Delhi District Court
Cbi vs . Narayan Diwakar & Ors. (Gokul Chand ... on 29 April, 2023
CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
IN THE COURT OF SH. ANIL ANTIL
SPECIAL JUDGE, PC ACT, CBI15,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
MISC DJ ASJ No. 73/2021
CBI Case No. 210/2019
CNR No. DLCT 110003622021
RC No. SI8/2006/E0011/CBI/EOUIV/N. Delhi.
U/s 120B IPC r/w Section 419, 420, 468, 471 IPC
and Section 13 (2) r/w Section 13 (1) (d) of
P.C. Act, 1988 and substantive offences
there of and u/s 174A IPC.
IN THE MATTER OF :
State
Through
Central Bureau of Investigation
New Delhi.
Versus
Gokul Chand Aggarwal,
S/o Late Sh. Jagdish Parshad Aggarwal,
R/o H. No. A603, Ashoka Apartment,
Plot No. 36/2, Rohini, SectorIX,
Delhi. .................................... (Accused)
Date of Institution : 01.04.2008
Date of judgment reserved on : 19.04.2023
Date of pronouncement of judgment : 29.04.2023
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 1 of 60
CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
JUDGMENT
1. Before deciding the case at hand, it is relevant to mention that after the charge sheet against all the accused persons namely Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), Gokul Chand Aggarwal (A4), Ashwani Kumar Sharma (A5), Prahlad Kumar Thirwani (A6), Sanjeev Bharti (A7), Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11), Vimal Kumar Aggarwal (A12) Pramod Kumar Garg (A13), Davender Kumar (A14), Ajit Singh Dahiya (A15), Subhash Gupta (A16), Mohit Saxena (A17), Sushil Prakash Saxena (A18), (Since discharged vide order dated 06.10.2018), P.R. Nair (A19) and Rajan Sarin (A20) (Since expired and Proceedings against him stand abated vide order dated 15.03.2010) was filed and matter was put to trial.
2. It may be noted here that since 23.04.2018 present accused Gokul Chand Aggarwal (A4) had absconded ; he did not appear before the Court to face trial and despite coercive orders his presence was not procured. Accordingly, after due process of law, he was declared proclaimed offender vide order dated 16.10.2018 by the then learned Special Judge, PC Act, CBI15.
3. That soon after the filing of the chargesheet accused Rajan Sarin (A20) had expired and judicial proceedings against him stands abated vide court orders dated 15.03.2010.
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4. That vide order dated 06.10.2018 charge was ordered to be framed by the learned predecessor of this court for the offences punishable under Section 120B r/w Section 420/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of P.C. Act against the accused persons namely Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), Ashwani Kumar Sharma (A5), P.K. Thirwani (A6), Sanjeev Bharti (A7), Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11), Vimal Kumar Aggarwal (A12), Mohit Saxena (A17) and P.R. Nair (A19).
i) Additionally (i) charge for the offence u/s Section 13(2) r/w Section 13(1)(d) of P.C. Act was ordered to be framed against the accused persons namely Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6) and Sanjeev Bharti (A
7).
(ii) And also the charge for the offences punishable under Section 420/468/471 IPC was framed against the accused Ashwani Kumar Sharma (A5), Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11), Vimal Kumar Aggarwal (A12), Mohit Saxena (A17) and P.R. Nair (A19) .
(iii) Whereas accused Pramod Kumar Garg (A13), Devender Kumar (A14), Ajit Singh Dahiya (A15) Subhash Gupta (A15) and Sushil Prakash Saxena (A18) were discharged vide order dated 06.10.2018 by the learned Predecessor of this Court.
5. After the conclusion of the trial, vide judgment dated 27.01.2021 accused Ashwani Sharma, Mohit Saxena and P.R. Nair CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 3 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) were acquitted of all the charges framed against them and the remaining accused persons who faced trial (other than those who are dead, have been discharged or have been declared proclaimed offender) were convicted for the respective offences as under:
(i) Accused Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6), Sanjeev Bharti (A7), Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11) and Vimal Kumar Aggarwal (A12) are convicted u/s 120B r/w 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act.
(ii) Accused Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6) and Sanjeev Bharti (A7) are also convicted u/s 13 (2) r/w Section 13 (1) (d) of PC Act.
(iii) Accused Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11) and Vimal Kumar Aggarwal (A12) are also convicted u/s 420/468/471 IPC.
Now the case is discussed here qua accused Gokul Chand Aggarwal and the story of Prosecution in brief is as under : CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 4 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
6. On perusal of the Charge sheet, it was revealed that the case was registered on 02.08.2005, on the directions of Hon'ble High Court of Delhi passed in Civil Writ Petition no.10066/2004 by directing the CBI to investigate the irregularities/illegalities in the matter relating to revival of 135 Cooperative Group Housing Societies and in compliance of the said directions a PE.SIJ2006 E0001 was registered on 09.03.2006 ; investigations were carried out and on the basis of which present case was registered on 04.12.2006 vide RCS18/2006/ E0011/CBI/ EOUIV/N. DELHI to unearth large scale involvement of accused persons, builder mafia who in connivance with the RCS officials ( government officials ) were involved into fraudulent and illegal activities concerning the Sea Show Cooperative Group Housing Society.
7. The case herein relates to the forgeries committed in the records of a Group Housing Society namely Sea Show CGHS Ltd to seek its revival with the object to get the land allotted to the Society by DDA on a much lower price than prevailing in the market for construction of residential flats thereon.
8. Briefly, the accused Gokul Chand Aggarwal was charge sheeted alongwith other erstwhile coaccused persons named above by the CBI, the prosecuting agency, for having committed offences punishable under Section 120B IPC r/w Section 420, 468, 471 IPC and Section 13(2) r/w Section 13(1)(d) of PC Act,1988 as well as substantive offences thereto.
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9. Investigations revealed that the erstwhile accused Narayan Diwakar ( Registrar ), Ved Pal Singh ( Assistant Registrar, South Zone ), Sanjeev Bharti ( Stenographer/Election Officer ) Gopal Singh Bisht (LDC/Dealing Assistant), P.K. Thirwani ( LDC/ Sr. Auditor ) were the public servants being posted in the Office of Registrar Cooperative Societies at the relevant time, and they all inactive connivance with other private accused persons were instrumental in reviving the Society on forged and fabricated documents.
10. Accused Gokul Chand Aggarwal, Ashwani Sharma, Ashutosh Pant, Naveen Kaushik, Naveen Kumar, Rajesh Kumar Dhaka, Vimal Kumar Aggarwal, Mohit Saxena and P.R. Nair are private persons who all are alleged to have hatched the conspiracy to commit the case crime at hand.
11. Investigation revealed that Sea Show CGHS Ltd was registered before the office of RCS as a Cooperative Group Housing Society on 01.10.1983 with 58 promoter members ; that the members of the Society were not taking any interest in the affairs of the Society, and the Society had failed to fulfill its statutory obligations in terms of Delhi Cooperative Societies Act, 1972 as well as Rules/Bylaws framed thereunder.
That thereafter an order dated 10.05.1989 was passed by the then Deputy Registrar Sh. Hans Raj (GH) liquidating the said Society for not conduction of election and pending audit of the Society since registration. The copy of liquidation order dated 10.05.1989 was endorsed to Dy. Director ( Liquidation ) with a request to appoint a CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 6 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) liquidator u/s 66 of the DCS Act, 1972 for further action but proceedings could not be initiated due to unexplained reasons and non availability of records.
12. It is the case of the prosecution that the revival process of Sea Show CGHS Ltd. was started in the RCS office on receipt of application dated 04.09.2002 purportedly initiated by acucsed Ashwani Sharma (A5) as its Secretary/President. It was mentioned therein that the society Sea Show CGHS Ltd. was registered in RCS office on 01.10.1983 vide registration no. 695(GH) having its registered office at 1235, Sector3, Pushp Vihar, Delhi and was later on put into liquidation vide order dated 10.05.1989 passed by Sh. Hans Raj, the then Deputy Registrar for failure to complete the statutory formalities. However, investigations revealed that a Group Housing Society named Sea Shava was registered at Sr. No. 695 (GH) on 01.10.1983 in the RCS office having its registered office at 1235, Pushp Vihar, Sector3, Saket, New Delhi and its name was duly published in a Directory of Housing Societies registered in the United Territory as on 30.06.1984 maintained in the RCS office, Delhi.
13. Investigation revealed that the Sea Show CGHS Ltd. was shown as having a strength of 58 members with 6 managing committee (Promotor) members namely S/Sh.S.Sujata Kumar (President), Satyapal Singh @ S.P. Singh (Secretary), Ashok Kumar (Treasurer), Shish Kaur (Member), D.K. Yadav (member) and Gajraj Singh (member) in the society regarding which application for revival was submitted by its first Managing Committee members in RCS office ; Sh. Ajit Singh was CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 7 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) shown as its President, Sh. Atma Ram as its Vice President, Sh. Laxman Singh as Secretary, Sh. Dal Singh as Treasurar and Sh. Rakesh Kumar as Member.
