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Delhi District Court

Cbi vs A­1. Gokul Chand Aggawal on 27 February, 2015

      IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
            PC ACT, CBI­III,  ROHINI COURTS : DELHI.
   
                                CBI No.73/11
             RC No.18(A)/2005/SCU­V/SCR­II/CBI/New Delhi
      under Sections 120B IPC r/w 419, 420, 468 & 471 IPC and under 
       Sections 13(2) r/w S. 13(1)(d), 15 & 13 (1)(d) of P C Act, 1988.

           CBI

         Versus 

A­1. Gokul Chand Aggawal
      S/o Late Sh. Jagdish Prasad
      R/o A­603 & 703, Ashoka Apartments, 
      Plot No. 36/2, Rohini, Sector­9, Delhi. 
     
A­2. Narayan Diwakar
      S/o Late Sh. Chhati Lal
      R/o G­30, Masjid Moth,
      Greater Kailash - II, New Delhi.

A­3. Daya Nand Sharma
     S/o Late Sh. Ram Diwaya Sharma
     R/o 1378, Rani Bagh, 
     Shakur Basti, 
     Delhi.

A­4. Ram Nath
     S/o Late Sh. Bishan Lal

CBI Vs. Gokul Chand Aggarwal & Others                               Page No. 1 of 68
              (Textila CGHS)
        R/o West Guru Angad Nagar,
       Laxmi Nagar, Delhi. 

A­5. Faiz Mohammad
     S/o Late Sh. Gulam Mohammad
     R/o 3794, Ahata Kitara, 
     Pahadi Dheeraj, 
     New Delhi - 110006.

A­6.   Kamal Singh
       S/o Late Sh. Bakhtawar Singh, 
       R/o 677, Village & Post Office,
       Badli, Delhi.                                           ..... Accused 


(Textila CGHS)


Date of institution of case                    :       03.04.2007
File received by transfer on                   :       09.05.2011
Date for reserving for judgment                :       09.02.2015
Date of pronouncement of judgment              :       27.02.2015

                                J U D G M E N T

I CASE OF THE PROSECUTION :

1. The case of the CBI, in brief, is that Textila Co­operative Group Housing Society (in short 'CGHS') Limited was registered with its address as 52, Sunlight Colony, New Delhi­66 on 01.2.1984 by the CBI Vs. Gokul Chand Aggarwal & Others Page No. 2 of 68 (Textila CGHS) Registrar, Cooperative Societies (in short 'RCS'), Delhi. As the members of the society were not taking any interest in the affairs of the Society, it had failed to achieve the object for which it was registered. The society failed to fulfill the statutory obligations as provided under Delhi Cooperative Societies Act 1972 (in short 'DCS Act') and Rules and Bye Laws framed thereunder. Therefore, an order dated 7.9.1990 was issued under the signature of Shri Satish Mathur, the then Dy. Registrar, Office of the RCS, Delhi, liquidating the society.

2. A request dated 16.8.2003 was submitted by one Jagmal, in the capacity of President of Textila CGHS Ltd showing its address as B­5/201, Chintpurni House, Central Market, Prashant Vihar, Delhi to the RCS for cancellation of winding up order and revival of the society.

3. On receipt of the application, Shri Niranjan Singh, Dealing Assistant, submitted note on 12.9.2003, for considering the request of the society for its revival u/s 63 (3) of DCS Act. The note was forwarded by accused D N Sharma, AR (NW) on 15.9.2003. He marked the file to Reader to RCS who mentioned in his note that before initiating proceeding u/s 63 (3) of DCS Act, an Area Inspector u/s 54 of DCS Act be appointed to bring out the factual position of the society. This note was approved by RCS on 29.9.2003. Accused Ram CBI Vs. Gokul Chand Aggarwal & Others Page No. 3 of 68 (Textila CGHS) Nath was appointed as Inspecting Officer by accused D N Sharma on 30.9.2003. Accused Ram Nath, Inspector submitted his Inspection Report on 15.10.2003. The Inspecting Officer was required to physically visit the registered office of the Society and to verify/examine the records of the Society to bring out its factual position. Investigation has disclosed that accused Ram Nath gave fictitious report for having met the President Shri Jagmal since neither the address B­5/201, Chintpurni House, Central Market, Prashant Vihar, Delhi was existing where the society is shown to have office nor any person named Jagmal was existent. Shri Niranjan Singh, based upon the report of accused Ram Nath, submitted a note for revival of the society and for approval of the freeze strength of 134 members for allotment of land.

4. Accused Faiz Mohammad, Dealing Assistant who had taken charge from Shri Niranjan Singh submitted a note on 18.11.2003 for calling the President/Secretary of the Society to produce the relevant record for verification.

5. Investigation disclosed that accused Gokul Chand Aggarwal was a regular visitor to the office of RCS and, hence, he was known to all the RCS officers/officials. Accused Faiz Mohammad knowing it very well that accused Gokul Chand Aggarwal was posing CBI Vs. Gokul Chand Aggarwal & Others Page No. 4 of 68 (Textila CGHS) as both Secretary and President of the Society in two different names as Jagmohinder and Jagmal gave a detailed note dated 3.12.2003 recommending revival of the Society u/s 63 (3) of DCS Act and approval of the freeze list of 134 members. It has also been mentioned in this note that Jagmohinder, Secretary of the Society, has submitted the relevant record. The note was forwarded by accused D N Sharma, AR (NW) and he recommended consideration of the request for revival of the Society. He also mentioned in the note that the relevant records have been verified and taken on record.

6. Pursuant to the orders dated 25.11.2003, the Registrar, accused Narayan Diwakar, issued order dated 28.11.2003 reviving the Society. Criminal conspiracy of accused Narayan Diwakar with accused Gokul Chand Aggarwal and others is apparent from the fact that he has mentioned in his note that Dy. Registrar had not followed proper procedure for winding up and that he was not competent to pass such orders. Investigation has disclosed that Dy Registrar Shri Satish Mathur was competent to issue such order since he was delegated the powers of the Registrar vide notification No. 9 (38)/68/Estt/Coop/5646­65 dated 4.7.1989.

7. During the course of investigation, efforts were made to CBI Vs. Gokul Chand Aggarwal & Others Page No. 5 of 68 (Textila CGHS) contact the present 134 members as well as those 37 who were shown to have resigned from membership of the Society. However, out of the 134+37 i.e 171 members, as many as 156 persons were not found since either their addresses shown were non­existent or if the addresses were correct, no such persons were residing at the addresses.

8. Investigation revealed that accused Kamal Singh gave false and fictitious audit report in respect of books of accounts for the period 1984 to 2003 in respect of the society without going through the original documents. The audits of the accounts were shown to have been signed by the President Jagmal, Secretary Jagmohinder and Treasurer Satish Kumar which were all forged by accused Gokul Chand Aggarwal. List of members of Textila CGHS Ltd containing 134 names was also approved and all the pages of the list of members were signed by accused D N Sharma. After its revival accused D N Sharma wrote a letter to the Assistant Registrar, Policy, RCS Office forwarding a freeze list of 134 members of Textila CGHS Ltd as approved by the competent authority with request to forward the list to DDA for allotment of land.

9. Investigation further revealed that accused Gokul Chand Aggarwal has impersonated as Jagmohinder, Jagmal and Satish Kumar, Secretary, President and Treasurer respectively of Textila CGHS Ltd CBI Vs. Gokul Chand Aggarwal & Others Page No. 6 of 68 (Textila CGHS) and forged their signatures on various papers used for revival of the society.

10. The sanctions under Section 19 of the Prevention of Corruption Act, 1988 (in short 'P.C. Act') against accused Ram Nath and Kamal were also accorded by competent Authorities. After competing the investigation and other necessary formalities, the charge­sheet was filed in the Court of Special Judge, CBI, Delhi against the accused for committing offences punishable under Sections 120B IPC r/w S.120B r/w 419, 420, 468 & 471 of Indian Penal Code, 1860 (in short 'IPC') and under Section 13(2) r/w Section 13(1)(d) & S. 15 of P.C. Act whereupon the accused were summoned and the copies of documents were supplied to the accused persons.

II. CHARGES FRAMED :

11. On the above allegations, charges were framed vide order dated 24.10.2011 against all the accused persons for having committed offences punishable under Sections 120B IPC r/ S.419, 420, 468 & 471 IPC & under Section 13(2) r/w S. 13(1)(d) of P. C. Act; against accused Gokul Chand Aggarwal (A­1) for having committed offences punishable under Section 420 r/w 511, 419, 468 & 471 IPC. Separate charges against accused Narayan Diwakar (A­2), Daya Nand Sharma CBI Vs. Gokul Chand Aggarwal & Others Page No. 7 of 68 (Textila CGHS) (A­3), Ram Nath (A­4), Faiz Mohammad (A­5) and Kamal Singh (A­6) were framed for having committed offences under Section 13 (2) r/w Section 13 (1) (d) r/w Section 15 of P.C Act. All the accused persons pleaded not guilty and claimed trial. They were accordingly put to trial.

III. PROSECUTION WITNESSES :

12. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined forty five witnesses in all who may be clubbed in six groups for convenience. The six groups are as here­under :

(a) Members

(b) RCS Officials

(c) Post Office Employees

(d) Sanctioning Authority

(e) CBI Officials

(f) Others

13. MEMBERS :­

i) PW­11 Deepak Kumar Nayyar

ii) PW­12 Smt. Ranjana Arora

iv) PW­15 Rajinder Kumar Goel

v) PW­16 Jag Mohiner Singh CBI Vs. Gokul Chand Aggarwal & Others Page No. 8 of 68 (Textila CGHS)

vi) PW­17 Chitra Goel

vii) PW­18 Jaivinder Singh

viii) PW­21 Dalip Kumar Mathur

ix) PW­22 Neeraj Mathur

x) PW­22 Mukesh Aggarwal

xi) PW­24 K.C. Angrish

xii) PW­27 Rajesh Kumar Singh Bhaduria

xiii) PW­31 Arun Kumar Bhalla

xiv) PW­32 Kailash Chand Gupta

xv) PW­33 Ram Nagina Singh @ R.N. Singh xvi) PW­37 Smt. Sushila Verma Xvii) PW­45 Anil Kumar Sinha

14. PW­11 Deepak Kumar Nayyar was the promoter member of Textila CGHS. He has deposed that on 5.9.83 first GBM of the promoter members of the society was held which was attended by him and others and he has proved the photocopies of the proceedings in this regard as Ex.PW11/A. After 1987, he was transferred to Bombay and, thereafter, he neither participated in the affairs of the society nor received any correspondence from the office of RCS. He has proved the application dated 19.9.83 for registration of the society bearing CBI Vs. Gokul Chand Aggarwal & Others Page No. 9 of 68 (Textila CGHS) signatures of all the members as Ex.PW11/B; Bye Laws as Ex.PW11/C and Ex.PW11/D and his affidavit as Ex.PW11/E. He has denied his signatures and of Saravjeet Singh on affidavits Ex.PW11/F and Ex.PW11/G respectively. He has also denied the signatures of other members on the affidavits.

