/Narayan Diwakar (A1). Besides legal issues, he has also submitted that accused Ram Nath had done inspection in good faith and there was no instrument with him to check that the documents provided to him were forged and not genuine. CBI No.62 of 2008 Page No.52 of 68
CBI Vs. Narayan Diwakar & Ors.
The role of accused/Ram Nath (A4) has been seen in detail. He was dishonestly appointed by RCS vide order dated 31.12.03 to conduct physical verification of members of society at random. But in connivance with private persons, he furnished a false and fabricated report regarding the existence of the society and random physical verification of some of the members. Vide order dated 28.11.03, he was appointed to conduct an inspection but he submitted a false report dated 12.12.03 that he visited WZ3352, Mahindra Park, Delhi. He also falsely reported that he met with the President of the society Jagroop Sharma, who produced various records. But said Jagroop Sharma turned out to be a non existing person. On the basis of his inspecting report and other forged and fabricated documents, purportedly submitted by the society, the revival of the society was done by A1 and final list of the members of the society was sent to AR (Policy) for onward transmission to DDA for allotment of land.
CBI No.62 of 2008 Page No.53 of 68
CBI Vs. Narayan Diwakar & Ors.
54. The CBI has inter alia recorded statements of PW2/Smt.Sada Kaur and PW3/J P Sharma, both owners of WZ3352, Mahindra Park, Delhi who stated that no person in the name of Jagroop Sharma ever resided there and their house was never used as address of the society and official of RCS never visited their house for the purpose of verification. Thus, there is sufficient evidence collected by CBI to show that accused/Ram Nath (A4) conspired with other accused persons and forged the report in order to get the society revived. Thus, prima facie sufficient evidence is on record to frame charge against accused/Ram Nath (A4) also.
55. Sh.Neeraj Verma, Advocate appearing for accused/Deen Bandhu Prasad (A5) has submitted that RCS (A1) had cancelled the winding up order dated 29.09.86 by his order dated 29.01.04 and vide CBI No.62 of 2008 Page No.54 of 68 CBI Vs. Narayan Diwakar & Ors.
same order he had appointed accused/Deen Bandhu Prasad (A5), GradeIV of his department as election officer to conduct the election of managing committee of the society, hence he had carried out elections of society. He has submitted that now A5 is being falsely implicated by CBI alleging that he forged the election proceedings in conspiracy with other accused persons.
56. The investigation revealed that accused/Deen Bandhu Prasad (A5), pursuant to criminal conspiracy, had prepared false election report of the society showing presence of 29 members in the election of M C Meeting held on 29.02.04 and shown elected S/Sh.Jagroop Sharma as President, Sh.S K Paliwal as Vice President and Chaudhary Lal Singh, Mahesh Chander, Murari Lal Parashar, S/Smt.Parvati Devi and Savitri Devi Gupta as M C Members. The GEQD opinion has confirmed that election report was in fact written by CBI No.62 of 2008 Page No.55 of 68 CBI Vs. Narayan Diwakar & Ors.
accused/Ashutosh Pant (A6) who had forged the signatures of Chaudhary Lal Singh and S M Mehdi. This allegation is supported by documentary evidence i.e election report, GEQD report and sufficient oral evidence. So, I find that sufficient evidence is on record to take a prima facie view that accused Deen Bandhu Prasad (A5) had forged the election report pursuant to criminal conspiracy and thus a case to frame charge is also made out against him.
