Delhi District Court
Cbi vs Narayan Diwakar Etc. (N.C.E.R.T ... on 23 August, 2024
IN THE COURT OF SH. AMITABH RAWAT
SPECIAL JUDGE (PC ACT)CBI-14, ROUSE
AVENUE DISTRICT COURT, NEW DELHI
CBI Case No. 148/2019
CNR No. DLCT11-000672-2019
CBI Vs. Narayan Diwakar & Ors. (NCERT CGHS)
FIR No. : RC 01/2006-EOU-IX, New Delhi
Branch : EOU-IX
Under
Sections : 120(B) IPC r/w Sec. 420, 468, 471 IPC &
Section 13 (2) read with Section 13 (1) (d) of PC
Act, 1988 and substantive offences under Section
420/511, 468, 471 IPC and Section 15 of PC Act
Central Bureau of Investigation (CBI)
Versus
1. Narayan Diwakar (A-1)
S/o Late C. Lal
R/o G-30, Masjid Moth,
Greater Kailash-II,
New Delhi-110038.
2. Yogi Raj (A-2)
S/o Sh. Girdhari Lal
R/o Plot No. 095, Block-A,
Sector-51, Noida, Gautam Budh Nagar,
U.P-201301
3. Niranjan Singh (Expired) (A-3)
S/o Late Babu Lal
R/o 309, Karkardooma,
Delhi Govt. Flats,
Delhi-110092.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 1
4. Faiz Mohammad (A-4)
S/o Late Gulam Mohd.
R/o 4794, Bara Hindu Rao,
Sadar Bazar, Pahari Dheeraj,
Delhi-110006.
5. Srichand (A-5)
S/o Sh. Hari Singh
R/o 274-A, Pocket-C,
Mayur Vihar Phase-II,
Delhi-110091
6. Anna Wankhede (A-6)
S/o Sh. P. Arunji Wankhede
R/o 148-E/A2, Phase-III, Mayur Vihar,
Delhi-110091.
7. Subhash Chandra Gupta (A-7)
S/o Sh. Ram Kumar Gupta
R/o 427, Behra Enclave,
Paschim Vihar, New Delhi.
8. Kuldeep Goel (A-8)
S/o Late Jagmohan Gupta
R/o F-IU 45, Pitampura,
New Delhi.
9. Rakesh Kumar Jain (Approver) (A-9)
S/o Sh.Khem Chand Jain
R/o A-168, Surya Nagar,
Ghaziabad, U.P.
10. R.N. Yadav (Expired) (A-10)
S/o Sh. Chandgi Ram,
R/o Village & Post Khera, Electric Pole No. 8
New Delhi-110043.
Date of institution of the case : 31.10.2006
Arguments concluded : 23.07.2024
Date of pronouncement of judgment : 23.08.2024
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 2
JUDGEMENT
1. The present judgment is the culmination of the criminal proceedings initiated against ten accused persons namely Narayan Diwakar (Public Servant), Yogi Raj (Public Servant), Niranjan Singh (Public Servant) (Expired), Faiz Mohammad (Public Servant), Srichand (Private Person), Anna Wankhede (Private Person), Subhash Chandra Gupta (Private Person), Kuldeep Goel (Private Person), Rakesh Kumar Jain (Private Person) and & R.N. Yadav (Public Servant) (Expired) in reference to the charge-sheet filed by CBI against them for various offences punishable under Indian Penal Code ( IPC, in short) and Prevention of Corruption Act, 1988 (PC Act, in short).
All accused persons were charge-sheeted 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. All public servants (A-1 to A-4 & A-10 ) were also charge-sheeted under Section 15 of the PC Act, 1988.
Accused A-4, A-5 & A-6 were additionally charge- sheeted under Section 468 & 471 IPC.
Accused A-5, A-6, A-7, A-8 & A-9 were additionally charge-sheeted under Section 420/511 IPC.
2. CHARGE-SHEET 2.1 As per the charge-sheet, the allegations in the FIR was that a defunct society by name of NCERT CGHS (National Council of Educational Research and Training Cooperative Group Housing Society) was got revived on 02-06-2003 on the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 3 basis of forged documents and false inspection reports by Srichand in collusion with Faiz Mohd, the then Grade-II Inspecting Officer of RCS Office, Niranjan Singh, the then Dealing Assistant, Yogiraj, the then Assistant Registrar of the RCS office and Narayan Diwakar, the then RCS (Registrar of Cooperative Societies) to get land allotted to the society from DDA at concessional rates.
2.2 The Investigation revealed that the society NCERT CGHS was formed and got registered in the RCS, Delhi office vide Registration No. 145 (H) on 23/10/1972 with address at NIE Campus, Shri Aurvindo Marg, New Delhi-110 016. The Bye- Laws of the society revealed that its aim was to obtain land from the Delhi Development Authority with a view to construct residential accommodation for its members. The promoters of this society in the initial stages was Ravinder Singh Ahluwalia in 1971 with 31 members and later on, by PSS Bhasin who had functioned as the Secretary. Further, Sh. Gaurishankar Mathur functioned as the Secretary of the Society in 1976 and played a prominent role in trying to get land from the DDA at a concessional rate.
2.3 Investigation further revealed that the NCERT CGHS applied for allotment of land under Group Housing Scheme to the DDA under the signature of Sh. Gauri Shankar Mathur who was the Secretary of the society in 1976. The list of 105 members was enclosed with the application for allotment of land. The NCERT CGHS had also deposited Rs. 5000/- as CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 4 earnest money towards allotment of land under Group Housing Scheme as required by the DDA. The DDA vide its offer letter dated 31.3.1977 had offered 2.8 acres of land in Pitam Pura and also stated that the society should deposit 25 % of the cost of land by 15.04.1977 addressed to the Secretary. The members of the society did not want land to be allotted at a far off place and wanted land nearby the office campus of NCERT. Further, the members did not deposit 25% of the cost of the land as an earnest money to the DDA. Since DDA was not in a position to offer land to the society nearby its office campus, the offer of allotment of land was not accepted/acted upon by the society. Accordingly, the offer of land was withdrawn for the society.
2.4 Investigation further revealed that the society was not able to achieve its objectives and after giving all reasonable opportunity, it was put under liquidation by Sh. Ashok Bakshi, the then Deputy Registrar vide order dated 23-03-1979 by exercise of power of RCS delegated to him by the competent authority. Shri. M.L Ahuja was appointed as the liquidator and copy of the order was sent to the Secretary of NCERT CGHS for depositing all the records in the RCS Office. In compliance of the said order, all the documents of the society were deposited in the RCS office by the then Secretary of the Society Sh. Gauri Shankar Mathur in 1979.
2.5 Investigation revealed that the process of land allotment was changed by the DDA pursuant to the order of Hon'ble High Court of Delhi passed in CWP No. 2885/90, titled CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 5 Kaveri CGHS Vs. Union of India and others. The Hon'ble Delhi High Court had issued directions to the DDA to maintain a seniority list of the CGHS on the basis of the date of registration with the RCS office and to allot land to the eligible CGHS strictly as per the seniority list.
2.6 Investigation further revealed that in late 1990's price of the land escalated in the NCT of Delhi. With a view to grab land from the DDA at the concessional rate, certain builders and their henchmen hijacked the cooperative movement for providing dwelling units to the middle class. They conspired to get the defunct CGHS, having old registration, revived in connivance with RCS officials by fabricating forged documents.
2.7 Investigation revealed that sometime in the year 2003 with a dishonest intention to obtain land from the DDA at a concessional rate, accused Shrichand (A-5), Anna Wankhade (A-
6) and RCS officials namely Narayan Diwakar (A-1), Yogiraj (A-2), Nirnajan Singh (A-3) and Faiz Mohd. (A-4) hatched a criminal conspiracy to fraudulently revive NCERT CGHS on the basis of forged and fabricated documents. In furtherance of this conspiracy, accused Shrichand and Anna Wankhade prepared forged and fabricated documents viz affidavits of the 125 members, their membership application forms, their receipt of membership fee, account/audit papers for 32 years, minutes of the meetings (proceeding register), election proceedings etc. An application dated 04.04.2003 purportedly signed by C.P Malhotra (President), Smt. Tripta Sareen (Treasurer) and S.C Sharma CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 6 (Secretary) was filed by accused Srichand in the RCS office with a request to revive the NCERT CGHS. It was mentioned in the request that CGHS was continuously being run in accordance with Delhi Cooperative Societies Act and Rules and office bearers of the CGHS were not aware that their society was declared defunct.
In connivance with accused Srichand, accused Niranjan Singh (A-3) by misuse of his official position as a public servant submitted note dated 04.04.2003 to appoint accused Faiz Mohd as the Inspecting Officer of the society to verify the status of the society. It was pointed out that in the RCS file of NCERT CGHS, no relevant documents viz note sheets, initial list of members having name of three self styled office bearers, their affidavits, proof of identity and residence etc., were available. No efforts were made to check the status of the society at the time of receiving the application for revival, and as to why there was no movement on file for 27 years by the accused officials of RCS office. The note of Niranjan Singh was approved by Yogiraj (A-2) the then, Assistant Registrar, North West Region and also by N Diwakar (A-1), the then Registrar of Cooperative Societies as part of the conspiracy. In furtherance of the said conspiracy, a false Inspection Report (dated 16.04.2003) was prepared by Faiz Mohd. (A-4), the then Grade-II Inspecting Officer by abusing his official position stating that the society was functioning from its address at F-2/244, Sector-16, Rohini, Delhi and he had met the President of the Society Shri C.P Malhotra and verified the records of the society and have come to CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 7 the conclusion that the society consisted of 125 member and audit of the society is yet to be completed and the last General Body Meeting was held on 30.03.2003. This false/fabricated report of accused Faiz Mohd (A-4) was submitted by the dealing assistant Niranjan Singh (A-3), through his note on 17.04.2003 to Yogiraj, Assistant Registrar, North West (A-2) with a dishonest intention and request to revive the society under Section 63 (3) of the DCS Act 1972, and also to approve the list of the 125 members for allotment of land.
2.8 In furtherance to the conspiracy already hatched, Narayan Diwakar the then RCS (A-1) with a dishonest intention and by abuse of his official position as a public servant revived the society on 02.06.2003 without ensuring proper audit & election proceedings. Immediately thereafter on 07.10.2003, the list of 125 approved members was sent to the DDA (Delhi Development Authority) for allotment of land by Yogiraj (A-2) the then, Assistant Registrar as the cut off date fixed by the DDA was 31/10/2003.
2.9 During investigation, it was further revealed that the NCERT CGHS never existed at the given address i.e. at plot No. F-2/244, Sector-16, Rohini, Delhi. The said office bearers have not been found in existence at the given address. During investigation, three persons namely Shri. C.P Malhotra, Tripta Sareen and SC Sharma Ex-employees of NCERT were located and examined. They had stated that they never signed on those documents at any point of time nor held those posts in the society CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 8 even though they were former members of the NCERT CGHS which had ceased to exist long back. Further their parentage / name of spouse, &addresses of these persons shown in the affidavits, membership application forms/list of approved members forwarded by the accused Yogi Raj to the DDA are entirely different.
2.10 It was further revealed that the forgery of their signatures was done by Anna Wankhade (A-6) in conspiracy with Srichand (A-5). The opinion of the handwriting expert was obtained which confirmed the fact that the forgery was got done by Anna Wankhade (A-6). The opinion has also revealed that apart from forging the signatures of C P Malhotra, Tripta Sareen and SC Sharma, Anna Wankhade (A-6) has also forged the signatures of other members of the society. It was further revealed that the forged affidavits of the members and their membership application forms that were submitted in the RCS office at the time of the revival were got typed from two typing centres in Delhi by name Vaishnav Computer and a Typing Centre in Khichripur, Delhi and Lal Commercial College in Trilokpuri, New Delhi by Srichand (A-5) in conspiracy with Anna Wankhede (A-6). Investigation also revealed that other former members of the society have never filed such affidavits in their names and have denied their signatures on the same and stated it to have been forged. The minutes of the meetings of the Society purportedly held on various dates indicating election of new Managing Committee Members, change of address of the Society, which were also submitted at the time of revival, were CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 9 got fraudulently prepared by Sri Chand at his residence 2.11 It was also revealed that the initial bye laws of the NCERT CGHS restricted the membership mainly to the employees of NCERT. With dishonest intention to sell the membership in future at a premium and to accommodate people of their choice, the bye-laws of the society was changed by adopting a different bye laws having no such restriction. Forgetting the separate set of bye-laws approved, accused Srichand submitted 04 sets of model bye-laws and also submitted a false report to the RCS office that the original bye-laws has been misplaced and a report regarding the same has been lodged with the Parliament Street Police Station. Investigation has revealed that such a report was never lodged with the Parliament Street Police Station.
2.12 Further, to change their identity, the name of the NCERT CGHS was changed as Imperial Residency Apartments CGHS which was approved by the then, RCS N Diwakar (A1) on 05.09.2003 in conspiracy with Shrichand (A-5), Yogiraj (A-2) and Niranjan Singh (A-3).
2.13 Investigation further revealed that the revival order of the society was passed in haste with ulterior motive without complying the requirement of audit& elections. To rectify the same, RN Yadav Jr. Auditor (A-10) of RCS office also joined the conspiracy with Srichand (A-5) & other RCS officials. He prepared fabricated audit report in respect of non-existing CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 10 NCERT CGHS for the last 32 years from 1971 to 2003 and placed them in the relevant file. Contrary to the audit report, no account of the NCERT CGHS was existing in the Delhi State Cooperative Bank during the relevant period. So the investigation conducted had revealed that the society NCERT CGHS which was put under liquidation since 1979 and wherein offer of allotment of land was closed by the DDA and earnest money was forfeited in 1978 was revived by the RCS officials N Diwakar(A-1), the then RCS, Yogiraj (A-2) the then Asst. Registrar and Niranjan Singh (A-3) the then, Dealing Assistant and Faiz Mohd (A-4),the then Grade-II Inspecting Officer by abusing their official position in conspiracy with Shrichand (A-5) and Anna Wankhade (A-6) by submission of forged documents and fraudulent means.
2.14 Investigation further revealed that in the year 2003 the DDA was ready to allot approximately 80 plots to the eligible CGHS. For this purpose RCS was requested to send recommendation by 31/10/2003. It was further mentioned that reason of recommendation in respect of CGHS having registration number below 582 should also be mentioned. However, no such reason was mentioned in the letter dated 07/10/2003 vide which list of 125 members was forwarded by Yogi Raj to the DDA for allotment of land to the NCERT (Imperial Apartments CGHS). Thereafter, the DDA had called for the preference of the CGHS for allotment of land in different localities of Delhi. In the meantime papers of the revived society were sold by accused Srichand and Anna Wankhede to CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 11 builders/property dealers namely Subhash Gupta (A-7), Kuldeep Goel (A-8) and Rakesh Jain (A-9) for a sum of Rs. 60Lacs and changed the office address as plot No. 144, Pocket D/2, Sector-8, Rohini, Delhi .
2.15 It was also revealed that a new set of Committee Members were formed by Subhash Gupta (A-7) Rakesh Jain(A-
9) and Kuldeep Goel (A-8), in which Rakesh Jain (A-9)was the President. It was also revealed that the relatives of Subhash Gupta and Kuldeep Goel were made Vice-President, Treasurer and Members and forged minutes of meeting dated 15-12-2003 was forwarded to the RCS office for change of address of the society as plot No. 144,Pocket D-11, Sector 8, Rohini, Delhi from where the society never functioned.
2.16 Investigation revealed that Subhash Gupta (A-7), Kuldeep Goel (A-8) and Rakesh Jain(A-9) got sent their preferences for location of land vide letter dated 15/12/2003 to the DDA in which preference was given as Dwarka, Karkarduma, Rohini, Dhirpur and Narela.
2.17 Investigation further revealed that in the DDA,it was decided to ascertain the present status of the CGHS and its members, hence RCS office was requested to furnish current status. For the purpose of verification, individual notices were issued in the year 2005 to all the 125 members by the RCS office to submit proof of their membership including their photographs, etc duly attested by a Gazetted Officer and supported by a fresh CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 12 affidavit. Notice in this regard was also published in the news papers. Investigation revealed that out of the notices issued by the RCS office, only 10 persons responded to the same who were the original members of the NCERT. Also efforts to contact the remaining members during the course of investigation were futile as it was revealed that the addresses /persons given in the affidavits were non-existent.
2.18 In furtherance of this conspiracy, an advertisement was placed in Nav Bharat Tines and Times of India dated 05.01.2005 asking them to file their affidavits and membership details so that the same can be forwarded to the RCS office by accused Kuldeep Goel (A-8). The address of the society was given as 77-A, Dilshad Garden, Delhi from where the society never functioned.
2.19 Investigation further revealed that due to non- existence of the persons figuring in the approved list of members, no response was received in the RCS office except from the above mentioned 10 persons. At this stage, with a view to show the change in the membership, affidavits from 38 different persons was obtained and deposited in the RCS office by Subhash Gupta (A-7), Kuldeep Goel (A-8) and Rakesh Jain (A-
9) which were different from the 125 members forwarded at the time of revival and with address of the CGHS as 77-A, Dilshad Garden, Delhi. However, the change/enrollment of the new members duly supported with resignation of old members, applications of new members and approval of change by the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 13 Managing Committee was not submitted including the approval of then Committee for change of address.
2.20 Investigation further revealed that out of thirty eight persons shown as members, most of them had no idea about the society NCERT CGHS and had signed blank affidavits and given their photographs in good faith in the hope of getting flats allotted to them. Further some of them are not even eligible to be member of the CGHS being property dealer/builder or already having property in the area of NCT of Delhi. In the meantime, the case was entrusted to CBI for investigation on the orders of the Hon'ble Delhi High Court.
2.21 The requisite sanction for prosecution of public servants namely Yogi Raj (A-2), the then Assistant Registrar, North West of the RCS office and Niranjan Singh (A-3) the then Dealing Assistant of the RCS office was given by D.K.Mishra, Addl. Secretary and R. Narayanswami. Since Narayan Diwakar (A-1), the then RCS and Faiz Mohammad (A4), the then Grade- II Inspecting Officer had retired from service and no more public servants, hence no sanction for prosecution was required.
3. The accused Rakesh Jain (A-9) was granted pardon on 12.03.2007. It appears from the order-sheet dated 13.03.2007 that accused Rakesh Jain was granted pardon on 12.03.2007 and hence, his name was deleted from the list of accused. The order granting pardon and original statement of A-9 under Section 164 Cr.P.C was not traceable and inquiry was ordered against the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 14 erring official. The original statement under Section 164 Cr.P.C recorded by Ld. Magistrate and the order of pardon could not be located. The copy of the statement under Section 164 Cr.P.C was in the file and PW-78 Sh. Manish Yaduvanshi, the Ld. Magistrate, who recorded such statement, was examined as a witness. Though the order of pardon was not traceable yet, the order-sheet of 13.03.2007 does record that such order of pardon was perused by the Court and the name of A-9 was deleted from the list of accused.
The name of accused turned approver Rakesh Jain in the title of the case is for showing his status and convenience.
4. CHARGE 4.1 On 17.04.2012, charges against the accused persons were framed as follows :-
(A) Charge for commission of offences under Section 120-B r/w Section 420/468/471 IPC and under Section 13 (2) r/w S. 13 (1) (d) of PC Act, 1988 was framed against following accused persons :-
1) Narayan Diwakar (A-1);
2) Yogi Raj (A-2);
3) Niranjan Singh (A-3);
4) Faiz Mohd. (A-4);
5) Srichand (A-5);
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 15
6) Anna Wankhade (A-6);
7) Subhash Gupta (A-7);
8) Kuldeep Goel (A-8);
9) R N Yadav (A-10);
(B) A separate charge for commission of offence under Section 15 of the PC Act, 1988 was framed against following accused persons :-
1) Narayan Diwakar (A-1);
2) Yogi Raj (A-2);
3) Niranjan Singh (A-3);
4) Faiz Mohd. (A-4);
5) R.N. Yadav(A-10).
(C) A separate charge for commission of offence under Section 468/471 IPC was individually framed against accused Faiz Mohd. (A-4).
