Delhi District Court
Cbi vs . Narayan Diwakar Etc (Birla Udyog Emp. ... on 5 July, 2021
CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
IN THE COURT OF SH. VIRENDER BHAT
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
CBI No. : 217/2019
CNR No. : DLCT11-000867-2019
FIR No. : RC No. BD1/2005/E/0013
PS : CBI, BS&FC, New Delhi
U/s : 120-B IPC r/w Section 420, 467, 468, 471 &
511 IPC r/w U/s 15 r/w 13(1)(d) and Section
13 (2) r/w 13 (1) (d) of PC Act, 1988 and
substantive offences thereof.
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION
NEW DELHI
VERSUS
1. Narayan Diwakar
S/o Late Sh. Chhathi Lal
R/o G-30, Masjid Moth, GK-2, New Delhi-38.
Permanent Add: Vill & P.O. Baraghania,
Distt. Sitamarhi, Bihar. ..........Accused No. 1
2. Sita Ram Goyal (Since Deceased)
S/o Sh. Ramdhari Goyal
R/o 56-A, Suraj Nagar, Azadpur, Delhi-33.
...........Accused No. 2
CBI Case No. 217/2019 1 of 62
CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
3. Raj Bhushan Chauhan
S/o Sh. Kesar Singh Chauhan
R/o H.No. 8, Panchmahal Apartment,
Plot No. 47, Patparganj, I.P. Extention,
Delhi-92.
..............Accused No. 3
4. Ram Nath (Since Deceased)
S/o Sh. Bishan Lal
R/o 192, Gali No. 9, West Guru Angad Nagar,
Laxmi Nagar, Delhi-92.
...............Accused No. 4
5. Deen Bandhu Prasad
S/o Late Dhodha Prasad
R/o A-45, Sita Puri, Part II, Gali No. 3
(near Dabari Village)
Permanent Add: Village & PO Basdila, PS
Jalalpur Bazar, Distt. Chhapra, Bihar.
...............Accused No. 5
6. Ashutosh Pant
S/o Sh. Mahesh Chand Pant
R/o B-160, Gali No. 2, Sadatpur Colony, Delhi-94
Also At: A-1303, Plot No. 9A, Exotica Elegance,
Ahinsa Khand-2, Indirapuram, Ghaziabad, UP.
................Accused No. 6
7. P.K. Thirwani
S/o Late Moti Ram Thirwani
R/o 348-E, Pocket 2, Mayur Vihar Phase I, Delhi-
91.
.................Accused No. 7
Date of Institution : 22.01.2007
Date of judgement reserved on : 19.04.2021
Date of pronouncement of judgement : 05.07.2021
CBI Case No. 217/2019 2 of 62
CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
J U D G E M E N T :-
1. The Central Bureau of Investigation (in short 'CBI'), had charge-sheeted the above named accused persons for having committed the offences under Section 120B IPC r/w Section 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 (in short PC Act) as well as the substantive offences under Section 420/511/468/471 IPC and under Section 15 r/w 13 (1) (d) of PC Act, 1988. It is alleged by the prosecution that these accused, in pursuance to a conspiracy, forged the records of the Group Housing Society Birla Udyog Employees CGHS Ltd with the object to cheat DDA for allotment of land to the society on the basis of false list of 119 members forwarded by the office of Registrar Co-operative Society [in short 'RCS Office'] to DDA.
2. It appears that the above named society i.e. Birla Udyog Employees CGHS Ltd was formed in the year 1971. It was duly registered in the RCS Office on 09.06.1971 vide registration No. 47 (GH) with 17 promoter members and having registered office address as Opp. Swadeshi Store, Birla Mill, Subzi Mandi, Delhi. However, the Society was lateron wound up vide order dt. 29.09.1986 u/s 63 of Delhi Cooperative Societies Act, 1972 [in short 'DCS Act'] on account of non-observance of statutory requirements.
Prosecution Case:-
3. It is the case of prosecution that pursuant to the criminal CBI Case No. 217/2019 3 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) conspiracy hatched by the accused, Ashutosh Pant started to control the affairs of the defunct society illegally in the year 2003. He illegally changed the office address of the society to WZ-3352, Mahendra Park, Rani Bagh, Delhi-34 in the forged minutes of Special General Body Meeting dated 10.09.1979 which were prepared by him. It is alleged that the accused Ashutosh Pant submitted an application dt. 07.07.2003 in the RCS Office in the assumed name of Shri Jagroop Sharma purportedly as the President of the Society, for cancellation of winding up order dt. 29.09.1986. The said application is stated to have been processed by accused R.B. Chauhan, the Dealing Assistant and accused Sita Ram Goyal, the Assistant Registrar without considering the fact that the society was dormant for more than 17 years.
4. Prosecution further alleges that on receipt of the above application, accused R.B. Chauhan put up a note dt. 18.11.2003 stating that the main file of the society was not traceable in the office and proposed to issue circular to carry out inspection of the society U/s 54 of DCS Act to verify the present status/factual position of the Society. It is alleged that the said proposal was dishonestly recommended by accused S.R. Goyal and was also approved by accused Narayan Diwakar, the then Registrar Cooperative Societies, New Delhi. Accordingly, a circular was issued on 28.11.2003 to trace out the main file of the society.
5. It is further case of prosecution that in pursuance to the aforesaid criminal conspiracy, accused Ram Nath (posted as CBI Case No. 217/2019 4 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) Inspector Grade-II in RCS Office) was deputed to conduct inspection of the society and he submitted a false inspection report dt. 12.12.2003 mentioning therein that all the records of the society were found in the safe custody of its President Jagroop Sharma who produced these records before him. He also mentioned in the report that membership list of the society was complete in all respects and it had shifted its office to WZ-3352, Mahindra Park, Rani Bagh, Delhi-34. However, the investigation disclosed that the society never functioned from this address.
6. Investigation has further revealed that without waiting for the reply from concerned zone to the circular dt. 28.11.2003, accused S.R. Goyal in connivance with accused R.B. Chauhan issued a letter dt. 28.11.2003 to the President/Secretary of the Society at its Rani Bagh address but the letter was delivered by hand to accused Ashutosh Pant on 09.12.2003.
7. It is further alleged that on the basis of false inspection report of accused Ram Nath, another note dt. 15/16-12.2003 was dishonestly put up by accused R.B. Chauhan proposing for initiation of quasi judicial proceedings u/s 63 of DCS Act without ensuring the genuineness of the records submitted on behalf of the society. Accused S.R. Goyal forwarded the above proposal to accused Narayan Diwakar who also approved the recommendation dishonestly. Accordingly, a letter was addressed to the President/Secretary of the Society on 16.12.2003 by N.S. Khatri, the Reader to the Registrar, to appear before the Registrar on 23.12.2003. It is stated that this letter also was CBI Case No. 217/2019 5 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) given to accused Ashutosh Pant by hand.
8. Further case of prosecution is that in pursuance to the above conspiracy, accused Narayan Diwakar has dishonestly and falsely shown the presence of Sh. Jagroop Sharma as President of the society in his order dt. 23.12.2003. It is stated that pursuant to his directions, accused Ram Nath was deputed by accused S.R. Goyal vide order dt. 31.12.2003 to conduct physical verification of the members of the society at random. It is alleged that accused Ram Nath submitted a false report dt. 05.01.2004 mentioning therein that he visited the residences of members namely Jagroop Sharma, Golesta Joseph, R. Viren Trikey, Serverensiya Hembrom & Jit Ram. But the investigation of the case revealed that Jagroop Sharma and Jit Ram were non-existent whereas the other three had not taken the membership of the society at all.
9. It is further alleged that accused S.R. Goyal and R.B. Chauhan prepared false report regarding verification of documents of the society and dishonestly submitted note dt. 06.01.2004 mentioning therein the completely false and unverified details regarding the society. Investigation has revealed that accused Ashutosh Pant has forged the signature of Choudhary Lal Singh (as Treasurer/Executive Member of Society) on election proceedings, minutes of Special GBM etc. and also of serveral other members on the membership application forms, affidavits etc. CBI Case No. 217/2019 6 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
10. It is further alleged that accused Narayan Diwakar falsely recorded the presence of Sh. M.C. Pant, as Secretary of the Society, in his order dt. 08.01.2004. He also recorded falsely the presence of Sh. Jagroop Sharma, President of Society, in his order dt. 22.01.2004. He is alleged to have passed the order dt. 29.01.2004 for revival of the society by concealing the true facts related to the society and thereafter, accused S.R. Goyal dishonestly forwarded the list of 119 members of the society to the AR (Policy) for onward transmission to DDA for allotment of land to the society.