57. Sh.Harish Khanna, Advocate, appearing for accused Ashutosh Pant (A6) has submitted that the CBI carried out illegal investigation in this case. Relying upon judgment cited as Rakesh Kumar Vs. Satte, 2004 (1) JCC 110, it has been submitted by ld.counsel for A6 that the opinion of handwriting expert can not be relied upon by the prosecution as the specimen of handwriting and signatures of A6 were obtained by CBI without permission and directions of the court. It CBI No.62 of 2008 Page No.56 of 68 CBI Vs. Narayan Diwakar & Ors.
is admitted case that A6 was not arrested in this case and the matter was not under enquiry or trial when the specimen handwriting/signatures of A.6 were obtained by CBI for expert opinion. There is nothing on record to show that such giving of specimen handwriting/signature was not a voluntary act on the part of accused/Ashutosh Pant (A6). The Hon'ble High Court in Rakesh Kumar's case (supra) had placed reliance on judgment of Hon'ble Supreme Court in Sukhvinder Singh & Ors. Vs. State of Punjab JT 1994(4) SC1 in which case specimen of handwriting of appellant were taken under the direction of Naib Tehsildar(Executive Magistrate) whereas the case was pending before a designated court under TADA. In that situation Hon'ble Supreme Court held that the direction of Naib Tehsildar to give specimen handwriting was unwarranted and not contemplated by section 73 of Evidence Act.
58. In the instant case the circumstances are entirely different. CBI No.62 of 2008 Page No.57 of 68
CBI Vs. Narayan Diwakar & Ors.
There was no enquiry or trial pending before the court when A.6 had given specimen handwriting/signature to IO for comparison and opinion by GEQD and A.6 was also not arrested and, therefore, the provisions of Section 73 Evidence Act were not attracted. Hence, CBI was not required to take permission/direction from the court for obtaining specimen handwriting/signature of A.6 and it is not the case here that accused Ashutosh Pant (A.6) was, in any manner, compelled to give specimen signature/writing for the purpose of expert opinion.
59. Thus the contention of Ld. Defence counsel for accused Ashutosh Pant (A6) does not hold good more particularly in view of the judgment of Full Bench of Hon'ble Delhi High Court in Bhupender Singh Vs. State, Crl.Appeal No.1005/2008 (D.O.D.30.09.11) in which it has been held that "view expressed in the case of Sunil Kumar by Ld. Single Judge lays down the law in correct perspective. In Sunil Kumar CBI No.62 of 2008 Page No.58 of 68 CBI Vs. Narayan Diwakar & Ors.
@ Sonu Vs. State of NCT of Delhi Crl.A.No.446/05 (decided on 25.03.10) it was held that where specimen finger print impressions of the appellants were taken by the IO directly and not though Magistrate, it was held that it was not obligatory for him to approach Magistrate u/s 5 in view of powers conferred on him u/s 4 of Identification of provisions Act, 1920. The Hon'ble High Court has also relied upon Judgment cited as State Vs. M.Krishna Mohan & Anr.(2007) 14 SCC 667 wherein it was opined by the Apex Court that the specimen finger prints and handwriting can be taken from an accused. In para 15 of the judgment, the Hon'ble Court also referred and relied upon judgment in Manikram Vs. State (2009) 5 CTC 316 wherein it was held that: 'There is no law which prohibits the investigating officer from lifting the finger prints of the accused for comparison during the course of investigation of the case. Section5 of the 1920 Act and Section 311A of the Code of Criminal Procedure, as inserted by Act 25 of 2005 with effect from 23.06.2006, speak only about the powers of the Judicial CBI No.62 of 2008 Page No.59 of 68 CBI Vs. Narayan Diwakar & Ors.
Magistrate when he is approached by the investigating officer for the purpose of issuance of a suitable direction to the accused to cooperate by giving his finger prints or signature or sample handwriting, as the case may be. Needless to empahsise, neither Section 5 nor Section 311A put any embargo on the investigating officer for action on his own for taking the finger prints, signature or handwriting of the accused during the course of investigation. It has been held in the said case that there is no mandatory provision under the 1920 Act to obtain the permission of the Magistrate.'