(D) A separate charge under Section 420/511/468/471 IPC was individually framed against accused persons namely Srichand (A-5) and accused Anna Wankhade (A-6); and (E) Also separate charge under Section 420/511 IPC was individually framed against accused persons namely Subhash Gupta (A-7) and accused Kuldeep Goel (A-8).
All accused persons pleaded not guilty and claimed CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 16 the trial.
5. During the trial, accused R.N. Yadav (A-10) expired (his death was duly verified and verification report confirming the death of accused was filed on record on 29.11.2013). The surety was discharged vide order dated 28.02.2014.
Accused Niranjan Singh (A-3) also expired and proceedings qua him were abated vide order dated 03.03.2020.
6. 6.1 After framing of charges, prosecution, in order to prove its case, examined as many as 83 witnesses. Initially, prosecution had examined 81 witnesses; however, at the stage of final arguments, an application under Section 311 Cr.P.C was moved on behalf of CBI for calling three additional witnesses and the same was allowed. Consequently, Sh. Rajbir and Sh. Rajesh Kumar were examined as PW-82 & PW-83 respectively. The third witness Sh. C.P. Malhotra had, by then, passed away.
6.2 The examined witnesses and documents exhibited in evidence are detailed as under :-
PW No Name of the witness Documents exhibited in evidence PW-1 Sh.Deepak Kapoor Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW1/A, Form-60 dated 08.01.2005 as Ex.PW1/B and photocopy of his election Card Ex.PW1/C. PW-2 Sh. Anish Singla Affidavit attested on 12.01.2005 in relation to Imperial Residency CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 17 CGHS Ltd. as Ex.PW2/A, and Form-
60 dated 11.01.2005 Ex. PW2/B and Statement under Section 161 CrPC Mark AB.
PW-3 Sh. Pankaj Bhasin Affidavit attested on 05.04.2003 in relation to NCERT employee CGHS as Ex.PW3/A & photocopy of application form for membership Ex.PW3/B. PW-4 Sh. Bhartu Affidavit attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW4/A, Form- 60 dated 12.01.2005 Ex.PW4/B & photocopy of Election Card Ex.PW4/C. PW-5 Smt. Sarita Jain Affidavit attested on 15.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW5/A. PW-6 Sh. Arun Kumar Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd., as Ex.PW6/A and Form 60 dated 07.01.2005 as Ex.PW6/B. Copy of his Ration Card Mark X. Statement under Section 161 CrPC Marked 6X.
PW-7 Sh. Mukesh Jain Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW7/A and affidavit of Ratan Lal Jain attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW7/B. Statement under Section 161 CrPC Marked 7X.
PW-8 Sh. Sunil Arora Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW8/A. Statement under Section 161 CrPC CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 18 marked AX.
PW-9 Sh. Gaurav Kainth Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex.PW9/A and Form 60 dated 10.01.2005 Ex.PW9/B. Election I-card Mark 9X.
Statement under Section 161 CrPC marked 9Y.
PW-10 Ramesh Prosecution sanction Ex.PW10/A Narayanswai (Colly) qua accused Niranjan Singh (Sanctioning (A-3) (already expired). Authority for deceased accused Niranjan Singh) PW-11 Smt. Pushpa Kapila Affidavit attested on 05.04.2003 in Sonan relation to NCERT employees CGHS as Ex.PW11/A, membership application Ex.PW11/B and bye-
laws Ex.PW11/C (Colly), Ex.PW11/C-1 (Colly) & Ex.
PW11/C-2 (Colly.), list of members to whom communication/ letters were sent Ex.PW11/D. UPC list of members Ex.PW11/E, carbon copy of notice/letter no.
F47/163/policy/RCS/2004/NW/145/( H)/3296dated 14.01.2005 Ex.PW11/F, list of NCERT Employees CGHS for verification of members Ex.PW11/G, cover letter dated 03.07.2003 Mark 11X and copy of share money receipt no.23 dated 22.05.1971 Mark 11X-1.
PW-12 Sh. Surender Kr. Affidavit attested on 15.01.2005 in Gaur relation to Imperial Residency CGHS Ltd. as Ex.PW12/A. PW-13 Sh. Ramesh Chand Affidavit attested on 12.01.2005 in Bansal relation to Imperial Residency CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 19 CGHS Ltd. as Ex.PW13/A, Form 60 dated 10.01.2005 Ex.PW13/B and photocopy of his ration card Ex.PW13/C. PW-14 Sh. Subhash Chand Affidavit attested on 15.01.2005 in Singhla relation to Imperial Residency CGHS Ltd. as Ex.PW14/A and affidavit of Rakesh Jain attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd., Ex.PW14/B. PW-15 Sh. Bhim Chand Affidavit attested on 12.01.2005 in Goel relation to Imperial Residency CGHS Ltd. as Ex.PW15/A, Declaration Form no.60 dated 07.01.2005 Ex.PW15/B and copy of his passport Ex.PW15/C. PW-16 Sh. Sharan Kumar Copy of share money Receipt no. 47 Rajpaul dated 15.011.1978 Ex.PW16/A, (He retired from Verification Certificate dated NCERT as a Senior 14.03.2005, copy of PAN card, copy Accountant in 2003) of office I-card, detail of bank account and detail of monthly pension are Ex.PW16/B (colly), application of membership Ex.PW16/C, affidavit attested on 05.04.2003 in relation to NCERT Employee CGHS as Ex.PW16/D and notice/letter no. F47/163/ policy/RCS/2004/NW/145/(H)/3319 dated 14.01.2005 as Ex.PW16/F. PW-17 Smt. Santosh Anand Application regarding filing of documents addressed to AR for RCS Ex.PW17/A, Verification Certificate Ex.PW17/B, Form-60 dated 21.02.2005 Ex.PW17/C, photocopy office I-card Ex.PW17/D, affidavit attested on 22.02.2005 regarding residential address and bank detail as Ex.PW17/E and photocopy of her voter ID Card Ex.PW17/F. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 20 PW-18 Ms. Neetu Jain Affidavit attested on 15.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex. PW18/A. PW-19 Sh. Chetan Prakash Application for membership Malhotra Ex.PW19/A, copy of share money receipt no. 95 dated 25.05.80 Ex.PW19/B and Affidavit attested on 05.04.2003 in relation to NCERT Employees CGHS Ltd. As Ex.PW19/C. PW-20 Ms. Shalini Gupta Affidavit attested on 12.01.2005 in relation to Imperial Residency CGHS Ltd alongwith its enclosures i.e. Form-60 and copy of passport as Ex.PW20/A (Colly).
PW-21 Sh. Kapil Bhardwaj Affidavit attested on 15.01.2005 in relation to Imperial Residency CGHS Ltd, Form-60 and copy of passport as Ex.PW21/A (Colly).
PW-22 Sh. Parmanand Joshi Affidavit attested on 15.01.2005 in relation to Imperial Residency CGHS Ltd as Ex.PW22/A and affidavit of Raj Kumar Sharma attested on 15.01.2005 in relation to Imperial Residency CGHS Ltd as Ex.PW22/B. PW-23 Sh. Ankur Kumar Affidavit attested on 15.01.2005 in Jain relation to Imperial Residency CGHS Ltd as Ex.PW23/A. PW-24 Sh. Hari Shankar Affidavit attested on 12.01.2005 in Aggarwal relation to Imperial Residency CGHS Ltd as Ex.PW24/A and affidavit of Lal Chand Aggarwal attested on 12.01.2005 in relation to Imperial Residencey CGHS Ltd., as CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 21 Ex.PW24/B. PW-25 Sh. Peeyush Dropped by prosecution.
Bhardwaj PW-26 Sh. Surender Kumar Affidavit attested on 15.01.2005 in Jain relation to Imperial Residency CGHS Ltd as Ex.PW26/A and his statement recorded u/s 161 Cr.P.C dated 27.03.2006 by the IO Ex.PW26/PX.
PW-27 Sh. Deepak Kumar Affidavit attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd as Ex.PW27/A. PW-28 Sh. Vineet Gupta Affidavit attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd as Ex.PW28/A, Form-60 dated 10.01.2005 as Ex.PW28/B and copy of his Driving License Ex.PW28/C. PW-29 Sh. Mohan Lal Copy of proceedings of GBM of NTO CGHS dated 30.03.2003 Ex.PW29/A, copy of proceedings of GBM was held on 17.06.1977 Ex.PW29/B, Specimen handwriting/ signatures dated 12.05.2006 Ex.PW29/C (Colly), his statement dated 16.10.2006 recorded u/s 164 Cr.P.C Ex.PW29/D and his statement dated 11.05.2006 recorded u/s 164 Cr.P.C Ex.PW29/E. PW-30 Sh. Mukesh Chand Application for Membership Jain Ex.PW30/A, UPC list dated 07.07.2003 Ex.PW30/B (Colly) and list of promoter members to be appended with Bye Laws of society at the time of registration Ex.PW30/C (Colly).
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 22 PW-31 Sh. Surjeet Goel Affidavit attested on 13.01.2005 in relation to Imperial Residency CGHS Ltd in the name of Sh.
Narender Nath as Ex.PW31/A and affidavit attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd, in the name of Sh. Arun Kumar Gautam as Ex.PW31/B and his statement under Section 161 CrPC dated 30.05.2006 recorded by the IO Mark 31/PX.
PW-32 Sh. H.P. Singh Affidavit of Ms. Karuna Singh ((He worked as attested on 05.04.2003/ Stamp Stamp Vendor from papers as Ex.PW32/A (Colly), 1996 to 2012 at Affidavit of Sh. Mohinder Jeet Patiala House Khanna dated 05.04.2003 as Courts) Ex.PW32/B (Colly) and Affidavit of Sh. Ved Prakash Chopra dated 05.04.2003 as Ex.PW32/C (Colly) in favour of NCERT CGHS, page no.
271 and 272 of entry register Ex.PW32/D. Back side of Stamp papers Mark PW32/PA (Colly), Mark PW 32/PB (Colly) and Mark PW32/PC (Colly).
PW-33 Sh. Ramesh Duggal Seizure Memo regarding duplicate (He was running a copy of receipt no.556 dated advertising agency 24.02.2005 given to Imperial under the name of Residency issued by Rank Rank Advertising Advertising Ex. PW 33/A, Bill-cum- Agency) Receipt no. 556 dated 24.02.2005 memo of Rs. 18,500/- Ex.PW 33/A-1 and statement under Section 161 Cr.P.C Mark PW33/PA.
PW-34 Sh. Devender He is a stamp vendor and had sold
Kumar the stamp paper in the name of
(He worked as a Gaurav, Anish Singla, Sunil Arora,
Stamp Vendor from Bhimchand, Deepak Kapoor and
1983 to 2004 at Tis Shalini Gupta.
Hazari Courts,
Delhi)
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 23 PW-35 Sh. Sanjay Brother-in-law of accused Subhash Aggarwal Chander Gupta. He used to do liaising work in private with the DDA.
PW-36 Sh. Raj Kumar Affidavit of Sh. Shiv Mohan Singh Sharma attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd., as Ex.PW36/A. PW-37 Sh. Narender Nath He denied his signature on his affidavit dated 13.01.2005 as Ex.
PW31/A. PW-38 Sh. Kanhiya Lal Affidavit of PW-38 attested on 17.01.2005 in relation to Imperial Residency CGHS Ltd. as Ex. PW-
38/A. PW-39 Sh. Satish Kumar He exhibited Affidavit dated Relan 13.01.2005 of Narender Nath as (Ex.
PW31/A).
PW-40 Sh. Deepak He deposed that the photocopy of Voter ID Card of Sh. Kanhiya Lal (Ex. PW40/A) was given by him to one Mr. Thapar, Affidavit in the name of Sh. Hariraj Sharma attested on 17.01.2005 in relation to Imperial Residency, CGHS Ltd., as Ex.
PW40/B, photocopy of driving license of Sh. Hariram Sharma Ex.
PW40/C, Affidavit in the name of Sh. Gopal, attested on 17.01.2005 in relation to in relation to Imperial Residency, CGHS Ltd., as Ex.
PW40/D, photocopy of driving licnese of Sh. Gopal Ex. PW40/E and photocopy of the voter I card of Sh. Arun Kr. Gautam Ex. PW40/F. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 24 PW-41 Sh. Harinder Pal His statements under Section 161 Singh Cr.P.C was recorded by IO Ex.
PW41/PX and Ex. PW41/PX-1.
PW-42 Sh. Shiv Mohan He identified photographs of Rakesh
Singh Kumar Jain and Raj Kumar Sharma
respectively from their affidavits Ex. PW14/B & PW22/B. He identified his photograph and signature on affidavit as (Ex. PW36/A).
PW-43 Sh. Arun Kumar He exhibited the Form-60 dated
Gautam 12.01.2005 Ex. PW43/A and his
statement under Section 161 Cr.P.C
as Ex.PW43/PX.
PW-44 Sh. Bansi Lal Pandit He proved affidavit attested on 05.04.2003 in relation to NCERT-
CGHS as Ex. PW44/A, photocopy of Share Money Receipt No. 33 as Mark 44/B, application for membership as Ex. PW44/C, list of members enrolled since registration of the Society as Ex. PW 44/D, photocopy of minutes of General Body Meeting of the society held on 03.08.2003 at F-2/244, Sector-16, Rohini, Delhi under the chairmanship of Sh. C.P. Malhota as Mark 44/E. PW-45 Ms. Rashmi Gulati She proved her Vakalatnama Ex.
PW45/A and statement Mark 45/X. PW-46 Sh. Neeraj Kumar File No. F-47/145/Coop/GH as Ex.
PW46/A (D-1) & RCS's Office file pertaining to NCERT Employees-
CGHS as Ex. PW46/B (Colly), and Check-list for submission of Audit Reports Mark PW46/A (Colly) & Managing Committee member's list as on 31.03.2003 as Mark 46/B (Colly).
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 25 PW-47 Sh. M.G. Chaturvedi Proceedings of meeting of the Managing Committee Members of NCERT Employees CGHS held on 02.03.2003 and 30.03.2003 Ex.
PW47/A & Ex. PW47/B respectively, File pertaining to Imperial Group Housing Society as Ex. PW47/C (D-3,Vol.-III), application for membership Ex.
PW47/D. He also proved affidavit attested on 05.04.2003 in relation to NCERT Employees-CGHS as Ex.
PW47/E and the entry at sr. no. 43 in agenda notice of meeting of the Managing Committee Members of NCERT Employees CGHS held on 02.03.2003 as Mark A. PW-48 Sh. Ashok Bakshi Winding up and Liquidation Order (the then Deputy dated 23.03.1979 in respect of Registrar, RCS) NCERT Employees CGHS as Ex.
PW48/A, copy of Notification dated 18.10.1977 issued by Sh. Ganga Dass, the then Special Secretary (Co-
op) Delhi Administration, Delhi through which he was delegated the power of RCS by the Lt. Governor Ex. PW 48/B, Memo dated 29.01.1979 regarding deficiencies in audit report as Ex. PW48/C, notices dated 27.09.1978 regarding payment of audit fees and 31.10.1997 Ex.
PW48/D & Ex. PW48/E
respectively, Memo dated
31.08.1977 regarding deficiencies in audit report as Ex. PW48/F, Notice dated 24.08.1977 regarding audit report of the society as Ex. PW48/G, requisition letter dated 06.07.1977 by Asst. Registrar Ex. PW 48/H, letter dated 02.07.1977 by Asst.
Registrar(Urban) to the Secretary, NCERT-CGHS for preparation of CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 26 annual statements and report as Ex.
PW 48/I, notice dated 31.05.1977/14.06.1977 regarding payment of audit fees as Ex. PW48/J and letter dated 23.05.1977 by Asst.
Registrar to Secretary, NCERT-
CGHS as Ex. PW48/K and Order dated 02.08.1971 vide which the society was registered on 23.10.1972 with registration no. 145 (H) Registration Certificate in respect of Imperial Residency Apartment-
CGHS dated 23.10.1972 as Mark.
PW48/A. PW-49 Sh. V.K. Bansal Photocopy of the Delhi Co-operative (Asst. Registrar, Societies Act 1972 Ex. PW49/A, RCS from 2004 to photocopy of the Delhi Co-operative 2008) Societies Rules 1973 Ex. PW49/B, Copy of Compendium of Directives and Circulars/Notification issued by Co-operative Department, Govt. of Delhi, published by the Delhi State Co-operative Union Ltd. 31 Netaji Subhash Marg, Darya Ganj, New Delhi Ex. PW49/C Noting dated 08.04.2003 at page no. 9/N to 37/N in file D-1 Ex. PW 49/D to Ex.PW 49/K, Letter dated 03.07.2003 regarding approval of freeze list of members as Ex. PW49/L, Order dated 09.04.2003 nominating Faiz Mohammad as Inspecting Officer as Ex. PW49/L-1 and Revival Order of NCERT Society dated 02.06.2003 as Ex. PW49/M, Order dated 02.08.2000 passed by Office of RCS as Mark DX (Colly).
PW-50 Smt. Neeru Gupta She proved minutes of meeting of Managing Committee of Imperial Residency Apartments-CGHS held on 15.12.2003 as Ex. PW50/A, her statement under Section 161 Cr.P.C CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 27 Mark-PW50/PX.
PW-51 Sh. Pawan Garg He proved his specimen signatures as Ex. PW51/A (Colly), statements under Section 164 Cr.P.C as Ex.
PW51/B and under Section 161 Cr.P.C as Ex. PW51/C. PW-52 Sh. Ajit Krishan He proved application form for Duggal membership as Ex. PW52/A, Affidavit in his name and attested on 05.04.2003 in relation to NCERT Employees- CGHS as Ex. PW 52/B, lists of promoter members to be appended with Bye Laws at the time of registration of the society Ex.
PW52/C (Colly) & Ex. PW52/D (Colly), list of member of the society as on 31.03.2001 as Ex.PW52/E and list of verification of membership for sending the list of members to DDA for allotment of land as Ex. PW52/F. PW-53 Sh. Harinder Singh He deposed that he was appointed as Mehta Notary Public in 2003 for five years (Notary) which he renewed again and again till year 2018. On seeing documents (affidavits) as already (Ex. PW9/A, PW13/A, PW2/A, PW8/A, PW15/A, PW1/A & PW20/A), he deposed that all these affidavits were not attested by him. He deposed that he never met Sh. Gaurav, Sh. R.C. Bansal, Sh.
Anish Singhla, Sh.Sunil Arora, Sh.
Bheem Chand, Sh. Deepak Kapoor and Mrs. Shalini Gupta, who were shown deponent in the said affidavits.
PW-54 Sh. Rajender Singh He deposed that he was appointed as Beniwal Notary Public in 2000 for five years (Notary Public) which he renewed again and again till year 2015. On seeing documents (affidavits)already Ex. PW31/A, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 28 PW7/B & PW24/A, he deposed that all these affidavits were not attested by him. He deposed that he never met Sh. Narender Nath, Sh. Ratan Lal Jain and Sh. Hari Shankar Aggarwal, who were shown deponent in the said affidavits.
He proved specimen of notary rubber stamp, attested stamp and specimen signatures as Ex. PW54/A and photocopies of Notary Entry Register from Sl. No. 3272 dated 11.01.2005 to 3378 dated 18.05.2005 as Ex. PW54/B (Colly).
PW-55 Sh. Om Prakash Membership fee receipt issued on Arora 09.03.1976 as Ex. PW55/A, share money receipt no. 84 dated 15.11.1978 as Ex. PW55/B, application for becoming a member as Ex. PW55/C, affidavits attested on 05.03.2003 in relation to NCERT Employees -CGHS as Ex. PW55/D, meeting of Management Committee held on 02.03.2003, 30.03.2003, 02.03.2003 & 30.12.2002 as Ex.
PW55/E to Ex. PW55/H respectively, list of verification of membership for sending the list of members to DDA for allotment of land as Ex. PW55/J and letter dated 14.01.2005 by AR, RCS to Om Prakash Arora for producing documents as Ex. PW55/K. PW-56 Sh. Jogender Dahiya Affidavit in the name of Mahavir (Notary) Prasad in relation to Imperial Residency-CGHS as Ex. PW56/A & specimen of Notary Stamp as Ex.
