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Delhi District Court

Cbi vs . Raj Kumar Pahuja & Others on 28 September, 2011

   IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE, 
         PC ACT, CBI­III, ROHINI COURTS: DELHI.
 
CBI No. 95/11
RC No. 8(E)/2005/CBI/EOU­II/N. Delhi.
CBI  Vs.   Raj Kumar Pahuja & others
                (Rejeshwari CGHS)

                                          Reserved for order : 14.09.2011/23.09.2011
                                          Date of Order: 28.09.2011

O  R  D  E  R    O N    C H A R G E:


     1.

The case of the prosecution, in brief, is that Rajeshwari Cooperative Group Housing Society was registered with the Registrar of Cooperative Societies (RCS), Delhi on 26.12.1983 vide registration no. 1189 (GH) with 63 promoter members. Subsequently 57 other members were enrolled. A list of 120 members was approved by the RCS and was forwarded to DDA on 26.12.1988 for allotment of land. The society was asked to deposit 50% of total cost of land by March 1991. However, the society could not arrange the funds and DDA withdrew its offer. The society was again allotted land in 1993 but allotment letter bearing the registered address of society returned undelivered. Ultimately, the society was put under liquidation by Sh. Jamil Murtaza, the then Dy. Registrar, and Faiz Mohd. was appointed CBI Vs. Raj Kumar Pahuja & Ors.

as liquidator. Sh. N. Venkatraman, the then Secretary of the society, filed an appeal in July, 1993 and requested the then Ld. Governor of Delhi for cancellation of the winding up order which was transferred to the Cooperative Tribunal, Delhi. The Cooperative Tribunal passed an order dated 10.10.94 and directed the society to rectify all irregularities and report to RCS for consideration of revival. In compliance of the said order, Sh. N. Venkatraman sent a letter dated 23.02.95 to Dy. Registrar, RCS requesting him to appoint an Inspector/Auditor to verify records and conduct the audit at the earliest. However, no action was taken by the RCS. Faiz Mohd. did not complete the liquidation proceedings. It was revealed, during the course of investigation, that neither an action was taken by the office of Registrar over the matter nor the society pursued the issue.

2. Sh. J.S. Sharma, the then AR (S/W), informed AR (West) that the President of the society vide letter dated 07.01.93 had informed about change of address of the society from C­1A/51, Janakpuri, New Delhi to B­510, Palam Village, New Delhi and requested for transfer of records to South West Zone. However, it was revealed that no such letter was sent by the President of the society. Raj Kumar Pahuja, a self­styled Secretary of the society, sent a letter dated 20.01.03 to RCS that the General CBI Vs. Raj Kumar Pahuja & Ors.

Body Meeting of the society which was held on 05.01.03 had resolved to approach the RCS for revival of the society. False and bogus proceedings were recorded in this regard. Accused Sunil Kharbanda along with Raj Kumar Pahuja approached N. Venkatraman, the founder Secretary of the society, and informed that land could be allotted to the society only when they pursue the matter. Raj Kumar Pahuja obtained documents of the society which were available in the RCS office from accused Raman Verma, the then Dealing Clerk and submitted forged/fabricated documents to the RCS office on 24/25.02.03 for revival of the society. All these documents were signed by accused Vinod Kumar Gupta who has signed as Raj Kumar Pahuja. Accused Raman Verma recorded a detailed note on 25.02.03 and recommended for revival of the society which was endorsed by J.S. Sharma who recorded that records of the society were complete except 112 affidavits of members of the society and these would be obtained before transmission of list of members to DDA. Accused Narayan Diwakar, the then RCS, ordered that Secretary/President of the society was summoned for 14.02.03. He passed an order dated 20.02.03 recording therein that Sh. J.N. Gupta, Adv. appeared before him and filed the revised list. During the course of investigation, it was CBI Vs. Raj Kumar Pahuja & Ors.

revealed that neither Sh. J.N. Gupta, Adv., appeared before accused Narayan Diwakar nor a revised list of members was filed before him. It is evident that facts projected by accused Narayan Diwakar in his order dated 20.02.03 were false and fabricated. Accused N.S. Khatri was appointed as Election Officer to conduct election of the Management Committee who submitted false report in this regard. No inspecting officer was appointed to conduct inspection nor accused Narayan Diwakar got physical inspection of the society done. Accused P.K. Thirwani had also submitted false audit reports of the society. Accused Narayan Diwakar passed revival order of the society on 27.02.03.

