Delhi District Court
Cbi vs . M. Waheed Etc. (Chinar Cghs Ltd.) on 25 September, 2020
CBI Vs. M. Waheed etc. (Chinar 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. : 242/2019
CNR No. : DLCT11-000938-2019
FIR No. : RC-28 (A)/2007-DLI
PS : CBI/ACB/DLI.
U/s : 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 and
substantive offences thereof.
State
Through
Central Bureau of Investigation
New Delhi.
Versus
1. M. Waheed
S/o Late Sh. Abdul Majid,
CBI Case No. 242/2019 Page No. 1 of 50
CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
R/o A-37, Nangloi, Phase-II,
New Delhi-110041. .................(A-1)
(Since deceased. Proceedings against him
stand abated vide order dated 30.01.2019)
2. P.R. Nair
S/o Late Sh. P.P. Nair
R/o E-2/112, Sector-16,
Rohini, Delhi-110085. ...........(A-2)
3. Sanjay Bajaj
S/o Late Sh. N.W. Bajaj
R/o B-1/545, 2nd Floor, Janakpuri,
New Delhi.
Also at:
Flat No. 547, Second Floor,
Taj View Apartments, Pocket-1,
Sector-22, Dwarka,
New Delhi - 110075. ..............(A-3)
4. Usha Chander
W/o Sh. Chandera Bose
R/o 94-C, Pocket-6, MIG, Mayur Vihar,
New Delhi. ...........................(A-4)
CBI Case No. 242/2019 Page No. 2 of 50
CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
5. M. Omkaram
S/o Sh. M.V. Rattiah
R/o 291/A, Pocket-C, Mayur Vihar
Phase-II, Delhi.
Also at:
222, Bank Vihar Apartments,
Plot-16, Sector-22, Dwarka,
New Delhi-110075. .................(A-5)
6. F.D. Malik
S/o Late Sh. Fahimuddin
R/o A-40, Nangloi, Phase-II,
New Delhi.
Also at:
H. No. A-41, Nangloi, Phase -II,
Delhi -110041. ....................(A-6)
7. A.K. Shankaran
S/o Sh. Kesvan Nambudri
R/o 1596, Delhi Administrative Flats,
Gulabi Bagh, Delhi.
Also at:
CBI Case No. 242/2019 Page No. 3 of 50
CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
Kunnath Mana, Kanniampuram,
Ottapalam, District Palakkad,
Kerala. .................................(A-7)
8. Raman Verma
S/o Late Sh. J.N. Verma
R/o F-444, 1st Floor,
Shivji Marg, Karampura,
New Delhi. ...........................(A-8)
Date of Institution : 31.03.2009
Date of judgement reserved on : 18.09.2020
Date of pronouncement of judgement : 25.09.2020
J U D G E M E N T:-
1. The above named accused have been facing trial in this case for the offences punishable under Section 120B IPC r/w Section 420, 468, 471 IPC and under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and also substantive offences thereof.
2. The case relates to and concerns a Cooperative Group Housing Society namely Chinar CGHS Ltd.
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3. In pursuance to the order dated 13.02.2006 passed in Civil Writ Petiton No. 10066/2004, a Preliminary Enquiry No. 2/06 was registered in relation to the functioning of the aforesaid society on 14.03.2006 by CBI/ACB/Delhi. The Preliminary Enquiry was conducted by SI V.K. Pathak. On the basis of the result of Preliminary Enquiry and a written complaint submitted by SI V.K. Pathak, FIR was registered in this case on 31.07.2007 against M. Waheed, P.R. Nair, Sanjay Bajaj, S.P. Chadha, M.V. Rao, Jagdish Kumar Badhwar, Usha (all private persons) and Urmila Gupta (the then Auditor) and unknown officials posted in the office of Registrar Cooperative Societies, New Delhi (In short "RCS office") at the relevant time.
4. Perusal of the charge-sheet reveals that Chinar CGHS Ltd was registered in the office of Registrar Cooperative Societies on 12.08.1983 vide Registration No. 618 (GH) having its registered office at A-37, Nangloi, New Delhi. There were 60 promoter members of the society and at the time of its registration, D.D. Semwal was its President, M. Waheed was its Secretary and F.D. Malik was its Treasurer. The society enrolled 228 members from the date of its registration till 10.06.1990. Thereafter, no new members were enrolled till 1997. After a gap of more than seven years i.e. from 10.11.1997 to 01.04.2004, the society enrolled 203 new members.
5. A list of 120 members of the society was sent by accused F.D. Malik, the then Secretary of the Society Chinar CGHS Ltd. to the office of the RCS vide letters dated 10.05.1993, 01.06.1993 for approval of the same. It is nowhere mentioned in the charge-sheet as to what happened to the said list. However, It appears that after lapse of four CBI Case No. 242/2019 Page No. 5 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) years, a fresh list consisting of 120 members of the society was again sent by accused M. Waheed, the then Secretary of the Society to RCS office vide letter dated 22.08.1997 for its approval. It is alleged in the charge-sheet that on receipt of the said list of 120 members in the RCS office, it was processed by accused A.K. Shankaran, the then Dealing Assistant who put up a note dated 23.08.1997 mentioning therein that as per earlier instructions of Registrar, the genuineness of 59 resignations and 58 fresh enrollments has to be examined. Thereafter, he examined the record of the society and recommended the approval of the said list of 120 members. The matter was further processed on the basis of the said note of A.K. Shankaran and ultimately the freeze list of 120 members of the said society Chinar CGHS Ltd was approved by the Registrar on 12.09.1997 and the same was sent to DDA on 18.09.1997 for allotment of loan.
6. It is the case of the prosecution that prior to the approval of the aforesaid freeze list of 120 members of the society, 18 promoter members namely Mohd. Idris Ansari, Mohd. Quisar, Abdul Rub, Mohd. Aimil, Qutubuddin, Jamaluddin, Roshan Ali, Usman Ghanni, Badrudin, Akhtar Ali, Bashir Ahmed, Mohd. Yunus, Mohd. Iqbal, Badrul Hasan, Buniyad Ali, Nizamuddin Khan, Birdu Khan and Noor Hasan, were shown to have resigned fraudulently by forging their signatures on the resignation letters and refund receipts in their names. It is stated that during the course of the investigation, these 18 members denied having resigned from the membership of the society or having received the refund. It is alleged that accused F.D. Malik was the Treasurer of the Society and accused M. Waheed was its Secretary during the said period and they were controlling as well as managing the affairs of the society.
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7. It was found during the course of investigation that some of the members namely Sarjuddin, Nazir Hussain, Rashid Ahmad, Mohd. Ishaq, Pyare Lal, Prem Prakash, Budhi Lal, Hamid Ahmad, Mohd. Mobin Siddiqui were instigated by accused M. Waheed and F.D. Malik to resign from the membership of the society on the pretext that the society has failed and DDA is not allotting land to it. There are 41 more members of the society who joined the investigation and denied having resigned from the society membership. They denied their signatures on the resignation letters and refund vouchers in their name. Their names are mentioned at Page No. 15 and 16 of the charge-sheet.
8. It is further case of prosecution that the resignation letters of all the above members have been forged after the approval of the freeze list of the society on 12.09.1997. It it stated that the resignation letters in the name of one member namely Lachhi Ram bears the date as 28.05.1998 whereas he had already expired on 20.03.1986. The resignation letters in the names of Sudarshan Lumba, K.L. Hura, Supriya Juneja, Sunil Dhingra, Rajesh Kumra and Neeru Jain were found in two sets bearing different dates.
9. Charge-sheet further mentions that a plot of land bearing Plot No. 3, measuring 700 Sq. Meters in Sector-18, Phase-II, Dwarka, Delhi was allotted to the society in the year 2000. The payment of Rs. 1,03,88,500/- was made by the society vide bank challans. The possession of the land was handed over to accused P.R. Nair, the then Secretary of the Society by DDA on 24.08.2000. Thereafter, contract for construction of 108 flats was awarded to M/s Badhwar Constructors Pvt. Ltd and the construction was almost complete at the CBI Case No. 242/2019 Page No. 7 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) time of submission of the charge-sheet. It is stated that 105 members out of 108 existing members of the society as in the year 2000, including accused Sanjay Bajaj and Usha Chander joined investigation and admitted to be the members of the society. It is also stated that the remaining members who have been shown to have resigned/enrolled by the society from time to time could not be traced during the course of investigation.