11. Accused Deen Bandhu Prasad is alleged to have prepared a fictitious election report purportedly with regards to the election of the society stated to have been conducted on 29.02.2004 wherein he showed Jagroop Sharma elected as President, S.K. Paliwal as Vice President and Ch. Lal Singh, Mahesh Chander, M.L. Prashar, Parvati Devi & Savitri Devi Gupta as Managing Committee Members. Investigation has revealed that the said election report was written by accused Ashutosh Pant who also forged the signatures of Ch. Lal Singh on it.
12. Accused P.K. Thirwani is alleged to have prepared a false audit report dt. 03.02.2004 showing a credit balance amount of Rs. 10,000/- as on 31.03.2003 available in the account of the society in Delhi State Cooperative Bank, Darya Ganj, whereas the said account had been closed in the year 1990. It is stated that he did not conduct the audit of the society at its registered office and dishonestly omitted to obtain the signatures of the CBI Case No. 217/2019 7 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) office bearers of the society on his report.
13. On the basis of these conclusions reached by the Investigating Officer upon culmination of investigation, chargesheet was filed in the concerned court. The opinon of GEQD was enclosed with the chargesheet. Sanction for prosecution of accused Public Servants namely Raj Bhushan Chauhan, Ram Nath, Deen Bandhu Gupta and P.K. Thirwani was duly obtained and annexed to the chargesheet. However, since the remaining two accused public servants Narayan Diwakar and S.R. Goyal had already superannuated, sanction for their prosecution in this case was not found mandatory.
Charges against the Accused:-
14. On 09.02.2012, charges were framed against all the seven accused as under:-
(i) U/s 120B r/w sections 420, 468, 471 r/w 468 IPC and Sec. 13 (2) r/w 13(1) (d) of PC Act against all the accused;
(ii) U/s 15 r/w 13(1)(d) against accused Narayan Diwakar;
(iii)U/s 15 r/w 13(1)(d) against accused S.R. Goyal;
(iv)U/s 15 r/w 13(1)(d) against accused R.B. Chauhan;
(v) U/s 468 IPC, u/s 471 r/w 468 IPC and u/s 15 r/w Sec.
13 (1)(d) of P.C. Act against accused Ram Nath;
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(vi) U/s 468 IPC, u/s 471 r/w 468 IPC and u/s 15 r/w Sec. 13 (1)(d) of P.C. Act against accused Deen Bandhu Prasad;
(vii) U/s 468 IPC, u/s 471 r/w 468 IPC and u/s 15 r/w Sec. 13 (1)(d) of P.C. Act against accused P.K. Thirwani;
(viii) U/s 511 r/w 420 IPC and U/s 468 IPC and u/s 471 r/w 468 IPC against accused Ashutosh Pant.
15. All the accused pleaded not guilty to the charges and claimed not guilty. Accordingly, trial of the case was held.
16. Be it noted here that accused S.R. Goyal and Ram Nath expired during the course of trial and hence proceedings qua them stood abated vide orders dt. 28.08.2012 and 28.01.2020 respectively.
Prosecution Evidence:-
17. The prosecution has examined 121 witnesses to prove the charges against the accused who, for the sake of convenience, can be categorized as under:-
(i) Persons who had never become members of the society PW1 Smt. Parvati Devi PW2 Smt. Golesta Joseph PW3 Sh. Jagdish Prasad PW4 Sh. R. Viren Tirkey PW6 Sh. Suresh Chander Jain CBI Case No. 217/2019 9 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) PW7 Sh. Zoobi Amir PW8 Sh. Balwinder Jeet Singh PW9 Sh. Hari Charan Rai PW10 Sh. Nemi Chand Goel PW11 Sh. Nitin Chugh PW12 Smt. Sudha Gupta PW13 Smt Sada Kaur PW14 Smt. Jai Bala Mittal PW15 Sh. Lal Singh PW16 Sh. Shyam Sunder Aggarwal PW55 Sh. Sohail Hashmi PW56 Smt. Sarvensiya Hembrom PW78 Smt Maya Devi PW80 Sh. Rajesh Khanna PW82 Sh. Dalip Kumar PW93 Sh. Jasbinder Kumar PW94 Smt. Uma Bansal PW95 Smt. Santosh Gupta PW96 Smt. Mohini Devi PW106 Sh. Mahesh Chander Pant
(ii) Postmen PW17 Sh. Raj Singh Dabas PW18 Sh. Harlal PW19 Sh. Jai Shri Bhagwan PW20 Sh. Bijender Singh PW21 Sh. Jagdish PW22 Sh. Ashok Kumar CBI Case No. 217/2019 10 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) PW23 Sh. Ramesh Chand PW24 Sh. Rajender Pandit PW25 Sh. Sri Bhagwan PW26 Sh. Bhagwan Singh PW27 Sh. Dhanpat Singh PW28 Sh. Rajender Singh PW29 Sh. Naresh Chand PW30 Sh. Sharad Kumar PW31 Sh. Ram Niwas Kaushik PW32 Sh. Ramji Lal PW33 Sh. Kailash Kumar PW34 Sh. Suraj Bhan PW35 Sh. Jagdish Chander PW36 Sh. Swadesh Kumar PW37 Sh. Parmod Kumar PW38 Sh. Jai Prakash PW39 Sh. Rajinder Kumar PW40 Sh. Ram Prakash . PW41 Sh. Dharam Pal Sharma PW42 Sh. Ratan Lal PW43 Sh. Naresh Kumar PW44 Sh. Jagdish Singh PW45 Sh. Chotey Lal PW46 Sh. Parmod Kumar PW47 Sh. Ratnesswar Dey PW48 Sh. Ashok Gupta PW49 Sh. Balam Singh PW50 Sh. Bir Singh CBI Case No. 217/2019 11 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) PW51 Sh. Chander Prakash PW52 Sh. Maheshwar Shah PW53 Sh. Ram Bhagat PW54 Sh. Awanish Kumar PW55 Sh. Sohail Hashmi PW57 Sh. Girivar Parkash PW58 Sh. Satya Pal Singh PW59 Sh. D.K. Sharma PW60 Sh. Prem Singh PW61 Sh. Subhash Chander PW62 Sh. Babu Lal PW63 Sh. Balbir Singh PW64 Sh. Daya Kishan PW65 Sh. Thakur Lal PW66 Sh. Sher Singh PW67 Sh. Nem Chand PW68 Sh. Murli Ram Sharma PW69 Sh. Jai Kishan PW70 Sh. Dev Sharma PW71 Sh. Laxman Dass PW72 Sh. Nawal Kishore Kapoor PW73 Sh. Hem Raj Sharma PW74 Sh. Hem Chand PW75 Sh. Krishan Kumar PW76 Sh. Om Prakash PW77 Sh. Ved Prakash PW81 Sh. Mahesh Kumar Sharma PW83 Sh. Ram Kumar CBI Case No. 217/2019 12 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) PW84 Sh. Ram Saran PW100 Sh. Surender Singh PW101 Sh. Goverdhan Singh PW105 Sh. Mahesh Kumar PW109 Sh. Ashok Kumar Arora PW116 Sh. Hitesh Chander
(iii) Stamp Vendors PW5 Sh. Parveen Kumar PW54 Sh. Awanish Kumar PW97 Sh. Ravi Robinson
(iv) RCS Officials PW79 Sh. Yogi Raj PW88 Sh. Dharambir Singh PW89 Smt. Asha Batra PW90 Sh. Amar Dass PW98 Sh. Narendra Singh Khatri PW102 Sh. V.K. Bansal PW110 Sh. Pradeep Kumar Kapoor PW111 Sh. Krishan Kumar PW118 Sh. Amardass PW119 Sh. D.S. Verma
(v) DDA Officials PW86 Sh. K.G. Kashyap PW87 Sh. D.K. Mishra PW99 Sh. Uma Shakar Bharadwaj CBI Case No. 217/2019 13 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
(vi) Sanctioning Authorities PW107 Sh. Ramesh Narayanaswami PW112 Dr. Manorma Devi Chauhan PW115 Retr. Comm. Sh. Sartaj Imam
(vii) Witness to taking specimens of accused PW113 Sh. Tek Chand PW114 Sh. Dhanbir Singh PW117 Sh. R.S. Rayat
(viii)GEQD PW108 Sh. Loganathan
(ix) Bank Witness PW85 Sh. Surender Kumar Abrol
(x) Witnesses from CBI PW120 Sh. Rajesh Kumar Prasad PW121 Sh. R.K. Singh
(xi) Other witnesses PW91 Sh. Nanak Chand Gupta PW92 Sh. Anand Parkash Jain PW103 Sh. Ram Mohan PW104 Sh. Naveen Kaushik Statement U/s 313 Cr PC of the accused:-
18. After closure of prosecution evidence, all the accused were CBI Case No. 217/2019 14 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) examined U/s 313 Cr PC. The disputed the entire incriminating evidence put to them and claimed false implication.