3. During investigation, it was further revealed that accused Raj Kumar Pahuja, accused Sunil Kharbanda and accused Vinod Kumar Gupta handed over the records of the society to accused Arun Dwivedi, Anthony D'souza and father George Pereira and it contained undated forged resignations and vouchers of 112 members of the society. Under instruction of accused Arun Dwivedi one Sh. G.C. Nayak put the date on each resignation letter of 112 members and vouchers in respect thereof. New members of the society were enrolled by accused Arun Dwivedi by charging higher amounts as membership fee which was in CBI Vs. Raj Kumar Pahuja & Ors.

contravention of bye­laws of the society. Signatures of accused Arun Dwivedi were found on various management committees in which old members were falsely have been shown to have resigned and new members were enrolled in their place. Writings of Gorakh Chander Nayak were also there on resignation letters and vouchers.

4. After completing investigation chargesheet was filed in the Court against the accused persons for committing various offences under Indian Penal Code 1860 (IPC) and Prevention of Corruption Act 1988 (PC Act).

5. I have heard Sh. P.S. Singhal, Ld. Counsel for accused Raj Kumar Pahuja and Sunil Kharbanda;

Sh. Abhishek Prasad, Ld. Counsel for accused J.S. Sharma; Sh. S.K. Bhatnagar, Ld. Counsel for accused P.K. Thirwani, Raman Verma and Arun Dwivedi and Sh. R.P. Shukla, Ld. Counsel for accused Narender Singh Khatri.

I have also heard accused Narayan Diwakar in person. I have also gone through the written submissions filed on behalf of accused Arun Dwivedi, Vinod Kumar Gupta, Rajiv Bhatia and Gurjit Singh.

6. Sh. P.S. Singhal conceded that prima facie case is made CBI Vs. Raj Kumar Pahuja & Ors.

out against accused Sunil Kharbanda. However, he contended that there is not an iota of evidence against the accused R.K. Pahuja to connect him with alleged offences. According to Ld. Counsel, it is the case of the prosecution itself that the signatures of accused Raj Kumar Pahuja were forged by co­ accused V.K. Gupta. Therefore, somebody else represented accused R.K. Pahuja before the Registrar of Cooperative Societies. There is not a single document bearing genuine signatures of accused R.K. Pahuja. The TIP of accused R.K. Pahuja was not conducted by the CBI. Ld. Counsel, therefore, contended that accused R.K. Pahuja is liable to be discharged.

7. Sh. Abhishek Prasad, Adv., contended that in the chargesheet, it is mentioned that accused J.S. Sharma recommended for the revival of the society but there is nothing on record to suggest that it was accused J.S. Sharma who recommended revival of the society. According to him, accused J.S. Sharma cannot be said to be a conspirator as it was not his duty to physically verify the members. Ld. Counsel has drawn the attention of this Court to Note 31/N and document D­2 page 31 in file 2. According to him, no charge can be framed on the basis of presumption. Ld. Counsel further contended that ingredients of Section 420 IPC and Section 13(1)D r/w Section CBI Vs. Raj Kumar Pahuja & Ors.

13(2) of PC Act shall also not be applicable in the present case.

8. Sh. S.K. Bhatnagar, Ld. Counsel for accused P.K. Thirwani, Raman Verma and Arun Dwivedi contended that these accused have not been named in the FIR. The FIR was registered after conducting the preliminary enquiry and in the preliminary enquiry, no prima facie evidence came into light against the accused. Ld. Counsel further contended that the accused persons had no knowledge about the fake/false document. Ld. Counsel has placed reliance upon Section 63(1) and Section 93(3) of Delhi Cooperative Societies Act 1972. According to him, it was in the discretion of the Registrar to revive the society and no Court can take that issue in consideration. Ld. Counsel further contended that there is no criminality involved and no presumption can be drawn that the documents/files were handed over by the accused Raman Verma.

9. Accused Narayan Diwakar contended that he was holding a Quasi Judicial Authority and he passed the revival order after going through the records and without any malafide intention. According to him, Section 95 of DCS Act provides complete protection to Registrar of the Cooperative Societies. By his acts, there is no pecuniary gain/loss to anybody. He has placed CBI Vs. Raj Kumar Pahuja & Ors.

reliance upon Judgment Thakur Jugal Kishore Sinha vs. The Sitamarhi Central Cooperative Bank Ltd. and anr., AIR 1967 SC 1494(1).

10. Sh. R.P. Shukla, Ld. Counsel for accused N.S. Khatri contended that there is nothing on record to suggest that accused filed a fictitious report as the elections were not conducted. According to him, the revival order of the society, in question, still exists and it has not been quashed yet by any competent authority. Ld. Counsel further contended that there is no malafide intention on the part of the accused and there is no allegation against him of forging any document. Ld. Counsel, therefore, contended that accused N.S. Khatri is liable to be discharged as there is no prima facie evidence against him.