10. Prosecution alleges that after the approval of the freeze list of the society by Registrar on 12.09.1997, the new office bearers namely P.R. Nair (Secretary) and Sanjay Bajaj (Treasurer) took over the management of the society. It is stated that accused P.R. Nair was the Secretary of the society from the year 1998 to 2001 and was managing the affairs of the society. During his tenure as Secretary, the resignations of various members were forged and were shown to have been accepted during the meeting of the Managing Committee from 1998 to 2000. It is also alleged that Mariamma wife of accused P.R. Nair has also written various Managing Committee proceedings at his behest on which the GEQD has given positive opinion.
11. It is stated that accused Sanjay Bajaj was the Treasurer of the Society from the year 1998 to 2004 and during his tenure, forged resignations were accepted. He alleged to have signed on the proceedings registers showing the acceptance of the forged resignations. It is stated that he had signed on the minutes of the Managing Committee Meetings dated 16.06.1998, 29.01.1999, 26.04.1999 and 31.07.1999 in which the forged resignations of various members were approved. It is also alleged that accused Usha Chander has been the Secretary/Treasurer of the Society from CBI Case No. 242/2019 Page No. 8 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) August, 2001 onwards and has forged the signatures of the members namely Subhash Khurana, Deepak Kumar and Sunil Dhingra on the resignation letters and refund vouchers in their names. GEQD has given positive opinion in this regard.
12. Further case of prosecution is that the accused M. Omkaram was working for the society and has prepared various forged documents of the society such as proceedings registers for the period 1998 to 2005 and resignation letters/refund receipts of various members of the society. He is also alleged to have forged the resignation letters of two office bearers of the society namely S.P. Chadha, the then President and P.R. Nair, the then Secretary. He is also stated to have forged the signature of S.P. Chadha and P.R. Nair in the proceedings registers and other documents. It is stated that GEQD has given positive opinion in this regard.
13. It is alleged by the prosecution that accused F.D. Malik has prepared the resignation letters in the names of various members of the society as mentioned at Page Nos. 19 and 20 of the charge-sheet and also has forged the signatures of various members on the resignation letters in their names as mentioned at Page No. 20 of the charge-sheet. It is stated that the GEQD has confirmed the said forgery by this accused.
14. Charge-sheet further mentions that in the year 2004, the society again approached the office of Registrar Cooperative Societies for approval of the resignation of all the 120 members whose names were their in the freeze list and for approval of the fresh enrollment of 108 new members. This request from the society was processed by accused Raman Verma who was working as UDC/Dealing Assistant in CBI Case No. 242/2019 Page No. 9 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) the RCS office at that time. He prepared a detailed note dated 26.03.2004 in this regard whereby he recommended the approval of these resignations of all the 120 members and fresh enrollment of 89 members. His recommendations were subsequently approved by the Registrar on 31.03.2004. It is stated that the record of the society was produced in the RCS office for the said purpose of accused Usha Chander, the then Secretary of the Society on 15.03.2004 and 25.03.2004. It is stated that the mass scale resignation of all the members of the freeze list would have immediately raised suspicion of wrong doing, especially when land has already been allotted to the society and therefore, verification of the genuineness of resignations and new enrollments was of a paramount importance. It is alleged that this was deliberately not done by accused Raman Verma as he was acting in conspiracy with other accused persons.
15. During the course of investigation, the questioned documents such as proceedings registers, resignation letters/refund vouchers etc. were sent to GEQD, Kolkata along with the specimen signatures/writings of the accused as well as various witnesses, for comparison. Opinion dated 28.11.2008 was received from GEQD, Kolkata giving positive opinion on the forgery of questioned documents.
16. The sanction for prosecution of accused public servants namely A.K. Shankaran and Raman Verma was duly obtained.
17. The investigation culminated in filing of charge-sheet against the 8 accused namely M. Waheed, P.R. Nair, Sanjay Bajaj, Usha Chander, M. Omkaram, F.D. Malik (all private persons), A.K. Shankaran and Raman Verma (officials posted in the RCS office) for CBI Case No. 242/2019 Page No. 10 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) the offence punishable under Section 120B IPC r/w Section 420, 468, 471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
18. It would be apposite to point out here that it has nowhere been explained in the entire charge-sheet as to why were S.P. Chadha, M.V. Rao, Jagdish Kumar Badhwar and Urmila Gupta (who were named as accused in the FIR on the basis of the report of Preliminary Enquiry and the complaint submitted by the officer who conducted the Preliminary Enquiry) left out and not named as accused in the charge- sheet. Besides the same, it appears that the charge-sheet has been drafted in a very perfunctory, inefficient and casual manner, to say the least. Even though the foremost offence which is stated to be made out against the accused on the basis of evidence collected during the investigation, is 120B IPC i.e. the offence of conspiracy, yet it has nowhere been explained in the entire charge-sheet as to what was the conspiracy, who were the conspirators, what was the object of the conspiracy, its start point, its end point etc. There is eerie silence on all these aspects in the charge-sheet. When the Ld. Public Prosecutor was asked during the course of arguments to spell out these aspects of the offence of conspiracy, he too drew blank. Therefore, it would be necessary to minutely peruse the charges framed against the accused in order to scrutinize purposefully the evidence led by the parties here. Charges have been framed against the accused on 06.01.2011. All the 8 accused have been charged with the offence punishable under Section 120B IPC r/w Section 420, 468,471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988. Additionally, accused Raman Verma and A.K. Shankaran have been charged with the substantive offence under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 also. Additional charges for the offences punishable under Section CBI Case No. 242/2019 Page No. 11 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) 420, 468 and 471 IPC have also been framed against accused M. Waheed, P.R. Nair, Sanjay Bajaj, Usha Chander, M. Omkaram and F.D. Malik. Pertinent it would be to reproduce here the contents of the charge for the offence of conspiracy framed against all the 8 accused. This would provide a glimpse about the nature and object of the conspiracy alleged against the accused. The charge reads as under:-
"That during the period 10.11.1997 to 01.04.2004 or thereabout, you entered into a criminal conspiracy to commit forgery by forging documents like resignation letters, enrollments, affidavits, management committee proceedings, proceeding registers etc., of Chinar CGHS and by the use of those forged documents to commit cheating and criminal misconduct and pursuance to the conspiracy, you accused F.D. Malik, M. Waheed, Sanjay Bajaj, Usha Chander, P. R. Nair and M. Omkaram forged various documents like false resignations, enrollments of new members, management committee proceedings of Chinar CGHS, affidavits, proceeding registers and other related documents to show that genuine members of Chinar CGHS have resigned and new members have been enrolled and put up the same before the office of the RCS where you accused A.K. Shankaran and Raman Verma, both public servants working as Dealing Assistants in the office of RCS, processed the same and recommended the approval of freeze list and large scale resignations and fresh enrollments respectively by misusing your position, as such public servants, CBI Case No. 242/2019 Page No. 12 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) though such large scale resignations and enrollments should have aroused your suspicion or invited your attention to the wrong doing and this was done by you to obtain pecuniary advantage for the co-accused or for yourself, that is, allotment of land, by way of cheating the bona fide members of Chinar CGHS and the office of RCS and DDA by getting allotment of land to favourable members in place of genuine members on concessional rates from DDA and the freeze list of members of Chinar CGHS was ultimately approved by the office of the RCS and was sent to the DDA for allotment of land and the land was ultimately allotted by DDA to the society and you accused P.R. Nair deposited the required amount with the SBI as Secretary of the society and possession of the land was accepted and as such, you committed an offence punishable under Sections 120B read with 420, 468, 471 IPC read with 13 (2) read with 13 (1) (d) of the PC Act and within my cognizance."