Defence Evidence:-
19. Accused Raj Bhushan Chauhan and Ram Nath examined one witness each in their defence who are DW2 and DW1 respectively. The remaining accused chose not to lead any evidence in defence.
Final Arguments:-
20. I have heard the Ld. PP as well as the Ld. Defence Counsels and have perused the entire evidence on record.
Arguments on behalf of the prosecution:-
21. Ld. Public Prosecutor submitted that evidence on record establishes the charges that the accused, in pursuance to a well hatched conspiracy, forged the records including membership list of the defunct housing society Birla Udyog Employees CGHS Ltd and got the same revived in the year 2004 with the object that land is alloted to it by DDA. According to him, the entire membership list approved by the RCS Office contains the names of the persons who were either fictitious as they could not be traced during the entire investigation or who had never taken the membership of the society. In this regard, he relied upon the deposition of Postmen who have been examined as prosecution witnesses.
22. It is argued by him that accused Ram Nath, who was CBI Case No. 217/2019 15 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) deputed to conduct spot verification of the members, gave a patently false report mentioning therein that he visited the residences of several members including Sh. Jagroop Sharma, Smt. Golesta Joseph, Sh. R. Viren Trikey, Smt. Serverensiya Hembrom and Sh. Jit Ram. However, Smt. Golestha Joseph appearing as PW2 has denied having taken membership of the society and Sh. Jagroop Sharma & Sh. Jit Ram are non existent as they could not be traced at the given addresses. He further argued that accused Deen Bandhu, who was assigned the task of conducting elections of the society, gave a false election report wherein Sh. Jagroop Sharma, sh. S.K. Paliwal and Smt. Savitri Devi were shown as having been elected President, Vice President and Member respectively but none of them could be traced at the given address. He pointed out that another member Smt. Parvati Devi has appeared as PW1 and has denied having taken membership of the society.
23. Ld. PP further argued that accused Raj Bhushan and Narayan Diwakar acted in most dishonest manner in accepting the false reports of Ram Nath and Deen Bandhu as well the forged records of the society without making any sincere and honest attempt to trace the original file of the society from the office records, thereby assisted the other accused in carrying forward the object of the conspiracy.
24. According to the Ld. PP, accused Ashutosh Pant was the brain behind the entire conspiracy in pursuance to which the false list of members of the society was prepared. He pointed out that CBI Case No. 217/2019 16 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) the GEQD opinion Ex. PW-108/C confirms the entire records of the society were forged by this accused. He would further argue that accused P.K. Thirwani who was senior auditor in the RCS Office, prepared a false and fictitious audit report of the society whereas he neither visited the registered office of the society nor met the members of its Managing Committee.
25. It is argued by Ld. PP that since all the concerned officers working in the office of Registrar Cooperative Societies, Delhi were part of conspiracy in this case, none of them bothered to check the records/members honestly. He submitted that CBI has proved its case against all the accused beyond reasonable doubt and hence, all of them are liable to be convicted.
Arguments on behalf of the accused:-
26. Ld. Counsel for accused Narayan Diwakar submitted that there is no evidence on record to show his association with other accused or that he had any personal interest in the revival of the society or that he had obtained any kind of monetory or other benefit for doing his official acts in relation to the society. He argued that the examination of the records of the society at micro level is done at the zonal level and at the level of the Registrar, things are seen at the macro level only. It is pointed out by him that there was no adverse noting in this case from the zonal level which, if overlooked, could have drawn any adverse inference against this accused. He further submitted that accused Narayan Diwakar, in his wisdom, had taken precautionary measures also prior to ordering revival of society, by directing the Assistant CBI Case No. 217/2019 17 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) Registrar to conduct random verification of some members of the society and if had been a part of the conspiracy, he would never have passed any such direction. With regards to recording the presence of Jagroop Singh and Mr. Pant in his ordersheets by this accused, it is argued by the Ld. Counsel that he had no personal acquaintance with any of the members or representatives of the society and it may have been the result of misrepresentation by some person or a bonafide mistake in recording the name. He would also submit that since the allegations against this accused are about the abuse of his official position, it was necessary for CBI to obtain sanction for his prosecution u/s 197 Cr. PC and such sanction not having been obtained, the entire trial qua him gets vitiated and he is liable to be acquitted. The Ld. Counsel prayed for the acquittal of this accused.
27. On behalf of accused Raj Bhushan and P.K. Thirwani, who were posted as Dealing Assistant (UDC) and Auditor respectively in the RCS Office at the relevant time, it is submitted by their Counsel that they were lower rung employees in the said office and were merely discharging their respective official duties without having any reason to know or suspect that the documents being produced before them on behalf of the society were forged and fabricated. According to the Ld. Counsel, accused Raj Bhushan can be said to have, at best, not acted as per the Rules framed under the DCS Act which does not attract any criminal liability. He submitted that this accused had conducted only the physical verification of the records of the society as required and not the physical verification of the members of the society. He CBI Case No. 217/2019 18 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) further submitted that accused P.K. Thirwani, in his audit report, had raised various objections and thus he cannot be said to have favoured the society. He argued that it was not mandatory for the auditor to take signatures of the office bearers of the society on the audit report.
28. The Ld. Counsel would further contend that there is no evidence on record to show that these two accused demanded any bribe whatsoever for making false notings and for giving false audit report.
29. Arguing further on behalf of accused Raj Bhushan, the Ld. Counsel pointed out that none of the prosecution witnesses has deposed anything inculpatory against him. He would submit that none of the prosecution witnesses had deposed about any rule/procedure which mandated physical verification of the resignee/freshly enrolled members by the dealing assistant. The Ld. Counsel referred intensely to the testimony of the Investigating Officer (PW121) who has admitted that he did not seize any circular from RCS Office with regards to the verification of records by Dealing Assistant and that nothing incriminating was recovered from this accused. According to the Ld. Counsel, this accused being of lowest rank in the office (LDC), did what he was required to do in terms of his cadre and it was not his duty to personally verify the signatures on documents from each individual member in order to check their genuineness. He also referred to the deposition of PW79, who was posted as Assistant Registrar in the RCS Office and has CBI Case No. 217/2019 19 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) stated that a Dealing Assistant has no instrument to check the correctness of original documents of the society. He assailed the sanction orders Ex. PW-112/A and Ex. PW-107/B as being invalid on the ground that these have been passed mechanically, without application of mind and without following due process of law. According to the Ld. Counsel, perusal of the sanction file Ex. DW-3/1 clearly shows that no documents were sent by the CBI alongwith the request for sanction as no such document is available in the file. It is the contention of the Ld. Counsel that an already prepared sanction order was placed before the sanctioning authority PW112 who simply signed the same without bothering to examine the records of the case. Besides, it is also argued that the prosecution was obliged to obtain separate sanction U/s 197 Cr PC viz-a-viz the offences under Indian Penal Code alleged against these two accused. Hence, it is argued that in the absence of a valid sanction u/s 19 PC Act and a separate sanction U/s 197 Cr. PC, the entire trial qua these two accused got vitiated and they are liable to be acquitted.
30. As regards accused Deen Bandhu also, it was argued by his Ld. Counsel that no witness examined by the prosecution has spoken against him and hence, it is a case of no evidence qua this accused. He pointed out that even the IO (PW121) has deposed in his cross-examination that no prosecution witness has taken the name of this accused. It is his submission that there is no evidence on record, other than the expert opinion Ex. PW-108/C, to show that the document Mark PW-1/B projected as election report was prepared by or signed by this accused and that any CBI Case No. 217/2019 20 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) such election was conducted by this accused. He argued that the expert opinion Ex. PW-108/C is not legally admissible as it was not accompanied by detailed reasons and further, conviction cannot be ordered merely on the basis of opinion of the handwriting expert when it is not corroborated by any other evidence on record. He prayed for acquittal of this accused.