PW56/B. PW-57 Sh. Surender Kumar Affidavits in the name of Vijender (Notary) Singh Dagar & Peeyush Bhardwaj CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 29 attested on 15.01.2005 in relation to Imperial Residency- CGHS as Ex.
PW57/A, Ex. PW57/B, specimen impression of notary seal as Ex.
PW57/C and Notary Register maintained by him about the affidavits/documents attested by him on 15.01.2005 as Ex. PW57/D. PW-58 Sh. Mahender Copy of share money receipt no. 34 Kumar Gupta dated 15.11.1978 as Ex. PW58/A, copy of application for membership as Ex.PW58/B, affidavit attested on 05.04.2003 in relation to NCERT Employees as Ex. PW58/C, letter dated 14.01.2005 by AR, RCS to PW-58 for producing documents as Ex.PW58/D, Verification Certificate dated 12.04.2005 of PW-58 as Ex.
PW58/E, affidavit in the name of PW-58 attested on 12.05.2005 as Ex.
PW58/F and copy of his PAN Card
Ex. PW58/G.
PW-59 Sh. Om Prakash Copy of share money receipt no. 19
Arora dated 22.05.1971 as Ex. PW59/A,
copy of application for membership
Ex. PW59/B and affidavit attested on
05.04.2003 in relation to NCERT
Employees - CGHS as Ex. PW59/C.
PW-60 Sh. Satya Prakash Seizure memo dated 22.08.2006
(He was posted as regarding audit report of NCERT-
LDC in Audit CGHS as Ex. PW60/A & Ex.
Branch in the office PW60/B (Colly).
of RCS)
PW-61 Sh. Paras Nath Seizure memo dated 28.06.2006
(He was posted as regarding letter dated 10.11.2003 by
Assistant in the President of Imperial Residency to
CGHS Branch, Dy. Director(GH),DDA and letters
DDA at Vikas dated 03.11.2003 & 10.12.2003 by
Sadan, Delhi) Dy. Director(GH),DDA to President
of Imperial Residency as Ex.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 30 PW61/A, letters addressed to Dy.
Director (GH), DDA regarding assessment of requirement of land to CGHS Ltd., at location Dwarka, Karkardooma, Rohini, Dhirpur and Narela as Ex. PW61/B to Ex.
PW61/E, letter regarding change of address of the society as Ex.
PW61/F, copy of minutes of meeting dated 15.12.2003 as Ex. PW61/G, copy of assessment of requirement of land as Ex. PW61/H and list of the societies as Ex. PW61/J. PW-62 Sh. Subhash Copy application for membership as Chander Sharma Ex. PW62/A, affidavit attested on 05.04.2003 in relation to NCERT Employees - CGHS as Ex. PW62/B and proceedings of meeting of Management Committee dated 31.03.2003 as Ex. PW62/C, list of current managing committee members as Ex. PW62/D. PW-63 Sh. Rakesh He proved his noting as Ex.
Bhatnagar PW63/A, Ex. PW63/B (Colly), letter (He was posted as dated 05.08.2003 addressed to Asst. Joint Registrar in the Registrar (North-West) as Ex. office of RCS from PW63/C, copy of agenda notice May 2002 to dated 07.07.2003 as Ex. PW63/D, December 2003). copy of proceedings of Managing Committee Meeting dated 05.07.2003 as Ex. PW63/E, copy of proceedings of GBM dated 03.08.2003 as Ex. PW63/F, letter received in RCS Office from NCERT as Ex. PW63/G, copy of proceedings of MC Meeting dated 05.07.2003 as Ex. PW63/H, copy of the agenda notice for GBM dated 07.07.2003 as Ex. PW63/J, copy of the proceedings of GBM dated 03.08.2003 as Ex. PW63/K and letter dated 04.04.2003 addressed to AR CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 31 (North-West) from NCERT-CGHS as Ex. PW63/D-1.
PW-64 Sh. Ashish Sharma Letter dated 17.01.2005 addressed to RCS, New Delhi as Ex. PW64/A, affidavit as Ex. PW64/B, his specimen signatures/handwriting as Ex. PW64/C and statement Ex.
PW64/D. PW-65 Sh. Laxmi Chand He proved his report on the notice (CBI Official) under Section 160 as Ex. PW65/A, notice under Section 160 Cr.P.C as Ex. PW65/B and the report as Ex.
PW65/C. PW-66 Sh. Khushi Ram He proved his report on the notice under Section 160 Cr.P.C as Ex.
PW66/A & Ex. PW66/B. PW-67 Sh. Dev Raj V. He proved the seizure memo regarding two sets of documents from Sh. M.P. Sharma, the then AR Policy as Ex. PW67/A, the seized documents as Ex. PW67/B & Ex.
PW67/C.
PW-68 Sh. Anil Kumar He handed over one file titled as
Sharma NCERT-CGHS to the IO which was
later seized by the IO as Ex.
PW68/A He also proved the said file
bearing no. F-4(232)76/CS/DDA as
Ex. PW68/B (Colly).
PW-69 Sh. Sandeep Kumar He proved his reports in respect of Tiwari notices under Section 160 Cr.P.C as Ex. PW69/A to Ex. PW69/D. PW-70 Sh. Yashwant He identified his three typewriters Kumar Ex.PW70/Article1,Ex.PW70/Article 2 and Ex. PW70/Article 3. He proved Affidavits Ex. PW70/A-1 to CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 32 Ex. PW70/A-111, Application Forms Ex. PW70/B-1 to Ex.
PW70/B-115, Seizure Memo Ex.
PW70/C and his statement recorded
by the IO Ex. PW70/D.
PW-71 Sh. Manohar Lal He was appointed as Liquidator in
Ahuja NCERT-CGHS through order (Ex.
(Liquidator) PW48/A) passed by Sh. Ashok
Bakshi, the then Deputy Registrar,
RCS.
PW-72 Sh. Rajendra Kapoor Copy of share money receipt dated 15.11.1978 Ex. PW72/A. PW-73 Ms. Sunita Goel Statement Ex. PW73/A (member's list of Imperial Residency-CGHS Ltd.), Ex. PW73/B (specimen handwriting of Sunita Goel) (Colly), statement under Section 161 Cr.P.C Ex. PW73/D-A. PW-74 Sh. Sushil Kumar Statement under Section 161 Cr.P.C Sharma Ex. PW74/A. PW-75 Sh. Rakesh Kumar Carbon copy of the statement under Jain Section 161 Cr.P.C given by this (Accused turned witness before Magistrate at Patiala approver) House Courts, New Delhi Ex.
PW75/A, Affidavit of Sh. Amit Kumar Jain attested on 15.01.2005 in relation to Imperial Residency-
CGHS Ltd., Affidavit of Sh. Shiv Swaroop Kaushik attested on 17.01.2005 Ex. PW75/B, Ex.
PW75/C, Affidavit of Sh. Raj Kumar Jain attested on 17.01.2005 in relation to Imperial Residency-
CGHS Ex. PW75/D, and specimen handwriting of PW75 as Ex.
PW75/E. PW-76 Sh. D.K. Mishra Letter sent by him to CBI conveying CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 33 (Regarding sanction the order in respect of granting against accused sanction to CBI qua accused Yogi Yogi Raj Raj Ex. PW76/A. PW-77 Sh. Rajesh Kumar Order dated 12.10.2006 passed by Singh the then Ld. ACMM to the then Ld. (the then Ld. MM, MM whereby the application filed New Delhi) by IO for recording of statement of witness Sh. Mohan Lal as Ex.
PW77/A, order dated 12.10.2006 of the then Ld. MM as Ex. PW77/B and Certificate of true and correct memorandum of statement of witness given by PW-77 as Ex.
PW77/C.
PW-78 Sh. Manish He proved the statement of the IO
Yaduvanshi (Ex. PW78/A) regarding
(the then Ld. MM, identification of the witness Sh. New Delhi) Pawan Garg whose statement under Section 164 Cr.P.C was to be recorded, Certificate given by this witness Ex. PW78/B, application of the IO for providing copies of statements of witnesses Ex. PW78/C, statement of the IO (Ex. PW78/D) regarding identification of the witness Sh. Dhanna Ram whose statement under Section 164 Cr.P.C was to be recorded, statement of witness Sh. Dhanna Ram Garg Ex.
PW78/E and Certificate given by this witness Ex. PW78/F. PW-79 Sh.S. He is the IO of the case.
Balasubramony The present FIR Ex. PW79/A, (The Investigating Officer) seizure memo of 04 files from RCS Ex. PW79/B and files of RCS Ex.
PW79/C, Register from the office of Divisional Commissioner, Stamp branch as Ex. PW79/D and seized CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 34 vide seizure memo as Ex. PW79/E, letter dated 25.05.2006 to ascertain the death certificate of 06 members and details of other members as Ex.
PW79/F and reply to said letter as Ex. PW79/G, letter dated 29.05.2006 by SP, CBI to RCS, Delhi to convey the details of posting and address of auditor as Ex. PW79/H, notices u/s 91 Cr. P.C to Director, DDA as Ex. PW79/J, notice u/s 91 Cr.P.C to Manager, Delhi State Cooperative bank regarding account details and details of office bearers as Ex. PW79/K and its reply by Manager as Ex. PW79/L, notice u/s 91 Cr. P.C regarding audit file as Ex. PW79/M and the audit file as Ex. PW79/N (colly), letter dated 04.08.2006 to SHO, P.S. Parliament Street as Ex. PW79/P and reply of SHO as Ex. PW-79/Q, notice u/s 160 Cr. P.C to Imperial Residency Co-opearative Society as Ex. PW79/R, letter dated 15.12.2003 by Secretary, Imperial Co-operative Society to DDA as Ex. PW79/S, letter dated 10.11.2003 by Secretary, Imperial Co-operative Society to DDA as Ex. PW79/T notices u/s 160 Cr. P.C to members of the society as Ex. PW79/U & Ex.
PW79/V, notice u/s 91 Cr. P.C for original audit file as Ex. PW79/X and its reply Ex. PW79/Y, notices u/s 160 Cr.P.C to members as Ex. PW79/Z and Ex. PW79/Z-1 to CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 35 Ex. PW79/Z-44, notice under Section 91 Cr.P.C to RCS Ex. PW79/A-1, letter dated 31.03.2006 to Inspector/EOW Sh. Ajeet Singh Ex.
PW79/A-2, photocopy of reply of the said letter 31.03.2006 Ex. PW79/A-3, production-cum-seizure memo dated 17.08.2006 whereby PW79 seized property documents from Bir Singh Panwar Ex. PW79/A-4, copies of said documents related to property no. F-2/244, Sector-16, Rohini, New Delhi Ex. PW79/A-5, seizure memo dated 24.08.2006 whereby copy of advertisement placed in Times of India newspaper dated 05.01.2005 Ex. PW79/A-6, copy of said of advertisement as Ex.
PW79/A7, letter dated 20.09.2006 sent to Statistical Officer, RCS Ex.
PW79/A-8, reply to the said letter with annexure enclosed it Ex.
PW79/A-9, & Ex. PW79/A-10 respectively, notice under Section 91 Cr.P.C to Branch Manager, SBI Ex. PW79/A-
11, notice under Section 91 Cr.P.C to Asst. General Manager, Delhi Estate Cooperative Bank Ex. PW79/A-12, specimen signatures of accused Sh.
Sri Chand (A-5) Ex. PW79/A-13, specimen signature of Sh. Dhanna Ram Ex. PW79/A-14, specimen signature of Smt. Neeru Gupta Ex. PW79/A-15, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 36 seizure memo dated 25.08.2006 of notary register Ex. PW79/A-16, certified copy of Notarial register for the period w.e.f. 2005 to 2006 Ex.
PW79/A-17, seizure memo dated 18.08.2006 Ex.
PW79/A-18, copies of letters written by Yogiraj to DDA and replies therein as Ex.
PW79/A-19, & Ex. PW79/A-20, seizure memo dated 26.08.2006 as Ex. PW79/A-21, copies of a page from a Notary register maintained by Sh. Surender Kumar as Ex. PW79/A-22, letter by RCS to IO as Ex. PW79/A-
23, photocopy of Stamp Sale Register of Sh. N.K. Mehra, Advocate for the dates 14.01.2005, 19.01.2005 and 31.01.2005 alongwith seal as Ex.
PW79/A-24, letter dated 28.08.2006 addressed to Dy. Secretary (Law) Ex. PW79/A-
25, acknowledgment of GEQD Ex.
PW79/A-26, copy of order passed by High Court of Delhi in case Civil Writ Petition No. 10066/2004 Ex. PW79/A-27, copy of advertisement placed by RCS in newspaper regarding verification of members of the society including NCERT CGHS Ex.
PW79/A-28, seizure memo Ex. PW79/A-29, original register maintained by Sh.
M.R. Bhardwaj, Notary with regard to attestation made by him as Ex.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 37 PW79/A-30, statement u/s 164 Cr.P.C of Sh.
Mohan Lal, Sh. Dhanna Ram, Sh.
Pawan Garg, Ex. PW79/A-31, Ex.
PW79/A-32, Ex. PW79/A-33 respectively, notices sent by RCS office to various members of NCERT CGHS as Ex.
PW79/B-1 to Ex. PW79/B-127, seized file of Imperial Residency Apartments CGHS from the office of RCS as Ex. PW79/C-1, specimen handwriting/signatures of Sh. Anna Wankhede, Sh. R.N. Yadav Ex. PW79/D-1, Ex. PW79/E-
1, letter dated 13.01.2006 written by under Secretary to SP, CBI regarding details of functionaries of NCERT CGHS as Ex. PW79/F-1, copies of death certificates of previous functionaries of NCERT CGHS Ex. PW79/F-2 to Ex.
PW79/F-8, letter dated 29.05.2006 by SP, CBI to Collector of Stamps regarding production of registers of stamp vendors Ex. PW79/G-1 and letter written by Mohinder Singh from Stamps Branch as Ex. PW79/G-2, application for obtaining copy of statement under Section 164 Cr.P.C of Sh. Mohan Lal as Ex. PW79/H-1, application for recording the statement of Sh. Dhanna Ram under Section 164 Cr.P.C as Ex. PW79/H-
2, copies of statements under Section 164 Cr.P.C of Sh. Dhanna Ram and Sh. Pawan Garg Ex. PW79/A-32 and Ex. PW79/A-33, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 38 PW-80 Sh. P. Venugopala Forwarding letters 21/24.07.2006 for Rao (G.E.Q.D) examination and opinion to the GEQD, Hyderabad Ex. PW80/A, Letter alongwith documents dated 17/18.08.2006 received in GEQD Office Ex. PW80/B, Opinion by GEQD about all the documents Ex.
PW80/C, Forwarding letters dated 03.10.2006 through which opinion was sent to SP, CBI Ex. PW80/D, Forwarding letter dated 26.10.2006 returning the documents to CBI as Ex. PW80/E, letter 16/22.01.2007 sent by CBI to GEQD for opinion and examination alongwith annexures/documents i.e. typewriters, HD, etc. as Ex. PW80/F, letter dated 19.02.2007 received by GEQD from CBI alongwith documents and annexures as Ex.
PW80/G, supplementary opinion as Ex. PW80/H, forwarding letter by which supplementary opinion was sent as Ex. PW80/J, letter dated 25.10.2007 returning all the documents as Ex. PW80/K, letter dated 16.01.2008 regarding tywriters and documents as Ex. PW80/L, letter dated 16.07.2008 forwarding reasons for the opinion dated 29.09.2006 and supplementary opinion dated 25.04.2007 as Ex.
PW80/M, opinion dated 29.09.2006 and supplementary opinion dated 25.04.2007 as Ex. PW80/N and Ex.
PW80/P. PW-81 Sh.Krishna Sastry Letter dated 22.01.2007 receving the (G.E.Q.D) exhibits of the case as Ex. PW81/A, the GEQD report regarding hard disk CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 39 as Ex. PW81/B, forwarding letters regarding seal impression and hard drive as Ex.
PW81/C and Ex. PW 81/D, Letter of authority Ex. PW81/E and acknowledgment letter dated 21.04.2007 vide which GEQD intimated CBI about receipt of exhibits as Ex. PW81/F. PW-82 Sh. Rajbir He proved the specimen handwriting /signatures of Sh. Anna Wankhede as Ex. PW82/1 at place S-209 & Ex.
PW82/2 (Colly) at place S-213 to S-235 respectively.
PW-83 Sh. Rajesh Kumar Specimen handwriting/signatures of Anna Wankhede (S-210 to S-212) and Sh. Sri Chand (S-340 to S-345) Ex. PW83/1 (Colly) & Ex. PW83/2 (Colly.) respectively.
All the aforementioned witnesses were duly cross- examined by Ld. Defence Counsels.
7. During trial, 17 witnesses could not be examined by the prosecution for a variety of reasons as detailed below :-
S. Name of the witness Reason for not examining these No witnesses
1. LW-8 Ratan Lal Jain Dropped by the prosecution vide order dated 11.08.2014
2. LW-11 Lal Chand Expired. Name deleted as per Aggarwal ordersheet dated 30.01.2018.
3. LW-14 Smt. Tripta This witness is reported to be Sarin shifted to Canada. Summons CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 40 could not be served upon her due correct address. Order dated 27.08.2018 is regarding the same.
4. LW-24 Sh. Virender Expired. Name deleted as per Singh Dagar ordersheet dated 24.09.2014.
5. LW-26 Sh. Mahavir Expired. Name deleted as per Prasad ordersheet dated 09.08.2012.
6. LW-31 Sh. Shiv Expired. Report received vide Swaroop Kaushik order dated 29.09.2016.
7. LW-37 Dropped by Ld. PP for CBI vide Amit Jain order dated 07.07.2018.
8. LW-45 Gauri Expired. Name deleted as per Shankar Mathur ordersheet dated 21.04.2018
9. LW-46 Sudesh This witness is reported to be not Kumar Mahendru residing at the given address.
Summons could not be served upon him for want of fresh address. Order dated 27.08.2018 is regarding the same.
10. LW-52 Sh. S.L. Expired. Name deleted as per Gupta ordersheet dated 23.11.2016.
11. LW-54 Dr. I.S. Expired. Name deleted as per Sharma ordersheet dated 05.12.2016.
12. LW-62 Sh. Sushil Expired. Report received vide Kumar Sharma order dated 31.10.2017.
13. LW-64 Sh. Dhanna He is reported to have left the Ram Garg given address and his whereabouts are not known. It was ordered that there is no need to issue process again and again to this witness. Order sheet in this regard is of 07.03.2018.
14. LW-15 Man Mohan Expired. His name was deleted Singh vide order dated 07.03.2018.
15. LW-66 Ajay Kumar Dropped by Ld. PP for CBI vide Gola order dated 07.07.2018.
16. LW-70 Amit Singh He is reported to be not residing CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 41 Pawar at the given address and went missing in the year 2010.
Intimation in this regard was
given to police. His name was
deleted vide order dated
26.03.2018.
17. LW-73 Sh. K.G. Name deleted vide order dated
Kashyap 07.03.2018.
8. Statement of accused under Section 313 Cr. P.C 8.1 Statement of accused persons under Section 313 Cr.P.C were recorded on different dates i.e. accused Narayan Diwakar (A-1) on 27.11.2019 & additional statement on 15.09.2023; accused Yogi Raj on 06.12.2019 (A-2) & additional statement on 15.09.2023; Faiz Mohd. (A-4) on 13.01.2020 & additional statement on 15.09.2023; accused Sri Chand (A-5) on 21.10.2021 & additional statement on 17.10.2023; accused Anna Wankhede (A-6) on 06.12.2019 & additional statement on 15.09.2023; accused Subhash Chand Gupta (A-7) on 10.12.2019 & additional statement on 05.10.2023; accused Kuldeep Goel (A-
8) on 10.12.2019 & additional statement on 15.09.2023 wherein they have denied the prosecution version in its entirety and claimed that they are innocent and have been falsely implicated in this case.