(emphasis supplied)
19. From the perusal of the contents of the aforesaid charge framed against the accused, it is evident that the object of the conspiracy alleged in this case was to secure allotment of land to the society Chinar CGHS Ltd from DDA on concessional rates on the basis of forged documents like false resignations, enrollments of new members, proceedings of Managing Committee Meetings etc. As already noted hereinabove, the plot of land was allotted to the society CBI Case No. 242/2019 Page No. 13 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) by DDA in the year 2000 and the possession of the same was handed over to accused P.R. Nair on 24.08.2000. Thus, the object of the conspiracy was achieved and it came to an end on 24.08.2000 when the possession of the plot of land allotted to the society by DDA was received by its Secretary. Hence, all that took place after the said date, as mentioned in the charge-sheet, is outside ambit of the scope of the conspiracy as well as the charge framed against the accused. This Court has to remain confined to the acts of fabrication/forgery which may have taken place only till 24.08.2000 and not thereafter.
20. The prosecution has examined as many as 88 witnesses to bring home the guilt of accused. All the incriminating evidence was put to the accused in their statements u/s 313 Cr. P.C which they denied and claimed false implication. A8 Raman Verma examined two witnesses DW1 and DW2 in his defence whereas A3 Sanjay Bajaj examined one witness DW3 in his defence. The remaining accused chose not to examine any witness in their defence.
21. It may be noted here that A1 M. Waheed expired during the course of trial on 19.11.2018. In view of the same, it has been observed in the order dated 30.01.2019 that the proceedings qua the said accused stands abated. Thereafter, the trial continued against the remaining seven accused.
22. I have heard Ld. Public Prosecutor, Ld. Counsels appearing for the accused and have perused the entire oral and documentary evidence on record. Written submissions filed by Ld. PP, by Sh. D.B. Goswami, Advocate (on behalf of A3, A4 and A5), Sh. Anil Kumar, Advocate (on behalf of A8) and by Sh. Amish Dabas, Advocate (on behalf of A2) have also been perused.
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23. Before proceeding to scrutinize the evidence led by the parties and arguments advanced on their behalf, it would be necessary to bear in mind the procedure for registration of Cooperative Group Housing Societies laid down in the Delhi Cooperative Societies Act, 1972 as amended upto date, Rules framed thereunder, Directives/Circulars/Notifications issued by the Government of NCT of Delhi from time to time in this regard and the practices established from time to time in the office of Registrar Cooperative Societies:
"A Cooperative Group Housing Society, (CGHS) for providing flats to its members is registered u/s 9 of Delhi Cooperative Societies Act 1972 (DCS Act), on an application received from Chief Promoter of Proposed Society on behalf of its members u/s 7 of the Act. As per rule 6 (1) (d) of DCS rules, 1973, framed under above said Act read with schedule E-VII of these rules (viability norms), minimum 60 members are required to sign the application for registration of such society. The application is to be accompanied with bye laws of society, certificate of financing Bank, copy of resolution passed by the promoters members and other documents as mentioned in Rule 6 (1). As per Rule 6 (1) (g) each of the promoter members required to file an affidavit to the effect:
(i) that he does not own a residential house or plot of land for construction residential house thereon in his own or in the name of his wife of dependent children on lease-hold or free hold basis in the Union Territory CBI Case No. 242/2019 Page No. 15 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) of Delhi.
(ii) that he or his wife of any of his dependent children is not a member of any other housing society.
(iii) that he or his wife or any of his dependent children is not dealing in the business of purchase or sale of house/land in the Union Territory of Delhi directly or indirectly either as a principal or an agent.
After the year 1985, no CGHS has been registered, as DDA has not been able to provide land to the already registered societies. Section 20 (1) of DCS Act provides to enrollment of members after complying with conditions given in the Rule 24 of the DCS Rules 1973. Thus, rule provides aforementioned three conditions apart from the fact that the member has been resident of NCT of Delhi for a minimum period of three years at the time of applying for the membership in such society (since notification No. F- 47/Legal Policy/Coop./92/1594-1605 dt. 22.04.97) and that the application for membership approved by the committee of the cooperative societies.
As per directive dtd. 8.11.83 of the RCS issued under signature of Shri S.P.S. Bhatti, the then Joint Registrar, under rule 77 no permission is required from RCS for resignation and enrollment of new members. As per this directive the societies may accept resignation of such members as are willing to do so in writing as provided in the Act, Rules and Bye Laws.
CBI Case No. 242/2019 Page No. 16 of 50CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) Rule no. 36 of DCS 1973 has provision of expulsion. That requires approval from RCS. According to directive of 17-6.1986 & 26-3-90 (Point no. 1 & 2) intimation about the resignation of members has to be sent to the RCS office within 15 days thereof.
List of members of a society, once approved and finalized, is known as freeze list of society, as thereafter number of members cannot be increased. This list is forwarded to DDA along with the list of approved members for allotment of land. In this connection a directive No. 3 (1)/86/Legal/975-A/981-A dt. 17.06.1986 was issued by the then RCS wherein all societies were required to furnish an up to date list of its members as on the date of issue of the said directive which was to be submitted by 31.7.1986. These lists were submitted by different societies to the RCS office since 1986 onwards and the same were forwarded to the DDA as and when received after necessary verifications of resignation/enrollments etc. These lists were known as freeze list in practice. The Act or the Rules do not provide for any definition of the freeze strength or the freeze list of a society.
Under directives dtd. 17.6.86 (Page 5 of the Directives book compendium issued by RCS), societies can accept resignation from its members, but a resolution to this affect passed by society is required to be endorsed to RCS office within 7 days. The CBI Case No. 242/2019 Page No. 17 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) acceptance of resignation is also required to be communicated to the concerned members by registered post. Specific mention of such letter and its date, by which the member concerned was informed, is also required to be made in the communication sent by the society to the RCS office. On receiving no objection from the RCS office within 60 days, such resolution of acceptance of resignation shall become final. Fresh enrollment of members is allowed against the vacancies created by virtue of any resignation or expulsion of members (rule 36) under this directive dtd. 17.6.1986. New enrollment against vacancies caused due to resignation or expulsion under rule 36 or cessation of the members under provisions of the Cooperative law can be made by the managing Committee of the Society. The resolution shall become final after a period of 60 days of conveying and receipt of the same in RCS office in the manner indicated in para-I. In the event of RCS office not agreeing to the resignation of enrollment of an individual for one reason or the other as may be relevant with reference to the provisions of law, the provisional enrollment will automatically become invalid. Further, as per rule 37, every CGHS is required to prepare a list of members as on the last date of each cooperative financial year i.e. 31st March.
During annual audit of the society, this list is to be submitted to Auditor and it is also to be mentioned CBI Case No. 242/2019 Page No. 18 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) in the Audit Report. Apart from the audit of accounts, the audit of transaction and working of the societies is also required to be done in each cooperative financial year. This list of the members comes under the word "working" mentioned in section 53 (4) of the Act. This list of members is required to be revised 30 days prior to the date of meeting fixed for election of the committee of the society by including newly admitted members and excluding members since the last revised list was prepared. The list is required to be in format prescribed vide Form 10 in the Delhi Cooperative Societies Rules. This format requires details of membership No., Name, Father's of Husband's Name, address, and name of nominee, if any, for each member of the society."
24. In the instant case, a list of 120 members of the society was sent by accused M. Waheed (since deceased), the then Secretary of the Society to the office of RCS vide letter dated 22.08.1997 for approval and the same was duly approved by the Registrar on 12.09.1997 and sent to DDA on 18.09.1997 for allotment of land to the society. It is alleged that prior to the approval of the said freeze list of 120 members, 18 promoter members (whose names have been stated in paragraph no. 6 hereinabove) were shown to have resigned fraudulently by forging their signatures on the resignation letters as well as refund receipts in their names. Some of them namely Mohd. Quisar, Abdul Rub, Mohd. Aimil, Badrudin, Akhtar Ali, Bashir Ahmed, Mohd. Yunus, Mohd. Iqbal, Badrul Hasan, Mohd. Idris Ansari, Nizamuddin Khan, Noor Hasan and Qutubuddin have been examined CBI Case No. 242/2019 Page No. 19 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) as PW1, PW2, PW3, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15 and PW21 respectively before this Court. All of them have denied their signatures on the resignation letters as well as refund vouchers in their names which are on record. Roshan Ali, Usman Ghanni and Birdu Khan had expired and on their behalf their sons appeared as PW6, PW5 and PW16 respectively. They too denied the signatures of their respective fathers on the resignation letters/refund vouchers in their names. On behalf of Late Jamaluddin, his wife appeared as PW22 and deposed that the signatures appearing on the resignation letter in the name of her husband are not that of her husband.