14. Investigation further revealed that the registered address of the society was shown as M31A, Greater Kailash, Part II, New Delhi in the application for revival of the society submitted in the RCS office on 04.09.2002.
15. That in the very first note prepared by accused Gopal Singh Bisht (A3), the then Dealing Assistant on 11.09.2002, as per record, it was mentioned that the original file of the society was not traceable.
That upon receipt of another application dated 15.11.2002 on behalf of the society purportedly signed by accused Gokul Chand (A4) as G. Chander requesting for early hearing and submission of the documents for revival of the society ; Gopal Singh Bisht (A3) proposed initiation of quasi judicial proceedings as well as reconstruction of the file on the basis of the documents available with the society.
16. That without making any attempt to trace the original file pertaining to the society and without lodging any complaint or FIR with the police or any other department in this regard, accused Narayan Diwakar (A1), the then Registrar allowed the process of revival to continue on the basis of photocopies of the documents made available by the society.
That thereafter the Society file was reconstructed on the basis of photocopies of the documents which included registration CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 8 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) certificate of the society, its byelaws, membership register, proceedings register, list of members, unaudited statement of accounts, affidavits and applications for membership of 114 members etc submitted for reconstruction of the RCS file pertaining to Sea Show CGHS for revival purpose.
17. That during investigtions these documents were found to have been prepared and signed by accused Gokul Chand Aggarwal (A
1) as its President (impersonating as G. Chander), Ashwani Sharma (A
5) as its Secretary by the name Amit Goel as well as its Treasurer by the name Vijay Aggarwal.
Lateron, it was found that 114 members, whose names were mentioned in the membership list submitted before the RCS, were falsely shown to have been enrolled as members of the Society by writing false proceedings w.e.f 13.09.1983 till September, 2001 by accused Ashutosh Pant (A8) and Naveen Kaushik (A9), both of whom were employed by accused Ashwani Kumar Sharma (A5) and have also signed the forged signatures of various members. It was also revealed that the names and other details of 56 members were taken from the list of members of Himani Cooperative Group Housing Building Society without their knowledge.
18. It is further alleged that photocopies of the documents so submitted on behalf of the society for its revival were accepted as genuine without any inquiry by the RCS officials Narayan Diwakar, Gopal Singh Bisht and Ved Pal Singh in utter abuse of their official positions knowing fully well that the documents so submitted are CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 9 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) forged.
They, being a party to the criminal conspiracy, did not take any step to verify the genuineness of the submitted documents and accordingly, society was revived vide order dated 03.12.2002 passed by accused Narayan Diwakar (A1) after a gap of about 13 years without removal of defects mentioned in the liquidation order.
19. That thereafter the list of nonbonafide 114 members was hurriedly sent to DDA by RCS for allotment of land without getting its pending audit completed as stipulated in the revival order.
20. Accused Sanjeev Bharti (A7), the then Stenographer, Grade III in the RCS office, P. K. Thirwani (A6), Senior Auditor in the RCS office. Rajesh Kumar Dakka (A11), Vimal Kumar Aggarwal (A12), Promod Kumar Garg(A13), Devender Kumar (A14), Ajit Singh Dahiya (A15 ) and Subhash Gupta ( A16) (all private persons) are also stated to have joined hands with each other and also with other conspirators which lead to the allotment of land to the society by DDA. It is alleged that accused Sanjeev Bharti and P.K. Thirwani had prepared and submitted false election report and audit report respectively without conducting any such election or audit. That after the case of the society was processed by DDA for allotment of land to it, the offer cum demand letters dated 03.02.2003 and 31.12.2003 were collected by accused Mohit Saxena (A17), who appended forged signatures of Amit (as Secretary of the society) and G.C.Aggarwal (as President of the society) in the acknowledgement on the basis of forged/ fake authority letter as well as CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 10 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) resolution prepared for this purpose.
That a Plot of land measuring 6500.77 square meters in Sector19, Dwarka, New Delhi was allotted to the society by DDA and its possession was handed over to the society on 28.05.2004.
21. It is alleged that accused Ajit Singh Dahiya (A16), Devender Kumar (A15), Parmod Kumar Garg (A14) and Subhash Gupta (A17) had joined the criminal conspiracy by making payment of initial 35% of the cost of land to DDA.
The said amount of Rs.1,15,02,400/ ( i.e. 35%) is stated to have been deposited by accused Devender Kumar (A15) by way of a demand draft which was issued from the current account of his sole proprietorship firm M/s M.D.R. Foods as per oral request of Ajit Singh Dahiya (A16) Ajit Singh is alleged to have played vital role in the matter of allotment of land by the society to DDA by using the address of one of his employers namely Rajan Sareen (A20) (who has already expired) for correspondence with DDA.
That during the period from 08.07.2003 to 12.07.2003, Devender Kumar stated to have received the said amount back from the society later on through 8 cheques.
22. Further, the case of the prosecution is that after taking over the control/charge of the society from S.P. Saxena (A18), and Ajit Singh Dahiya (A15), Subhash Gupta (A16), handed over the same to his brother in law Promod Kumar Garg (A13). Subhash Gupta is stated to have invested Rs. 2,26,25,000/ in the society and received back Rs.3,27,0000/ from the account of Society through cheque.
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23. Accused Parmod Kumar Garg (A14) is stated to have made his relatives and friends as the members as well as office bearers of the society.
Accused A10 Naresh Kumar, A11 Rajesh Kumar Dhaka and A12 Vimal Kumar Aggarwal are associates of Pramod Kumar Garg who played active role by replacing all 114 initial members of the society from their membership and induction of new members in their place, arranging funds to be paid to the DDA and making payments to DDA. They also arranged to pay 65% cost of land to DDA after attaining bridge loan from DCFHC.
24. It is, thus, alleged that as a result of aforesaid various commissions and omissions on the part of accused A1 to A18, the society was illegally revived and accused succeeded in getting allotment of a plot of land to the society from DDA measuring 6500.77 Sq.mts and on 18.05.2004 possession of Plot bearing no. 14, Sector19, Dwarka, New Delhi.
25. Accordingly, the charge sheet was prepared and filed in the court of the then concerned Special Judge, CBI on 01.10.2008. Cognizance of various offences as mentioned in the chargesheet was taken by my Ld. Predecessor vide order dated 26.07.2008 and accordingly, accused persons from serial no A1 to A18 were summoned to face trial for the alleged respective offences.
26. Later on, a supplementary charge sheet was filed by the CBI wherein two more accused i.e. P.R. Nair (A19) and Rajan Sarin (A2) were arraigned. It is pertinent to note here that earlier accused CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 12 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Rajan Sarin ( A20) has been cited as a witness in the initial charge sheet at serial no.19 in the list of witnesses. His statement U/s 161 Cr P.C was also enclosed with the initial charge sheet.
27. However, vide order dated 09.09.2009, Ld. Predecessor took cognizance of the offences mentioned in the supplementary charge sheet and issued summons to these two accused persons namely P.R. Nair and Rajan Sarin. It was also directed in the said order that the name of Rajan Sarin be struck off from the list of witnesses filed alongwith the main charge sheet.
28. Sanction to prosecute accused Gopal Singh Bisht, P.K. Thirwani and Sanjeev Bharti as contemplated under Section 19 of PC Act, 1988 was duly obtained. However, before filling of the charge sheet, the other two public servants namely accused Narayan Diwakar and Ved Pal Singh were stated to have retired hence sanction for their prosecution was not obtained by the department. As noted earlier, after conclusion of trial final judgment / order on sentence was passed by the learned Predecessor Court in terms of judgment dated 27.01.2021 and order on sentence dated 29.01.2021 .
29. That subsequent thereto, accused Sh. Gokul Chand Aggarwal was apprehended in the other case, and on 07.09.2021 an application u/s 267 Cr.P.C for production of accused Sh. Gokul Chand Aggarwal before the learned predecessor court and for commencing his trial in the present matter was moved by the then IO/Sub.Insp/EO II/CBI,New Delhi. The application was allowed, accused was produced before the learned Predecessor Court on 14.09.2021 and was taken in CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 13 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) custody in this case.
30. That on 06.12.2021 arguments on charge on behalf of the accused Sh. Gokul Chand Aggarwal was addressed by Sh. Abhishek Prasad, learned Amicus Curiae and learned PP for CBI.
31. On the same day i.e. on 06.12.2021 and thereafter on 13.12.2021, accused Gokul Chand Aggarwal had sought time to explore his options and take appropriate advise to plead guilty or not.
32. Thereafter on 21.02.2022, charges u/s 419/420/468/471 IPC read with Section 120B IPC & Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988 and for the offence punishable u/s 174A IPC was framed against him, to which he pleaded not guilty and claimed trial.