31. Ld. Counsel for accused Ashutosh Pant submitted that except for GEQD Opinion Ex. PW-108/B, there is no incriminating evidence on record against the accused. He pointed out that the witnesses examined to establish the role of this accused in the conspiracy have either turned hostile or did not depose anything inculpatory against him. As regards the expert opinion Ex. PW-108/B, it is argued that it was not initially accompanied by the detailed reasons and the 'Reasons' were placed on record by the expert PW108 during his deposition in this case i.e. about 12 years after he had given the opinion and therefore, same appear to concocted later on to support the false opinion. It is further argued that the reasons given by the expert are based on cumulative examination of all these specimens & questioned writings and it is nowhere mentioned which questioned writing/signature has been compared with which specimen signature. Ld. Counsel further submitted that the said 'reasons' are not in compliance of the law laid down on this aspect, do not inspire any confidence and would not, in any way, assist this court to understand as to what exactly is the basis of his conclusion. According to the Ld. Counsel, the expert opinion deserves to be discarded outrightly. Thus, he prayed for acquittal CBI Case No. 217/2019 21 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) of this accused also.
Court's Discussion:-
32. The case of the prosecution is that all the seven accused had entered into a criminal conspiracy the object of which was to get the defunct society Birla Udyog Employees CGHS Ltd revived on the basis of forged documents so that land is alloted to it by DDA, and in pursuance thereof they cheated the RCS Office by submitted fake/forged documents related to the society on the basis of which it was revived vide order dt. 29.01.2004 passed by accused Narayan Diwakar, the then Registrar Co-operative Societies, New Delhi.
33. It is not in dispute that the society Birla Udyog Employees CGHS Ltd was formed in the year 1971 with 17 promoter members. The society was registered with RCS Office on 09.06.1971 vide Registration No. 47 (GH). Its registered office address was Opp. Swadeshi Store, Birla Mill, Subzi Mandi, Delhi. The society had lateron been put under liquidation vide order dt. 29.09.1986 due to non observance of statutory requirements.
34. Record shows that a communication dt. 07.07.2003 was sent on behalf of the society (Ex. PW-3/A) to the Registrar, Cooperative Societies, New Delhi, praying for cancellation of winding up order, for revival of the society and for approval of its list of 119 members for onward submission to the DDA for allotment of land to the society.
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35. PW-79, who also was posted as Asstt. Registrar in the RCS Office from September, 2000 to September, 2005 has deposed that the above letter Ex. PW-3/A was received in the office vide diary no. 864/AR/W dt. 17.07.2003 and he had marked the same to dealing assistant Mr. Chauhan. He identified his initial at Point A on the same.
36. The very first note recorded in the noting file Ex. PW-89/A related to the society in the RCS Office is about that above referred communication received from the society. The note Ex. PW-79/A has been prepared by accused Raj Bhushan, the dealing assistant wherein he states that the main file of the society is not traceable in the office and proposed for issuance of a circular in this regard and further, in the meantime, for initiation of inspection u/s 54 of DCS Act to verify the present status/factual position of the society. The note was approved by accused S.R. Goyal (A/R West) vide his endorsement at Point B and thereafter was approved by the Registrar i.e. accused Narayan Diwakar also vide his endorsement & signature at Point C on 28.11.2003. PW79 has identified the signature of accused Raj Bhushan at Point A on the said note whereas PW98 has identified handwriting & signature of accused S.R. Goyal at Point B (Q2) as well as that of accused Narayan Diwakar at Point C.
37. Perusal of handwritten endorsements of accused S.R. Goyal dt. 28.11.2003 at Point B and C on Page No. 2/N in the said noting file reveal that the circular as proposed in previous note was issued and at the same time accused Ram Nath CBI Case No. 217/2019 23 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) (Inspector Grade-II) was deputed to conduct enquiry U/s 54 of DCS Act.
38. In the subsequent note dt. 09.12.2003 (Ex. PW-98/B) prepared by accused Raj Bhushan, he has stated that no reply has been received from any corner to the circular dt. 28.11.2003 and it is presumed that the file is not available. He has further mentioned that since the Registrar had already accorded approval on 28.11.2003, society may be requested to furnish the original records alongwith copy of Registration Certificate, Bye Laws etc. for enabling the office to reconstruct the file. The note is duly approved by the A/R (West) accused S.R. Goyal on the same day vide his endorsement at Point B. PW98 has identified the handwriting and signature of Raj Bhushan at Point A (Q-8) and that of S.R. Goyal at Point B (Q-9).
39. Perusal of the subsequent detailed typed note dt. 15.12.2003 (Ex. PW-98/C), which also is prepared by accused Raj Bhushan, reveals that accused Ram Nath (Inspecting Officer) had submitted his report mentioning therein as under:-
"1. That the Birla Udyog Employees Coop. G/H Society with registration No. 47 (GH) on 09.06.71 is functioning at WZ-3352, Mohindra Park, Rani Bagh, Delhi-34.
2. That Inspecting Officer met with Sh. Jagroop Sharma, President of the Society i.e. WZ-3352, Mohindra Park, Rani Bagh, Delhi-34.
3. That the president informed the Inspecting Officer that no liquidation order has been CBI Case No. 217/2019 24 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) received by the society from RCS Officer, it is only came to know when he visited at RCS to know the status of the society.
4. Inspecting Officer informed that freeze strength of the Society is of 119 members and membership register is complete in all respect.
5. The audit of the society is pending after 1.7.77 and the copy unaudited accounts upto 31.03.2003 is ready.
6. The proceeding register is also complete and the last Managing Committee meeting was held on 21.11.2003.
7. As per records of the society the last election/AGM was held on 29.06.2003 as per DCS rules.
8. All the records of the society are found under the safe custody of Sh. Jagroop Sharma, President of the Society."
40. It is further stated in the said note Ex. PW-98/C that in response to the office letter dt. 09.12.2003, the President of the society has submitted following documents:-
1. Photocopy of the Bye-Laws of the Society.
2. Photocopy of the Registration Certificate.
3. Photocopy of the minutes of the first General Body Meeting.
4. List of members in 14 columns duly signed by the President, Vice President and Secretary of the Society.
5. Copy of un-audited accounts for the period upto 2003.
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41. The accused Raj Bhushan has further, in this note, proposed to take on record above documents to re-constitute the file and to submit the file to the Registrar for consideration of the request of revival of the society. The note is duly approved by the A/R (West) S.R. Goyal on 16.12.2003 vide his endorsement at Point B and marked the file to the Reader to the Registrar. PW98 has identified the writing & signature of accused Raj Bhushan at Point A (Q-11) and that of accused S.R. Goyal at Point B (Q-12) on the said note.
42. PW98 has identified his signature on the note dt. 16.12.2003 (Ex. PW-98/D) wherein it is stated that as per approval of the Registrar, file has been constructed by the zone on the basis of the original records/documents submitted/shown to the concerned Assistant Registrar by the Secretary of the society and on the inspection U/s 54 DCS Act conducted by Ram Nath (Inspector Grade-II). After recording these facts, PW98 has proposed issuance of notice u/s 63 (3) DCS Act to President/Secretary of the society for initial hearing on 23.12.2003 in the Court of Registrar. He identified the signature of the Registrar Narayan Diwakar at Point B on the same.
43. In the order passed by the Registrar Narayan Diwakar on 23.12.2003, he has recorded the presence of Sh. Jagroop Sharma, President of Society. He has then directed to send the file to concerned zone for verification of records/membership and also to ascertain the audit/election position of the society. He also directed the concerned AR to do the physical verification of the CBI Case No. 217/2019 26 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) members at random and to send the report before the next date of hearing which was fixed as 08.01.2004.
44. From the endorsement dt. 31.12.2003 of accused S.R. Goyal (A/R) at Point D below the above order of the Registrar, it appears that again accused Ram Nath was appointed as Inspection Officer to conduct verification of members of the society at random.
45. In the subsequent detailed typed note dated 06.01.2004 prepared by accused Raj Bhushan Ex. PW-98/P, he has given the history of the society, grounds on which its revival was sought, the inspection as well as random physical verification of members conducted by Ram Nath, details of resignations/fresh enrollments in society prior to 30.06.1986, present strength of the society, details of election of the Managing Committee held on 29.06.2003 etc. and proposed for withdrawal of the liquidation order dt. 29.09.1986, revival of the society and approval of its final list of 119 members.
46. Thereafter, hearing of the case has taken place before the Registrar, Narayan Diwakar on 08.01.2004 and 22.01.2004. He has racorded the presence of Sh. M.C. Pant, Secretary of the Society on 08.01.2004 and that of Sh. Jagroop Sharma, President of the society on 22.01.2004. Upon conducting hearing of the case on these two dates, he passed the order dt. 29.01.2004, thereby cancelling the winding up order dt. 29.09.1986 and reviving it with immediate effect.
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47. It is in this manner that the request for the revival of the society was processed in the RCS Office.