During his cross­examination PW­11 has deposed that Sarvajeet Singh was the custodian of the records who left the country in 1984­85. He has admitted that no complaint was made by him to the office of RCS.

15. PW­12 Ranjana Arora was a member of the Textila CGHS. He has deposed that she did not participate in the affairs of the society after 1987. She has denied her signatures on the affidavit Ex.PW12/B. She has also denied having received any letter from the office of RCS in the year 2005.

16. PW­15 Rajender Kumar Goel was also the member of the society. He has admitted his signatures on affidavit Ex.PW15/A. He has deposed that after the death of Sh. K K Goel he did not participate in the affairs of the society.

17. PW­16 Jag Mohinder Singh has denied that he ever applied for the membership of Textila CGHS. He has also denied the alleged signatures on various documents such as Ex.PW16/A to Ex. CBI Vs. Gokul Chand Aggarwal & Others Page No. 10 of 68 (Textila CGHS) PW16/C1­34, Ex.PW14/1, Ex.PW13/137, Ex.PW13/135, Ex.PW16/E; E1 to E225, Ex.PW16/F, Ex.PW16/G, Ex.PW16/H, Ex.PW16/H1 to H3, Ex.PW16/J, J1 to J79, Ex.PW16/K to be appended by him. This witness identified accused Gokul Chand Aggarwal having visited his office two­three times. He has deposed that accused Gokul Chand Aggarwal has also prepared the drawings of his office.

During his cross­examination by accused Gokul Chand Aggarwal, PW­16 has deposed that the spelling of his name is "JAGMAHENDER" while name mentioned in the list Ex.PW16/G is "JAGMOHINDER". He has also admitted that the address and age mentioned on Ex.PW16/G are not correct. He has further showed his ignorance about any other person in existence in the name of Jagmohinder son of Kartar Singh resident of KP­210, Pitam Pura, Delhi having age of 49 years. He has also admitted that he never became member of Textila CGHS.

18. PW­17 Chitra Goel, PW­18 Jaivinder Singh, PW­22 Mukesh Aggarwal, PW­24 K C Angrish, PW­27 Rajesh Kumar Singh Bhaduria, PW­31 Arun Kumar Bhalla, PW­32 Kailash Chand Gupta, PW­33 Ram Nagina Singh, PW­37 Smt. Sushila Verma and PW­45 Anil Kumar Sinha have deposed that they became members of Textila CGHS but later on lost interest in the society. CBI Vs. Gokul Chand Aggarwal & Others Page No. 11 of 68 (Textila CGHS)

19. PW­21 Dalip Kumar Mathur has deposed that he became member of Textila CGHS but the application Ex.PW11/B at serial no. 49 does not bear his signature. He has also denied the signatures on affidavit dated 15.9.83 (Ex.PW21/A) to be appended by him. He has further deposed that he never executed any affidavit (Ex.PW13/107) in the year 2003. He has further denied having proposed the name of Jagmal Singh son of Rajender Singh for the post of President in Textila CGHS vide nomination form Ex.PW21/B. He has also denied having received any letter dated 31.3.2005 from RCS (Ex.PW21/C). He has further deposed that specimen signatures were given by him to the CBI and has proved the same as Ex.PW21/E. Further, he has denied the signatures in the AGM dated 13.7.2003 (Ex.PW16/B) to be appended by him. He has also denied the signature on minutes of meeting dated 5.9.83 (Ex.PW11/A) to be appended by him and he has categorically stated that he did not attend any such meeting. This witness was declared hostile by Ld. Senior PP for the CBI. He has denied that his statement Mark PW21/X was recorded by Inspector Subhash Kundu or the same was read over and admitted by him to be correct. He was confronted with various portions of the statement Mark PW21/X. He has denied the suggestion that he is deposing falsely to favour the CBI Vs. Gokul Chand Aggarwal & Others Page No. 12 of 68 (Textila CGHS) accused persons.

20. RCS AND DDA OFFICIALS :­

i) PW­19 Sanjeev Bharti (RCS Official)

ii) PW­25 Satish Mathur (RCS Official)

iii) PW­26 & PW­41 Virender Kumar Bansal (RCS Official)

iv) PW­29 Paras Nath (DDA Official)

v) PW­30 Yogi Raj (RCS Official)

vi) PW­35 Satya Prakash Sharma (RCS Official)

vii) PW­36 Narender Singh Khatri (RCS Official)

viii) PW­39 Jagmal Singh (RCS Official)

21. PW­19 Sanjeev Bharati was posted as Stenographer in the office of RCS during the relevant period when the society in question i.e Textila CGHS was allegedly revived by the orders of accused Narayan Diwakar, the then RCS. PW­19 has proved the relevant notings in the RCS file D­2 pertaining to Textila CGHS and has identified the signatures of accused N S Khatri, Reader attached with the then RCS. He has proved the said notings as Ex. PW19/A to Ex.PW19/C. He has also proved the letter dated 28.10.2003 issued by the then RCS as Ex.PW19/E. Further, he has proved a letter dated CBI Vs. Gokul Chand Aggarwal & Others Page No. 13 of 68 (Textila CGHS) 16.8.2003 and the order passed by accused Narayan Diwakar as Ex.PW19/F and Ex.PW19/G respectively. This witness did not identity the signatures of accused Ramnath, Dayanand, Niranjan Singh and Faiz Mohammad on various documents shown to him. This witness was declared hostile by the prosecution. However, even after his cross­examination at length by Ld. Special PP for CBI, nothing incriminating has come in evidence against the aforesaid four accused i.e Ramnath, Dayanand, Niranjan Singh and Faiz Mohammad.

22. PW­25 Satish Mathur is a witness who passed the winding up order u/s 63 of the DCS Act in respect of Textila CGHS Ltd. He has deposed that he was working as Deputy Registrar, Cooperative Society during the relevant period. As per this witness the society was wound up as it was not functioning in accordance of the provisions of DCS Act, 1972. He proved the said order as Ex.PW25/A and the public notice issued on behalf of RCS containing the name of Textila CGHS at serial no.14 as Ex.PW25/C. Further, PW­25 has deposed that the revival order was passed by the then RCS, accused Narayan Diwakar on the ground that order for liquidation proceedings were passed unilaterally and without any communication to them.

During his cross­examination, PW­25 has admitted that the winding up order Ex.PW25/A bears the date 7.9.1990 but the said CBI Vs. Gokul Chand Aggarwal & Others Page No. 14 of 68 (Textila CGHS) order does not mention the notification vide which the powers u/s 63 of the DCS Act was delegated to him. It has further been admitted that no liquidator was appointed by him in his said order and it is not in his knowledge whether any liquidator was appointed at any point during his tenure. He has further admitted that he is not aware whether the liquidation proceedings in respect of society in question were finally completed or not.

23. PW­41 Virender Kumar Bansal, was an official working in RCS office having retired from the post of Assistant Registrar in May, 2008. He has simply described in detail the procedure followed in the office of RCS for the winding up/liquidation/revival of the Cooperative Group Housing Societies. He has identified his signatures on letter Ex.PW40/C (D­3); copy of dispatch register as Ex.PW41/A; letters Ex.PW41/B and Ex.PW41/C; file of Textila CGHS containing various notings as Ex.PW41/D and DCS Act and Rules as Ex.PW41/E and Ex.PW41/F. During his cross­examination PW­41 has admitted that he never dealt with the file of Textila CGHS during his tenure. He further admitted that he is not aware if his statement was recorded by the CBI and he had simply handed over the files of Textila CGHS to CBI. CBI Vs. Gokul Chand Aggarwal & Others Page No. 15 of 68 (Textila CGHS)

24. PW­29 Sh. Paras Nath was the Assistant working in DDA, New Delhi and was looking after the work of allotment of land to CGHS during the relevant period. He has described in detail the procedure followed by in DDA for the allotment of land to the societies after such request/letter is received from the office of RCS. He has deposed that letter Mark PW29/A addressed to Deputy Director (GH) forwarding the list of members of various CGHS including Textila CGHS for allotment of land was received in DDA. However, no option for requirement of land in different areas of Delhi was given to the said society as the same did not fall within the yardstick framed by DDA. This witness was declared hostile by the CBI. He has categorically denied in his cross­examination by Ld. Special PP that LG of NCT of Delhi was the competent authority for allotment of land to CGHS and the said fact was not stated by him to the IO during investigation in his statement Mark PW29/X. He has also denied the suggestion of the Ld. Spl. PP that he has stated falsely in this respect in order to favour the accused.

During his cross­examination by the accused persons, PW­29 has admitted that no option letter for choosing the land site was sent to various societies including Textila CGHS as mentioned in letter Mark PW29/A as there was no possibility of allotment of land to these CBI Vs. Gokul Chand Aggarwal & Others Page No. 16 of 68 (Textila CGHS) 35 societies because of the fact that the said list was received after the cut off date fixed by the DDA i.e 31.10.2003. He has further admitted that at the time of final allotment of land to the members as per the final list sent the RCS, the membership is checked at the time of allotment of flats to the eligible members of the society in the presence of RCS, DDA officials and MC members of the society.