33. That after due deliberations between the defence counsel and the prosecution on 21.04.2022, learned Amicus Curiae for accused submitted his list of witnesses to be recalled for examination / re examination i.e namely Sh. Iqbal Singh (LW6), Sh. Sukhbir Garg (LW10), Sh. Sanjay Garg (LW11), Sh. Babu Ram Goyal (LW13), Sh. Sushil Kumar Sharma (LW15), Sh. Daulat Ram Gupta (LW31), Sh. Gopal Dass Verma (LW34), Sh. Kishan Chand Garg (LW41), Sh. Kishan Kumar (LW41), Sh. Nanak Chander Gangwal (LW45), Sh. P.K. Churamani (LW49), Sh. Ravi Robinson (LW57),Sh. Rattan Singh Chauhan (LW60), Sh. Salil Kapur (LW62), Sh. Saroj Sharma (LW69),Sh. Suresh Rawal (PW72), Sh. R.S. Rana (GEQD), (PW84) and Inspector Manjeet Singh, IO (PW85) with respect to the main substantive offences.
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 14 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Evidence and description of witnesses :
34. Prosecution examined 89 witnesses in total, and Sh. Jagdish Kumar Kinger, Sh. Sunil Panwar, Sh Pramod Aggarwal, Sh. Sanjeev Khullar and Sh. Goverdhan were dropped by the prosecution and statement of learned PP for CBI to this effect was recorded separately.
After the arrest of the accused Gokul Chand Aggarwal as Proclaimed Offender, 11 witnesses out of 89 witnesses who were examined during the trial of erstwhile accused persons were re summoned alongwith one additional witness PW90 Sh. Kishan Chand Garg ; they were accordingly examined, crossexamined by accused Gokul Chand Aggarwal.
The four Court witnesses / process server(s), namely Sh. Rakesh Kumar (CW1), Sh. Sohan Lal Khatri (CW2), Sh. Naveen Lather (CW3) and Ct. Sudesh Kumar (CW4), were examined to prove charges u/s 174A IPC, qua execution of process in terms of Section 82/83 Cr.P.C.
35. The testimony of 89 Witness earlier examined by the prosecution is discussed here and for the sake of convenience these witnesses are according to the nature of their evidence and facts intended to be proved by them can conveniently be classified as under : (I) The witnesses who never became members of the society Sea Show CGHS but have been shown as its members: CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 15 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) PW1 Sh. Amit Goyal PW2 Sh. B.L. Goyal PW4 Sh. Sanjay Garg PW18 Sh. Sukhbir Garg PW21 Sh. D.R. Gupta PW24 Sh. Gopal Dass Verman PW26 Sh. Nanak Chand Gangwal PW31 Ms. Pramod Johri PW41 Sh. Raj Singh PW42 Sh. Salil Kapoor PW45 Ms. Shyama Pant PW46 Ms. Saroj Sharma (II) Those who became members of the society in or after the year 2003: PW35 Sh. Manoj Kumar Tomar PW54 Sh. Vikram Singh PW55 Sh. Gurvinder Singh PW56 Sh. Sudhir Gupta PW57 Sh. Ajay Jain PW70 Sh. Sunil Arora PW80 Sh. Om Prakash Jain PW83 Sh. Arun Kumar Tayal CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 16 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) (III) Other private witnesses: PW14 Sh. Ashish Gupta PW15 Sh. Rajesh Jain PW16 Smt. Anju Gupta PW19 Sh. Baljeet Garg PW20 Sh. Chander Bhan Arya PW22 Ms. Gurpreet Bawa PW23 Ms. Durgesh Lal PW25 Sh. Devender Kumar Vijay PW28 Sh. Madan Lal Arora PW30 Sh. Harjeev Aggarwal PW32 Ms. Neeru Gupta PW34 Sh. Praveen Kumar PW36 Sh. Rajiv Gupta PW37 Sh. Sanjay Tekwani PW38 Sh. Rajender Singh Malhotra PW43 Ms. Surender Kaur PW47 Sh. Vijay Kumar Malhotra PW48 Sh. Thulasee Dharan Pillai PW49 Smt. Prem Lata Aggarwal PW50 Smt. Chanderni Bhatia PW51 Smt. Ravinder Kaur PW54 Sh. Vikram Singh PW58 Sh. Krishan Kalra CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 17 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) PW72 Sh. Suresh Rawal PW73 Sh. Sanjay Kumar Garg PW74 Sh. Dinesh Kumar Nijhawan PW89 Sh. Raj Kumar (IV) Postmen: PW33 Sh. Pyare Lal PW52 Sh. Sube Ram Chauhan (V) Sanctioning Authority: PW71 Sh. Rakesh Mehta PW77 Sh. Sandeep Kumar PW78 Sh. R.K. Srivastava (VI) Expert witness: PW84 Sh. R.S. Rana (VII) Witnesses from the office of Registrar Cooperative Societies: PW3 Sh. Hansraj PW8 Sh. Ramesh Kumar Gupta CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 18 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) PW9 Sh. K. Hari Dass PW10 Sh. Kamal Kant Satija PW29 Sh. Rakesh Bhatnagar PW40 Sh. Krishan Kumar PW59 Sh. N.S. Khatri PW66 Sh. Anil Kumar PW76 Sh. Khem Chand Yadav PW79 Sh. Yogi Raj (VIII)Witnesses from DDA: PW13 Sh. Virender Singh Verma PW27 Sh. Paras Nath PW39 Sh. Rameshwar Dayal Chaudhary PW53 Sh. Shukal Kumar Auluck PW75 Sh. Khushhal Singh Rawat (IX) Witnesses from Banks: PW5 Sh. Iqbal Singh Nayan PW11 Sh. Shyam Mohan PW12 Sh. Ravi Prakash PW17 Sh. H.S. Manku PW81 Sh. Mohan Pal Singh PW82 Sh. Tejinder Singh CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 19 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) (X) Witness from Tihar Jail: PW88 Sh. Vinay Thakur (XI) Witnesses from CBI: PW6 Sh. Devender Singh PW7 Sh. M.C. Joshi PW60 ASI Ashok Kumar PW61 ASI Madan Pal Singh PW62 Ct. Mehboob PW63 HC Kishore Kumar PW64 SI Rameshwar Sharma PW65 HC Brijesh PW67 Sh. Yudhveer Singh PW68 Sh. Satpal PW69 Sh. Ramesh Chand PW85 Sh. Manjeet Singh PW86 Sh. C.S. Prakash Narayanan PW87 Sh. Ajay Kumar (XII) Witnesses qua proclamation proceedings82/83 CrPC : CW1 Sh. Rakesh Kumar, CW2 Sh. Sohan Lal Khatri, CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 20 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) CW3 Sh. Naveen Lather and CW4 Ct. Sudesh Kumar.
(XI) Testimony of recalled witnesses :- PW2 Sh. B.L. Goyal Earlier examined on 06.02.2019 was resummoned on
11.04.2022 and he deposed that he is working as CA since 1976 ; knows accused Gokul Chand, who was working on the Petrol Pump ; his Income Tax Return was filed by him ; the membership of Himani CGHS was taken by him and he had not taken the membership of Sea Show CGHS, in dispute, of the present matter. The said witness identified the accused and was not cross examined despite opportunity given to him.
PW4 Sh. Sanjay Garg As per record this witness was earlier examined on
06.02.2019 was re summoned for his examination on 11.04.2022 and he deposed that first floor of the building where he is residing was sold to his uncle Sh. Sukhbir Garg and Second floor to his father Sh. Kishan Chand Garg by accused Gokul Chand ; and no official meeting of the Society Sea Show CGHS, in dispute, was conducted at the said building on any occassion by accused Gokul Chand Aggarwal. The said witness identified the accused and was not cross examined despite opportunity given to him.
PW5 Sh. Iqbal Singh CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 21 of 60
CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) He deposed that in the year 19831984 he was posted as Manager in the Delhi State Cooperative Bank ; the account of the Society was opened in his branch and he identified the signatures of alleged President, Secretary and Treasurer of the Society.
PW18 Sh. Sukhbir Garg The witness deposed on the similar lines as deposed by
PW4, his nephew ; he identified the accused Gokul Chand Aggarwal and deposed that membership of Sea Show CGHS was never applied by him. The witness was not cross examined by the accused despite opportunity given to him.
PW24 Sh. Gopal Dass Verman The witness was earlier summoned for his deposition on
13.05.2019 and again for 19.05.2022 ; he deposed that he was Manager in Bank of Baroda and has been retired in the year 2014 and/or now a days working as an advocate ; had taken the membership of Himani CGHS and had not taken the membership of Sea Show CGHS, in dispute, of the present matter. The witness also denied his signatures on Applicatioin Form, Affidavit, Membership Register and Resignation letter and witness failed to identify the accused by deposing that he has seen the accused 30 years back only.
