Delhi District Court
Cbi vs Gokul Chand Aggarwal(Sunny Cghs) on 15 November, 2025
IN THE COURT OF SH. RAJESH MALIK
SPECIAL JUDGE (PC ACT)CBI-14, ROUSE
AVENUE DISTRICT COURT, NEW DELHI
CNR No. DLCT11-000331-2019
CBI Case No. 77/2019
FIR No. : RC 19(E)/2005/EOW-I/CBI/New Delhi
U/Sections : 120(B) IPC read with Section 419, 420, 467, 468
& 471 IPC & Section 13 (2) read with Section 13
(1) (d) of PC Act, 1988 r/w Section 15 of P.C Act, 1988
Central Bureau of Investigation (CBI)
Versus
1. Gokul Chand Aggarwal (A-1)
S/o Sh. J.P. Aggarwal
R/o E-16/181, Sector-18,
Rohini, Delhi.
Also at - A-603, Ashoka Apartment,
Sector-9, Rohini, Delhi.
Presently at : Flat 743, Ground Floor, GH-4,
Sector-28, Rohini, Delhi.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 1 of 220
2. Faiz Mohammad (A-2)
S/o Late Gulam Mohd.
R/o 4794, Ahata Ke Dhara,
Pahari Dhiraj, New Delhi-110006.
(Former Head Clerk, Gr.-II, Office of RCS,
Parliament Street, New Delhi)
3. Man Singh (A-3) (Expired)
S/o Late Devi Singh
R/o RZ-73, Subhash Park Extn.-II,
Uttam Nagar, New Delhi.
(Former Asstt. Registrar (South), Office of
the RCS, Parliament Street, New Delhi.)
4. Narayan Diwakar (A-4)
S/o Late Chatti Lal
R/o G-30, Maszid Moth,
New Delhi-110048.
(Ex.RCS, Office of the RCS, Parliament Street,
New Delhi.)
5. Naveen Kaushik (A-5)
S/o Late M.D. Sharma
R/o A-9/38, 2nd floor, Sector-16,
Rohini, Delhi -110085
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 2 of 220
6. Gopal Singh Bisht (A-6)
S/o Late Inder Singh Bisht
R/o H.No. 2571-B, C-2, DDA Janta Flats,
Vasant Kunj, New Delhi-110070
(Former Dealing Assistant, O/o RCS, Parliament Street,
New Delhi).
7. Ashwani Sharma (A-7)
S/o Late R.K. Sharma,
R/o 291-A, Pocket-C,
Mayur Vihar Phase-II, Delhi.
8. P.K. Thirwani (A-8)
S/o Late Motiram Thirwani,
R/o C-4/C, Pocket-14,
Flat 113, Janak Puri, Delhi
(Ex-Auditor, Audit Branch, O/o The RCS, New Delhi).
9. Sanjeev Bharti (A-9)
S/o Late Mohindra Bharti Madan,
R/o C-4/C, Pocket-14, Flat No. 113,
Janakpuri, New Delhi-110058
(Former Stenographer, O/o The RCS, Parliament Street,
New Delhi)
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 3 of 220
Date of institution of the case : 28.09.2006
Arguments concluded : 08.10.2025
Date of pronouncement of judgment : 15.11.2025
JUDGEMENT
Registration of Sunny Cooperative Group Housing Society Ltd:-
1. The contour of this judgment covers the discussion of different stages of the Sunny Cooperative Group Housing Society from its incorporation, its winding up and subsequent revival thereof and the roles of the individual public servants/private persons in its functioning.
2. In 1983, a group of 65 individuals joined with a common purpose to form a Co-operative Group Housing Society for acquiring land, either through purchase or lease, for the construction of residential houses or flats to benefit its members.
These 65 individuals were recognized as the promoter members of the society. Their details including their names, fathers' names, signatures, ages, professions, and addresses were written in the register referenced to as Ex.PW1/B.
3. Each promoter member submitted a separate application form of membership and a separate affidavit to affirm their intention to join the Group Housing Society. They framed their by-laws and elected a managing committee from amongst CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 4 of 220 themselves, consisting of five members as:-
i) Jagmohan Singh, President
ii) Mahesh Chand Gupta, Vice President
iii) Jasbir Singh, Secretary
iv) Mukul Chaturvedi, Treasurer
v) R. N. Bhardwaj, Member
4. This managing committee, chosen by the promoters at the time of incorporation filed an application for registration of the society under the Delhi Co-operative Society Act, 1972. Official recognition was granted with the issuance of the registration certificate in December 1983 with registration No. 1206 (GH).
5. After registration, the operations of the Sunny CGHS came under the purview of the Registrar Cooperative Society as stipulated by the Delhi Co-operative Society Act, 1972. On 08.04.1988, the finalized list of 65 promoter members was formally submitted to the Delhi Development Authority (DDA), requesting for the land allotment for the Sunny Cooperative Group Housing Society (hereinafter mentioned as the society).
Society Becoming Non-Functional and the Winding Up Process:-
6. Despite its promising start, the members of the Sunny CGHS gradually lost interest in the society and failed to CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 5 of 220 convene regular General Body Meetings as mandated by the Delhi Cooperative Society Act, 1972 (hereinafter referred to as DCS Act) and the associated rules.
7. Considering this non-compliance, the Office of the Registrar Cooperative Society issued a requisition dated 26.05.1989 (Ex. PW-46/A) calling upon the society that the term of the existing Managing Committee stood expired on 10.10.1987, and elections under Section 29 of the DCS Act, 1972 were overdue. The society was directed to elect a new Managing Committee within one month of the requisition (referenced as Ex.PW46/A in the file D-3), but no action was taken in response.
8. Subsequently, a show cause notice dated November 9, 1989 (Ex. PW46/C) was issued, informing the society that an Election Officer might be appointed under the Act to oversee the election process. Consequently, the Election Officer Sh. A. S. Shastri was appointed to conduct the elections within 60 days, as shown in the notice dated 02.01.1990 (Ex.PW46/E, page No. 105/C, D-3).
9. Even after that, the society members remained disengaged and did not participate in the required proceedings. As a result, another show cause notice dated 14.05.1990 (Ex.PW58/B, page No. 111/C, D-3) was issued by the Deputy Registrar, questioning why the society should not be wound up under Section 63(2)(b) of the DCS Act, 1972. The continued lack of response and interest from the members in organizing CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 6 of 220 General Body Meetings or conducting elections led to a decisive order in July 1990 (Ex.PW58/C, page No. 118/C, D-3), whereby the Deputy Registrar of Cooperative Society ordered the winding up of the society under Section 63 of the DCS Act, 1972. Thereafter, vide order dated 25.07.95 (Ex. PW-51/B, page no. 122/C, D-3), the Deputy Registrar (South), appointed Sh. R.K. Bhalla as the liquidator of the society under Section 66 of D.C.S Act, 1972. However, the liquidator did not do any proceedings towards the liquidation and the legal status of the society was remained as the "wound up" society.
Revival of Society:-
10. On 21.11.2002, an application was submitted on the society's official letterhead to the Registrar Cooperative Societies (RCS), asserting that all procedural deficiencies and short- comings had been addressed and that a fresh Managing Committee election had been conducted in strict compliance with the Delhi Cooperative Society Act, 1972 in October 2002 with the provision of Rule 58 of Schedule II of the D.R.C. Act, 1972. The application, signed by Pawan Kumar as Secretary (though the original promoter secretary was Jasbir Singh), requested the cancellation of the winding-up order under Section 63 of the Act and sought revival of the society's functioning as per the statutory requirements (Ex.PW34/A, page 124/C, D-3).
Registrar's Proceedings: Initiation and Inspection Orders:-
11. Upon receipt of the revival application, the Dealing Assistant of the Registrar Cooperative Society Gopal Singh CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 7 of 220 Bisht, had prepared a note, recommending an inspection under Section 54 of the Delhi Cooperative Society Act, 1972 to ascertain the society's factual positions and operations before initiating quasi-judicial proceedings. The note, documented in the file D-3 (pages 16/N and 17/N), traced the society's history of winding up and highlighted key points, the request for revival under Section 63(3), the society's correspondence address at 4720/47, Ragurpura, Karol Bagh, Delhi, and the freeze list of 65 approved members.
12. Subsequently, Area Inspector Faiz Mohammad (Grade-II/Inspecting Officer) was appointed to bring out the factual position of the society. After that, Inspector Faiz Mohammad filed his inspection report, dated June 1, 2003 (Ex.PW5/A) for further proceedings.
Inspection and Verification: Process and Outcomes:-
13. As per the report of the Inspector Faiz Mohammad, he visited the society's registered office and found that the society had relocated to 4720/47, Ragurpura, Karol Bagh, Delhi. There, he met Mr. Gokul Chand Aggarwal, President of the society, who produced the following records:-
● Proceeding Register ● Membership Register ● Registration Certificate ● By-laws of the society ● Audited accounts (1983-84 and 1986-1987) CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 8 of 220 ● Unaudited accounts (1987-88 to 2002-03) ● Resignation File ● Application File ● Cash-Book, Ledger, and related documents etc. ● Election File
14. Inspector Faiz Mohd. (Accused No.2) noted in his inspection report that the verification of the aforesaid documents revealed that the the membership list of 65 was approved in 1988; that 17 members had resigned and 17 members had been enrolled. The last proceedings was held on 20.04.2003 and the elections of the Managing Committee was held on 20.10.2002 after following due procedure. He noted a prolonged period of inactivity, but confirmed a recent General Body Meeting, wherein a resolution for revival was unanimously adopted.
Registrar's Office Findings: Membership, Audit, and Compliance:-
15. Based on Inspector Faiz Mohammad's report, Gopal Singh Bisht, Dealing Assistant (Accused No.6) prepared the detailed note on 4th June, 2003 recommending quasi-judicial proceedings for the revival of the society. Key findings included:
● Society registered as No. 1206 (GH) on 30.12.1983 and had been operating at 4702/47, Ragurpura, Karol Bagh, with 65 members.
● President Gokul Chand Aggarwal produced all CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 9 of 220 relevant records and the list of the society was approved by the R.C.S Office vide Letter No.47/Veri/Coop/GH/2971-72 dated 24.05.1988 for allotment of land.
● Office relocation and complete membership registration were duly recorded.
● Audit was complete up to 30.06.1987 with unaudited accounts available from 01.07.1987 to 31.03.2003.
● The last Managing Committee meeting and election both occurred on 20.10.2002 ● All records were in the custody of the President Sh.
Gokul Chand Aggarwal ● The society was previously defunct due to failure to audit accounts and conduct timely elections but was now functioning with pending compliance issues.
16. The note of the accused Gopal Singh Bisht recommended that given the society's efforts to regularize its affairs, quasi-judicial proceedings be initiated. The Registrar Narayan Diwakar (Accused No. 4) approved this recommendation and sent the file again for verification in the concerned Zone. The R.C.S (Accused No.4), on 08.07.2003, sent the file for further verification by the relevant zone.
Status of Resigned and Enrolled Members: Documentation and Verification:-
17. In compliance with RCS directions, the accused CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 10 of 220 No.6 namely Gopal Singh Bisht prepared a detailed note of six pages documented at Page No. 21/N to 26/N, wherein he gave the history of the society from its inception to the winding-up and noted that the President Gokul Chand Aggarwal submitted original records for verification. The same were counter- checked/verified and found in order. He also noted that the society accepted application for enrollment and resignation from time to time.
Resignations:-
18. He stated that seventeen (17) members resigned between July to September 1988 and the society accepted these 17 resignations from members of the society.
19. He took on record the following documents in connection with above mentioned resignations:-
i) Photocopies of resignation letter from 17 members are placed from P215/C to P231/C (File D-3)
ii) Photocopies of refund of Share Money from 17 resigned members are place from P215/C to P231/C (D-3).
iii) Photocopies of minutes of the Managing Committee meetings in which the resignations were approved are placed from P209 /C to P 214/C (D-3).
Enrollments:-
20. Mr. Gopal Singh Bisht (Accused No.6) had also mentioned about the new enrollments of the members in the note CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 11 of 220 sheet. The society has accepted 17 enrollment applications.
21. He mentioned that the society has submitted the following documents in connection with above mentioned enrollments:
i) Photocopies of application for membership from 17 enrolled members are placed from P256/C to P272/C (D-
3).
ii) Photocopies of receipt of Share Money from enrolled members are placed from P233/C to P 238/C (D-3).
iii) Photocopies of the minutes of the Managing Committee meetings in which the enrollments were approved are placed from P 209/C to P214 /C (D-3).
iv) Affidavit stating that the members were resident of Delhi at the time of enrollment, in r/o 17 enrolled members are placed at P239/C to P255/C. He categorically wrote that since all these enrollments were made prior to 22.04.1997, no proof of residence is required as per the notification dated 05.12.2001.
Audit and Election Status: Submissions and Compliance:-
22. The accused Gopal Singh Bisht further stated that the society submitted unaudited accounts up to March 2003 and sought permission for statutory audit. The General Body Meeting, on 20.10.2002 resulted in a new Managing Committee as follows:
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 12 of 220 S.No. Name Position
1 Sh. Gokul Chand President
Aggarwal
2 Sh.Satish Aggarwal Vice-President
3 Sh. Pawan Kumar Secretary
4 Sh. Ajay Kumar Treasurer
Goel
5 Sh. B.M. Gupta Member
6 Smt. Hitesh Gupta Woman Member
7 Smt. Vijay Arora Woman Member
Registrar's Revival Order: Rationale, Conditions, and
Appointments:-
23. After thorough examination of submissions,
affidavits, and inspection reports, the accused Narayan Diwakar (RCS) issued an order dated 05.09.2003, cancelling the winding- up order of 03.08.1990, under Section 63(3) of the Delhi Cooperative Societies Act, 1972. The RCS Narayan Diwakar accepted the 17 resignations and 17 new enrollments. However, his order imposed the condition that all pending audits be completed within two months and to ensure the cooperative spirit, he appointed Sh. Sanjeev Bharti (Grade-III) (accused) as CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 13 of 220 the Election Officer, directing him to conduct Managing Committee elections within two months. The President and Secretary were instructed to cooperate fully, failing which further action would be taken.
Post-Revival Actions: Communication, Audit, and Elections:-
24. Following the Registrar's revival order, the case was referred to the Assistant Registrar (Policy) for further action. The policy department communicated with the Delhi Development Authority (DDA) regarding land allotment, and the DDA requested the society's land preference. Concurrently, the society's audit for 1987-2003 was completed, and elections were conducted on 10.10.2003 under the supervision of Election Officer Sh. Sanjeev Bharti.
CBI Investigation: Inquiry, Allegations, and Legal Proceedings:-
25. On 02.08.2005 the Hon'ble Delhi High Court directed the Central Bureau of Investigation (CBI) to investigate 135 Cooperative Group Housing Societies, including the present society i.e. Sunny Cooperative Group Housing Society Ltd.
Accordingly, preliminary enquiry PE3(E)/2005-EOW-1 was registered, leading to RC No.19(E)/2005-EOW-1 on December 7, 2005, showing involvement of the officials of the Registrar Cooperative Society and private individuals.
26. The CBI alleged that the Sunny Cooperative Group Housing Society had become defunct and was under liquidation for non-operation, failure to conduct elections, and lack of audits.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 14 of 220The investigation focused on the legitimacy of the revival, the authenticity of documents, and the roles of various individuals including the public servants.
Allegations Against accused persons:-
27.1 Gokul Chand Aggarwal:- He is impersonated as Pawan Kumar, submission of forged revival application, and creation of false records and signatures for the Managing Committee and member lists. Most purported attendees of key meetings such as Managing Committee meetings and General Body Meetings denied participation and authenticity of signatures; office bearers were allegedly close relatives.
27.2 Faiz Mohammad:- He is accused of submitting a false inspection report under Section 54 of DCS Act, 1972 without proper verification, in collusion with Gokul Chand Aggarwal, to facilitate fraudulent revival.
27.3 Gopal Singh Bisht:- As Dealing Assistant, he allegedly ignored clear discrepancies in resignation and enrolment documentation, and advanced notes with incorrect information to aid revival on forged grounds.
27.4 Narayan Diwakar:- As Registrar, he is accused of conspiring to revive the society based on forged documents, ordering revival without genuine enquiry, and misrepresenting the submission and verification of affidavits and compliance.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 15 of 22027.5 Sanjeev Bharti:- As the Election Officer, he allegedly colluded in fraudulent elections, with many supposed attendees denying their presence or membership. One elected member, Alka Gupta, was found non-existent.
27.6 Ashwani Sharma:- A search in his office revealed a file with handwritten member lists as well as computer-generated documents used for revival. Handwriting and digital evidence linked him to the document fabrication.
27.7 P.K. Thirwani:- As the auditor, he has allegedly facilitated forged audits, with signatures of Pawan Kumar and Ajay Kumar Goel forged by Gokul Chand Aggarwal. His own signature was genuine.
27.8 Naveen Kaushik:- GEQD report linked him to the forged notes listing newly inducted members, and to the forgery of Pawan Kumar's signature on an official communication to the DDA.
28. Sanction orders for prosecution under the Prevention of Corruption Act, 1988, were obtained for the government servants. Upon conclusion of the investigation, a charge-sheet was filed against the following individuals:-
I. Gokul Chand Aggarwal (Private Person) II. Faiz Mohammad (Retired Government Servant, Inspector in the RCS Office) CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 16 of 220 III.Maan Singh (Deceased, Retired Assistant Registrar, RCS Office) IV. Narayan Diwakar (Retired Registrar Cooperative Societies) V. Naveen Kaushik (Private Person) VI. Gopal Singh Bisht (Government Servant, Former Dealing Assistant, RCS Office) VII. Ashwani Sharma (Private Person) VIII. P.K. Thirwani (Government Servant, Former Auditor, RCS Office) IX. Sanjeev Bharti (Government Servant, Election Officer, Former Stenographer, RCS Office) Framing of Charge:-
29. The accused persons were charged with different offences. For a better understanding of the charges against the accused person, the name of the accused person and the charges framed against them are shown in a tabular form as under:-
Sl. Name of Accused Charge Plea of No. Accused 1. Gokul Chand Aggarwal, S. 120 B IPC Pleaded not Faiz Mohd., Narayan r/w 419, 420, guilty and Diwakar, Naveen 468, 471 IPC claimed trial. Kaushik, Gopal Singh and read with Bisht, Ashwani Sharma, S. 13 (2) read P.K. Thirwani and with 13(1)(d) CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 17 of 220 Sanjeev Bharti of PC Act, 1988 2. Naveen Kaushik S. 420 read Pleaded not with 511, 468 guilty and and 471 IPC claimed trial 3. Gopal Singh Bisht S. 13(1)(d) r/w Pleaded not 13 (2) and S. guilty and 15 of PC Act, claimed trial 1988 4. P.K. Thirwani S. 13(1)(d) r/w Pleaded not 13 (2) and S. guilty and 15 of PC Act, claimed trial 1988 5. Sanjeev Bharti S. 13(1)(d) r/w Pleaded not 13 (2) and guilty and Section 15 of claimed trial PC Act, 1988 6. Gokul Chand Aggarwal S. 420 read Pleaded not with 511, 419, guilty and 468 and 471 claimed trial IPC 7. Faiz Mohammad S. 13(1)(d) r/w Pleaded not 13 (2) and S. guilty and 15 of PC Act, claimed trial 1988 8. Narayan Diwakar S. 13(1)(d) r/w Pleaded not 13 (2) and S. guilty and 15 of PC Act, claimed trial CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 18 of 220 1988 9. Ashwani Sharma S. 120-B read Pleaded not with S. guilty and 420/511, 468, claimed trial 471 and S. 13(2) read with S. 13(1)(d) of PC Act, 1988 Prosecution Evidence:-
30. After framing of charges, the prosecution examined 78 witnesses. The prosecution witnesses may be conveniently categorized in the following categories:-
I. Original Promoter Members;
II. Fictitious Members;
III.Witnesses from Registrar Cooperative Society; IV. Forensic witnesses;
V. Investigating Officers
31. Now, this court shall note down the extract of the testimonies of witnesses of aforesaid categories.
Testimonies of Original Promoter Members:-
31.1 PW-1 was the original founder member/promoter member of the society. He deposed that he became the founder member and he came to know about the society from one Sh.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 19 of 220
R.N. Bhardwaj, who was his colleague. He did not actively participate in the functioning of the society and had never resigned from the society. During his testimony, he exhibited the following documents:-
a) His original affidavit dated 17.09.1983 filed at page no. 8/C (D-3) as Ex. PW-1/A bearing his signatures at Point A;
b) Intensive Enquiry Proforma as Ex. PW-1/B (D-3) bearing his signatures at Point A against his name at serial No.10;
c) The bye-laws of the society as Ex. PW-1/C bearing his signatures at Point A against his name at serial No.10;
d) The application form for registration of the society as Ex. PW-
1/D bearing his signatures at Point A against his name at serial No.10.
He was not cross-examined by any of the accused persons.
31.2 PW-2 was the Promoter Member. She deposed that she did not attend any meeting of the society. She exhibited the following documents:-
a) Her original affidavit dated 17.09.1983 filed at page no. 33/C (D-3) as Ex. PW-2/A bearing her signatures at Point A;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 20 of 220
b) Intensive Enquiry Proforma as Ex. PW-1/B (D-3) bearing her signatures at Point A against her name at serial No. 26;
c) The bye-laws of the society as Ex. PW-1/C bearing her signatures at Point A against her name at serial No.26; and
d) The application form for registration of the society as Ex. PW-
1/D bearing her signatures at Point A against her name at serial No.26;
After seeing the photocopy of the proceeding register, she deposed that in the first general body meeting of promoters dated 19.09.1983, her name has been written at Point X and her signatures are at Point A against her name, but signatures at Point A against her name are not her signatures. She deposed that after becoming the member of the society, she did not participate in any activity of the society, however, in the year 2005, she received a letter from the RCS Office asking her to furnish her Pan Card, bank details, photograph, affidavit and certificate of verification from a gazetted officer. The said letter is exhibited as Ex. PW-2/B. In her cross-examination on behalf of the accused No.1, she deposed that she had never resigned from the society and she submitted her documents in the registrar office to prove her genuineness as a member in the society.
31.3 PW-3 Sh. Romesh Pandita was the original founder CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 21 of 220 member/promoter member of the society. He deposed that he became the founder member. He did not actively participate in the functioning of the society and had never resigned from the society. He did not attend any managing committee meeting of the society. During his testimony, he exhibited the following documents:-
a) His original affidavit dated 17.09.1983 filed at page no. 18/C (D-3) as Ex. PW-3/A bearing his signatures at Point A;
b) Intensive Enquiry Proforma as Ex. PW-1/B (D-3) bearing his signatures at Point A against his name at serial No.19;
c) The bye-laws of the society as Ex. PW-1/C bearing his signatures at Point A against his name at serial No.19;
d) The application form for registration of the society as Ex. PW-
1/D bearing his signatures at Point A against his name at serial No.19.
He denied his signatures at Point A against serial No. 19 on the register of members at page no. 286/C of D-3. In his cross-examination on behalf of the accused No.1, she stated that she did not resign from the society and did not file any complaint in the RCS office regarding the functioning of the society.
31.4 PW-4 Smt. Raji Pandita was the Promoter Member. She deposed that she did not attend any meeting of the society.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 22 of 220She exhibited the following documents:-
a) Her original affidavit dated 17.09.1983 filed at page no. 21/C (D-3) as Ex. PW-4/A bearing her signatures at Point A;
b) Intensive Enquiry Proforma as Ex. PW-1/B (D-3) bearing her signatures at Point A against her name at serial No. 17;
c) The bye-laws of the society as Ex. PW-1/C bearing her signatures at Point A against her name at serial No.17; and
d) The application form for registration of the society as Ex. PW-
1/D bearing her signatures at Point A against her name at serial No.17;
She denied her signatures in the members register placed at page-286/C. In her cross-examination, she stated that she did not resign from the society and did not file any complaint in the RCS Office.
32. Similarly, the other promoter members have been examined by the prosecution to prove their initial membership, their affidavits, their application form and their signatures on the resignation letter or signatures to show their presence in the General Body Meeting/Managing Committee Meeting of the society. For the sake of brevity, their names and the documents CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 23 of 220 proved by them are shown in a tabular form as under:-
Sl. No. Name Admitted Application Signatures Resignation/ of the Signature Form of on the By- GBM/ Witness on Society for Laws of Managing Affidavit Membership Society/Inte Committee dated nsive Meeting 17.09.1988 Inquiry Proforma PW-5 H.N. Admitted PW-1/D Ex. PW- He did not Kumra as Ex. (At Serial 1/C (At resign and PW-5/1 No. 29) Serial No. termed
29) Resignation Letter Ex.
PW-5/3 as
forged.
PW-6 Chandra Admitted PW-1/D Ex. PW- Not
Gupt as Ex. (At Serial 1/C (At Resigned.
Khanna
PW-6/1. No. 38) Serial No. Did not
38) attend
Managing
Committee
Meeting
dated
14.07.1988
PW-8 Ms. Admitted PW-1/D Ex. PW- Did not
Poonam as Ex. (At Serial 1/C (Serial resign.
Arora
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 24 of 220
PW-8/A. No. 13) No. 13)
PW-14 Baljeet Admitted PW-1/D Ex. PW- Denied
Singh as Ex. (At Serial 1/C (Serial attending
PW-14/A. No. 12) No. 12) any GBM
dated
20.10.2002
under his
chairmanshi
p at
4720/47,
Regharpura,
Karol Bagh.
Denied his
signatures
at Serial
No. 14 in
the meeting.
He never
seconded
candidature
of B.M.
Gupta for
any post.
PW-15 R.N. Admitted PW-1/D Ex.PW- Never
Bhard as Ex. (At Serial 1/C (Serial attended
waj PW-15/A. No. 5) No. 5) any GBM in
the year
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 25 of 220
2002 under
the
chairmanshi
p of Baljeet
Singh at
4720/47,
Regharpura,
Karol Bagh.
Denied his
signatures
in the
minutes of
meeting of
GBM and
register of
members.
PW-16 K.S. Admitted PW-1/D Ex.PW- Never
Bindra signatures (At Serial 1/C (Serial attended of his wife No. 11) No. 11) any meeting namely of the Ravinder society.
Kaur as
Ex. PW- Did not
16/A. attend any
proceedings
of the
society and
denied
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 26 of 220
signatures
of his wife
on the
proceedings
of the
society.
PW-18 Chiranji Admitted PW-1/D Ex.PW- Denied
Lal
as Ex. (At Serial 1/C (Serial signatures
Sharma
PW-18/A. No. 15) No. 15) on his
resignation
letter dated
24.08.1988.
He did not
resign.
PW-19 Radhika Admitted PW-1/D Ex.PW- Denied
Aggarwal
as Ex. (At Serial 1/C (Serial attending
PW-19/A. No. 28) No. 28) any meeting
in the year
2002.
Denied
receiving
any
communicat
ion from the
society in
the year
2002.
PW-21 Jagmohan Admitted PW-1/D Ex.PW- Did not file
Singh,
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 27 of 220
President as Ex. (At Serial 1/C (Serial any
of the
Society
PW-21/B. No. 2) No. 2) application
for revival
of society.
Never
resigned
from the
society. Did
not receive
any
application
for new
membership
or
resignation.
Smt. Admitted PW-1/D Ex.PW- Never
Jasvinder
PW-27 Kaur as Ex. (At Serial 1/C (Serial attended
PW-27/A. No. 46) No. 46) any meeting
of the
society.
PW-33 Krishan He deposed that the previous secretary Jasbir
Kumar
Verma
Singh made him the member of the society.
However, he had never resigned from the membership. Nor, did he attend any meeting of the society.
PW-45 Jasbir Admitted PW-1/D Ex.PW- He did not
Singh,
(Initial
as Ex. (At Serial 1/C ( At resign from
Secretary) PW-45/42 No. 5) Serial No. the society.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 28 of 220
5) He did not
attend
managing
committee
meetings
dated
14.07.98
and
18.11.98.
He
remained
Secretary
till 1990.
He did not
attend any
meetings of
the society
after 1983.
PW-47 Smt. Admitted PW-1/D Ex.PW- She did not
Dharambi
r Kaur
as Ex. (At Serial 1/C ( At resign from
PW-47/A No. 43) Serial No. the
43) membership
of the
society. She
did not
attend any
meeting of
the society.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 29 of 220
PW-65 Smt. Admitted PW-1/D Ex.PW- She denied
Geeta
Goswami
as Ex. (At Serial 1/C ( At her
PW-65/A No.52 ) Serial signatures
No.52 ) on the
membership
register
prepared by
the accused
Gokul
Chand
Aggarwal.
She did not
attend any
meeting of
the society.
32.1 Fictitious Members:-
Sl. Name Affidavit Application Membersh Resignatio
No. of the dated Form of ip n/GBM/
Witness 21.07.2003 Society for Register Managing
Membership Committe
e Meeting
PW-7 Nanak Denied Denied. Denied
Chand execution Signatures his
of affidavit and signature
exhibited as handwritings s on the
Ex. PW- on the members
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 30 of 220
7/A. application hip
form dated register.
01.11.1988
exhibited as
Ex. PW-7/B.
PW- Ajay Both the witnesses denied that any person by the
Aggarwal
10 name of Sh. I.D. Aggarwal shown at the Serial
No. 81 in the membership register had ever PW- C.P. resided in the house No. R-498, New Rajinder 11 Khanna Nagar, New Delhi.
PW- Shashi He deposed that no person by the name of Ms. Bhushan 12 Sharma Alka Gupta resided in the house No. 1311, Tri Nagar, Gali No. 89.
PW- Brij He deposed that he did not become the member 26 Mohan of the society and did not sign membership Gupta register, application form and any proceedings. PW- Ram He deposed that his address has been mentioned 28 Chand to make a fictitious member of the society Rana namely Ram Chander Raja. The witness denied the signatures on the affidavits, membership register. He never became the member of the society.