25. PW­30 Yogiraj was working as Assistant Registrar in RCS office during the relevant period. He has described the procedure relating to revival of the societies followed in the office of RCS. As per PW­30, in case of revival of society, there is no such set procedure. He has deposed that Textila CGHS was registered on 1.2.1984 and was wound upon 7.9.1990. A letter dated 16.8.2003 (Ex.PW19/F) in the name of Jagmal, allegedly President of society in question, was received in the office of RCS. The said application was marked by him to Dealing Assistant ­ Niranjan Singh. In his capacity AR (Policy), as a Link Officer of accused Daya Nand Sharma, he had sent the list of 144 members of society in question to Deputy Director (GH) DDA. He has proved the letter in this regard as Ex.PW30/A. He has also identified the signatures of accused Niranjan Singh, Faiz Mohammad, Daya Nand Sharma, Narayan Diwakar and Ramnath on various proceedings via CBI Vs. Gokul Chand Aggarwal & Others Page No. 17 of 68 (Textila CGHS) note­sheets in the file pertaining to the society in question as Exhibit PW30/B to Ex.PW30/F. He has not identified the noting portions containing signatures of accused N S Khatri in the file.

This witness was declared hostile by Ld. Spl. PP for CBI on the ground that the witness was suppressing true facts. This witness has denied the suggestion of the Ld. Spl. PP that he got recorded the procedure for revival of the society in his statement given to Inspector Subhash Kundu, CBI. He was confronted with his statement Mark PW30/X from portion A to A in this regard. He has deposed that there were standing instructions issued by the then RCS Sh. R K Shrivastava to refer the file directly to the Court of RCS for quasi judicial proceedings. He has denied the suggestion that file D2 and D2A containing the note sheet portions bear the signatures of N S Khatri or he had seen him writing and signing during the course of his official duties. He was confronted in this regard with the statement Mark PW30/X.

26. PW­35 Satya Prakash Sharma was posted as LDC in Audit Branch during the relevant period. He had handed over relevant documents to CBI which were seized vide memo Ex.PW35/A. He has also proved the other documents bearing his initials which were handed CBI Vs. Gokul Chand Aggarwal & Others Page No. 18 of 68 (Textila CGHS) over by him as Ex.PW35/B to Ex.PW35/D.

27. PW­36 Narender Singh Khatri was working as Reader to RCS during the relevant period and his duty was to put up the files to the RCS on the recommendation of Zonal Officers. This witness has deposed that Textila CGHS was put under liquidation vide order Ex.PW­25/A. He has identified the signatures of accused Narayan Diwakar on various note sheets. Further, he has deposed that he was appointed as Election Officer vide order Ex.PW19/G but the election could not be conducted as he did not receive any documents from the society. PW­36 has categorically stated that accused Gokul Chand Aggarwal is/was not known to him personally and he never enquired from him during his tenure in the RCS regarding the progress of revival of Textila CGHS. This witness was declared hostile by the Ld. Spl. PP for CBI. However, during his cross­examination, nothing incriminating has come out in evidence against accused Gokul Chand Aggarwal. This witness has categorically denied the suggestion that it was accused Gokul Chand Aggarwal who was pursuing revival matter in RCS office or that he had introduced himself as consultant of various societies including Textila CGHS. Further, he did not identify the signatures of Faiz Mohammad, Daya Nand Sharma, Ramnath on CBI Vs. Gokul Chand Aggarwal & Others Page No. 19 of 68 (Textila CGHS) various documents/note sheets in the files maintained in the office of RCS. During his cross­examination, this witness admitted that copy of letter dated 28.10.2003 (Ex.PW9/E) was sent to AR (NW) for information and the said letter was addressed to President/Secretary of Textila CGHS, D­5/201, Chintapurni House, Central Market Prashant Vihar, Delhi as mentioned therein. It was further admitted that there is no mention of personal appearance of AR (NW) before RCS on 11.11.2003 at 3 PM.

28. PW­39 Jagmal Singh was posted as LDC in the office of RCS during the relevant period. He has deposed that the writing "received and signature in my name" on Ex.PW35/D are not in his hand and the said document does not bear his signature. Further, except him no other person by the name of Jagmal was posted in the office of RCS. He has deposed that he does not know as to who has prepared and signed the receipts Mark 39/A & Mark 39/B and who has signed at point C on Mark PW39/C. This witness has denied having known any person in the name of Kamal Singh, the then LDC in the office of RCS Delhi. This witness was declared hostile and was allowed to be cross­ examined by Ld. PP. During his cross­examination by Ld. PP, PW­39 has denied the suggestion that he is deposing falsely about accused Kamal Singh been posted in the office of RCS. He has denied that the CBI Vs. Gokul Chand Aggarwal & Others Page No. 20 of 68 (Textila CGHS) photocopy of audit receipt Mark 39/A was prepared and signed by accused Kamal Singh. He was confronted in this regard with the statement Mark PW39/X from portion A to A1. He has further denied that vide appointment letter Mark PW39/C accused Kamal Singh was appointed as Auditor to conduct the audit of Textila CGHS. He was confronted with the statement Mark PW39/X from portion C to C1. He has also denied the signatures of Kamal Singh on various other documents and was confronted with the statement Mark PW39/X. He has denied the suggestion that he is not intentionally identifying the signature of accused Kamal Singh.

29. POST OFFICE EMPLOYEES:

               i)      PW­1 Kailash Chander

               ii)     PW­2 Sohan Pal Sharma

               iii)    PW­3 Mohinder Poddar

               iv)     PW­4 Ram Niwas

               v)      PW­5 Sat Prakash

               vi)     PW­6 Rati Ram

               vii)  PW­7 Ashok Kumar

               viii) PW­8 Hari Prakash

                  ix)    PW­9 Mahesh Kumar



CBI Vs. Gokul Chand Aggarwal & Others                               Page No. 21 of 68
              (Textila CGHS)
                       x)     PW­10 Hari Dutt

                   xi)    PW­42 Fateh Singh

30. All the above mentioned PWs are the postmen working in different areas in Delhi and they have deposed that either the addressees were not residing at the given addresses or the addresses were found fake as no such addresses existed in their beats.

SANCTIONING AUTHORITIES :­

31. PW­23 Naini Jayaseelan has proved prosecution sanction for accused Kamal Singh (A­6) vide her sanction order Ex.PW23/A.

32. PW­43 Ramesh Narayanswami has proved prosecution sanction for accused Ramnath (A­4) as Ex.PW43/A.

33. OTHER WITNESSES :­

i) PW­13 Gaurav Gupta (Notary Public)

ii) PW­14 Satbir Gupta (Stamp Vendor)

iii) PW­20 Shweta Mishra (Advocate)

vi) PW­28 Atul Kumar Saxena (Known to A­1)

vii) PW­34 Lakhmi Chand (Formal witness)

viii) PW44 Narender Kumar (Handwriting Expert)

34. PW­13 Gaurav Gupta has deposed that his father was Notary Public who died on 15.1.2002 and all the affidavits Ex.PW13/1 CBI Vs. Gokul Chand Aggarwal & Others Page No. 22 of 68 (Textila CGHS) to PW13/137 do not bear the signatures/initials of his father. Further, he deposed that he cannot say who has used his seal and registration number on these affidavits.

35. PW­14 Satbir Gupta is the Stamp Vendor who sold the stamp papers in the denomination of Rs.10/­ each in bulk on 8.9.2003 and has proved the same as Ex.PW13/1 to Ex.PW13/137. As per this witness, the names of deponents were written by him at the back of the stamp papers as per the list supplied by accused Gokul Chand Aggarwal. This witness has correctly identified the accused Gokul Chand Aggarwal in the court.

During his cross­examination, PW­14 admitted that he does not have any list of the person in whose names the stamp papers were sold. He has categorically stated that the stamp papers shown to him in the court had been purchased by accused Gokul Chand Aggarwal.

36. PW­20 Shweta Mishra is the Advocate and she has deposed that she never represented Textila CGHS in the office of RCS on 11.11.2003 as well as on 25.11.2003 and her presence has been wrongly shown in the proceeding/note sheet Ex.PW19/B (13/N & 20/N).

37. PW­28 Atul Kumar Saxena has deposed that after CBI Vs. Gokul Chand Aggarwal & Others Page No. 23 of 68 (Textila CGHS) retirement from DDA he started his business of Consultant Engineer at Prashant Vihar. He met accused Gokul Chand Aggarwal for the first time during 2002­03 in connection with interior designing work of his office. Further, he has deposed that he has nothing to do with Textila CGHS.

38. PW­34 Lakhmi Chand is a formal witness who handed over the documents to the IO which were seized vide memo Ex.PW34/A.

39. PW­44 Narender Kumar is the handwriting expert. He proved his opinions as Ex.PW44/A and Ex.PW44/B and details reasons thereof as Ex.PW44/E and Ex.PW44/F. During his cross­examination, he has admitted that he has not explained the similarities of the specimen writings with the questioned writings. He has further admitted that some of the questioned writings which were sent for comparison were original and some of were photocopies. He has denied that during comparison of photocopies the pen pressure and writing speed of the questioned writing cannot be assessed. He has further admitted that he had not made the enlarged photographs of all the questioned and specimen signatures.

CBI Vs. Gokul Chand Aggarwal & Others Page No. 24 of 68 (Textila CGHS)

40. CBI OFFICIALS :­

(i) PW­38 G.M. Rathi (Formal witness)

(ii) PW­40 Subhash Kundu (I.O.)

41. PW­38 G M Rathi is a formal witness who seized the original non­judicial stamp sale register issued to Satbir, SR office, Janak Puri, New Delhi. He proved the true copy of the said register as Ex.PW38/A.

42. PW­40 Subhash Kundu is the IO of the case who investigated the matter and after completing the investigating the matter filed charge sheet in the court.

IV STAND OF ACCUSED UNDER SECTION 313 CR.P.C AND DEFENCE EVIDENCE :

43. The statements of accused Gokul Chand Aggarwal (A­1), Narayan Diwakar (A­2), Daya Nand Sharma (A­3), Ramnath (A­4), Faiz Mohammad (A­5) and Kamal Singh (A­6) under Section 313 Cr.PC were recorded when a chance was given to explain the incriminating evidence against them.