25. PW4, PW18, PW19, PW20, PW23, PW27, PW28, PW29, PW30, PW31, PW32, PW34, PW35, PW36, PW37, PW38, PW39, PW40, PW41, PW42, PW43, PW44, PW45, PW47, PW48, PW49, PW50, PW51, PW52, PW53, PW55, PW56, PW57, PW60, PW67, PW68 and PW73 had become members of the said society between the years 1983-1989. All of them have deposed that they had never resigned from the membership of the society. They stated that their signatures have been forged by somebody on the resignation letters as well as refund vouchers in their names.
26. The testimonies of above noted witnesses clearly indicate that they had never resigned from the membership of the society. The resignation letters/refund vouchers in their names were fabricated and someone forged their signatures on those documents. At the same time, the meetings of the Managing Committee dated 16.06.1998, 29.01.1999, 26.04.1999 and 31.07.1999, in which these resignations were accepted and approved by the Managing Committee of the CBI Case No. 242/2019 Page No. 20 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) Society, were also fabricated/forged in order to project the resignations of those members as well as the induction of new members in their place as having been genuinely done. The issue which now arises for determination is who was the actual imposter and who were the co-conspirator along with him.
27. 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 any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
28. 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 CBI Case No. 242/2019 Page No. 21 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) 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.
29. 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.
30. 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 CBI Case No. 242/2019 Page No. 22 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) 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]
31. According to the prosecution case, the resignation letters of following members had been prepared by accused F.D. Malik:-
1. Mohd. Quisar
2. Qutubuddin
3. Late Jamaluddin
4. Akhtar Ali
5. Bashir Ahmed
6. Mohd. Yunus
7. Late Birdu Khan
8. Badruddin
9. Late Usman Dhani
10. Nizam Ahmed @ Nizamuddin
11. Nawaz Ahmed
12. Imdad Ali
13. Atma Ram CBI Case No. 242/2019 Page No. 23 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
14. Nasir Ahmed
15. Gulpham
16. Sagir Ahmed
17. Bijender Kumar
18. Rame
19. Ram Avadh Pal
20. Jamil Ahmed
21. Sultan Ahmed
22. Shahbuddin
23. Nathu Khan
24. Bhikam Pal
25. Chet Ram
26. Ishrat Khatoon
27. Anisur Rahman
28. Qayamuddin
29. Nafisur Rahman
30. Nayav Begum
31. Mohd. Faruq
32. Mohd. Yaqub
33. Mrs. Hanifa CBI Case No. 242/2019 Page No. 24 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
34. Shasi Dharau
35. Ismail Ansari
32. It is also alleged by the prosecution that accused F.D. Malik had forged the signatures of following members on the resignation letters in their names:-
1. Mohd. Quisar
2. Nizam Ahmed @ Nizamuddin
3. Mohd. Yunus
4. Qutubuddin
5. Late Jamaluddin
6. Badruddin
7. Late Birdu Khan
8. Nawaz Ahmed
9. Imdad Ali
10. Nasir Ahmed
11. Vijendra Kumar
12. Rame
13. Ram Avadh Pal
14. Jamil Ahmed
15. Sultan Khan CBI Case No. 242/2019 Page No. 25 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.)
16. Shahabuddin
17. Nathu Khan
18. Bhikam Pal
19. Anisur Rahman
20. Nafisur Rahman
21. Nayab Begum
22. Mohd. Faruq
23. Mohd. Yaqub
24. Smt. Hanifa
25. Shashid
26. Mohd. Ismail Ansari
33. A list of the office bearers of the society from time to time has been proved by PW64 as Ex.PW64/X1. He had prepared the said list on the basis of the records of the society available with him. He was elected as President of the Society in the year 2006. Perusal of this list shows that accused M. Waheed (since deceased) and accused F.D. Malik remained Secretary and Treasurer respectively of the Society from its inception in the year 1983 till the year 1992-93. In the year 1993, accused M. Waheed became its President and accused F.D. Malik became its Secretary and continued as such till the year 1995 when there was again a change in the Managing Committee. In the year 1995, accused M. Waheed was elected as Secretary of the Society. Accused F.D. Malik again became its Treasurer. They CBI Case No. 242/2019 Page No. 26 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) continued as such till the year 1998.
34. PW34 has deposed that he became member of the society Chinar CGHS Ltd. through its office bearers i.e. accused M. Waheed and accused F.D. Malik. He has further deposed that he was made President of the Society for one day only even though the list Ex.PW64/X1 shows him as President from the year 1983 to the y ear 1985. He has identified his signature as well as those of accused M. Waheed and F.D. Malik in the membership register of the society Ex.PW2/A. He has stated that accused M. Waheed and F.D. Malik had signed the register in his presence. He has also identified his signature as well as those of accused M. Waheed and F.D. Malik on the application for registration of the society, the details of the elected members of the Managing Committee of the Society annexed to the application (Ex.PW34/A) and other related documents in the file maintained in the RCS office (D-6).
35. In another file related to the Society Chinar CGHS Ltd. Maintained in the RCS office (D-7, Volume-V), this witness PW34 has identified the signature of accused F.D. Malik on the list of 120 members of the society Ex.PW34/L6 submitted by the said accused. He has deposed that this list was submitted by accused F.D. Malik through forwarding letter dated 10.05.1993 Ex/Pw34/L7 and has identified the signature of the said accused at point A on this letter also. As already noted hereinabove, the fate of the said list of 120 members of the society submitted to the RCS office by accused F.D. Malik in the year 1993 has nowhere been stated in the charge-sheet. However, it was submitted by the Ld. Defence counsels during the course of arguments that the said list was not approved by the RCS CBI Case No. 242/2019 Page No. 27 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) office.
36. PW34 has identified the signature of accused Mohd. Waheed (Honorary Secretary of the Society) on another list of 120 members of the society Ex.Pw34/M7. This list was submitted by accused Mohd. Waheed in the year 1997 which was approved by the RCS office and on the basis of which the land was allotted to the society by DDA in the year 2000. The said approved freeze list of 120 members of the society was sent by RCS office to DDA on 18.09.1997 and is part of DDA file (D-10) Ex.PW63/A. PW34 has identified the signature of accused M. Waheed and accused F.D. Malik at points A and B respectively on the last page of the said freeze list of the society Ex.PW34/N. He has also identified their signatures at points A and B respectively on another copy of the said list Ex.PW34/N1 which is also part of DDA file (D-10).
37. PW55 Mohd. Razi Ahmed has deposed that he became member of the society Chinar CGHS Ltd. when the said society was formed. In the list Ex.PW64/X1, he is shown to have been President of the Society during the year 1996-98. However, he has denied having been on any post in the Managing Committee of the Society at any point of time. He has also denied his signatures appearing in his name at all the places in the proceedings registers of the society (D-17 and D-18). He has deposed that the signature appearing at point A on the freeze list Ex.PW34/M7 are not his signatures. However, he identified the signature of accused F.D. Malik at point C on the said list. He has further deposed that the affairs of the society were being looked after by accused M. Waheed and accused F.D. Malik. In the cross- examination, he has deposed that these two accused M. Waheed and CBI Case No. 242/2019 Page No. 28 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) F.D. Malik are his neighbours and therefore, he had occasion to meet them often and kept on enquiring from them about the progress of the society.
38. The testimonies of the above two witnesses PW34 and PW55 as well as the documents proved by them which bear the signatures of accused M. Waheed and F.D. Malik, indicate that these two accused were managing the affairs of the society from the date of its inception and had been sending the list of the members of the society to the RCS office for approval. First attempt for approval of the list of 120 members of the society was made in the year 1993 when accused F.D. Malik, the then Secretary of the Society, sent the said list (Ex.PW34/L6) to the RCS office vide letters dated 10.05.1993 (Ex.PW34/L7). However, the said list was not approved by the RCS office. Subsequently, another attempt was made in the year 1997 when a fresh list of 120 members of the society (Ex.PW34/M7) was sent by accused M. Waheed, the then Secretary of the Society to the RCS office vide letter dated 22.08.1997. This list found favour with the RCS office and accordingly was approved by the Registrar on 12.09.1997. The list was sent to DDA on 18.09.1997 vide letter Ex.PW63/B for allotment of land to the society. The same is in the DDA file (D-10) Ex.PW63/A and is marked as Ex.PW34/N. Its copy is Ex.PW34/N1. The list bears the signature of accused M. Waheed as Secretary of the Society and accused F.D. Malik as its Treasurer.