8.2 Accused Narayan Diwakar (A-1) stated that he has been falsely implicated and he had acted bonafidely as RCS, Delhi. He also gave response in a written statement as under :-
" In the present case, the Liquidation proceedings CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 42 were never finalized. By the operation of law (Rule 105 DCS Rules), the winding-up proceedings stood automatically terminated by after three years (maximum period). As per Rule 105 of the Delhi Cooperative Rules 1973, there is a provision for the deemed termination of the winding-up proceedings (maximum 3 years after the passing of the winding-up order) after which the Registrar is bound to cancel the winding-up orders by passing an order to this effect in view of the Judgment of the Division Bench of the Hon'ble Delhi High Court (VIKAS CGHS v. RCS etc.). He complied with the said orders of the Hon'ble Delhi High Court.
He was appointed as the Registrar Cooperative Societies (RCS) Delhi under S. 3 of the Delhi Cooperative Societies Act, 1972. At the time of the passing of the order (s) of cancelling the winding up, he was aware of the judgment delivered by the Double Bench of the Hon'ble Delhi Court in the Civil Writ Petition No. 1767/1986 case entitled "Vikas Cooperative Group Housing Society Ltd. vs. RCS" (decided on 21st Nov. 1986).
He stated that the cancelling the winding-up order of the society had nothing to do with the availability or the verification of the records. The only aspect that was to be taken into account was the provision of Rule 105 of the Delhi Cooperative Societies Rule, 1973. Therefore, the act (s) performed by him were done in absolute good faith taking all the necessary steps as provided under the law. There is no CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 43 circumstance appearing against him, therefore, he may kindly be acquitted.
He stated that the CBI has neither obtained sanction to prosecute him under S. 197 Cr.P.C nor under S.19 of the PC Act. The said two sanctions operate in distinct mechanism and were mandatory even for a retired public servant. As per the newly amended law i.e. Prevention of Corruption Act (amended till 2018) applicable even to the present case (pending trial), the sanction under S. 19 of the PC Act is now mandatory even for the retired public servants. The provision of Section 13 (1) (d) of the old PC Act, 1988 has now been repealed. The present case is devoid of merits and also suffers the discrepancy due to the later amendments of 2018, which are applicable to the present pending case.
He stated that Dr. Kamini Lou, Ld. Spl. Judge CBI had referred by way of reference under S.395 Cr.P.C raising the question of scope & applicability vis-a-vis S.19 of the PC Act in respect of the retired servants in the pending cases where the sanction under S.19 of the PC Act has not been taken in respect of the retired public servants. Thus, the reference of the matter relating to the applicability of the newly amended PC Act (2018 amendment) is still pending before the Division Bench of Hon'ble Justice Siddharth Mridul and Hon'ble Justice Brijesh Sethi of the Hon'ble Delhi High Court.
The Hon'ble Madras High Court in the matter M.Soundararajan Vs. State, Crl. L.A. (MD) No. 488 of 2018 and CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 44 Crl. MP (MD) No. 8712 of 2018 had clearly observed :-
"14. By amending paragraph B in Part A of the Schedule to the Prevention of Money laundering Act, 2002 certain offences under the prevention of corruption Act, 1988 are included to the PMLA, 2002. Since, offence analogous is already in statute prior to the amendment, Chapter IV A and section 19 of the Prevention of Corruption (Amendment) Act, 2018 alone will fall away from protection given under Article 20 (1) of the Constitution and therefore will have application to the pending cases either under investigation or pending trial after investigation."
He stated that the charges of conspiracy levelled u/s 120 (B) IPC are not sustainable against him. During his tenure as RCS, Delhi from 2001 to 2004, the entire RCS office was fully computerized by launching its own website on which about 10 lakh data was uploaded to cover to various information pertaining to about 5000 Cooperative Societies including the group housing societies with details of the management committee of all the societies, particulars of the individual members, its election and audit position were given for the information to all concerned and the effected citizens of Delhi. A wide publication was also given of this website through local newspapers and electronic media. There was facility for any type of enquiry or complaint from the effected/interested persons of the public in order to speedy redressal of their complaints and grievances. The RCS office was given the distinction of completing the gigantic task of computerization in a fixed time schedule. For this achievement, a letter of appreciation was given by the Chief Secretary of the Govt. of NCT of Delhi. In the face of such a transparency in the working of the department, there cannot be any scope for any conspiracy of any kind either with CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 45 any official of the department or the persons outside. It is established factor that transparency and conspiracy cannot go together".
8.3 Accused Yogi Raj (A-2) stated that he has been falsely implicated in the present case. He claimed that the investigation was biased and faulty. Further, the entire case is based on assumptions and presumptions.
He stated that the allegation is completely incorrect. The file was processed as per the law and no provision of DCS Act and DCS Rules were violated. There is no evidence of any conspiracy. CBI is merely raising a vague allegation on the basis of assumptions and presumptions. CBI is acting as if, it is an appellate authority to the orders passed by RCS, which has exclusive jurisdiction in matters pertaining to Co-operative Societies under said Act and rules. Further, it is prerogative of the Managing Committee of a society as to whom membership is given. There is no specific procedure laid down as to how file pertaining to cancellation of Winding up order of a society is to be dealt with but procedure in practice was followed in this case. I have no personal interest or stakes in said society. I had acted as per law. It is also a matter of record that neither appellate authority has set aside the order or any of the proceedings in respect of the aforesaid society, nor there is any adverse remark in respect of processing of file.
8.4 Accused Faiz Mohd. (A-4) stated that he has been CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 46 falsely implicated. Moreover, he stated that he was posted in the RCS Office, Delhi as Head Clerk under the provisions of Rule 3 of Delhi Co-operative Society Rules 1973, according to which, the Ministerial Staff/Field staff is to assist the Seniors i.e., Assistant Registrar and onward in the matter of Co-operative Societies. There is no allegation against him for violating any provision of the DCS Act 1972 and DCS Rules 1973 while discharging his duties under the aforesaid Act/Rule. Further, there is no person, who has stated that he suffered any loss on account of his alleged act. There is no evidence as above stating about any financial gain to him while discharging his aforesaid duties in the RCS, office. The CBI had conducted search of his residence, but nothing incriminating was recovered. All the documents, which were seized from his residence were duly returned to him as per order the of the Court. Further, there has been no complaint against him in this case from any person. Further, in the entire service tenure of 40 years in the Govt. of NCT, Delhi, there has been no Departmental Inquiry against him in any case whatsoever. During this period of 40 years, he had served various departments of Govt. of NCT Delhi. Also, this is a false case against him without any evidence of criminality or any gain whatsoever to him.
8.5 Accused Sri Chand (A-5) stated that he has been falsely implicated in this case and investigation was biased and full of manipulations. He is diabetic, blind with right eye, lost partial vision of the left eye. He is on dialysis three times a week.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 47 His medical condition has been deteriorated and memory is also affected due to depression and tension and co-morbidity. Further, he was not associated with NCERT CGHS at any point.
Accused Srichand have denied the additional incriminating evidence put against him stating that PW-83 had nowhere identified him as the person who had given the alleged specimen signature/handwriting in his presence. He stated that this witness is a tutored and a stock witness of CBI.
8.6 Accused Anna Wankhede (A-6) stated that he has been falsely implicated in this case. He claimed that he has no concern with the society in question.
Accused Anna Wankhede have denied the additional incriminating evidence put against him stating that PW-82 & PW-83 had nowhere identified him as the person who had given the alleged specimen signature/handwriting in his presence. He stated that these witnesses are tutored and stock witness of CBI.
8.7 As per accused Subhash Chand Gupta (A-7), he is innocent. He has been falsely implicated in this case. He has no connection with NCERT CGHS. Sh. Rakesh Jain has a professional rivalry with him and to save his skin, he in connivance with the IO got falsely implicated him in the present case. He had never dealt with any society. He was only dealing in Sale & Purchase of plots. Sh. Rakesh Jain was President of the society and he was dealing in sale and purchase of other CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 48 societies also. A number of witnesses have deposed against him. Even the newspaper advertisement also bears his address. This case has not been investigated properly by the IO.
8.8 As per accused Kuldeep Goel (A-8), he is innocent. He has been falsely implicated in this case. As he was facing trial in the case related to UNI CGHS and few of his relatives, were shown to have interest in NCERT CGHS, hence, he was falsely implicated. Everything in this case, was being done by Sh. Rakesh Jain. He was the President of said society. He was signing as President and was introducing new members. He was involved in sale and purchase of the said society. The newspaper advertisement bears his address. Sh. Rakesh Jain was master mind behind this society. Few witnesses have deposed against Sh. Rakesh Jain. He was able to obtain pardon for him by turning approver. He stated that this case was not investigated properly. Strangely, the IO did not reply many of the questions properly and gave evasive replies to many questions. He stated that two witnesses namely Sh. Ashish Sharma (PW-64) and Smt. Sunita Goel (PW-73) deposed that IO asked them to depose against him (Kuldeep Goel).
9. DEFENCE EVIDENCE 9.1 Accused Kuldeep Goel examined Sh. Aman Kumar Mothasara, Judicial Assistant in Record Room (Session), Patiala House Courts, New Delhi as DW-1. DW1 had produced the summoned record i.e. original case file of case titled as CBI Vs. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 49 N.M. Sehrawat FIR No. A0001/2006 CC No. 46/2011 Goshwara No. 89/S/12 Sessions Record Room, Patiala House Courts, New Delhi, decided on 03.09.2012 by the Court of Sh. Dharmesh Sharma, Ld. Special Judge-03, CBI, New Delhi. He proved the certified copy of the aforementioned FIR Ex. DW1/1 (OSR); certified copy of the statement u/s 161 Cr.P.C as made by Sh. Rakesh Jain Ex. DW1/2 (OSR); certified copy of the statement u/s 164 Cr.P.C as made by Sh. Rakesh Jain Ex. DW1/3 (OSR); certified copy of the examination-in-chief dated 29.08.2011 of Sh. Rakesh Jain Ex. DW1/4 (OSR) after comparing the same with the original as lying in the record as brought by him, deposed that the contents of the certified copies of the aforementioned documents and the original thereof as lying in the record are the same.
9.2 Accused Narayan Diwakar examined one witness namely Sh. Saroj Chandra Pradhan, Principal, Delhi State Co- operative Training Centre as DW-2 in his defence. His testimony is being reproduced as under :-
"I am a summoned witness. I joined the RCS Office, Delhi in April, 2003 as a System Analyst. I was assigned the work of supervising the computerization work, website maintenance and hardware networking of the RCS office, Delhi. The website was launched in February, 2003. At the time Sh. Narayan Diwakar was the Registrar of Cooperative Societies, Delhi. In the website of the RCS, all the data relating to the status of the society, current address, management committee lists, list of members etc. were updated. There were several Data Entry Operators also at the branch level who were assigned the work of CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 50 feeding the datas of the societies. The launch of website of the RCS Office was also given publicity by way of distribution of pamphlets as well as by publishing the same in different leading newspapers during that time. The office of RCS was one of the first offices to complete the computerization work and feeding of data in the website, as such, a letter of appreciation was also given by the Delhi Government to the then RCS, Sh. Narayan Diwakar.
Every Friday a meeting used to be held in the RCS office and in case of any deficiency in updation of data the same used to be brought by me to the notice of the Registrar who used to then direct the Assistant Registrars to do the completion of work relating to data updation. The website was interactive in nature. There was also helpline for public grievance, if any and there used to be also provision for raising any queries or grievance in the website".
Both these witnesses were duly cross-examined by Ld. Prosecutor for CBI.
10. Arguments, on behalf of all the accused persons by their respective Ld. Counsels and for prosecution by Sh. Navneet Jawa, Ld. Public Public Prosecutor for CBI, were heard. Record has been painstakingly perused.
11. FORMATION & LIQUIDATION OF NCERT-
CGHS SOCIETY 11.1 The NCERT CGHS Society was formed on 23.10.1972 with registration no. 145 (H) vide registration CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 51 certificate issued by Asst. Registrar, Co-operative Societies. The said registration certificate was Mark PW48/A by PW-48 Sh. Ashok Bakshi, who worked as Dy. Registrar in the Office of Registrar of Co-operative Societies during the period 1977 to 1979. The address mentioned in the said certificate is NIE Campus, Sri Aurovindo Marg, New Delhi.
11.2 As per the noting of 23.11.1972 (D-1), RC among other documents was collected by Sh. P.S.S. Bhasin, Secretary of the Society on 23.11.1972.
11.3 PW48 also proved memos dated 29.01.1979, 31.08.1977 (Ex. PW48/C & PW48/F) issued by Office of RCS to the Society regarding deficiencies. He also proved notices dated 27.09.1978 and 31.10.1977 (Ex. PW48/D & PW48/E) issued by RCS regarding outstanding audit fees. Vide letter dated 24.08.1977 issued by RCS to the Secretary, NCERT Society (Ex. PW48/G), the Society was asked to remove the objections regarding audit report for the period from 23.10.1972 to 30.06.1976. Vide requisition letter dated 06.07.1977 (Ex. PW48/H), the Society was directed to hold fresh election of the Managing Committee. Vide letter dated 02.07.1977 (Ex. PW48/I), the Society was directed to furnish information regarding the accounts for the period 1976 to 1977.
11.4 As per the last noting sheet of 1976, the accounts were incomplete and they were to be completed.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 52 After a gap of more than two decades, the file records noting of 08.04.2003 regarding the letter for revival of the Society by Sh. C.P. Malhotra, President of the Society.
11.5 As per file Ex. PW46/A (D-1), model bye-laws are prescribed and the list of 31 promoters members with their signatures are appended.
11.6 The society was a functioning society as shown by notices dated 27.09.1978, 23.05.1977 and 31.10.1977 regarding audit fee Ex. PW48/D, PW48/K & Ex. PW48/E, notice dated 24.08.1977 regarding audit report Ex. PW48/G, memo dated 29.01.1979 & 31.08.1977 issued by the Registrar Ex. PW48/C & PW48/F. This shows that there were letters and notices issued by RCS till 1979 but the last recorded noting is only of 1976. Thus, the records were not properly maintained even then.
11.7 It was the case of the prosecution that the society was offered land at Pitampura by DDA and which was declined by the Society. PW-44 Sh. Bansi Lal, PW-47 Sh. M.G. Chaturvedi, PW-58 Sh. Mahender Kumar Gupta, PW-59 Sh. Om Prakash Arora, PW-62 Sh. Subhash Chand Sharma and PW-72 Sh. Rajender Kapoor deposed that the Society was allotted land at Pitampura but the offer was declined due to distance and the land was never allotted to the Society. In fact, PW-58 deposed that he became a member by paying share-money on 15.11.1978.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 53
This shows that there must have been
correspondence between RCS and the Society and consequently notings in the file. However, the last recorded noting, as per Ld. Prosecutor, is of 1976 and even as per Ld. Prosecutor, no noting or correspondence exists regarding such allotment of land at Pitampura to the Society.
11.8 PW-48 Sh. Ashok Bakshi had deposed that during the period 1977 to 1979, he was working as Deputy Registrar in the office of Registrar of Co-operative Societies, New Delhi. He deposed that he was delegated with the power of RCS by a Notification dated 18.10.1977 Ex. PW48/B. He had passed the liquidation order dated 23.03.1979 Ex. PW48/A. As per the said liquidation order, NCERT Co-operative Society, at NIE Campus, Aurovindo Marg, New Delhi, registration no. 145 has closed its work due to failure to achieve its objectives and is unable to comply with the conditions of registration in terms of law. The said Society was ordered to be liquidated and Sh. M.L. Ahuja was appointed as the liquidator.
11.9 PW-71 Sh. Manohar Lal Ahuja deposed that from 1975 to 1979, he looked after the cases pertaining to Audit Section in the RCS Office and he was appointed as a liquidator of NCERT CGHS Society vide order already Ex. PW48/A. He further deposed that he sent a letter to the Secretary/President of the Society asking them to hand over all the original records of the Society and the same was submitted before him. He sent a report to the RCS office recommending for its winding up.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 54 In cross-examination, he deposed that he does not have the copy of proceedings to show steps taken by him as a liquidator nor does he have the copy of the report submitted by him for the said Society.
11.10 In terms of the Delhi Cooperative Societies Act, (DCS, in short), the Registrar can make an order directing the Winding-up of a Co-operative Society under Section 63(2). As per Section 66(1) where the Registrar has passed an order under Section 63 for winding up of a Co-operative Society, he may appoint a liquidator for this purpose. Under Section 67 (3), the liquidator shall make a report when the affairs of the Cooperative Society have been wound-up.
As per Rule 105 of Delhi Cooperative Societies Rules, 1973, the winding-up proceedings of a society shall be closed within one year from the date of the order of winding-up unless the period is extended by the Registrar provided that the Registrar shall not grant an extension for a period exceeding six months at a time and three years in aggregate and shall immediately after the expiry of three years from the date of the order for winding-up of the Society deem that the liquidation proceedings have been terminated if there are no central amounts due to the government or the bank and pass an order terminating the liquidation proceedings. The Registrar shall terminate the liquidation proceedings on the receipt of the final report from the liquidator. The final report of liquidator shall state that the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 55 liquidation proceedings have been closed and how the winding- up has been conducted and it shall include a statement showing summary of the account of winding-up.
Under Section 69 of the Act, the Registrar may, after considering the report of the liquidator, order for the registration of the society to be canceled. Such an order shall be communicated by registered post to the President of the Society and to the financial institution, if any, of which Society was a member.
11.11 PW48 in his cross-examination has deposed that he does not have any knowledge whether the present Society was actually liquidated or not after issuance of the Winding-Up Order. He further deposed that a liquidator is required to submit his final report after completion of his liquidation proceedings to the Registrar and it is only after the Registrar satisfies himself that the liquidation proceedings are finally concluded that he passes an order declaring the Society to be liquidated and further that the Registration no. of the Society be canceled and the same be notified in the official gazette. He further deposed that he does not know whether in the present case, liquidator ever completed the liquidation proceedings.
11.12 There is no order of RCS at any point of time prior to revival, regarding cancellation of registration of NCERT CGHS Society.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 56
12. 12.1 As per records, NCERT employees Co-operative Group Housing Society Ltd. wrote a letter (Ex. PW63/D1) to Asst. Registrar, North-West, Cooperative Societies, Govt. of NCT of Delhi with a request under Section 63 (3) of DCS Act, 1972 for revival of the NCERT Employees CGHS Society (Registration No. 145 (H)) and approval of the final list of members. This letter stated that the said society was registered on 23.10.1972 with address at NIE Campus, Sri Aurovindo Marg, New Delhi and the address was shifted to 512, Model Town, New Delhi vide GBM Resolution passed on 17.06.1977 duly intimated to the Asst. Registrar vide letter dated 02.08.1977. The society had 31 promoter members and 94 members were enrolled from time to time and the present strength is 125 members. It further stated that it has come to their notice that the Society was put under liquidation under Section 63 of DCS Act without giving any opportunity. Having received no show-cause notice or winding up order, the Society was ignorant about such orders being passed by RCS Office. No auditor from RCS Office had approached the Society till date and permission for appointment was sought. The Special GBM was held on 30.03.2003 and it was unanimously approved to request for withdrawal of the order issued under Section 63 of DCS Act, revival of the Society and approval of the final list of 125 members.
The said letter was written with the address of the Society mentioned as F-2/244, Sector-16, Rohini, Delhi. This letter is purportedly written by Sh. C.P. Malhotra, President of CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 57 the Society.