48. The updated list of members of the society, which was submitted for approval alongwith the request for revival of the society, had the names of 119 members. The IO (PW121) had collected a copy of this list from DDA and the same is Ex. PW- 121/F. The complete list has been reproduced in the note dt. 06.01.2004 (Ex. PW-98/P) on page nos. 18/N, 19/N, 20/N and 21/N. It shows the names of Parwati Devi (Membership No.
152), Golestha Joseph (M.No. 90), Viren Tirkey (M.No. 102), Suresh Chander Jain (M. No. 128), Hari Charan Rai (M. No.
110), Nemi Chand (M. No. 126), Sudha Gupta (M. No. 132), Jai Bala Mittal (M.No. 125), Lal Singh (M.No. 147), Shyam Sunder Aggarwal (M. No. 144), Smt. Sarvensiya Hembrom (M.No. 116), Rajesh Khanna (M.No.121), Dalip Kumar (M.No. 139), Jasbinder Kumar (M.No. 142), Uma Bansal (M.No. 151), Mohini Devi (M.No. 153) and Mahesh Chander Pant (M.No. 79) at serial nos. 110, 48, 60, 86, 68, 84, 90, 83, 105, 102, 74, 79, 97, 100, 109, 111 & 37 respectively. They have been examined by the prosecution as PW1, PW2, PW4, PW6, PW9, PW10, PW12, PW14, PW15, PW16, PW56, PW80, PW82, PW93, PW94, PW96 and PW106 respectively. All of them have denied having become members of Birla Udyog Employees CGHS Ltd. They have also denied their signatures on the documents in their respective names related to the society e.g. membership application forms, affidavits, proceeding register etc. CBI Case No. 217/2019 28 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd)
49. Further, the investigating officer PW121 has deposed that he had dispatched letters through speed post to 118 members whose names were mentioned in the list Ex. PW-121/F but all of those were received back by him unserved. He proved those speed post envelopes as Ex. PW-121/G (Colly.). The postmen to whom these speed post envelopes were entrusted for delivery upon the addresses, have been examined as PW17 to PW53, PW57 to PW77, PW81, PW83, PW84, PW100, PW101, PW105, PW109 & PW116 (64 in total) and all of them have proved their respective endorsements on these envelopes which indicates that either the addressees had never resided at these addresses at any point of time or the address was non-existent.
50. Even the address of the office of the society as mentioned in the revival request letter Ex. PW-3/A and other documents submitted in the RCS office proved to be fictitious. The address is shown as WZ-3352, Mahindra Park, Rani Bagh, Delhi-110034. The Letter Ex. PW-3/A is signed by President of the Society. The signature reads as "J. Sharma". Presumably, it is the sign of Jagroop Sharma whose presence is marked by the Registrar in his orders dt. 23.12.2003 and 22.01.2004 as President of the society. PW3 and PW13 are related to the above address WZ-3352. PW3 is the owner of House No. WZ-3352A, Mahindra Park, Rani Bagh, Delhi and living there since 1970. He has deposed that no person by name Jagroop Sharma ever resided in this house and neither did any society ever function from this address. To the same effect is the deposition of PW13 who has been residing in WZ-3352, Mahindra Park, Rani Bagh, Delhi for the last 40-45 CBI Case No. 217/2019 29 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) years. The person Jagroop Sharma, who has been representing the society as its President, could not be traced during the investigation of this case which indicates that someone interested in the revival of the society was impersonating as Jagroop Sharma by concealing his real identity.
51. It is, thus, manifest from the evidence on record that almost the entire membership list of the society having the names of 119 members coupled with the membership register, proceeding registers, membership application forms, affidavits of members etc had been forged in the year 2003 in a bid to seek revival of the society on the basis of these forged documents.
52. The crucial question which now arises for consideration is whether the forgery in the records of the society was done in pursuance to any conspiracy as alleged by the prosecution and if so who were the conspirators and who is the actual imposter?
53. Sections 120 A and 120 B of the Indian Penal Code make conspiracy a substantive offence and renders the mere agreement to commit an offence punishable. The elements of a criminal conspiracy have been stated to be :-
(a) an object to be accomplished,
(b) a plan or a scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by CBI Case No. 217/2019 30 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
54. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means. The essential ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evident or by circumstantial evidence or by both.
55. Like most crimes, conspiracy also requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the acts, and the intention to achieve the unlawful object of that agreement constitutes the required mental state. To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy. A major problem arises in connection with the requirement of an agreement in determining the scope of a conspiracy - who are the parties and what are their objectives. This determination is critical, since it defines the potential liability of each accused.
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56. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give arise to a conclusive and irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
[See State Vs. Nalini (1999) 5 SCC 253, Yakub Razak Menon Vs. State of Maharashtra (2013) 13 SCC 1, Isher Singh Vs. State of A.P. (2004) 11 SCC 585, State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600, State of Karnataka Vs. J. Jayalalitha (2017) 6 SCC 263, Firozuddin Basheeruddin Vs. State of Kerala (2001) 7 SCC 596].
57. So far as charge of conspiracy framed against the accused herein is concerned, reference to Section 10 of Indian Evidence Act is necessary. It may be noted here that very nature of the offence of conspiracy i.e. an agreement to do or cause to be done an illegal act, indicates that it would not be entertained at a public CBI Case No. 217/2019 32 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) place or on a high pedestal. Such agreement are always formed in privacy and away from the gaze of any other person. Therefore, it has always been found difficult together direct evidence to prove a conspiracy. Considering this difficulty, Section 10 of the Indian Evidence Act was enacted which reads as under :-
"10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
58. The implications and ramifications of the Section 10 of the Indian Evidence Act have been discussed in detail by the Supreme Court in Kehar Singh & Ors. Vs State (Delhi Administration) 1988 (3) SCC 609. It has been held that the section can be analyzed as follows :
(i) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of the conspiracy ;
(ii) If the said condition is fulfilled, anything said to be done or written by any one of them with regards to their common intention will be evidence against the other ;
(iii) Anything said, done or written by him should have CBI Case No. 217/2019 33 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) been said, done or written by him after the intention was formed by any one of them ;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ;
(v) It can only be used against co-conspiractor and not in his favour.
59. It has also been held by the Supreme Court in Nazir Khan Vs. State of Delhi (2003) 8 SCC 461 that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It has been further held that the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Reiterating that it is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, the Supreme Court observed that all this is necessarily a matter of inference. The Hon'ble Judges also referred to the observations of British Judge Coleridge J. in R.V. Murphy (1837) 173 ER 502 which I find pertinent to reproduce CBI Case No. 217/2019 34 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) herein :
"........ I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'had they this common design, and did they pursue it by these common means - the design being unlawful."
60. As per the GEQD opinion Ex. PW-108/C and Ex. PW- 108/F, the signature in the name of Ch. Lal Singh (Treasurer) on the documents submitted in RCS Office on behalf of the society have been appended by accused Ashutosh Pant. These expert opinions also reveal that signatures of most of the members of the society have been forged by this accused and that varioius writing/signatures in the membership register, proceedings register etc are also in his hand. So, the accused Ashutosh Pant appears to be the main imposter, who has forged almost the entire records of the society, thus one of the conspirators.
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61. It has already been noted hereinabove that the letter Ex. PW-3/A was put up by accused Raj Bhushan vide his note dt. 18.11.2003 (Ex. PW79/A) for the first time before the AR (West) accused S.R. Goyal. Since the main file of the society was not traceable in the office, a circular was purportedly issued to all zones to trace the file. On 09.12.2003, accused Raj Bhushan records in the note Ex. PW-98/B that no reply has been received from any corner and it is presumed that the file is not traceable. As proposed by him, a letter dt. 09.12.2003 is sent to the society to furnish/provide the original records for enabling the office to reconstruct the file. Accordingly, the copies of the documents submitted by the President of the society in response to above letter dt. 09.12.2003 were taken on record and the file was reconstructed. Thereafter, the file was sent to the Registrar for proceeding further in the matter.
62. 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 a 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 17 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 CBI Case No. 217/2019 36 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) society i.e. J. Sharma as well as the other Managing Committee Members.
63. At the cost of repetition, it is to be noted herein again that the society was being sought to be revived after about 17 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 would have been 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. It is evident from the fact that the circular dated 06.10.2003 stated to have been issued to all the branches/zones to trace the original file of the society has not 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.
64. 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 CBI Case No. 217/2019 37 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) 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 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 17 years, a few more days or months would not have made any difference at all. The conduct of these officials/officers who dealt with the revival application of the society raises a well founded suspicion that the file of the society may have been deliberately concealed and thrown away so as to make out a case for its misplacement/loss which would make the process of revival of the society easier on the basis of fictitious/forged documents.