The witness was not cross examined despite opportunity given to him.
PW26 Sh. Nanak Chand Gangwal During his examination on 14.05.2019, he deposed thta he
is working as Manager in Bank of Baroda, ELSC, Parliament Street CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 22 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Branch ; his colleage Sh. Wazir Singh Kajila introduced accused Gokul Chand Aggarwal and then he obtained memnbership of Himani CGHS through Gokul Chand Aggarwal and paid the requisite fee of Rs. 525/ as membership ; Share Certificate in this regard was issued to him and he is not aware about the address and status of the said Society. He specifically deposed that he had not taken membership of any other Society and denied his signatures appearing on Membership Application Form, Membership Register, Affidavit and Resignation letters of Sea Show CGHS.
On 19.05.2022, witness was cross examined by learned defence counsel for accused Gokul Chand Aggarwal and he only put single question qua the identification of accused and witness replied that he would not have identified the accused since he had seen him only once and that too long time ago.
PW42 Sh. Salil Kapoor The witness appeared in the witness box on 04.07.2019
and deposed that he has been retired from TATA Power Delhi Distribution ; had taken the membership of Himani CGHS through his friend Sh. Ram Chander and paid Rs. 525/ ; he specifically deposed that he had not taken the membership of Sea Show CGHS ; witness also denied his signatures appearing in the PW52 Sh. Sube Ram Chauhan He was a postman and deposed to the fact that no black as A1 Safdarjung Enclave existed in Beat no. 9 of the Post Office jurisdictiion.
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 23 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) PW72 Sh. Suresh Rawal He deposed to the fact that the specimen signatures / writings sheets running from S65 to S78 of accused Gokul Chand Aggarwal were taken in his presence ; he also testified that signatures were voluntarily given by accused without any pressure or duress from any quarters. He identified accused Gokul Chand Aggarwal during his examination in the court.
PW84 Sh. R.S. Rana Handwriting/Signature expert proved his opinion Ex
PW84/4 alongwith Opinion for Reasons Ex PW84/6 (colly.) during his examination.
PW85 Sh. Manjeet Singh, IO of the case testified to the fact carrying out of the investigation and proceedings conducted thereto.
PW-90 Sh. Kishan Chand Garg - Stated that he purchased second floor of E-16/181-183,
Secor 8, Rohini, Delhi from accused Gokul Chand Aggarwal in the year 1998 and he alongwith his family is residing there since then. He deposed to the fact that no person by the name of Sh. Satish Chand Aggarwal was known to him nor even resided at the said premises at any point of time. He correctly identified the accused.
36. Statement of accused Sh. Gokul Chand Aggarwal was recorded u/s 313 Cr.P.C, in which he denied his involvement in the alleged case crime and submitted that it is a false case and witnesses have deposed falsely against him under the influence of IO, CBI, while feigning ignorance to other evidence/documents. He did not prefer to CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 24 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) lead defence evidence.
ARGUMENTS :
37. It is the case of the prosecution that accused Sh. Gokul Chand Aggarwal was the mastermind of the entire case and he had appeared before the RCS Office impersonating himself as G. Chander, the President of the Society, amongst other allegations of committing impersonation and forgery in the records of the Society, while acting in connivance with other co accused persons, pursuant to the conspiracy so hatched to revive the Society and seek land from DDA on concessional price.
38. And to prove its case against accused Sh. Gokul Chand, prosecution has heavily relied upon the GEQD opinion stating that he has duly proved on record the forgery committed by the accused Gokul Chand Aggarwal via his expert opinion, and also the fact that the accused Gokul Chand Aggarwal had impersonated himself as G. Chander, President of the Society, in the proceedings conducted before the RCS Office.
39. It is further stated by the learned PP that this is not the standalone case in which the present accused has committed forgery and / falsity of the documents of the Society, whereas there are numerous cases of similar nature pending against accused Gokul Chand Aggarwal, wherein he is one of the coaccused in a similar fashion.
40. It is further submitted that records of the Society were fabricated by this accused to give design to the illegal activities in terms CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 25 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) of the conspiracy so hatched alongwith coaccused persons, and prosecution has proved its case against the accused Gokul Chand Aggarwal beyond reasonable doubt to bring home the charges pressed against him.
41. On the other hand, learned defence counsel / Amicus Curie had strongly disputed the expert opinion(s) given by the GEQD against accused Sh. Gokul Chand Aggarwal stating it to be a weak type of evidence and can not be relied upon for any purpose whatsoever without it being corroborated by substantive piece of evidence.
42. It is vehemently argued by the learned Amicus Curiae that the opinion of GEQD given by PW84 Sh. R.S. Rana is not a credible one and lacks scientific analysis. That not a single enlarged photograph or juxtaposition chart was prepared by the GEQD to demonstrate and support his findings. That the GEQD report was handed over without any analytic examination merely as per requirements of the investigation officer.
43. It is stated that it is now an established law that it is not at all safe to convict a person on the sole testimony of a handwriting expert, as it is merely an opinion and not a substantive piece of evidence. It is submitted that besides the positive opinion of GEQD expert there is absolutely no evidence against accused Gokul Chand Aggarwal to reflect his involvement into the alleged case or to show that he was part of any such conspiracy.
It is further submitted that even otherwise no admitted writings of accused Gokul Chand were taken and sent to GEQD for CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 26 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) comparison and analysis, therefore, in absence thereof no credibility can be assigned to the opinion of the expert which presumably is against the accused herein.
44. It was further argued by learned defence counsel that the prosecution has also failed to prove by leading any independent evidence that the signatures/handwritings appearing on specimen sheets from S65 to S78 are that of accused Gokul Chand Aggarwal, or that they were voluntarily given by the accused himself, nor were such specimen writings / signatures were obtained with the permission of the competent court.
45. It is further submitted that no recovery of any incriminating material was effected from or at his behest. That the case of the prosecution is based on circumstantial evidence and it has failed to prove all the circumstances and connect the chain of events to show the involvement of accused Gokul Chand in the present case. That few bits here and few bits there is of no assistance to the case of the prosecution against the accused in terms of the charges so framed.
46. It is thus prayed that prosecution has miserably failed to prove its case beyond reasonable doubt and accused Gokul Chand Aggarwal accordingly he is entitled to be acquitted of all the charges so pressed.
Analysis and Findings / role of accused Sh. Gokul Chand Aggarwal :
47. Prosecution has examined PW84 Sh. R.S. Rana, the GEQD expert, in support of its case, and it is evident from his testimony, that he has a vast and substantial experience in the related CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 27 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) field of examination of handwriting and signatures on the documents. He testified that he has undergone service training of three years in the examination of handwriting and detection of forgery alongwith allied subjects at Government Laboratory at Shimla, Himachal Pradesh. That he has an experience of about 24 years in the relevant field, and has examined thousands of documents during his service, and is also stated to have deposed as an 'expert' in numerous cases before different courts across the country.
48. During his examination, he duly proved his opinion / report of examination of the questioned / specimen / sample signatures and hand writings, which is exhibited as Ex PW84/4 collectively. The opinion so given was duly supported with 'reasons for opinion' and proved on record vide Ex PW84/6 collectively.
49. It must be appreciated that Sh. R.S. Rana (PW 84) has given a detailed analysis qua each of the relevant alphabets of the disputed / questioned signatures purportedly in the name of G. Chander ( alleged president ) viz a viz specimen signatures of accused Gokul Chand Aggarwal, separately leaving no room for any ambiguity in that regard, in terms of his 'reasons for opinion No. CX285/2007 Dated 29.02.2008 duly proved on record and exhibited as Ex PW84/6 and, I quote some findings in reference to para 7 of the Opinion thereto : All the standard & the questioned signatures are freely written, show natural variation and have inter consistency among themselves. Similarities are also observed in the general writing habits of movement, skill, slant, speed, spacing, relative size & proportion of CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 28 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) letters, simplification, alignment, nature of commencing & terminating strokes, combination of various strokes etc. in the questioned and the standard signatures.
Similarities are also observed in the individual writing habits, such as, peculiar movement of letter 'G' with nature of its commencement and direction of finish ; relative location of the letter 'G' inside curvature of letter 'C' ; nature and location of hooked commencement and shape of the curved part and its relative size and nature of execution of 'C' ; nature of staff of letter 'h' and shape of its body curve ; shape of the oval of letter 'a' ; simplified execution of 'n' ; shape of the open oval of letter 'd' and relatively small size of its staff ; simplified execution of 'e' ; peculiar movement and nature of finish of the terminal letter 'r' ; peculiar habit of combining characters at the word 'Chander' as observed in questioned is also observed to be similar in standard signatures.
50. It is further opined by the GEQD expert PW84 that on comparison the disputed/questioned writings and signatures with the specimen signatures (in the blue enclosed portions similarly stamped and marked S65 to S78 of the accused Gokul Chand Aggarwal), reveals characteristic similarities in the writing habits, indicating their common authorship" and the opinion is based upon the cumulative consideration of various similarities both in the general and individual characteristic occurring in them.