PW- Veer He deposed that no person by name of Moti 29 Singh Ram Singla resided at his address. He saw the affidavit of fictitious member Moti Ram Singla, application form, UPC list, membership register and submitted that no such person had ever CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 31 of 220 resided at his address i.e. L-623, Mangol Puri, Delhi.
PW- Smt. She deposed that he had never applied for the 36 Vijay society membership. She denied her application Arora form i.e. Ex. PW-36/A, her affidavit i.e. Ex.
PW-36/B. She did not attend any meeting of the society i.e. dated 20.10.2002 and denied her signatures on the proceedings of the meeting. PW- Ajay He deposed that he never became the member of Kumar 43 Goyal the society. Nor, did he apply for membership of (Fictitious the society. He denied his signatures on the Treasurer) application form, affidavit, receipt, membership register, proceedings. He denied that he had never been elected as the Treasurer and did not attend any meeting.
PW- Vineet He deposed that he did not rent out his house to 50 Gupta anyone namely G. Lal S/o Tara Chand. No such person had ever resided in his house.
PW- Hitesh He never applied for membership. He denied his 52 Gupta signatures on the application form, affidavit, nomination form for election and deposed that he did not attend any meeting of the society and denied his signatures on proceedings of GBM dated 20.10.2022. He also denied that his mother Gunwati Devi became the member of the society. She stated that the accused Gokul Chand Aggarwal is his brother-in-law.
PW- Satish He had never applied for membership. He did CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 32 of 220 59 Aggar not become member. He denied signatures on wal the affidavit, membership register, nomination form.
PW- Ramesh He had never applied for membership. He did Chander 60 Gupta not become member. He denied signatures on the affidavit, membership register, nomination form.
32.2 Witnesses from RCS Office/D.D.A:-
Sl. Witness Evidence No. Name
PW- Swaroop He worked in the RCS office in various 9 Singh capacities from 2000 to 2005. He was AR (South) in December 2004. He deposed before the court to prove three exhibits i.e. Ex. PW-9/A, Ex. PW-9/B and Ex. PW-9/C. He deposed that a letter dated 17.12.2004 was sent to the Sunny CGHS. The same was sent by hhim and bears his initial at Point-C. The letter has been exhibited as Ex. PW-9/C. The file containing the letter dated 17.12.2004 (Ex. PW-9/C) was placed before him vide noting Ex. PW-9/B (page no. 28/N) (D-3).
He wrote the letter dated 17.12.2004 (Ex. PW-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 33 of 2209/A) requiring the society to verify the complete record regarding change of address at their Barakhamba Road address. He identified his signatures at the Point B on Ex. PW-9/A. He also deposed that he had also seen the letter dated 29.11.2004 addressed to Assistant Registrar (South), which was marked by him on 01.12.2004. He identified his initial on the letter at Point E. The letter is Ex. PW-9/D. PW- R.K. He worked in the DDA. He received a letter 20 Sharma dated 09.11.2003 addressed to the Deputy Director (GH), Delhi Development Authority, I.N.A. Vikas Sadan, New Delhi written by Sunny Cooperative Group Housing Society and signed by Pawan Kumar as President/Secretary. He put the diary number on this letter at place X in his hand-writing. He exhibited the said letter as Ex. PW-20/A. PW- Vakil He was working in the office of Registrar 23 Chand Cooperative Society from 15.11.2005 till Jain 31.03.2006 as Assistant Registrar in Banking Branch with additional charge of South Zone. He received a letter from CBI wherein they asked to give information regarding any other documents concerning the society. Accordingly, he handed over one document to CBI vide letter dated 29.03.2006. Along-with the said letter, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 34 of 220 necessary information concerning the file of Sunny CGHS was given. He exhibited the letter dated 29.03.2006 as Ex. PW-23/A (D-5). He deposed that he handed over the letter dated 29.11.2006 (Ex. PW-9/D) to the CBI. He deposed that file of Sunny CGHS was already sent to the CBI by the office.
PW- Sushil He worked as Diary Dispatcher. He identified 24 Kumar the hand-writing and signatures of J.S. Sharma Sharma (Assistant Registrar) and P.K. Thirwani (Head Clerk/accused ). He deposed that he had seen them signing and writing during official course of his duties. He identified the signatures of P.K. Thirwani (accused) at Point A and identified his writing at Point X on Ex. PW- 24/A. Ex. PW-24/A (D-7, Page-82) is the option-cum-appointment letter for conducting statutory audit of the society. In the said letter, the accused P.K. Thirwani gave his consent or conducting the audit subject to the approval of the Cooperative Registrar.
He identified the writing of the accused P.K. Thirwani in the check list from the column A to A. The check list has been exhibited as Ex. PW- 24/B. He also identified the signatures of the accused P.K. Thirwani on Ex. PW-24/C i.e. the brief summary of the society. The brief CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 35 of 220 summary of the society has been exhibited as Ex. PW-24/C (colly) (D-7, page-77). He identified the initial of the accused P.K. Thirwani at Point A on page no. 74 to 77.
PW- Narain He was Upper Divisional Clerk in the Registrar 25 Dutt Office from 2003 to 2005. He deposed that Faiz Kaushik Mohammad was dealing assistant in North West Zone during that period. He identified the inspection report placed in the file D-3 and identified the signature appearing at Point A as that of Faiz Mohammad. He also identified the signatures of the accused at Point A-1 at page No. 133-C. He deposed that Faiz Mohammad was Inspector and Dealing Assistant in the year 2003. He saw Faiz Mohammad writing and signing in his official capacity during the course of his official duties. The inspection report of Faiz Mohammad is collectively exhibited as Ex. PW-25/A. He identified the accused Gokul Chand Aggarwal in the court, however, he deposed that he did not know anything about his visit to the Registrar, Cooperative Societies, North West Zone to meet Faiz Mohammad, however, he denied the suggestion of Ld. Public Prosecutor, CBI that he knew Gokul Chand Aggarwal (accused) who used to visit Faiz Mohamad (accused) and they knew each other. PW- Jyoti She was stenographer in the Registrar Office in CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 36 of 220 30 Dubey the year 2003-04. At that time, Mr. Narayan Diwakar, was the Registrar, Cooperative Society. She was attached with the personal branch, RCS as P.A. to the RCS as the PA to the RCS was on leave. She attended the court of RCS. Mr. Sanjeev Bharti i.e. the accused was the PA of the then RCS Mr. Narayan Diwakar. She identified the signatures of RCS Mr. Narayan Diwakar as she was conversant with the signatures during his official course of duties. She had seen D-48, a letter dated 10.10.2003 and photocopy of proceedings dated 05.10.2003 running into 04 pages and another letter dated 02.10.2003. She stated that the signatures at Point A on the documents appear to be of Sanjeev Bharti. She stated that the handwriting in the proceedings dated 05.10.2003 running into 04 pages appears to be of Sanjeev Bharti except the portion 1 to 23 where names of persons are appearing. The letter dated 10.10.2003 is exhibited as Ex. PW- 30/A (D-48). The election proceedings dated 05.10.2003 are exhibited as Ex. PW-30/B. The letter dated 02.10.2003 is exhibited as Ex. PW- 30/C. She also identified the signatures of the accused Narayan Diwakar (RCS) on order dated 05.09.2003 at page No. 321/C and 322/C. The order dated 05.09.2003 is exhibited as Ex. PW-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 37 of 22030/D. She also identified the signatures of RCS Narayan Diwakar in the note sheet placed at page No. 20/N. The said note sheet is exhibited as Ex. PW-30/F. In her cross-examination, she stated that he had never seen Sanjeev Bharti putting note in his hand-writing to the RCS. The letters and proceedings i.e. Ex. PW-30/A, Ex. PW-30/B and Ex. PW-30/C were not written in her presence. She further stated in her cross- examination that she had seen Sanjeev Bharti signing in running hand and not in full signatures.
PW- Madan In the year 2006, he was posted in the office of 32 Pal Registrar, Cooperative Society as Assistant Sharma Registrar (South and Policy). He had handed over certain documents to the CBI concerning Sunny CGHS i.e. Election documents conducted by Election Officer Sanjeev Bharti. He identified his signatures at Point A on letter dated 26.06.2006 addressed to Inspector S. Majumdar, EOW, New Delhi. The letter is exhibited as Ex. PW-32/A. He deposed that the documents mentioned in the said letter were handed over in reference to their letter dated 31.05.2006. He deposed that only photocopy of the record i.e. election record dated 10.10.2003 CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 38 of 220 was available in the office of RCS and the original of the same were not available in the office of RCS. The same were handed over to CBI alongwith the letter. He identified his signatures on the documents exhibited as Ex. PW-30/A (colly) (D-48) at Point B. In his cross-examination, he stated that he had not seen the original of the election report dated 10.10.2003.
PW- Sh. He was working in the Registrar Office during Harswaroop 34 Singh the year 2001 as LDC. He was assigned the work of diary dispatch in the office of RCS. He used to make the entries concerning the correspondence letter etc. received in the office of RCS. During his deposition, he saw the letter dated 21.11.2002 placed in the file D-3 at page No. 122/C. He made the diary entry of the said letter. He identified his hand-writing encircled X on the front page of the letter. The letter was marked to the then RCS. He identified the signatures of then RCS Mr. Narayan Diwakar at point A on the said letter. The said letter was exhibited as Ex. PW-34/A. He was not cross- examined by any of the accused person.
PW- Mehar He was posted as the Deputy Director in the 35 Chand DDA during the period September 2002 to Singhal October 2004. He deposed that the letters were CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 39 of 220 received in the Central Diary Branch. During his deposition, he saw the letter dated 15.12.2003 (D-9). The said letter was received in the Central Diary and it was marked to him. His initial appears at Point A alongwith his endorsement encircled in red at Point X-1. The said letter was marked by him to A.D (GH) DDA. He deposed that the said letter was received from the Secretary, Sunny CGHS giving the option for preference of land. The letter is exhibited as Ex. PW-35/A. He also saw another letter dated 09.11.2003 (D-
17). The said letter was received in Central Diary and was marked to him. He stated that his initial appears at Point A alongwith his endorsement encircled in red at Point X-1. At point X, Central Diary Number 38293 dated 12.11.2003 was written. The said letter was marked to him by AD (GH), DDA. The said letter was received from the Secretary, Sunny CGHS, giving the options for preference of land. The letter is exhibited as Ex. PW-20/A. He saw the document Ex. PW-35/B (D-34). The also exhibited the photocopies of letter dated 07.10.2003 and 10.12.2003 pertaining to the assessment of requirement of land to Group CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 40 of 220 Housing Society.
Ld. defence counsel raised objection of proving the photocopy of a document.
PW- Sh. Ajay He was posted in the RCS office from 1988 to 46 Kumar February 1990 as Assistant Registrar, Singla Cooperative Societies. His duties as Assistant Registrar were to monitor the functioning of a set of cooperate group housing societies registered in 1984-85 called as New Group Housing Section. During his deposition, he exhibited requisition at page No. 103/C of D-3 issued by him calling upon the society to call the Special General Body Meeting to elect the managing committee of the society within a period of one month from the date of receipt of the requisition. He identified his signatures on the requisition at Point A. The requisition is exhibited as Ex. PW-46/A. He exhibited the official noting for issuance of Ex.PW-46/A as Ex. PW-46/B, page no. 7 signed by him at Point A. He deposed that no response of his letter was received from the society. The show cause notice was issued to the said society as to why election officer may not be appointed. The show cause notice is Ex. PW-46/C, (page no. 104) CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 41 of 220 signed by him at Point A. The official noting in this regard is at Page No. 8 (D-3) Ex. PW-46/D. Again, no reply of that show cause notice was received on time and election officer namely A.S. Shashtri was appointed as an officer to conduct election of the said society. Official noting in this regard is at point X to X-1 on Ex. PW-46/D. It was signed by him at point A. The order appointing Sh. A.S. Shashtri is Ex. 46/E at the page no. 105/C (D-3). The same was signed by him at Point A. The aforesaid society was not functioning as per the provisions of cooperative group housing law. They had not conducted elections as they were required to do periodically. Thus, the tenure of the managing committee had expired. That was the reason for issuance of the show cause notice and appointment of election officer. However, no response was received.
PW- Sh. S.P. He was posted in RCS from August 1987 till 48 Sodhi September 1990 as the Deputy Registrar.
During his deposition, he saw the document at page no. 91/C of D-3 and identified his signatures at Point A . He exhibited the said document as Ex. PW-48/A and he deposed that the said circular was issued by him and was addressed to the President/Secretary of the society at their 104, Raja House, 30-31, Nehru CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 42 of 220 Place, New Delhi address.
He was not cross-examined by any of the accused.
PW- Sh. Sunil He was posted in RCS Office from June 1998 49 Kumar till February 2003 as LDC. From June 1998 till December 2002, he was deputed in the Care Taking Branch. Thereafter, he was given the work of diary dispatch. For the last 8-9 months, he was deputed in the south zone of that office. He deposed that Mr. N.C. Joshi and Mr. Gopal Singh Bisht (accused) were also posted in the same zone as Dealing Assistants. Mr. N. Diwakar was the registrar at that time. During his deposition, he saw the document i.e. Ex. PW-49/A (page no. 17/N and 18/N of D-3) and identified signatures of Sh. Gopal Singh Bisht at point A and Sh. Narayan Diwakar at point B of this exhibit.
He saw the official noting i.e. Ex. PW-49/B (page no. 19/N of D-3) and identified the signatures of Sh. Gopal Singh Bisht at Point A. He saw the official noting i.e. Ex. PW-30/F (page no. 20/N of D-3) and identified the signatures of Sh. N. Diwakar at Point A and Sh. Gopal Singh Bisht at Point B. He also saw the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 43 of 220 document Ex. PW-13/C (page no. 21/N to 27/N) and identified the signatures of Sh. Gopal Singh Bisht at point A and that of Sh. Narayan Diwakar at point B. He saw the official noting i.e. Ex. PW-30/C (page No. 21/N to 27/N of D-3) and identified the signatures of Gopal Singh Bisht at Point A and Sh. N. Diwakar at Point B. He saw the official noting Ex. PW-9/B (page No. 28/N and 29/N of D-3) and identified signatures of Gopal Singh Bisht at Point A. He was not cross-
examined by any of the accused.
PW- Sh. B.L. He remained posted in the office of RCS as 51 Sharma Deputy Registrar from July 1993 to April 1996.
Being the deputy registrar, his duties were to supervise the work of Assistant Registrars posted under him. For some period, he was deputed in the South Zone. During that period, he dealt with the file of Sunny CGHS. He deposed that order of liquidation of the said society was passed by Sh. Satish Mathur, the then Deputy Registrar in the year 1990. He exhibited the said order as Ex. PW-51/A (page no. 119/C and 120/C of D-3). He identified the signatures of Satish Mathur at point A on this document having worked with him, he identified his signatures. Thereafter, he appointed Mr. R.K. Bhalla as liquidator of that CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 44 of 220 society in the year 1995. The order in that regard is Ex. PW-51/B (page No. 122/C). He saw the official noting i.e. Ex. PW-51/C (page no. 10/N and 11/N of noting file) and Ex. PW- 51/D (page no. 12N and 13/N of the noting file, D-3) and identified signatures of Sh. Satish Mathur on these notings at Point A. He also saw the official noting I.e Ex. PW-51/E (page No. 15/N, noting file) and identified his signatures at Point B. He deposed that no liquidation proceedings were done by Sh. R.K. Bhalla as the liquidator for settling the liabilities of the said society. The liquidator was supposed to contact erstwhile as well as existing members in order to assess assets and liabilities of the society concerned. Once it was done, the file was to be submitted to the competent authority i.e. RCS for cancellation of registration.
PW- Sh. He was posted as LDC in the group housing 53 Ramesh branch of DDA in the year 2003. His duties Kumar were to receive dak (correspondence) to make Gupta entries of the same in the diary register and to hand over the same to the addressee concerned. He saw the letter dated 09.11.2003 i.e. Ex. PW- 20/A (D-10). He received the same on 13.11.2003. Entry about the same was made as CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 45 of 220 Diary No. 8056 at point Y on the said document. The said letter was put up before Deputy Director (GH), DBA who was Sh. M.C. Singhal by him.
PW- Sh. He was posted in RCS office, Delhi from 2003 54 Virender to 2008 as Assistant Registrar. He went to CBI Kumar office to join investigation of the case. He was Bansal inquired about the procedure regarding registration of cooperative group housing societies, enrollment of members, annual general body meetings, elections, audit and liquidation, revival of societies. He deposed that when he joined the said office, Sh. N. Diwakar was posted as Registrar.
In his cross-examination, he deposed that it is true that it is prerogative of managing committee of group housing society to induct or to expel its members. It is true that RCS office deals with several societies apart from group housing society. It is true that an arbitrator can be appointed in case of any dispute pertaining to membership, management, election etc under the DCS Act.
PW- Balram He identified signatures of Faiz Mohammad on 55 Singh Ex. PW-25/A. He received the Ex. PW-25/A and identified signatures of Faiz Mohammad at Point A. He made diary entry on the said CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 46 of 220 exhibit.
PW- Sh. He was employed with DDA in the year 2003 56 Virender and was posted as Assistant (Group Housing).
Kumar During his deposition, he saw the letter dated Verma 09.11.2003 i.e. Ex. PW-20/A (D-10). He identified signatures of Sh. S.S. Mathur on the said letter at Point B. The said letter regarding assessment of requirement of land for Sunny CGHS and was marked to him. He also exhibited the letter dated 07.10.2003 as Ex. PW-35/B (D-34). He identified signatures of S.S. Mathur on the said letter at Point B. The said letter was received in DDA on 07.10.2003 from the RCS Office, Delhi. He also exhibited letter dated 10.12.2003 alongwith annexures as Ex. PW-35/C (D-34) and identified signatures of Sh. Uma Shankar Bhardwaj on the said letter at Point C. The said letter was regarding assessment of requirement of land to Sunny CGHS and was issued by DDA to the societies concerned. He deposed that the addresses as written on the documents annexed with said letter were dictated by him.
He was not cross-examined by any of the witnesses.
PW- Krishan He was the Joint Registrar in the RCS Office 58 Kumar from 1999 to 2000. He identified the signature CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 47 of 220 of Narayan Diwakar RCS at point B on the Ex. PW-49/B, Ex. PW-30/F and Ex. PW30/C (page No. 19/N to 27/N of D-3) as he worked with him and saw them writing and signing documents. He identified the signatures of Sh. B.L. Sharma at point B on Ex. PW-51/B and Ex. PW-58/A (page No. 121/C and 122/C of D-
3). He identified the signatures of Sh. Satish Mathur at Point A on Ex. PW-51/A, Ex. PW-
58/B and Ex. PW-58/C (page no. 117/C to 120/C and 11/C of D-3).
In his cross-examination, he stated that he had never dealt with the file of the Sunny CGHS. PW- Sh. Satya He deposed that he remained in the office of 63 Prakash RCS, Delhi as LDC in Audit Branch from Sharma September 2005 till December 2010. In the year 2006, on the directions of Assistant Registrar, Audit he went to CBI office during investigation of this case and handed over the audit file to the I.O. He exhibited the audit file as Ex. PW-63/A (D-7). It was seized by the IO vide seizure memo Ex. PW-63/B (D-6) signed by him at Point A. He was not cross-examined by any of the accused persons.
PW- Paras In the year 2006, he was posted as Assistant in 64 Nath Group Housing Branch of DDA. He went to the CBI office and handed over the Ex. PW-35/A CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 48 of 220 (D-9) and Ex. PW-20/A (D-10) to the IO. The same were seized vide Ex. PW-64/A. He identified his signatures at Point A of Ex. PW- 64/A. None of the accused persons cross-
examined him.
PW- Sh. Rajiv He was posted in RCS office as LDC, South 66 Navani Zone from March 2003 to July-August, 2004.
He used to receive files signed by Sh.
N.Diwakar (accused as RCS) and Sh. Maan Singh and he had seen them writing and signing the documents. He identified the signatures of Maan Singh at Point A-1 and signatures of Sh. N. Diwakar at Point B on Ex. PW-49/B, Ex.
PW-30/F, PW-21/Y-12, PW-9/B, Ex. PW-9/C, Ex. PW-30/D and Ex. PW-66/B. In his cross-examination, he stated that he had never dealt with the file (D-3).
PW- Sh. He was posted in the Audit Branch of the RCS 68 Kamal Office. He know the accused P.K. Thirwani who Singh was posted as Inspector, Audit Branch, Sh. J.S. Sharma, who was posted as Assistant Registrar, Audit Branch. He identified the hand-writing of the accused P.K. Thirwani on Ex. PW-24/B (page no. 83 of D-7). He identified the hand- writing of the accused P.K. Thirwani as well as his signatures at Point A on Ex. PW-24/A, Ex. PW-24/C and Ex. PW-68/A. CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 49 of 220
33. Testimony of Investigating Officers:-
Sl. Witness Evidence No. Name PW- Bodhraj He conducted the preliminary inquiry in the 67 Hans Sunny CGHS on the directions of the
Superintendent of Police namely Sh. Piyush Goel. During the course of preliminary inquiry, he collected some documents from the RCS Office relating to Sunny CGHS.
After conclusion of preliminary inquiry, he found that a prima facie case was made out against Gokul Chand Aggarwal and others.
He recommended for registration of a regular case. After receipt of documents from office of RCS, he handed over the same to Inspector S. Majumdar. He issued a receipt in this regard which is Ex. PW-67/A (D-2) signed by him at Point A. He also identified signatures of S. Majumdar at Point B on this exhibit. Those documents are exhibited as Ex. PW-66/A (D-3).
PW- Ram Kumar In the year 2006, he was posted as D.S.P in 69 Aggarwal SCR-II, CBI, New Delhi. During investigation of a case relating to Shreya CGHS, he had seized some documents relating to proposal for allotment of land to various societies by DDA. In this CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 50 of 220 connection, he had seized the files relating to Shreya CGHS from DDA as well as from RCS Office. Those documents contained documents relating to proposal for allotment of land to Sunny CGHS also. Mr. S. Majumdar, IO of the present case, approached him and seized certified copy of documents related to the present case. After taking approval from the concerned S.P., he handed over the said documents to him. The said documents are Ex. PW-35/B, Ex. PW-
35/C (10 pages) and Ex. PW-35/D (03 pages), all parts of D-34). He certified these documents as true copies of original documents seized by him from DDA office as well as office of RCS, Delhi after comparing the same. He identified his signatures as well as seal of his office on the documents at Point A-1. Production memo in this regard is Ex. PW-69/A (D-33) signed by him at Point A-1. He identified signatures of S. Majumdar on these documents at Point A. PW- Sh. C.S. In the year 2006, he was posted as Inspector 70 Prakash in CBI, EOW-1, New Delhi. During Narayanan investigation of cases related to Group Housing Societies on the asking of Sh.
Piyush Anand, then S.P., he collected documents from DDA related to the Group CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 51 of 220 Housing Society including the present society i.e. Sunny CGHS. He was investigating one of such cases related to Sartaj CGHS (RC-10E/2005/EOW-1/DLI).
He handed over those documents to the concerned IOs of the cases. He had seen documents marked 18/X (forwarding letter) and Ex. PW-18/C (list of members) (all part of D-12). These documents are parts of documents which were seized by him from DDA in December 2005. These were handed over by him to the IO of the present case namely Inspector S. Majumdar.
Handing/taking over note in this regard is Ex. PW-70/A (D-11) signed by him at Point A. He identified signatures of Inspector S. Majumdar on it at Point B. PW- P.K. In the year 2005/2006, he was posted as 71 Khanna DSP, CBI, EOW-1, New Delhi. He was the IO in case RC-9E/2005/EOW-1 related to Taj CGHS, Delhi. During searches in this case, various files of other societies including the file of Sunny CGHS were also sized by him. He deposited all those files/records in the CBI Malkhana. During investigation of this case, he authorised Inspector Naresh Sharma to conduct search in the premises belonging to the accused CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 52 of 220 Ashwani Sharma. After search, Inspector Naresh Sharma handed over him documents as mentioned in the search list i.e. Ex. PW- 62/A. PW- Shyamal The present case was marked to him in the 78 Majumdar investigation. He exhibited the FIR as Ex.
PW-78/1 (colly). He deposed that during investigation, he found that Pawan Kumar was co-brother of main accused Gokul Chand Aggarwal. After 12 years of the winding up, an application dated 21.11.2002 was moved in the name of Sh. Pawan Kumar, one self style secretary of the society for revival. On that application, the accused Gopal Singh Bisht submitted a note to the accused Maan Singh, proposing for appointment of an inspector for inspection of the society. The accused Faiz Mohamma Grade-II was appointed as Inspector, who submitted his report on 01.06.2003 to the effect that society was running properly from one address at Karol Bagh and he met the accused Gokul Chand Aggarwal and obtained necessary documents in support of his claim. He deposed that during investigation, it was revealed that 35 members were shown to have attended General Body Meeting held on 20.10.2002, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 53 of 220 however, most of these members denied attending that meeting.
Investigation further revealed that the new officer bearer of the society happened to be the relative of the main accused Gokul Chand Aggarwal and the new address of the society at Karol Bagh happens to be the residential address of Pawan Kumar Aggarwal, who denied any knowledge about running of the society from the said address. Further, the accused Gopal Singh Bisht, the then Dealing Assistant put up a letter dated 18.07.2003, addressed to the President/Secretary of the society at Nehru Place for submission of some documents.
The said letter was collected by the accused Gokul Chand Aggarwal from the RCS Office. The actual owner of the said address namely Jasbir Singh (previous secretary) sold the premises to one Pramod Ahuja, who denied receiving any such letter. He deposed that signatures of accused Gokul Chand Aggarwal on the document submitted by the society has been confirmed by GEQD.
He deposed that GEQD has confirmed that the accused Gokul Chand Aggarwal forged CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 54 of 220 the signatures of Satish Aggarwal and Pawan Kumar. Most of the new members, who were shown inducted at the time of revival of the society have denied their signatures and denied having any knowledge about the society. GEQD has confirmed that signatures of most of the newly inducted members were forged by the accused Gokul Chand Aggarwal. The signatures on the resignation letter of the old members submitted to RCS office differ from the original affidavit submitted by the old member at the time of registration of the CGHS. The RCS officials namely Gopal Singh Bisht, Maan Singh and Narayan Diwakar failed to detect that discrepancy and went on reviving the society. In addition, no new affidavits were called from the old members at the time of reviving the CGHS. The accused Narayan Diwakar revived the society vide order dated 05.09.2003.
The witness deposed that the accused Sanjeev Bharti conducted the election of society on 05.10.2003, where he had shown presence of 23 members of that society in that election including the presence of all office bearers. However, during CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 55 of 220 investigation, most of these 23 members denied attending any such election of the society. He deposed that DDA asked preference of land choice for society.
Consequently, a letter dated 09.11.2003 was submitted by the society to the DDA. The said letter was purportedly signed by one Pawan Kumar. However, actually it is found that the same was signed by the accused Naveen Kaushik by forging the signatures of Pawan Kumar. During search, some hard disks were seized and sent to CFSL. The report from CFSL revealed that most of the documents submitted to RCS for revival of the society were available in the computer seized from the office of the accused Ashwani Sharma. After completing the investigation, he filed the charge sheet against the accused persons namely Gokul Chand Aggarwal, Faiz Mohammad, Maan Singh, Narayan Diwakar, Naveen Kaushik, Gopal Singh Bisht, Ashwani Sharma, P.K. Thirwani and Sanjeev Bharti. He deposed that the document D-2 i.e. receipt memo (Ex. PW-67/A) bears his signatures at Point A. He deposed that he collected the file i.e. D-3 (Ex. PW-66/A) from Inspector Bodh Raj Hans. During his deposition, document D-4, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 56 of 220 D-5 and D-6 were shown to him and he deposed that the document D-5 was addressed to him and D-6 contains the signatures of Satya Prakash Sharma. He deposed that audit papers of Sunny CGHS was filed in the file D-7 (Ex. PW-63/A). He identified the seizure memo dated 09.05.2006 and two letters dated 15.12.2003 and 09.11.2003 as Ex. PW-35/A and Ex. PW-
20/A respectively. He identified D-11 (Ex. PW-70/A) and the list of members (D-12) (Ex. PW-18/C). He identified signatures on seizure memo on Ex. PW-78/2 (objected by the accused on the mode of proof). He identified his signatures on Ex. PW-13/B at Point B. He exhibited the petition for taking over the documents filed before the Special Judge, CBI, Patiala House Courts as Ex. PW- 78/3. He also exhibited documents from page no. 1 to 28 (D-17) as Ex. PW-78/4 collectively. He identified his signatures on Annexure-1, Anneuxre-2 and Annexure-3 on Ex. PW-76/1A and Ex. PW-76/2A. He also identified the signatures of the then S.P. Sh. D.K. Chaoudhary. He deposed that specimen signatures/handwriting of the accused Gokul Chand Aggarwal were taken in his presence as well as in presence of the independent CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 57 of 220 witnesses. He identified his signatures on each page at Point XY on Ex. PW-78/5. He exhibited the file containing specimen signatures/handwriting of Pawan Kumar, Vijay Arora, Sandeep Sharma, accused Gopal Sing Bisht, accused Maan Singh, accused Prahlad Kumar Thirwani, accused Ashwani Sharma, accused Naveen Kaushik, Hitesh Gupta as Ex. PW-78/6. He identified his signatures on each page of this file at Points XY. He identified his signatures on Ex. PW-69/B on D-33. He exhibited the certified copies of photocopies of the cheque of ABN Amro Bank as Ex. PW-78/8, first premium receipt as Ex PW-78/9, minutes of meeting of Board of Directors of M/s Purnia Project as Ex. PW-78/10, list of directors of M/s Purnia Project Pvt. Ltd as Ex. PW-
78/11, memorandum of association of M/s Purnia Project as Ex. PW-78/12, certificate of incorporation of M/s Purnia Project Pvt. Ltd. as Ex. PW-78/13 and check list of current account opening as Ex. PW-78/14. He exhibited the seizure memo as Ex. PW-
78/15. He exhibited the certified copy of Pan Card of Gokul Aggarwal as Ex. PW-78/18.