39. According to the prosecution case before sending the aforesaid list Ex.PW34/N to the RCS office for approval, 18 promoter members of the society namely Mohd. Idris Ansari, Mohd. Quisar, Abdul Rub, Mohd. Aimil, Qutubuddin, Jamaluddin, Roshan Ali, Usman Ghanni, CBI Case No. 242/2019 Page No. 29 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) Badrudin, Akhtar Ali, Bashir Ahmed, Mohd. Yunus, Mohd. Iqbal, Badrul Hasan, Buniyad Ali, Nizamuddin Khan, Birdu Khan and Noor Hasan, were shown to have resigned fraudulently by forging their signatures on the resignation letters and refund receipts in their names. Some of them have been examined as PW1, PW2, PW3, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15 and PW21 before this Court who denied their signatures on the resignation letters as well as refund vouchers in their names which are on record. PW5, PW6 and PW16 appeared on behalf of their respective deceased fathers Usman Ghanni, Roshan Ali and Birdu Khan and denied their signatures on the resignation letters/refund vouchers in their names. Further, PW25 has deposed that he was told by accused F.D. Malik that Chinar CGHS Ltd has failed and he can take refund of the money deposited by him. Accordingly, he accepted the refund of Rs. 200/- from F.D. Malik and handed over his resignation letter dated 11.09.1997 to him. He has also signed refund voucher. PW29 has deposed that accused F.D. Malik told him that the society Chinar CGHS Ltd. stands cancelled and accordingly he stopped making further payments to the society. PW30 has deposed that he had gone to the deposit further money with the society but was told by accused F.D. Malik that society is now no more and did not accept money from him. PW31 has deposed that he tendered resignation as he was told by accused F.D. Malik that the society has failed. PW66 has deposed that he was told by accused M. Waheed and F.D. Malik that the society has failed and therefore, he resigned from the membership of the society. Similarly, PW69, PW70 and PW72 have deposed that accused F.D. Malik told them that the society has failed in its object and accordingly, they accepted the refund of money from him.
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40. Thus, the evidence on record shows that accused F.D. Malik and M. Waheed had been approaching the members of the society with false representation that the society has failed in its object and were persuading them to resign from the membership of the society. They probably intended to enroll some other members in place of all the original promoter members after obtaining their resignations. It appears that some of the members like PW25, PW30, PW31, PW66, PW69, PW70 and PW72 believed the false representation of these two accused and accordingly tendered their resignations from the society membership and accepted the refund of the amount which had been deposited by them in the society.
41. It further appears that some of the members were not convinced by the false representation of accused M. Waheed and F.D. Malik and hence, did not show their willingness to resign from the society membership. These included PW1, PW2, PW3, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW21 as well as the fathers of PW5, PW6 and PW16, whose signatures on the resignation letters/refund vouchers in their names have been forged.
42. PW34 has deposed that the cash voucher dated 01.12.1989 in the name of Noor Hasan (PW15) Ex.PW15/B and the resignation letter in the name of Mohd. Aimil (PW3) Ex.PW3/A bear the signature of accused M. Waheed at points A respectively. He has also identified the signatures of accused M. Waheed on the original cash voucher dated 01.12.1989 in the name of Idris Ansari (PW13) Ex.PW13/G, on the resignation letter in the name of Buniyad Ali (Ex.PW34/Q1), on the cash voucher dated 31.10.1989 (Ex.PW2/B) in the name of Abdul Rub (PW2), on the resignation letter in the name of Munna Khan CBI Case No. 242/2019 Page No. 31 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) (Ex.PW34/Q2), on the cash voucher in the name of Munna Khan (Ex.PW34/Q3) and on the cash voucher dated 21.09.1989 in the name of Jamil Ahmed (Ex.PW34/Q4). He has also identified the signature of accused F.D. Malik on the above noted resignation letter Ex.PW34/Q2 and cash voucher Ex.PW34/Q3. He has also identified the signature of accused M. Waheed on the resignation letter and cash vouchers in the name of several other members namely Surender Kumar, Sunil Dhingra, Supriya Juneja, Rajesh Kumra, Neeru Jain, K.L. Hura, Sudershan Lumba, Nizam Ahmed, Mohd. Yunus, Mohd. Iqbal, Bashir Ahmed, Mohd. Quisar, Nasir Ahmed, Qutubuddin, Jamaluddin, Bhikam Pal, Akhtar Ali, Birdu Khan, Badruddin and Usman Ghanni.
43. One Azad Singh is stated to have remained as Member of the Managing Committee during the years 1996-98. His name appears in the list Ex.PW64/X1 also. However, deposing as PW48 before this Court, he has denied that he was a Member of the Managing Committee of the Society at any point of time. He stated that he has never attended any meeting of the society and has denied that the signatures in his name on various minutes of meetings of the Managing Committee in the proceedings registers (D-17 and D-18) are his signatures. He has further deposed that someone has forged his signatures on these registers.
44. The conduct of these two accused M. Waheed and F.D. Malik, as indicated from the evidence noted hereinabove, manifests that they had been acting in pursuance to a well hatched conspiracy, the object of which was to forge the records of the society including the resignation letters/refund vouchers of several members in order to CBI Case No. 242/2019 Page No. 32 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) prepare a fictitious list of the members of the society and to get it approved from RCS office on the basis of which land could be allotted to the society by DDA. It is ample clear that they were managing the affairs of the society till the year 1998. They had been approaching the members to seek their resignation on the false representation that society has failed. The lists of members of the society sent to RCS office bear their signature as office bearers. PW55 and PW48 have denied that they held any post as the Managing Committee of the Society and have deposed that their signatures have been forged on all the minutes of Managing Committee Meetings. PW34 has identified the signatures of M. Waheed and F.D. Mali on some of the resignation letters/refund vouchers. All this indicates that these two accused alone were actively involved in the affairs of the society till the year 1998, drawing and signing the minutes of Managing Committee wherein resignations were accepted and fresh members were inducted in their place, corresponding with RCS office, sending lists of members for approval etc. All these circumstances proved on record are sufficient to demonstrate that the resignation letters/refund vouchers in the name of several members were forged by these two accused in pursuance to a conspiracy. No other person had reason or occasion to do such forgery. The above noted evidence clearly indicate an agreement or meeting of minds between these two accused.
45. The disputed resignation letters/cash vouchers bearing the forged signatures of the members along with the specimen signatures of the accused as well as those members of the society had been sent for comparison and expert opinion to GEQD, Kolkata. The opinion Ex.PW76/C (colly.) also confirmed the forgery of the signatures of various members done by accused F.D. Malik. As per GEQD opinion, CBI Case No. 242/2019 Page No. 33 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) the signatures of Nawaz Ahmed, Nazar Ahmed, Mohd. Yunus, Mohd. Iqbal, Imdad Ali, Bashir Ahmed, Atma Ram, Mohd. Quisar (Ex.PW1/A and Ex.PW1/B), Nasir Ahmed (Ex.PW4/A and Ex.PW4/B), Gulpham, Sagir Ahmed, Bijender Kumar, Rame, Jamil Ahmed, Qutubuddin (Ex.PW21/A and Ex.PW21/B), Sultan Ahmed, Jamaluddin (Ex.PW22/B and Ex.PW22/C, Shahabuddin, Nathu Khan, Bhikam Pal (Ex.PW56/B and Ex.PW8/B), Akhtar Ali (Ex.PW8/A and Ex.PW34/R7), Chet Ram, Birdu Khan (Ex.PW34/R8), Badrudin (Ex.PW7/A and Ex.PW7/B), Usman Ghanni (Ex.PW5/A and Ex.PW34/R9), Ishrat Khatoon, Anisur Rahman, Qayamuddin, Nafisur Rahman, Nayav Begum, Mohd. Faruq, Mohd. Yaqub, Hanifa and Ismail on the resignation letters/cash vouchers in their names have been forged by accused F.D. Malik. Even a bare look with naked eye on these resignation letters/refund vouchers reveals that the signatures & writing on these is in the same ink, done with same pen and in the handwriting of only one person. This too lends credence to the opinion of GEQD in this regard.