44. A­1 Gokul Chand Aggarwal has stated that he is innocent and has been falsely implicated in the present case. Neither he nor any of his family members were members in Textila CGHS. He did not CBI Vs. Gokul Chand Aggarwal & Others Page No. 25 of 68 (Textila CGHS) purchase any stamp paper from Satbir Gupta and also never directed Mr. Satbir Gupta to issue any stamp paper in the name of any person. As regards, his specimen signatures, he has stated that he was compelled to give his specimen signatures vide Ex.PW40/P to Ex.PW40/V. He did not examine any witness in his defence.

45. A­2 Narayan Diwakar has stated that the statement of PW­20 Ms. Shweta Mishra, Advocate, has to be read in totality in order to deduce the correct inference. It is a matter of common practice that the advocates appeared before him with or without formally filing their 'Vakalatnama' - as they do before other judicial / quasi­judicial authorities. In the present case the liquidation proceedings were never finalized. Further, as per the DCS Act, 1972, it is the responsibility of the Managing Committee to furnish the correct and true particulars while approaching the RCS office. He had no reason to believe that the documents / papers placed before him were not in order. In nutshell, it is claimed that the acts were done in absolute good faith taking all the necessary steps as provided under the law. He did not examine any witness in his defence.

46. A­3 Dayanand Sharma has stated that he joined RCS office in April, 2003 as Assistant Registrar on promotion as DANIC CBI Vs. Gokul Chand Aggarwal & Others Page No. 26 of 68 (Textila CGHS) Officer and was posted as Assistant Registrar (NW­II) on 11.6.2003 and, therefore, he was not having any personal knowledge about the official proceedings of RCS office prior to June, 2003. A­3 Daya Nand Sharma has denied the case of the prosecution and has claimed that he has been falsely implicated in the present case. He has stated that he only forwarded the files put up by Dealing Assistant on the basis of the Inspection Report submitted by the concerned Inspector. He has further stated that during the tenure of his posting in RCS office, no complaint was received against him nor any irregularity had been found. He did not examine any witness in his defence.

47. A­4 Ramnath has stated that the inspection reports were prepared by him on the basis of the documents produced by the society during the course of inspection of the society by him. Such inspection reports were submitted under the provisions of DCS Act and Rules, during discharge of his duties under the DCS Act. He has been falsely implicated by the Investigating Officer of the case without any evidence of criminality against him.

48. A­5 Faiz Mohammad has stated that he has been falsely implicated by the Investigating Officer in the present case without any evidence of criminality against him. In his defence A­4 Faiz Mohammad has examined DW­2 Gopal Singh Bisht who has deposed CBI Vs. Gokul Chand Aggarwal & Others Page No. 27 of 68 (Textila CGHS) that he was working as LDC in the office of RCS. As per this witness, there is no provision/guideline for conducting the inspection of the society before its revival by the RCS. Further, he has deposed that it is not the duty of the Dealing Assistant to check the genuineness of the members of the society shown in the list of members of the society. He has further deposed that it is the responsibility of the Managing Committee of the society to ensure about the genuineness of the members of the society.

49. A­6 Kamal Singh has stated the audit was done in normal course of his official duties as per provisions of DCS Act and Rules. He has been falsely implicated in this case by the CBI. He has been falsely implicated in this case by the CBI. In his defence accused Kamal Singh has examined Sh. Prahlad Kumar Thirwani as DW­1 who has deposed that there was no need to get the audit report and its enclosures i.e various accounts papers signed from the office bearers of the society in the presence of the auditor as there is no such requirement in the DCS Act. He has further deposed that the audit used to be done after the revival of the society and it is not a pre­requisite for revival. Further, as per DW­1 he did not find any irregularity in the audit report Ex.PW35/C wherein seven objections were raised by CBI Vs. Gokul Chand Aggarwal & Others Page No. 28 of 68 (Textila CGHS) accused Kamal Singh.

V RIVAL CONTENTIONS :

50. Ld. Special PP for the CBI has contended that CBI has proved its case against all the accused beyond reasonable doubt. According to him, all the public servants were in connivance with Gokul Chand Aggarwal (A­1) and they were helping him, actively and intentionally, so that Textila CGHS which was dormant for more than 10 years might be revived. All the accused persons knew that Textila CGHS was a defunct society as there was no correspondence by the genuine office bearers of the society after the year 1996. It was A­1 who wanted to revive the defunct society so that the land might be allotted by the DDA. It is further contended that in view of judgment of Delhi High Court the land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of date of registration of the society. According to Special PP, a newly created society would not have got any land and, therefore, false and forged documents were created with the active connivance of RCS officials. It was so done to project as if the said society was seeking its revival. According to Special PP for CBI, all the accused are liable to be convicted in the present case.

CBI Vs. Gokul Chand Aggarwal & Others Page No. 29 of 68 (Textila CGHS)

51. As regard A­1, Sh. Jagat Rana, learned counsel has contended that the CBI has framed the present case against A­1 only on the ground that he was a regular visitor to the office of RCS and known to all the RCS officials including accused in the present case. It is the case of the CBI that co­accused Faiz Mohammad knew that A­1 was impersonating himself as Secretary/President of the society. According to Ld. Counsel, the present case is based on conspiracy and circumstantial evidence which the CBI has failed to prove against A­1. There is nothing on record that A­1 had acted as Jagmal/Jag Mohinder or that he was a regular visitor to RCS office known to the officials working there. There is nothing on record that alleged stamp papers were submitted by him in the office of RCS. Further, it is contended that almost entire GEQD opinion is sought on photocopies and not the originals and even otherwise the opinion of GEQD simply has to be ignored because it is in complete violation of Section 311A of Cr.PC which mandates that w.e.f 23.6.2006, the writing of a person required for investigation has to be under the orders of Magistrate. However, no such permission of the Magistrate was taken for obtaining the specimen handwritings/signatures of A­1 which fact had been admitted by IO in his cross­examination. It is, thus, contended that obtainment of specimen handwriting / signatures of A­1 and its manner were in CBI Vs. Gokul Chand Aggarwal & Others Page No. 30 of 68 (Textila CGHS) flagrant violation of law. The GEQD report is, even otherwise, inadmissible as the expert has not explained the points of similarities, dissimilarities and points of reference on the basis of which the said report was given. Lastly, Ld. Counsel contended that A­1 was neither a member nor a beneficiary of the society and as no land was allotted to Textila CGHS, it cannot be assumed that A­1 was a co­conspirator in commission of the offences. The investigation is tainted and motivated. There is no wrongful loss or wrongful gain to anyone. A­1 is, therefore, liable to be acquitted. A­1 has also filed written arguments. I have gone through the same.

52. As regards A­2, Sh. Abhishek Prasad, Ld. Counsel has contended that the revival order of the society by A­2 is neither illegal nor contrary to public interest. There is nothing on record that the cancellation of winding up order dated 7.9.90 was influenced by any corrupt or illegal means or was passed by A­2 abusing his official position. Membership is the subject matter of the society and A­2 had no role in it. It is further contended that the file was processed in its natural course and there was nothing unusual to raise suspicion. According to him, the cancellation of winding up order was passed under Section 63 (3) of DCS Act and there is no evidence to show that either A­2 or other RCS officials had any knowledge that the CBI Vs. Gokul Chand Aggarwal & Others Page No. 31 of 68 (Textila CGHS) documents submitted before them were forged one. It is further contended that there is no evidence of any association of A­2 with any private individual including A­1. There is nothing on record to show that A­2 gained any pecuniary advantage from anyone and this fact is clear from the testimony of PW­40 Subhash Kundu, IO. Neither A­2 nor his family members were members of Textila CGHS and, as such, he was not to be benefited if the land would have been allotted by the DDA. According to Learned Counsel, there is nothing on record to show that any loss was caused to DDA or Government.

53. As regards A­3, Sh. Neeraj Verma, Ld. Counsel contended that A­3 had no role to play in the revival of the society. There is nothing on record that A­3 had the knowledge that A­1 was impersonating himself as President/Secretary of the Textila CGHS. It has also not come on record that A­3 had gained any pecuniary advantage and, as such, he is liable to be acquitted in the present case.

54. Sh. S. K. Bhatnagar, Learned Counsel for Ramnath (A­4) and Faiz Mohammad (A­5) and Kamal Singh (A­6) has contended that all of them have been falsely implicated in the present case by the CBI. These accused were merely discharging their respective official duties and they had no reason whatsoever to disbelieve or suspect that the documents produced before them by A­1 were forged and fabricated. CBI Vs. Gokul Chand Aggarwal & Others Page No. 32 of 68 (Textila CGHS) According to him, even otherwise, it was merely a case of preparation and not an attempt. Accused Ramnath (A­4) and Kamal Singh (A­6) being public servants enjoy immunity from prosecution under Section 95 of DCS Act.

55. As regard A­4, learned Counsel has contended that there is nothing on record that any fictitious report had been submitted by A­4 on the basis of which the society was revived and, therefore, he cannot be labeled as a co­conspirator. Learned Counsel has further contended that there is nothing on record that A­4 had merely acted on the directions of his superiors and there is no evidence to the effect that he never visited the office of the society. Lastly, he has contended that no wrongful loss or wrongful gain was caused to anyone and, as such, A­4 is liable to be acquitted.

56. As regard A­5, learned Counsel has contended that during preliminary enquiry no prima­facie material was found against him. It is further contended that revival order was not based on the basis of report/note submitted by A­5. It has been claimed that there was no dereliction of duty on his part at all. There is nothing on record to show that A­5 ever demanded or obtained any pecuniary advantage also. It has also been claimed that A­5 cannot be dubbed as a co­conspirator. It CBI Vs. Gokul Chand Aggarwal & Others Page No. 33 of 68 (Textila CGHS) is, therefore, prayed that he be acquitted.