51. It was further stated that there is no divergence between the questioned and the standard signatures. There is no sign of imitation in CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 29 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) the questioned signatures. The above mentioned similarities in the writing habits are significant & sufficient and will not accidentally coincide in the signatures of two different persons and when considered collectively.
52. In the crossexamination PW84 though admitted to the fact that he has not mentioned the type of movement about finger, hand or wrist or forearm ; or the speed of the questioned writings and specimen writings ; or the findings regarding the degree of slant in the questioned writing and specimen writing ; or about the size, spacing or the proportion of the character and letters or regarding the issue of length to the width of letter qua the questioned and specimen writings, but he denied specifically to not to have examined the questioned writings and signatures in a scientific manner.
53. The opinion Ex PW84/4 collectively so furnished by PW 84 Sh. R.S. Rana is endorsed by another GEQD expert Sh. N.C. Sood. PW84 deposed to the fact that Sh. N.C. Sood had examined the questioned signatures and handwriting independently, and after examining so, the opinion given by him was duly endorsed by Mr. Sood.
Though Sh. N.C. Sood has not been examined in the present case but relevant to note that he has concurred with the opinion so expressed by PW84, as is evident from the report/opinion Ex PW84/4 collectively. PW84 has also identified the signatures of Sh. N.C. Sood at point A on the aforesaid opinion.
54. Further, it is also evident from the original Proceeding CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 30 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Register, that the accused Gokul Chand Aggarwal had participated in the Special General Body Meeting held on 25.01.2003 as a member in disguise of G. Chander, which is apparent from the signatures appended at Q1039, Serial no.1 under Membership No.86 part of ExPW6/E, and opined by PW84 to have been signed by accused Gokul Chand Aggarwal.
55. In terms of the opinion so furnished by the expert, accused Gokul Chand Aggarwal had also fabricated the records of the Society running from the year 19831984. The audit report for the year 1983 1984 to 20012002 submitted by the present accused under the signatures of G.Chander at Q6, on the OptioncumAppointment Letter for conducting Statutory Audit (part of Ex 85/8) dated 03.12.2002, may be noted in that regard, wherein the accused Gokul Chand Aggarwal has signed at numerous places in the name of G. Chander to verify and authenticate the balance sheets of the Society pertaining to year 1983 1984 till the year 20012002, as President of the said Society.
56. The documents reflecting the receipts and payment account including the list of members of the society for each year from its inception in the year 19831984 till 20002001 has also been fabricated by the present accused alongwith other coaccused persons representing himself as G.Chander, the president of the Society.
57. To state specifically, the number of signatures appended in the name of Mr. G.Chander, President of the Society on the Audit Report ( for the year 19831984 to 20012002 ) are reflected at :
i). Q6,Q18,Q23,Q41,Q52,Q64,Q68,Q76,Q80,Q88,Q92,Q CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 31 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) 99, Q103, Q112,Q116, Q124, Q128, Q136, Q140, Q148, Q 152,Q160,Q164, Q172, Q176, Q184, Q188, Q196, Q200, Q208, Q212, Q220,Q224,Q232,Q236,Q248, Q252 ( part of D27 ) ;
ii) at Q759, Q760, Q761, Q762, Q763, Q764, Q765, Q768, Q769, Q770, Q771 to Q794, Q796 to Q816, part of D9 & D10 exhibited as PW6/B ; and,
iii) at Q1039 proceedings register maintained by the Society ( D13, page 7 ), and are opined to have been signed by present accused Gokul Chand Aggarwal impersonating himself as G.Chander.
58. Similarly, accused Gokul Chand Aggarwal had appeared and signed at numerous places representing himself as G.Chander in the capacity of President of Society before the RCS and / or in the correspondence so undertaken with the RCS Office.
59. In continuation thereto, the signatures appended at Q701 & Q702 in the original noting file of the RCS (D9) are attributed to the present accused Gokul Chand Aggarwal, wherein the proceedings were undertaken by the RCS officials for verification of membership, election and audit etc of the Society on dated 25.11.2002.
60. Further, the letter dated 05.12.2002 addressed to Dy. Director (G/H), DDA forwarding the Freeze list of 114 members of the Sea Show CGHS for allotment of the land was also written by Sh. Gokul Chand Aggarwal in terms of the expert opinion for signatures appended at Q660 in the name of G.Chander, the President of the Society.
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 32 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
61. It is also evident from the original correspondence file of the Society maintained by RCS office from Page no. 8/C to 27/C part of Ex 6/B (D9 & D10) that copy of the records of the society relating to annual GBM and other affairs undertaken by the Society of the relevant period have been endorsed and submitted by the present accused under the signatures of G. Chander, at point Q818, Q824 to Q837 in terms of the opinion of the Govt Expert (GEQD) Ex PW84/4.
62. Nextly, the payment receipts for inducting the so called members in the Society pertaining to the year 1984 alongwith the false list of the members of the Society have been endorsed and submitted by accused Gokul Chand Aggarwal again representing himself as G.Chander as President of the Society. And the GEQD expert has opined that the signatures at point Q838, Q842 to Q851/1, Q853, Q 855 to Q870, Q917 to Q929, Q931 to Q952, Q954, Q956 to Q 964, Q966 to Q972 (D10, correspondence file of RCS) part of Ex PW6/B on the aforesaid documents matches with that of Sh. Gokul Chand Aggarwal.
63. I do not concur with the submissions advanced by the learned Amicus Curie/ defence counsel for the accused that expert opinion is a weak type of evidence and can not be relied upon independently to bring home the guilt of accused. Reliance in this regard is placed on land mark judgment of Hon'ble Apex Court in a case titled as Murari Lal Vs. State of UP 1980 AIR 531 wherein the Hon'ble Court after analysing and reappreciating the entire case law on the aspect of credibility of expert opinion has observed that : CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 33 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) "We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinionevidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with observation that the expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration.
True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnessesthe quality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 34 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) may be backed by the soundest of reasons.
It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence).
We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered.
In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 35 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) out of context from the judgments of this Court are often flaunted."
(Emphasis supplied)
64. It is thus abundantly clear that there is no rule of law which debars the court to act upon the opinion report / evidence of an handwriting expert, if it appears to be convincing and there is nothing on record to doubt its veracity. So each case has to be decided on its own peculiar facts and circumstances and corroboration may be looked for in a given case where there appears to be some cloud over the testimony of expert witness.
65. As discussed above, the Opinion/Report is accompanied and supported with 'Reasons for the Opinion' thereto, wherein detailed analysis carried out by the expert via scientific methods has been highlighted. The 'Reasons for the Opinion' was duly proved on record during his testimony and exhibited as Ex PW84/4 to Ex 84/6.
66. Furthermore, we must not lose site of the fact that PW84 Sh. R.S.Rana is an independent and neutral witness working in the CFSL, having its own independent status. Nor is he under the control or influence of the prosecuting agency, nor was he familiar with the accused persons as such, nor aware about the identity of the persons whose signatures/handwritings are under their analysis / examination.
67. In fact, it may be noted that GEQD expert was not personally acquainted with the handwritings and signatures of accused Gokul Chand Aggarwal, nor his specimen handwritings and signatures were taken by the CBI in his presence.
68. He went on further to depose that his examination on the CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 36 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) samples was duly carried out via scientific methods and instruments, and that another examiner Sh. N.C.Sood had also concurred with his analysis / examination of the samples, which were also analyzed by him independently and separately.
69. Therefore, no prejudice or biased can be attributed to them or their opinions / report of the examination of the questioned / samples sent for analysis.
70. To say, thereafter, that it is substantially uncorroborated and must not therefore be acted upon cannot be legally sustained in light of the dicta laid down by the Hon'ble Supreme Court referred above.
71. Moreover, in the present case, as discussed hereunder, there is ocular evidence and other documentary evidence which indicates the involvement of the accused not only in fabrication of the record but also impersonating and appearing before the RCS Officials. Thereby, the arguments of the learned counsel for accused Gokul Chand Aggarwal on that count accordingly stand rejected.
72. So, as is evident from the above discussions and in terms of the opinion furnished by the GEQD experts, it is not one or two signatures which are alleged to be under the hand of the present accused but there are numerous signatures, running into more than 200, pursuant to which the records of the Society were manipulated, false documents in the form of Audit Reports from the inception of the Society in the year 19831984 till 20012002, Membership Application Form Share Certificate/ Membership fee Receipt(s), General Body Meeting(s), CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 37 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Proceeding(s)Register of the Society, false freeze list and other correspondence and records of the society were fabricated by present accused Gokul Chand Aggarwal with forged signatures purportedly in the name of G.Chander, President of the Society.
73. Indicating thereby, that the accused Gokul Chand Aggarwal had represented himself as G.Chander (President of the Sea Show CGHS) and signed number of documents by donning the hat of fictitious identity of Mr. G. Chander.