46. Thus, in this case, there is circumstantial evidence about the conspiracy having been hatched by accused M. Waheed and accused F.D. Malik and also about the forgery of signatures of various members on the resignation letters/refund vouchers in their name done by accused F.D. Malik. The same is further corroborated by the opinion of the expert Ex.PW76/C (colly.) who has assigned cogent reasons for the opinion rendered by him. There is nothing in his cross- examination to disbelieve his testimony. Cheating was also an aspect of the conspiracy. They have cheated not only those members who were fictitiously shown to have resigned from society membership by causing undue loss to them as they lost their right to claim flat in the CBI Case No. 242/2019 Page No. 34 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) society at reasonably less rate than the market value thereby suffering financial loss, but also DDA which allotted land to the society on the basis of the fictitious list of members.
47. This Court is conscious about the legal position that no finding of guilt can be given against accused M. Waheed as he has already expired during the trial of the case and the proceedings against him stand abated. However, it was necessary to discuss his role in brief so as to ascertain as to whether there had been in fact a conspiracy and if so, who were the conspirators.
48. It was argued by Ld. Counsel for accused F.D. Malik that he had resigned from the society membership in the year 1994 and thereafter he had no concern with the society. He would submit that the list of members Ex.PW34/N sent to RCS office in the year 1997 does not bear signatures of this accused as he was not in picture at all at that time. He argued that this accused has been falsely implicated in this case as he had no reason or occasion to forge the records of the society after the year 1994.
49. The submissions of the Ld. Counsel has no force at all. He failed to point out any piece of evidence to show that F.D. Malik had resigned in 1994. To the contrary, evidence on record shows that he not only continued to be member of the society till 1998 but also was its office bearer. In case he had actually resigned in the year 1994, why did he approach PW25, PW29, PW30, PW33, PW66, PW69, PW70 and PW72 (all of whom resigned and accepted refund in 1997) with false representation that society has failed and asking them to resign from its membership. Even his signatures have been identified by PW34 on the membership list Ex.PW34/N which was sent to RCS CBI Case No. 242/2019 Page No. 35 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) office in 1997. When the deposition of PW34 was put to him in his statement u/s 313 Cr. P.C, he did not dispute it. (see his answer to Question Nos. 38, 39 & 40). Thus, it does not lie in his mouth to say that he had no concern with the society after 1994. It is established beyond doubt that he had entered into a conspiracy with accused Mohd. Waheed to forge the records of the society and himself also had forged the signatures of several members on the resignation letters and refund vouchers in their names.
50. Coming to accused A.K. Shankaran. He was working as dealing assistant in the RCS office in the year 1997. He is stated to have processed the request of approval of the list of 120 members of the society Ex.PW34/N which was submitted by accused M. Waheed vide his letter dated 22.08.1997. He is also stated to have put up a note dated 23.08.1997 stating therein that he has verified/seen the affidavits of all the 120 members and recommending approval of the list for sending it to DDA for allotment of land to the society.
51. I have perused the noting file Ex.PW62/A (D-5). The note dated 23.08.1997 is handwritten bearing an initial at the end. No witness has identified the writing or the initial to be that of accused A.K. Shankaran. No evidence has been lead by the prosecution to prove that the said note is in the handwriting of said accused and bears his initial. The investigating office (PW77) has fairly deposed in his cross- examination that he did not record statement of any official posted in RCS office in this regard. In the absence of any evidence on this aspect, it is difficult to say that the said note was prepared by accused A.K. Shankaran and bears his initial. Even otherwise also, he cannot be held guilty merely on the basis of the said note. Dealing assistant is CBI Case No. 242/2019 Page No. 36 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) the lowest rung official and his duty is merely to receive the documents and forward the same to higher officials. He is not a decision making authority. It is not his job to conduct detailed examination/verification of the contentions of a society. PW62 has admitted in his cross-examination that it is not the duty of dealing assistant to physically verify the veracity of the resignation and enrollments of the members of the society as intimated by it to the RCS office. PW62 has served as Assistant Registrar in RCS office and thus can be said to be fully acquainted with the duties & responsibilities of dealing assistant.
52. Perusal of the file Ex.PW62/A also reveals that subsequent to the note dated 23.08.1997, it was put up before the AR and DR and lastly before the Registrar. Any of these officers could have referred the case to the area inspector to conduct physical verification of members of the society. Their notings reveal that certain clarifications had been sought from the society vide noting dated 01.09.1997 pursuant to which the Secretary of the Society appeared before the Joint Registrar on 04.09.1997 and submitted replies on behalf of the society. So, there had been application of mind by the higher officers i.e. Assistant Registrar, Deputy Registrar and Joint Registrar before approving the list of members of the society. They did not act simply on the basis of note dated 23.08.1997 of the dealing assistant. They dealt with the file in their own way, applied their minds independently to the representations/contentions of the society and in their wisdom, approved the membership list of the society. It is not that they were mislead by any act of accused A.K. Shankaran or that he pressurized or cajoled them in any manner to approve the list in question.
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53. Hence, there is no evidence on record to link the said accused A.K. Shankaran with the conspiracy in this case.
54. So far as accused P.R. Nair, Sanjay Bajaj, Usha Chander and M. Omkaram are concerned, they had taken membership of the society after its freeze list had been approved by the RCS and was sent to DDA for allotment of land. Accused P.R. Nair and Sanjay Bajaj became its members on 18.12.1997, accused Usha Chander on 25.01.1998 and accused M. Omkaram on 15.02.1998. It is alleged by prosecution that after the approval of freeze list of 120 members of society by RCS office on 12.09.1997 and forwarding it to DDA on 18.09.1997, these four accused joined the conspiracy and forged the resignation letters of several members as well as the minutes of various meeting of Managing Committee. On the basis of these alleged forgeries, it is claimed by prosecution that they were co- conspirators and were acting towards fulfilment of the object of the conspiracy.
55. Accused M. Omkaram is stated to have forged the proceeding registers of the society for the period 1998 to 2005. These registers are on record as D-13 (Ex.PW64/H), D-14 (Ex.PW64/J), D-15 (Ex.PW64/K) and D-17 (Ex.PW64/H). Against the accused P.R. Nair, it is alleged that during his tenure as Secretary from year 1998 to 2001, resignations of various members were forged and shown to have accepted during Managing Committee Meeting from 1998 to 2000. It is alleged that his wife Mrs. Mariamma has also written various proceedings of Managing Committee Meetings. It is alleged against accused Sanjay Bajaj that during his tenure as Secretary/Treasurer from 1998 to 2004, forged resignations were accepted and he has CBI Case No. 242/2019 Page No. 38 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) signed the proceedings dated 16.06.1998, 29.01.1999, 26.04.1999 and 31.07.1999 in which these forged resignations had been accepted.
56. Ironically, the evidence on record nowhere shows that as to how, when, from whose custody and by whom were these four registers obtained. Three CBI officers have investigated this case. PW78 was first investigating officer of this case. Thereafter, PW75 took over the investigation in January, 2008 and continued till July, 2008 when the investigation was entrusted to PW77 who completed the same and filed the charge-sheet. None of these three investigating officers have referred to the seizure of these four registers. There is only one seizure memo on record which was proved by PW74 as Ex.PW74/A (D-3). Vide this seizure memo, he had handed over four files Ex.PW34/R12 (A), Ex.PW34/R12 (B), Ex.PW34/R12 (C) and Ex.PW34/R12 (D) (D-11) to the CBI officer. These files contain the resignation letters and refund vouchers. No other seizure memo is on record. It is not that prosecution was oblivious of the fact that no other seizure memo has been filed along with the charge-sheet. During the examination-in-chief of PW74 on 21.01.2013, Ld. PP sought deferment in order to place on record two more seizure memos. However, on the subsequent date i.e. 17.04.2013, he submitted that two seizure memos which were sought to be filed, are not relied upon documents. Accordingly, further examination of PW74 was conducted. Thus, the prosecution did not file any other seizure memo despite seeking opportunity for the same which was granted by the Court.