12.2 The said letter of revival was accompanied with the following enclosures :-
VOLUME- 1 B. Documents regarding Change of Address:-
1. Copy of GBM dated 17.06.77 along letter Dt. 02.08.77, proof of service (Registry slip dt. 02.08.77).
B. Documents regarding fresh Election:
1. Copy of MC Proceeding dated 02.03.2003
2. Copy of Agenda Notice Dated 03.03.2003
3. Copy of UPC as Service Proof dated 03.03.2003
4. Copy of Proceeding of GBM dated 30.03.2003
5. Copies of Nomination Forms (5 Nos.)
6. Copy of MC proceeding dated 31.03.03
7. Copy of list of current Managing Committee Members C. Other Documents:
1. List of 125 members (14 Column) for approval & onward transmission to DDA for allotment of land in triplicate.
2. Secretary's Affidavit regarding approval of list of 125 members.
3. MCM resolution for starting of activities.
4. Condonation Certificate along with GBM Proceeding dated 30.03.03
5. No Inquiry Certificate
6. No Court Case Certificate.
7. Affidavit of Secretary regarding submission of information.
8. Letter regarding fixation of freeze list of the Society VOLUME- II ENROLMENTS
1. List of Total Enrolled Members Since Registration
2. List of Enrolled Members After Registration
3. Copies of Proceeding of 1st GBM date 22.05.71 wherein enrollments have been accepted by Managing Committee.
4. Copies of Application Forms of 125 Members
5. Copies of Receipt of Share Money & Admission Fees received from 125 members.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 58
6. Original Affidavits of 125 members.
12.3 All these documents were signed and authenticated by Sh. C.P. Malhotra.The entire file is exhibited as PW46/A(Colly).
12.4 Discussion on Enclosures/attached documents.
The photocopy of the GBM (General Body Meeting) of the Society held on 17.06.1977 inter alia for passing resolution for shifting the office address from Aurovindo Marg to 512, Model Town, New Delhi was filed. (The original was never filed nor is on record).
As per GEQD report, the signature of C.P. Malhotra at point Q2096 on the back page of the said photocopy was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.5 The photocopy of the GBM of the Society held on 02.03.2003 (Ex. PW55/E) inter alia for passing resolution for Managing Committee to complete all the record/accounts of the Society for upto date audit and for appointing M.C Mittal to conduct elections of the Managing Committee in accordance with law. One of the alleged attendee was O.P. Arora, PW-55 who denied attending such meeting.
There is no original signature on this document for GEQD to be referred to.
12.6 The copy of Agenda Notice dated 03.03.2003 by CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 59 M.C. Mittal, Election Officer called for a GBM for conducting the elections of Managing Committee Members of the Society on 30.03.2003. The copy of this Agenda Notice is shown to be sent to Asst. Registrar (NW) and all the members.
This particular document mentions in the letterhead that address of the Society is at F-2/244, Sector-16, Rohini, Delhi.
As per GEQD report, the signature of C.P. Malhotra at point Q2094 on the said photocopy was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.7 The copy of UPC showing service proof of the Agenda Notice to 125 members and Asst. Registrar (NW) dated 03.03.2003 is allegedly signed by C.P. Malhotra at point Q2090 to Q2093.
As per GEQD report, the signature of C.P. Malhotra at point Q2090 to Q2093 on the four pages was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.8 The photocopy of the GBM of the Society was held on 30.03.2003 (Ex.PW55/F). In terms of the said meeting, the Agenda Notice was sent to all the members and in response to the same, nomination of 05 members have been received. By unanimous resolution, all these five members namely C.P. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 60 Malhotra (President); Ved Prakash (Vice-President); S.C Sharma (Member); Tripta Sarin (Member) and Manju Wadhwa (Member) were elected. The Resolution also stated to request RCS to withdraw the liquidation order and revive the Society and approved the list of 125 members for allotment of land. The said minutes allegedly bears the signature of C.P. Malhotra at Q2087 to Q2089.
The photocopy of the nomination form of five members were filed with alleged original signature of C.P. Malhotra at point Q 2082 to Q2086. As per GEQD report, the signature of C.P. Malhotra at all these above points was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
PW-62 Sh. Subhash Chand Sharma has deposed that he was never elected as a Secretary of the Society.
12.9 The photocopy of the minutes of the Managing Committee meeting of the Society held on 31.03.2003 whereby through unanimous resolution, S.C. Sharma was nominated as Secretary and Tripta Sarin as Treasurer with C.P. Malhotra as President. It bears the signature of C.P. Malhotra.
As per GEQD report, the signature of C.P. Malhotra at point Q2081 was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 61 PW-62 S. C. Sharma, on being shown proceedings of minutes of committee dated 31.03.2003 deposed that signatures by his name were not done by him.
12.10 The list of current Managing Committee Members with signature of C.P. Malhotra and S.C. Sharma at point Q2079 & Q2080.
As per GEQD report, the signature of C.P. Malhotra & S.C. Sharma at above points was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
PW-62 Sh. S.C. Sharma deposed that he had never been the Treasurer of the Society nor did he sign on the said list as a Secretary. PW-62 S. C. Sharma, on being shown proceedings of minutes of committee dated 31.03.2003 deposed that signatures by his name were not done by him.
12.11 The list of 125 members for approval and transmission to DDA for allotment of land bearing the signature of C.P. Malhotra, S.C. Sharma and Tripta Sarin.
As per GEQD report, the signature of C.P. Malhotra at point Q2070, Q2073 to Q2078, S.C. Sharma at point Q2071 and Tripta Sarin at point Q2072 was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 62 12.12 The Condonation Certificate for lapses in the past for irregularities and for approval of the list of members, inquiry certificate showing no inquiry against the Society and no court case pending certificate by C.P. Malhotra with signatures at point Q2063, Q2064 & Q2068.
As per GEQD report, the signature of C.P. Malhotra at above points on the such pages was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.13 An undated letter by C.P. Malhotra freezing the strength of the Society to 125 members addressed to Asst. Registrar (South), RCS by C.P. Malhotra with signature at point Q2062.
As per GEQD report, the signature of C.P. Malhotra at above point was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.14 The list of total enrolled members since registration (Ex. PW44/D) with signatures of C.P. Malhotra at point Q1626, Q1627, Q1628 and S.C. Sharma at point Q1629 and Tripta Sarin at point Q1630 and after registration (with signatures of C.P. Malhotra at Q1631, Q1632, Q1633 and S.C. Sharma at point Q1634, Tripta Sarin at point Q1635).
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 63 As per GEQD report, all the above signatures were done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.15 Copies of the first GBM dated 22.05.1971 where enrollments were accepted by the Managing Committee with signatures of C.P. Malhota at point Q1636 to Q1639.
As per GEQD report, the signature of C.P. Malhotra at above point was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.16 Copies of application forms for membership of 125 members with signatures of C.P. Malhotra at point Q1641 to Q1761.
As per GEQD report, the signature of C.P. Malhotra at above points was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.17 Copies of receipt of share-money and admission fees receipt from 125 members with signatures of C.P. Malhotra at point Q1765 to Q1807.
As per GEQD report, the signature of C.P. Malhotra CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 64 at above points was done by accused Anna Wankhede. However, PW-19 C. P. Malhotra has neither denied his signatures nor filing of this document.
12.18 Affidavit in original of 125 members alongwith Form-60.
12.19 The list of verification of membership for sending the list of members to DDA containing 125 names Ex. PW11/G also bore the signatures of alleged President C.P. Malhotra at Q1a to Q1h & S.C. Sharma (Secretary) and T. Sarin, Treasurer at point 1i & 1j respectively.
As per the GEQD report of PW80 P. Venugopal Rao, signatures appearing at Q1a to Q1h, 1i & 1j matched with the specimen signatures of accused Anna Wankhede.
T. Sarin was not produced by the prosecution during the evidence.
12.20 PW62 S.C. Sharma deposed that the signature appearing in the application for membership Ex. PW62/A (signatures at point Q1750), the affidavit attested on 05.04.2003 as Ex. PW62/B (signatures at point Q2029 & Q2030) and proceedings of the Meeting of the Managing Committee Ex. PW62/C (signatures at point A) are not his.
As per the GEQD report of PW80 P. Venugopal Rao, signatures appearing at Q1750, Q2029 & Q2030 matched CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 65 with the specimen signatures of accused Anna Wankhede.
12.21 The list of current Managing Committee Members with the purported signature of C.P. Malhotra and S.C. Sharma Ex. PW62/D at Q1068 & 1068a.
As per the GEQD report of PW80 P. Venugopal Rao, signatures appearing at Q1068 matched with the specimen signatures of accused Anna Wankhede.
This means that there is no report as regards 1068a.
13. 13.1 After consideration, the Society was revived on 02.06.2003.
13.2 Vide letter dated 04.08.2003 Ex. PW63/G, a letter was written by C.P. Malhotra, President of the NCERT Group Housing Society to Asst. Registrar (NW), requesting for approval of change of name of Society in pursuance of the Management Committee Meeting held on 05.07.2003 Ex. PW63/H and ratified by GBM on 03.08.2003 Ex. PW63/K. The notice to call the GBM on 07.07.2003 and UPC list regarding the said notice were exhibited Ex. PW63/J and PW11/D. Vide letter dated 04.08.2003, a letter was written by C.P. Malhotra, President of the NCERT Group Housing Society to Asst. Registrar (NW), requesting for issuance of certified copy of Registration Certificate/registered bye-laws of Society. Alongwith the said letter was enclosed, one affidavit stating that the original RC and original bye-laws of the society has been lost CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 66 and not traceable and an FIR has been lodged in Parliament Police Station on 04.08.2003, and letter to the SHO, Parliament Street regarding loss of RC and bye-laws.
Vide letter dated 05.08.2003 Ex. PW63/C, written by C.P. Malhotra, President of the NCERT Group Housing Society to Asst. Registrar (NW), informing that vide GBM Meeting dated 03.08.2003, bye-laws have been unanimously adopted. Alongwith the said letter, was copy of the agenda notice, service proof of agenda notice, copy of proceedings of MC meeting, copy of proceedings of GBM dated 03.08.2003 and four set of Model Bye-laws, Ex. PW63/E, PW63/D, PW30/B, PW63/F, PW11/C-1, PW11/C-2, PW11/C-3 were filed.
There was also a list of promoter members with signatures.
13.3 Vide letter dated 03.06.2003, C.P. Malhotra, President of the Society requested for forwarding the approved list of 125 members to DDA for allotment of land. As per the noting of AR(NW) Ex. PW49/H (Colly), it was sent for competent authority for approval for onward transmission to DDA. The North-West Zonal staff was requested to put up the case through JR by following the procedure laid-down in Act and Rules. After verification, it was requested to forward the final approved list of 125 members.
13.4 Copy of the minutes of the Managing Committee held on 05.07.2003 Ex. PW63/H resolving of the change of name CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 67 of the Society and advising the President/Secretary to request the RCS for the same and to call for a GBM on 03.08.2003 for approval of the said name and adoption of new bye-laws. In the said meeting, President informed the members that original RC and bye-laws has been misplaced and not traceable. Therefore, an FIR be lodged in Police Station and to approach RCS for issuing certified copy of RC and bye-laws. It was informed by the President that the final list of 125 members has been approved by RCS and transmitted to DDA for allotment of land. The said bears the signature of C.P. Malhotra at point Q187 & Q188.
The Managing Committee vide dated 07.07.2003 Ex. PW63/J called for a GBM on 03.08.2003 written by C.P. Malhotra at point Q189. The UPC listed was exhibited as PW11/D with signature of C.P. Malhotra at point Q190 to Q192. Copy of the minutes of the GBM dated 03.08.2003 Ex. PW63/K showing adoption of the proposals of the Managing Committee Meeting. The model bye-laws were also read and decided to be adopted. It bears signature of C.P. Malhotra at point Q193 to Q197.
13.5 Vide letter dated 10.09.2003, the name of the Society was approved by AR (NW) to be changed from NCERT- CGHS to Imperial Residency Apartment CGHS Ltd. Vide letter dated 19.08.2003, competent authority had approved the model bye-laws adopted by GBM on 03.08.2003.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 68 13.6 Asst. Registrar, Cooperative Societies, vide letter dated 14.01.2005 addressed to 125 Members of the Society wrote that DDA has returned a list of 135 Group Housing Society forwarded by RCS for allotment of land. DDA has requested RCS for re-verification of membership and other details of the societies. Hence, they were directed to send details of PAN, bank account, attested affidavit with photographs and certificate of verification from Gazetted Officer in the prescribed proforma. The said letters dated 14.01.2005 were exhibited as PW79/B-1 to PW79/B-127.
The advertisement was placed by the RCS in newspaper regarding verification of the members of the societies including NCERT CGHS. The same was exhibited as Ex. PW79/A-28.
Vide letter (18.07.2005), the Society submitted to the Asst. Registrar, affidavit, form-60, statement of account, address proof and certificate verified by a gazette officer.
As per the noting of 22.07.2005, in response to the advertisement, some members and the Society have submitted the documents. The entire file was exhibited by IO/PW79 as Ex. PW79/C-1 (running into 138 pages).
14. PW-16 Saran Kumar Rajpal has deposed that he had become the member of the Society in 1986-87 but lost interest due to its non-development and resigned from the said Society before his retirement from NCERT in 2003. He further deposed CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 69 that he never filled up any membership application form nor did he sign on the application form Ex. PW16/C. He further deposed that he never signed on the affidavit dated 05.04.2003 Ex. PW16/D. He also denied his signatures against his name at point E, B in the list of members appended with the copies of three bye-laws Ex. PW11/C, PW11/C-1 & PW11/C-2. He also deposed that he was not a member of the Society in 2003 when the list of members for verification Ex. PW11/G was sent and the address mentioned in the list and the UPC dated 07.07.2003 is incorrect. He did accept that in 2005, he received a letter no. 3319 dated 14.01.2005 from RCS Office (Ex. PW16/F), against which he sent a verification certificate dated 14.03.2005 (Ex. PW16/B) vide letter dated Ex. PW16/D (colly).
PW11 Smt. Pushpa Kapila Sonan has deposed that she had joined NCERT in 1967 and became a member of the NCERT CGHS Society in 1971. She deposited an amount of Rs. 110/- towards membership. Mr. Mahendru was Incharge of the said society. She further deposed that she remained associated with the society till 1982, thereafter, she lost touch with the society. She deposited three installments in the Society.
She deposed that neither did she file the application nor did she sign on the application Ex. PW11/B at page 269 in file D-3, Vol. III. She further deposed that she never submitted any document including any affidavit Ex. PW11/A at page 103C in file D-3 Vol.III in the year 2003 in NCERT CGHS. She deposed that she never signed on the said affidavit nor did she purchased the stamp paper. She also denied her signatures CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 70 against her name (at serial no. 23) at red points in the list of members appended with the copies of three bye-laws Ex. PW11/C, PW11/C-1 & PW11/C-2. She also deposed that her name was mentioned at serial no. 23 alongwith the address in the UPC list dated 07.07.2003 (Ex. PW11/D) of the Society but she had not received any communication or letter from office of RCS in 2003.
She also deposed that her name was mentioned at serial no. 23 alongwith the address in the list of members dated 03.03.2003 (Ex. PW11/E) of the Society but she had not received any communication or letter from office of RCS in 2003.
Upon seeing the letter dated 14.01.2005 (Ex.PW11/F) from RCS Office addressed to her from the office of Asst. Registrar, she further deposed that she never received any communication from RCS office in 2005. She deposed that she was not aware that her name was being sent in the final list of NCERT CGHS upon seeing the list for verification list of members alongwith cover letter dated 03.07.2003 (Mark 11/X).
PW52 Sh. Ajit Krishan Duggal has deposed that he joined NCERT as an Assistant on 20.12.1963. He took VRS and retired from his job in the year 1991. He became a member of the NCERT CGHS Society in 1976 on being recommended by Sh. S.K. Mahendru and Sh. Gauri Shankar Mathur, both of them were also employees of NCERT and office bearer of the Society. He went to US on 16.02.1991 on green card.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 71 He further deposed that he has not signed on the Application Form Ex. PW52/A (at page 210 in file D-3 Vol. III) or the affidavit Ex. PW52/B (at page 44 in file D-3 Vol. III). He voluntarily stated that he was not in India on 05.04.2003 but in US when that affidavit was shown to have been executed. He never resigned from membership of NCERT CGHS.
Upon seeing affidavit Ex. PW30/C, he denied his signatures at point X against his name (at serial no. 82 the list of promoters member to be appended with bye-laws at the time of registration) ( page no. 307 to 310 in file D-1). He also deposed that his name and name of his father is correctly recorded against serial no. 82 of the said list.
He also denied his signatures at point X against his name (at serial no. 82 the list of promoters member to be appended with bye-laws at the time of registration) Ex. PW52/C ( page no. 296/C to 298/C in file D-1). He also deposed that his name and name of his father is correctly recorded against serial no. 82 of the said list.
He also denied his signatures at point X against his name (at serial no. 82 the list of promoters member to be appended with bye-laws at the time of registration) Ex. PW52/D ( page no. 283/C to 286/C in file D-1). He also deposed that his name and name of his father is correctly recorded against serial no. 82 of the said list.
He also denied deposition of Rs. 100/- against his CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 72 name (at serial no. 82 ( list of members of Society) Ex. PW52/E ( page no. 233/C of file D-1).
He also denied any knowledge if his name was sent alongwith name of other members of Society to DDA after seeing the documents Ex. PW2/F (colly)(page 175 to 182 of D-4, Vol.- I, list of verification of membership for sending the list of members to DDA for allotment of land).
Similarly, PW-17 Santosh Anand, PW-19 Chetan Prakash Malhotra, PW-30 Mukesh Chand Jain, PW-44 Bansi Lal Pandit, PW-47 M. G. Chaturvedi, PW-55 Om Prakash Arora, PW-58 Mahender Kumar Gupta, PW-59 Om Prakash Arora, PW- 62 Subhash Chand Sharma and PW-72 Rajender Kapoor have deposed that they were all original members of the Society and further deposed that the copy of the application form, copy of receipt and affidavit dated 05.04.2003, all bearing their name and details and filed alongwith the revival application, did not bear their signatures and thus, signatures of all these witnesses were forged.
15. PW13 Sh. Ramesh Chand Bansal has deposed that he did not sign the affidavit Ex. PW13/A (at page 69 in file D-6) or the application form Ex. PW13/B (page 68 in file D-6). He further deposed that he had provided photocopy of his bank statement, photographs and ration card to Suresh Gupta who was his partner at his shop at Nehru Place. He further deposed that he never paid any money to Suresh Gupta for becoming member in the NCERT CGHS.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 73 In his cross-examination, he deposed that he does not know Kuldeep Goel. He further deposed in his re-examination that Suresh Gupta used to take name of Kuldeep Goel though he personally does not know him.
PW-1 Sh. Deepak Kapoor has deposed that he was never a member of NCERT-CGHS or any other Society. He further deposed that he never filled up any membership application form nor did he sign on the application form Ex. PW1/B. He further deposed that he never signed on the affidavit Ex. PW1/A attested on 12.01.2005. He further deposed that he had given photocopy of his election card, photo and other details to Jain Associates Property Dealer at Dwarka.
Thus, PW1 has also not incriminated any accused except deposing that he gave photocopy of his election card and photo to Jain Associates. Strangely, it is not clear by any description whether this Jain Associates is the accused turned approver Rakesh Jain or not.
PW2 Sh. Anish Singla has deposed that he was never a member of NCERT-CGHS or Imperial Residency CGHS. He further deposed that he never filled up any membership application form nor did he sign on the application form Ex. PW2/B. He further deposed that he never signed on the affidavit Ex. PW2/A attested on 12.01.2005. He further deposed that he had given photocopy of his election card, photo and other details to somebody at Dwarka. He denied, in the cross-examination by CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 74 Ld. Prosecutor, that he had given the said document to accused Kuldeep Goel.
PW7 Sh. Mukesh Jain has deposed that he never became member of any society including NCERT-CGHS. He further deposed that he never filed any affidavit or any documents in the said society. He further deposed that he never signed on the affidavit Ex. PW7/A at page 76 in file D-6 attested on 12.01.2005. He further deposed that his father Rattan Lal Jain had also not signed on the affidavit Ex. PW7/B. He also deposed that neither him nor his father purchased the stamp paper or got the same attested or filled the said two affidavits. He had given photocopy of his PAN card etc., photo and other details to Lal Chand Aggarwal.
In his cross-examination by Ld. Prosecutor, he categorically denied that Kuldeep Goel had visited him and assured him membership and flat in the NCERT Housing Society. He also denied the suggestion that he had handed over his documents or documents of his father to Kuldeep Goel.