57. As regard A­6, Sh. S K Bhatnagar has contended that the name of A­6 is not mentioned in the FIR. He entered the scene after the revival order passed by the RCS and, therefore, he cannot be labeled as a co­conspirator. Ld. Counsel has further contended that there is nothing on record that A­6 appended false signatures of office bearer of the society. A­6 had merely acted on the directions of his superiors. As per Ld. Counsel, A­6 is liable to be acquitted in the present case.

58. In support of their respective contentions, learned Counsel for all the accused persons have also relied upon several judgments which I would refer to at appropriate places.

VI             EVALUATION OF EVIDENCE AND FINDINGS :

               (A) SANCTION :

59. Sh. S. K. Bhatnagar, learned Counsel for A­4 to A­6, has raised serious objections with respect to the validity of sanction. It is contended that sanction orders Ex.PW23/A & Ex.PW43/A are non­est in law as the same have not been obtained from the competent Authorities. According to him, even otherwise, the said sanction orders have been accorded without application of mind. As per Special PP for CBI, there is no illegality in grant of sanction and the sanction orders CBI Vs. Gokul Chand Aggarwal & Others Page No. 34 of 68 (Textila CGHS) are with proper application of mind.

60. Needless to mention that sanction for prosecution of an accused under the P.C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning Authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.

61. PW­23 Ms. Naini Jayaseelan had accorded sanction for accused Kamal Singh (A­6) while PW­43 Sh. R. Narayanswami had authenticated the sanction orders qua Ramnath (A­4).

62. PW­23 has deposed that she had perused the documents before granting sanction. During her cross­examination nothing has come on record that the sanction was accorded without due application of mind or even otherwise, non est in law.

63. PW­43 Sh. R. Narayanswami was posted as Chief Secretary, Govt of NCT of Delhi at the relevant time when he accorded CBI Vs. Gokul Chand Aggarwal & Others Page No. 35 of 68 (Textila CGHS) sanction qua A­4 and nothing has been brought on record by the defence to show that he was not competent to accord the sanction.

64. I have gone through the testimony of PW­23 and PW­43 and I have not been able to find any material which may indicate that the sanction orders were obtained from incompetent Authority or the sanction orders were passed without proper application of mind.

65. Further, it has been contended by Sh. S. K. Bhatnagar that sanction for prosecution should have been taken from that particular official only who was posted as competent Authority at the time of commission of the offence. This argument is devoid of any merit. The only thing required to be seen is whether the sanction has been obtained by the competent Authority or not. The judgments R. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684 and Prakash Singh Badal Vs. State of Punjab, 2006 (4) Crimes 388 (SC) are not applicable to the facts of the present case. It is the settled law that merely because there is any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Though not referred to or relied upon, for taking this view I am supported with the judgment of Apex Court reported as State of Bihar Vs. Rajmangal CBI Vs. Gokul Chand Aggarwal & Others Page No. 36 of 68 (Textila CGHS) Ram, Crl. Appeal No. 709­710 of 2010 decided on 31.03.2014. From the perusal of evidence on record, there is nothing to show that there was any failure of justice or serious prejudice to the accused because of alleged improper sanction.

66. Further, it has been contended by A­4 and A­6 that no mandatory sanction has been obtained under Section 197 Cr.P.C. and, therefore, these accused could not have been prosecuted. This contention does not hold water as the prosecution is not required to seek sanction for prosecuting the accused persons twice. When an accused is granted sanction under Section 19 of PC Act, there is no need for again obtaining sanction under Section 197 Cr.P.C. If the contention of learned Counsel is accepted, the purpose of Section 19 of PC Act and the legislative intent would be frustrated. Though not referred to or relied upon, for taking this view I am supported with judgment Neera Yadav Vs. CBI, (2006) 2 All. LJ 442. Similar is the view taken by our Delhi High Court in judgment reported as Dharambir Khattar Vs. CBI, (2009) 159 DLT 636.

67. On careful perusal of entire testimony of PW­23 and PW­43, I am of the opinion that Sh. S. K. Bhatnagar has not be able to show any substantial or compelling reason which may persuade me to hold that sanction orders Ex.PW23/A & Ex.PW43/A are invalid or CBI Vs. Gokul Chand Aggarwal & Others Page No. 37 of 68 (Textila CGHS) non­est law.

68. Sh. Abhishek Prasad, learned Counsel for A­2 has contended that sanction for prosecution should have been obtained under Section 197 Cr.P.C. before prosecuting A­2 and in support of his contention, he has relied upon judgments ­ State of M. P. Vs. Sheetla Saha, 2009 (VII AD) SC 630, C. P. Thakur Vs. CBI, 2009 (110) DRJ, K. R. Purushothaman Vs. State of Kerala, AIR 1996 SC 90 and Dwarika Prasad Vs. State, 1996 (2) CC Cases 6 (Delhi). I have gone through these judgments. They are not applicable to the facts of the present case.

69. So far as accused Narayan Diwakar (A­2) is concerned, no sanction under Section 19 of PC Act was required as he was no longer in service when the charge­sheet was filed for the purpose of taking cognizance. The accused have been charged for committing criminal conspiracy. Though not referred to or relied upon, in judgment ­ Hari Har Prasad Vs. State of Bihar, 1972 (3) SCC 89, it has been held that as far as the offence of criminal conspiracy under Section 120B IPC was concerned, it could not said to be of the nature mentioned in Section 197 Cr.P.C. meaning thereby it was not part of the duty of a public servant, while discharging his official duties, to enter into a CBI Vs. Gokul Chand Aggarwal & Others Page No. 38 of 68 (Textila CGHS) criminal conspiracy or to indulge in criminal misconduct. It was, thus, held that want of sanction under Section 197 Cr.P.C. was no bar to prosecution.

(B) CONSENT OF GOVT. BEFORE REGISTRATION OF FIR

70. Next, it has been contended that no consent from the Government was obtained and, as such, no FIR could have been registered by the prosecution. According to learned Counsel, from the charge­sheet itself it is clear that Government had not given consent for lodging the FIR and, therefore, prosecution of accused is illegal. This argument is without any merit. The present FIR was registered on the directions issued by High Court of Delhi vide its order dated 02.08.2005 passed in Civil Writ Petition No. 10066 of 2004 and, consequently, a preliminary enquiry was conducted. After the conclusion of the preliminary enquiry, the present FIR was registered on 13.12 2005. The Division Bench of High Court of Delhi had directed the CBI to conduct thorough investigation in 135 CGHS. Further, it was directed that the investigation be conducted by an Officer not below the rank of DIG. Pursuant to these directions, FIR in the present case was registered. Thus, no illegality can be found on the ground that no consent of State or Central Government, as the case CBI Vs. Gokul Chand Aggarwal & Others Page No. 39 of 68 (Textila CGHS) may be, was obtained before lodging the FIR in the present case. Though not referred to or relied upon, in judgment - State of West Bengal Vs. The Committee for Protection of Democratic Rights, 2010 (2) SCALE 467, it has been held by the Apex Court that High Court can direct CBI to investigate an offence without the consent of the State Government within whose territorial jurisdiction the offence is alleged to have taken place.

71. In these circumstance and for abovesaid reasons, it cannot be said that registration of the FIR in the present case was bad in law.

(C) ACCUSED NOT NAMED IN F.I.R

72. Sh. S. K. Bhatnagar, learned Counsel has contended that the names of A­4 and A­6 are not mentioned in the FIR. The preliminary enquiry was ordered on 08.08.2005 and, thereafter, after a gap of 4­5 months, FIR was registered on 13.12.2005. During preliminary enquiry CBI did not find any prima­facie material against A­4 and A­6 for prosecuting them. The said accused were later on arrested and charge sheeted in the present case in order to save the real culprits. Learned Counsel has contended that investigation has not been conducted by the IO in a fair manner.

73. It is not at all necessary that the names of all the accused CBI Vs. Gokul Chand Aggarwal & Others Page No. 40 of 68 (Textila CGHS) persons including A­4 & A­6 should have been mentioned at the time of registration of the FIR. It is also not required that the entire facts should have been mentioned in the FIR. Registration of FIR is only a starting step and only after the FIR, the investigation is carried out by the prosecuting agency. Thus, FIR is not a concluding step. In my opinion, mere non­mentioning of names of A­4 & A­6 in the FIR is not a ground to exonerate them.

(D) CHEATING (SECTION 420 IPC);

COMMITTING FORGERY FOR THE PURPOSE OF CHEATING (SECTION 468) AND USING AS GENUINE A FORGED DOCUMENT (SECTION 471 IPC)

74. The definition of cheating is provided in Section 415 IPC. For the offence of cheating, one of the ingredients is that the alleged act must have been committed either dishonestly or fraudulently.

75. Section 24 IPC defines 'dishonestly'. It reads as follows :

"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'"

76. Section 25 IPC defines 'fraudulently'. It reads as follows :

"A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise."

CBI Vs. Gokul Chand Aggarwal & Others Page No. 41 of 68 (Textila CGHS)

77. All the accused have vehemently contended that there was no cheating as there was no wrongful loss to anyone and there was no corresponding wrongful gain to anyone and, therefore, the ingredients of Section 415 IPC are not attracted to the present case. According to them, there is nothing on record to suggest that any loss was caused either to the DDA or the RCS. The crucial ingredient being missing, the accused cannot be convicted for the offence of cheating.

78. PW­11 Deepak Kumar Nayyar was the promoter member of Textila CGHS who became the member of Textila CGHS on 5.9.83. He has deposed that he attended the first GBM and has proved the proceedings in this regard as Ex.PW11/A. He was holding the post of Treasurer in the said society. After 1987 he left for Bombay and thereafter, he neither participated in the affairs of the society nor received any correspondence from RCS. He has denied the signatures on affidavit Ex.PW11/F to be appended by him and has also denied the signature of Sarvjeet Singh to be appended by Sarvjeet Singh on affidavit Ex.PW11/G. As per this witness, Sarvjeet Singh left India in the year 1984­85 and he was the custodian of the records. PW­12 Ranjana Arora, PW­15 Rajender Kumar Goel, PW­17 Chitra Goel, PW­18 Jaivinder Singh, PW­22 Mukesh Aggarwal, PW­24 K C CBI Vs. Gokul Chand Aggarwal & Others Page No. 42 of 68 (Textila CGHS) Angrish, PW­27 Rajesh Kumar Singh Badhuria, PW­31 Arun Kumar Bhalla, PW­32 Kailash Chand Gupta, PW­33 Ram Nagina Singh, PW­37 Sushila Verma and PW­45 Anil Kumar Sinha have also deposed that they became members of Textila CGHS but later on they lost interest in the society. These witnesses have also deposed that the their signatures have been forged on different documents viz affidavits, membership form etc which are pertaining to Textila CGHS. Thus, from the testimony of these witnesses it is clear that proceedings of the society were forged and fabricated and, thereafter, they were filed in O/o RCS with an object to revive the Textila CGHS.