He deposed that a letter dated 26.06.2006 (D-47) was issued by Assistant Registrar, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 58 of 220 South (already Ex. PW-32/A) vide which RCS intimated that original election report dated 10.10.2003 submitted by Sh. Sanjeev Bjarti, Election Officer was not available and photocopy of the same was handed over. He deposed that during investigation, he collected D-48 from RCS Office. The witness exhibited D-49 as Ex. PW-78/23. He deposed that search warrant was prepared for the search of office premises of accused Ashwani Kumar at 227-6, Pocket-A, Mayur Vihar, Phase-2, Delhi and a hard disk was seized during that search. The same was sent to GEQD, Shimla and the said hard disk is kept in the case file of RC-4 (E) 2006-EOU- VII/New Delhi. During the investigation, he recorded the statement of witnesses and got the sanction for prosecution of the accused Gopal Singh Bisht, P.K. Thirwani and Sanjeev Bharti.
34. Witness of specimen signatures/writings:-
Sl. Witness Evidence No. Name PW- Veer He served in Bank of India as Senior
38 Narayan Manager. He retired in the year 2009. He CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 59 of 220 Tyagi went to CBI office and IO took specimen signature of one person before him. Due to lapse of time, he can not remember the name of the said person. During his deposition, he saw Ex. PW-38/A from page no. S-27 to S-
365 of D-25 to D-32. He identified specimen signatures of that person, who had signed before him and the IO of the case. He verified those signatures having taken before him. He identified his signatures at Point A and seal at Point B. He stated that no other bank official was present at that time. He deposed that he knew Sh. G.S. Panchpal. He was the officer in his branch. He was also present and witnessed specimen signatures of said person taken by the IO.
PW- Om Prakash He was attached to CBI to provide 39 Dahiya communication relating to smuggled goods including drugs. He saw Ex. PW-39/A (S-20 to S-26) (part of D-24) (specimen handwriting/signatures of Sh. Pawan Kumar). He deposed that specimen hand-
writing and signatures of some persons were taken by the IO before him. He identified his signatures on the exhibits at Point A. PW- Vishwa He deposed that in the year 2006, he was 40 Mitter posted as Administrative Officer in the RCS, Bhagi Delhi. He went to office of CBI on being CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 60 of 220 asked by the Duty Officer of CBI over phone. He met an officer of CBI, who introduced himself as IO of this case. He deposed that 3-4 accused persons were also present there. The said accused persons gave their specimen signatures before him voluntarily. He identified Ex. PW-40/A (S- 520 to S-528 and S-581 to S-586 in D-29).
These are the specimen hand-writings of one of the accused present there. He pointed towards the accused P.K. Thirwani, who gave his specimen signatures as stated above. He appended his signatures on the said documents at Points A. The said accused also appended his signatures below his specimen signatures and hand-writing at Point B. He also identified Ex. PW-40/B (S-529 to S- 580 in D-30). These are the specimen hand- writing/signatures of one of the accused present there and pointed towards the accused Ashwani Sharma, who gave his specimen signatures as stated above. He appended his signatures on the said documents at Point A. The said accused also appended his signatures at Point B. CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 61 of 220 He also identified the Ex. PW-40/C (S-587 to S-628 in D-31). These are the specimen hand-writing/signatures of one of the accused present there, whom he can not identify today. He appended his signatures on the said documents at Point A. The said accused also appended his signatures below his specimen signatures/handwriting at Point B. In his cross-examination, he deposed that both accused persons wrote words (specimen handwriting) as dictated by the IO. Dictation was given by the IO to each of the accused persons separately. After specimen hand- writing was given by each of the accused, the same was signed by the accused, then by him and lastly by the IO. None else signed at the document in his presence. Subsequently, he deposed that signatures on Point C on document Ex. PW-40/B (encircled) were made by Sh. Puniyani before him. He deposed that Mr. Puniyani was also employed in the RCS office in the Audit Branch and was present at the time when the said accused gave his specimen signatures.
He denied the suggestion that he did not CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 62 of 220 visit the CBI office and the accused persons were not present there. He denied the suggestion that the accused Naveen Kaushik did not give his specimen signatures/handwriting in his presence and hence, he could not identify him today in the court.
PW- Sunil In the year 2006, Senior Account Officer 41 Kumar asked him to go to the CBI office. He went to the CBI office situated in the same building. He met an officer of CBI, who introduced himself as the IO of this case. Some persons including one person namely Gopal Singh Bisht were present there. Said Gopal Singh Bisht signed and wrote on some blank papers voluntarily several times in his presence. Said handwriting/specimen signatures are Ex. PW-41/A (S-490 to S-509 in D-27). He can not identify said Sh. Gopal Singh Bisht in the court today. Said Gopal Singh Bisht appended his signatures below his specimen signatures/handwriting at Point B. He signed the same at Point A. In his cross-examination, he stated that due to lapse of long time, he can not recognize Gopal Singh Bisht in the court.
PW- Ganga In the year 2005-2006, he was posted in CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 63 of 220 44 Singh Bank of Inida, Khan Market Branch, New Panchpal Delhi. One day in the year 2005, he went to the CBI Office to join the investigation of this case. The CBI officer took speciment signatures of some persons before him. Due to lapse of long time, he can not remember as to how many persons gave their specimen signatures or what were their names. He saw Ex. PW-38/A (page no. S-27 to S-365 of D-
23 to D-32A). He identified his signatures on these documents at Point X. He appended his signatures on the said documents after the concerned person gave his specimen signatures.
PW- Yashpal In the year 2006, he was posted at Tehsildar, 72 Singh Kapashera, New Delhi. On that day, in March 2006, he went to the CBI Office. IO took specimen signatures/handwriting of a person before him. Name of that person, he can not remember. He saw the document Ex.
PW-72/A (S-478 to S-484) (07 pages). These are the same specimen signatures/handwriting, which were given by that person before him. He attested the same at Point A by signing and putting his seal impression.
PW- S.K. In the year 2006, he was posted as 73 Punhani Stenographer in CBI, EOW on diverted CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 64 of 220 capacity. He was drawing salary from Social Welfare Department, Govt. of NCT, Delhi for 03 years from 2005 to 2008. He went to CBI office several times, where he witnessed several persons giving their specimen signatures/handwritings about Group Housing Societies. He saw documents Ex.
PW-40/A (S-520 to S-586), Ex. PW-40/B (S- 529 to S-580) and Ex. PW-40/C (S-587 to S-
628). These specimen signatures were given before him, but he do not remember the name of the persons who gave the specimen signatures. He identified his signatures on these documents at Point C. In his cross-examination, he deposed that the accused persons put their specimen signatures before him and then he signed. There remained none else then the person concerned, he and the IO at the time of giving specimen signatures. Sometimes, IO gave person concerned a written document to the accused for reproduction of the writing and sometimes, he dictated the person concerned/accused to write some words. He did not verify the identify of the concerned persons. He further deposed that at the top of the paper, which was otherwise blank, the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 65 of 220 name, parentage and addressed of the person concerned remained written.
35. Sanctioning Witnesses:-
Sl. Name of Evidence No. the Witness PW- Vijay He deposed that in the year 2006, he was 37 Kumar posted as Director of Education, GNCTD,
Delhi. A letter of request was received from CBI through Directorate, Vigilance, GNCTD alongwith documents including statements of the witnesses. On that request of CBI, he granted sanction to prosecute the accused Sanjeev Bharti. Before granting the sanction, he perused those documents provided by the CBI. Sh. Sanjeev Bharti was posted as the stenographer in the Directorate of Education. Being Director of Education, he had the power to remove said official from his job and hence, was the competent authority to grant sanction to prosecute him. His order in this regard is Ex. PW-37/A signed by him at Point A. In his cross-examination, he stated that he did not call for any explanation from the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 66 of 220 accused Sanjeev Bharti before granting sanction against him. He stated that copy of charge sheet filed in this case was not sent to him by the CBI. He stated that he can not say if documents relating to elections of Sunny CGHS were included in the documents provided to him. He denied the suggestion that he did not apply his mind before granting sanction to prosecute the accused.
PW- Ramesh In the year 2006, he was serving as the Chief 42 Narayan Secretary, GNCTD. On an application of swami CBI, he granted sanction to prosecute the accused P.K. Thirwani and Gopal Singh Bisht. Sh. P.K. Thirwani was serving as Superintendent in the Education Department of Govt. of NCT, Delhi while Sh. Gopal Singh Bisht was employed as U.D.C in Directorate of SC/ST & OBC, GNCTD. CBI provided him documents including statement of witnesses recorded by the IO and the report given by Superintendent of Police, CBI. He perused all those documents before granting sanction. Orders passed by him in this regard are Ex. PW-42/A (about P.K. Thirwani) and Ex. PW-42/B (regarding Gopal Singh Bisht). Both the orders were signed by him at Point A on each page. The CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 67 of 220 seal of his office was affixed on both of these orders at Point B. Being the Chief Secretary of Delhi, he was the competent authority to remove both of the said officials from their job and hence had power to grant sanction to prosecute them.
In his cross-examination, he denied he suggestion that he did not receive any document from CBI. He stated that he did not seek any opinion about his powers to grant sanction. He denied the suggestion that he did not apply his mind before granting sanction or he had simply signed the draft order prepared by CBI. He denied the suggestion that he did not go through the statement of witnesses and other documents before granting the sanction.
36. Seizure Witnesses:-
Sl. Name of Evidence No. Witness PW- Dinesh He joined Canara Bank on 27.03.1978 and
62 Kumar retired on 30.04.2015. in the year 2005, he Nijhawan was posted in Kamla Nagar Branch in that bank. On 31.07.2005, on being directed by CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 68 of 220 his Senior Manager, he alongwith Sh.
Ravinder Bansal, an officer of the bank went to CBI office. Some other persons met him there. He alongwith those persons went to a house at Mayur Vihar, Phase- 2 nd. One Ashwani Sharma stated to be the owner of the said house met them there. He identified the accused in the court. The witness deposed that the IO seized several files and hard disks from that house. He alongwith Sh. Ravinder Bansal signed those documents. They both alongwith CBI officials returned to the CBI office. Those files and other documents were seized and taken away by the CBI officials. During his testimony, he saw Ex. PW-62/A (D-53) (copy of seizure memo) (objected to by the accused persons stating that the said document is photocopy and not original). He identified his signatures on it at Point A. He identified signatures of Sh. Ravinder Bansal on this document at Point B. Sh. Ravinder Bansal signed the said document in his presence. He can identify the signatures of Ravinder Bansal as he had seen him writing and signing document in his official capacity in the bank.
In his cross-examination, he stated that at about 06:00 AM, they left the CBI Office. At CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 69 of 220 about 10:00AM, the CBI officials started searching the house. The raid continued till 06:30 to 07:00 P.M. The seizure memo Ex.
PW-62/A was already filled up when he signed the same. He identified his signatures on the documents i.e. Ex. PW-62/DA annexed with seizure memo Ex. PW-62/A. He stated that he signed each page of all those documents, which were seized by CBI on that day. He stated that CBI seized 5 or 6 hard disks from that house apart from files.
37. Bank Witnesses:-
Sl. Name of Deposition
No. Witness
PW- Ram Dass He was posted as Senior Manager,
74 Gambhir Corporation United Bank of India in the year
2004. CBI came to him and seized some
documents pertaining to the present society i.e. Sunny CGHS. He exhibited document from Ex. PW-74/1 to Ex. PW-74/6 (page no.
1 to 45 of D-46). He stated that said documents were certified by him after comparing with the original. He identified his signatures at Point A on this document and also identified the seal of the United Bank of India. He also exhibited the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 70 of 220 documents from page no. 44 to 61 of D-36 as Ex. PW-74/8, Ex. PW-74/9, Ex. PW-74/10 and Ex. PW-74/11. He identified his signatures on these certified true copies and the seal of the bank.
He was not cross-examined by any of the accused persons.
PW- Vinay In the year 2006, he was posted as Branch 75 Gupta Manager with ICICI Bank, Rohini. He retrieved the documents pertaining to Sunny CGHS and handed over the same to CBI. He exhibited the documents of D-45, D-37, D- 38, D-43 and D-44 as Ex. PW-75/1 to PW-
75/20. He identified his signatures at Point A as well as the seal of the bank.
He was not cross-examined by any of the accused persons.
38. Evidence of Forensic Expert:-
Sl. Name of the Deposition No. Witness PW- M.C. Joshi He was the Deputy Director and Scientist 76 (GEQD), CFSL, Chandigarh. He deposed
that he appeared as an expert in various court CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 71 of 220 cases. The documents of this case were submitted to scientific examination vide Ex. PW-76/1 (D-18) and Ex. PW-76/2 (D-19), annexures of letter Ex. PW-76/1 are Ex. PW- 76/1A (18 pages collectively) and annexures of letter Ex. PW-76/2 are Ex. PW-76/2A (11 pages collectively). The details of standard writing/signatures which were received from CBI are as under:-
i) Specimen Signatures/Writing purported to be of Gokul Chand Aggarwal Ex. PW-76/3 (D-23) (S-1 to S-19), Ex. PW-38/A (S-27 to S-45), Ex. PW-76/4 (S-54 to S-129), Ex.
PW-76/5 (S-137 to S-212), Ex. PW-76/6 (S- 232 to S-263), Ex. PW-76/7 (S-271 to S-
365);
ii) Specimen Signatures/writing purported to be of Pawan Kumar Ex. PW-39/A (S-20 to S-26);
iii) Specimen signatures/writing purported to be of Sh. Sandeep Sharma i.e. Ex. PW-72/A (S-478 to S-484) (D-26);
iv) Specimen signature/writing purported to be of Gopal Singh Bisht (Ex. PW-41/A) (S-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 72 of 220490 to S-509) (D-27);
v) Specimen signatures/writing purported to be of Sh. Maan Singh (Ex. PW-76/8) (S-510 to S-519) (D-28);
vi) Specimen signatures/writing purported to be of Sh. P.K. Thirwani (Ex. PW-40/A) (S-
520 to S-528), Ex. PW-76/9 (S-581 to S-
586);
vii) Specimen signatures/writing purported to be of Sh. Ashwani Sharma (Ex. PW-40/B) (S-529 to S-580) (D-30);
viii) Specimen signatures/writing purported to be of Sh. Naveen Kaushik i.e. Ex. PW-
40/C (S-587 to S-628) (D-31);
ix) Specimen signatures/writing purported to be of Sh. Hitesh Gupta i.e. Ex. PW-52/D (S-485 to S-589) (D-32);
x) Specimen signatures/writing purported to be of Sh. Vijay Arora i.e. Ex. PW-36/F (S-
130 to S-136) (D-25).
He deposed that the questioned documents were marked as Q-1 i.e. Ex. PW-9/C (Page CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 73 of 220 No. 323, Q-2 to Q-252) and some marking (page No. 123 to 324) (D-3), Q-261 to Q-
262 (page no. 38), Q-263 (page no.5), Q-479 (D-10) i.e. Ex. PW-20/E, Q-480 to Q-482 (page no. 20), Q-483 to Q-484 (page no. 22), Q-485 and Q-486 (page no. 23), Q-487 to Q-
488 (page no. 24), Q-489 and Q-490 (page no. 25), Q-491 (page no. 26), Q-492 (page no. 27) and Q-493 (page no. 28). He also identified the exhibits PW-9/D and Ex PW- 24/B. He identified seal on these documents at Point A-1. After careful and thorough scientific examination, he gave his report as Ex. PW-76/10 (D-21) signed by him at Point A. He also identified signatures of Sh. I.K. Arora at Point B. He deposed that he worked with late Sh. I.K. Arora and therefore, he could identify his writing and signatures. He deposed that he and Mr. I.K. Arora examined same documents and arrived at the same conclusion. His reasons for his opinion are Ex. PW-76/11 (D-21) signed by him at Point A. He also gave the supplementary opinion which is Ex. PW-76/12 (D-20). He identified signatures of Sh. I.K. Arora on these sheet at Point-B. He submitted his detailed reasons for the opinion and the same are Ex. PW-
76/13 (D-20). He sent his opinion and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 74 of 220 reasons to CBI vide letters Ex. PW-76/14 (D-21) and Ex. PW-76/15 (D-20).
During his cross-examination, he explained that he sub-marked one of the questioned document as Q-479/1 and opined accordingly. He deposed that he prepared rough note and work sheets to arrive to his conclusion. He denied the suggestion that he did not examine each and every question and specimen writing for his opinion and also denied the suggestion that reasons given by him are incomplete and insufficient enabling any person to come to the same conclusion. PW- N.C. Sood He worked as a Government Examiner of 77 Questioned Documents in Shimla from 15.09.1969 till 31.10.2008 in various capacities. He was the director of GEQD, Shimla when the present case was referred there. He deposed that the present case was given number CXCFD-342/06. The present case was marked to Late Sh. I.S. Rao, the then Assistant, GEQD. After examining, Sh. I.S. Rao submitted his report. The same is Ex. PW-77/2 (objected to the mode of proof). He identified signatures of Late Sh. I.S. Rao on the report at Point A on each page as he had seen him writing and signing CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 75 of 220 during the official course of his duties. The report i.e. Ex. PW-77/2 was forwarded to S.P., CBI by him vide letter i.e. Ex. PW-
77/3. He deposed that the reference of hard disk has been mentioned in the report i.e. Ex. PW-77/2 as well as in the annexures at several places. The hard disk was sent to the laboratory for examination and same is now Ex. PW-77/A1 (objected to the mode of proof).
In his cross-examination he stated that he did not remember, if he had forwarded a Certificate under Section 65 of Indian Evidence Act to CBI alongwith the report. He deposed that he did not know whether his laboratory had any authorisation under Section 79-A of the Information Technology Act, 2000. He stated that the hard disk was submitted in Case No. 297/05 and the image of the same was used in this case for examination. He deposed that the hard disk was sent to CBI and was not sent to the laboratory at Hyderabad. He deposed that he did not know as to how many image copies were prepared of the content of the hard disk and what was the capacity in GB of the hard disk used for preparing the images.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 76 of 22039. Evidence of Notary Public :-
Sl. Name of Deposition No. Witness PW- Chander He was Advocate by profession and was 17 Bhan Arya government appointed Notary Public since
20.04.1992 till 2006. He deposed that he could identify the seal impression of his original seal. During his deposition, he saw the affidavit at running page no. 312/C (D-
3). The said affidavit is shown to be attested in the name of Sh. Pawan Kumar, Secretary, Sunny CGHS. He identified the seal impression appearing at Point X to be his seal, however, he stated that he had not affixed the said seal on this affidavit. He stated that he can not say as to who had misused his seal. He further stated that seal impression appearing at Point Y is not his seal as he was Notary Public sitting at Parliament Street New Delhi and his original seal used to have impression of "New Delhi", not "Delhi". In the seal impression affixed at Point Y, there is only expression of 'Delhi'. He stated that at Point Z also, the seal impression does not pertain to him as the same impression does not bear his proper CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 77 of 220 address. His original seal had his proper address as 'Parliament Street Court Compound New Delhi'. He stated that initial appearing at Point-A in the seal impression Y, is not his initial as he had not attested the said affidavit and also did not know who was Pawan Kumar. He exhibited the said affidavit as Ex. PW-17/A. Similarly, he denied his seal at Point Y, Z and his initial on the affidavit placed at Page No. 310/C (D-3) purportedly given by the accused Gokul Chand Aggarwal. The affidavit is exhibited as Ex. PW-17/C.
40. Evidence of owner of Shop No. 104, Raja House, Nehru Place:-
Sl. Name of Deposition
No. Witness
PW- Pramod He purchased the Shop No. 104, Raja House,
22 Ahuja New Delhi in the year 1997-98 from one Mr.
Jagbir Singh. He was doing business of
computers only and no society was running at the said address since the year he had purchased the said shop. He deposed that he had never authorised any person to use the said address for the purpose of society. No CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 78 of 220 meeting of Sunny CGHS was held at 104, Raja House, Nehru Place, New Delhi. He deposed that he did not know about the present society and no person from the office of Registrar Cooperative Society had ever visited his shop at Raja House for any inspection whatsoever.
After seeing the letter at running page no. 123/C to 124/C (D-3) for cancellation of winding up order of the present society, he stated that no such society was functioning from his shop in the year 2002. He saw the order dated 20.05.2003 placed in the file D-3 at page No. 125/C and stated that he had never received any such order. He also saw the inspection report dated 01.06.2003 placed in the file D-3 from page no. 134/C to 133/C and stated that the said Inspector Faiz Mohammad had never visited his shop i.e. 104, Raja House, 313 Nehru Place, Delhi.
He stated that no officials from the Registrar, Cooperative Society including Faiz Mohammad had ever visited his shop at 104, Raja House nor did make any inquiries regarding the present society. In his cross- examination, he had stated that he had another shop at 109, Dipali Building, Nehru CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 79 of 220 Place. He further stated that had Faiz Mohammad come in his absence at his shop, he would have come to know about it. He stated that after purchase of said shop from Jasbir Singh, he did not meet him again.
Statement of accused Persons under Section 313 Cr.P.C:-
41. Statement of Accused Gopal Singh Bisht:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He admitted that Sh. Narayan Diwakar was posted as Registrar in the RCS Office. Sh. Maan Singh was posted as Assistant Registrar South and he was the Dealing Assistant. He stated that the investigation was faulty and biased. He was not named in the FIR. However, he was falsely implicated. He had performed all his work diligently as LDC/Dealing Assistant. There is no evidence of any pecuniary advantage having been obtained in this case.
41.1. Statement of Accused Ashwani Sharma:- In his statement, he stated that investigation was biased and faulty. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that the expert opinion i.e. Ex. PW-76/10 is incorrect as reasons are improper and are in contradiction to the settled preposition of law. He stated that the documents annexed with the expert report are not admissible as the same are not accompanied by certificate under Section 65-B of Evidence Act.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 80 of 220He stated that hard disk was manipulated and tampered. The entire chain of custody in respect of said hard disk has not been proved during trial as the possibility of tampering the same can not be ruled out.
41.2. Statement of Accused P. K. Thirwani:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that he conducted the audit after revival of the society in good faith as per the documents/reports produced by the society. He stated that he pointed out deficiencies in his report and thereafter, it was the duty of the concerned zone to take the necessary steps to get compliance from the society. He stated that he did not violate any rules of Delhi Cooperative Society Act/Rules/Directives to favour anyone. He stated that his audit report has no bearing on the revival order and it was the duty of the society to furnish correct information and documents. He further stated that sanction under Section 19 of P.C Act was obtained in a mechanical manner and therefore, the same can not be relied upon. He further stated that in absence of sanction under Section 197 of Cr.P.C against him, he can not be prosecuted.
41.3. Statement of Accused Sanjeev Bharti:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that he was not named in the FIR and was falsely implicated. He had never dealt with the file relating to registration of society, winding up of the society and revival of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 81 of 220 the society. He stated that photocopies of the documents (D-48) do not pertain to him. He stated that PW-30 has deposed incorrectly as signatures and writings identified by PW-30 do not pertain to him. Only the photocopies of documents were put to her during her deposition and she has deposed contrary to her examination in chief. To the testimony of PW-32, he stated that these are only photocopies, the original of which were not available and not produced during trial. Signing of said photocopies without the availability of the original documents do not make the documents admissible in evidence. He stated that the said documents do not pertain to him. He stated that there is no legally admissible incriminating evidence against him in this case. He stated that there is no admissible evidence on record to connect him to the questioned documents i.e. election report Ex. PW-30/A (without any dispatch number), proceedings Ex. PW- 30/B and list of contesting witnesses, Ex. PW-30/C are placed at D-48. There is no GEQD opinion of the questioned documents. The said documents produced during trial are photocopies which can not be read in evidence in absence of original documents. The questioned documents do not pertain to him.
41.4 Statement of Accused Gokul Chand Aggarwal:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He admitted that Pawan Kumar was his relative. He stated that he is innocent and the investigation conducted by the Investigating Officer is perfunctory, partial and improper. He stated that he did not give any specimen signature/writing in this CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 82 of 220 case and the investigation officer has manipulated and fabricated the alleged specimen signature in order to falsely implicate him in this case.
41.5 Statement of Accused Faiz Mohammad:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that the inspection report and the contents thereof are matter of record. He stated that there is no evidence of any criminality against him. No incriminating material has been recovered from his possession. No sanction has been obtained under Section 197 Cr.P.C by the CBI.
41.6. Statement of Accused Narayan Diwakar:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that the liquidation proceedings of the present society were never finalized and therefore, by operation of law (Rule 105 of DCS Rules, 1973) the winding up proceedings stood automatically terminated after three years (maximum period). As per Rule 105 of DCR Rules, 1973, there is a provision of deemed termination of winding up proceedings (maximum 03 years). After termination of the winding up order, the registrar is bound down to pass winding up order in view of judgment of Division Bench of the Hon'ble Delhi High Court (Vikas CGHS Vs RCS Etc.). He complied with the said order of the Hon'ble Delhi High Court. Further, cancelling of winding up order of society had nothing to do with the availability or CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 83 of 220 verification of the report. The only aspect that was to be taken into account was the provision of Rule 105 of DCS Rules, 1973. Therefore, the act performed by him were done in absolute good faith taking all the necessary steps as provided under the Rule. Further, he raised the issue of sanction under Section 197 Cr.P.C. He further stated that he launched a website of RCS Office, wherein 10 lakh data was uploaded pertaining to about 5000 cooperative societies including the group housing societies with details of management committees of all societies, particulars of individual members, elections and audit position. Therefore, all acts were being done in a transparent manner and there was no scope for any conspiracy with regard to revival of the society.
41.7. Statement of Accused Naveen Kaushik:- In his statement, he stated that investigation was biased and shoddy. In most of the questions, he showed his ignorance by stating, 'I do not know'. He stated that he is innocent. He did not give any specimen signature/handwriting and the investigating officer has manipulated and fabricated the alleged specimen signatures/handwriting sheets in order to implicate him.
Defence Evidence:-
42. DW-1 was the Assistant Ahlmad from the court of Ld. Special Judge, PC Act, CBI-16, Rouse Avenue Courts, Delhi. He placed on record the certified copies of file pertaining to grant of prosecution sanction against the accused Sanjeev Bharti as Ex. DW-1/A (colly) (OSR).
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 84 of 22042.1. DW-2 namely Sh. Yogesh Aggarwal, Assistant Section Officer, Vigilance Branch, Directorate of Education, Govt. of NCT of Delhi. He produced the file relating to grant of sanction for prosecution of the accused Sanjeev Bharti. He stated that the file bearing No. CC-120/2019 (CBI Vs Baljeet Singh and Ors.) also contained documents relating to grant of sanction for prosecution against the accused Sanjeev Bharti in Sunny CGHS Ltd. He stated that no other document relating to grant of sanction for prosecution of the accused Sanjeev Bharti in Sunny CGHS is available in his office.
42.2. DW-3 deposed that he joined RCS office in April 2003 as a System Analyst. He was assigned the work of supervising the computerisation work, website maintenance and hardware networking of the RCS Office. The website was launched in February 2003. At that time, Sh. Narayan Diwakar was the registrar of Cooperative Societies, Delhi. In the website of RCS, all the data relating to status of society, current address, management committee list, list of members etc were uploaded. There were several data entry operators also at the branch level who were assigned the work of feeding the data of the society. The launch of website of the RCS Office was also given publicity by way of distribution of pamplates as well as by publishing the same in different leading newspapers at that time. The office of RCS was one of the first office to complete the computerisation work and feeding the data in the website. As such, a letter of appreciation was also given by the Delhi Government to RCS Sh.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 85 of 220Narayan Diwakar. He deposed that every Friday, meeting used to be held in the RCS office and in case of any deficiency in updation of data, the same was used to be brought by him to the notice of Registrar, who used to direct the Assistant Registrars to do the completion of work relating to data updation. The website was interactive in nature. There was also helpline for public grievances, if any and there used to be also provision for raising any queries or grievances in the website.
Arguments on behalf of the Accused Persons:-
43. All the accused persons filed their written submissions in their defence. Their respective written submissions in brief are mentioned here as under:-
43.1 Written Submissions of Gokul Chand Aggarwal (A-
1):-
He did not fabricate/forge any document CBI failed to prove that the applicant was the custodian of record/document of Sunny CGHS;
He did not meet the inspecting officer; The inspecting officer had never visited the address at Karol Bagh;
He was not the custodian of documents of Sunny CGHS; No loss was caused to the government as no land was allotted to the society;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 86 of 220
43.2. Written Submissions of Accused Faiz Mohammad (A-2):-
The inspection report under Section 54, DCS Act was not the pre-requisite for revival of the society. No RCS official stated in the court adversely against him. The revival order was passed mainly for the reason that liquidation proceedingscould not be concluded against the society;
No order/award passed under DCS Act can be questioned in any court on any ground whatsoever as per section 93 (3) DCS Act, therefore, this court has no jurisdiction to proceed with the present case;
As per section 95 of DCS Act, no suit, prosecution or other legal proceedings shall lie against the Registrar or it staff in respect of anything done in good faith or purporting to have been done under this act;
There is no allegation against him that he violated any provisions of DCS Act or rules or any other directive of the government;
No loss was caused to government as no land was allotted to the society;
Nothing incriminating has been recovered from the house search of accused;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 87 of 220
No sanction under Section 197 Cr.P.C for IPC offences has been taken by the CBI, DCS Act is special act, containing offences and penalties and therefore, the accused can not be prosecuted for IPC and PC Act offences;
43.3 Written Submissions of Accused Narayan Diwakar (A-4):-
The register of list of members kept by the society shall be the prima facie evidence of enrollment and resignation. Therefore, no malafide can be attached to the RCS, if he accepts the register of list of members kept by the society;
It is the responsibility of the society to submit correct records and to submit the true information and the DCS Act and Rules provide for the punishment if forged or incorrect report is filed by the society. The verification is done by the RCS office only to ensure that the copies submitted by the society are the true copies of the original maintained with them and further registers are perused to see that things are in order or not as claimed by the society;
Receipts of documents and verification of record are done at the zonal level and not by the Registrar personally. Examination at micro level is done at the zonal level and at CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 88 of 220 the level of Registrar, things are seen at macro level only.