57. Hence, the prosecution has failed to prove as to how and from where had these four registers been seized. It raises suspicion about CBI Case No. 242/2019 Page No. 39 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) the seizure of these registers. Ld. PP was unable to say as to who had seized these and from whom. Therefore, it can't be said with certainty that these had been seized either from the office of the society or from the custody of any of its office bearers. Since, the source of these registers is unknown, these become shrouded with doubt. No prosecution witness has proved these registers to have been maintained by the society. Exhibit marks have been put on these registers merely for identification purposes during the deposition of PW64 when he was asked to identify the signatures therein. No finding of guilt of any of the accused can be given on the basis of these unproved registers and when it is not known who seized these and from whose custody. It may be that these were manufactured by some other office bearer namely S.P. Chadha etc. whose names were in the FIR but weren't sent for trial for the reasons best known to the Investigating Officer (PW77).
58. Relying upon the judgment of 5 Judges Bench of the Hon'ble Supreme Court in Pooran Mal V/s Director of Inspection (Investigation), Income Tax, New Delhi & others, it was submitted by Ld. PP that any document on record should be considered if it is relevant even if it was obtained as a result of illegal search or seizure. I am afraid, the judgment is not relevant to the facts of this case. There is no evidence at all in this case about the above noted four registers. It is not that these registers were obtained in any illegal search or seizure but the fact is that no evidence has been lead to show who seized these, from whose custody, when and in what manner. Neither these registers nor their seizure have been proved by any witness. Hence, these cannot be considered in evidence.
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59. Taking it further, these registers along with specimen signatures of the three accused had been sent to the GEQD for comparison and expert opinion. No doubt, GEQD in its opinion Ex.PW76/C (colly.) has opined that some of the disputed signatures/writings in these registers tally with the specimens of these accused. However, before placing reliance upon the opinion of the GEQD, the prosecution has to prove that specimens of the accused were obtained actually, genuinely and voluntarily.
60. S139 to S145 [Ex.PW76/F (colly.)] and S700 to S768 (Ex.76/T-
18) are stated to be the specimen signatures of accused P.R. Nair and obtained in presence of PW80 and PW84 respectively. S167 to S170 (Ex.PW76/M) and S453 to S482 (Ex.PW70/T-10) are stated to be the specimen signatures of accused Sanjay Bajaj and obtained in presence of PW83 and PW88 respectively. S1 to S40, S42 to S70 and S71 to S120 [(Ex.PW75/E (colly)] are the specimen signatures of accused M. Omkaram and obtained in presence of PW81, PW85 and PW87 respectively. S258 to S263 (Ex.PW75/C) are stated to be the specimen signatures of accused Usha Chander and obtained in presence of PW86. Even though these witnesses PW80, PW81, PW83, PW84, PW85, PW86, PW87 and PW88 have identified their signatures on the aforenoted specimen sheets saying that these specimen signatures were given in their presence yet none of them had talked to the person giving signatures to know his identity and satisfy himself about his voluntariness in giving the specimens. Neither the prosecution nor these witnesses themselves produced any documentary evidence to show that they had been summoned to CBI office in this connection and that they had in fact visited the CBI office on that particular day. Even their statements u/s 161 Cr. P.C have not CBI Case No. 242/2019 Page No. 41 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) been recorded by the Investigating Officers. All this raises doubt as to whether the specimen signatures of these accused were obtained genuinely and voluntarily and whether the entire process had actually be witnessed by PW80, PW81, PW83, PW84, PW85, PW86, PW87 and PW88 respectively.
61. Since, it has been held that the proceedings registers Ex.PW34/R12 (A), Ex.PW34/R12 (B), Ex.PW34/R12 (C), and Ex.PW34/R12 (D) which bear the disputed writings/signatures attributed to these accused, cannot be read in evidence and also that the prosecution has failed to prove that the specimens of these accused were obtained genuinely and voluntarily, the opinion of GEQD on these registers becomes immaterial and cannot be relied upon. No findings of guilt can be given against any of these accused on the basis of GEQD opinion in these circumstances.
62. Further, it may be noted here that as per the prosecution case, the signatures at points Q783, Q790, Q792A, Q716, Q718A, Q722, Q725, Q730, Q733, Q737, Q740, Q744, Q747 and Q751 in the proceedings registers D-14 (Ex.PW64/J) are that of accused P.R. Nair. However, GEQD opinion Ex.PW76/C reveals that these signatures did not match with the specimen signatures of accused P.R. Nair (S139 to S145 and S700 to S768). This is a very material circumstance indicating the innocence of this accused. In addition to this, prosecution itself has stated in the charge-sheet that the signatures of accused P.R. Nair also have been forged by somebody else on the proceedings registers. This lends credences to the contentions raised on behalf of this accused that he himself has been victimised and thus, falsely implicated in this case.
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63. It is also alleged by the prosecution that Smt. Mariamma wife of accused P.R. Nair too has written various proceedings of the Managing Committee of the Society, which fact is corroborated by the opinion of the GEQD. Intriguingly, Smt. Mariamma has neither been arraigned as accused in this case nor has been cited as a witness. There is nothing on record to show as to when, where and in whose presence were her specimen signatures obtained by the investigating officer. In the absence of any evidence in this regard, it cannot be said that the specimen writing/signatures attributed to Smt. Mariamma on which the GEQD has given opinion, are actually her specimens.
64. Ld. PP has further argued that this accused P.R. Nair has received the possession of the plot of land from DDA on behalf of the society on 24.08.2000 and he had also deposited the some portion of land costs on behalf of the society vide two bank challans. The said possession letter and the bank challans are contained in the DDA file D-10. However, admittedly the possession letter as well as the bank challans were not sent to GEQD to obtain expert opinion on the signatures appearing on these documents. No other witness has identified the signatures of accused P.R. Nair either on the possession letter or on the bank challans. Therefore, the prosecution has failed to prove that accused P.R. Nair has deposited money on behalf of the society vide these bank challans and had received possession of the plot of land on behalf of the society vide the said possession letter.
65. As regards accused Sanjay Bajaj, it was also argued by Ld. PP that even if this Court holds that he had not given the specimen signatures S167 to S170 (Ex.PW76/M) and S453 to S482 (Ex,PW70/T-10) actually and voluntarily, still there is a letter CBI Case No. 242/2019 Page No. 43 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) Ex.PW76/U on record which bears the admitted handwriting/signatures of this accused and GEQD had given opinion on the basis of this letter also. His submission is that the portion of the GEQD opinion which is based upon the comparison of the admitted writing/signature of accused Sanjay Bajaj on the said letter with the disputed signatures/writings can be duly considered by this Court for holding him guilty of forgery of records. The arguments of the Ld. PP appears to be devoid of any merit. It is firstly for the reason that there is no evidence on record to show as to from whose custody was the said letter obtained by the investigating officer. There is no such seizure memo on record. When the investigating officer (PW77) was cross-examined on this aspect, he could not recollect who had handed over the said letter to him and whether he had prepared any seizure memo at the time of seizing it. He as well as the Ld. PP had failed to point out any such seizure memo from the record. PW77 also admitted that he did not record the statement of the person who handed over the said letter to him and did not cite that person as a witness in this case. Hence, it cannot be said on the basis of the above noted evidence in this regard that the letter Ex.PW76/U was obtained by PW77 from a genuine source and that it bears the admitted handwriting/signature of accused Sanjay Bajaj.