65. Accused S.R. Goyal, vide his directions issued on 28.11.2003, nominated accused Ram Nath (Inspector Grade-II) for conducting enquiry u/s 54 of the DCS Act. Inspector Ram Nath, in his report dt. 12.12.2003, has mentioned that he visited the office of the society at WZ-3352, Mahindra Park, Rani Bagh, Delhi-34 and there he met Sh. Jagroop Sharma, the President of the society. He has given a patently false report. The testimony of PW3 and PW13 clearly reveals that neither was any person by name Jagroop Sharma residing at the above address nor was the office of any society at the said address. It is manifest the Inspector Ram Nath did not actually visit or even try to find out the office of the society or its office bearers and gave a blatantly CBI Case No. 217/2019 38 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) false report in order to aid the other conspirators to achieve the object of the conspiracy. In his report, he has referred to the election held by the society on 29.06.2003, wherein following office bearers had been purportedly elected:
1. Jagroop Sharma - President
2. Sushil Kumar Paliwal - Vice President
3. Mahesh Chander - Secretary
4. Ch. Lal Singh - Treasurer
5. Murari Lal Parashar - Member
6. Savitri Devi Gupta - Women Member
7. Parvati Devi - Women Member
66. Had he conducted the actual & genuine inspection and had he tried to meet the office bearers of the society, he would have came to know that no such election had been conducted and election records have been forged. As already noted hereinabove, no person by name Jagroop Sharma could be traced during the investigation of the case. Parvati Devi, Ch. Lal Singh and Mahesh Chandra appearing as PW1, PW15 and PW106 respectively have denied having been members or office bearers of the society at any point of time. The conduct of Inspector Ram Nath clearly indicates that he was acting in collusion with other conspirators and was playing well the role assigned to him in the conspiracy.
67. In pursuance to the directions issued by the Registrar Narayan Diwakar on 23.12.2003, accused Ram Nath was again appointed Inspection Officer to conduct random/physical CBI Case No. 217/2019 39 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) verification of the members of the society. This time he reported that he visited the residences of Jagroop Sharma, Golestha Joseph, R. Viren Tirkey, Smt. Serverensiya Hemborm and Jit Ram who confirmed that they are the members of the Society Birla Udyog Employees CGHS Ltd and also gave him the copies of their respective residence proofs. Golestha Joseph, R.Viren Tirkey and Smt. Serverensiya Hemborm have been examined as PW2, PW4 and PW56 respectively and all of them denied that they had taken the membership of the society. They denied the signatures in their name on all the documents of the society.
Much has already been stated about Jagroop Sharma. Hence, the evidence on record shows that no actual physical verification of the members of the society was conducted by Ram Nath this time also and he gave a false report in order to conceal the forgeries done in the records of the society, he himself being a conspirator.
68. It is mainly on the basis of the above noted two false reports submitted by accused Ram Nath, that the forgery in the records of the society could not be detected and the society came to be revived. However, no finding of guilt can be returned against him as he has already expired. Similar can be said against accsued S.R. Goyal also. He too appears to have been acting in collusion with other conspirators but there is no use in discussing in detail the role played by him as he has already expired and there was nobody to defend him.
69. Coming to the role of accused Deen Bandhu Prasad. He was a Grade IV Employee in the RCS Office. While directing CBI Case No. 217/2019 40 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) the revival of the society vide order dt. 29.01.2004, the Registrar Narayan Diwakar appointed him as Election Officer to conduct the election of the Managing Committee of the Society within two months of that order. In his report dt. 04.03.2004 (Ex. PW- 89/K), he had stated that election to the one post of President, one post of Vice President and three posts of MC members was held on 29.02.2004 at the office of the Registrar Co-operative Societies, Parliament Street, New Delhi and following candidates were selected:-
1. Sh. Jagroop Sharma - President
2. Sh. Sushil Kumar Paliwal- Vice President
3. Ch. Lal Singh - Member
4. Sh. Mahesh Chandra - Member
5. Sh. Murari Lal Parashar - Member
6. Smt. Parvati Devi - Member
7. Smt. Savitri Devi - Member
70. The names of these office bearers of the society stated to have been elected in the election dt. 29.02.2004 are identical to the names of the office bearers shown falsely to have been elected in the election dt. 29.06.2003 as reported by Inspector Ram Nath and discussed in Paragraph No. 65 hereinabove. The only distinction is that in election dt. 29.06.2003, Mahesh Chandra and Ch. Lal Singh were shown to have been elected as Secretary & Treasurer respectively whereas in the election dt. 29.02.2004, both of them are shown to have elected as Managing Committee Members. The deposition of Parvati Devi (PW1), Ch. Lal Singh (PW15) and Mahesh Chandra (PW106) has alredy CBI Case No. 217/2019 41 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) been referred to hereinabove. They have testified that they were never members of the society in question. They have denied having attended any such election proceedings and also denied their signatures on these election proceedings Mark PW-1/B. At the cost of repetition, it is again noted here that Jagroop Sharma was a fictitious person as no person by this name could be traced during the investigation of this case. Further, as the GEQD opinon Ex. PW-108/B, the minutes of these elections proceedings Mark PW-1/B are in the handwriting of accused Ashutosh Pant and he has also appended the signature in the name of Ch. Lal Singh at Point Q-44 on the same.
71. Hence, it is evident from the evidence on record that no actual or genuine election was conducted by accused Deen Bandhu and he has given a totally false report. His conduct undoubtedly indicates that he was a member of the conspiracy and was acting towards the fulfillment of the object of the conspiracy. Had he proceeded to conduct a fair and genuine election, he would have come to know that the entire membership list of the society is fake and its records have been forged. Being a Conspirator, he submitted the false election proceedings prepared by accused Ashutosh Pant alongwith his report Ex. PW-89/K in order to conceal the forgery and to ensure that the object of the conspiracy is achieved.
72. The arguments of the Ld. Counsel for accused Deen Bandhu that there is no evidence on record to show that he has submitted the election report Ex. PW-89/K, is devoid of any CBI Case No. 217/2019 42 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) merit. PW98 has deposed that the report Ex. PW-89/K as well as the list of elected Managing Committee Members Ex. PW-15/C were typed by him and these bear the signatures of Election Officer Deen Bandhu Prasad. He further deposed that the documents enclosed with the said report were provided to him by Deen Bandhu Prasad. He has not been cross-examined at all on behalf of accused Deen Bandhu. Thus, it proved beyond reasonable doubt that the said false election report Ex. PW-89/K was submitted by the accused. Prosecution has succeeded in proving charges against him and he is liable to be convicted.
73. This court does not find any clinching evidence depicting the role of accused Narayan Diwakar and Raj Bhushan in the conspiracy. Accused Raj Bhushan was the Dealing Assistant and had been acting under the authority & directions of his senior officer to whom he was subordinate. The evidence on record does not indicate that he had himself given any false information in notes prepared by him. Though it is true that some of the notes prepared by him contained false factual statements but their genesis was in the false reports submitted by accused Ram Nath. He deserves to be given benefit of doubt.
74. Accused Narayan Diwakar was the Registrar, Co-operative Societies, New Delhi. It does not appear that he was involved in the reconstruction of the file of the society in the RCS Office. The significant note in this regard in the noting file i.e. note dt. 09.12.2003 Ex. PW-98/B was not put up before him. Perusal of this note shows that the file was reconstructed under the CBI Case No. 217/2019 43 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) directions of the then AR (West) S.R. Goyal and thereafter the reconstructed file was put up before the Registrar Narayan Diwakar on 16.12.2003. Further, when he conducted first hearing of the case on 23.12.2003, he directed that the file be sent to concerned zone for verification of records/membership and also directed the concerned AR to conduct random physical verification of the members of the society. During the subsequent hearing on 08.01.2004, the concerned A/R informed him that verification of the records as well as random checking has been done. Thus, it is manifest that he too was mislead by the false reports of accused Ram Nath and the false representation of the AR that records of the society have been verified. He had clearly done what was required of him under these circumstances. Had he been a conspirator, he would never have directed verification of the records of the society and random checking of its members. Even, at the time of revival of the society vide order dt. 29.01.2004, he appointed accused Deen Bandhu Prasad as Election Officer to conduct the elections of the society. The conduct of this accused which is manifest from his above noted directions/order does not show in any manner that he was aware about the forgery of the records of the society or about the conspiracy. He appears to have acted bonafidely in discharge of his public duties without any criminal intent. Hence, charges against him must fail.