It is also a matter of record that there was no adverse noting from the subordinates which if ignored could have raised some doubt. In -fact, after verification from the zone, it was specifically stated in the noting that the original records have been called for verification and same were checked and found in order as per the provision of DCS Act and Rules.
The registrar cooperative societies was functioning as a quasi-judicial authority with powers like a civil court;
The registrar quasi-judicial proceedings involves the power of ordinary civil courts and it even exercises inherent jurisdiction of courts mentioned under Section 151 CPC;
No limitation can be read for entertaining a request for revival of the application by the RCS. The Section 63 (3) of DCS Act gives discretion to the registrar to cancel an order for winding up of a cooperative society at any time, in any case where, in his opinion the society should continue to exist;
As per section 93 (3) of DCS Act, the decision passed by the Registrar can not be questioned in any court of law. The order of revival dated 05.09.2003 was a reasoned order as the RCS was of the opinion that society should continue to existand accordingly, he cancelled the winding up order;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 89 of 220
The present society was never liquidate, therefore, the winding up order had become a nullity by virtue of Rule 105 of DCS Rules, 1973 as any liquidation proceedings are required to be completed within a span of 03 years at the maximum otherwise, the same becomes a nullity. Therefore, the Registrar was required to pass an order for revival of society;
No evidence of conspiracy or of personal gain or interest has been produced by the prosecution;
Requisite guilty, intent and knowledge thereof is to be proved by the prosecution through credible evidence and they can not take the refuge of assumption, presumption and suspicion;
The accused being the registrar at the relevant time was duty bound to entertain the application filed before him. Mere allowing the application of the society does not imply that he was influenced by any corrupt practice. His order was an appealable order, and it was never set aside by any appellate court of competent jurisdiction;
The CBI can not sit in appeal against the order passed by the RCS and to dictate as to how the same should have been passed in any case;
The CBI is trying to find out the short-comings in the revival order without an iota of evidence on record to show that CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 90 of 220 the accused had obtained any personal gain for passing the revival order;
The accused had got all the records of the RCS office digitalized by launching the official website of the RCS. His work was duly acknowledged by the Delhi Government and letter of appreciation was also given to him by the Chief Secretary;
No ingredient of offence under Section 13(1)(d) of the PC Act, 1988 has been established by the prosecution. The act of public servant is bound to give benefit to one person or the other, so mere accrual of benefit to some third person by the accused can not be a litmus test to determine the ingredient 'obtainment of valuable thing' within the section 13 (1) (d) of the PC Act;
No sanction under Section 197 Cr.P.C was obtained against the accused Narayan Diwakar and in absence of sanction under Section 197 Cr.P.C, the trial has been vitiated;
The alleged act had the direct nexus with the discharge of his official functions and thus sanction under Section 197 Cr.P.C from the appropriate government was mandatory;
Mere error of judgment or over looking of some facts or even negligence does not amount to culpability ;
It is a settled preposition of law that in case of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 91 of 220 circumstantial evidence, the chain of evidence proved should be of such a nature that it does not give space to anyother hypothesis, but only to the guilt of the accused. Allegations against the present accused are vague in nature. From the mere circumstances that he had dealt with the file and passed a quasi- judicial order during discharge of his official function, no conclusion can be drawn that he was the party of criminal conspiracy;
The suspicion however alluring and strong can not take a strong proof and the prosecution is required to prove the guilt of the accused beyond the reasonable doubt.
43.4 Written Submissions filed by the Accused Naveen Kaushik (A-5) :-
The deposition PW-40 is contradictory when it is seen in the light of alleged specimen signatures/writing sheets;
The documents relied against the accused are manipulated. The witnesses have deposed contradictory versions. The whole investigation is shoddy, inconclusive and unfruitful. The expert witness PW-76 can not be termed as an expert witness and therefore it is to be discarded;
The testimony of PW-40 is not reliable and he has failed to prove as to how the proceedings of taking of specimen handwriting and signatures took place;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 92 of 220
The PW-40 contradicted himself as he said that three or four accused persons were present there, whereas the alleged sheets of specimen signatures show different dates of taking specimen signatures of accused P.K.Thirwani, Ashwani Sharma and Naveen Kaushik.
The evidence of the PW-23 is unreliable as he had contradicted himself. At one place, he stated that at the time of taking specimen signatures, the concerned person, he and IO, were only present. However, at the other place, he stated that there was none in the room except the IO and three-four accused persons.
It is stated that the testimony of expert witness i.e. PW-76 is unreliable as his report is improper and is in contradiction to the settled preposition of law. The reason given by PW-76 to support his opinion are incomplete/inadequate to enable its own opinion and hence, his report as well as reason given by him fall short of report of an expert as per provision of Sec.45 of Indian Evidence Act;
The testimony of IO shows that he did not conduct any search at the premises of Ashwani Sharma;
After analysing all the evidence with regard to the accused, there is nothing substantial coming across from the prosecution case to implicate him in the present case.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 93 of 220
43.5. Written Submissions filed by the Accused Gopal Singh Bisht (A-6):-
It is submitted that he verified the documents from the originals produced by the President of the Society and he had no mechanism to verify that the originals produced by the President of the Society were forged or not;
His act of putting a file before his Senior for revival of the Society is protected under Sec. 93 (3) of DCS Act, 1972;
He did not take the final decision of revival of Society. His duty was only to put forward the relevant facts based upon the documents produced before him before the competent authority and the final decision to be taken by the competent authority in the quasi-judicial proceedings;
No evidence of conspiracy of personal gain or interest has been produced by the prosecution against the accused. There is no evidence on record that the present accused has any knowledge of the forged records of the society;
It is argued that requisite guilty intent and knowledge needs to be proved by the prosecution through credible evidence and they cannot take the refuge of assumption, presumption or suspicion;
It is argued that he had performed all his work diligently as CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 94 of 220 LDC/Dealing Assistant. There is no evidence of any pecuniary advantage having been obtained in this case;
43.6. Written Submissions filed by the Accused Ashwani Sharma (A-7):-
Alleged search list i.e. Ex.PW62/A is a photocopy which is not admissible in law. The annexure of alleged search i.e. Ex.PW62/DA is also a photocopy and the same cannot be read in evidence. Further, the witness of search i.e. PW-62 has given contradictory version regarding the timing of search.
There is no compliance of Sec. 165 Cr.P.C. specially sub sec.5 of Sec. 165 Cr.P.C. The alleged articles seized from the premises of accused were not produced before the Court and permission to retain the same was not obtained by the CBI. Thus, non-compliance of Sec.165(5) creates suspicion on the entire search and the same needs to be looked into with caution;
No certificate under Sec. 65 (B) Cr.P.C. has been furnished alongwith the laboratory record exhibited by the GEQD witness namely N. C. Sood (PW-77). The report of examination of alleged hard disc has not been given by an expert mentioned in Sec. 293 Cr.P.C.
The annexures attached with the expert report i.e. Ex.PW77/3 are all computer print outs, which as per the provision of Sec.65B of Indian Evidence Act, are not admissible CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 95 of 220 without the certificate under Sec. 65 B of Evidence Act;
The testimonies of PW-40 & PW-73 before whom specimen signatures of the accused were allegedly taken is not reliable as their oral deposition are contradictory to the alleged sheets of specimen signatures;
It is stated that the testimony of expert witness i.e. PW-76 is unreliable as his report is improper and is in contradiction to the settled preposition of law. The reason given by PW-76 to support his opinion are incomplete/inadequate to enable its own opinion and hence, his report as well as reason given by him fall short of report of an expert as per provision of Sec.45A of Indian Evidence Act;
After analysing all the evidence with regard to the accused, there is nothing substantial coming across from the prosecution case to implicate him in the present case.
43.7. Written Submissions of Accused P.K. Thirwani (A-8):-
No deficiencies/irregularity was pointed out in the audit report by the dealing assistant or Assistant Registrar (Audit), who had checked the audit report;
He raised objections in the audit report including taking of approval of resigned/enrolled members from the Registrar, Cooperative Societies;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 96 of 220
He also pointed out about non-submission of compliance report of previous audit done by K.K. Pant;
There was no violation of DCS Act Rules by the accused;
The auditor is not required to see as to who has signed or authored the accounts books or audit papers;
There is no link of audit report with the revival order which was passed before the audit;
There is no evidence of involvement in the conspiracy qua the present accused;
No loss was caused to the government as no land was allotted to the present society;
There is no evidence of any demand or any pecuniary gain against the accused;
The audit of the society was conducted by the accused P.K. Thirwani under Section 53 DCS Act read with Rule 84 of DCS Rules and the Registrar and Cooperative Societies and its subordinate staff have the immunity from prosecution, civil suit etc. as per section 95 of the DCS Act;
Revival order passed by Registrar, Cooperative Societies can not be questioned in any court under Section 93 (3) of DCS CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 97 of 220 Act;
43.8 Written Submissions of Accused Sanjeev Bharti (A-
9):-
All the questioned documents relied against the accused are photocopies, originals of which were neither collected during the course of investigation, nor produced during the course of trial. No foundational fact has been established during the course of trial which is legally required to lead secondary evidence in place of a primary evidence. The photocopies of the documents has not been proved in accordance with law during the course of trial and as such can not be read in evidence;
Prosecution has tried to connect the alleged documents to the accused through one witness i.e. PW-30. The deposition of PW-30 has failed to prove that she has identified the hand- writing/signature of the accused on the alleged questioned documents. Her deposition is shaky, untrustworthy and as such, the same can not be relied upon;
No GEQD report with regard to the alleged questioned document Ex. PW-30/A, Ex. PW-30/B and Ex. PW-30/C with respect to the accused was made;
IO in his cross-examination has admitted that no specimen signatures/handwriting as well as no admitted specimen signatures/handwriting of accused were taken;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 98 of 220
No GEQD opinion was obtained in respect of the questioned documents;
Accused did not play any role in the revival of the society;
No diary/dispatch register of the relevant period was seized to prove that the alleged inspection report was ever submitted by the accused/applicant to the office of Assistant Registrar, South;
Alleged election report had no relevance as far as sending of approved/freezed list of members of society by Assistant Registrar (Policy) to DDA;
The alleged election report was not required for processing the allotment of land to society under any rule;
No evidence has been brought on record to show that the accused was part of any criminal conspiracy;
No evidence of any pecuniary advantage received by the accused is on record. Nor any incriminating material to show any pecuniary advantage taken by him has been recovered from his possession during investigation;
The sanction under Section 19 of P.C. Act was given by the officer who was not competent to remove the accused from his office at the time of commission of alleged offence. The CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 99 of 220 alleged offence was committed by him during his posting in the RCS in 2003 and therefore, the concerned RCS would have the authority competent to remove him from that office. However, sanction for prosecution has been obtained from Director of Education vide sanction order dated 18.09.2006 Ex. PW-37/A;
The sanction for prosecution (Ex. PW-37/A) was granted mechanically without application of mind and without following the due process of law;
Non-availability of sanction under Section 197 Cr.P.C for prosecution of accused under IPC offences vitiate trial;
44. After having given the brief of allegations against the accused persons, testimonies of the prosecution and defence witnesses, pleas of the accused persons in their statements under Sec. 313 Cr.P.C. and their written/oral submissions before the Court, this Court now proceeds to discuss the proof of registration of society, proof of incorporation of society, proof of winding up order and chain of custody of documents.
Proof of registration of Sunny Cooperative Group Housing Society (Sunny CGHS):-
45. The Sunny CGHS was registered at SL. no.1206 (GH) on 30.12.1983. Its Registration Certificate has been proved on record by the Promoter Secy. of the Society as he received the registration certificate (Ex. PW-45/D) from the Registrar Office. Further, it is not in dispute that no such society was registered.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 100 of 220The Sunny CGHS started with 65 members who were known as promoters of the society. The original list of 65 members has been proved as Ex.PW1/B. Several promoter members testified as prosecution witnesses and confirmed their signatures on the initial Intensive Enquiry Proforma, establishing that the society originally began with 65 members whose details were recorded in this document i.e. Ex.PW1/B. The affidavits of promoter members are Ex.PW45/1 to PW45/51. Further, the promoter members, who have been examined, have also identified their signatures on the affidavits. The purpose of mentioning the intensive enquiry proforma, registration certificates and affidavits of promoter members is to show that the prosecution has been able to prove that Sunny Cooperative Society came into existence with 65 members. The secretary namely Jasbir Singh and the President namely Jagmohan Singh have testified that a five- member managing committee was formed when the society was incorporated. They have identified their signatures on the list of Managing Committee and thereby the list of Managing Committee elected at the time of registration of the society has been proved as Ex.PW5/2. The names of the members of Managing Committee are as follows.
Sl.No. Name Elected Office
1. Jagmohan Singh President
2. Mahesh Chand Gupta Vice President
3. Jasbir Singh Secretary
4. Mukul Chaturvedi Treasurer
5. R. N. Bhardwaj Member
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 101 of 220
Proof of Inoperative Society: -
46. Thereafter, the society became inoperative. It seems that members were not participating in the functioning of the society. Since society was not complying with the rules and regulation of Delhi Cooperative Society Act, therefore, the Office of Cooperative Society began issuing show cause notices, requisitions and orders to the society. To demonstrate that the society ceased functioning, the prosecution presented the requisition dated 26.05.1989 issued by PW Ajay Kumar Singhla, who was then Assistant. Registrar, Cooperative Society. He called upon the Sunny Cooperative Society to call the Special General Body Meeting to elect the Managing Committee of the Society and to hold election as per the provision of Schedule II appended to Rule 58 (1) of Delhi Cooperative Society Rules, 1973. He exhibited his requisition as Ex.PW46/A. He also exhibited his official noting for issuance of this requisition as Ex.PW46/A and Ex.PW46/B. However, the Sunny CGHS did not respond to the said requisition. Consequently, the show cause notice was issued to the society in the month of November 1989, which is Ex.PW46/C. The official noting for the issuance of show cause notice to Sunny Cooperative Society regarding appointment of Election Officer to conduct the election in the society is Ex.PW46/D. Again, no reply was given by the Sunny Cooperative Society and therefore, an order was passed, thereby appointing Sh. A.N. Shastri as Election Officer to hold the election of the Managing Committee of the society. The said order has been proved through the testimony of Asstt. Registrar who passed the said order and the same is Ex.PW46/E. CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 102 of 220
47. Therefore, the testimony of PW46, the Assistant Registrar, categorically proves that between 1989 to 1990, the society was not responding to the official communication. It was not responding to the show cause notices. That led to passing an order for appointment of Election Officer. The conduct of society during that period is pertinent to the subsequent stages of this judgment.
Proof of winding up order:-
48. Despite all these efforts, the society did not conduct the elections. Consequently, the final show cause notice dated 14.05.1990 (Ex. PW-58/B) was issued, calling upon the Managing Committee to show cause within 15 days as to why the society should not wound up under Sec. 63 (2) (b) of Delhi Cooperative Society Act, 1972. It was further informed that if no reply was received, then it would be presumed that there was nothing to be said in that regard and the society would be brought under liquidation without any further reference. The said show cause notice has been proved on record by PW-58, a witness from the RCS Office. Consequently, in the month of July 1990, the Dy. Registrar (GH Cooperative Society) in exercise of powers vested under Sec. 63 of Delhi Cooperative Society, 1972 ordered to wind up the Sunny Cooperative Society. The said order i.e. Ex.PW58/C (D-3) has been proved on record through the testimony of PW-58. Further, there is no challenge to the story of the prosecution from the point of registration of Sunny Cooperative Society till the passing of winding up order in July 1990.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 103 of 220Proof of revival of the society:
49. The application dated 21.11.2002 was filed for the revival of the society. It was received from the Sunny Cooperative Group Housing Society, showing his address at the top of his letterhead as "104 Raja House, 301, Nehru Place, New Delhi". The said letter was signed by one Pawan Kumar shown himself as the President/Secretary. At the footnote of the letterhead, the correspondent address was given as, "4720/47, Ragurpura, Karol Bagh, Delhi-05." By way of the said letter, the request to cancel the winding up order was made. The letter contains that the society was registered on 30.01.1993, however, the same was wound up in year 1990. The shortcomings of the society have been removed. The fresh managing committee election of the society was conducted in the month of Oct. 2002 strictly under the provision of Schedule II of Rule 58. The election report, managing committee resolution, copy of notice, copy of proof of service of notice, report of election officer, proceeding of General Body Meeting etc. shall be produced as and when the same would be called for and thus, the request was made to cancel the winding up order. To establish the fact that the letter was received in the Cooperative Registrar office, the prosecution has examined an official from the cooperative Registrar office as the PW34, who has deposed that he worked as a Diary Dispatcher in the office of Registrar Cooperative Society and made the diary entry on the letter dated 21.11.2002. He identified his handwriting at the point X on the said letter. He further deposed that the said letter was marked to the Registrar Cooperative Society namely Mr. Narayan Diwakar (accused). He CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 104 of 220 identified the handwriting of Mr. Narayan Diwakar on the said letter at the point A. He exhibited the said letter as Ex.PW34/A. Therefore, it has been proved that a letter is received in the RCS office under the signatures of one Pawan Kumar for revival of the society.
50. Thereafter the said letter of revival (Ex.PW34/A) was processed and Mr. Faiz Mohd. (accused) was appointed as the Inspecting Officer to bring out the factual position of the society and other relevant documents and submit the report at the earliest. Mr. Faiz Mohd. accordingly filed his report. His inspection report has been exhibited as Ex.PW25/A. The PW-25 namely Mr. Narayan Dutt Kaushik, Registrar, has identified the signatures of Mr. Faiz Mohd. at the point A and A-1. Further, in his statement under Sec.313 Cr.P.C., the accused Faiz Mohd. has submitted that his inspection report and content thereof are matter of record. Therefore, his inspection report Ex.PW25/A is not in dispute.
51. That after the said report the file was placed before the Registrar Cooperative Society, Mr. Narayan Diwakar. Mr. Narayan Diwakar who started the quasi-judicial proceedings and send the file to the concerned zone for verification. Thereafter, a detailed note by prepared by the accused Gopal Singh Bisht. The signatures of Gopal Singh Bisht on this note-sheet has been proved by PW-13. Further, Gopal Singh Bisht has not denied his signatures on the said note-sheet. The signatures of Gopal Singh Bisht on this verification were encircled as questioned signature CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 105 of 220
500. Same were sent to the Government Examiner of Questioned Documents. This questioned signature i.e. Q-500 on the detailed note sheet by Sh. Gopal Singh Bisht matched with the specimen hand-writing/signature of Gopal Singh Bisht i.e. Ex. PW-41/A (collectively) and the laboratory of the Government Examiner of Questioned Documents (GEQD) opined that the questioned signature i.e. Q-500 has been written by the same person who gave the specimen handwriting i.e. S-490 to S-509 (D-27). The hand-writing expert was not cross-examined on behalf of the accused Gopal Singh Bisht. Thereafter, the detail note was placed before the accused Narayan Diwakar in the quasi-judicial proceedings. The accused Gokul Chand appeared there. His attendance was marked in the order sheet at the page no. 27/N of D-3. He appeared in person before the RCS on 12.08.2003 and 26.08.2003. The accused Narayan Diwakar noted in the order dated 05.09.2003 that the accused Gokul Chand Aggarwal, President of the society, appeared before him on the dates fixed and stated that in the special general body meeting held on 20.10.2002, election of managing committee of the society was got conducted strictly in accordance with provisions of law. The order of Registrar Cooperative Society further shows that the application form of members and share money receipts have also been verified from the original records. Thus, these facts prove that the society was revived and the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar played their part in the revival proceedings.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 106 of 220
Are photocopies of documents admissible:-
52. The D-3 file i.e. Ex. PW-66/A contains the photocopies of GBM dated 20.10.2002, photocopies of register of members, photocopies of the application form for new enrollments, photocopies of the resignation letters and photocopies of managing committee meetings dated 14.07.1988, 20.09.1988 and 18.11.1988. All these documents are photocopies. Ld. defence counsels raised objections at the time of evidence of different witnesses regarding these documents.
Therefore, the issue is whether these photocopies of GBM, membership register, application form, resignation form, managing committee meetings can be relied upon.
53. Let's first see the documents which are photocopies on the file D-3. The accused Gopal Singh Bisht in his note-sheet dated 22.07.2003 from page no. 21/N to 26/N specifically wrote the details of the documents taken on the file by giving numbers to these documents. So, it is relevant to refer to the documents taken on record with page numbers.
i) Freeze list of 65 members of society approved vide office letter No.F-47/Veri/Coop/Ngh/2971-72 dated 24.05.1988 and forwarded to DDA (P-93/C to P-102/C);
ii) Photocopies of resignation letter from 17 members placed on record from P-215/C to P-231/C;
iii) Photocopies of refund of share money from 17 resigned CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 107 of 220 members placed from P-215/C to P-231/C;
iv) Photocopies of minutes of the managing committee meetings in which the resignations were approved placed from P-209/C to P-214/C;
v) Photocopy of application for membership of 17 enrolled members were placed from P-256/C to P-272/C;
vi) Photocopies of receipt of share money from enrolled members are placed from P-233/C to P-238/C;
v) Photocopies of minutes of managing committee meeting in which the enrollments were approved are placed from P-209/C to P-214/C;
vi) Affidavit stating that the member was resident of Delhi at the time of enrollment in respect of 17 enrolled members are placed at P-239/C to P-255/C.
vii) minutes of General Body Meeting held on 20.10.2002 (photocopies are placed at P-290/C to P-296/C);
viii) copy of agenda notice dated 18.09.2002 issued to all members of GBM of the society held on 20.10.2002 is placed at P-306/C to P-309/C;
ix) service proof of agenda notice issued to all the members of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 108 of 220 society is placed at P-297/C to P-298/C;
x) photocopy of the nomination forms of candidates is placed at P-299/C to P-305/C;
xi) The declaration of President and Secretary through affidavit is P-310/C and P-311/C.
54. Further, this verification report (Page-21/N to 26/N, D-3) prepared by the accused Gopal Singh Bisht further shows that all the original records of resignation letters, refund of share money to resigned members and managing committee meeting wherein resignations were approved were produced in original by the society for verification. The same were checked in original and verified. All the resignations were found in order and in accordance with provisions of Delhi Cooperative Societies Act, 1972 and Rules. He further wrote that original of application for membership, original share money receipts, original minutes of managing committee meeting, wherein new enrollments were approved, were produced in original by the society and the same were checked in original and verified. The minutes of GBM held on 20.10.2002, agenda notice for election, service proof of agenda notice and nomination forms of the candidates were produced in original for verification, and he found the same in order. Apparently, before the court, original documents were not produced. Prosecution relied upon the file D-3 and relied upon the photocopies of the aforesaid documents. The analysis of these documents to appreciate the case of prosecution shall be done in CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 109 of 220 the later part of this judgment, however, before that, this court has to see whether these photocopies can be looked into in evidence.
55. Indian Evidence Act provides that the documents must be proved by primary evidence except in the case mentioned in Section 65 of the Indian Evidence Act. For this purpose, Chapter-5 of Indian Evidence Act, 1872 needs to be looked into. Section 61 of Indian Evidence Act, 1872 says that contents of documents may be proved either by primary or by secondary evidence. Section 62 gives the definition of primary evidence. It involves the document itself produced for inspection by the court. The secondary evidence is defined under Section 63 of the Indian Evidence Act. It inter-alia says that copies made from original by mechanical processes which in themselves ensure the accuracy of the copy, and the copies compared with such copies. Thus, photocopies falls in the category of secondary evidence. The Section 64 of Indian Evidence Act provides that documents must be proved by primary evidence except in cases fall under section 65. At this stage, it is important to take a note of Section 65 (a), which reads as follow:-
"65. Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition or contents of a documents in the following cases-
a) When the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or of any person out of reach of, or note subject to, the process of the court, or CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 110 of 220 of any person legally bound to produce it, and when, after the notice mentioned in section 66 such person does not produce it."
56. The universal law of evidence is that the best evidence needs to be produced. However, this rule applies when the best evidence is in within the possession of the party. Where the original document is not in possession, then The Indian Evidence Act permits a party to produce secondary evidence of the same. However, for production of secondary evidence, a foundation needs to be laid down by showing the conditions under Section 65. The factual foundation needs to be laid down for giving secondary evidence. The secondary evidence relating to contents of the document is inadmissible until the non production of original is accounted for so as to bring it within one or other of the cases provided under Section 65 of the Indian Evidence Act.
57. The Hon'ble Supreme Court of India in the matter of U. Sree v. U. Srinivas, (2013) 2 SCC 114 held that foundation evidence needs to be lead for reading secondary evidence and in absence thereof, secondary evidence is inadmissible in such a case.
58. In the matter of H. Siddiqui v. A. Ramalingam [(2011) 4 SCC 240 while dealing with Section 65 of the Evidence Act, Hon'ble Supreme Court opined that though Indian Evidence Act permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. Para no. 12 of the said judgment is reproduced:-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 111 of 220"12. ... In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original."
59. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
60. In the matter of M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] , the Hon'ble Supreme Court held as under:-
"47. ... It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 112 of 220
61. In another landmark judgment of Hon'ble Supreme Court in the matter of J. Yashoda v. K. Shobha Rani [(2007) 5 SCC 730 after analysing the language employed in Sections 63 and 65(a), a two-Judge Bench held as follows:
"9. ... Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in the section."
62. In view of the aforementioned judgments of the Hon'ble Supreme Court, it is to be noted here that the primary evidence of a document is the original document itself. The photocopies fall in the category of secondary evidence. The secondary evidence can only be given in special circumstances as specified under Section 65 by laying down the foundation of the grounds mentioned in Section 65 of Indian Evidence Act.
63. As noted above, the original was produced by Gokul Chand Aggarwal for verification before accused Gopal Singh Bisht. This fact is not in dispute. Gopal Singh Bisht in his statement under Section 313 Cr.P.C has not denied the fact that he did not write note-sheet from page no. 21/N to 26/N. There is no allegation that these note-sheets have been tampered with or interpolated by someone. All these documents are part of the file D-3, which was lying in the official custody of the Registrar. The CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 113 of 220 PW-67 Inspector Bodh Raj Hans deposed before the court that during the preliminary enquiry, he collected the file D-3 and handed over the same file to Inspector S. Majumdar for the investigation. He exhibited the receipt of handing over as Ex. PW-67/A. The requirement to lay down the foundation under Section 65 of Indian Evidence Act is to establish the reason why the original is not being presented. The official documents on record itself shows that originals were in possession of the accused Gokul Chand Aggarwal, who produced the same for verification. The same were seen by the accused Gopal Singh Bisht and photocopies of same were taken on record. The requirement of Section 65(a) is 'when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved'.
64. The phrase in Section 65(a) 'appears to be' covers the situations where no direct evidence is produced. In the present case, the originals are with the person who is also an accused before this court. Nevertheless, the note-sheets, which show that originals were produced by accused Gokul Chand Aggarwal before the accused Gopal Singh Bisht, have not been disputed. Reading the note-sheet prepared by Gopal Singh Bisht from page No. 21/N to 26/N does not mean that the court is using the statement of co-accused against the other accused inasmuch as there is nothing, ex-facie, incriminating in it qua the accused Gokul Chand Aggarwal. Further, the note-sheets were prepared in the official capacity during the course of the official duties and the things done during official duties or any entry in any public CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 114 of 220 or official book register stating a fact in issue or relevant fact and made by public servant in the discharge of his official duty is itself a relevant fact. Here, it is relevant to refer to Section 35 of Indian Evidence Act, 1872 which says as under:-
"35. Relevancy of entry in public (record or an electronic record) made in performance of duty -
An entry in public or any other official book, register or record or any electronic record stating a fact in issue or relevant fact and made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept is itself a relevant fact".
65. 'Whether Gokul Chand Aggarwal submitted the forged documents to revive the society' is a fact-in- issue in this case. Any public document containing this fact-in-issue is a relevant fact before this court. An evidence can be given to prove this relevant fact. The file containing this relevant fact is produced before this court and is exhibited by the CBI officer, who obtained this file from the office of the Registrar, Cooperative Society. The production of the original note-sheet has proved this relevant fact, and this relevant fact lays down the foundation of Section 65 (a) of Indian Evidence Act. As noted above, these photocopies were initially filed by Gokul Chand Aggarwal himself. The same were paginated and were taken on record. The note sheet of accused Gopal Singh Bisht shows that the originals were produced. The same were compared with the original and photocopies were taken on record. During investigation, this file was obtained by Inspector Bodh Raj, and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 115 of 220 he handed over the same to the IO of this case. These photocopies contain the signatures of the accused Gokul Chand Aggarwal under the stamp of Sunny CGHS. The GEQD report has verified that the accused Gokul Chand Aggarwal's signatures are present on all these photocopies. The accused Gokul Chand Aggarwal had himself filed the photocopies of documents and was shown in possession of the original. Thus, the note-sheet of the accused Gopal Singh Bisht lays the foundation to lead secondary evidence in form of photocopies of documents which were in possession of the accused Gokul Chand Aggarwal. There is no need to lead any separate evidence to show that the originals were in possession of the accused Gokul Chand Aggarwal inasmuch as the accused at the time of revival of the society claimed to have possessed all original documents, photocopies of which were filed for revival. Thus, the foundation to lead the secondary evidence has been laid down successfully by the prosecution and therefore, this court will read these photocopies for further analysis of the prosecution case.