66. No other evidence has been adduced by the prosecution to prove the charges against accused Sanjay Bajaj.
67. Apart from the accusation that A-5 M. Omkaram had forged the proceedings registers of the society for the period 1998 to 2005 (which has not been proved beyond reasonable doubt, as discussed hereinabove), he is also alleged to have forged the signatures of V.S. CBI Case No. 242/2019 Page No. 44 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) Rana, S.P. Chadha, P.R. Nair and Ashok Pant on the resignation letters in their names. V.S. Rana has been examined as PW26 and he has deposed that the resignation letter in his name bears his signature. Thus, there has been no forgery on his resignation letter. S.P. Chadha has not been produced as a witness before this court and therefore, it cannot be said that the signatures on the resignation letter in his name are not his signatures and have been forged. P.R. Nair is himself as an accused in this case. It is ironical that the signatures on the resignation letter in his name are also stated to be forged whereas he himself is also alleged to have forged various other documents of the society. Ashok Pant has been examined as PW64. He has nowhere deposed that had not resigned from the membership of the society and that the signatures appearing on the resignation letter in his name are not his signatures.
68. Hence, the evidence on record nowhere shows that accused M. Omkaram had forged the signatures on the resignation letters of aforesaid four members of the society.
69. So far as accused Usha Chander is concerned, she has also alleged to have forged the signatures on the resignation letter in the names of Subhash Khurana, Deepak Kumar and Sunil Dhingra. It may be noted here that Usha Chander had become member of the society on 25.01.1998 and became its Secretary/Treasurer in August, 2001. The resignation letters in the names of aforesaid three members of the society pertain to the period prior to the year 1997, when accused Usha Chander was not in picture at all. The resignation letter in the name of Sunil Dhingra Ex.PW35/E is dated 10.04.1996. Since, there is no evidence to show that accused Usha Chander was associated CBI Case No. 242/2019 Page No. 45 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) with the society in the year 1996, there was no reason or occasion for her to forge the signatures on the said resignation letter. The resignation letter in the name of Deepak Kumar Ex.PW37/C is dated 19.10.1997 and refund receipt in his name Ex.PW37/D is dated 20.12.1997. He has admitted that he had received back Rs. 5000/- from the society. Similarly, the resignation letter in the name of Subhash Khurana Ex.PW40/D is dated 20.10.1997 and the refund voucher in his name Ex.PW40/C is dated 20.12.1997. He too has admitted that he received the refund of Rs. 5000/- from the society. Since, accused Usha Chander was not associated with the society in the year 1997, there was no cause or occasion for her to forge the signatures on the aforesaid resignation letters/refund vouchers. Further, the fact that these two members namely Deepak Kumar and Subhash Khurana have admitted having received the refund of Rs. 5000/- each from the society, indicates that they may have tendered resignation from the membership of the society voluntarily.
70. Thus, it is found that there is no cogent and reliable evidence on record to link the accused P.R. Nair, Sanjay Bajaj, M. Omkaram and Usha Chander with the conspiracy in this case or with the offences which have been committed pursuant to that conspiracy.
71. Coming to the charges levelled against accused Raman Verma. He was working as UDC/Dealing Assistant in the RCS office from 2002 to 2004. He is stated to have prepared a note dated 26.03.2004, thereby recommending the taking on record of the resignations of all the 120 members of the society mentioned in the earlier freeze list and approval of 108 fresh enrolments in their place. It is alleged that he has processed the said request of the society without application of CBI Case No. 242/2019 Page No. 46 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) mind and without exercising due care. In this regard, it may be noted that the conspiracy in this case had come to an end when the object was achieved in the year 2000 i.e. when the land was allotted to the society by the DDA. Therefore, the act attributed to this accused in the year 2004 does not come with the ambit of said conspiracy. That apart, no witness has identified the writing or the signature appearing the said note to be that of accused Raman Verma. No evidence has been lead by the prosecution to show that this note has actually been prepared by accused Raman Verma and bears his signatures. Even otherwise also, he cannot be held guilty merely on the basis of the said note. Dealing assistant is the lowest rung official and his duty is merely to receive the documents and forward the same to higher officials. He is not a decision making authority. It is not his job to conduct detailed examination/verification of the contentions of a society. PW62 has admitted in his cross-examination that it is not the duty of dealing assistant to physically verify the veracity of the resignation and enrolments of the members of the society as intimated by it to the RCS office. PW62 has served as Assistant Registrar in RCS office and thus can be said to be fully acquainted with the duties & responsibilities of dealing assistant.
72. Further, perusal of the aforesaid note dated 26.03.2004 reveals that the dealing assistant had only sent the request of the society for consideration and approval of the higher officers I.e. Assistant Registrar, Deputy Registrar and Finally the Registrar. The dealing assistant had even raised objections regarding 19 resignations. Thereafter, the file was put up before the higher officer in the RCS office and lastly before the Registrar who applied their minds independently to the representation/contention of the society and in CBI Case No. 242/2019 Page No. 47 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) their wisdom approved the resignation/fresh enrolments done by the society. There is nothing on record to show that they were mislead by any act of accused Raman Verma or that he pressurised or cajoled them in any manner to approve these resignation/fresh enrolments.
73. Hence, the prosecution has failed to prove the charges against this accused also.
74. It, thus, comes out from the analysis of the evidence adduced by the prosecution that no official posted in the RCS office was involved in the conspiracy alongwith accused Mohd. Waheed and F. D. Malik. Therefore, the charge u/s 13 (2) r/w 13(1)(d) P. C. Act does not survive.
75. Resultantly, accused F.D. Malik is hereby convicted of the offence of conspiracy u/s 120B IPC r/w 420, 468, 471 IPC. He is also convicted of the offences u/s 420 and 468 IPC. However, he is acquitted of all other charges. All the remaining accused namely P.R. Nair, Sanjay Bajaj, Usha Chander, M. Omkaram, A.K. Shankaran and Raman Verma are hereby acquitted of all the charges.
76. Before parting with, I find it necessary to note that the investigation in this case has been highly tainted, partisan and smacks of mala-fides on the part of the investigating officer. He has not conducted the investigation in a fair and impartial manner as is expected of any investigating officer. The material on record manifests that he has let off some of the accused named in the FIR without giving the reasons for the same and has cited some persons as witnesses, whose role was almost similar to the accused who have been charge-sheeted. S.P. Chadha was named as an accused in the FIR. He was the President of the Society from 1998 to 2000. He had CBI Case No. 242/2019 Page No. 48 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) inducted various members in the society during this period. The charge-sheet is totally silent about his role. It has nowhere been explained as to why he was not sent for trial. The investigating officer (PW77) has admitted that his specimen signatures were not obtained for comparison with the disputed signatures/writing on the forged proceedings as well as resignation letters. He has not even been cited as a witness. Similarly, there was allegation against Jagdish Kumar Badhwar in the FIR that he was builder and had dishonestly paid Rs. 20 lacs to the society in July, 1998 for allotment of land to it and got contract for construction of the flats of the society. Charge-sheet is silent about him also and it has nowhere been explained why he was let off. There are various signatures in the name of Razi Ahmed (PW55) in the proceedings registers of the society. However, his specimen signatures have not been taken and sent to GEQD to ascertain whether the signatures in his name in the records of the society are or are not actually his signatures. There is no explanation in this regard in the charge-sheet. Further, the role of one Roop Chand Jain has also been pointed out by many prosecution witnesses in their statements u/s 161 Cr. P.C and in their deposition before this Court. The investigating officer (PW77), has admitted in his cross- examination that he had interrogated Roop Chand Jain during the investigation of this case and also recorded his statement but did not annexe his statement along with the charge-sheet. He has neither been arraigned as an accused nor cited as a witness. Charge-sheet is silent about his role also.
77. It is expected that the concerned higher officers in CBI would find it necessary to enquire into the above noted lapses in the investigation and the partisan conduct of the investigating officer so CBI Case No. 242/2019 Page No. 49 of 50 CBI Vs. M. Waheed etc. (Chinar CGHS Ltd.) that a strong signal is sent all the officers of CBI who are involved in the investigation of various cases and to ensure that the investigation is always carried out in a fair, proper and impartial manner.
Announced through Video Conferencing
on CISCO Webex Meetings App. Digitally signed
by VIRENDER
BHAT
VIRENDER
Date:
BHAT 2020.09.26
11:55:22
+0530
(VIRENDER BHAT)
SPL. JUDGE (PC ACT), CBI-15,
ROUSE AVENUE DISTRICT COURTS,
NEW DELHI/25.09.2020
CBI Case No. 242/2019 Page No. 50 of 50