60. Sh.Khanna has also referred and relied upon certain orders of Hon'ble High Court in WP(C) No.1786/11, 2426/11 and 2441/11 all dated 23.05.11 and Crl.Rev.Pet.No.397/10 dated 17.01.11. On careful perusal of these orders, I find that those orders do not help the accused in this case in any manner. As already discussed above, there is overwhelming evidence available on record that it was accused Ashutosh Pant (a6) who forged the number of documents and proceedings to get the society revived in conspiracy with public servants. GEQD opinion is on record to the effect that the documents/proceedings CBI No.62 of 2008 Page No.60 of 68 CBI Vs. Narayan Diwakar & Ors.
were forged by him. Thus, a prima facie case is made out against him also to frame charge for commission of offences alleged against him.
61. Sh.S K Bhatnagar, ld.counsel for accused/P K Thirwani (A7) has argued that the RCS had cancelled the winding up order and had directed the audit of the society, to be conducted within two months from the date of issue of his order dated 29.01.04. He has submitted that the audit report of accused/P K Thirwani (A7) had no bearing on the order passed by RCS as the audit report was submitted much after the order for cancellation of winding up of the society, was passed by accused/Narayan Diwakar, RCS (A1). He has submitted that in this respect, it can not be said that accused/Narayan Diwakar (A7) had entered into a criminal consp8iracy with remaining accused persons. He has also submitted that accused/P K Thirwani (A7) while submitting the audit report had given seven observations/objections and had CBI No.62 of 2008 Page No.61 of 68 CBI Vs. Narayan Diwakar & Ors.
recommended for removal thereof and had he been involved in the conspiracy he would not have made such observations as AGM/election of the society should be held every year in accordance with the Act and rules; M C meeting should be held once in every month; approval of new enrolled members should be taken from the RCS office; share allotment register should be maintained and share certificate should be issued to all members of the society; cash retention limit should be fixed and cash book should be written daily; financial position should be improved to avoid loss to the society and compliance report should be sent in proforma to the RCS office. He had also observed that there is no transaction with the bank during the period under audit, however, balance lying with the banks as per the close of the year is subject to the confirmation from the concerned banks and if required the reconciliation may be done for the same. He further mentioned that MC members are directed to obtain the balance confirmation certificate from the CBI No.62 of 2008 Page No.62 of 68 CBI Vs. Narayan Diwakar & Ors.
concerned bank and the same be kept on record and be also submitted to RCS office.
62. It appears to the court that these observations made in the audit report were only an eye wash as instead of seeing the books of society from the perspective of an auditor, he made certain observation only in order to lend credence to the order passed by RCS which prima facie shows that his appointment as auditor to conduct audit of said society and subsequently his audit report was pursuant to a criminal conspiracy between him and the other accused persons. Thus, there is no force in the submissions of ld.counsel for accused/P K Thirwani (A7) that making of observations by auditor/P K Thirwani (A7) would show his bonafide.
63. As regards submissions of ld.counsel for accused/P K CBI No.62 of 2008 Page No.63 of 68 CBI Vs. Narayan Diwakar & Ors.
Thirwani (A7) that the society was already revived before submission of audit report, it suffice to observe that the entire proceedings show that RCS wanted to give a cover up to his order by directing audit of accounts of the society accused/P K Thirwani (A7) to justify his order.
64. Investigation has revealed that accused/P K Thirwani (A7) has prepared false audit report dated 03.02.04 (D22) in which an amount of Rs.10,000/ had been shown as balance available on 31.03.03, whereas the bank account of society was already closed during 1990 and he did the audit of the society violating the DCS rules and thus he has abused his official position with object to show that Birla Udyog Employees CGHS was functional. He has also written names of PresidentJagroop Sharma, SecretaryMahesh Chand, Trerasurer Chaudhary Lal Singh on the brief summary of the society in the signature column to lend a credence to his audit report instead of obtaining the signatures of actual office bearers of the society. GEQD CBI No.62 of 2008 Page No.64 of 68 CBI Vs. Narayan Diwakar & Ors.
opinion is also available on record to show the falsifications of the audit report submitted by accused/P K Thirwani (A7). No office of the society ever existed at the given address then where did he conduct the audit of the society when there was no direction to him to conduct table audit sitting in RCS office or somewhere else.