Chain of custody of documents (D-3):-
66. The chain of custody of documents (D-3) is crucial in the present case because note sheets of the RCS officials, affidavit of promoter members and the newly enrolled members and the photocopies of minutes of meeting of General Body Meeting and minutes of Managing Committee meetings are part of this file. Some of these documents such as bye-laws of society, registration certificate of the society, intensive enquiry performa CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 116 of 220 containing the name of promoter members and their signatures have been proved by the promoter members as the prosecution witnesses. Therefore, the chain of custody of documents, which are photocopies, needs to be seen to ensure that the custody of photocopies of documents is found intact. The photocopies such as resignation letters, refund of share money, managing committee meeting, form of enrollment of members, receipt of share money, managing committee meetings were filed by Gokul Chand Aggarwal and the same were checked in original and verified by the accused Gopal Singh Bisht. The accused Gopal Singh Bisht paginated all the documents and wrote those numbers in his note-sheet from page 21/N to 26/N. The original note-sheet is in the file D-3 and the page number written in the original note-sheet corresponds to the page numbers available on the photocopies.
67. The nature of documents and the page number given to them by the accused Gopal Singh Bisht has already been discussed above while discussing the admissibility of photocopies of the documents.
68. All the aforesaid documents are the part of file D-3, meaning thereby, all the aforesaid documents originated from the possession of Gokul Chand Aggarwal and became the part of the record of RCS office. The RCS office came to the possession of these documents through Gokul Chand Aggarwal. From RCS office, Inspector Bodh Raj Hans collected these documents during preliminary enquiry. He lateron handed over these CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 117 of 220 documents to Inspector S. Majumdar. The receipt of these document has been exhibited as Ex. PW-67/A. He identified the file D-3. Thus, the chain of custody of documents lying on the file D-3 (Ex. PW-66/A) has been proved to be intact till the same came to the possession of the investigating officer. The numbering of the pages in the file are the same as shown in the verification report of the accused Gopal Singh Bisht.
69. Thus, after having confirmed this chain of custody of documents, this court will now proceed to do the analysis of the evidence of prosecution witnesses to find out whether the offences under section 420 IPC read with Section 511, Section 419, Section 468 and Section 471 IPC and the substantive charge under the Section 120-B IPC read with Section 419/420/468/471 IPC read with section 13(2) and Section13(1) (d) of PC Act are made out against the accused persons. To analyze the case of the prosecution, the accused persons are categorized into following two categories:-
i) Public Servants
ii) Private Persons Culpability of Public Servants: -
70. The names of the accused public servants are as follows:-
i) Narayan Diwakar, RCS, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 118 of 220
ii) Gopal Singh Bisht, Dealing Assistant,
iii) P.K. Thirwani, Auditor,
iv) Faiz Mohammad (Inspector) and
v) Sanjeev Bharti (Election Officer)
71. They all have been charged for the offence under Section 120-B read with Section 13 (2) read with Section 13(1)
(b) Prevention of Corruption Act and Section 15 of Prevention of Corruption Act 1988. It is alleged that these public servants conspired with other private persons namely Gokul Chand Aggarwal, Naveen Kaushik, Ashwani Sharma for revival of society based upon fake resignation letters, enrollment forms; fake minutes of meeting of Managing Committee; fake minutes of meeting of General Body and fake election process. As per the prosecution, each accused played his different role for the revival of the society. Gokul Chand Aggarwal with the help of the accused Ashwani Sharma and Naveen Kaushik had prepared the false documents and filed the application based on forged documents for revival.
72. Apparently, there is no direct evidence of bribe against the public servants. Therefore, the case rests on circumstantial evidence. This court is conscious of the five golden principles enunciated in long line of cases including Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116, wherein it was held as under:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 119 of 220 before a case against an accused can be said to be fully established:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
73. This court shall approach the facts of this case, keeping in mind the principles of circumstantial evidence. In the present case, the role of the public servants begins with processing the application of the revival. At this stage, it is important to clarify the definition of criminal misconduct by a CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 120 of 220 public servant under Section 13(1)(d) of the Prevention of Corruption Act.The relevant portions of Section 13 of the Prevention of Corruption Act, which provide for criminal misconduct by a public servant read as under:
"13. Criminal misconduct by a public servant. --
(1) A public servant is said to commit the offence of criminal misconduct,--
*
(d) if he, --
*
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or * (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year, but which may extend to seven years and shall also be liable to fine."
74. The Section 13 of the Prevention of Corruption Act in general lays down that if a public servant obtains for himself or for any other person, any valuable thing or pecuniary advantage he would be guilty of criminal misconduct and sub- section (2) thereof prescribes the punishment for such misconduct. Further, the clause (d) of this section of which the accused persons herein have also been charged deals with a similar kind of a situation. The public servant must in this case by abusing his position as a public servant, obtain for himself or for any other person any valuable thing or pecuniary advantage to CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 121 of 220 be liable for criminal misconduct under this section.
75. Here, it is apt to refer to the judgment of the Hon'ble Supreme court of India in the matter of State of Punjab v. Ram Singh [(1992) 4 SCC 54, wherein the term misconduct is defined as under:-
'5. Misconduct has been defined in Black's Law Dictionary, 6th Edn., at p. 999, thus:
"Misconduct. --A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Misconduct in office. --Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." '
76. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:
'Misconduct. --The term "misconduct" implies a wrongful intention, and not a mere error of judgment.
The word "misconduct" is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being, construed. "Misconduct" literally means wrong conduct or improper conduct.' CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 122 of 220
77. In the matter of Neera Yadav v. CBI, (2017) 8 SCC 757, it was observed that the Section 13 of the PC Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of "criminal misconduct". Sub- section (2) of Section 13 speaks of the punishment for such misconduct. A perusal of the above provision makes it clear that all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive.
78. Another landmark judgement on the interpretation of section 13(1)(d) of the P.C Act is the matter of M. Narayanan Nambiar v. State of Kerala [M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC. This judgment gives a broad interpretation to Section 5(1)(d) of the Prevention of Corruption Act, 1947, which is in pari materia with Section 13(1)(d) of the P.C. Act,1988 and held:-
"10. ... First taking the phraseology used in the clause, the case of a public servant causing wrongful loss to the Government by benefiting a third party squarely falls within it. Let us look at the clause 'by otherwise abusing the position of a public servant', for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done 'otherwise' than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. 'Abuse' means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 123 of 220 means or otherwise than those means. The word 'otherwise' has wide connotation. ... The juxtaposition of the word or 'otherwise' with the words 'corrupt or illegal means', and the dishonesty implicit in the word 'abuse' indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word 'obtains' be sought in aid to limit the express words of the section. 'Obtain' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; ... On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself or for any other person by abusing his position as a public servant falls within the mischief of the said clause."
79. Thus, this celebrated judgment of the Hon'ble Supreme court lays emphasis on the dishonest intention of the accused at the time of conducting the alleged act.
80. In the matter of Major S.K. Kale v. State of Maharashtra (1977) 2 SCC 394, the Hon'ble Supreme Court held that this Court held that the abuse of position by a public servant must necessarily be dishonest and it must be proved that the accused caused deliberate loss to the department. The Hon'ble Court observes that-
"9. ... The abuse of position, as held by this Court, must necessarily be dishonest so that it may be proved that the appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for PW 2."CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 124 of 220
81. In the matter of S.P. Bhatnagar v. State of Maharashtra (1979) 1 SCC 535, the importance of the element of dishonest intention was again reiterated.
82. In the matter of Chittaranjan Shetty v. State, (2015) 15 SCC 569, it was held that in order to prove the offence under Section 13(1)(d)(ii) of the Act, it must be established that a public servant has abused his position in order to obtain for himself or for any other person, any valuable thing or pecuniary advantage, and that, in this context, the "abuse" of position must involve a dishonest intention. In the present case, it is not disputed that the appellant is a public servant. As regards the element of "obtaining a valuable thing or pecuniary advantage" for himself or another person, the courts below have made concurrent findings that the appellant, by permitting Accused 2 to divert the overdraft facilities towards payment to DW 1, has obtained a pecuniary advantage for DW 1 and we concur with the same. The Hon'ble Supreme Court held as under-
24. The crucial fact that needs to be determined is whether the appellant, with dishonest intention, abused his position in order to obtain for DW 1, the said pecuniary advantage. It is our considered opinion that, in the present case, there is sufficient evidence on record to prove that the appellant was acting with a dishonest intention. The terms and conditions of the loan granted to the appellant categorically state that the overdraft facilities could be utilised only for the purpose of meeting working capital requirements and for furnishing performance guarantee in favour of the said Corporation and the same could not have been utilised for payment of the debt owed by Accused 2 to DW 1. The courts below have relied on the testimony of PW 18 to conclude that the appellant CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 125 of 220 knowingly and wilfully disregarded the objections of PW 18 and permitted Accused 2 to divert funds from the overdraft facility towards payment to DW 1 and that this fact is proof of dishonest intention on the part of the appellant. We concur with the courts below in this regard. The testimony of PW 18 has been corroborated by the testimony of the Sub-Manager of Karnataka Bank (PW 9) who has stated that a cheque of Rs 3,60,000 was deposited in the current account of DW 1 as well as that of the Senior Manager, Corporation Bank, Car Street, Mangalore (PW 10).
25. Furthermore, the appellant's dishonest intention can be inferred from the facts and circumstances of the case and from the conduct of the appellant himself. During the course of these transactions, the appellant has committed several irregularities in order to favour Accused 2 and has acted in blatant disregard of the rules and regulations of the Bank and the terms and conditions of the loan issued to Accused 2 and in fact, even compelled PW 18, an officer under his supervision, to do the same. Therefore, it can be concluded that the appellant has acted with dishonest intention and has abused his position as a public servant. Thus, it can be concluded that all of the necessary elements of the offence under Section 13(1)(d)(ii) of the Act have been proved in this case."
83. In Ram Krishan v. State of Delhi [1956 SCR 182] the appellants were prosecuted for offering bribe to a Railway Officer for hushing up the case against them. In that context Section 5(1)(d), peri materia to the section 13(1)(d) P.C Act was construed by the Hon'ble Supreme Court in the following manner:-
"Apart from 'corrupt and illegal means' we have also the words 'or by otherwise abusing his position as a public servant'. If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under sub-clause (d). Sections 161, 162 & 163 refer to a motive or a reward for CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 126 of 220 doing or forbearing to do something, showing favour or disfavour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under clause (d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour."
84. Again, in Dhaneshwar Narain Saxena v. Delhi Administration [AIR 1962 SC 195 (V 49 C. 36)], it was observed that the section 13(1)(d) P.C Act casts a wide net to put down corruption. There the appellant was an Upper Division Clerk in the office of the Chief Commissioner of Delhi. He knew one Ram Narain who was a fireman serving in Delhi Fire Brigade. The latter sought the assistance of the appellant who had nothing to do with the issuing of licences of firearms which was done by the office of the Deputy Commissioner, Delhi. The appellant took a bribe in order to get the licence for him. It was argued that as it was not the duty of the appellant to issue licences or do something in connection therewith, he did not commit any offence within the meaning of Section 5(1)(d) of the Act. The Court rejected his contention. Sinha C.J. speaking for the Court observed at p. 198: "The legislature advisedly widened the scope of the crime by giving a very wide definition in Section 5 with a view to punish those who, holding public office and taking advantage of their position obtain any valuable thing or pecuniary advantage".
Dishonest Intention is must:
85. The aforesaid judgments on Section 13(1)(d) CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 127 of 220 delineates that dishonest intention is must to prove the accused guilty under Section 13(1) (d) of PC Act. In the matter of Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394, it was held that-
"7. Normally this Court in special leave against a concurrent judgment of the High Court and the trial court does not reappraise the evidence, but unfortunately in this case we find that both the courts below have drawn wrong inferences from proved facts and have made a completely wrong approach to the whole case by misplacing the onus of proof which lay on the prosecution on the accused. Both the courts below had proceeded on the footing that it was for the accused and not for the prosecution to prove that the accused made enquiries from the local market or that he knew about the rates, etc. This approach was obviously and manifestly wrong. It is plain that it was for the prosecution to prove the ingredients of Section 5(1)(d), which runs thus:
"5. (1) A public servant is said to commit the offence of criminal misconduct
(a) * * *
(b) * * *
(c) * * *
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other persons any valuable thing or pecuniary advantage ...."
In other words it was for the prosecution to prove affirmatively that the appellant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. In view of the clear defence taken by the appellant it is obvious that it was for the prosecution to prove that the accused made no enquiries, that the accused made a departure from the normal procedure with oblique motive, and that the accused knew that PW 2 would make a profit of 45 CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 128 of 220 per cent whereas others would be satisfied with a profit of 10-15 per cent. The High Court, to begin with, started with the presumption that the accused led no evidence to show that he made any enquiries. We might state at the risk of repetition that it was not for the accused to prove the prosecution case but it was for the prosecution to disprove what the accused said, namely, that he had made enquiries. The prosecution could prove this fact only by producing satisfactory and convincing evidence to show that the accused in fact made no such enquiries and he knew about the margin of profit which other dealers would have made. We shall immediately show that there is no legal evidence to prove this fact. What the courts below have done is to disbelieve the case of the appellant because he led no evidence to show that he made any enquiries regarding the availability of goods or the rates, and therefore the courts presumed that the accused had a dishonest intention."
86. In the matter of S.P. Bhatnagar v. State of Maharashtra, (1979) 1 SCC 535, it was held as under-
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
23. The principle that inculpatory fact must be inconsistent with the innocence of the accused and incapable of explanation on any other hypothesis than that of guilt does not mean that any CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 129 of 220 extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable."
Mere violation of rules, regulations and lapses are not sufficient :-
87. This court is conscious about the settled legal principle that mere departmental lapses or violation of codal formalities and irregularities or ignorance of departmental order may not be termed as misconduct under Section 13(1)(d) in absence of dishonest intention and this principal has been recognized by the Hon'ble Supreme Court in the matter of C. Chenga Reddy v. State of A.P., and Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) [(1980) 3 SCC
110. The relevant extracts from both the judgments is reproduced here as under for a ready reference.
88. In the matter of C. Chenga Reddy v. State of A.P., , it has been held as under: -
"On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence".CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 130 of 220
89. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) [(1980) 3 SCC 110 under somewhat similar circumstances, the Hon'ble Supreme court held that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them.
Doing the analysis of the circumstantial evidence to find out the misconduct:
90. Following the decision in M. Narayanan Nambiar v. State of Kerala (Supra), it was held by the Hon'ble Supreme Court in Major S.K. Kale v. State of Maharashtra( Supra) that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 131 of 220 that the accused caused deliberate loss to the department. It was further settled in S.K. Kale case that it is for the prosecution to prove affirmatively that the accused, by corrupt or illegal means or by abusing his position, obtained any pecuniary advantage for some other person. It would, therefore, be necessary to find out in this case as to whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive. Further, it would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of constitutional Courts.
91. It is apposite to refer to the observations in Major S.K. Kale case that the rule is to the effect that in cases depending on circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof. In such cases the mind is apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
92. Now, the stage has been set to find out as to whether the accused public servants acted dishonestly by abusing their power to revive the society and thereby committing the offence under section 13(1)(d) of the Prevention of Corruption Act.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 132 of 220Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar:-
93. The role of three RCS officials namely Faiz Mohammad, Gopal Singh Bist and the accused Narayan Diwakar is discussed together as their roles come before the revival of the society. It is alleged that pursuant to the conspiracy, the accused Inspector Faiz Mohammed filed factually incorrect inspection report of the society. Thereafter, the accused Gopal Singh Bisht prepared the detailed note sheet without verification of the documents and made the proposal for the revival of the society. Thereafter, the Registrar Cooperative Society, the accused Narayan Diwakar, without verifying the documents of the society, passed the order for revival of the society. After that, the communication for allotment of land was started with the DDA. After the revival of the society, the other accused persons namely P.K. Thirwani (Auditor) and Sanjeev Bharti (Election Officer) gave favorable reports of audit and election respectively without doing their duties as per established rules. As noted above, the application for revival of the society was filed on 21.11.2002. It was signed by Pawan Kumar shown as the President/Secretary. The application was processed, and Mr. Faiz Mohammad was appointed as the Inspector to bring out the factual position of the society and other relevant documents. He filed his report under Sec.54 of the DCS Act, 1972. Mr. Faiz Mohd. (accused) in his report stated that he visited the office of society at 104, Raja House, 3031, Nehru Place, Delhi and came to know that society had shifted its office to 4720/47, Ragurpura, Karol Bagh, New Delhi and after confirming the same, he visited the new office and he met Mr. Gokul Chand Aggarwal, who produced the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 133 of 220 following records before him:-
i) Proceeding Register
ii) Membership register
iii) Registration certificate
iv) By-laws of the society
v) Audited account for the period
vi) Unaudited account from 1987-88 to 2000-2003
vii) Resignation files
viii) Application files
ix) Cash Book. Ledgers and other correspondence files etc.
x) Election file
94. He further reported in his report that initially society was registered with 65 members, however, no land was offered to the society by the DDA. After that, only 17 members had resigned and 17 new members were enrolled. From verification of proceeding register, the last meeting was held on 20.04.2003. The election of the managing committee was held on 20.10.2002 and proper procedure had been adopted to conduct the election of the society.
95. The accused Faiz Mohammad in his report stated that the last proceedings of the society were held on 20.04.2003 and election of managing committee was held on 20.10.2002. He further stated that it was found during verification that the society was not functioning for many years i.e. after liquidation. A General Body Meeting of the society was held and the house CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 134 of 220 decided unanimously that a request should be moved for revival of the society. His report was placed before the accused Narayan Diwakar (RCS) through the accused Gopal Singh Bisht for initiation of quasi-judicial proceedings. After that, the accused Narayan Diwakar (RCS) sent the file to the concerned zone for verification. At this juncture, this court refers to the provisions under Section 54 of the DCS Act, 2002 which reads as under:-
"54. Inspection of societies - The Registrar, or any person authorised by general or special order in this behalf by him, may inspect a co-operative society. For the purpose of inspection, the Registrar or the person so authorised by him shall at all times have access to all books, accounts, papers, vouchers, securities, stock and other property of the society and may in the event of serious irregularities discovered during inspection take them into custody and shall have power to verify the cash balance of the society and subject to the general or special order of the Registrar to call a committee meeting and a general meeting. Every officer or member of the society shall furnish such information with regard to the working of the society as the Registrar or the person making such inspection may require."
96. The accused Faiz Mohammad was appointed as the Inspector. His duty was to find out the factual position of the society. However, he did not do anything to verify the record of the society produced before him. He wrote that 17 members had resigned and 17 members were enrolled, however, it appears that he did not check the Managing Committee Meetings to check the authenticity of resignation and enrollment. He further wrote that elections were conducted in accordance with rules. While writing this, he did not check any record. Had he checked the record of the society, he would have easily found that even the election CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 135 of 220 officer was not appointed by the Managing Committee inasmuch as there was no minutes of meeting of the Managing Committee for the appoint of election officer. There were apparent serious irregularities in the minutes of meeting of the Managing Committee, but he did not check anything. He wrote in his report that he visited the registered address of the society at 104, Raja House, 3031, Nehru Place, New Delhi and found that the society had shifted to its new address i.e. 4720/47, Ragurpura, Karol Bagh, Delhi. However, the owner f 104, Raja House, 3031 Nehru Place (PW-22) has categorically denied that any RCS had ever visited the ssaid address. The other serious irregularities in the conduct of the society will be highlighted in the later part of this judgment.
97. After having received the file on the directions of the accused Narayan Diwakar vide order dated 08.07.2003, the detailed note of verification of the documents of the society was prepared by Gopal Singh Bisht. The verification reports of the accused Faiz Mohammad and Gopal Singh Bisht were relied upon by the accused Narayan Diwakar while reviving the society vide order dated 05.09.2003 under Section 63 (3) of Delhi Cooperative Act, 1972. The detailed file containing some original documents as well as photocopies of the documents pertaining to the society was compiled by the accused Gopal Singh Bisht and the same was placed before the accused Narayan Diwakar in the quasi-judicial proceedings. Thus, the facts to be analysed to find out their dishonest intention are the same for these three accused persons.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 136 of 22098. The accused Gopal Singh was the dealing assistant in the RCS office. The accused Narayan Diwakar was the Registrar, Cooperative Societies. Initially, the accused Faiz Mohammad (Inspector) did the inspection. Thereafter, the accused Gopal Singh Bisht put up the note before the Registrar Cooperative Societies for initiation of quasi-judicial proceedings at page No. 19/N of D-3. The file was then sent to the concerned zone for verification by the accused Narayan Diwakar (RCS) vide order sheet dated 08.07.2003 at page No. 20/N of D-3. Subsequently, the accused Gopal Singh Bisht filed the detailed report of 06 pages, thereby proposing for the revival of the society. The prosecution has alleged against the accused Faiz Mohammad (Inspector), Gopal Singh Bisht (dealing assistant) and the accused Narayan Diwakar (Registrar) that they all dishonestly ignored serious discrepancies in the resignation and the enrollment documents, discrepancies in the Managing Committee Meetings and the General Body Meetings. It is alleged that they deliberately ignored these serious irregularities, clearly visible from the inspection of records, to provide benefit to the accused Gokul Chand Aggarwal.
99. It is to be noted here that the accused Gopal Singh Bisht prepared the detailed note, stating therein that the accused Sh. Gokul Chand Aggarwal, President of the Society had produced all relevant records of the society and had informed that there were 65 members in the society, and the list of 65 members of the society had already been approved on 24.05.1988 for the allotment of land. The accused Gopal Singh Bisht further stated CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 137 of 220 in his detailed note that the membership register and proceeding register were complete and the last election was held on 20.10.2002 as per the Delhi Cooperative Society Rules. He noted that all the accounts of the society were found under safe custody of Gokul Chand Aggarwal. He further noted that Sh. Gokul Chand Aggrwal President submitted original records and documents for verification. The same were counter-checked/verified and found in order. The accused Gopal Singh Bisht documented the resignation and enrollment of members in a tabular form, detailing both the application date and the date of the Managing Committee's resolution. Additionally, he listed the members of the new Managing Committee. His report mentions that the accused Gokul Chand Aggarwal held the position of President of the Society. It further indicates that Gokul Chand Aggarwal maintained possession of all society records and made these documents available for verification. The same fact has been mentioned by the accused Faiz Mohammad in his inspection report.
100. The testimony of specimen signatures witness i.e. PW-41 deposed that Sh. Gopal Singh Bisht was present before the IO and signed and wrote on some blank papers voluntarily several times in his presence. He exhibited the handwriting/specimen signatures of the accused Gopal Singh Bisht as Ex. PW-41/A (S-490 to S-509 in D-27). The witness identified his signature on a sheet where the specimen handwriting and signatures were taken and deposed that Gopal Singh Bisht voluntarily gave the specimen handwriting and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 138 of 220 signatures on the sheets from S-490 to S-509. The signature on the note-sheet were encircled as Q-500. The GEQD witness Sh. M.C. Joshi (PW-76) in his supplementary opinion, i.e. Ex. PW- 76/2 opined that the questioned signature encircled as Q-500 matches with the specimen signatures of the accused Gopal Singh Bisht. His other questioned signatures encircled as Q- 260/1, Q-494, Q-496, Q-497, Q-498, Q-503, Q-504 match with his specimen signatures taken as S-490 to S-509. Thus, the note- sheet of 06 pages from 21/N to 26/N is proved to have been written by the accused Gopal Singh Bisht. This note-sheet shows the presence of the accused Gokul Chand Aggarwal before him and production of original documents of the society by the accused Gokul Chand Aggarwal.
101. In the detailed note, Gopal Singh Bisht gave the history of the society, starting from its registration to its winding up. Thereafter, he proceeded to discuss the acceptance of enrollment and resignation of members from time to time and he gave the details of the resigned members in a tabular form:-
S.No. M.S. Name of the Date of Dt. of M.C. Dt. of Share No. Member Applicati Resolution Money on refunded 1 09 Sh. Durga Dutt 10.7.88 14.7.88 15.8.88 Sharma 2 29 Sh. H.N. Kumra 06.7.88 14.7.88 17.8.88 3 44 Sh. Narinder Singh 12.7.88 14.7.88 18.8.88 4 20 Sh. A.S.Bakshi 07.7.88 14.7.88 18.8.88 5 63 Smt. Shanta Rani 09.7.88 14.7.88 20.8.88 CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 139 of 220 6 31 Sh. M.C.Gupta 05.7.88 14.7.88 21.8.88 7 14 Sh. Krishan Kr. 12.7.88 14.7.88 21.8.88 Verma 8 01 Sh. Jasbeer Singh 12.7.88 14.7.88 22.8.88 9 27 Smt. Indrawati 10.7.88 14.7.88 23.8.88 Singh 10 58 Sh. R.N.Wadhwa 09.7.88 14.7.88 23.8.88 11 39 Smt Pritam Kaur 05.7.88 14.7.88 24.8.88 12 15 Sh. C.L.Sharma 02.7.88 14.7.88 24.8.88 13 50 Smt. Rajesh Goel 06.7.88 14.7.88 25.7.88 14 55 Sh. S.P.Chhatwel 11.7.88 14.7.88 25.7.88 15 16 Sh Pawan Inder 12.9.88 20.9.88 23.10.88 Singh 16 48 Smt.Adarsh Bala 15.9.88 20.9.88 23.10.88 Chopra 17 53 Smt. Sita Rani 17.9.88 20.9.88 25.10.88 Kanwar
102. Thereafter, he gave the following information about newly enrolled members in a tabular form:-
S.No M.S. Name of the Member Date of Dt. of Dt. of Share No. Applicati M.C. Money on Resolution Received 1 66 Sh. Gokul Chand 05.9.88 20.9.88 22.9.88 Aggarwal 2 67 Sh. Pawan Kumar 12.9.88 20.9.88 22.9.88 3 68 Sh. Ajay Kumar 10.9.88 20.9.88 23.9.88 Goel CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 140 of 220 4 69 Sh. Satish Aggarwal 07.9.88 20.9.88 23.9.88 5 70 Smt. Hitesh Gupta 14.9.88 20.9.88 23.9.88 6 71 Sh. B.M. Gupta 09.9.88 20.9.88 24.9.88 7 72 Smt. Vijay Arora 05.11.88 18.11.88 19.11.88 8 73 Sh. Ram Chander 09.11.88 18.11.88 21.11.88 Raja 9 74 Smt. Alka Gupta 12.11.88 18.11.88 21.11.88 10 75 Sh. Rajesh Kumar 15.11.88 18.11.88 22.11.88 11 76 Sh. Ramesh Chand 10.11.88 18.11.88 23.11.88 Gupta 12 77 Sh. Moti Ram 06.11.88 18.11.88 23.11.88 Singhla 13 78 Sh. Nanak Chand 01.11.88 18.11.88 25.11.88 14 79 Smt. Gunwati Devi 14.11.88 18.11.88 25.11.88 15 80 Sh. Rajesh Kr. Garg 17.11.88 18.11.88 26.11.88 16 81 Sh. I.D Aggarwal 03.11.88 18.11.88 27.11.88 17 82 Sh. G.Lal 09.11.88 18.11.88 29.11.88
103. The accused Gopal Singh Bisht specifically wrote that he did the verification from the original documents. The aforesaid tables show that 17 members filed their application to resign from the society on different dates and 17 members joined the society on different dates. The prosecution examined witnesses namely PW-5 H.N. Kumra and PW-45 Jasbir Singh, who denied resigning from the society. These both witnesses have been shown resigned. The photocopies of resignation/withdrawal application of 17 members are from page no. 215-C to page no. 231-C (D-3). This corresponds with the numbers mentioned by the accused Gopal Singh Bisht in his note CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 141 of 220 sheet.
104. The accused Gopal Singh Bisht had compared the photocopies of resignation and enrollment applications with the originals. He stated that all the resignations were found in order and in accordance with provisions of Delhi Cooperative Society Act and Rules. The accused Gopal Singh Bisht also proposed approval of these 17 resignations and 17 enrollments.
Here, this court shall proceed with the assumption that the accused persons being the Inspector, Dealing Assistant and the Registrar Cooperative Society were not aware that the accused Gokul Chand Aggarwal had forged resignation and enrollment letters and had shown them the forged resignation and enrollment letters. Therefore, this court has to find out whether the accused persons could see the serious irregularities and lacunas in the proceedings of the society from the record of the society itself. Do the documents indicate that these accused persons possess the requisite mens rea to favour the Gokul Chand Aggarwal in relation to the revival of the society.
105. This court shall review the minutes of meeting of the managing committee resolutions that accepted the resignation letters. The first 14 resignation letters were accepted vide resolution of the Managing Committee dated 14.07.1988. Looking at the minutes of the Managing Committee dated 14.07.1988, it appears that the said meeting was held on 14.07.1988 at 07:00 PM at the office of the society under the chairmanship of Sh. Mahesh Gupta, shown as the President of the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 142 of 220 society and the following members were shown attending the meetings: -
A) Mahesh Gupta;
B) JASBIR SINGH;
C) Baljeet Singh;
D) Vinod Gupta;
E) C.G. Khanna;
F) Ravinder Kaur
106. On that day, the Managing Committee resolved that resignation of the following members be approved with immediate effect, and they would be paid back their share money:-
i) Durga Dutta Sharma;
ii) H.N. Kumra;
iii) Narender Singh;
iv) A.S. Bakshi;
v) Shanta Rani;
vi) M.C. Gupta;
vii) Krishan Kumar Verma;
viii) Jasbir Singh;
ix) Indrawati Singh;
x) R.B. Wadhwa;
xi) Pritam Kaur;
xii) C.L. Sharma;
xiii) Rajesh Goyal; and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 143 of 220
xiv) Sh. S.P. Chatwal
107. In the aforesaid meeting, Jasbir Singh was present.
His resignation was shown to be formally accepted in the said meeting. According to records, Jasbir Singh served as the society's first secretary, and no subsequent elections were shown to be held following the formation of initial managing committee. He continued to be the Secretary as of 14.07.1988. Additionally, no other individual named Jasbir Singh had ever been admitted as the new member.