74. Nextly, the argument of the defence counsel impeaching the validity of the specimen sheets / signatures, or that it was not taken legally and voluntarily, also appears to be unconvincing for the reason that independent witness Sh. Suresh Kumar Rawal was examined as PW72 has specifically deposed that the specimen signatures / writings sheets running from S65 to S78 of accused Gokul Chand Aggarwal were taken in his presence. He also identified his signatures at point A on each of the sheets while exhibiting it as PW72/4 collectively.
75. PW72 also testified that signatures were voluntarily given by accused without any pressure or duress from any quarters. He identified accused Gokul Chand Aggarwal during his examination in the court.
76. His cross examination is also on some formal facts and confined to suggestions denying him being a witness to the fact of taking specimen writings/signatures.
77. There is nothing in his testimony to suggest that he was not a witness to the taking of the specimens signatures/handwriting of CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 38 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) accused Gokul Chand Aggarwal or that he has deposed falsely in this regard.
78. His testimony is further corroborated by the testimony of Investigating officer Manjeet Singh examined as PW85, who has also deposed to say that specimen signatures / hand writings of the accused persons including the one here and other witnesses were taken by him in the presence of independent witnesses. He correctly identified his signatures at point X on each of the said sheets, duly exhibited as PW72/4 (colly. & part of D80).
79. Besides that accused himself has also not controverted the said specimen sheet / signatures taken by the IO during the trial of the case. Simply to say that it was an involuntary act or no order from the Court concerned was taken to take the specimen signatures is no ground to discard the evidence of specimen sheets on that count. Now, coming to the Conspiracy part.
80. Though it has been dealt by the learned predecessor court in detail at the time of passing the final judgment against erstwhile accused persons, suffice herein to state that the conduct, the act and the omissions on the part of the RCS officials namely accused Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6) and Sanjeev Bharti (A7), who already stands convicted for the offence of Conspiracy and other offences alongwith other co accused persons/coconspirators, indicate that the case file of the Society concerned was processed in a clandestine manner with dishonest intention to revive the defunct Society.
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81. The gist of offence of criminal conspiracy is an agreement to break the law. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by accomplishment of its object or by abandonment or frustration.
82. It may also be noted that the Conspiracy is invariably hatched in secrecy and as such direct evidence is seldom available. Similarly, agreement of conspiracy can also be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that the prosecution has to bring on record express proof of the agreement so entered, the acts and the conduct of the parties appreciated in correct prospective go a long way to infer and establish the conspiracy.
83. The manner in which the file of the Society was reconstructed without even making an efforts to verify the said factual aspects speak in detail about the offences committed at hand.
84. It may be noted that the Society Sea Show CGHS Ltd. was registered in the office of Register Cooperative Societies on 01.10.1983 vide Registration No. 695 (GH). Later on, the Society was wound up vide order dated 10.05.1989 passed by PW3. There is no dispute to the said fact.
85. Thereafter a communication dated 04.09.2002 was received in the RCS office on 05.09.2002 from the Society requesting CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 40 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) for its revival. The said application for revival of the Society Ex.J1 bears an initial at its end above the words "President/Secretary". The name of the person who has signed it is nowhere reflected on the application raising its authenticity and genuineness.
86. Upon receipt of the said revival application in the RCS office, a note dated 11.09.2002 was put up by dealing assistant accused Gopal Singh Bisht mentioning therein that the main file of Sea Show CGHS Ltd. was not traceable. Though some efforts appears to have been made to trace the file but without any success, as per subsequent notings.
87. Thereafter, in response to the request of the RCS office, copies of relevant documents of the Society were submitted on behalf of the Society in the RCS office vide letter dated 15.11.2002 i.e.
(i) Copy of Registration Certificate.
(ii) Copy of Byelaws of the Society.
(iii) Copy of the list of 114 members duly signed by the President/VicePresident and Secretary of the Society.
(iv) Copy of the Application Form.
(v) Copy of the Share Money Receipt.
(vi) Affidavit of individual members.
(vii) Copy of the membership register.
(viii) Copy of unaudited accounts.
(ix) Copy of Managing Committee Resolution.
(x) Copy of General Body Meeting held on
18.08.2002,amongst others.
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CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
88. It is relevant to note here that one Sh. G.Chander in the capacity of the President of the Society is stated to have appeared before accused Ved Pal Singh (AR) on 18.11.2002 and filed the affidavit of the Secretary of the Society in the prescribed proforma.
89. And as noted above, in terms of the GEQD opinion, present accused Gokul Chand Aggarwal had impersonated himself as G.Chander, and thereby, had appeared before the RCS Officials to get the Society revived on the basis of false and fabricated records, and his presence is duly noted in the RCS office on the proceedings of the said date.
90. This fact is also strengthened by the noting dated 18.11.2002 of RCS office at page no. 6/N wherein it is specifically mentioned that "present Sh. G.Chander, President of the Society and filed affidavit of Secretary in prescribed proforma sd/(AR(S)" and the noting has been duly endorsed by this accused under the signatures of G.Chander.
91. Further, upon receipt of the above noted documents from the Society, accused Gopal Singh Bisht prepared a detailed typed note dated 18.11.2002 mentioning therein the previous history of the Society with reference to the application for revival dated 04.09.2002.
92. He also noted that the election of the Managing Committee of the Society had been conducted in August, 2002 in accordance with the Rules and the Managing Committee has prepared all the books of Accounts since 198384 which are ready for audit, and a fresh list of members as on date has also been drawn up in the prescribed proforma CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 42 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) on the basis of the records of the society.
93. This note which appears to be falsely prepared was approved by other accused Ved Pal Singh (AR) before it was sent to Registrar for consideration.
94. From the order dated 21.11.2002 of the Registrar i.e. accused Narayan Diwakar, it is evident that accused Gokul Chand Aggarwal representing himself as President of the Society had appeared before the Registrar, his presence is duly marked in the noting file at page no. 8/N part of Ex PW6/B, vide which the Registrar directed his Reader to send the file to the concerned zone for verification of membership and to ascertain the audit position etc. and adjourned the proceedings to 28.11.2002.
95. In pursuance to that, present accused under the name of G.Chander, President of the Society, again appeared before accused Gopal Singh Bisht on 25.11.2002 in response to a letter (Ex J2) dated 22.11.2002 alongwith original records of the Society for its verification. His presence is duly marked by the concerned Official AR. (South), and in terms of his signatures at point Q701 & Q702 endorsing the proceedings that had taken place on the said date.
96. The role in detail of other coaccused namely Narayan Diwakar (A1), Ved Pal Singh (A2), Gopal Singh Bisht (A3), P.K. Thirwani (A6), Sanjeev Bharti (A7), Ashutosh Pant (A8), Naveen Kaushik (A9), Naresh Kumar (A10), Rajesh Kumar Dhaka (A11) and Vimal Kumar Aggarwal (A12) is already discussed in the judgment dated 27.01.2021 pronounced by learned Predecessor Court while CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 43 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) convicting the aforesaid accused persons for the offences punishable u/s 120B r/w 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act.
97. I also find no reason to differ from the findings and the observations made in the main judgment dated 27.01.2021 regarding the role of coaccused persons including RCS officials viz a viz accused Gokul Chand Aggarwal and the fraudulent manner in which the revival proceedings were conducted to bring forth the conspiracy, so hatched by the accused persons.
98. While endorsing the finding of the said judgment, the relevant extract are reproduced herein for appreciation of factum of the conspiracy :
50. The manner in which the application for revival of the society was processed in the RCS office as indicated by the above mentioned notes clearly reflects that the entire process was mere formality or an eye wash and it had already been decided by the officers/officials posted in that office at the relevant time that the society has to be revived at any cost. Manifestly, there was no actual honest and diligent effort to verify the records produced on behalf of the society including its membership list notwithstanding the fact that the revival was sought after about 13 years from the date when the society had been put under liquidation. No effort was made to check the identity of the person who had submitted the revival application on behalf of the society i.e. the person who has signed the said application.
51. At the cost of repetition, it is to be noted herein again that CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 44 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) the society was being sought to be revived after about 13 years from the date it had been put under liquidation. Further, the original file of the society maintained in the RCS office at the time of its registration was not traceable. These two circumstances were sufficient to cause alarm in the minds of the officers/officials posted in the RCS office, who dealt with the revival application, requiring the representations made on behalf of the society to be put to strict scrutiny. To the contrary, the application has been processed in a totally cavalier and malafide manner. No sincere effort has been made to trace the original file of the society. The above referred notes in the noting file show that a circular had been issued to all the branches/zones to trace the original file of the society but no such circular has been brought on record. Nothing has been pointed out from the record from the side of the accused to show that any such circular had actually been issued and had been actually received by all the branches/zones in Delhi. The matter has not been reported to police and no departmental enquiry was initiated to identify the delinquent officials in whose custody the file should have been and who were responsible for its loss/misplacement.