79. PW­16 Jag Mohinder Singh has denied that he ever applied for the membership of Textila CGHS and has also denied signatures on various documents to be appended by him.

80. It is the case of the prosecution that PW­21 Dalip Kumar Mathur became a member of Textila CGHS in 1983 and had executed the documents in this regard. Though PW­21 had admitted to have become member of Textila CGHS but he has denied execution of affidavit/application for becoming member in 1983. He has denied the execution of affidavit Ex.PW13/107 in the year 2003 and having proposed the name of Jagmal Singh for the post of President in Textila CBI Vs. Gokul Chand Aggarwal & Others Page No. 43 of 68 (Textila CGHS) CGHS vide nomination form Ex.PW21/D. He has also denied the signatures on various proceedings to be appended by him.

81. Thus, from the testimony of above referred witnesses it has been proved by the prosecution that the society stopped functioning in 1990s and false documents were submitted for the revival of the society by creating false records.

82. PW­25 Satish Mathur has deposed about the steps taken by the O/o RCS with respect to winding up of Textila CGHS. From his testimony, it has come on record that the winding up order Ex.PW25/A was passed on 7.9.90 by PW­25 Satish Mathur. However, no liquidator was appointed.

83. PW­19 Sanjeev Bharati identified the signatures of A­2 on various note sheets. A­2 has not denied his signatures on various note sheets/orders in his statement u/s 313 Cr.PC.

84. As per PW­30 Yogiraj Textila CGHS was registered on 1.2.84 and was wound up on 7.9.1990. A letter dated 6.8.2003 Ex.PW19/F was received in the society and the said letter was by one Jagmal claiming himself to be the President of the society. PW­30 has identified the signatures of A­2, A­3, A­4 and A­5 on various proceedings/note sheets. These accused have not denied their CBI Vs. Gokul Chand Aggarwal & Others Page No. 44 of 68 (Textila CGHS) signatures/initials on various proceedings/note sheets in their statements u/s 313 Cr.PC.

85. During investigation, questioned documents alongwith specimen signatures / handwriting of A­1 were sent to GEQD, Chandigarh for obtaining opinion. PW­44 Narender Kumar has proved his opinions as Ex.PW44/A and Ex.PW44/B and detailed reasons in support thereof as Ex.PW44/E and Ex.PW44/F respectively.

86. A letter dated 16.8.2003 (Ex.PW319/F) signed by one Jagmal claiming himself to be President of Textila CGHS was received in O/o RCS on 19.8.2003. It discloses that the said society was registered with RCS at serial no. 1492 (G/H) dated 1.2.1984 with the objects to acquire land and construction of flats for its members. It further discloses that the society was, lateron, wound up and the shortcomings have been removed by the society. The relevant para of the said letter is reproduced herein below :

'Fresh election of the Managing Committee of the society have been conducted in the 13th July 2003 strictly in accordance with the provision of schedule­II of Rule 58 as amended time to time. Election along with the copies of supporting documents including list of member that stands 45 days prior to the date of election, Managing Committee resolution copies 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 called for and also the managing committee of the society has prepared all the books CBI Vs. Gokul Chand Aggarwal & Others Page No. 45 of 68 (Textila CGHS) of accounts and a fresh list of members as o date has been drawn up in prescribed Performa on the submitted for verification along with the related documents as and when directed to do so, It is humbly submitted that the society was never served with the liquidation order so passed and also no communication was ever received by the society in the matter hence the society was totally unaware about the correspondence made by the RCS Office."

87. PWs have categorically denied having become members of Textila CGHS. Their specimen signatures were obtained and were examined by an expert who has given the report that all the documents pertaining to membership in Textila CGHS were bearing forged signatures. Thus, the prosecution has exposed the forgery in this regard.

88. Apart from the oral testimony of the abovesaid PWs, there is GEQD report also against accused Gokul Chand Aggarwal (A­1). During investigation, CBI took the help of handwriting expert and sent various questioned handwritings and signatures to CFSL, Shimla and as per the report of expert, it was found that it was A­1 who had been appending the false/fake signatures of Jagmal/Jagmohinder/Satish (President/Secretary/Treasurer) as well as of other members on various documents.

89. Sh. Jagat Rana has seriously disputed the manner in which CBI Vs. Gokul Chand Aggarwal & Others Page No. 46 of 68 (Textila CGHS) the specimen handwritings and signatures of A­1 were taken during the investigation. According to him, the specimen handwritings/signatures had been taken without the orders of the Court. According to Ld. Counsel, the opinion of GEQD has to be ignored as it is in violation of S.311A Cr.PC which mandates that the writing of a person required for investigation has to be under the order of Magistrate. It is an admitted case that no such permission was taken for obtaining the specimen handwriting of A­1. There is nothing in the testimony of witnesses that A­1 was coerced to give specimen handwritings / signatures. Though A­1, in his statement under Section 313 Cr.P.C., has alleged that he did not give any specimen handwriting as stated in Ex.PW40/W and he was compelled to give specimen handwriting on exhibits PW40/P to Ex.PW40/V by showing the specimen writing but such a stand taken by A­1 does not inspire confidence.

90. The reliance placed upon S.311A Cr.PC is of no help to learned Counsel in view of the judgment of the Apex Court on the same issue. Though not referred to or relied upon, in Ravinder Singh @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436, the Apex Court has held that the Investigating Officer has power to take specimen signatures during the investigation even without permission of the Court and that report of such an expert based on such specimen CBI Vs. Gokul Chand Aggarwal & Others Page No. 47 of 68 (Textila CGHS) signatures / handwritings could be used as evidence. Even otherwise, though not referred to or relied upon, in judgment - Umesh Kumar Vs. State, 2013 (IX) AD (SC) 581, it has been held by the Apex Court that even if a document is obtained in improper and illegal manner, such a document is admissible in evidence provided the same is relevant and its genuineness is also substantiated. Thus, I am of the opinion that in view of the above­referred two Apex Court judgments, there is no merit in the contention of Sh. Jagat Rana that the specimen handwritings / signatures of A­1 were taken in flagrant violation of law.

91. PW­44 Narender Kumar had examined the questioned and specimen documents. He has deposed that he joined CFSL Shimla in 1987 after completing M.Sc. and since then he has examined hundred of cases comprising thousands of exhibits. As per PW­44, he is in the job of examining large of documents and has tendered many evidences in various Courts of Law. Thus, PW­44 fall within the category of expert under Section 45 of Indian Evidence Act and he was supplied with questioned documents as well as specimen handwritings of A­1 and after careful and thorough scientific examination he gave the opinion Ex.PW44/A and Ex.PW44/B and the reasons Ex.PW44/E and Ex.PW44/F in support thereof. In his report, he has found the following CBI Vs. Gokul Chand Aggarwal & Others Page No. 48 of 68 (Textila CGHS) documents to have been written/forged by (A­1) Gokul Chand Aggarwal :­ Original documents examined by GEQD S. No. Questioned Document Questioned Document Number File

1. List of Managing Q16 to Q 53, Q­59, D­2 (B) Committee Members Signatures of Jagmohan

2. List of Members Q1056 D­7 & D­8 Signature of Jagmohan 3 List of Members Q292 to Q 296, Q297 to Q302 D­2 (D) Signatures of Jagmal 4 List of Members Q 297 to Q302, Q303 to Q308 D­2 (A) Signatures of Jagmal

5. Affidavit - Signature Q309 D­2 (A) of Jagmal

6. Signature of Jagmal Q311 (Page 98/C), Q­312 (97/C), D­2 (8) Q­313, Q­314, Q315, Q316,Q317,Q318, Q319,Q320,, Q321, Q322, Q323, Q324, Q325, Q326, Q327, Q328, Q329, Q330, Q331, Q332, Q333, Q334, Q335, Q336, Q337, Q338, Q339, Q340, Q341, Q342, Q343, Q344, Q345, Q346, Q347, Q348, Q349, Q350,

7. Signature of Jagmal Q924, Q925, Q927, Q928, Q929, D­7 & D­8 Q930, Q940 to Q975

8. Signature of Satish Q­368 (Page 98/c), Q69 ( 97/C),, D­2 (8) CBI Vs. Gokul Chand Aggarwal & Others Page No. 49 of 68 (Textila CGHS) Q­370, Q­371, Q­372, Q373, Q374, Q375, Q376, Q377, Q378, Q379, Q380, Q381, Q382, Q­383, Q384, Q385, Q86, Q387, Q388, Q389, Q390, Q391, Q392, Q393, Q394, Q395, Q396, Q397, Q399, Q400, Q401, Q402, Q403, Q404, Q405, Q406, Q407, Q408, Q409, Q410, Q411, Q412, Q413, Q413, Q415, Q416, Q417, Q418, Q419, Q420, Q421, Q422, Q423, Q424Q425, Q426, Q427, Q428 9 Certificate of Cash in Q­1117 D­7 & D­8 Hand Signature of Satish Kumar 10 Brief summary of the Q­1057 D­7 & D­8 society Signature of Satish Kumar 11 Balance Sheet Q­1058 D­7 & D­8 Signature of Satish Kumar 12 Receipt and Payment Q­1059 D­7 & D­8 Account Signature of Satish Kumar 13 Signatures of Dalip 475 (Page No.205/C) D2 (B) Mathur 14 Signature of Madhu 478 (202/C) D2 (B) Goel 15 Signature of Mukesh 481 (Page No.199/C) D2 (B) Aggarwal CBI Vs. Gokul Chand Aggarwal & Others Page No. 50 of 68 (Textila CGHS) 16 Signatures of R K 487 (Page No.193/C) D2 (B) Saxena