108. Now, this court shall state the circumstances, showing abuse of power with dishonest intention to cause wrongful gain to the accused Gokul Chand Aggarwal (President of Sunny CGHS).
Circumstance No.1:-
109. In the subsequent meeting of the managing committee held on 20 September 1988 at 7:00 PM, shown to be chaired by Mahesh Gupta, President of the Society, the following members were recorded as present:
Ravinder Kaur Baljeet Singh Mahesh Gupta Vinod Gupta Jasbir Singh CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 144 of 220 At that meeting, the resignations of the following three promoter members were formally accepted:
Pawan Inder Singh Adarsh Bala Chopra Sita Rani Kanwar Additionally, the applications of the following individuals for membership were approved:
Gokul Chand Aggarwal Pawan Kumar Ajay Kumar Goel Satish Aggarwal Hitesh Gupta B.M. Gupta
110. During the aforesaid meeting i.e. 20.09.1988, Jasbir Singh was again shown as the member of the Managing Committee and the minutes of meeting concluded with direction to the secretary to do the needful. At that time, the secretary was Jasbir Singh, whose resignation had already been accepted as recorded in the Managing Committee Meeting dated 14.07.1988. Despite his resignation, the record of the Managing Committee dated 20.09.1988 indicates that he was shown attending the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 145 of 220 meeting of the Managing Committee as the Managing Committee members were shown accepting the resignations of the remaining three members and enrollment form of newly enrolled members including the accused Gokul Chand Aggarwal. Pertinently, in the meeting dated 20.09.1988, the co-accused Gokul Chand Aggarwal was introduced in the society as a mere member.
This important and serious irregularity that Jasbir Singh was shown present as the Secretary despite acceptance of his resignation appears to have been overlooked by all three accused persons who overlooked the fact that Jasbir Singh had already been shown resigned from the society. This infirmity in the minutes of meeting dated 20.09.1988 makes the whole fucntioning of the society doubtful. It is clearly visible from the record itseslf. Its overlooking gives rise to an inference that the accused persons had acted dishonestly.
Circumstance No.2:-
111. Further, the meetings dated 14.07.1988 and 20.09.1988 were shown to be held under the chairmanship of Mahesh Gupta, shown as the President. In the promoter members, there was a person namely Mahesh Chand Gupta. He was also elected as the Vice President of the society. There was no person by name of Mahesh Gupta in the list of 65 promoter members. The accused persons Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar have over- looked this fact that there was no person by the name of Mahesh Gupta in the list of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 146 of 220 promoter members. There was a person by the name of M.C. Gupta, whose resignation was shown accepted in the Managing Committee meeting dated 14.07.1988. If Mahesh Gupta and M.C. Gupta were the same person, then how did Mahesh Gupta again preside over the meeting of the Managing Committee on 20.09.1988. These simple facts were not subtle and could be easily detected by just looking at the minutes of meeting. All three accused persons ignored them, giving rise to an inference that they had acted dishoneslty.
Circumstance No.3:-
112. Subsequently, in the Managing Committee meeting held on 18 November 1988, the remaining eleven new members were enrolled. Their names are as follows:-
a) Vijay Arora
b) Ram Chander Raja
c) Alka Gupta
d) Rajesh Kumar
e) Ramesh Chand Gupta
f) Moti Ram Singla
g) Nanak Chand
h) Gunwati Devi
i) Rajesh Kumar Garg
j) I.D. Aggarwal
k) G. Lal
113. In the managing committee meeting dated CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 147 of 220 18.11.1988, Jasbir Singh was again shown as present. His name appears prominently in the records of the managing committee meetings. The meeting was again shown presided by Mahesh Gupta as the President of the Society. The minutes of meeting of Managing Committee held on 14.07.1988, 20.09.1988, and 18.11.1988 indicate that Jasbir Singh and Mahesh Gupta were shown attending each meeting, although the minutes of the first meeting specifically shows acceptance of resignation of Jasbir Singh. As noted above, Jasbir Singh i.e. PW-45 has categorically denied attending all these meetings.
114. As we are proceeding under the assumption that the accused persons were not aware about the forged documents presented to them. Their sole method for identifying irregularities and illegalities was by examining the documents themselves. The accused Gopal Singh Bisht in his note sheet has mentioned that he has checked the resignation, and all resignations were found in order. Similarly, the accused Faiz Mohammad stated that only 17 members have resigned and 17 members have enrolled. Accued Faiz Mohammad further mentioned that after verification, the member register of the society is found completed.
115. The record shows that all resigned members were shown to have refunded their money in cash. The receipt as well as application for withdrawal/resignation has been typed on the same page. The date of resignation has been written at the right side of the top of the application. As noted above, the PW-5 and the PW-45 have denied receiving any share money of Rs. 100/-.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 148 of 220All the details in the resignation/withdrawal forms and receipts were typed except the name, membership number and amount which were filled up by hand. All resignation forms have the same format. There was no space for writing the date of resignation. It was mentioned by hand at the top right-hand side of the page. Total seventeen members were enrolled. The photocopies of their enrollment application were taken on record by the accused Gopal Singh Bisht on the page no. 256/C to 272/C. He categorically stated to have compared the same with the original. No address proofs of these persons were annexed. Gopal Singh Bisht stated in his note sheet that the enrollments were found in order and in accordance with provisions of Delhi Cooperative Societies Act and Rules, and since all these enrollments were made prior to 22.04.97, therefore, no proof of residence was required as per notification dated 05.12.2001. The accused Gopal Singh mentioned that the resignation and enrollments were as per rules. This circumstance No.3 further points out that at the second time, the accused persons ignored the name of Jasbir Singh attending the Managing Committee meeting dated 20.09.1988 and 18.11.1988 despite his signatures. It gives rise to the inference that they deliberately did that to benefit the accused Gokul Chand Aggarwal.
Circumstance No.4
116. Further, the minutes of Managing Committee of society dated 14.07.1988, 20.09.1988 and 18.11.1988 mention that the meetings were held at its office. The detail of the office was not given. As per the record, the office address of the society CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 149 of 220 in the year 1988 was 104, Raja House, Nehru Place, Delhi. It was the same in the year 1988. The office address of the society was the shop of its first promoter secretary Jasbir Singh, who has deposed as the PW-45 and has categorically stated that he did not attend any of such meetings. Subsequently, the said shop was purchased by PW-22 namely Pramod Kumar Ahuja in the year 1997-98. The PW-22 deposed that no society was running at the said address since the year he purchased the said shop. Initially, Managing Committee was formed with Jagmohan Singh as the President and Jasbir Singh as the Secretary. Mahesh Chand Gupta was the Vice President, whereas during the Managing Committee meeting dated 14.07.1988. 20.09.1988 and 18.11.1988, Mahesh Gupta was shown as the President of the society. How did he become the president was not verified by these accused persons, nor there are any minutes of meeting showing him becoming the President. Further, he has been shown resigned by the name of M.C. Gupta in the first Managing Ccommittee meeting dated 14.07.1988.
Circumstance No.5:-
117. In the meeting dated 14.07.1988, six members were shown attending the meeting. Their names are Mahesh Gupta, Jasbir Singh, Baljeet Singh, Vinod Gupta, C.G. Khanna, Ravinder Kaur, but there were only Mahesh Gupta and Jasbir Singh, who were the part of the initial Managing Committee. The other members namely Baljeet Singh, Vinod Gupta, C.G Khanna and Ravinder Kaur, being not the part of the Managing Committee, were not authorized to pass resolutions in the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 150 of 220 Managing Committee meetings to accept resignation and enrollment of new members. These irregularities in all these three meetings of Managing Committee were the glaring defects and were clearly visible from the record itself shown by Gokul Chand Aggarwal. Clearly, the Managing Committee meetings were shown to be held in presence of persons who were not even the members of the Managing Committee. Here, this court is not stressing upon what should have been done by accused persons but is highlighting towards the facts clearly visible from the minutes of meetings.
Circumstance No.6:-
118. The byelaws of Sunny CGHS requires that the managing committee shall consist of at least 05 members of the society. Five elected members were Jag Mohan Singh, Mahesh Chand Gupta, Jasbir Singh, Mukul Chaturvedi and R.N. Bhardwaj. There is no other resolution on file to show that the persons shown other then Jasbir Singh and Mahesh Chand Gupta in the Managing Committee meetings dated 14.07.1988, 20.09.1988 and 18.11.1988 had ever been elected as the Managing Committee office bearer or Members. Further, no elections were shown to be held after the formation of first Managing Committee consisting of the above said members. The show cause notice dated 09.11.1989 was issued to Sunny CGHS vide Ex. PW-46/C. In the said show cause notice, it was pointed out that the election of the society was due on 10.10.1987 and the requisition dated 26.05.1989 to hold the General Body Meeting was issued to conduct the election. As per the by-laws of the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 151 of 220 Sunny CGHS, the managing committee member shall hold office for 3 years and shall be eligible for re-election, but no member be eligible for holding the office of the President, Vice-President, Chairman, Vice-Chairman, Managing Direction, Secretary, Joint Secretary and Treasurer for more than two consecutive terms whether full or part. Thus, after expiry of three years, the society was bound to elect new Managing Committee as per the by-laws and Delhi Cooperative Society Act.
119. If no elections are held, then the elected members shall continue to hold office till their successors are elected or nominated as per the Section 31 of Delhi Cooperative Society Act, 1972. The bye-laws of Sunny CGHS were silent about continuation of previous elected members after the expiry of terms of office of the Managing Committee. The Deputy Registrar Ajay Kumar (PW-46) appointed Sh. A. K. Shastri as the Officer to hold the election of the Managing Committee of the society. However, elections could not be done as the Managing Committee of the society failed to do so and thereafter, the winding up order against the society was passed. At the time of preparing the note sheet, thereby proposing for the revival of society the accused Gopal Singh Bisht failed to consider that the mandate of the Managing Committee had already been expired on 10.10.1987 as per the show cause notice of Ajay Kumar, Assistant Registrar (Ex. PW-46/C). The accused persons have completely ignored this fact that how did the society, which was not responding to the notices of the Assistant Registrar to conduct the election, accepted the resignation and enrollment CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 152 of 220 during the same period of time. This fact had demanded close scrutiny of the documents produced by the accused Gokul Chand Aggarwal. Again, this court refrains itself from being judgmental about the past event or searching for an ideal situation, but making the observations on the facts clearly visible from the Minutes of Meeting.
Circumstance No. 7:-
120. The accused persons have completely overlooked the fact that how the society could accept resignation of 17 members in absence of the members of the Managing Committee shown to be present in those meetings. They have completely overlooked this fact that how did the society become suddenly dormant in the year 1989, when in the year 1988, members were resigning and enrolling themselves. It is incomprehensive that a society, which was active enough to enroll new members and to accept resignation of member, had suddenly become dormant on receiving the notice from the Registrar to hold election in just 06 months after their last Managing Committee meeting dated 18.11.1988. These circumstances warranted the accused persons to atleast carefully examine the documents placed before them, but they had over-looked the serious irregularities and went ahead with the revival of the society. The society accepting 17 resignation and 17 new enrollment in 1988 must be termed as the active society and that society, by no stretch of imagination would become dormant within 6 months. If the society was dormant and was not responding to the calls of the registrar of cooperative society, then it was actually not working and the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 153 of 220 Minutes of Managing Committee dated 14.07.1988, 20.09.1988 and 18.11.1988 should have raised the eyebrows of accused persons. Had they put their mere glance at these meetings, they would have easily detected the irregularities.
Circumstance No.8:-
121. Looking at the Managing Committee meetings dated 14.07.1988, 20.09.1988 and 18.11.1988 shows that actually, the accused Gokul Chand Aggarwal did not have any other way to enter the society except by forging the minutes of meeting dated 14.07.1988, 20.09.1988 and 18.11.1988. The original Managing Committee of the society was not working. In absence of the Managing Committee, no new enrollment could be possible.
Therefore, the accused Gokul Chand Aggarwal thought up the way to enter the society by forging Minutes of Meeting. He inducted new members in the society to get control over the society because the society was not working. The original promoter members were not interested in the functioning of the society. The final list of 65 promoter members had already been approved and was sent to DDA for allotment of land at the earliest. It is reiterated here even at the cost of brevity that the only way to enter the society was to move an application for enrollment. That was not possible because the promoter members were not interested. Therefore, the accused persons devised a new method to become member by forging minutes of meeting of the Managing Committee.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 154 of 220Circumstance No.9:-
122. The record of the society delineates that after the Managing Committee meeting of 18.11.1988, the society did not do anything to call the General Body Meeting or to conduct elections under the supervision of Mr. A.K. Shastri, who was appointed as the Election Officer by the Assistant Registrar Ajay Kumar, PW-46 vide order dated 02.01.1990 (Ex. PW-46/E). It seems that the society went into deep slump. Consequently, the order for winding up was passed against the society with immediate effect vide Ex. PW-51/A and the liquidator Mr. R.K. Bhalla was appointed vide Ex. PW-58/A vide letter dated 25.07.1995. Thereafter, nothing was heard of the society. This circumstance warranted close scrutiny of documents of the society.
Circumstance No. 10:-
123. After the lull of 14 years from the last alleged meeting of the Managing Committee dated 18.11.1988, the Managing Committee meeting was shown to have taken place on 20.10.2002 at 04:30 PM at its office under the chairmanship of Gokul Chand Aggarwal. The said meeting was attended by the following persons:-
i) Gokul Chand Aggarwal;
ii) Satish Agagrwal;
iii) Ajay Kumar Goyal ;
iv) Sh. Pawan Kumar;
v) Sh. B.M. Gupta;CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 155 of 220
vi) Smt. Hitesh Gupta; and
vii) Smt. Vijay Arora.
124. The agenda of the managing committee meeting was to appoint the Secretary and the Treasurer. In the said meeting, President Gokul Chand Aggarwal proposed the name of Sh. Pawan Kumar for the post of Secretary which was seconded by Sh. B.M. Gupta. Sh. Satish Aggarwal proposed the name of Ashok Kumar Goyal for the post of Treasurer which was seconded by Ms. Hitesh Gupta. Both were elected as the Secretary and the Treasurer respectively. The newly elected Secretary was authorised to send the details to the Registrar, Cooperative Societies about the election of the society.
125. On the same day, at 10:30 PM, the General Body Meeting of the society was shown to have been called at 4720/47, Ragurpura, Karol Bagh, Delhi under the chairmanship of Baljeet Singh. Interestingly, the Agenda No.3 of the General Body Meeting was to conduct smooth and fair elections of the society and the members were informed that the society had appointed an Election Officer for that purpose. The Election Officer, whose name has not been mentioned in the Minutes of General Body Meeting, informed the members allegedly present there that election was held for the following posts:-
i) one post of President;
ii) one post of Vice President; and
iii) five posts of Member, Managing Committee CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 156 of 220
126. He further informed that the total 07 nominations were received for the above mentioned posts (one for the post of President, one for the post of Vice President and five for the post of Member, Managing Committee). Out of five posts, 02 posts were reserved for woman candidate. All nominations were found valid and no withdrawal was there on the date of withdrawal. Therefore, following candidates were elected for their respective posts because the number of nomination did not exceed the number of posts to be filled.
i) Gokul Chand Aggarwal for President;
ii) Satish Agagrwal for Vice-President;
iii) Ajay Kumar Goyal, Managing Committee Member;
iv) Sh. Pawan Kumar, Managing Committee Member;
v) Sh. B.M. Gupta, Managing Committee Member;
vi) Smt. Hitesh Gupta, Managing Committee Member;
vii) Smt. Vijay Arora, Managing Committee Member;
127. Further, the Election Officer requested the newly appointed Managing Committee to kindly conduct a managing committee meeting to elect the Secretary and the Treasurer of the society. In the General Body Meeting, it was also decided to change the address of the society to 4720/47, Ragurpura, Karol Bagh, Delhi. The Agenda No.2 of the General Body Meeting was to discuss about revival of society. In the said General Body Meeting, it was resolved that Sunny CGHS would move a request to the Registrar of Delhi Cooperative Societies for revival of the society. The meeting was accordingly ended.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 157 of 220128. Both these minutes of meeting i.e. Managing Committee Meeting held on 20.10.2002 at 04:30PM and the General Body Meeting at 10:30 PM on the same day were placed before the accused persons. The accused Gopal Singh Bisht claimed to have cross-checked all the minutes of meeting. The Inspector Faiz Mohammad has seen all the record to bring out the factual position of the society. The accused Narayan Diwakar wrote in his revival order that the application forms, share money, receipt and resolution of managing committee or newly enrolled members have also been verified from the original records and the society has tried to remove the short-comings on the basis of which the society was put under liquidation. The accused Narayan Diwakar stated that the managing committee was continuously managing the affairs of the society and was instrumental in its effect to revive the society. The accused persons were making observations against the record of the society. The existence of the Management Committee was itself doubtful. This circumstance also gives rise to the inference that the accused pesons were acting dishonestly. The record was clearly depicting the serious irregularities, but the same were being overlooked.
129. Interestingly, the Managing Committee meeting was called at 04:30 PM on 20.10.2002. In the said meeting, Gokul Chand Aggarwal was shown as the President and he went ahead to appoint the Secretary and the Treasurer. Thereafter, the General Body Meeting was shown to be held at 10:30 PM at Regarpura, Karol Bagh, where the election officer had declared CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 158 of 220 Gokul Chand Aggarwal as the President and had requested him to conduct Managing Committee meeting to elect the Secretary and treasurer of the society. Assuming that both these two minutes of meeting were appeared genuine to the accused persons, the defects in their contents are apparent to the effect that before the General Body of Meeting, the Managing Committee meeting was held, wherein Gokul Chand Aggarwal had claimed himself to be the President without being elected as the President by the General Body Meeting.
The Managing Committee of the society is elected by the General Body Meeting of the Cooperative Society as per Rule 58 of Delhi Cooperative Society Rules, 1973. Here, the General Body Meeting was shown to be held at 10:30 PM. Before that, at 04:30 PM, the accused Gokul Chand Aggarwal had projected himself as the President and even selected the Secretary and Treasurer of the society. Further, who had authorised Gokul Chand Aggarwal to call Managing Committee meeting at 04:30 PM on 20.10.2002, when he himself did not hold any position in the Managing Committee. As noted above, he was shown just enrolled as the member in the society by the Minutes of Meeting held on 20.09.1988. Jasbir Singh was the Secretary at that point of time.
However, suddenly without any changes in the Managing Committee of the society, the meeting of the managing committee was shown to be held on 20.10.2002 at 04:30 PM under the chairmanship of Gokul Chand Aggarwal, where he had CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 159 of 220 appointed the Secretary and Treasurer. Thereafter, General Body Meeting was shown to be held, and in the said meeting, he was declared as the President, unopposed. In the General Body of meeting held on 20.10.2002 at 10:30PM at Ragurpura address, elections were shown to be held. Importantly, there has been no minutes of meeting, whereby the election officer was appointed.
Circumstance No.11:-
130. Elections were shown to be held only for one post of the President, one post of Vice President and five posts of members of Managing Committee. The election schedule, which is at page no. 308/C, shows that the election officer namely Mr. Ashutosh issued the election schedule dated 18.09.2003, wherein he notified that he had been appointed as the election officer by the Managing Committee of the Sunny CGHS in its meeting dated 18.08.2002. The minutes of meeting dated 18.08.2002 are not on record. The accused persons did not bother to see, while checking the document, as to whether the resolution dated 18.08.2002, whereby the election officer had been appointed, had not been placed on record to check the veracity of elections. The election officer notified in its notification that the election would be held at 12:00 noon on 20.10.2002 at 4720/47, Ragurpura, Karol Bagh, New Delhi. He notified that the list of members would be displayed at the office of the undersigned and the General Body Meeting shall begin on 20.10.2002 from 10:30 AM at 4720/47, Reigharpura, Karol Bagh, New Delhi. In case, the quorum is not completed within one hour, the meeting shall stand adjourned for half an hour and the adjourned meeting shall take CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 160 of 220 place at 12:00 noon. In the adjourned meeting, no quorum shall be necessary in terms of the amended Rule 53 (3) of DCS Rules, 1973. Election officer did not give his office address. Then, he gave the report that on 09.10.2002, he displayed the final list of the contesting candidates and since the number of candidate seeking election did not exceed the number of posts to be filled through election, no polling was required as per provisions of Clause-9 of Schedule-2 of Rule 58 (1). Accordingly, he declared the candidate shown below as duly elected to the managing committee of the society:-
i) Gokul Chand Aggarwal for the post of President;
ii) Satish Aggarwal for the post of Vice President;
iii) Ajay Kumar Goyal for the post of Member Managing Committee;
iv) Sh. Pawan Kumar for the post of Member Managing Committee;
v) Sh. B.M. Gupta for the post of Member Managing Committee;
vi) Smt. Hitesh Gupta for the post of Managing Committee Member; and
vii) Smt. Vijay Arora for the post of Managing Committee Member;
131. The notice for annual General Body Meeting of Sunny CGHS was shown to be issued on 18.09.2002 on the letter head containing the address of the society as 104, Raja House, 3031, Nehru Place, Delhi. The said letter was shown to be addressed to all members of the society and was signed by CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 161 of 220 Honorary Secretary. Importantly, the name of the Honorary Secretary has not been mentioned on the said letter. Only signatures of the Secretary has been shown. From the signatures, the name of the Honorary Secretary can not be deciphered. This is also a glaring defect in the document itself, which should have prompted the accused persons to raise objection as to who was the Secretary, who had issued the letter dated 18.09.2002. On 20.10.2002, the Managing Committee meeting was first shown to be held at 04:30 PM and thereafter, General Body Meeting was shown to be held at 10:30 PM. Before being appointed as the President by the General Body Meeting, the accused Gokul Chand Aggarwal was shown as the President in the Managing Committee Meeting. It is reiterated here that these glaring defects are in the document itself. The documents itself speak about these defects. By assuming that the accused persons were not aware that the members shown present in the minutes of the General Body meeting had not been actually present in the said meeting, but they had the documents with them. They may not be aware that the names of fictitious members have been added in the register of the society, but they could easily find out the serious irregularities in the minutes of meeting of Managing Committee and General Body Meeting.
132. Here, the documents speak volume about the illegalities done in conducting the proceedings of the society. The documents on record were providing the great deal of information and clearly showing without any further evidence that serious irregularities had been conducted by the society.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 162 of 220Photocopies of minutes of Managing Committee dated 14.07.1988, whereby the secretary of society namely Jasbir Singh was shown resigned; the minutes of meeting dated 20.09.1988, whereby Jasbir Singh was shown again, attending the meeting and admitting new members including the accused Gokul Chand Aggarwal. In the minutes of meeting dated 18.11.1988, the resigned Secretary Jasbir Singh was again shown attending the meeting and admitting other members of the society. Thereafter, the society went into hibernation. Concurrently, the Registrar Office was issuing notices, calling upon the society to conduct elections. Thereafter, the winding up order was passed and the liquidator was appointed as the society failed to do elections. After the lull of several years, the society came out of slumber and appointed the election officer by name of Ashutosh, who having relied upon Managing Committee meeting dated 18.08.2002, published the election schedule. The minutes of Managing Committee of 18.08.2002 are not on record, meaning thereby, the same was not sought by the accused persons. The notice for the annual General Body Meeting is shown to have been issued on 18.09.2002 by the Secretary, whose name has not been shown in the notice. His signature was only there. These facts are visible from the documents itself without calling any member or without summoning any further additional document from the society.
It is apposite to mention here that the accused persons failed to notice that the name and the father's name in the affidavit (Ex. PW-28/A) of Ram Chander Raja S/o D.S. Raja do CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 163 of 220 not match with the particulars mentioned in the enrollment form, wherein the names have been mentioned as Ram Chander Rana and Dhram Singh Rana. It is not known whether they are two different persons or the same persons. It was the job of the accused Faiz Mohammad, accused Gopal Singh Bisht and the accused Narayan Diwakar to atleast check the particulars of the affidavits.
Good Faith and Dishonesty:-
133. It is submitted that Section 93 of Societies Registration Act, 1972 bars the jurisdiction of court. It is further argued that Section 95 of Societies Registration Act, 1972 says that no suit, prosecution or other legal proceedings shall lie against the Registrar or any other person subordinate to him or acting on his authority in respect of anything in good faith done or purported to have been done under this act. It is further argued that Section 63 (3) of Societies Registration Act, 1972 provides that the registrar may cancel an order for the winding up of cooperative society at any time in any case, where in his opinion the society should continue to exist. For a convenience, all three provisions are reproduced here as under:-
"Section 93 - Bar of jurisdiction of courts - (1) Save as provided in this act, no civil or revenue court shall have any jurisdiction in respect of -
a) the registration of cooperative society or its bye- laws or of an amendment of a bye-law;
b) removal of a committee;
c) any dispute required under Section 60 to be referred to the Registrar; and
d) any matter concerning the winding up and the dissolution of a cooperative society.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 164 of 220
(2). While a cooperative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the registrar and subject to such terms as he may impose.
(3) Save as provided in this act, no order, decision or award made under this act shall be questioned in any court on any ground whatsoever.
Section 95 - Indemnity:-- No suit, prosecution or other legal proceedings shall lie against the Registrar or any person subordinate to him or acting on his authority in respect of anything in good faith done or purporting to have been done under this act.
Section 63 - Winding up of Cooperative Societies:- (1) If the Registrar, after an enquiry has been held under Section 55, or an inspection has been made under Section 56, or on receipt of an application made by not less than 3/4th of the members of the cooperative society is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up.
(2) The Registrar may on his own motion make an order directing the winding up of a cooperative society - a) Where it is a condition of registration of the society that the society shall consist at least 10 members and the number of members has been reduced to less than 10 or where the cooperative society has not commenced working or has ceased to function in accordance with cooperative principles.
(3) The Registrar may cancel an order for winding up of a cooperative society, at any time, in any case where, in his opinion, the society should continue to exist.
(4) A copy of such order shall be communicated by a registered post to the society and to the financing institutions , if any, of which the society is member CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 165 of 220 (5) Notwithstanding anything contained in this section, no cooperative bank shall be wound up except with the previous sanction in writing with the reserve bank."
134. Perusal of all these three provisions shows that there is a bar of jurisdiction of civil court or revenue court in respect of registration of society, removal of a committee and winding up of a cooperative society. Further, no prosecution shall lie against the Registrar or any person subordinate to him or acting on his authority in respect of anything done in the good faith. The good faith has been defined under Section 52 of the Indian Penal Code.
"Section 52 IPC - "Good Faith":-
Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention."
135. As noted above in the eleven circumstnaces, the accused persons have brazenly ignored the glaring serious irregularities, clearly visible from the minutes of meetings. They can not be said to have done the act in Good Faith as they did the act without due care and attention. The indemnity of Section 95 of the Delhi Cooperative Society Act protects the act done in good faith. Where there is no Good Faith, no protection is available. At this stage, it is relevant here to refer to the definition of 'dishonestly'. The definition of "dishonestly" is provided under Section 24 of IPC which provides that :-
"Section 24 - "Dishonestly" - Whoever does anything with the intention of causing wrongful CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 166 of 220 gain to one person or wrongful loss to another person is said to do things "dishonestly".
136. Though the role of all these three accused persons is common, however, at this stage, this court would like to emphasize the role of the accused Narayan Diwakar. The accused Narayan Diwakar while reviving the Sunny CGHS provided the brief reasons leading to the winding up of the society. Thereafter, he stated that Mr. Gokul Chand Aggarwal, President of society appeared before him on the date fixed and stated that in the special GBM held on 20.10.2002, elections for the managing committee of the society were got conducted strictly in accordance with provisions of law.
Here, this court pause for a moment and would like to note that the accused Narayan Diwakar had completely overlooked the documents relating to the election done by the Managing Committee. The notification by the election officer was itself defective as no resolution of the managing committee was filed on record, whereby the election officer was appointed.
137. Further, he noted that with regard to audits, it is mentioned that all the pending accounts are ready for audit and filed photocopies of unaudited accounts of the society till 31.03.2003. The President and the Secretary of the society made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 19.07.2003 to this effect. They were directed to file all the original records before the Assistant Registrar concerned for verification. He further noted that CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 167 of 220 Assistant Registrar (South) has reported that original record were produced by the society and got verified. His further observations are reproduced here as under:-
"The society has submitted a list of 65 members as on date and unaudited account till the period ending 31.03.2003. It is further reported by the concerned Zonal Officer that the freeze list of 65 members of the society was approved vide this office letter No. F.47/Veri/Coop/NGH/2971-72 dated 24.05.1988 and forwarded to DDA. It is also reported that thereafter, the society has accepted 17 resignations from the members and 17 enrolled applications. The records regarding holding of election of managing committee of society on 20.10.2002 have been verified and found in accordance with the provisions of the cooperative law. The application forms, the share money receipts and resolution of MC of newly enrolled members have also been verified from the original records. Fresh affidavits in respect of all the 65 members of the society have also been filed. It is also mentioned in the report of AR (South) that an inspection under Section 54 of DCS Act 1972 was conducted to ascertain existence and functioning of the society. The inspector who conducted the statutory inspection under Section 54 of the DCS Act 1972 has reported that the society is very much in existence. It has been mentioned in the report of Assistant Registrar south that the society is put under liquidation and a liquidator was appointed but the order for appointment was never served to the liquidator. The society has tried to remove the shortcomings on the basis of which, the society was put under liquidation. The managing committee of the society was continuously managing the affairs of society and was instrumental in its effect to revive the society. Therefore, in absence of finalisation of liquidation proceedings, action initiated under Section 63 of DCT Act 1972 has become a nullity."