11. The contention of Sh. P S Singhal, Ld. Counsel for the accused Raj Kumar Pahuja that there is no prima facie evidence against accused Raj Kumar Pahuja for framing of charge against him is devoid of any merit. PW 14 Sh N Venkatraman was the Secretary of Rajeshwari CGHS and in his statement u/s 161 Cr.PC he has categorically stated that on 25.2.2003 he was having the documents of Rajeshwari Society and that he was unable to produce some of them to CBI because he had handed over the documents on 16.5.2004 (Sunday) to accused Raj CBI Vs. Raj Kumar Pahuja & Ors.

Kumar Pahuja and accused Sunil Kharbanda. Further, he stated that he clearly remembered the date as the abdomen of his wife had been operated in March 2004 and his wife was feeling uncomfortable while serving tea to accused Raj Kumar Pahuja and Sunil Kharbanda. As per this witness the documents were handed over to accused Raj Kumar Pahuja and Sunil Kharbanda without taking any written acknowledgment from them. Accused Raj Kumar Pahuja was the member of Rajeshwari CGHS (Membership No. 127) and as such it cannot be said that accused Raj Kumar Pahuja was not known to PW­14 Sh N Venkatraman.

12. In these circumstances I am of the opinion that there was no requirement of conducting any TIP of accused Raj Kumar Pahuja as he was member of Rajeshwari CGHS and Sh N Venkatraman, Secretary of the Society, has categorically stated to have handed over the documents of the society to accused Raj Kumar Pahuja. In my opinion, from the perusal of statement of witnesses and other material placed on record, prima facie case is made out against accused Raj Kumar Pahuja. The contention of Ld. Counsel for accused Raj Kumar Pahuja is devoid of any merit and the same is rejected.

13. According to accused Narayan Diwakar has done nothing CBI Vs. Raj Kumar Pahuja & Ors.

wrong while discharging his functions as RCS. RCS does not deal with land as the same is the subject matter of DDA who allots the land in accordance with the Rules framed under DDA Act, 1957 and Disposal of Development Nazul Land Rules, 1981. CBI has committed various illegalities while investigating the matter. He placed reliance upon the judgment titled as Dr. R.R.Kishore v. CBI 2006 VIII AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct reinvestigation in order to cure the defect in the investigation. Accused Narayan Diwakar has pointed out following illegalities:

(a) Consent of the State was not taken as required U/s 6 of the DSPE Act, 1946.

(b) Absence of notification U/s 3 of DSPE Act.

(c) Registration of case under Section IPC instead of DCS Act which is a Special Act.

14. The contention of accused Narayan Diwakar that the consent of State was not taken is misconceived in the facts and circumstances of the present case. The investigation was referred to CBI in the present matter by the High Court. Once the order for investigation of a case to CBI is passed by the High Court under its inherent powers, permission from State Government is not required. High Court is competent enough to CBI Vs. Raj Kumar Pahuja & Ors.

refer a matter for investigation to CBI. Though not referred to and relied upon, for taking view I am supported with the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh. S.N.Dhingra in Criminal MC No. 2784 of 2007.

15. It is contended that the non­compliance of Sec.3 of DSPE Act, 1946 vitiates the entire investigation. As per Sec. 3 of DSPE Act, 1946, the Central Government makes notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is contended that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act and such offences as notified are mentioned in DSPE Act, 1946. The offences covered by Sec. 3 of the said Act do not include the offences under the Co­operative laws. Thus, the investigation done by the CBI for the co­operative societies is in violation of Sec.3 as it has no jurisdiction to conduct the investigation. In my opinion the offences mentioned in the charge­sheet are all notified offences U/s 3 of the DSPE Act and, therefore, no fresh notification is/was necessary.

16. All the accused have raised the contention that the DCS Act, is a complete self contained statute and, therefore, provisions of CBI Vs. Raj Kumar Pahuja & Ors.

the Indian Penal Code cannot be invoked. The DCS Act, 1972 provides for a well defined system of addressing the issues relating to various private co­operative societies and it contains the provisions of fine, appeal, punishment and, as such, the application of provisions of the IPC by the CBI is wholly illegal. It is further contended that the matter is covered under the provision of Section 82(3) of DCS Act which completely debars the prosecution without giving the opportunity of being heard as well as previous sanction of RCS. The offence alleged to have been committed by the accused is punishable under the provisions of Special law and, therefore, the provisions of Indian penal Code, being general law, cannot be invoked. In respect of this contention, accused have relied upon judgments­ State of Maharashtra Vs. Laljit Rajshi Shah & Ors. AIR 2000 SC 937; and Greater Bombay Coop. Bank Ltd. Vs. United Yarn Textile Pvt. Ltd. & Ors. 2007(5) SCALE 366.

17. I have gone through the judgments cited by the accused. The cited judgments are not applicable to the facts of the present case. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91 of DCS Act, 1972 which provides "The provisions of the Companies Act, CBI Vs. Raj Kumar Pahuja & Ors.