PW8 Sh. Sunil Arora has deposed that he never became member of any society including NCERT/Imperial Residency CGHS. He further deposed that he never filed any affidavit or any documents in the said society. He further deposed that he never signed on the affidavit Ex. PW8/A at page 63 in file D-6 attested on 12.01.2005. He also deposed that he never purchased the stamp paper or got the same attested. He deposed that he had given photographs and bank details to CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 75 Gaurav Kanth who is a partner in a firm namely M/s. Friends Office Automation for the purpose of insurance and for purchase of flat.
In his cross-examination by Ld. Prosecutor, he categorically denied having given photographs and bank account details to Suresh Gupta.
PW9 Sh. Gaurav Kanth has deposed that he never became member of any society including NCERT/Imperial Residency CGHS. He further deposed that he never filed any affidavit or any documents in the said society. He further deposed that he never signed on the affidavit Ex. PW8/A at page 63 in file D-6 attested on 12.01.2005. He also deposed that he never purchased the stamp paper or got the same attested. He deposed that he had given photographs and bank details to Gaurav Kanth who is a partner in a firm namely M/s. Friends Office Automation for the purpose of insurance and for purchasa of flat.
In his cross-examination by Ld. Prosecutor, he categorically denied having given photographs and bank account details to Suresh Gupta.
PW15 Sh. Bhim Chand Goel has deposed that he did not sign the affidavit Ex. PW15/A (at page 59 in file D-6) or the application form Ex. PW15/B (page 58 in file D-6). He further deposed that he had provided photograph and form to Anis Singhla. He identified Anis Singhla from his photograph on the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 76 affidavit Ex. PW2/A. Similarly, PW-6 Arun Kumar, PW-20 Shalini Gupta, PW-24 Hari Shankar Aggarwal, PW-37 Narender Nath, PW-39 Satish Kumar Relan, PW-50 Neeru Gupta have all denied their signatures in the affidavits attested on 2005 (file D-6) and Form- 60 filed with it. They have also deposed that they had never become the member of any Society including NCERT CGHS nor had they filed any affidavit or any other documents in the said Society.
16. PW12 Sh. Surender Kr. Gaur has deposed that he became a member of the Society through Raj Kumar Sharma. He signed the affidavit Ex. PW12/A at page 47 in file D-6 in the office of Raj Kumar Sharma where Rakesh Jain was also present. He further deposed that he never attended any meeting of the society nor resigned from the membership of the said society.
PW-18 Ms. Neetu Jain deposed that her husband Sh. D.K. Jain filled up the affidavit at page 48 of file D-6 (Ex. PW18/A) and was signed by her at point A. The same was notorized on 15.01.2005. She further deposed that she knows Rakesh Jain who is a property dealer at Dwarka through her husband.
This affidavit stated that Neetu Jain was a member of Imperial Residency Co-operative Group Housing Society Ltd.
Thus, this witness has not deposed anything against any accused.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 77 PW4 Sh. Bhartu deposed that he became member of Imperial Residency CGHS through one Sh. Deepak and handed over Rs. 50/- for photographs and also given his ID card (Ex. PW4/C) to said Sh. Deepak. He deposed that he had not filled up the affidavit Ex. PW4/A at page 20 in file D-6. He deposed that it might be filled by Mr. Deepak. He deposed that signature appearing at point A are of his and his photo also affixed at point A. He identified his signature on the application form Ex. PW4/B. He accepted that particulars mentioned therein are his though he denied his writing on it.
PW5 Smt. Sarita Jain deposed that she had never been a member of any Co-operative Group Housing Society including NCERT-CGHS. She deposed that the affidavit Ex. PW5/A attested on 15.01.2005 at page 42 in file D-6 bears her signature at point A & B and her photographs is also affixed on it.
She deposed that her husband told her to affix her photograph on the said affidavit and to sign it. She further deposed that she had given after signing the said affidavit to Mr. Rakesh Jain who was a property dealer at Dwarka. She further deposed that Mr. Rakesh Jain told her that if land will be alloted to them then she will also be a member of the housing society. She never paid a single penny to Rakesh Jain for the said membership.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 78 PW14 Sh. Subhash Chand Singhla deposed that Rakesh Jain, property dealer had asked him to join as a member of the Society. He executed an affidavit (page 46 in file D-6) bearing his signature on Ex. PW14/A. He had handed over the photo and documents to Rakesh Jain who had never told him about the name of the society. He had identified Rakesh Kumar Jain from his photograph on the affidavit Ex. PW14/B. Similarly, PW-21 Kapil Bhardwaj, PW-22 Parmanand Joshi, PW-23 Ankur Kumar Jain, PW-26 Surender Kumar Jain, PW-27 Deepak Kumar, PW-28 Vineet Gupta, PW- 36 Raj Kumar Sharma, PW-38 Kanhaiya Lal and PW-73 Sunita Goel have deposed admitting their signatures in the affidavits of 2005 but having handed over these affidavits and documents on asking of certain individuals, who are not accused in this case.
17. Not even one witness produced by the prosecution admit to have attended any meeting of the NCERT CGHS (Imperial Residency) at any point of time after its Winding-up Order, though meetings were shown for the purpose of revival of Society.
The testimonies of prosecution witnesses clearly prove that application forms, copy of receipt, affidavits attested on 05.04.2003 and affidavits of 2005 were forged and fabricated and filed with revival letter, in act of conspiracy, to revive the Society for getting land allotted at concessional rates.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 79
18. The letter Ex. PW63/D1 is purportedly signed by C.P. Malhotra, President of the Society at three points Q1046, Q1047 & Q1048. C.P. Malhotra was examined by prosecution as PW-19 and he has deposed nothing in respect of the said letter. The prosecution has not put the said letter bearing his purported signature to the said witness. There is neither admission nor denial of the said letter. In fact, the specimen signature/handwriting of C.P. Malhotra was not taken by the IO nor were his admitted signature taken for comparison.
He has also denied his signatures on the application for membership Ex. PW19/A (signatures at Q1735), receipt dated 25.05.1980 Ex. PW19/B (signatures at Q1796) and the affidavit attested on 05.04.2003 as Ex. PW19/C (signatures at Q1997 & Q1998) in respect of the Society.
As per the GEQD report of PW80 P. Venugopal Rao, signatures appearing at Q1046, Q1047, Q1048, Q1735, Q1796, Q1997 & Q1998 matched with the specimen signatures of accused Anna Wankhede.
19. 19.1 The present case of the prosecution is one of a conspiracy to revive the NCERT CGHS Society by using forged and fabricated documents.
The law of conspiracy is very clear and spelt out in Section 120A IPC and punishment under Section 120B IPC.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 80 Section 120A IPC :-
120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,--
(1)an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Section 120-B reads as under :-
120-B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Hon'ble Supreme Court of India in Baldev Singh vs. State of Punjab, (2009) 6 Supreme Court Cases 564 inter alia held that :-
"......17. Conspiracy is defined in Section 120A of the IPC to mean:
"120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,--
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 81 (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
An offence of conspiracy which is a separate and distinct offence, thus, would require involvement of more than one person. Criminal conspiracy is an independent offence. It is punishable separately; its ingredients being:-
(i) an agreement between two or more persons.
(ii) the agreement must relate to doing or causing to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient.
18.Adverting to the said question once again, we may, however, notice that recently in Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra , a Division Bench of this Court held:
"25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 82 incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
19. Yet again in Nirmal Singh Kahlon vs. State of Punjab & Ors. [(2008) 14 SCALE 639], this Court following Ram Lal Narang vs. State (Delhi Administration [(1979) 2 SCC 322] held that a conspiracy may be a general one and a separate one meaning thereby a larger conspiracy and a smaller which may develop in successive stages. For the aforementioned purpose, the conduct of the parties also assumes some relevance.
20.In K.R. Purushothaman vs. State of Kerala, this Court held: (SCC pp. 636-38.paras 11 & 13) "11. Section 120A of I.P.C. defines 'criminal conspiracy.' According to this Section when two or more persons agree to do, or cause to be done
(i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designed a criminal conspiracy. In Major E.G. Barsay v. State of Bombay, (1962) 2 SCR 195, Subba Rao J., speaking for the Court has said: (AIR p. 1778, para 31) '31.....The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act, It may comprise the commission of a number of acts.' x x x x x x x
13. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 83 primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair, The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well- known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement."
21. As noticed hereinbefore, neither Avtar Singh nor Harbhinder Singh were charged for commission of offence punishable under Section 120B IPC. In our opinion, therefore, appellant alone could not have been convicted under Section 302 read with Section 120B of the IPC.
22. In Darshan Singh @ Bhasuri Ors. vs. State of Punjab, this Court cautioned that the court ordinarily should not convict a person for commission of offence of conspiracy on the basis of a weak evidence, stating: (SCC p. 415 para 8) CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 84 "8.The evidence regarding conspiracy is as weak as the evidence about the dying declaration of Sohan Singh, Surat Singh (P.W. 27) speaks of a meeting between the co-conspirators in the house of accused No. 1, Darshan Singh alias Bhasuri. We cannot believe that in the presence of an utter stranger like Surat Singh, the conspirators would discuss their plans to commit these murders, throwing all caution to the winds. The answer of the High Court is that the conspirators were taking liquor while discussing the conspiracy and, 'When liquor is taken, then under its influence sometimes most secret things are divulged in the presence of a person who is not so intimately connected. It is often said, when liquor goes in, truth comes out.' This is somewhat artless. Liquor is no lie- detector and we cannot assume that accused Nos. 1 and 2 were so drunk as to overlook the presence of a stranger in their midst yet not so drunk so as to be unable to discuss the execution of their criminal design. Besides, Surat Singh forgot all about the incident and was contacted by the police a few days later. The learned Sessions Judge was right in holding that Surat Singh's evidence suffers from certain infirmities, 15because of which one could not place implicit reliance upon him. We would go further and say that his evidence is too unnatural to merit serious attention. Apart from the evidence of motive, Surat Singh's evidence in regard to the conspiracy is the only evidence against accused No. 1 Bhasuri and accused No. 2 Joga Singh. It is on that evidence that these two accused have been convicted under Section 120-B read with Section 302 of the Penal Code, the former being sentenced to death and the latter, because of his young age, to life imprisonment, ........"
The Hon'ble Apex Court in Ram Sharan Chaturvedi vs. State of Madhya Pradesh, (2022) 16 Supreme Court Cases CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 85 166, held that ;
".......27.The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the appellant and A-1 and A-2.
28.In the decision of State of Kerala v. P. Sugathan and Anr.2, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:(SCC pp. 211-12 paras 12-13) "12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...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 the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..." (emphasis supplied)
29. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu, this Court held: (SCC p.691. Para CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 86
101) "101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." (emphasis supplied)
30. In accepting the story of the prosecution, the Trial Court, as well as the High Court, proceeded on the basis of mere suspicion against the Appellant, which is precisely what this Court in Tanviben Pankajkumar Divetia v. State of Gujarat4, had cautioned against:
(SCC p. 185. para 45) "45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 87 doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa) " (emphasis in original and supplied)
31. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI, this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is 5Page 18 of 19 required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient."
19.2 The law relating to circumstantial evidence is also required to be noted.
Hon'ble Supreme Court of India in Ramesh Bhai And Another vs. State of Rajasthan, (2009) 12 Supreme Court Cases 603 held as under :-
".......8."10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 88 v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those 4circumstances. In Bhagat Ram v.
State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
11.We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
'21.In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.'
12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests (SCC pp. 710-11. para 10):
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 89 probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
13. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 90
16. In Hanumant Govind Nargundkar and Anr. V. State of M.P, , it was observed thus: (AIRpp. 345-46. para10) "10. ....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p 185. para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The 8 circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 91 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
These aspects were highlighted in State of Rajasthan v. Rajaram, State of Haryana v. Jagbir Singh and Anr. and in State of U.P. v. Ram Balak.
20. Analysis of the testimony of C.P. Malhotra/PW-19.
20.1 In the present case, the beginning of the execution of conspiracy was the initiation of the revival proceedings by Sh. C.P. Malhotra, President of the Society by writing a letter to RCS, as underscored in previous paragraphs. This letter addressed to the AR (RCS) becomes the basis for the entire revival proceedings. C.P. Malhotra also signs and authenticates all the application forms, receipts and affidavits pertaining to 125 members of the Society which were filed alongwith the revival letter. The prosecution witnesses, as detailed in previous paragraphs, have already deposed that they have never signed on the application forms or the receipts or affidavits, thus, pointing to the creation of forged and fabricated documents.
There were various GBMs, Certificates, etc. duly authenticated by C.P Malhotra filed as enclosures with the revival letter.
Also, as per the GEQD report, the signature of C.P. Malhotra on the revival letter and all the application forms or affidavits or certificates or other documents filed alongwith the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 92 revival letter were opined to be done by accused Anna Wankhede.
Later, C.P. Malhotra wrote various letter dated 03.06.2003, 04.08.2003, 05.07.2003, 05.08.2003, 10.09.2003, 14.01.2005, 18.07.2005 but they were never put up to him in his examination.
Against this backdrop, it is imperative to analysis the role of C.P. Malhotra. Investigating Officer (IO) when he began the investigation, had the revival letter and the accompanying enclosures to begin the investigation. Since all these documents were signed by the name of C.P. Malhotra, IO would have firstly investigated the role of C.P. Malhotra. Simply denial by him of having signed on all these documents is not sufficient. Nobody will admit his signatures particularly if it incriminates him. IO could have sent the specimen signatures or admitted signature of relevant time of C.P. Malhotra to match with his signatures on the documents and sent it to GEQD for its opinion. However, nothing of this sort was done. Having not done so, in terms of the charge-sheet, and the oral arguments, it was propounded that C.P. Malhotra never signed on the revival application or the accompanying documents. C.P. Malhotra was examined as prosecution witness-19 and as PW-19, he never uttered a word about the application or documents or affidavits or his signatures on these documents/correspondence. If the prosecution was to prove that C.P. Malhotra had not signed on all the above mentioned documents, then it ought to have put it to PW-19 who CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 93 should have specifically denied his signatures on the said documents/correspondence and denied the contents of the documents and correspondence also. Without having denied the said documents/correspondence or his signatures on any of them, how can prosecution prove that it was not signed by PW-19 or that it could have been signed by Anna Wankhede. The burden is on the prosecution to prove and it cannot shift to the accused. This is the cardinal principle of criminal law. The prosecution has not discharged its burden by way of testimony of PW-19 or by eliciting the opinion of handwriting expert by taking his specimen signatures/writing to prove that all these documents were not signed by C.P. Malhotra. Having not done so, the prosecution has attempted to hang on to opinion of GEQD to incriminate Anna Wankhede ignoring the best evidence available with them.
It must also be borne in mind that Inspection Report was prepared by accused Faiz Mohammad. The said report has been termed by prosecution as false. The report says that accused went to the address of the Society mentioned in the letter and met C.P. Malhotra who held all the original file and documents and he compared the same with one on the record. If prosecution was to prove that this report is false, then it ought to have put question to the PW-19 who should have deposed about having never met accused Faiz Mohammad or having shown the records to him. PW-19 in his testimony does not deny any such meeting with the accused Faiz Mohammad or that he held all the original records of the Society or showed it to him for the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 94 purpose of verification. In the absence of any deposition by PW- 19, how is it possible to disbelieve accused Faiz Mohammad and by extension believe that the report itself was prepared without going to the Society office or without having met C.P. Malhotra.
During the verification proceedings, after notice to the Society, as per the report, President of the Society came and showed all the original documents. C.P. Malhotra did not depose anything in this regard, though he should have denied the same if prosecution is to be believed.
It is also important to mention here that the Society was represented before the RCS during the quasi judicial proceedings through C.P. Malhotra who signed the vakalatnama in favor of Lawyer Ms. Rashmi Gulati-PW45, who participated in the revival proceedings before RCS Narayan Diwakar (A-1) leading to the revival of the Society.
C.P. Malhotra, again in his deposition, does not deny that he asked Lawyer Ms. Rashmi Gulati to appear before RCS or that he did not sign the vakalatnama. If he does not do that, it has to be presumed that he signed the vakalatnama in favor of Ms. Rashmi Gulati to appear before A-1. However, there is GEQD report which opines that signature of C.P. Malhotra has been done by accused Anna Wankhede.
C.P. Malhotra is the link that connects that dots of the entire conspiracy propounded by the prosecution. Conspiracy is a chain of events and if that chain is broken even at one level, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 95 then the charge of conspiracy fails. In view of the testimony of PW-19 Sh. C.P. Malhotra, the whole conspiracy involving the accused persons becomes circumspect.
20.2 Investigating Officer After going through the testimony of PW-79/IO, it becomes difficult to form the chain linking the accused persons in the conspiracy and other charges. He has essentially exhibited the documents without detailing in sequence, steps taken during investigation or elaborating the investigation conducted. This manner of testimony does not help the prosecution case.
21. Role of the accused persons :-
A. Accused Narayan Diwakar (A-1) 1.1 Accused Narayan Diwakar (RCS) was the Registrar of the Cooperative Societies, Delhi when the Society namely NCERT CGHS Ltd. was revived vide order dated 02.06.2003 Ex. PW49/M. Accused no.1 passed the said order of revival and cancellation of the Winding Up Order dated 23.03.1979 Ex. PW48/A. This is the role ascribed to him in the conspiracy by the prosecution.
1.2 So as to comprehend the contours, context and the contents of the entire proceedings, it is important to reproduce the said revival order Ex. PW49/M dated 02.06.2003.
" IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 96 DELHI-110001.
Case No. F.47/145/GH/Coop/NW/ 3204-9 Dated: June, 2.2003 ORDER Whereas, the NCERT COOP. GROUP HOUSING SOCIETY LTD. (Regd. No. 145/GH), F-2/244, Sector-16, Rohini, Delhi- 110 085, was issued a Show Cause Notice on the following grounds, as per the report of AR(N/W):
1) The Society failed to achieve its basic objective and not likely to achieve its objective in near future.
2) The Society failed to act in accordance with DCS Act and Rules and as per the provisions of registered bye-laws of the Society.
3) The Managing Committee members and other members of the Society are not showing any interest in the working of the Society.
4) It does not appear that there is any hope to keep the Society alive any more in order to achieve its aim in any manner or so.
And whereas, the Society failed to respond to the above mentioned Show Cause Notices u/s 63 (2) (b) of the DCS Act, 1972, the society was put under Liquidation vide this office order CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 97 No.F.46/47/145/78/H/Coop/1563-69 dated 23- 03-1979.
And whereas, the society vide its letter dated 04-04-2003, requested for revival of the society u/s 63(3) of the D.C.S. Act, 1972 and has requested the Registrar Cooperative Societies for the withdrawal of winding up order dated 23-03-1979.
And whereas. Mrs. Rashmi Gulati, Adv.
representing the Society appeared before this court on the dates fixed. It was stated by her that the Society had never been served any Show Cause Notice u/s 63 of the DCS Act, 1972 and was totally ignorant about such order passed by the RCS office. She has further stated that no auditor from this Department has ever approached the Society for audit till date. It is also stated that in the Special General Body Meeting held on 30-03-2003, elections for the Managing Committee of the Society were got conducted strictly, in accordance with the provisions of law. It was also stated that list of 125 members as on date has been drawn up in the prescribed proforma on the basis of the record of the Society and had also been submitted for verification. As regards Audit, it was mentioned that all the pending accounts are ready for Audit and filed photocopies of the un- CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 98 audited accounts of the society till 31-03-2003. The President and Secretary of the society made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 22-4-2003 to this effect. They were directed to file all the original records before the Asstt. Registrar concerned for verification.
And whereas, it was reported by the Asstt. Registrar (N/W) that the original records were produced by the society and were got verified. The society has submitted the list of 125 members as on date and un-audited accounts fill the period ending 31-03-2003. The records regarding holding of election of M.C. of the Society on 30-03-2003 have been verified and found in accordance with the provisions of the cooperative law. The application forms, share money receipts and resolution of M.C. of newly enrolled members have also been verified from the original records. Fresh affidavits in respect of all the 125 members of the society have also been filed. It is also mentioned in the report of AR(N/W) that an inspection u/s 54 of DCS Act, 1972 was conducted to ascertain the existence and functioning of the Society. The Inspector, who conducted the statutory inspection u/s 54 of the DCS Act, 1972 has reported that the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 99 Society is very much in existence. It has been mentioned in the report of Asstt. Registrar (N/W) that the society was put under liquidation vide order dated 23-03-1979. The society has tried to remove the shortcomings on the basis of which the society was put under liquidation. The M.C. of the society was continuously managing the affairs of the society and was instrumental in its effect to revive the society. Therefore, in absence of finalization of liquidation proceedings, action initiated u/s 63 of D.C.S. Act, 1972 has become a nullity.