138. In view of the aforesaid observations, he cancelled the winding up order dated 03.08.1990 with immediate effect and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 168 of 220 took on record the 17 resignations and 17 new enrollments accepted by the society. He further appointed the accused Sanjeev Bharti Gr.III of RCS Office as Election Officer to conduct the election of the managing committee of the society within two months.
139. From the reviving order dated 05.09.2003, it is apparent that the accused Narayan Diwakar in the capacity of the Registrar was aware about the entire facts as he had summarized the facts in his order. It is not that he had only seen the verification report of the accused Gopal Singh Bisht placed in the file at page No. 21/N to 26/N. In-fact, it was his legal duty to see all the records. He was aware that the society was under
liquidation because they did not call the GBM to conduct election. Despite that, he made the observation that the society had tried to remove the short-comings on the basis of which the society was put under liquidation and the managing committee of the society was continuously managing the affairs of the society. His job was not just to compare the originals with photocopies. The domain of his job was very wide to enable him to have a watch over cooperative societies to regulate them to fulfill the cooperative spirit. The Section 55 of DCS Act empowers the Registrar to hold an inquiry or direct some person authorised by him to hold an inquiry into the constitution working and financial condition of the cooperative society. He may call a GBM of the society. He may summon any person who is reasonably believed by him to have any knowledge of the affairs of the society and may examine such person on oath. He may inspect the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 169 of 220 cooperative society and may in the event of serious irregularities take the documents of the society into custody. The DCS Act does not control his powers . In fact, it gives wide discretionary powers to the registrar to regulate the societies and the rational behind giving more powers to the registrar is to ensure that societies are run according to the democratic and cooperative spirit. This court has already noted the circumstances where the accused Faiz Mohammad, Gopal Singh Bisht and the accused Narayan Diwakar have completely ignored the serious lapses.
140. Further, the Section 63 (3) of DCS Act undoubtedly powers the registrar to cancel the winding up order, where in his opinion the society should continue to exist. Needless to say that his opinion should be based on good faith and there should not be any dishonesty in it. If the revival order is not passed in Good Faith, then no protection is available to the accused under Section 95 of DCS Act. The interpretation given by the accused to the deemed termination of winding up proceedings after 03 years of passing of the winding up order by operation of law is not the correct interpretation inasmuch as termination of winding up proceedings and passing a revival order under Section 63(3) are two different things. It is appropriate here to reproduce what Rule 105 of DCS Rules, 1973 says:-
"105. Termination of liquidation proceedings:-
The winding up proceedings of society shall be closed within one year from the date of the order of winding up, unless the Registrar extends the period.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 170 of 220
(Provided that the Registrar shall not grant any extention for a period exceeding 06 months at a time and 03 years in the aggregate and shall immediately after the expiry of 03 years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amount due to the governments or the financing bank by the society and pass an order terminating the liquidation proceedings.
Explanation - In the case of cooperative society which is under liquidation at the time of commencement of the Act, the order for winding up of the society shall be deemed for the purpose of this rule to have been passed on the date of such commencement.
2. - Notwithstanding anything contained in the forgoing sub-rule, the Registrar shall terminate the liquidation proceedings on the receipt of final report from the liquidator. The final report of the liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claims of the society have been disposed of and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its liabilities including the share or interest of members, and suggest how the surplus should be utilised.
3. The liquidator before submitting a final report may call a meeting of General Body of the society and place the report before it if permitted by the Registrar. "
141. On the other hand, Section 63(3) of DRC Act, 1972 talks about cancellation of an order of winding up of a cooperative society, at any time, in any case where, in his opinion, the society should continue to exist. The above stated Rule 105 DCS Rules talks about termination of liquidation proceedings. Purpose of this rule is to expedite the liquidation CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 171 of 220 proceedings so that the society which has been wound up shall be removed from the record of the registrar by cancellation of its registration number under Section 69 of DCS Act, 2002. If liquidation proceedings are not conducted within time, then the Rule 105 says that there shall be deemed termination of the liquidation proceedings. It does not say that it would be deemed revival of the society. There is no provision under DCS Rules which says about the 'deemed revival' by operation by law.
142. There should be an order of the Registrar under Section 63 of DCS Act for the revival and that order should be based on the documents placed before the Registrar. The Registrar is not bound to revive the society which has serious irregularities in its documents. No law or court directs the Registrar to revive the society which claims its revival based on the forged documents. The interpretation given to the Rule 105 and Section 63(3) of DRC Act was given to serve their purpose to revive the society, which had lost its mandate to be termed as the cooperative society because of loss of interest of its promoter members. If the majority of promoter members had nothing to do with the society, then the society should have been removed from the register of the Registrar. However, the society was possessed by the accused Gokul Chand Aggarwal. The easily discernible manipulations in the minutes of Meeting of Managing Committee and GBM were overlooked by the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar and they went ahead with their recommendation. These defaults, lapses and irregularities on the part of the accused persons do not fall in CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 172 of 220 the category of departmental lapses, violation of codal formalities or the negligent conduct. As noted above, there are the deliberate attempts by the accused persons to suppress the real facts and to dishonestly ignore the mandate of the provisions of the DCS Act and Rules. Their conduct falls in the category of misconduct under Section 13(1)(d) of P.C. Act, 1988 and therefore, they are found guilty of the offence under Section 13(1)(d) of P.C. Act, 1988 read with S. 13(2)/ S. 15 of P.C. Act.
Conspiracy of Public Servants with the private accused persons:-
143. It is the case of the prosecution that the public servants conspired with the private persons to give benefit to the accused Gokul Chand Aggarwal. It is to be noted here that in the matter of State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600, the Hon'ble Supreme Court held as under :-
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
144. Further, in the matter of Yogesh v. State of Maharashtra [(2008) 10 SCC 394, the Hon'ble Supreme Court held as under:-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 173 of 220"25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement."
145. Reverting back to the facts of the present case, it is alleged that the accused Faiz Mohammad, Gopal Singh Bisht, accused Narayan Diwakar, P.K. Thirwani and Saneev Bharti being the public servants conspired with the accused persons namely Gokul Chand Aggarwal, Naveen Kaushik and Ashwani Sharma for revival of the society on the forged documents. For the offence of conspiracy, agreement to do an illegal act or an act by illegal means is a sine qua non and it is not necessary that some overtact should have been done in furtherance of agreement. The onus is on the prosecution to prove the charge of conspiracy by cogent evidence direct or circumstantial.
146. In the present case, apparently, there is no direct evidence qua the public servants that they had taken bribe to favour the society Sunny CGHS controlled by the accused Gokul Chand Aggarwal. The case of the prosecution depends upon circumstantial evidence. The five golden rules as set out in the judgment of Sharad Birdhichand Sarda vs State of Maharashtra (Supra) shall also apply while proving the offence of conspiracy.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 174 of 220147. With regard to the public servants, this court has already noted down the circumstances pointing out the apparent agreement amongst the accused persons namely Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar and Gokul Chand Aggarwal to do the illegal act of reviving the society based on forged documents. As noted above, the following facts are being repeated here in brief as the circumstantial evidence qua the public servants and the accused Gokul Chand Aggarwal:-
i). Overlooking the fact of resignation of secretary of Sunny CGHS in the Mmanaging Committee meeting dated 20.09.1988 and 18.11.1988;
ii). Overlooking the fact that in the Managing Committee Meetings dated 14.07.1988, 20.09.1988 and 18.11.1988, the members of Managing Committee were not the elected members;
iii). Overlooking the illegality in the appointment of election officer for election of new managing committee allegedly shown to be held on 20.10.2002;
iv). Overlooking the fact of holding managing committee meeting dated 20.10.2002 at 04:30pm by the accused Gokul Chand Aggarwal without being appointed as the President of the society;
v). Overlooking the fact as to who had appointed the election officer for the election to be done in the GBM allegedly shown to CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 175 of 220 be held on 20.10.2002;
vi). Overlooking the fact that the society which was wound up for want of election suddenly became active with a complete new set of managing committee;
vii). Overlooking the fact of appointment of procedure of ew managing committee.
viii). Overlooking the fact of change of address without any intimation to the Registrar.
ix). Overlooking the difference of names in the enrollment form and the affidavit of the PW-28.
148. All the aforesaid circumstances have already been discussed in detail while deciding the culpability of the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar. The act of overlooking the serious irregularities at the time of verification of documents and while passing the revival order clearly points out the criminal conspiracy between the accused Faiz Mohammad, Gopal Singh Bisht and the accused Narayan Diwakar. They all would not have done it by their own without the complicity of the other co-accused persons namely Gokul Chand Aggarwal whose role shall be decided at the later stage of this judgment. However, the circumstances categorically point out that the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar had conspired with the other accused person CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 176 of 220 namely Gokul Chand Aggarwal to favour revival of Sunny CGHS.
149. Now, this court shall come to issue of requirement of sanction under Section 197 Cr.P.C to prosecute the public servants. It is relevant here to reproduce the relevant part of Section 197 Cr.P.C for a better understanding of the provision:-
"S. 197 Prosecution of Judges and public servants 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-
1. 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;
2.in the case of a person who is employed or, as the case may be, was at the lime of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided........."
150. The principle governing the sanction under Section 197 Cr.P.C has been laid down by the Hon'ble Supreme Court in number of judgments. In the matter of B. Saha v. M.S. Kochar [(1979) 4 SCC 177, the Hon'ble Supreme Court held as under:-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 177 of 220"17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijnath v. State of M.P. [AIR 1966 SC 220] :
(AIR p. 227, para 16) '16. ... It is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted'.
18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
151. Further, in the matter of Rakesh Kumar Mishra v. State of Bihar [(2006) 1 SCC 557, the Hon'ble Supreme Court held as under:-
"12. It has been widened further by extending protection to even those acts or omissions which CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 178 of 220 are done in purported exercise of official duty; that is, under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted.
152. Here, reliance is also placed on Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1, wherein the Hon'ble Supreme Court held as under:
"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding.CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 179 of 220
The question whether sanction is necessary or not may have to be determined from stage to stage."
153. The issue of Sanction under Section 197 Cr.P.C can be taken up at any stage as observed in the matter of Davender Singh vs State of Punjab, Crl. Appeal No. 190/2003, wherein it was observed that the question of sanction can be raised at any time in the light of evidence adduced after conclusion of trial or at other appropriate stage.
154. Further, in the matter of A. Srinivasulu vs State (Rep. by Inspector of Police) 2023 Livelaw (SC) 485 wherein the Hon'ble Supreme Court held that the observations contained in paragraph 50 in the decision in Prakash Singh Badal are too general in nature and can not be regarded as the ratio flowing out of the said case. If by their very nature, the offences under Section 420, 468, 471 and 120-B IPC can not be regarded as having been committed by the public servant while acting or purporting to act in the discharge of official duties, the same logic would apply in much more vigour under the cases under PC Act. The paragraph 48 to 51 of this judgment is reproduced here as under:-
"48. Sh. Padmesh Mishra, Ld. counsel for respondent placed strong reliance upon the observation contained in paragraph 50 of the decision of this court in Prakash Singh Badal vs State of Punjab. It reads as follows:-
"50. The offence of cheating under Section 420 or for that offences relatable to Section 467, 468, 471 and 120-B IPC can by no stretch of imagination by CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 180 of 220 their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duties. In such cases, official status only provides an opportunity for commission of offence.
49. On the basis of the above observation, it was contended by Ld. counsel for the respondent that any act done by public servant, which constitutes an offence of cheating, can not be taken to have been committed while acting or purporting to act in the discharge of official duty.
50. But the above contention in our opinion is far-fetched. The observations contained in paragraph 50 of the decision in Prakash Singh Badal (Supra) are too general in nature and can not be regarded as the ratio flowing out of the said case. If by there very nature, the offence under Section 420, 468, 471 and 120-B IPC can not be regarded as having been committed by a public servant while acting or purporting to act in discharge of official duties, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 in decision of Prakash Singh Badal can not be taken as carving out an exception judicially, to a statutory prescription. In-fact, Prakash Singh Badal cites with approval the other decision (authored by the very same Ld. Judge) where this court made distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the preposition laid down in Rakesh Kumar Mishra (supra) was distinguished in paragraph 49 of the decision in Prakash Singh Badal before the court made the observations in para 50 extracted above.
51. No public servant is appointed with a mandate of public to commit an offence.
Therefore, the observations contained in paragraph 50 of the decision in Prakash Singh Badal are applied, any act which constitutes an offence under any statue will go out of the purview of an act in the discharge of official duty. The requirement of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 181 of 220 previous sanction will thus be redundant by such an interpretation. "
155. Therefore, the twin test is to be passed by the accused for availing the benefit under Section 197 Cr.P.C.
Firstly is that he is a public servant not removable from his office saved by or with the sanction of the Government;
Secondly, he did the alleged offence while acting or purporting to discharge his official duty.
156. Reverting back to the facts of the present case, the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar were the government servants. The accused Gopal Singh Bisht was working as the Dealing Assistant. The accused Faiz Mohammad was working as the Inspector. The phrase in the Section 197 Cr.P.C "removable from his office save by or with the sanction of the Government" restricts its application to only for those public servants, who are removable with the sanction of the government only. Not all the public servants are removable by or with the sanction of the government. In the executive sphere of the government, the Central Government performs its official act under the seal of the President of India, whereas the State Governments works through the seal of the Governor of State. Only those government servants, who are removable by the order of the President of India or the Governor of the State are protected under Section 197 Cr.P.C. Apparently, the accused Gopal Singh Bisht and the accused Faiz Mohammad were CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 182 of 220 removable from their competent authority of their department i.e. the Chief Secretary/Director/Registrar of GNCT, Delhi. Therefore, they were not removable by the Government, hence, the protection under Section 197 Cr.P.C is not available to them. Since, this protection under Section 197 Cr.P.C is not available, therefore, further discussion on facts to find out whether their alleged acts come under discharge of the official duties needs not to be done.
157. Now, coming to the sanction under Section 197 Cr.P.C in respect of the accused Narayan Diwakar. He was the Registrar, Cooperative Society. He was an IAS officer. Undisputedly, he was removable by or with the sanction of the government. Therefore, the first limb of the Section 197 Cr.P.C is fulfilled qua him. The second limb of the Section 197 Cr.P.C says that the act must be done while acting or purporting to act in discharge of his official duties. He passed the revival order. Apparently, there is no direct evidence of bribe against him. Had it been the direct evidence of bribe, then this court would easily say that taking bribe is not a part of his official duties. But, here we have drawn inferences from the facts that he had overlooked some material and serious irregularities while passing the revival order. His official duty to pass the revival order and overlooking the material irregularities in the record of the society are intrinsically inter-connected. The alleged act is so mingled with his official duty that both these acts can not be separated with each other. As noted above, this court has pointed out the incriminating circumstances, which are only consistent with the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 183 of 220 guilt of the accused persons from the documents available on the record. There is no evidence that the accused Narayan Diwakar had himself forged any document. However, inferences have been drawn from the verification report/inspection report and his revival order that he had overlooked the serious irregularities in connivance with the other accused persons. Thus, by applying "reasonable nexus" test which means there must be a reasonable connection between the act alleged as an offence and the official duty of the public servant, it would thus been seen that the accused passed the revival order in discharge of his official duties and therefore, the sanction under Section 197 Cr.P.C was required. Though this court has held him guilty under Section 13(1)(d) read with S. 13(2) of PC Act, 1988 and has also observed that he had conspired with other accused persons, but the observations of this court should not be a substitute for the Sanction under Section 197 Cr.P.C. If the final judgment of the court is substituted in place of sanction, then the Section 197 Cr.P.C shall become redundant. The requirement of the sanction is to be seen from the alleged offence, not from the view taken by the court on merits of the case. Accordingly, in absence of the sanction under Section 197 Cr.P.C, the accused Narayan Diwakar can not be held guilty for the Indian Penal Code offences (IPC).
Sanction under P.C. Act:-
158. The accused Narayan Diwakar had already been retired at the time when the investigation was taken up for the offence under the PC Act and therefore, there was no need for sanction for him under the PC Act. Similarly, the accused Faiz CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 184 of 220 Mohammad had already been retired when the investigation was taken up. Therefore, there was no need of sanction for the PC Act offence. This court has perused the testimony of PW-42 who had given the sanction in respect of the accused Gopal Singh Bisht.
In respect of the accused Gopal Singh Bisht, the witness PW-42 deposed that he was the Chief Secretary to Govt. of NCT of Delhi in August, 2006. On an application of CBI, he granted sanction to prosecute the accused Gopal Singh Bisht. The CBI provided him the documents including statements of witnesses recorded by the IO and report given by Superintendent of Police, CBI. He perused all those documents before granting sanction. Orders passed by him in this regard are Ex. PW-42/B. He identified his signatures on the sanction. He stated that he was the competent authority to remove the accused. He was cross- examined on behalf of the accused Gopal Singh Bisht. He denied the suggestion that he did not apply his mind before granting sanction. He denied the suggestion that he had simply signed the draft order prepared by the CBI. Therefore, from the testimony of PW-42, this court finds that the sanctioning authority perused the statements of witnesses who were categorically saying that their signatures were forged and they did not become the member of any society. Thus, the record shows that the sanctioning officer applied his mind before granting sanction in respect of the accused Gopal Singh Bisht. As a result, the accused Gopal Singh Bisht and Faiz Mohammad are found guilty of offences under Section 13(1)(d)/13(2) of PC Act, 1988 read with Section 15 of P.C. Act, 1988 and for the offence under Section 120-B IPC read with Section 419/420 r/w 511/468/471 of Indian Penal Code, CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 185 of 220 1860. Whereas, the accused Narayan Diwakar is found guilty of offence under Section 13(1) (d) of P.C. Act, 1988 read with Section 13(2) and Section 15 of P.C.Act, 1988.
Accused Sanjeev Bharti:-
159. The accused Sanjeev Bharti was appointed as the Election Officer by the revival order dated 05.09.2003. It is alleged that he had filed the fake election report of the society.
The prosecution submits that the persons shown attending the election allegedly conducted by the accused Sanjeev Bharti did not actually participate in any of the meeting of the society and therefore, the election record was forged to favour the accused persons to conceal the forged record of the Sunny CGHS. Apparently, the promoter members and the newly enrolled members, who deposed before the court, have stated that they did not attend any meeting of the society. Ld. defence counsel for the accused submits that this election report had nothing to do with the revival of the society and therefore, it was a mere piece of paper. This court does not agree with this submission and observes that conducting election was one of the essential features of the functioning of the society, and if fake elections are held, then this report is very much relevant to show the irregularities in the society.
160. However, an important issue that needs consideration is that this alleged report filed on the court's record is the photocopy. The prosecution has tried to prove his signatures on the photocopies of the election report through the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 186 of 220 PW-30. The prosecution has also tried to lay down the foundation to show that these photocopies may be read as the secondary evidence by examining the PW-32 Sh. Madan Lal Sharma (PW-
32) stated that in the year 2006, he was posted in the office of RCS as Assistant Registrar (South and Policy). He had handed over certain documents to the CBI concerning Sunny CGHS i.e. election documents conducted by Election Officer Sanjeev Bharti. He stated that only photocopy of the record i.e. Election Report dated 10.10.2003 were available in the office of RCS and original of the same were not available in the office of RCS. The testimony of PW-32 has not laid down the foundation required under Section 65 (a) of the Indian Evidence Act to show that the original was either lost or not available. Further, if this report is considered as the secondary evidence of the public document, then certified copies of the same are required to be shown. The certified copies are prepared from the original. These copies are not the certified copies. It would further be seen that this report does not carry any diary number to show that the same was delivered to the RCS Office.
161. As noted above, in the matter of J. Yashoda v. K. Shobha Rani (Supra), the Hon'ble Supreme Court has held that the secondary evidence can not be led without laying down the foundation that the primary evidence is lost or could not be assessed.
#. As per the case of the prosecution itself, the accused Sanjeev Bharti filed the fake election report and therefore, the original report must be in possession of the registrar office.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 187 of 220Apparently, the original has not been seized by the prosecuting agency. No evidence has been produced by the prosecuting agency to show that the original was lost or the original was not filed by the accused Sanjeev Bharti. The witness from the registrar office only shows that the original was not unavailable. This is not sufficient to lay down the foundation to lead the secondary evidence. The witness has to state that the originals were lost. 'Unavailable' and 'lost' are two different things. The court goes by the best evidence as the possibility of tampering of the photocopies can not be ruled out. This rule exists to prevent fraud or inaccuracies that could arise from the photocopies of the documents. Therefore, in absence of the necessary foundation to lead the secondary evidence, the photocopy of the election report relied upon against the accused Sanjeev Bharti is not acceptable. Hence, the prosecution has failed to prove its case against the accused Sanjeev Bharti. Accordingly, the accused Sanjeev Bharti stands acquitted for all charges against him.
Accused P.K. Thirwani:-
162 . The allegations against the accused P.K. Thirwani are that he had filed the false audit report, and the signatures of the Secretary and the Treasurer of the society on his audit report were forged by the accused Gokul Chand Aggarwal. The audit report of the accused P.K. Thirwani is Ex. PW-63/A (D-7). The PW-24, who worked as the Diary Dispatcher in the RCS office, has identified the signatures of the accused P.K. Thirwani on the audit report. The checklist of the audit report has been proved as Ex. PW-24/B. The appointment letter of the accused P.K. CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 188 of 220 Thirwani for conducting the statutory audit is Ex. PW-24/A. These exhibits show that the accused P.K. Thirwani was appointed as the auditor. His audit report is Ex. PW-24/C. The official of the RCS office i.e. PW-24 has identified the signatures of the accused P.K. Thirwani on this report..
163. The accused in his statement under Section 313 Cr.P.C has not denied that he had not done the audit, however, he stated that he had done the audit based on the documents provided by the society and had no knowledge of the same being allegedly forged one. In his audit report, he mentioned the audit period from 01.07.1986 to 30.06.1987 and 1987-88 to 2002-03. The proforma of audit report contains many questionnaire. He filled up the proforma of the audit report by making his observations against the respective questionnaires which cover almost all the issues such as management and membership of the society. In the end of the report, he also raised the following objections:-
i) Annual General Meeting/election of the society should be held once in every year in accordance with Act, Rules and bye-
laws;
ii) Managing Committee Meeting should be held once in every month;
iii) Approval of resigned/newly enrolled members should be taken from the RCS Office;
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 189 of 220iv) Share allotment register should be completed and share certificate be issued to all the members of the society; and
v) Cash retention limit should be fixed;
vi) Compliance report must be sent to the RCS office.
164. It has been alleged against him that his audit report and its annexures contain the signatures of Gokul Chand Aggarwal, Pawan Kumar (Secretary), Ajay Kumar Goel (Treasurer) and the accused P.K. Thirwani. However, Pawan Kumar and Ajay Kumar have denied their signatures on the said audit report/paper. The GEQD has confirmed that the accused Gokul Chand Aggarwal had forged the signatures of Ajay Kumar Goel and Pawan Kumar on the said audit papers. Further, the audit report was received by the accused Ashwani Sharma, who had signed on the report in token and the GEQD has confirmed this fact. The prosecution alleged that the accused P.K. Thirwani had done the audit in violation of the Delhi Cooperative Society Rules, 1973 and allowed the forgery of the signatures of Ajay Kumar Goel and Pawan Kumar in pursuance to the criminal conspiracy.
165. First of all, this court needs to see the scope of the duties of the auditor. To find out the same, this court would like to refer to the provisions of the DCS Act and Rules. The Section 53 of the DCS Act 1972 provides that the registrar or his CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 190 of 220 representative shall audit the account of every cooperative society atleast once in a year. For a ready reference, the Section 53 is reproduced here as under:-
"Section 53. Audit.--(1) The Registrar shall audit or cause to be audited by a person authorised by him by general or special order in writing in this behalf, the accounts of every co-operative society at least once in each year.
(2) The audit under sub-section (1) shall include an examination of overdue debts, if any, the verification of the cash balance and securities, and a valuation of the assets and liabilities of the society.
(3) The person auditing the accounts of a co-
operative society shall have free access to the books, accounts, papers, vouchers, stock and other property of such society and shall be allowed to verify its cash balance and securities.
(4) 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 as such person may require.
(5) The Registrar or the person authorised by him under sub-section (1) to audit the accounts of a co- operative society shall have power where necessary--
(a) to summon at the time of his audit any officer, agent, servant or member of the society, past or present, who he has reason to believe can give valuable information in regard to transactions of the society or the management of its affairs; and
(b) to require the production of any book or document relating to the affairs of, or any cash or securities belonging to, the society by any officer, agent, servant, or member in possession of such books, documents, cash or securities and in the event of serious irregularities discovered during audit, to take them into custody.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 191 of 220(6) If at the time of audit the accounts of a society are not complete, the Registrar or the person authorised by him under sub-section (1) to audit, may cause the accounts to be written up at the expense of the society.
(7) Audit fee, if any, due from any co-operative society shall be recoverable in the same manner as is provided in section 75".
166. Further, Rule-84 of the Delhi Cooperative Society Rules, 1973 provides the procedure for the appointment of the auditor and for conducting audit.
167. Now, coming back to the role of the accused P.K. Thirwani, it is to be noted here that the Section 53 of the DCS Act 2002 and Rule 84 of the DCS Rule 1973, primarily, cast the duty to conduct audit of accounts of the society. The auditor has to see the balance sheet, profit and loss of account, irregularities in expenditure or utilization of money due to the society. He has to observe as to whether any money or the property belonging to the society appeared to be bad or doubtful. Apparently, the Sunny CGHS was having only 65 members and each member had one share of Rs. 100/-. Further, it was not functional for a long period of time, and no land was allotted to it, therefore, there was not a long list of expenditure and liabilities. The account of the society was very straightforward.
168. This court has also seen the account balance sheet annexed with the audit report and has not found any irregularities in the balance sheet of the society. However, the proforma filled up by the accused, as noted above, contains many columns such CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 192 of 220 as "Whether enrollment of a new member during the year was proper and whether any member has been removed during the year and if so, whether proper procedure was followed and approval of the Registrar was taken". He filled up the proforma. Nevertheless, checking the authenticity of the enrolled and resigned members was not the part of his job as the auditor. The RCS, while passing the revival order, put the condition that the pending audit would be completed within 02 months time. The order does not authorise him to check the authenticity of the enrollment; resignation; minutes of Managing Committee and GBM as the same had already been verified and checked by the accused Faiz Mohammad, Gopal Singh Bisht and Narayan Diwakar. In absence of any specific order by the Registrar, the audit report shall contain only the financial transactions of the society as per the mandate of Section 53 DCS Act and Rule 84 of the DCS Rules. The auditor was not bound to point out the serious irregularities in the enrollment; resignation of members; minutes of Managing Committee Meeing and GBM.
169. Now, coming to the aspect that his report contains the signatures of the Secretary and Treasurer, who have denied their signatures on the report and therefore, he facilitated the accused Gokul Chand Aggarwal in forging the signatures of Ajay Kumar Goel and Pawan Kumar. The GEQD witnesses have confirmed that Pawan Kumar and Ajay Kumar Goel have not signed the audit report and the signatures were forged by the accused Gokul Chand Aggarwal. This is the only incriminating evidence against the accused P.K. Thirwani. It is apposite to CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 193 of 220 mention here that the accused P.K. Thirwani has not himself forged the signatures.
170. At this juncture, it is relevant here to refer to the judgment of the Hon'ble Supreme Court in the matter of Santosh v. State (NCT of Delhi), (2023) 19 SCC 321 on the issue as to whether the FSL report on its own is sufficient to hold the accused guilty. In the case of Santosh (Supra), the issue before the Hon'ble Supreme Court was whether the recovery of suicide letter from the pocket of the deceased allegedly written by the accused is sufficient to hold the accused guilty. The Hon'ble Supreme Court held as under:-
"70. However, the mere fact that the expert report was admissible in evidence does not mean that it should on its own form the basis of conclusion that the suicide letter was written by Neeraj. Admissibility and reliability/creditworthiness of a piece of evidence are entirely different aspects. An inadmissible piece of evidence is to be eschewed. But when a piece of evidence is admissible, as to what weight it would carry for determining a fact in issue would depend on the proven facts and circumstances of the case.
#. No doubt, an expert opinion is relevant under Section 45 of Evidence Act, 1872, but whether it could be the sole basis of determination of the fact in issue has been a subject-matter of discussion in various judicial pronouncements. In State of Maharashtra v. Sukhdev Singh [State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 : 1992 SCC (Cri) 705] , this Court observed :
(SCC pp. 726-27, para 29) "29. It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 194 of 220 expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis; and (iii) by the court comparing the disputed document with the admitted one. ... But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the court should also be fully satisfied about the competence and credibility of the handwriting expert. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility."
73. In Ram Narain v. State of U.P. [Ram Narain v. State of U.P., (1973) 2 SCC 86 : 1973 SCC (Cri) 752] , this Court observed : (SCC p. 90, para 6) "6. ... Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert."
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 195 of 22075. The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied on with caution and may be accepted if, on its own assessment, the court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion."
171. Coming back to the facts of the present case, the report of the hand-writing expert (GEQD) must be substantiated by other evidence that the accused P.K. Thirwani had entered into the criminal conspiracy with other accused persons. There is not a single piece of evidence for this. The prosecution witness has categorically denied that he had seen P.K. Thirwani meeting with the accused Gokul Chand Aggarwal. There may be many other possibilities of forged signatures of Pawan Kumar and Ajay Kumar Goel on the audit report. One of them may be that the accused Gokul Chand Aggarwal had taken the report for their signatures and lateron gave the signed report to the accused P.K. Thirwani, who then signed the same. By permitting that, the accused may have done irregularity, but not the illegality sufficient for sustaining the criminal charges against him. Thus, this single piece of evidence based upon the handwriting expert report is not sufficient to hold the accused P.K. Thirwani guilty for the offence under PC Act and IPC offences. As a result, he is acquitted for the charged offences.