1956 shall not apply to Co­operative Societies Act". But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 debarring the applicability of IPC or PC Act under which the accused persons have been charge­sheeted. Thus, DCS Act does not impose any bar to take resort to the provisions of General Criminal Laws.

18. According to accused Narayan Diwakar, he was discharging his quasi judicial functions and as such he cannot be prosecuted. According to him, under the provisions of Section 40 & 41 of the DCS Act, there is a presumption of genuineness of the documents filed in support of the application. In my opinion, the facts and circumstances of the present case prima­facie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. Accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA.

19. The facts and circumstances of the present case prima­facie reveal that entire proceedings conducted in the office of RCS were actuated with conspiracy. Bogus documents were used. The modus operandi of re­construction of documents was CBI Vs. Raj Kumar Pahuja & Ors.

adopted. The accused Narayan Diwakar followed the procedure with a view to give colour to his acts. Following procedure prescribed under the Act would not validate his acts when they were actuated with conspiracy to cheat the RCS and office of DDA. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the office of RCS and DDA.

20. It has been further contended on behalf of the accused persons that no land was allotted to the society and under these circumstances it can not be said that DDA was cheated. Accused Narayan Diwakar and his subordinate staff/co­accused were bound to protect the interest of office of RCS. They in furtherance of the conspiracy entered into between them, cheated the institution of office of Registrar Cooperative Societies by doing act of revival of the society. Therefore, prima­facie case of cheating is also made out against the accused persons.

21. Further, it is contended that there is no complainant in this case and, thus, the registration of FIR in the present case does not satisfy the ingredients of Section 154 Cr.PC. The contention is devoid of any merit. Our High Court of Delhi while hearing the CBI Vs. Raj Kumar Pahuja & Ors.

Civil Writ Petition No. 10066/2004 passed order dated 2.8.05 directing the CBI to conduct the thorough investigation in the matter relating to 135 CGHS. In pursuance of the aforesaid order passed by the Delhi High Court in exercise of its inherent powers, an inquiry was conducted by CBI which disclosed commission of cognizable offence by the accused persons in the matter of dishonest and fraudulent revival of society. Therefore, CBI rightly lodged the FIR in the present case. While registering the FIR, the acts and omissions on the part of the accused persons and disclosure of commission of cognizable offences by them were detailed in the FIR. The FIR registered by CBI fully satisfies the ingredients of Section 154 Cr.PC. It is the settled law that once an investigation is directed into alleged offences by the Court, two conditions are necessary to commence the investigation:

(i) The police should have reason to suspect the commission of cognizable offence and;

(ii) A Police Officer should subjectively satisfy himself to the existence of sufficient grounds to enter into investigation.

22.These two conditions were duly satisfied at the stage of lodging of FIR in the present case by the CBI before entering into investigation. Thus, the present FIR was rightly registered by CBI Vs. Raj Kumar Pahuja & Ors.

the CBI and just because the FIR was not lodged on a complaint received from a complainant/individual is not a ground to discharge the accused.

23. From the documents and the statement of the prosecution witnesses on record, there is a grave suspicion against all the accused persons of having entered into a criminal conspiracy to cheat the Office of RCS and DDA.

24. In view of the above discussion, I am of the opinion that:

(i) Prima­facie case is made out against accused Raj Kumar Pahuja, Sunil Kharbanda, Rajeev Bhatia, Gurjit Singh, Narayan Diwakar, Jitender Singh Sharma, N.S. Khatri, Vinod Kumar Gupta, Prahlad Kumar Thirwani, Raman Verma and Arun Dwivedi for commission of offences U/s 120B r/w Sec.

419/420/467/468/471 IPC and Section 13(2) r/w Section 13(1)

(d) of PC Act, 1988.

(ii) Prima facie case is made out against accused Raj Kumar Pahuja, Sunil Kharbanda, Rajeev Bhatia, Gurjit Singh, Vinod Kumar Gupta and Arun Dwivedi u/s 420 IPC.

(iii) Prima facie case is made out against accused Rajeev Bhatia and Gurjit Singh u/s 468/471 IPC.

(iv) Prima facie case is made out against accused Vinod Kumar Gupta u/s 419/467/468/471 IPC.

CBI Vs. Raj Kumar Pahuja & Ors.

(v) Prima facie case is made out against accused Narayan Diwakar, Jitender Singh Sharma, N.S. Khatri, Prahlad Kumar Thirwani and Raman Verma u/s 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.

Announced in the open court on dated 28.09.2011 (Praveen Kumar) Special Judge, PC Act, CBI­III, Rohini Courts, Delhi CBI Vs. Raj Kumar Pahuja & Ors.