65. The prosecution has arrayed as many as 126 witnesses to prove the charge against accused person. PW1 S/Sh.Yogiraj had been the Asstt.Registrar in the office of RCS, PW2 Sada Kaur and PW3/J P Sharma are owners of the properties which had been shown as new address of society's office who stated that no person in the name of Jagroop Sharma ever resided in their house and no such office of society ever functioned from their house and no one from RCS office ever visited their address. PW4 Maya Devi stated that Smt.Savitri Gupta never resided over there for last 11 years and none from RCS CBI No.62 of 2008 Page No.65 of 68 CBI Vs. Narayan Diwakar & Ors.
office ever visited her house for verification. PW5 Golesta Joseph denied having ever signed any affidavit or applied for membership of society. She also stated that no RCS official ever visited her residence for verification. Similar are the statements of PW6/R Viren Tirki and PW10/Parwati Devi. PW9 Chandheri Lal Singh denied signatures in his name in society records and stated that no RCS official ever visited him. PW11 Zoobi Amir stated that his father Amirullah Khan died on 10.12.83 hence there was no question of his filing affidavit, the stamp paper of which was purchased on 04.12.03 or attending the Spl.GBM of society on 29.02.04. Similar is testimony of PW12/Sohail Hashmi whose father Haneef Hashmi had already expired in 1976 so there was no question of him filing affidavit in 2003 and becoming member of the society. PW13 to 27, 31 and 35 have also made statements on the same lines. PW36/Har Lal (Postman) of beat no.2 JNU Post Office stated that the speed post sent by CBI dated 23.02.06 to Radhey Shyam CBI No.62 of 2008 Page No.66 of 68 CBI Vs. Narayan Diwakar & Ors.
Kediya at C17, Munirka, Delhi returned with remarks 'incomplete address' of letter dated 24.02.06. He said that no such address exists. Simiarly, PW43 Jai Shree Bhagwan (Postman) of Rajender Nagar Post Office stated that speed post dated 23.02.06 addressed to G P Vajirani (sl.no.41) was returned as 'no such person at given address.' Similar are statements of other postmen who were examined by IO as PW44 to
108. IO recorded statements of other witnesses also.
66. In view of above discussion of facts and evidence arrayed by the prosecution to prove the case, I find that a prima face case to frame charge u/s 120B r/w Section 420/468/471 r/w 468 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988 is made out against accused Narayan Diwakar (A1); Sita Ram Goyal (A2); R B Chauhan (A3); Ram Nath (A4); Deen Bandhu Prasad (A5); Ashutosh pant (A6) and P K Thirwani (A7). Besides, the prima facie case to frame charge for substantive offence u/s 15 r/w Section 13(1)(d) of PC Act, 1988, is made CBI No.62 of 2008 Page No.67 of 68 CBI Vs. Narayan Diwakar & Ors.
out against accused public servants Narayan Diwakar (A1); Sita Ram Goyal (A2); R B Chauhan (A3); Ram Nath (A4); Deen Bandhu Prasad (A5) and P K Thirwani (A7). The prima facie case to frame charge for substantive offences u/s 420 r/w 511/468/471 r/w 468 IPC against accused Ashutosh Pant (A6), substantive offences u/s 468 and 471 r/w 468 against accused Ram Nath (A4); Deen Bandhu Prasad (A5) and P K Thirwani (A7) are also made out. I, therefore, direct that the charge be framed against accused persons accordingly.
67. It is clarified that nothing in this order shall be taken as comments on the merits of the case.
Announced in the Open (R.P.PANDEY)
Court on 05.01.12 SPL.JUDGE0I (CBI)
ROHINI:DELHI
CBI No.62 of 2008 Page No.68 of 68
CBI Vs. Narayan Diwakar & Ors.