17. Signature of N P 506 (172/C) D2 (B) Gupta

18. Signature of Mohinder 519 (159/C) D2 (B) Kumar Jain 19 Sunil Raj Saxena 520 (158/c) D2 (B) 20 Lata Bansal 526 (152/C) D2 (B) 21 Anil Sharma 540 (138/C) D2 (B) 22 Asha Rani 543 (134/C) D2 (B) 23 B R Gupta 551 (124/C) D2 (B) 24 Sunil Khurana 570 (105/C) D2 (B) Photocopies of documents examined by GEQD S. Questioned Document Questioned Document File No. Number 1 Signatures of Jagmal Q437, Q438 D ­2 (A) 2 Anil Sharma 681 ­do­ 3 Ashok Kumar 703 ­do­ 4 Inder pal 691 ­do­ 5 Signature of Dalip Mathur Q580,616 ­do­ 6 Asha Rani 684 ­do­ 7 Signature of Vijay Kumar 581 ­do­ 8 Satnam Singh 673 ­do­ 9 Signature of R N Singh 582 ­do­ 10 Padam Gupta 583,615 ­do­ 11 Trilok Singh 584,612,700 ­do­ CBI Vs. Gokul Chand Aggarwal & Others Page No. 51 of 68 (Textila CGHS) 12 Mukesh Aggarwal 585,613 ­do­ 13 Ratan Lal 586,610, 687 ­do­ 14 Manohar Lal 587,611 ­do­ 15 Sunil Khurana 588, 607,712 ­do­ 16 R K Saxena 590, 609,628 ­do­ 17 Amita Rai 604,671 ­do­ 18 A K Bhalla 605 ­do­ 19 Asha Garg 593,606 ­do­ 20 Deepak Puri 603 ­do­ 21 Sunil Raj Saxena 595, 602,661 ­do­ 22 R C Gupta 608 ­do­ 23 N P Gupta 647 ­do­ 24 Ashok Yadav 649 ­do­ 25 Lata Bansal 667 ­do­ 26 Ravinder Prasad 686 ­do­ 27 B R Gupta 693 ­do­ 28 Deepak Puri 711 ­do­ 29 Anita sharma 716 ­do­ 30 Sohan 763 ­do­

92. As per PW­44 Narender Kumar, the questioned handwritings/signatures have been written by one and the same person i.e. Gokul Chand Aggarwal (author of specimen handwritings from S­1 to S­232). The testimony of PW­44 has remained unshaken, fully believable and reliable. There is nothing to show that PW­44 did not CBI Vs. Gokul Chand Aggarwal & Others Page No. 52 of 68 (Textila CGHS) apply proper procedure for comparison purpose. The opinion of expert is a relevant fact as per Section 45 of Indian Evidence Act. The reports Ex.PW44/E and Ex.PW44/F of PW­44 Narender Kumar indicate that it was Gokul Chand Aggarwal (A­1) who had been appending the false signatures of Jagmohan, Jagmal, Satish and other members of Textila CGHS as mentioned in the chart give hereinabove in the judgment. Thus, it has been proved by the prosecution beyond reasonable doubt that it was Gokul Chand Aggarwal (A­1) who was responsible for creating false / forged documents for the purpose of revival of the defunct Textila CGHS.

93. Though not referred to or relied upon, in Murari Lal Vs. State of Madhya Pradesh, AIR 1980 SC 531, it has been held that there is no rule of law that opinion / report of handwriting expert must never be acted upon unless substantially corroborated. However, in the present case there is sufficient oral evidence of member witnesses that false documents were created for revival of Textila CGHS.

94. Thus, from the evidence on record it has been established by the prosecution beyond reasonable doubt that there was never any genuine, authorize and lawful attempt for revival of Textila CGHS or for cancellation of winding up order. Textila CGHS was never active after the year 1987. The members of the society have categorically CBI Vs. Gokul Chand Aggarwal & Others Page No. 53 of 68 (Textila CGHS) stated that though they were members but later on they lost interest in the society in the year 1987. The various documents for revival of the society were found to be forged and fabricated by Gokul Chand Aggarwal (A­1). There was neither any audit nor election for more than 10 years and all of a sudden an application was made by A­1 purportedly on behalf of Textila CGHS for revival of the society.

95. Sh. Jagat Rana has contended that at the most it can be said that it is a mere case of preparation and not an attempt. I am not convinced with the contention of the learned Counsel. A large number of documents were forged and fabricated by A­1 and were presented in the O/o RCS. However, the land could not allotted as the illegal activities committed by A­1 came to light and he could not succeed in his attempt to cheat. Gokul Chand Aggarwal (A­1) had done everything which he could have done for the revival of the society and, thus, I am of the opinion that it is a case of attempted cheating which the prosecution has proved beyond reasonable doubt.

96. Sh. Jagat Rana has further contended that there was no cheating as no wrongful loss to anyone and corresponding wrongful gain to anyone was caused. The contention of the learned Counsel is without any merit. The land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of the date of registration of CBI Vs. Gokul Chand Aggarwal & Others Page No. 54 of 68 (Textila CGHS) the society. There was a long queue of societies seeking allotment of land from the DDA. A newly created society either would not have got any land or would have to wait for a long time for getting land and, therefore, false & forged documents were created with a view to revive a defunct society which was registered in the year 1984. Thus, the real aggrieved person would be the next eligible society which would have been allotted the land, had A­1 not tried to revive a defunct society. Therefore, there was an attempt to cause wrongful loss to such eligible society and there was an attempt to have wrongful gain by A­1 purportedly representing a society which was dormant for more than 10 years and was not eligible for the allotment of land by the DDA.

97. To summarize, from the above­referred discussion, the following facts stand proved by the prosecution :

i) Textila CGHS was registered in February, 1984 vide registration number 1492 (G/H) but it stopped working in the year 1987.

ii) Winding up order dated 7.9.1990 (Ex.PW.25/A) was issued by PW­25 Satish Mathur.

iii) There is evidence on record of member witnesses which has exposed the forgery.

CBI Vs. Gokul Chand Aggarwal & Others Page No. 55 of 68 (Textila CGHS)

iv) In August, 2003 an application bearing forged signature of one Jagmal as President which has been proved to be appended by Gokul Chand Aggarwal (A­1) was submitted for revival of Textila CGHS before RCS Narayan Diwakar (A­2).

v) False and forged documents for the purpose of revival of Textila CGHS were created by Gokul Chand Aggarwal (A­1).

vi) As per PW­14 Satbir Gupta, it was A­1 Gokul Chand Aggarwal who had purchased from him stamp papers in the denomination of Rs10/­ each in bulk on 8.9.2003 and he has proved the same as Ex.PW13/1 to Ex.PW13/137. Further, the names of the dependants were written at the back of the stamp papers as per the list supplied by A­1. The same stamp papers were found to have been filed in the office of RCS. PW­13 has proved that the said affidavits do not bear the signatures/initials of his father as Notary Public. Thus, the prosecution has proved the complicity of A­1 in the present case.

vii) From the testimony of Postmen, it is established that either the addresses of many members were non­existent CBI Vs. Gokul Chand Aggarwal & Others Page No. 56 of 68 (Textila CGHS) or if the addresses were correct, no such persons were residing at the addresses.

viii) The file was processed in the O/o RCS by the RCS officials. On 25.11.2003, revival order was passed by A­2 on the basis of record produced before him.

Thus, it has been proved that it was A­1 who was actively involved in the revival of Textia CGHS.

98. In these circumstances and for the aforesaid reasons, I am of the considered opinion that prosecution has proved its case against Gokul Chand Aggarwal (A­1) beyond reasonable doubt. Hence, Gokul Chand Aggarwal (A­1) is held guilty and convicted for committing offences under Sections 419, 420 read with Ss. 511, 468 & 471 IPC.

CRIMINAL MISCONDUCT BY A PUBLIC SERVANT [SEC. 13(1)(d) R/W S. 13 (2) OF PC ACT] AND CONSPIRACY (SECTION 120B IPC)

99. Section 7 & Section 13 (1) (d) of P.C. Act read as under:

Section 7 Public servant taking gratification other than legal remuneration in respect of any official act. ­Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official CBI Vs. Gokul Chand Aggarwal & Others Page No. 57 of 68 (Textila CGHS) act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Section 13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, ­

(a) ...

               (b)      ...
               (c)      ...
               (d)      if he ­

1.by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

2.by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;

100. A perusal of the aforesaid Section shows that the essential ingredients of a criminal misconduct are :­

i) That the accused should be a public servant;

ii) That he should use some corrupt or illegal means or CBI Vs. Gokul Chand Aggarwal & Others Page No. 58 of 68 (Textila CGHS) otherwise abuse his position as a public servant and

iii) That he should either for himself or for some other person obtains any valuable thing or pecuniary advantage.

101. Sh. Abhishek Prasad, learned Counsel for A­2, has contended that A­2 had no dishonest intention. It is a case of mere breach of procedure. PW­40 has himself admitted that no pecuniary advantage was received by A­2. According to him, A­2 cannot be convicted under Section 13(1)(d) read with 13(2) PC Act. In support of his contentions, he has relied upon judgments - Union of India Vs. Majour J. S. Khanna, 1972 Cri. LJ 849; K. R. Purushothaman Vs. State of Karela, (2005) 12 SCC 631; A. Subair Vs. State of Kerala, 2009 Cri. LJ 3450; Major S. K. Kale Vs. State of Maharashtra, AIR 1977 SC 822; S. P. Bhatnagar Vs. State of Maharashtra, AIR 1979 SC 826; Abdulla Mohammed Pagarkar Vs. State, AIR 1980 SC 499; Subhash Parbat Sonvana Vs. State of Gujrat, 2002 Cri. LJ. 2787, R. Balakrishna Pillai Vs. State of Kerela, AIR 2004 SC 1012 and A. K. Ganju Vs. CBI, Cri. MC No. 2384 of 2011 decided on 22.11.2013 by Delhi High Court.