I have gone through the submissions made by the President and Secretary of the society, affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (N/W).
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I, N. Diwakar, Registrar, Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 23-3-79 issued to the NCERT COOP, G/H SOCIETY LTD. (Regd.
No.145/GH) in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 100 the NCERT COOP, GROUP HOUSING SOCIETY LTD. (Regd. No. 145/GH) is hereby revived with immediate effect subject to the condition that the Audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. M.M. Singh, Gr.ll of this department as Election Officer to conduct the election of the Managing Committee of the society within two months of the issue of this order. The President/Secretary of the society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the society.
Announced.
(N. DIWAKAR) REGISTRAR COOP. SOCIETIES Copy to:
1. The President/Secretary, NCERT Coop. G/H Society Ltd.
2. Joint Registrar.
3. Asstt. Registrar (N/W)
4.Asstt. Registrar (Audit)
5. Sh. M.M. Singh, Gr.II, Election Officer
6. Order file.
(N. DIWAKAR) REGISTRAR COOP. SOCIETIES "
1.3 It was argued by the Ld. Prosecutor that A-1 in CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 101 pursuance of the criminal conspiracy with other accused persons and by abusing his position of a public servant obtained or attempted to obtain pecuniary advantage without any public interest by reviving the said Society and approving the freeze list of 125 members on the basis of forged documents without checking its genuineness. It was argued that A-1 approved the note of the AR dated 08.04.2003 (Ex. PW-49/D) on that very day and appointed A-4 (Faiz Mohammad) as Inspection Officer vide order dated 09.04.2003 (Ex. PW-49/L-1). A-4 submitted his report on 16.04.2003 and the note dated 17.04.2003 (Ex. PW- 49/E) regarding the inspection report by A-2 was put up before A-1 who approved it on the same day. It was further argued that A-1 took no steps to see as to why the file of NCERT Society was lying dormant for 27 years. A-1 should have canceled the registration of the Society under Section 67 & 69 DCS Act, 1972 read with DCS Rules. Moreover, it was not checked as to how the address of the Society has been changed without any correspondence. Accused Niranjan Singh (since expired) (A-3) Dealing Clerk did not point out the fact that enrollment of 94 new members were made in 1978 & 1980 but the affidavits were attested on 05.04.2003. In his note, he made a false averment of enrollments being made prior to freeze date of 30.06.1986. This false averment was also not checked by A-1.
On the other hand, Ld. Counsel for accused A-1 had argued that he was only working in the capacity of a quasi- judicial body and passed the order based upon the inspection report of A-4 and the note put up by A-2 & A-3.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 102 1.4 The role of A-1 can be bifurcated into two aspects; firstly with respect to the order appointing A-4 as Inspection Officer and secondly with respect to the order dated 02.06.2003 for revival of the Society.
1.5 When the application for revival of the Society was moved before accused Yogi Raj (A-2), a note was put up by deceased accused Niranjan Singh (A-3) and accepted and forwarded by him calling for an inspection report to verify the records and submit a factual position in this regard. This note was approved by A-1 and accused Faiz Mohammad (A-4) was appointed the Inspection Officer.
Thus, A-1 had a role in appointment of A-4 as the Inspection Officer in respect of the present Society.
As per PW-49 Sh. Virender Kumar Bansal, he had retired from the office of RCS in 2008 from the post of Asst. Registrar which he held from 2004 till 2008. In his examination- in-chief, he delineated the procedure in practice in RCS as was followed. He firstly pointed out that on a receipt of an application for revival of Society, an Inspection Officer is appointed under Section 54 of DCS Act to conduct inspection and to submit his report. Such a report is processed in the concerned zone and a proposal is sent in the Court of RCS for holding proceedings under Section 63 of the Act. Thus, even as per prosecution through PW-49, appointment of Inspection Officer is normal part of practice in procedure as well as in law.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 103 As a result, appointment of Inspection officer and calling his inspection report consequent to a revival application is not incriminatory against A-1.
Moreover, prosecution has also relied upon the testimony of PW-63 Sh. Rakesh Bhatnagar, who was Joint Registrar in the office of RCS from May 2002 to December 2003. PW-63 deposed that in the note Ex. PW49/B the proposal was made for appointment of A-4 as an Inspection Officer by A-3 and put up to A-2, who marked the proposal to him. He, thereafter, forwarded the proposal to A-1 who approved the same. Thus, the role of PW-63 Sh. Rakesh Bhatnagar is the same as A-2 in so far as the proposal for appointment of A-4 as an Inspection Officer is concerned. If this action of appointment of A-4 would have been found incriminatory by CBI, then it would have made PW-63 as an accused, which is not the case here.
Thus, there appears to be nothing wrong committed by A-1 in approving the note for appointment of A-4 as an Inspection Officer of the said Society for ascertaining its factual position and verifying the records.
1.6 A-4 gave his favorable report which essentially contributed to favorable consideration of the application for the revival of the Society. Thereafter, vide noting dated 17.04.2003, the report of Faiz Mohammad and the findings were considered and it was submitted to request before the competent authority (RCS) to consider the request for revival of the Society and for approval of the list of members for allotment of land. On CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 104 17.04.2003, RCS (A-1) after considering the inspection report under Section 54 of the Act decided to summon the Society for 22.04.2003 for initiating the case under Section 63 of DCS Act.
The note-sheet under signature of accused Narayan Diwakar (RCS) dated 22.04.2003 (Ex. PW49/F) records present of PW-45 Ms. Rashmi Gulati, Advocate representing the Society and filing of vakalatnama by her. Reader was directed to send the file in the concerned zone for verification and proceedings were adjourned for 08.05.2003. The file was sent to North-West for compliance.
On 06.05.2003, a detailed note regarding the verification was made/prepared. As per this note, considering the inspection report and the letter of revival, it appeared that Society was still functioning but failed to fulfill the statutory obligations under the provisions of DCS Act and Rules and Bye-laws. In compliance with the directions of the RCS for verification of the membership and to ascertain the audit/election position etc., the President of the Society has produced/submitted the original records and documents pertaining to the membership, audit and election etc. for verification on 02.05.2003. The same was counter-checked/ verified and found in order. As per the detailed report, the Society was registered on 23.10.1972 with 31 promoter members (refer copy of the bye-laws at P-10/C) and has submitted a list of 125 members (See P-9/C to 16/C) for approval and onward submission to DDA. The Society has enrolled 94 members prior to freeze date of 30.06.1986. The list CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 105 of these 94 members was duly mentioned and it was concluded that since all the enrollments were made prior to freeze date, no approval is required.
The Society had submitted the following documents in connection with the enrollments.
i) Photocopy of application for membership from 94 enrolled members;
ii) Photocopy of receipt of share-money from enrolled members;
iii) Photocopy of the minutes of the Managing Committee Meeting in which the enrollments were approved;
iv) Affidavits in original in respect of 125 existing members stating that he was resident of Delhi at the time of applying for membership in the Society.
The noting further says that the Society produced original records for verification, which were examined and verified accordingly. All the enrollments were found in order and in accordance with the provisions of Delhi Co-operative Societies Act and Rules. Since registration of Society, there are no cases of transfer of membership and joint membership.
The Secretary of the Society has filed an affidavit in respect of the enrollments alongwith a final list of 125 present members for approval and onward submission to DDA. It was submitted that the freeze strength of the Society be treated for CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 106 125 members. The Secretary of the Society has also filed an affidavit stating that Society is ready to take responsibility if any member who had resigned, files any case/claim before any court of law; there is no court case pending in any Court of Law against the Society and there is no inspection under Section 54 and inquiry under Section 55 & 59 pending against the Society.
The Society has submitted unaudited accounts of the Society till March 2003 and sought permission to audit the same in accordance with the Act and Rules.
Election: The election of the Managing Committee of the society was held in the General Body Meeting dated 30.03.2003 and following Managing Committee has been constituted :
S.No. M.S.No. Name of the M.C.Member Post Held
1. 95 C. P. Malhotra President
2. 98 Ved Prakash Vice-President
3. 111 S. C. Sharma Secretary
4. 101 Smt. Tripta Sareen Treasurer
5. 112 Smt. Manju Wadhwa Member The society has submitted the following documents in connection with election of the society :
i) Minutes of the Managing Committee Meeting held on 02.03.2003 (photocopies are placed at P31/C to P 21 /C). v) -
ii) A copy of the Agenda Notice dated 03.03.2003 issued to all the members for the G.B.M. of the society held on 30.03.2003 is placed at P 30/C to P30/C. Vol-I. CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 107
iii) Service proof of the Agenda Notice issued to all the members of the society is placed at P 26 /C to P29 /C. Vo1-I
iv) Photocopy of the Nomination forms of the candidates is placed at P-19 /C to P 23/C. Vol-I All the original records pertaining to the election of the Managing Committee members of the society was held on 30.03.2003 in the G.B.M. were called for verification. The same were verified and found correct in accordance with the DCS Act & Rules. &CPI The President and Secretary have given declaration vide affidavit at P53/C & P51/C to abide by the statutory obligations cast upon them by Delhi Cooperative Societies Act & Rules and affirmed and declared:
1. That the society l hold the AGM as provided u/s 29 of DCS Act, 1972.
2. That the society will hold the election in time and in accordance with the provisions of Section 31 of DCS Act, 1972 read with Rule 58 Schedule-II of DCS Rules, 1973.
3. That the society ensures to conduct of audit in accordance with the provisions of Section 53 of DCS Act, 1972.
4. That the Audit Compliance Report as required under the provisions of Rule 84 (10) of of DCS Rules, 1973 shall be filed in time.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 108
5. That the list of members as required to be maintained under the provisions of Rule 37 of DCS Rules, 1973 shall be adhered too.
6. That they will take all timely action/steps in consonance with the provisions of DCS Act & Rules.
The original records of the society were called on for verification of membership, Audit, Election etc. The same has been checked found in order & in as per the provisions of DCS Act & Rules framed there under.
In view of the above explained position, if agreed, the worthy RCS may kindly be requested to consider the following :
a ) Request for revival of the society u/s 63 (3) of DCS Act, 1972.
b) Approve the Freeze List of 125 members (placed at P9/C to P16/C) for allotment of land. Vol-I.
c) The Freeze list will be forwarded to DDA subject to audit of accounts of the society upto 31s March 2003.
1.7 Thereafter, on 08.05.2003, proceedings were held in which PW-45 Ms. Rashmi Gulati represented the Society, verification report was taken on record and proceedings were adjourned for 29.05.2003.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 109 Vide order dated 02.06.2003, order under Section 63 (3) DCS Act was passed by the RCS (A-1) for revival of the Society and file transferred to AR (NW).
1.8 What follows from the above is that A-1 after the receipt of the inspection report and the report of A-3 & A-2 regarding checking and verification of the records of the Society and finding it to be correct, summoned the Society for hearing on the application for revival.
As per PW-49 Sh. Virender Bansal, during these proceedings, the existing Management Committee make submissions through their counsel and affidavits are obtained from the Secretary and President of the Society where he commits himself for compliance under the Act. During the said proceedings, RCS provides opportunity of hearing to the Managing Committee of Society as well as departmental representative. Thus, RCS was not wrong, rather correct in calling for the Society representative or their counsels to appear before it in the revival proceedings.
As per PW-45 Ms. Rashmi Gulati, Advocate, she represented the Society before the RCS on 08.05.2003 & 29.05.2003. She identified the vakalatnama Ex. PW-45/A bearing her signatures. Thus, PW-45 appeared as a lawyer for the Society for the revival proceedings before A-1 and given the fact that she was cited as a prosecution witness shows that proceedings cannot be termed as malafide or fictitious and thus, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 110 exculpatory towards A-1.
It is also a fact that the note put up by the Dealing Assistant (A-3) forwarded to Assistant Registrar (A-2) regarding the verification of records and inspection report was directly marked to the Registrar (A-1) and was not routed through Joint Registrar PW-63 Sh. Rakesh Bahtnagar. However, PW-63 admitted in his cross-examination " it is true that the then Registrar Sh. R.K. Srivastav who was predecessor Sh. Narayan Diwakar had issued instructions that all files pertaining to revival of societies were to be sent directly to the Registrar through the concerned Asst. Registrar." Thus, routing of the file by A-3 to A-1 without PW-63 was in terms of the instructions issued by the predecessor of A-1. Thus, neither A-1 nor A-3 can be faulted with for processing of the file in this manner.
1.9 As already discussed in para no. 11 & in cross- examination of PW-63, A-1 as Registrar of Co-operative Societies was acting within the powers conferred on him under Section 63 of the Act for proceedings for the revival of the Society and sending of the list of the members. Such proceedings are quasi judicial proceedings. A-1 essentially acted based upon the inspection report by A-4, verification report of A-2 & A-3 and representation made by the Society through PW-45 Ms. Rashmi Gulati resulting in the order of revival.
1.10 No prosecution witness has said or adverted to any connection between A-1 and any other accused persons in reference to the conspiracy. The prosecution has essentially CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 111 alleged that A-1 had passed the revival order in execution of the conspiracy; however considering the testimonies brought on record, as discussed above, the prosecution has not been able to prove the charges under the IPC or Prevention of Corruption Act against accused Narayan Diwakar (A-1).
B. Accused Faiz Mohammad (A-4) 1.1 The request for revival of the Society, in the form of PUC (Ex. PW49/D) was considered and Asst. Registrar (N/W) recommended to appoint Faiz Mohammad (A-4) as Inspection Officer to verify the records and submit the factual position in this regard. The note/PUC was forwarded to JR and was approved by RCS (A-1). The accused Faiz Mohammad (A-4) was appointed as Inspection Officer vide Office Order No. F-47/145/ GH/ NW/ COOP/ 533 dated 09.04.2003.
1.2 Since A-4 had filed his Inspection Report and which is the basis for his trial in the present case, it would be in the fitness of things to reproduce the Inspection Report.
" Dated 16.04.2003 To, The Asst. Registrar (NW) Cooperative Societies Govt. of NCT of Delhi Parliament Street, New Delhi - 110 001 Sub :- Inspection report under Section 54 of DCS Act 1972 of the NCERT Employees Co-operative Group Housing Society Ltd. {Regn. No.145 (H)} CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 112 Sir, In compliance of this office order No. F- 47/145/ GH/ NW/ COOP/ 533 dated 09.04.03 vide which undersigned was appointed an Inspecting officer submissions are as under:-
(i) I have visited at the Office Address of the Society i.e. F- 2/244, Sector-16, Rohini, New Delhi-110 085 on 11.04.03 and there I met Sh.
C. P. Malhotra, President of the Society.
(ii) Sh. C. P. Malhotra, President of the Society produced all the relevant records of the Society and informed that there are 125 members are existing in the Society and list of members has not yet approved by the RCS office for allotment of land.
(iii) As per records of the Society the office Address of the Society was shifted from NIE Campus, Sri Aurovindo Marg, New Delhi-16 to 512, Model Town, New Delhi vide GBM resolution passed on 17.06.1977 (Copy of the GBM Proceeding is enclosed).
(iv) An intimation regarding change of address was sent to Sh. H. C. Joshi. Asst. Registrar (H) CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 113 vide society's letter dt. 02.08.77 through Regd. Post.
(v) The Membership Register is completed in all respect.
(vi) The Audit of the Society is pending since registration. All the accounts are ready for audit since registration to till date. (A copy of the unaudited accounts since 1972 upto 31.03.2003 enclosed).
(vii) The Proceeding Register is also completed and the last Managing Committee meeting was held on 31.03.2003.
(viii) As per records of the Society the last Election was held on 30.03.2003in accordance with the DCS Rules (Copies of Election records are enclosed).
(ix) All the Society records are kept under the safe custody of Sh. C.P. Malhotra, President of the Society.
(x) As per records of the Society and it was revealed that the Society is not functioning since long. The Society was brought under liquidation vide Order No. F. 47/145/78/ CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 114 H/Coop/1563-69 dated 23.03.79 with the following reasons:-
(a) That the Society was failed to get its list of members approved from RCS office for allotment of land.
(b) That the Society was failed to get its accounts audited from the RCS office since its registration.
(c) That the Society was failed to conduct its election of Managing Committee members timely.
(d) The the Society was failed to achieve its aim.
FAIZ MOHAMMAD Gr.II/Inspecting Officer Encl:- As above"
1.3 As per the said report, accused Faiz Mohammad (A-4) visited the office of the Society at F-2 / 244, Sector-16, Rohini, New Delhi-110085 on 11.04.2003 and met Sh. C. P. Malhotra, President of the Society who produced all the records of the society and informed that 125 members are existing. Thus, as per the said inspection report, A-4 had actually visited the address of the society at this place and met C.P. Malhotra.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 115 Ld. Counsel for accused had argued that PW-19 C.P. Malhotra had not contradicted the report of A-4 regarding his meeting or production of the original records. It was, thus, argued that without any incriminating material, there is nothing on record against him.
From the reading of the testimony of PW-19 Sh. C.P. Malhotra, it is abundantly clear that this most critical witness has not uttered a single word about this Inspection Report. When the report says that A-4 met PW-19 at the address of the Society, then it is for the prosecution to prove that PW-19 never met A-4 at the said address and only then can the report of A-4 be termed as false. However, PW-19 has not disputed the said Inspection Report or its contents. It was for the prosecution through PW-19 to prove the falsity of the contents of the Inspection Report. It has not been done at all. Not only that, the prosecution has also not put any question to PW-19 regarding this report or the claim of the A-4 of having met PW-19 at office address of the Society or of PW-19 possessing the original records or showing it to the A-4 for verification.
1.4 In terms of Inspection Report, as per the records of the Society, the address of the Society was Aurovindo Marg which was shifted to Model Town, New Delhi vide GBM Resolution dated 17.06.1977. Ld. Prosecutor had argued that as per report, A-4 visited the office address of the Society i.e. F- 2/244, Sector-16, Rohini, Delhi but there is no resolution on record or mentioned in the Inspection Report regarding shifting of such address and hence, the accused A-4 never went to this CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 116 address.
It is correct that no such Resolution could be found in our record; however, it has to be read in conjunction with the testimony of PW-19 who is supposed to have met with A-4 at the said address and shown original documents. As discussed above, prosecution fails on this count, given the testimony of PW-19 (star witness). Moreover, A-4 going to the address at Rohini is not out of place as this is the address mentioned in the application for revival Ex. PW63/D-1 moved by the NCERT CGHS Society through alleged C.P. Malhotra, President of the Society.
1.5 Ld. Prosecutor had argued that there was no correspondence between the Society and the RCS for almost 27 years but the Inspection Report does not dwell on this issue. It is a fact that there are no notings in the file for those many years. However, when A-4 has given a finding based upon what PW-19 showed him or told him and PW-19 does not contradict A-4 nor is he declared hostile by the prosecution, then this issue looses its importance.
1.6 As per the Inspection Report, A-4 had seen all the records of the Society as produced by C.P. Malhotra. There is a noting given at that time i.e. " At the time of inspection, I found that original Bye-laws are not available in the file of the society and the President of the society gave me the photo copy of bye-laws".
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 117 There is a copy of the bye-laws found in the file, lending credence to this noting, prepared by A-4 as per GEQD report.
1.7 Again, No prosecution witness has directly or indirectly referred to any connection between A-4 and any other accused persons in reference to the conspiracy. The prosecution has essentially alleged that A-4 had given Inspection Report in execution of the conspiracy; however considering the testimonies brought on record, essentially PW-19 Sh. C.P. Malhotra, as discussed above, the prosecution has not been able to prove its case under the IPC or Prevention of Corruption Act against accused Faiz Mohammad (A-4) beyond reasonable doubt.