75. The discussion now turns to the role of accused Ashutosh Pant. Admittedly, he had not taken the membership of the society. However, as per the opinion of GEQD, he has not only CBI Case No. 217/2019 44 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) prepared several fake documents of the society but also has forged the signatures of several members/office bearers of the society. He appears to be the main conspirator as well as the imposter who has committed the forgery in the records of the society. It was submitted by his Ld. Counsel that the evidence against him is shaky and untrustworthy and hence, he can't be held guilty. He argued that PW113 and PW114 were the stock witnesses of CBI and on the basis of their testimony alone it can't be said that this accused has given the specimens S-155 to S-207, S-208 to S-231 and S-233 to S-355. Further, it is argued that the opinion of GEQD also can't be relied upon as it is not supported by detailed reasons and other necessary particulars. It is also argued that since there is no other corroborative evidence on record against this accused, he can't be convicted on the basis of expert opinion alone which is very weak in nature.
76. Law relating to the evidentiary value of expert opinion is very well settled. On this aspect, it is profitable to refer to the following observations of the Hon'ble Supreme Court in S. Gopal Reddy Vs. State of A.P. (1996) 4 SCC 596:-
"28. Thus the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering "conclusive" proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, while dealing with the evidence of a handwriting expert, this Court opined:
CBI Case No. 217/2019 45 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) '7....... we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa that expire evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is CBI Case No. 217/2019 46 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) corroborated by other evidence, direct or circumstantial."
77. Thus, it is fairly settled that before acting upon the opinion of handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial. Following observations of the Supreme Court in Murari Lal vs. State of M.P. (1980) 1 SCC 704 in this regard also need to be kept in mind:-
"6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact.... so, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard-and-fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
78. In view of the dictum of Murari Lal (supra), the opinion of handwriting expert may be relied upon to convict an accused if it is supported by detailed and convincing reason. In other words, CBI Case No. 217/2019 47 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) the opinion of handwriting expert must be a reasoned one in order to pass the test of reliability and credibility. The reasons may be contained in the opinion itself or may be prepared separately but these must be prepared simultaneously alongwith the opinion. The prosecution must also prove that the specimen of the accused, on the examination of which the expert opinion has been rendered, were given by him voluntarily and in presence of an independent witness.
79. In the instant case, the specimens S-155 to S-207, S-208 to S-231 and S-233 to S-355 are stated to be the specimen signatures/writing of accused Ashutosh Pant. PW113 and PW114 are stated to be the independent witnesses in whose presence he had given these specimens. PW113 has deposed that he was working as Sr. Assistant in the SBI, Local Head Office, New Delhi and in the year 2006, he was called by CBI for the purpose of remaining witness. He further testified that specimen signatures/handwriting S-155 to S-207 (Ex. PW-113/G) and S- 233 to S-355 (Ex. PW-113/H) of accused Ashutosh Pant were taken by CBI Officials in his presence. He identified his signatures at Point A on each page of these sheets. He also stated that this person had given his specimen voluntarily. Nothing adverse has come out in his cross-examination conducted by accused Ashutosh Pant as well by any other accused. There is nothing in his cross-examination to suggest that he was a stock witness or that his deposition is not trustworthy.
80. According to PW114, he was working as Postman in the CBI Case No. 217/2019 48 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) Posts & Telegraph Department, Govt. of India and one day in the year 2006 he had visited CBI office on the directions of the Postmaster where he met Inspector R.K. Singh. He deposed that specimen signatures of a person were taken in the CBI office in his presence on that day. He also testified that the specimen signatures/handwriting S-208 to S-231 (Ex. PW-114/A) of accused Ashutosh Pant were taken by CBI Officials in his presence and identified his signatures at Point A on each sheet. He further deposed that the person had given the specimens voluntarily. There is nothing in the cross-examination of this witness also to suggest that he is a planted or stock witness or that his deposition is not trustworthy.
81. It is proved beyond any doubt from the testimony of PW113 and PW114 that the specimens Ex. PW-113/G, Ex. PW- 113/H and Ex. PW-114/A were given by accused Ashutosh Pant in presence of these two independent witnesses voluntarily.
82. Upon examination and comparison of these specimens of accused Ashutosh Pant with the disputed documents related to the society, the GEQD (PW108) has given his opinion Ex. PW- 108/B. Perusal of this expert opinion reveals that accused Ashutosh Pant has forged the signature of various members namely Ashok Kumar Verma, Ch. Lal Singh, Nemi Chand, Ajay Kumar, Kailash Singh, Ram Vilas Mahto, S.M. Mehdi, Anandan, Bir Singh Bisht, Baldev Singh, Bazari Lal, G.S. Bhullar, G.S. Khurana and G.P. Vazirani on the affidavits in their respective names which have purportedly been prepared in the year 2003 CBI Case No. 217/2019 49 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) and which were submitted in the RCS Office to facilitate renewal of the society. He has also forged the signature of Ch. Lal Singh, as Secretary of the Society, on all the documents such as list of members, balance sheets, cash in hand certificates etc., copies of which were submitted in the RCS Office as required. The expert opinion further reveals that this accused has also forged the minutes of Special General Body Meeting dt. 10.09.1979 (Ex. PW-15/G), minutes of General Body Meeting of the society dt. 29.06.2003 (Ex. PW-15/H) and minutes of election meeeting dt. 29.01.2004 (Mark PW-1/B). Copies of these minutes also have been submitted in the RCS Office to support the request for renewal of the society by projecting falsely that the membership of the society is genuine and it is functioning properly.
83. The opinion of an expert, in order to pass the test of credibility and reliability must be "reasoned " one. "Reasons for Opinion" may be contained in the opinion itself or may be prepared separately by the expert. But these must be prepared simultaneously alongwith the opinion and both the opinion as well as the "reasons" must be sent together to the investigating agency. In the case at hand, the reasons Ex. PW-108/D had not been sent to CBI alongwith the opinion Ex. PW-108/B. These "reasons" were produced in original by PW108 at the time of his deposition in the court. In this regard he has deposed that he had prepared "reasons for opinion" separately but the same were not sent to CBI alongwith the opinion and had been retained in their office. Accordingly, he had brought the original "reasons" with him to the court when he appeared to depose in this case. On this CBI Case No. 217/2019 50 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) aspect, only one question was asked to him in his cross- examination that the reasons are not based on proper comparison in respect of all the models of signatures, handwritings and numerals, which he denied. Hence, there is nothing in the deposition of this expert witness PW108 to suggest that he had not prepared the reasons Ex. PW-108/D simultaneously alongwith the opinion Ex. PW-108/B. It appears that the CBI Officials never asked this expert to furnish reasons for his opinion and hence the same, even though duly prepared by him alongwith the opinion, remained in the office of GEQD.
84. PW108 has deposed that the documents related to this case, after receipt in their office, were at first assigned to Sh. Narender Kumar (AGEQD) who examined those scientifically as per the standard operating procedure available in the office of GEQD. He further deposed that thereafter the case was assigned to him for independent examination & opinion. Accordingly, he carried out scientific examination of the documents as per the SOP and he concurred with the findings/opinion of Sh. Narender Kumar and signed the joint report/opinion Ex. PW-108/B. He identified the signatures of Sh. Narender Kumar at Point B on each page of the opinion.
85. Thus, the documents of this case were examined by not only one but two experts independently of each other and both have arrived at similar conclusion. Accordingly, both the experts have signed the joint opinion Ex. PW-108/B, which is duly supported by the detailed "reasons" Ex. PW-108/D. Nothing CBI Case No. 217/2019 51 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) adverse has been elicited in the cross-examination of PW108. Hence, the expert opinion in this case Ex. PW-108/B proves to be credible, reliable and inspiring confidence. It deserves to be acted upon even though it is not corroborated by any other evidence on record.
86. The evidence on record, thus, manifests that accused Ashutosh Pant was the imposter who fabricated/forged most of the records of the society. He appears to be the main conspirator and also roped in some officials posted in the RCS Office like accused Deen Bandhu Prasad etc. to ensure that the object of the conspiracy i.e. to get the society revived on the strength of forged documents, is achieved without difficulty. The charges against him stand duly proved and he is liable to be convicted.
87. As regard the accused P.K. Thirwani, it is alleged that he has prepared a false audit report dt. 03.02.2004 showing balance amount of Rs. 10,000/- as on 31.03.2003 available in the account of the society at DSC Bank, Darya Ganj, Delhi, whereas the said account had been closed in the year 1990. Thus, he is stated to have abused his official position by aiding the other accused in achieving the object of the conspiracy.