52. One wonders as to where was the hurry in reconstructing the file of the society from unverified copies submitted on behalf of the society, without making strenuous effort to trace the file and without initiating the departmental eqnuiry in this regard. The file was an official record and its disappearance from the office could not have been taken so lightly. Loss or misplacement of official record from a Government office is a very serious issue which cannot be ignored or CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 45 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) brushed under the carpet without fixing the responsibility on the delinquent officials. The revival of society could have waited for few more days or months. Since it was already lying dormant for about 13 years, a few more days or months would not have made any difference at all.
53. ........................
54. A new file appears to have been reconstructed on the basis of the records submitted on behalf of the society by taking its genuineness for granted. The identity of the person submitting the record namely G. Chander was neither checked nor verified at any step by any of officials/officers particularly accused Gopal Singh Bisht, Ved Pal Singh and Narayan Diwakar. It is evident that none of these accused, who dealt with the revival application of the society, acted bonafidely, honestly, diligently and for the public good. In fact, they do not appear to have been discharging their functions as public servants but only as the aids/facilitators for the private accused who had hatched the conspiracy with the object of getting the society revived on the basis of fictitious/forged documents. It is clear from their conduct that they too had joined conspiracy and thus were dancing to the tunes of private accused.
55. Had these accused been honest and diligent in discharge of their functions as public servants in the RCS office, they would have easily detected the forgery in the records of the society. It was not a herculean task but only required the will and intent to discharge the public functions honestly. The copy of registration certificate of the CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 46 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) society filed along with the revival application shows its registered office address as 1235, SectorIII, Pushp Vihar, New Delhi. It could not be compared or verified from the office record as the office record of the society was not traceable. So, eqnuiry should have been made at this address to find out as to whether any society actually functioned from there and if so, till when. Further, the revival application shows the office address of the society as M31A, Greater Kailash, PartII, New Delhi. No enquiry was made to ascertain as to when and under which resolution of General Body or the Managing Committee was the office address shifted from Pushp Vihar to Greater Kailash and whether intimation about the same was given to the RCS office. Had such an enquiry been conducted, it would have come to light that the society was not having its office at this address and thus would have exposed the false representations made on behalf of the society. PW15, who is the owner of M31, Greater Kailash, PartII, New Delhi, has deposed that no society was having its office in this house.
56. Secondly, the membership list of the society which was submitted alongwith the revival application contained the names of 114 members with the assertion that all of them had been inducted prior to the cut off date i.e. 30.06.1986 and none of them was enrolled thereafter. In fact, it has been stated that the members mentioned at S. No. 1 to 58 were the promoter members of the society and the members mentioned at S. No. 59 to 114 were inducted into the society on one single day i.e. 21.08.1984. Induction of such large number of members (56 members) on one single day was sufficient to arouse suspicion in CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 47 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) the minds of the accused public servants who have dealt with the revival application, with regards to the genuineness of these members. In such a situation, it was not only proper but also incumbent upon these public servants/officers including the Registrar posted in the RCS office to issue notices to all the members in order to ascertain whether they were genuine members and were still alive as well as willing to continue their membership into the society. No Rule or Regulation was required for doing so. Any honest and diligent officer would have resorted to this process in these circumstances in order to ensure that membership list of the society to be forwarded to DDA for allotment of land to the society contains the names of only bonafide members and not those of unwanted & fictitious persons as well land grabbers/property dealers. Since, no such effort was made by any of the accused public servants namely Narayan Diwakar, Ved Pal Singh and Gopal Singh Bisht, who were involved in the revival process of the society in one way or the other, it is limpid that they were not performing their duties for public good but were acting only for personal gains or for causing benefit (pecuniary or otherwise) to the other conspirators i.e. private accused.
57. .....................
58. As already noted hereinabove, accused V.P. Singh (AR) had sent a letter dated 22.11.2002 Ex.J2 to the President/Secretary of the Society calling upon them to produce the complete records in original before him on or before 28.11.2002 for verification. However, it appears from the note dated 25.11.2002 prepared by accused Gopal CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 48 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) Singh Bisht (Dealing Assistant) that one G. Chander in the capacity of the President of the Society appeared before him on that day alongwith the original records of the society for verification. One fails to understand as to why were the original records of the society produced before the dealing assistant Gopal Singh Bisht on 25.11.2002 for verification when these were required to be produced before the Assistant Registrar V.P. Singh in view of his letter Ex.J2. It is nowhere ascertainable from the record as to under whose authority did accused Gopal Singh Bisht conduct the verification of the records of the society, which had to be done by Assistant Registrar V.P. Singh. Moreover, in the note dated 25.11.2002, accused Gopal Singh Bisht has pointed out three important lacunas in the records of the society and proposed that the society may be asked to furnish records in this regard. Neither the Assistant Registrar V.P. Singh nor the Registrar Narayan Diwakar appears to have been bothered by the lacunas in the records of the society as pointed out in the aforesaid note dated 25.11.2002. No explanation has been sought from the society on these aspects. After the note dated 25.11.2002, one straightway finds a detailed typed note dated 26.11.2002 prepared by accused Gopal Singh Bisht wherein it is mentioned that the original records produced by the society for verification have been checked in original & verified and everything was found in order.
................................................................................................................... .............................................................................................................
73. In the instant case also there is no direct evidence on CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 49 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) record to show that there had been any agreement between these three accused Narayan Diwakar, V.P. Singh and Gopal Singh Bisht on one hand and the private accused on the other hand. However, the evidence on record clearly shows that these three accused had been acting in connivance with the private accused. The criminal acts performed by these three accused were certainly the result of an agreement between them and the private accused. Therefore, the evidence on record provides primafacie reasonable grounds to believe that they conspired with the private accused and the object of the conspiracy was to get the dormant society revived on the strength of fake/forged documents. Therefore, whatever has been done by each of the accused is evidence against each of them. The prosecution has been successful in establishing the charge of conspiracy against these two accused also.
99. In addition to that : PW2 Sh. B.L. Goyal, testified to the fact that he had taken membership of Himani CGHS in the name of his son Amit Goyal through present accused Gokul Chand Aggarwal, while denying ever taking membership of Sea Show CGHS. However, he stated that the particulars at Sl. no. 84 of the prcceeding register of Sea Show CGHS in the name of his son are correctly mentioned.
100. The testimonies of PW4 Sh. Sanjay Garg, PW18 Sh. Sukhbir Garg and PW90 Sh. Kishan Chand Garg are also similar to PW2 to the fact that they knew accused Gokul Chand as they had purchased a floor each/properties from him. They further testified that no proceedings/meetings of the Sea Show Society or any other had CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 50 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) taken place at their premises, nor had they permitted the accused Gokul Chand Aggarwal to use their addresses as the registered address of the Society.
101. Similarly, PW24 Sh. Gopal Dass and PW26 Sh. Nanak Chand Gangwal also deposed to the fact that they knew accused Gokul Chand Aggarwal as they had taken the membership of Himani CGHS through him, but they specifically denied to have taken the membership of Sea Show CGHS, denied having submitting any affidavit or tendering any resigation therefrom.
They also denied the signatures affixed on the proceeding register, resignation letters and affidavits purportedly in their names. All these witnesses except PW26, they all identified the accused Gokul Chand Aggarwal in the court during the proceedings.
102. Their testimony is relevant to show the fact that they all knew accused Gokul Chand Aggarwal and had conducted some proceedings or transacted some business through him in one way or other, be it taking membership in Himani CGHS or purchase of some property. And that accused Gokul Chand Aggarwal had information and knowledge about the personal details of these witnesses, which were used by him malafidely in fabricating the records of the Society by showing them its member(s) or their participation into its affairs, whereas they had never taken any membership nor were they connected with the affairs of this society ( Sea Show ) in any manner.
103. Further, it may be noted that accused P.K. Thirwani A6 was appointed as an Auditor on 10.01.2003 to conduct the audit of the CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 51 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) society. Conducting of the audit of the Society was a prerequisite condition for the revival of the Society, which was to be completed within two months time from the date of order dated 03.12.2002.
104. Accused P.K. Thirwani has not disputed the report submitted by him Ex PW85/8 (D27). Since the audit of the Society was a prerequisite condition for the revival order to come in operation, and any irregularity or illegality if had been noted or mentioned by Sh. P.K. Thirwani, the revival order would have then become infructuous.
105. It may be noted that the "brief summary" of the Society so prepared by him (accused P.K. Thirwani) bears the signatures of the present accused in the name of 'G. Chander' as President alongwith signatures of Secretary and Treasurer of the Society, to give it an impression that the three office bearers of the Society had appeared before auditor/Accused (A6) to sign the said "Brief Summary."