102. Sh. S. K. Bhatnagar, learned Counsel for A­4 and A­5 has contended that Auditor A­6 Kamal Singh had merely certified the record and, as such, he cannot be convicted in the present case. In CBI Vs. Gokul Chand Aggarwal & Others Page No. 59 of 68 (Textila CGHS) support of his contention, he has relied upon judgments - S.Swaminathan Vs. State of Delhi, 2008 Cri. LJ 1957 and Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560.

103. I have gone through the judgments cited before me. In Major J. S. Khanna (supra) it was observed by the Apex Court that regarding the allegation that the firm M/s Auto Stores was non­existent firm, there was no conclusive evidence to show that the accused knew that there did not exist any such firm. It was further held that though the accused might not have been careful or was grossly negligent, yet his action was not actuated with criminal intent. As regards the irregularities in the procedure committed by the accused, it was held that that such a breach of procedure did not mean fraud or any other criminality.

104. In S. P. Bhatnagar (Supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused Contractor in regard to a contract of rock cutting by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. In those circumstance, the Apex Court held that accused cannot be said to have acted with dishonest or corrupt motive or abused his position in having the contract in question entrusted to accused no.4. CBI Vs. Gokul Chand Aggarwal & Others Page No. 60 of 68 (Textila CGHS)

105. In Abdul Mohammed Pagarkar (supra), the Apex Court found that the work was got executed in flagrant disregard to the relevant rules. However, it was held that such disregard did not amount to any of the offences alleged against the accused.

106. In Major S. K. Kale (supra) also, the Apex Court found that in the facts of the case, the accused cannot be said to have used any corrupt or illegal means.

107. In A. K. Ganju (supra), our Delhi High Court speaking through Hon'ble Mr. Justice Suresh Kait quashed the charge­sheet on the ground that the CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials with whom the conspiracy was hatched.

108. In Anil Kumar Bose (supra), it was held by the Apex Court that the evidence adduced must establish beyond reasonable doubt mens rea on the part of the accused. It was further held that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only.

109. In S. Swaminathan (supra), it has been held by our Delhi CBI Vs. Gokul Chand Aggarwal & Others Page No. 61 of 68 (Textila CGHS) High Court that merely certifying a statement of fact based on the record produced by the company, the chartered accountant cannot be held liable for conspiracy.

110. In order to ascertain whether the public servants A­2 to A­6 actually connived with A­1, notings in the files are very important and vital. The Court can always draw logical and natural inferences from such notings. Though not referred to or relied upon, in Runu Ghosh Vs. CBI, Crl. A. No 482 of 2002, decided on 21.12.2011, it has been held by our High Court of Delhi that offences of corruption are done under the cloak of official duties and in a shrouded manner and, therefore, the only evidence available is note­sheets written or approved by public servants. It has further been held that Court would be fully justified to draw appropriate inferences from such note­sheets.

111. Notings are in file D­2 and D­2(A) and all the concerned public servants A­2 to A­6 have not disputed these notings and their respective signatures appearing thereon. It is appropriate to refer to these notings in brief for drawing an inference if public servants A­2 to A­6 were indulging in corruption.

112. Before proceeding further, it is pertinent to mention here that in the present case the representatives of Textila CGHS had directly approached the RCS by moving an application Ex.PW19/F CBI Vs. Gokul Chand Aggarwal & Others Page No. 62 of 68 (Textila CGHS) dated 16.8.2003 with a request for revival of the society.

113. The first such noting is of 21.8.2003 at page no. 9/N (Ex.PW19/D) - Dy. No.3311A/AR (NW) dated 21.8.2003 (P­347/C). This noting was prepared by AR (NW) as per directions of Reader to RCS. As the society was never served with the liquidation orders, the competent authority was requested to consider the revival of the society u/s 63 (3) of DCS Act.

114. On 29.09.2003, A­2 deputed an area Inspector u/s 54 of DCS Act to ascertain the factual position of the society and for this purpose A­4 was appointed. A­4 submitted his report dated 20.10.2003 which is reflected in note sheet 11/N (Ex.PW19/B).

115. On 29.10.2003, a notice was issued u/s 63 (3) of DCS Act to the society for initial hearing vide note sheet 12/N.

116. On 11.11.2003, one Ms. Shweta appeared on behalf of society before A­2 and vide note sheet 13/N file was sent to concerned zone for verification of membership and also for ascertaining audit/election position.

117. On 18.11.2003, President /Secretary was called to produce the relevant records for verification vide note sheet 13/N (Ex.PW19/B) at point E. CBI Vs. Gokul Chand Aggarwal & Others Page No. 63 of 68 (Textila CGHS)

118. On 24.11.2003, AR (NW­II) vide note sheet 21/N (Ex.PW19/C) recommended revival of the society u/s 63 of DCS Act to A­2.

119. On 25.11.2003 vide Ex.PW19/C note sheet 22/N an order u/s 63 (3) of DCS Act was passed by A­2 for revival of the society in question.

120. It is not at all necessary to burden this judgment by quoting various provisions of DCS Act and Rules as under the law RCS has ample powers to order the cancellation of winding up order if the liquidation proceedings are not completed within the stipulated period. Under Section 13(1)(d) of the PC Act, this Court is required to assess if the public servants (A­2 to A­6) had abused their position as public servants thereby obtaining for themselves or for any other person any valuable thing or pecuniary advantage. What is to be required to be seen in the present case is whether there was an attempt by public servants (A­2 to A­6) to pass on pecuniary advantage to A­1 purportedly representing Textila CGHS. In other words, this Court is required to assess if all the concerned officials of RCS (A­2 to A­6) had abused and misused their public offices in such an endeavor. In my opinion, the complicity of public servant is not evident in the present CBI Vs. Gokul Chand Aggarwal & Others Page No. 64 of 68 (Textila CGHS) case and for reaching the said conclusion, following facts are relevant :

(a) As per PW­25, he had not appointed any liquidator in his order Ex.PW25/A which was the function of the then Deputy Registrar (Liquidation). There is nothing on record if any liquidator was appointed or the liquidation proceedings were completed in the case of Textila CGHS.

(b) As per PW­30 Yogiraj, the cancellation of winding up order was a quasi judicial order and could have been challenged before the Tribunal. However, the same was not challenged by anyone including the promoter members and, thus, it attained finality.

(c) Audit of society is not pre­requisite for revival of any society under DCS Act and Rules as has been deposed by DW­1 P K Thirwani.

(d) In the present case, A­1 in a fake name by appending false signatures of Jagmal claiming Jagmal to be the President of the society in question attempted to revive the defunct Textila CGHS.

(e) There is nothing on record to show that A­2 to A­6 had obtained any pecuniary advantage for their official acts or they CBI Vs. Gokul Chand Aggarwal & Others Page No. 65 of 68 (Textila CGHS) were in constant touch with A­1 for the revival of the society.

Thus, there is no evidence of any association of A­2 to A­6 with A­1.

(f) There is also no evidence on record that A­2 had ever exercised undue influence upon his subordinates to give favourable reports for the revival of the Textila CGHS.

(g) As per PW­20 Shweta Mishra, Advocate, she did not appear before the Court of RCS on 11.11.2003 and 25.11.2003. The evidence of PW­20 is of no help to the prosecution as the Court can take judicial notice of the fact that a large number of advocates appear before RCS and inadvertently mentioning the name in the order­sheet/note sheet does not prove any mala fide. Even otherwise a possibility of two advocates with the same names as Ms. Shweta/Ms. Shweta Mishra cannot be ruled out.

(h) As per DW­2 Gopal Singh Bisht, the verification of the records of the society is done by the Zonal Assistant Registrar and it is not the duty of the Dealing Assistant to verify the authenticity of the documents/records produced by the society.

(i) As per DW­1 he did not find any irregularity in the audit report submitted by A­6 who was appointed auditor of the CBI Vs. Gokul Chand Aggarwal & Others Page No. 66 of 68 (Textila CGHS) society by Sh. J S Sharma, AR (Audit). Further, seven objections were raised by A­6 at page 101 of his report Ex.PW35/C.

(j) There is nothing on record to show meeting of minds of accused for doing an illegal act or an act by illegal means which is an essential ingredient of conspiracy. It is the settled law that mere knowledge would not be per se sufficient to make anyone co­conspirator.

(k) It is the settled law that suspicion, howsoever strong, can not take place of proof. Mere error of judgment or wrong decision or even negligence does not amount to culpability. Thus, the prosecution has not been able to prove its case against A­2 to A­6 beyond reasonable doubt. The charge of conspiracy has also not been proved against the accused.

VIII CONCLUSION :

121. Upon consideration of all the facts & circumstances of the case enumerated herein­above, this Court is of considered opinion that prosecution has succeeded to prove its case to the hilt against A­1 Gokul Chand Aggarwal. As such, A­1 deserves to be convicted in this case and he is, accordingly, convicted for having committed offences punishable under Sections 419, 420/511, 468 & 471 IPC for which he CBI Vs. Gokul Chand Aggarwal & Others Page No. 67 of 68 (Textila CGHS) had been charged with in the present trial.

122. A­2 to A­6 are hereby acquitted of all the charges levelled against them in the present case. Their personal bonds are cancelled and respective sureties are discharged. In terms of Section 437(A) Cr.P.C., A­2 to A­6 are directed to furnish their personal bonds in the sum of Rs.25,000/­ each with one surety in the like amount within one week from today for a period of six months for their appearances before the High Court of Delhi in the event the CBI wishes to file an appeal challenging the present judgment.

Announced in the open Court (PRAVEEN KUMAR) today i.e on 27.02.2015. Special Judge, CBI­3, P.C. Act, Rohini Courts, Delhi.

CBI Vs. Gokul Chand Aggarwal & Others Page No. 68 of 68 (Textila CGHS) CBI Vs. Gokul Chand Aggarwal & Others Page No. 69 of 68 (Textila CGHS)