Culpability of Private Persons:-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 196 of 220172. In the present case, the case of the prosecution is that the accused Gokul Chand Aggarwal had entered into criminal conspiracy with the accused Faiz Mohd., Narayan Diwakar, Naveen Kaushik, Gopal Singh Bisht, Ashwani Sharma, P.K. Thirwani and Sanjeev Bharti for the revival of the society on forged documents. As discussed above, the chain of custody of documents such as application form of newly enrolled members, resignation of promoter members, minutes of meeting of Managing Committee, affidavits of newly enrolled members have been traced from the accused Gokul Chand Aggarwal. The prosecution has examined original promoter members. Their testimonies have already been noted down in the earlier part of this judgment.
173. Further, the accused also filed his affidavit dated 19.07.2003, committing therein to fulfill all statutory liabilities in future. His affidavit dated 19.07.2003 carries his signatures at 02 points. The same were encircled as questioned signature Q-10 and Q-11. The same were sent to government examiner of questioned documents. As per the report, the signature marked as question 10 and question 11 have been written by the person who gave his specimen handwriting at serial no. S-1 to S-19. PW-76 i.e. hand-writing expert has deposed that the specimen signature/writing of the accused Gokul Chand Aggarwal was marked as S-1 to S-365 and the person who wrote the signature no. 10 and 11 is the same and one person. Meaning thereby, Gokul Chand Aggarwal filed his original affidavit before the Registrar office. Thus, the testimony of hand-writing expert, the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 197 of 220 observations in the revival order of the co-accused Narayan Diwakar and the verification report of the co-accused Gopal Singh Bisht categorically prove that the accused Gokul Chand Aggarwal claimed to be the President of the Sunny Cooperative Society. He was in possession of all documents of the society.
174. The PW-45 namely Jasbir Singh was the promoter secretary of the society. He deposed that he was the first secretary of the society. He identified his initial affidavit. He deposed that the accused had never become the President of the society. He remained the Secretary of the society till the year 1990. He deposed that he did not attend the Managing Committee meeting dated 14.07.1988 and 18.11.1988. He denied his signatures against his name on these two minutes of meeting of the Managing Committee. He deposed that he did not resign from the membership of the society. He denied his signatures on the resignation letter-cum-receipt (page no. 224/C of D-3). He deposed that no receipt to return his share money of Rs.100/- was issued to him and no such amount of share money i.e. Rs. 100/- was refunded to him. He further deposed that in the year 1990, members of the society were not cooperating. He as the Secretary and Mr. Chandra Gupta Khanna deposited the record of the society as well as Rs. 2500/- in the office of RCS at Civil Lines. The operation of the society was closed. The said amount of Rs. 2500/- was cash in hand with them on behalf of the society.
175. Thus, the testimony of Jasbir Singh shows that he did not participate in the managing committee meeting dated CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 198 of 220 14.07.1988, which is at the page no. 214/C to 213/C and the meeting dated 18.11.1988 at page no. 210/C to 209/C as noted above. Both these documents were filed by Gokul Chand Aggarwal at the time of verification of documents. In the minutes of meeting dated 14.07.1988, Jasbir Singh was shown attending the meeting under the chairmanship of Mahesh Gupta, President of Society, and in the said meeting the Management Committee appeared to have approved the resignation of 14 members. In the meeting dated 18.11.1988, Jasbir Singh was again shown attending the meeting under the chairmanship of Mahesh Gupta, and in the said meeting, it was resolved to accept the membership of 11 new members. Thus, the testimony of Jasbir Singh shows that he did not resign from the membership of the society and did not attend the meeting dated 14.07. 1988 and 1811.1988. His presence was shown fraudulently to show that the Managing Committee of the Sunny CGHS was doing business.
176. Similarly, the prosecution examined the PW-5. He deposed that he became the member of the society in the year 1983. He identified his affidavit dated 17.09.1983 and identified his signatures on that. During his testimony, he saw the resignation letter and the receipt dated 17.08.1988. He denied his signatures on the resignation letter. He stated that his signatures have been forged on the resignation letter as he had never resigned from the membership of the society. He was not cross- examined by the accused persons.
177. The prosecution has also examined witnesses who CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 199 of 220 were shown newly enrolled members and the witnesses, who have demonstrated that the member's names, shown as newly enrolled, do not exist at the addresses shown in their application form.
178. The PW-7 Nanak Chand denied his signatures and writing on his application form for the membership dated 01.11.1988 (Ex. PW-7/B). He also denied his signatures on the membership register. He stated that the particulars mentioned in the application for enrollment pertain to him, however, he did not authorise any person to fill up these details in the application form nor the signatures appearing on the said application form are his signatures. He also denied his signatures on the membership register placed in the file D-3 at page 289/C to 278/C. His name in the membership register appears at the serial no. 78 and he denied his signatures in the membership register. He also deposed that he did not second the proposal of Sh. Vijay Arora for the post of member in the election of Managing Committee of the society. He denied his signatures on the nomination form of Smt. Vijay Arora at page No. 305(D-3). He further stated that his brother Moti Lal Singhla has also been shown as the member, but he had never become the member of any society including the present society. Ld. defence counsel raised objection regarding the photocopy of the enrollment form being exhibited as Ex. PW-7/C.
179. The PW-10 namely Ajay Aggarwal deposed that he has been residing in H.No. R-498, First Floor, New Rajender CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 200 of 220 Nagar for the last 10 years on rent and owner of this house is Sh. C.P. Khanna, who resided on the ground floor of the same building. He stated that his address has been shown against the name of a person namely Sh. I.D. Aggarwal, who has been shown the member of the present society at the serial no. 81 of Ex. PW-26/B (page no. 279/C) (D-3), however, no such person had ever resided in the aforesaid address.
180. Similarly, the PW-11 namely C.P. Khanna, who was the owner of H.No. R-498, Ground Floor, New Rajender Nagar, deposed that he was occupying the ground floor, the second floor and Barsati. After seeing the photocopies of list of members of Sunny CGHS, he stated that no person namely I.D. Aggarwal, shown as the member at serial no. 81, had ever resided at his house. He further deposed that since the date of allotment of house in the year 1952, he did not induct any person by the name of I.D. Aggarwal.
181. The PW-12 namely Shashi Bhushan Sharma stated that he resides at the House No. 1311, Tri Nagar, Gali No. 89 since 2005. Since the year 2005, there is no person namely Alka Gupta residing in his house.
182. The PW-26 Brij Mohan Gupta deposed that he did not become the member of the society. He had never applied for the membership of society. He denied filing any application form for the membership. He stated that even his father name is not correct on the application form. He stated that his name has been CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 201 of 220 shown at the serial no.7 of membership register, but he had never become the member of such society or had applied for the same. He stated that he did not sign any affidavit, and his signature were forged. He stated that since he had not applied for the membership, therefore there was no question to accept his membership application in the managing committee meeting on 20.09.1988. He stated that no receipt of Rs. 110/- placed at page no. 234/C of D-3 was issued to him. The receipt is exhibited as Ex. PW-26/D (objection as to the mode of proof). He was cross- examined by the accused Gokul Chand Aggarwal and stated that his name is shown as B.M. Gupta, not as Brij Mohan Gupta and his father name shown in the Ex. PW-26/C is not his actual father's name.
183. The PW-28 namely Ram Chand Rana deposed that his address has been mentioned to make a fictitious member of the society by the name of Ram Chander Raja. He deposed that the house of the accused Gokul Chand Aggarwal was opposite to his DESU office. Once the accused told him that he would make him the member in the society, but he did not give any document or money for becoming the member. He stated that the affidavit i.e. Ex. PW-28/A bears the name of Ram Chander Raja, and not his name Ram Chander Rana. Similarly, his father name has been changed to D.S. Raja, instead of the real name namely D.S. Rana, however, the address mentioned on the affidavit is his village address. He denied the signatures on the affidavit. He stated that no such person by the name of Ram Chander Raja resides at his address. He denied his signatures on the application dated CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 202 of 220 09.11.1988 placed in the file at page no. 263/C of D-3. The said application form was exhibited as Ex. PW-28/B. He denied depositing any amount of Rs. 110/- towards the share capital of the society. He correctly identified the accused Gokul Chand Aggarwal in the court. He stated that he had never received any communication either from the RCS office or from the society. He saw the photocopy of UPC list and stated that his village address has been shown at the serial no. 56 of UPC list. In the cross-examination, he stated that it is correct that in the Ex. PW- 28/B, the name has been shown as Ram Chander Rana and father name as Dharam Singh Rana of V&PO Kheda Kalan.
184. The PW-29 namely Veer Singh deposed that no person by the name of Moti Ram Singla resided at his address. After seeing the affidavit of Moti Ram Singhla, who is shown as member at the serial no. 77, he stated that his address has been mentioned against the name of Moti Lal Singla, but no such person had ever resided in his property.
185. The PW-36 namely Smt. Vijay Arora deposed that she was doctor by profession since 1982. She knew the accused Gokul Chand Aggarwal as his wife was her patient. He used to come at her clinic alongwith his wife. She stated that she did not file any application form to become the member and her signatures on the application form i.e. Ex. PW-36/A are not her signatures. She stated that she did not execute any affidavit i.e. Ex. PW-36/B and her signatures have been forged on the affidavit. She stated that she did not receive any receipt of Rs.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 203 of 220110/- (Ex. PW-36/C) as she had not become the member of that society. She denied attending any meeting on 20.10.2002, minutes of which are placed at page no. 128/C to 132/C of D-3. She denied her signature against her name in the meeting dated 20.10.2002. She denied her signature in the General Body Meeting shown to be held on 20.10.2002. She denied her signatures against her name appearing at the serial no. 72 of the membership register.
186. The PW-43 Ajay Kumar Goyal stated that he did not become the member of any CGHS in Delhi including the present society i.e. Sunny CGHS. He did not apply for the membership in any society. He saw the document i.e. Ex. PW-13/Z-20 and stated that he did not file any application form to become the member of the society. Similarly, he denied his signatures on the affidavit i.e. Ex. PW-43/A. He denied receiving any receipt i.e. Ex. PW- 13/Z-15. He denied his signatures against his name at the serial no. 68 of the membership register of the society. He categorically deposed that he did not become the member of society and he had never been elected as the executive member in that society. He denied his signatures on the Ex. PW-19/B (photocopy of proceedings of meeting dated 20.10.2002).He stated that he had never been elected in the executive committee as the Treasurer. He stated that he did not attend meeting dated 20.10.2002 (Ex. PW-36/E) and his signatures shown against his name at the point Y at the serial no.3 on the page no. 291/C are not his signatures.
187. The PW-50 Vineet Gupta deposed that he had been CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 204 of 220 residing in the house since 1978. He did not give the house on rent since 1978, and no person by the name of G. Lal S/o Tara Chand had ever resided in his house. He was not cross-examined by any of the accused persons.
188. The PW-52 Smt. Hitesh Gupta deposed that she had never applied for the membership of any society. She denied her signatures on the application form i.e. Ex. PW-13/Z-22. She denied her signature on the affidavit Ex. PW-52/A. She denied filling up any nomination form for the election of the society. The nomination form is Ex. PW-13/Z-29. She deposed that she did not attend any meeting of the society such as the GBM dated 20.10.2002. She stated that she knew the accused Gokul Chand Aggarwal as he is her brother-in-law. She also stated that her mother is also shown as the member of the society. She had not executed any affidavit. She deposed that her mother had not attended any meeting.
189. The PW-59 Satish Aggarwal deposed that he did not apply for the membership in any CGHS. He denied his signatures on the Ex. PW-13/Z-21 (copy of the application form to become member). He denied his signature on the affidavit i.e. Ex. PW- 59/A. He denied his signatures in the membership register against his name at the serial no. 18. He denied filling up any nomination form for the election in the society.
190. The PW-60 namely Ramesh Chander Gupta deposed that he did not become the member of the society. He denied his CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 205 of 220 signature on the application form (Ex. PW-13/Z-25). He denied his signatures on the affidavit i.e. Ex. PW-60/A. He denied his membership against serial no. 34 in the membership register i.e. Ex. PW-27/B. He denied his signatures in the minutes of meeting of the GBM shown to be held on 20.10.2002.
191. The prosecution has also examined other promoter members to show that they did not attend any GBM held on 20.10.2002 at 4720 Ragurpura, Karol Bagh, New Delhi. The brief testimony of all the promoter members have already been provided in the earlier part of this judgment. The PW-6, PW-8, PW-14, PW-15, PW-16, PW-18, PW-19, PW-21, PW-27, PW-47 and PW-65 were the promoter members. They did not attend any GBM at the Karol Bagh office. They denied their signatures on the attendance sheet and deposed that they did not attend any meeting. The first president of the society deposed that he did not receive any application form for the new membership or resignation.
192. None of the promoter members attended any meetings held on 14.07.1998, 20.09.1988 and 18.11.1988. The president of the society stated that the society was not functioning after 1990. He further deposed that Gokul Chand Aggarwal was not even the member of the society. He further stated that Pawan Kumar was not the secretary of the society, nor he was the member in the society. No communication was sent in the year 2002 to any member of the society.
193. In the managing committee meeting dated CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 206 of 220 14.07.1988, the witnesses/promoter members namely Baljeet Singh, C.G. Khanna, Jasbir Singh were shown present, but they did not actually attend the said meeting. These witnesses appeared before the court as the PW-14, PW-6 and PW-45 respectively and categorically deposed that they did not attend any GBM held on 14.07.1988 and denied their signatures on the minutes of meeting dated 14.07.1988. In the minutes dated 20.09.1988 of managing committee of the society, Baljeet Singh and Jasbir Singh were shown attending the said meeting, however, both the witnesses categorically deposed that they did not attend any such meeting and denied their signatures. Further, Baljeet Singh and Jasbir Singh were also shown attending the meeting dated 18.11.1988 but both the witnesses denied having attended any meeting. They also denied their signatures against their names.
194. The notary public namely Chander Bhan Arya has denied his seal and signatures on the affidavits, which were filed to show the enrollments of new members. The new members whose names have been shown in the list of fictitious members in the earlier part of thus judgment, have denied filing any membership form or furnishing any affidavit. The new members have denied their signatures on the membership register. The prosecution witnesses under the category of fictitious members denied that they seconded the nomination form for elections in the society.
195. The specimen hand-writing/signatures of the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 207 of 220 accused Gokul Chand Aggarwal were taken on sheets marked as S-1 to S-365. The prosecution has examined PW-38 and PW-44. The PW-38 namely Sh. Veer Narayan Tyagi deposed that specimen writing from serial no. 27 to serial no. 365 was given by the person before him and the IO. The witness identified his signatures at Point-A of the specimen handwritings. These specimen hand-writings belong to the accused Gopal Singh Bisht. The other witness PW-44 namely Ganga Singh Panchpal stated that the specimen from page no. S-27 to S-365 of D-23 were given in his presence and he identified his signatures on these documents at point X. He was cross-examined by the accused Gokul Chand Aggarwal. In his cross-examination, he deposed that so far as he remembers, the accused Gokul Chand Aggarwal was giving his specimen hand-writing on his own. Thus, both the witnesses have proved the specimen sheets carrying the specimen writing of the accused Gokul Chand Aggarwal. Their testimonies have not been discredited in the cross-examination. Further, the investigating officer encircled the questioned signatures of the accused Gokul Chand Aggarwal on the documents filed by him during verification and the report of GEQD has confirmed that questioned signatures sent through Ex. PW-76/1 and Ex. PW-76/1A, which also contain questioned signatures of the accused Gokul Chand Aggarwal on the documents filed before the RCS office, matches with his specimen signatures. There is nothing in the cross-examination of the hand-writing expert which is favourable to the accused Gokul Chand Aggarwal. Further, the GEQD has confirmed that the accused Gokul Chand Aggarwal had forged the signatures of CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 208 of 220 Ajay Kumar Goel and Pawan Kumar on the audit report. It is to be noted here that the record from the RCS office in the file D-3 contains original affidavits of newly enrolled members from page no. 239/C to 255/C. The investigating officer encircled the signatures of newly enrolled members as Q-76 and Q-77 ( affidavit of Pawan Kumar); Q-80 and Q-81 (affidavit of Ajay Kumar Goel); Q-88 and Q-89 (affidavit of Smt. Hitesh Gupta); Q-92 and Q-93 (affidavit of Sh. B.M. Gupta); Q-96 and Q-97 (affidavit of Smt. Vijay Arora); Q-100 and Q-101 (affidavit of Sh. Ram Chander Raja); Q-104 and Q-106 (affidavit of Smt. Alka Gupta); Q-108 and Q-109 (affidavit of Sh. Rajesh Kumar); Q-112 and Q-113 (affidavit of Ramesh Chand Gupta); Q-116 and Q-117 (affidavit of Sh. Moti Ram Singla); Q-120 and Q-121 (affidavit of Sh. Nanak Chand); Q-124 and Q-125 (affidavit of Smt. Gunwati Devi); Q-128 and Q-129 (affidavit of Sh. Rajesh Kumar Garg); Q-132 and Q-133 (affidavit of Sh. I.D. Aggarwal) and Q- 136 and Q-137 (affidavit of Sh. G. Lal).
The GEQD report i.e. Ex. PW-76/10 in its para-5 states that the aforesaid questioned signatures have been done by Gokul Chand Aggarwal. Reading this report with other evidence on record such as statement of the newly enrolled members proves the offence of forgery done by the accused Gokul Chand Aggarwal.
196. Further, the signatures encircled as Q-267 and Q-268 on the audit report i.e. Ex. PW-24/C were made by the accused Gokul Chand Aggarwal as per the opinion of GEQD at Ex. PW-
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 209 of 22076/12. Reading this evidence with the testimony of persons whose signatures have been encircled as Q-267 and Q-268 proves that the accused Gokul Chand Aggarwal did the forgery of signatures on the audit report.
197. Thus from the testimonies of H.N. Kumra and Jasbir Singh, who were shown resigned from the society; the testimonies of promoter members including the initial President Mr. Jagmohan Singh; the testimonies of witnesses, whose addresses have been used to enroll fictitious members and the testimonies of witness who did not join the society, but were shown as the members, it has become categorically clear that that the accused Gokul Chand Aggarwal had used forged documents in form of enrollment forms, resignation forms and affidavits of the newly enrolled members in order to revive the society. He is found guilty of committing forgery of signatures for the purpose of cheating under Sec. 468 IPC. He is also found guilty of using the forged documents as genuine under Section 471 IPC. He has also been charged for the offence under Sec. 419 IPC. A person is said to cheat by personation if he cheats by pretending to be some other person or by knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person really is.
198. In the present case, Gokul Chand Aggarwal has not personated to be some other person. He did not represent that he was a person other than he really was. He represented himself to be the President of the society, though based on forged CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 210 of 220 documents, but he did not represent himself to be some other person. Forging the signatures of Pawan Kumar and Ajay Kumar Goel does not make him liable for the offence under Section 419 IPC in absence of the evidence that he had shown himself as Pawan Kumar or any other person. Hence, no offence of cheating by personation is made by him. In the present case, he has also been charged for the offence under Section 420 IPC r/w Sec. 511 IPC. Apparently, no land was allotted to the society. However, the society was got revived on basis of presenting forged documents in order to induce DDA/Office of Registrar Cooperative Society with dishonest and fraudulent intention to get the land alloted to the society, thereby, he has committed the offence punishable under Sec. 420 r/w 511 IPC.
Accused Ashwani Sharma and Naveen Kaushik:-
199. The allegations against the accused Ashwani Sharma is that during investigation, a computer was recovered from his office i.e. 227-C, Pocket-A, Phase-2, Mayur Vihar, Delhi. Subsequently, the opinion on the hard disk of that computer was obtained from the GEQD (Shimla). From the expert report, it is seen that most of the documents which were retrieved from the said hard disk were submitted for the revival of the society by the accused Gokul Chand Aggarwal to the office of RCS. Those documents were typed and prepared in the said computer of the accused Ashwani Sharma. These documents include the affidavit in the name of the accused Gokul Chand Aggarwal, affidavit in the name of Pawan Kumar, letter dated 27.01.2004 addressed to the Assistant Registrar (South) office of RCS, New Delhi CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 211 of 220 submitted by the accused Gokul Chand Aggarwal intimating the address of the society; allotment of required land addressed to Deputy Director (Group Housing), letter dated 21.07.2003 submitted by the accused Gokul Chand Aggarwal to the office of RCS for submission of false/forged documents for revival of the society, inspection report under Section 54 of the DCS Act and the request letter dated 21.11.2002 submitted in the name of Pawan Kumar for cancellation of winding up order of the society and the list of members including 17 newly included members and the audit papers of the society. It is alleged that all these documents were found available in the file of RCS, which were used for revival of the society and it shows conspiracy between the accused Ashwani Sharma and the other co-accused persons.
200. It is further alleged that a search was conducted by the CBI in the case RC-9(E)/2005-EOW-1/Delhi at the residence of Ashwani Sharma. During search, a file pertaining to the Sunny CGHS was found. The file contained one hand written note with names and addresses of newly included members. The GEQD has approved that the handwritten note was made by the accused Naveen Kaushik. The list of members containing the names and addresses similar to that of hand written note with the forged signatures of Pawan Kumar, Ajay Kumar and genuine signatures of the accused Gokul Chand Aggarwal were submitted to the RCS office at the time of revival. It provides that the file also contained all the false information submitted by the accused Gokul Chand Aggarwal to the RCS office at the time of revival.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 212 of 220201. It is alleged that the said file also contained the hand written note of Ashwani Sharma containing the name of all 17 newly enrolled members and resigned members, names of the members of false managing committee and it also mentioned the fact that all the resignations and enrollments were of prior date and were shown to have been taken place in the year 1988. The GEQD has given expert opinion upon handwriting to be in the hands of Ashwani Sharma. On these facts, the prosecution alleges that the accused Ashwani Sharma conspired with the other co- accused persons for revival of the society on false documents.
202. To appreciate these alleged facts against the accused Ashwani Sharma, this court goes to the evidence of the investigating officer i.e. PW-71, whose evidence has already been noted above under heading of 'Testimony of Investigating Officers'. He deposed that in the year 2005-06, he was posted as DCP, CBI, EOU-1, New Delhi and he was the investigating officer in case RC-93/2005/EOU-1 relating to Taj CGHS, Delhi and during search in that case, various files of the societies including the file of Sunny CGHS were also seized by him. He deposited all these files/record in CBI Malkhana. During investigation of that case, he authorised Inspector Naresh Sharma to conduct the searches in the premises belonging to the accused Ashwani Sharma. After search, Inspector Naresh Sharma handed over to him the documents.
203. Apparently, the prosecution has not examined Inspector Naresh Sharma, who did the search at the premises of the accused Ashwani Sharma. The testimony of PW-71 P.K. CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 213 of 220 Khanna only indicates that he authorised Inspector Naresh Sharma to conduct the search at the premises of the accused Ashwani Sharma. The search list showing the seized documents/articles has been exhibited through the witness i.e. PW-62 namely Dinesh Kumar Nijhawan. He deposed that on 31.07.2005 on the directions of his Senior Manager, he went to the CBI office. He alongwith other CBI officials went to the house at Mayur Vihar, Phase-2. There, they met the accused Ashwani Sharma, who was stated to be the owner of the said house. The witness identified the accused. The witness deposed that the IO seized several files and hard disk from that house and he signed the search list at Point A. The search list is exhibited as Ex. PW-62/A (D-53). Ld. defence counsel raised objection regarding the mode of proof as the same was photocopy. Further, the investigating agency examined the IO of the present case as the PW-78. He deposed that the hard disk (D-54) was sent to GEQD, Shimla and has been kept in the case file of RC-4(E) 2006-EOU/VII/New Delhi.
204. It is to be noted here that before analysing the evidence showing recovery of incriminating evidence from the premises of the accused Ashwani Sharma, it is apposite to mention here that the prosecution has failed to bring on record the original seizure memo before this court. The photocopy of the seizure memo has been exhibited through the independent witness i.e. PW-62. The defence raised objection to the mode of proof. Thus, the prosecution was put on notice regarding the mode of proof. However, no foundation was laid down to lead CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 214 of 220 secondary evidence. The original search list should have been lying in other file, but no effort has been made to summon that file for comparing the same with the original search list. In absence of the original search list, this court can not look into the photocopy of the search list. The photocopy of the search list is not a certified copy. It is just a mere photocopy. Therefore, in absence of the original search list, this court refrains itself from discussing the validity of the search, seizurre and the nature of the incriminating documents shown to be recovered from the premises of the accused Ashwani Sharma. Further, hard disk has not been played before this court. It is alleged that it contained the documents, which were used for revival of the society. It is alleged that the inspection report filed by the accused Faiz Mohammad was typed in the computer of Ashwani Sharma, but what has been shown to the court are the print outs taken from the hard disk without any certificate under Section 65-B of the Indian Evidence Act. Section 65-B reads as under:-
"Section 65-B - Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible."CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 215 of 220
205. The present case was registered on 07.12.2005. the rule to prove electronic evidence under Section 65A and 65B of Indian Evidence Act had already been introduced way back in the year 2000. The evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. Thus, the prints out taken from the hard disk should have been accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. In absence of certificate under Section 65-B of the Indian Evidence Act, mere oral testimony of the witnesses from GEQD that the print outs have been taken from the files contained in the hard disk is of no relevancy. Thus, the prosecution's case against the accused Ashwani Sharam fails on two accounts. a) Firstly that the photocopy of search list is produced and the same has not been proved as a secondary evidence. b) Secondly, printouts taken from the hard disk are not admissible without certificate under Section 65-B of the Indian Evidence Act. Since, the very foundation of the evidence against him does not exist, therefore, this court does not delve upon the merits of the search and seizure. Accordingly, the alleged facts against the accused Ashwani Sharma have not been legally proved before this court. As a result, the accused Ashwani Sharm is acquitted for the charged offences.
CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 216 of 220206. So far as the accused Naveen Kaushik is concerned, it is alleged against him that his hand written note is in the file recovered from the office of the accused Ashwani Sharma. As noted above, the search list can not be seen as the same is a photocopy. Further, this is the only evidence against the accused based upon GEQD report. There is no other evidence against the accused Naveen Kaushik. He has been shown as a conspirator. There is no direct evidence of conspiracy. Only one circumstance that his hand written note with the names and addresses of newly inducted members was found in the file during search of the house of the accused Ashwani Sharma is not sufficient to convict the accused Naveen Kaushik under Section 120-B IPC. Here, reliance is placed upon the judgment of Hon'ble Supreme Court in the matter of Santosh (Supra). As a result, the accused Naveen Kaushik and Ashwani Sharma are acquitted for the charged offences.
Conclusion:-
207. In view of the aforesaid, the accused persons are found guilty as follows:-
i) Accused Narayan Diwakar is found guilty of the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 and is accordingly convicted for the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988.
He is acquitted of the offence under Section 120-B IPC CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 217 of 220 read with Section 419, 420, 468, 471 IPC for want of sanction under Section 197 Cr.P.C.
ii) Accused Gopal Singh Bisht is found guilty of the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 and is accordingly convicted for the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988.
He is also found guilty for the offence under Section 120-B IPC read with Section 420/511, 468, 471 IPC and is accordingly convicted for the offence under Section 120-B IPC read with Section 420/511, 468, 471 IPC.
iii) Accused Faiz Mohammad is found guilty of the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 and is accordingly convicted for the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988.
He is also found guilty for the offence under Section 120-B IPC read with Section 420/511, 468, 471 IPC and is accordingly convicted for the offence under Section 120-B IPC read with Section 420/511, 468, 471 IPC.
iv) Accused P.K. Thirwani is not found guilty of the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 and for the CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 218 of 220 offence under Section 120-B IPC read with Section 419, 420, 468, 471 IPC and is accordingly acquitted of all these offences.
v) Accused Sanjeev Bharti is not found guilty of the offence under Section 13(1)(d) punishable under Section 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 and for the offence under Section 120-B IPC read with Section 419, 420, 468, 471 IPC and is accordingly acquitted of all these offences.
vi) Accused Gokul Chand Aggarwal is found guilty of the offence under Section 420 read with 511 IPC; for the offence under Section 468 and for the offence under Section 471 IPC. He is also found guilty for the offence under Section 120-B read with 420/511, 468, 471 and Section 13(2) read with 13(1)(d) read with Section 15 of PC Act, 1988.
He is acquitted for the offence under Section 419 IPC.
vii) Accused Naveen Kaushik is not found guilty of the offence under Section 420 read with 511 IPC; for the offence under Section 468; for the offence under Section 471 IPC and for the offence under Section 120-B read with 420/511, 468, 471 and Section 13(2) read with 13(1)(d) read with Section 15 of PC Act, 1988 and is accordingly acquitted for the aforesaid offences.
viii) Accused Ashwani Kumar Sharma is not found guilty of the offence under Section 420 read with 511 IPC; for the offence under Section 468; for the offence under Section 471 IPC and for the offence under Section 120-B read with 420/511, 468, 471 and CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 219 of 220 Section 13(2) read with 13(1)(d) read with Section 15 of PC Act, 1988 and is accordingly acquitted for the aforesaid offences.
Let the dasti copy of this judgment be supplied to all the accused persons and the prosecution.
Be heard separately on the point of sentence.
Pronounced and Dictated in Open Court today i.e. 15th November, 2025 Digitally signed by RAJESH RAJESH MALIK MALIK Date:
2025.11.15 15:32:13 +0530 (Rajesh Malik) Special Judge (PC Act) CBI-14 Rouse Avenue District Court New Delhi CBI Case No. 77/2019 CBI vs. Gokul Chand Aggarwal & Ors. (Sunny -CGHS) Page 220 of 220