106. But relevant to note is the fact that the identity of the said Sh. G.Chander was seriously under cloud he being a fictitious person. The circumstances indicate that the audit report exhibited as PW85/8 submitted by A6 was a false report, without actually carrying out any audit of the Society of the relevant years, simply to facilitate the revival of the Society.
107. From the evidence so adduced by the prosecution and the records of the Society so submitted and proved on record, it can be seen that the present accused Gokul Chand Aggarwal represented himself as 'G.Chander' and fabricated the records of the Society in his name. His father's name also do match with the father's name so mentioned in the CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 52 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) alleged Membership Application Form of G.Chander. The signatures appended on the said application form also on being properly analyzed matches with the signatures appended by this accused in the name of 'G. Chander'.
108. The facts discussed above clearly indicates that accused Sh. Gokul Chand Aggarwal was actively participating in the revival of the Society, by fabricating the records, submitting false report, representing himself as the President of the Society, and other miscellaneous documents to show the business transacted by the Society, whereas there was none in reality, in furtherance of the common object to seek land from DDA on a concessional rates. The conduct of the accused persons makes it manifest that they were in agreement with other coconspirators and were discharging the acts assigned to them so that the object of conspiracy is duly achieved.
109. Thus, in light of my above discussion, I have no hesitation to say that the entire exercise of the revival proceedings of the Sea Show CGHS was carried out by the accused persons including the present one through a well hatched conspiracy in connivance with each other, on the basis of forged and fabricated records, wherein accused Gokul Chand Aggarwal impersonated himself as G.Chander, the alleged President of the Society Sea Show CGHS and also fabricated the record of the Society.
NOW COMING TO THE OFFENCE U/S 174A I.P.C
110. As noted earlier, accused Gokul Chand Aggarwal had absconded during the course of trial of the present case w.e.f.
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 53 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) 13.03.2018, and he accordingly was declared proclaimed offender vide order dated 10.07.2018, after completing the requisite process as envisaged by the Code of Criminal Procedure. Relevant charge under 174A IPC was framed in terms thereof.
111. In support of its case prosecution has examined CW1 Sh. Ramkesh Kumar the then Inspector / process server, who had executed the process u/s 82 CrP.C upon the accused Gokul Chand Aggarwal alongwith CW3 Sh. Naveen Lathar Sub Inspector and CW4. Ct. Sudesh Kumar.
112. The prosecution also examined Sh. Sohan Lal Khatri, the then President of the Society where accused Gokul Chand Aggarwal had lastly resided as CW2.
113. The essential requirements u/s 82 Cr.P.C to bring home the offence u/s 174A IPC may be quoted here for ready reference :
82. Proclamation for person absconding.
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows: CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 54 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village ;
(c) a copy thereof shall be affixed to some
conspicuous part of the Court house ;
(ii) the Court may also, if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) .............................................
114. CW1 deposed that pursuant to process issued by the Court u/s 82 Cr.P.C and marked to him for execution. He visited at the residence of accused Gokul Chand Aggarwal, at Flat no. A603 Ashoka Apartment, Sector9, Rohini, Delhi on 05.10.2018, and when accused was not found residing there, he accordingly executed the process u/s 82CrP.C by pasting/affixing copy of the proclamation at the main gate of his house.
115. But relevant at this juncture to note is the fact that as per the testimony of CW1 to CW4 the process for appearance of the accused CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 55 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) on 26.09.2018 was executed on 05.10.2018, and he was declared Proclaimed Offender vide order dated 16.10.2018. That is, in terms of the process so executed u/s 82 Cr.P.C, the accused was required to appear before the court on the very next day from the date of its execution, which perse is in violation and contrary to the mandatory time period given under clause (1) of Section 82 Cr.P.C for appearance of the accused, pursuant to the publication of such proclamation.
116. To quote: ".........., such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation".
117. Appreciating the same, the process so executed was contrary to the mandatory provisions as envisaged under the said Section of law and has no evidentiary value in the eyes of law.
118. Interestingly, the process so executed by the process sever also happens to be of a different case issued by a different court, which itself is apparent from the compliance report of the execution of the process filed on behalf of CW1.
119. The details of the case as mentioned in the compliance report are not of Sea Show CGHS, the concerned Society in dispute herein, but that of some other case titled as CBI Vs. Narayan Diwakar ( Ashoka GGHS ). The RC number so mentioned as 11/06 qua which the process was executed is also not that of the present case.
120. This finding finds support from the testimony of CW2, the President of the Society, who stated that the process/summons so CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 56 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) executed by the CBI official on the said date were issued by a Saket Courts, and the counsel for accused during arguments highlighted the fact that the case titled as CBI Vs. Ashoka CGHS ( the details of which are mentioned on compliance report of the process server ) was pending adjudication before the Saket Court at the relevant time.
121. The details so mentioned in the execution report, the testimony of witnesses especially CW2 and the circumstances under which the process under Section 82 Cr.P.C appears to have been executed, the short time given for appearance of the accused, all leads to irresistible conclusion that a false and misleading report has been filed on behalf of the prosecution qua execution of process under Section 82. Cr.P.C. And, accused can not be convicted for offence punishable u/s 174A IPC. on the basis of such a dubious execution report.
122. Further, there also appears to be glaring discrepancies, and omissions/improvement in the testimony of CW1 vizaviz other witnesses examined by the prosecution particularly CW3 and CW4, qua the manner of execution of proclamation u/s 82 Cr.P.C.
123. CW1 simplicitor stated that after the process was marked to him for its execution, he visited the residence of the accused, accompanied by Sh. Sohan Lal Khatri, the then President of the Society and when it was informed that accused was not seen residing at the said flat for a long time, a copy of the proclamation was pasted on the gate of his residence. The execution/compliance report Ex CW1/1 (colly.) also states so.
124. Whereas, CW3 and CW4 stated that they visited at the CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 57 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) given address of the accused alongwith Inspector and two other officials of Delhi police including a Lady Officer. They also deposed that the copy of the process was not only pasted on the notice board of the Society but also on the Pillar in the Parking Area, Notice Board of the Police Station, Prashant Vihar and on the Notice Board of the concerned Court at Rohini.
Pertinently, no such fact was deposed by CW1 regarding the assistance or even visiting the concerned Police Station, Prashant Vihar or pasting a copy of the process at the parking of the Society or at the Metro Station or at the Court Complex.
CW1 has not stated even a single word of him visiting any Police Station, Metro Station or Court Complex during his testimony before the Court. Some vague reference of pasting of process outside the Police Station and Court premises have been made in the compliance report, without their being any specific details.
125. CW4 even went further to state that prior to reaching the Society of the accused they had first gone to P.S Prashant Vihar to take assistance and that Insp. Rakesh Kumar (CW1) had visited and informed the concerned SHO about the purpose of their visit. A statement and the fact completely missing from the testimony of CW1 and to a great extent CW3 also.
126. CW1, CW3 and CW4 also admitted to the fact that no photographs of the proceedings so conducted at the given address of the accused or any other related place was taken or placed on record. CW4 though stated that photographs of the summons and CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 58 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.) the proceedings so conducted might have been taken by Inspector Rakesh Kumar (CW1), but as noted above no such documentary proof have been filed on record in support of their case, which further creates strong doubt over the veracity of the execution of the process u/s 82 Cr.P.C upon the accused Gokul Chand Aggarwal in the present case.
127. Appreciating the facts as stated by these witnesses (CW1, CW3 & CW4) this court does not inspire confidence at all in their testimonies.
CONCLUSION :
128. Thus, in the totality of facts and circumstances of the case, in my considered opinion, prosecution has proved its case against the accused Gokul Chand Aggarwal beyond reasonable doubt for the offences punishable under Section 419/420/468/471 IPC read with Section 120B IPC & Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. But the prosecution has miserably failed to prove the charges alleged against the accused for offence punishable u/s 174A IPC.
DECISION :
129. Having regard to the above discussion and the conclusion arrived at, the accused Gokul Chand Aggarwal is hereby held guilty for the offences as under :
(i) under Section 120B r/w Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988, & Section 419/420/468/471 IPC.
(ii) for substantive offences under Section 419/420/468/471 IPC.
CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 59 of 60 CBI Vs. Narayan Diwakar & Ors. (Gokul Chand Aggarwal) (Sea Show CGHS Ltd.)
(iii) Whereas, accused Gokul Chand Aggarwal is acquitted for the offence punishable under Section 174A IPC.
130. Let accused Gokul Chand Aggarwal be heard on the quantum of sentence in terms of his conviction on 03.05.2023.
Announced in the open court Digitally on this 29th Day of April, 2023. signed by ANIL ANIL ANTIL ANTIL Date:
(ANIL ANTIL) 2023.05.03 15:36:23 SPECIAL JUDGE, PC ACT, CBI15 +0530 ROUSE AVENUE DISTRICT COURT NEW DELHI CBI Case No.210/2019 MISC DJ ASJ No 73/2021 Page No. 60 of 60