88. Ld. PP has miserably failed to point out from the record any such order/direction by which this accused was appointed auditor to conduct the audit of the society. So, it is not clear from the record as to who appointed him, when and what exactly was he asked to do. Be that as it may, he appears to have conduct CBI Case No. 217/2019 52 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) audit and prepared his report on the basis of the documents placed before him on behalf of the society. It is to be noted that by the time he started audit of the society, it had already been revived vide order dt. 29.01.2004 of the Registrar. Therefore, it was logical for him to carry the impression that the records of the society are genuine as otherwise, the society would not have been revived. The statement of the bank account of the society placed before him showed the credit balance of Rs. 10,000/- as on 31.03.2003 which he too reflected in his report. It does not appear to be his responsibility to check the genuineness of the statement of account from the concerned Bank Branch. He had to go by the records of the society produced before him which he did. Further, Ld. PP had not brought any such rule/direction/order etc. to the knowledge of the court which made it mandatory for auditor P.K. Thirwani to take signatures of the office bearers of the society on his report. It is also to be noted here that he had raised various objections in his report which the society was required to remove/comply with.
89. Thus, there is nothing on record to show that he had any criminal intent or that he had colluded with other conspirators or that he intended to cause any undue advantage to the society. He appears to have acted bonafidely in due discharge of his responsibilities. His conduct does not smack of any malafides. He can't be held guilty as a Conspirator or for any other offence independently.
90. On behalf of accused Deen Bandhu Prasad it was argued CBI Case No. 217/2019 53 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) that since there is no evidence on record that he had demanded or accepted bribe from any person whatsoever, he can't be held guilty of the offence u/s 13 (1) (d) of P.C. Act merely for the reason that his acts may have benefitted some other accused.
91. Here, I find it appropriate to reproduce Section 7 and 13 (1) (d) of the PC Act, 1988:-
Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, -
(d) if he, - CBI Case No. 217/2019 54 of 62
CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) ...................................................
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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
92. Perusal of the Section 13 (1) (d), reproduced herein above shows that the essential ingredients of the offence of criminal misconduct relating to the government officials are :-
(i) that the accused is a public servant;
(ii) he has obtained any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by abusing his position as public servants (sub-section (1) (d) (i) (ii) of Section 13);
(iii) he has obtained such valuable thing or pecuniary advantage for any other person without any public interest, while holding office as a public servant (sub-
section (1) (d) (i) (iii) of Section 13);
93. Thus, in order to attract Section 13 (1) (d) (ii), the CBI Case No. 217/2019 55 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) prosecution has to establish that the public officer has indulged in corrupt or illegal means or has abused his position as such officer to obtain any valuable thing or pecuniary benefit for himself or any other person. However, for attracting Section 13 (1) (d) (iii), the prosecution has to prove merely that the public officer obtained a valuable thing or pecuniary benefit to any person without any public interest. Use of corrupt or illegal means or abuse of official position or obtaining pecuniary advantage for himself is immaterial for applicability of sub clause (iii).
94. Analyzing the aforesaid sub clause (iii), the Hon'ble High Court in case of Runu Ghosh Vs. CBI, Criminal Appeal No. 482/2002 decided on 21.12.2011 has observed:-
"A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advance or a valuable thing - without public interest."
95. Upon the detailed analysis of the said provision of law, CBI Case No. 217/2019 56 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) Hon'ble High Court, in the aforesaid judgement, came to the conclusion that mens rea is inessential to convict the accused for the offence punishable under Section 13 (1) (d) (iii) of PC Act, 1988. In this regard, it has been observed in Para No. 73 of the judgement is as under :-
Para No. 73. "Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court-the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
96. Explaining the concept of "public interest", there Lordship referred to the judgement of Supreme Court in LIC of India Vs. CBI Case No. 217/2019 57 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) Consumer Education & Research Centre, (1995) 5 SCC 482 and reproduced following paragraph of the said judgement:-
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined toe act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good an in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgement, has examined the concept, in NOIDA Entrepreneurs Associate."
97. Their Lordships also referred to another judgement of the Supreme Court reported as NOIDA Entrepreneurs Association Vs. NOIDA (2011) 6 SCC 508 wherein it has been held in this regard as under : -
The State or the public authority which holds the property for the public or which has been assigned the duty of grant largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by Crl. A. Nos. 482/2002, 509/2002 and 536/2002 Page 54 virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxx xxxxxxxxx Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in CBI Case No. 217/2019 58 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
98. Hence, even if the prosecution is unable to prove mens rea on the part of the accused public servants or the fact that they had received any pecuniary gain for themselves for their acts, the fate of the accused would be sealed if the prosecution succeeds in establishing that the public servant has obtained any pecuniary advantage or valuable thing to another without public interest. In other words, if the evidence on record shows that the acts of the concerned public servant are absolutely unfair, unreasonable, unjust, inequitable and not for the purpose of public good, he shall be considered to have acted without public interest.
99. It is true that in this case, CBI has not produced any evidence to show that accused Deen Bandhu Prasad had received any valuable thing or pecuniary advantage for himself. However, it is manifest beyond doubt that he had been acting in collusion with the other conspirators who were interested in the revival of the society on the basis of fictitious documents and was assisting them in every possible way to ensure that the society gets revived on the strength of fake documents. Certainly, he has misused his CBI Case No. 217/2019 59 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) position as public servant as well as has acted without any public interest and hence is guilty of criminal misconduct.
100. It was also argued on behalf of this accused Deen Bandhu Prasad that he was public servant at the time of the commission of alleged offence involved in this case, as defined u/s 21 of Indian Penal Code and thus was protected u/s 197 Cr. P.C. He argued that this accused was performing his duties as a public servant for which he has been arraigned as accused in this case and therefore, it was necessary for CBI to obtain separate sanction for his prosecution u/s 197 Cr. P.C. It was submitted that in the absence of sanction u/s 197 Cr. P.C qua the said accused public servant, the entire trial got vitiated and he is liable to be acquitted on this very score only. Ld. PP submitted that the sanction to prosecute a public servant u/s 197 Cr. P.C is not required particularly in the facts and circumstances of the present case as it was not the part of official duty of these accused to enter into a criminal conspiracy with other accused.
101. Law is well settled on this aspect. It is not every offence committed by a public servant that requires sanction for prosecution u/s 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. Section 197 Cr. P.C does not extend its protective cover to every act or omission done by public CBI Case No. 217/2019 60 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) servant but restricts its scope of operation to only those acts or omissions which are done by public servant in discharge of his official duty. Where the alleged act done by the public servant is merely cloak for doing the objectionable act, the protection u/s 197 Cr.P.C is not available. (See Raghunath Anant Govilkar Vs. State of Maharashtra & Others 2008 (1) RCR (Criminal) 1042, Hari Has Prasad 1972 (3) SCC 89, State of M.P. Vs. Sheetla Sahai & Others 2009 Crl. L.J 4436 and Chaudhary Praveen Sultana Vs. State of Bengal & Another 2009, Crl. L.J 1318.)
102. Thus while considering the requirements of sanction as contemplated by Section 197 Cr. P.C, the Court has to make the balance between the protection granted to the public servants and the safeguard available to the citizens against the excesses of the erring public servants. The acts of commission and omission done by the accused Deen Bandhu Prasad, by no stretch of imagination, can be said to be the acts done by him in the discharge of his official duties or purported to be in the discharge of official duties. He has misused his office of public servant for doing things which are not permitted under the law. His acts were dehors the duties which a public servant is required to discharge or perform. At no point of time did he act bonafidely in honest discharge of his duties. Hence, he is precluded from claiming protection u/s 197 Cr. P.C. Conclusion:-
103. In the light of above discussion, the accused Narayan Diwakar, Raj Bhushan Chauhan and P.K. Thirwani are hereby CBI Case No. 217/2019 61 of 62 CBI Vs. Narayan Diwakar Etc (Birla Udyog Emp. CGHS Ltd) acquitted of all the charges. However, the accused Deen Bandhu Prasad and Ashutosh Pant are convicted as under:-
(i) Both the accused are convicted of the offence of conspiracy U/s 120B r/w sections 420/468/471 IPC and Sec. 13 (2) r/w 13(1) (d) of P.C. Act, 1988;
(ii) Accused Deen Bandhu Prasad is also convicted U/s 468 IPC and U/s 471 IPC and U/s 15 r/w 13(1) (d) of P.C. Act, 1988;
(iii) Accused Ashutosh Pant is also convicted U/s 420/ 511 IPC and U/s 468 IPC and U/s 471 IPC.
Announced through Video Conferencing on CISCO Webex Meetings App. Digitally signed by VIRENDER VIRENDER BHAT BHAT Date: 2021.07.07 13:42:35 +0530 (VIRENDER BHAT) SPL. JUDGE (PC ACT), CBI-15, ROUSE AVENUE DISTRICT COURT, NEW DELHI CBI Case No. 217/2019 62 of 62