C. Accused Yogi Raj (A-2) 1.1 The first allegation against accused Yogi Raj (A-2) is that he forwarded the note recommending appointment of A-4 as Inspection Officer in pursuance to the revival application moved by the Society. He has only forwarded the note which has also been forwarded by Rakesh Bhatnagar, Joint Registrar who is a prosecution witness no. 63. In the aforesaid paragraph dealing with accused Narayan Diwakar (A-1), this issue has been dealt with in detail and criminality can be attributed to A-2 on this count.
1.2 Ld. Prosecutor had argued that A-2 while working as Asst. Registrar (N/W) in the office of RCS, did not check the status of the Society at the time of receiving the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 118 application for revival as to why there was no movement in the file for the last around 25 years. The documents filed alongwith the application were not checked. A-2 vide his note dated 06.05.2003 forwarded the proposal prepared by accused Niranjan Singh (A-3) for consideration without having verified the false and forged documents. He also forwarded the false verification report of A-3 to the RCS. A-2 concealed the factum of conducting of audit of the Society for the period 23.10.1972 to 30.06.1976. He also did not point out about the deficiencies in the audit report for the period 1971 till 2003. Also, he forwarded the Inspection Report to the Registrar (A-1) without verification.
Firstly, once an inspection was ordered by A-1 to be done by A-4 in respect of the said Society, then the report prepared by A-4 has to be justified by him. A-2 has not prepared the Inspection Report which was the mandate of A-4 but has only forwarded it.
Secondly, A-3 (deceased Niranjan Singh) had prepared the note whereby it opined that Society is still functioning but has failed to fulfill the statutory obligations under the DCS Act and in terms of the directions of RCS, the President of the Society has produced/submitted the original records and documents pertaining to membership, audit and election, etc., for verification on 02.05.2003 and the same was counter-checked/ verified and found in order. Thus, the counter-checking /verification of the original records and documents and it being in order was done by A-3 (who has since deceased). Since A-3 had CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 119 passed away, hence, there came no opportunity to put these questions to him or for him to question prosecution or provide his version. However, it remains that A-3 had counter-checked and verified the original records and found it correct. A-3 had filed a detailed report in this regard. The said detailed note was then put up before A-2 who then forwarded it to Registrar A-1.
Another very important aspect of this report is that it says that during verification process, the President of the Society has produced the original records and documents pertaining to membership, audit, election, etc. for verification. The President of the Society, being referred to is C.P. Malhotra, the named applicant in the revival application. However, as stated above, C.P. Malhotra appeared as PW-19 and has not contradicted even this issue nor has prosecution cared to even put this question to him or cross-examine him on this issue.
In any criminal case, it is for the prosecution to prove its case and if the witness does not say anything incriminating to the accused, then the accused cannot be compelled to prove the negative against him. The burden to prove a criminal case against an accused lies with the prosecution alone and this burden never shifts.
In view of the above discussion, it cannot be said that the prosecution has been able to prove its case against accused Yogi Raj (A-2) beyond reasonable doubt.
D. Accused Srichand (A-4) & Anna Wankhede (A-5) CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 120 1.1 Accused Srichand (A-5) and accused Anna Wankhede (A-6) are alleged to have played a pivotal role in the conspiracy to do the illegal act of cheating or attempting to cheat the office of RCS and DDA by dishonestly and fraudulently inducing it to revive the Society and to approve the list of 125 members on the basis of false and fabricated documents for getting land from DDA at a concessional rate.
In the entire conspiracy case, both are charged with having prepared false, forged and fabricated documents like affidavits, membership application forms, receipt of membership fees, election proceedings, minutes of meeting, account papers, etc. Both are charged with having prepared or got prepared false and forged documents and using it for revival of the society and getting the land from DDA at subsidized rates.
1.2 Ld. Prosecutor has relied upon the testimony of PW-29 Sh. Mohan Lal to argue for conviction of the accused Sri Chand (A-5).
On the other hand, Ld. Counsel for accused has argued that there is no evidence against him. He further argued that credibility of PW-75 Rakesh Kumar Jain (accused turned approver) is in doubt. Moreover, PW-80 P. Venugopala Rao or PW-29 Mohan Lal has not testified about him. The prosecution has not proved its case beyond reasonable doubt.
1.3 Ld. Prosecutor had argued that as per the GEQD CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 121 report dated 29.09.2006, PW80 P. Venugopala Rao had deposed and opined that signature in the name of C.P. Malhotra at point Q2098 & Q2099 in the revival application was done by A-5. Also, the copy of the minutes of GBM dated 17.06.1977 were written by A-5. Moreover, as per the said expert opinion, signatures of PW-30 Sh. Mukesh Chand Jain (in the application), PW-44 Sh. Bansi Lal (proceedings of GBM dated 03.08.2003), PW-52 Sh. Ajeet Kumar Duggal (list of bye-laws), PW-59 Sh.Om Prakash Arora (list of bye-laws), PW-62 Sh. Subhash Chand Sharma (affidavit and bye-laws ) were done by A-5.
As per the GEQD opinion, signatures in the name of C.P. Malhotra in the entire enclosures accompanying revival application like membership forms, affidavits, audit records, report, certificate, etc. running into more than a hundred pages were all done by accused Anna Wankhede (A-5).
On the other hand, Ld. Counsel for accused had argued that handwriting is only an opinion of an expert and cannot be the sole basis for a decision of acquittal or conviction. Corroborative evidence is also required which is completely absent in the present case.
1.4 On the appraisal of the entire prosecution evidence, it is pellucid that there is not one witness who has deposed to having seen or found accused Srichand or Anna Wankhede to have represented on behalf of the said Society for seeking its revival. This question becomes relevant as one Advocate Rashmi Gulati-PW45, who represented the Society CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 122 before the Registrar of Cooperative Societies in the proceedings during revival, filed vakalatnama on behalf of C.P. Malhotra, President of the Society. In her deposition, she admitted to the vakalatnama Ex. PW45/A and her presence during the revival proceedings. Ld. Prosecutor asked the said witness who deposed that she does not know any person by the name of Srichand. On this, Ld. Prosecutor cross-examined the said witness who again deposed that she does not know Srichand and there is no question of him engaging her as a counsel. She specifically denied the suggestion given by the Ld. Prosecutor that accused Srichand had signed the vakalatnama Ex. PW45/A at point B as C.P. Malhotra in her presence on 21.04.2003 and that she was deposing falsely to save accused Srichand in this case. The entire line of cross- examination by Ld. Prosecutor of this witness/PW45 is to prove that accused Srichand engaged PW-45 to appear as an Advocate of the Society on behalf of its President C.P.Malhotra and he himself signed as C.P. Malhotra in the vakalatnama and that too in her presence. PW-45 did not support the contention of the prosecution nor did PW-19/C.P. Malhotra who was not even examined by the prosecution as regards the vakalatnama or his signature in the vakalatnama or his not engaging PW-45 as the lawyer for the Society. When the vakalatnama is proved on record and it bears the name and signature of PW-19 C.P. Malhotra who does not dispute the said vakalatnama and his signature on the same as President of the Society authorizing PW-45 to appear before RCS in revival proceedings, then it is presumed that PW-19 had signed the vakalatnama. The testimony of PW-19 runs contrary to the prosecution case and the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 123 testimony of PW-19 is the bedrock on which the prosecution anchors its case. What is more intriguing is the GEQD report which the prosecution heavily relies upon. As per the said report, the said signature of C.P. Malhotra was done by accused Anna Wankhede (A-5). This is paradoxical in as much as the prosecution believes even after the receipt of the GEQD report that vakalatnama was signed by accused Srichand as C.P. Malhotra and not Anna Wankhede. This is the stand during the arguments as well. This shows lack of belief of IO/CBI on the GEQD opinion.
1.5 The analysis of testimony of PW29 Sh. Mohan Lal requires deliberations as he is alleged to be the star witness of the prosecution qua accused persons.
PW-29 Sh. Mohan Lal deposed that he knew Sri Chand (A-5) who was a member of Naval Technical Officer CGHS (NTO CGHS) which was formed in year 1983. He further deposed that in the year 1986, he was President of the said society. He further deposed that Sri Chand (A-5) was Vice President of the said society for some period and Sri Chand was also providing consultations to the said society. He further deposed that he used to visit the office of NTO only on Saturdays and Sundays and used to meet Sh. Anna Wankhede (A-6) and Sh. Sushil Kumar Sharma. He further deposed that Sh. Anna Wankhede used to serve tea etc. at the office of NTO CGHS. He, after seeing the proceedings of GBM Ex.PW29/A, deposed that he was not present in that General Body Meeting. He further CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 124 deposed that one day, he had gone to office of NTO CGHS situated at H. No. 304-A, Pocket-C, Mayur Vihar, Phase-II and someone asked him to write down the proceedings of the GBM of some society and he agreed. He further deposed that the proceedings of said GBM were not signed in his presence. He further deposed that he did not know who signed the said proceedings at points A & B and these signatures were not there when he wrote down the said proceedings. He, after seeing the proceedings of Management Committee Ex. PW47/A, Ex. PW47/B, Ex.PW55/E, Ex.PW55/F and Ex. PW 55/G (Colly), deposed that said proceedings were written by him. He further deposed that none of those proceedings were signed by anyone when he wrote it and signatures on these documents were made later on. He further deposed that he never attended any such meeting and no proceedings were done before him. He further deposed that his specimen handwriting and signatures Ex. PW29/C (Colly.) were taken by the IO. He further deposed that his statement u/s 164 Cr.P.C Ex. PW29/D was recorded before a Magistrate and he identified his signatures on it at point A. He further deposed that he gave statement Ex. PW29/E to the IO on 11.05.2006. He further deposed that some material was added by him on his own.
1.5.1 Thus, in his examination, he has deposed that the copy of the proceedings of the General Body Meeting Ex. PW29/A, was written by him. He deposed that when he had gone to Naval Technical Officers CGHS Ltd. of which he was the President, someone had asked him to write down the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 125 proceedings of General Body Meeting of some Society and he wrote those proceedings. He does not know that person. He cannot identify signatures or handwriting of Anna Wankhede. He also deposed that Anna Wankhede used to serve the tea etc. and he met him at the office of NTO CGHS. He denied that copy of proceedings of GBM dated 30.03.2003, 02.03.2003 Ex. PW55/G (Colly) were written by him on the asking of some members of NTO.
In his cross-examination, he deposed that neither accused Anna Wankhede nor accused Srichand ever discussed any matter related to the NCERT CGHS before him. Accused Anna Wankhede used to serve tea, water etc., clean office to members of NTO when members used to gather in the office of the Society and there were 277 members of the said Society. IO had instructed the officers who accompanied me to the court to give a particular statement. He gave the statement to the Magistrate under the pressure from the IO.
1.5.2 Thus, from the plain reading of the testimony of PW-29, it is evident that he had written the minutes of the said General Body Meeting of the said Society though he never attended any such meeting or proceedings on the asking of some member of NTO (Naval Technical Officers CGHS) pointing to foul play and conspiracy. However, the testimony leaves no manner of doubt that neither accused Srichand nor Anna Wankhede ever discussed any matter pertaining to the Society before him. He does not attribute anything to these two accused persons. The charge of the prosecution that said minutes of the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 126 fictitious meeting of the Society were written by this witness PW-29 on the instructions of accused Srichand has no legs to stand on.
1.6 PW-70 Yashwant Kumar is another witness pertaining to accused Srichand and Anna Wankhede. He deposed that he is a typist and 125 affidavits were typed by him using three typewriters (seized and produced in the Court, Ex. PW70/Article-1 to 3). The application forms were also typed by him on the asking of Anna Wankhede who brought the same to him. Anna Wankhede gave the entire list mentioning the name, address and other particulars of the persons which I filled up according to those list. He was asked by Anna Wankhede to fill up/type the said applications or affidavits. When he typed the same, there were no signatures. In the same breath, he deposed that he cannot identify Anna Wankhede. He cannot say if he is present in the court today or not (accused Anna Wankhede was present in the court ).
He was cross-examined by the CBI and he further deposed that Anna Wankhede used to hand over the documents to his father who used to give the same to him. Anna Wankhede did not meet him. He further denied the suggestion that he had ever stated that Anna Wankhede was working for Srichand.
In the cross-examination, he deposed that his duty was to do field work. Work of typewriting was being managed by his father who was dealing with customers. His father passed away in 2009. He cannot identify each documents typed in his CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 127 office as there are lakhs of pages. He also admitted that the affidavits and application forms do not bear any identity mark of his institute to show that they were typed by them. He does not have any proof to show that the three typewriters belong to him.
The scrutiny of this deposition proves that he is a typist who stated that 125 affidavits and application forms were typed by him with his typewriters. Initially he said that he did it on the asking of Anna Wankhede who brought the same to him. However, he clarified that Anna Wankhede used to hand over the documents to his father who used to give the same to him. Moreover, he never met Anna Wankhede. In fact, he could not identify Anna Wankhede in Court. He denied the suggestion by the CBI that Anna Wankhede used to work for Srichand. He also deposed in cross-examination that his father used to deal with customers and the affidavits and application forms does not have any identity mark of his institute to show that they were typed by him or his typewriters. On the whole reading of the said testimony, nothing can be stated to have been proved against accused Srichand and Anna Wankhede in reference to this witness.
1.7 PW-74 Sushil Kumar Sharma deposed that he knows accused Srichand, Secretary of COSMOS CGHS. He was offered a job by Srichand at COSMOS and later shifted him to NTO. He further deposed that he knows Anna Wankhede who was working with NTO. He denied the suggestion that he ever told the IO that Srichand used to do liasioning work with RCS or CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 128 Srichand used to prepare list of members or the minutes of meeting were prepared in his handwriting or he had seen Rakesh Jain in his office. He further deposed that the stamp papers on 125 affidavits were not purchased by him. He also deposed that he is an accused in 08 cases pertaining to Group Housing Societies and Srichand and Anna Wankhede are also accused in these cases.
Thus, he has denied the suggestion of the Ld. Prosecutor that Srichand used to do liasioning work with RCS and used to prepare list of members or minutes of meeting. He has said nothing against the accused. In fact, he has also deposed to say that he had never seen Rakesh Jain (Approver) in his office thereby de-linking them. In any case, this witness is an accused in 08 cases of Group Housing Societies and his testimony has to be taken with a pinch of salt with more detailed and higher standard of proof.
1.8 PW-46 Sh. Neeraj Kumar deposed that he is practicing Chartered Accountant since 1983. He further deposed that accused Sri Chand (A-5) approached him in the year 1993- 94 for accounting of Cosmos Cooperative Group Housing Society. He further deposed that he also prepared accounting paper of Hayatt Nagar CGHS, Naval Technical Officers CGHS and Siddha CGHS etc. He, after seeing the audit report of NCERT employees CGHS Mark PW46/A (Colly) deposed that he did not prepare the said audit report, receipt and payment accounts, income and expenditure account, cash in hand CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 129 certificate, list of members account alongwith balance sheet and other documents for the year from 1971 to 2003. He, after seeing the another audit report Mark PW46/B (Colly.), deposed that he did not prepare the said audit report, receipt and payment accounts, income and expenditure account, cash in hand certificate, list of members account alongwith balance sheet and other documents for the year from 1971 to 2003. He further deposed that accused Anna Wankhede (A-6) might have come with accused Sri Chand (A-5).
Thus, he has also not deposed anything against accused Srichand and Anna Wankhede as regards this case.
2.1 As far as opinion of the handwriting expert i.e. PW-80 is concerned, it is an expert opinion under the Evidence Act. However, it is not a conclusive proof of any fact. The law as regards the handwriting expert is very clear. It cannot be the sole basis for convicting an accused. There has to be a corroborative material apart from opinion of a handwriting expert before arriving at any conclusion.
2.2 The law regarding the opinion of handwriting expert is clear in as much as there should be other corroborating material apart from the opinion for convicting an accused.
In Padum Kumar vs. State of Uttar Pradesh, Criminal Appeal No. 87 of 2020 (Arising Out of SLP (Crl.) No. 6990 of 2018), it was inter-alia held that, ".......16. Of course, it is not safe to base the CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 130 conviction solely on the evidence of the hand-writing expert. As held by the Supreme Court in Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210 that "expert opinion must always be received with great caution........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."
17. It is fairly well settled that before acting upon the opinion of the hand-writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. In Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, the Supreme Court held as under:-
"4. .......True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -- the quality of credibility or incredibility being one which an expert 11 shares with all other witnesses
-- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 131 suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty "is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edindurgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence)." 5. ....... 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."
2.3 The reading of the entire depositions, shows that there is no corroborating material against accused Anna Wankhede (A-6) apart from the opinion of handwriting expert PW-90. In the present case, as discussed above, no testimony of any witness implicates either accused Srichand or accused Anna Wankhede.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 132 2.4 Moreover, the said expert/PW-80 gave his opinion in 2006 but filed his reasons for the said opinion, out of blue, in 2008 without any explanation. Both opinion and reasons must be contemporaneous documents.
2.5 Not only this, even the issue of the handwriting opinion given by PW-80 requires deliberations. All the signatures have been done in the name of C.P. Malhotra which PW-80 opines to be done by accused Anna Wankhede. However, C.P. Malhotra has not denied that he has signed on all these hundreds of documents. If PW-19 C.P. Malhotra has not denied his signatures, then the question of handwriting expert giving an opinion will not arise. Moreover, as should have been the case, specimen signatures or handwriting of C.P. Malhotra should have been taken for rendering an opinion on all those signatures purportedly done by C.P. Malhotra to rule out his involvement. The IO has straightaway believed him and at the same time, the prosecution has not even cared while recording his testimony to put those letter/documents and signatures to him to deny or cross-examine him on those relevant and signed documents/correspondence. The prosecution would like the court to believe on the contents of the charge-sheet rather than the evidence recorded during trial.
3. There is no overt, direct or tangenital link shown between A-5 & A-6 and any other accused persons in reference to the conspiracy of this case. In the light of depositions of prosecution witnesses, it has to be said that the prosecution has CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 133 not been able to prove against accused persons namely Srichand (A-5) and Anna Wankhede (A-6), the charges of conspiracy, forgery, cheating or under Prevention of Corruption Act for which they were charged.
E. Subhash Chand Gupta (A-6) & Kuldeep Goel (A-7) 1.1 Both these accused persons were charged for committing the offence of criminal conspiracy (Section 120-B IPC) read with cheating, forgery, using a forged document as genuine (Section 420 IPC, 468 IPC & 471 IPC) and criminal misconduct by public servants ( Section 13 (1) (d) PC Act). They were alleged to be part of criminal conspiracy to cheat or attempting to cheat Registrar of Cooperative Societies and DDA by dishonestly and fraudulently inducing it to revive and approve the freeze list of 125 members of the Society on the basis of false and forged documents for getting land from DDA at subsidized rates. They alongwith Rakesh Jain formed a new set of committee members in the said Society which was purchased by accused persons Kuldeep Goel and Subhash Chand Gupta for Rs. 60,000/- from co-accused Srichand who got it revived on the basis of false and forged documents in conspiracy with public servants who abused their position and obtained or attempted to obtain pecuniary advantage to the private persons without any public interest.
1.2 They were also charged for an attempt to cheat (Section 420/511 IPC) by dishonestly and fraudulently inducing CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 134 the office of Registrar of Cooperative Societies by forming a false set of new members of NCERT CGHS which was revived by co-accused Srichand on the basis of false and forged documents for getting land from DDA at subsidized rates.
1.3 In order to prove its case against these two accused persons, prosecution has examined close to 30 witnesses. The prosecution in its evidence tried to prove that new members were inducted at the instance of these two accused persons or that they had purchased the Society from co-accused Srichand.
1.4 A careful perusal of the testimony of witnesses reveal the following :-
1.4.1 Not even a single witness has deposed that these accused persons inducted them as a member of the said society or any consideration flowed between these accused persons or any prosecution witness.
1.4.2 There is nothing as such to show that these accused persons purchased the Society from accused Srichand.
There is no documentary proof in this regard.
1.4.3 There is no linkage alleged or proved between any of the public servants (A-1, A-2, A-3 & A-4) and these accused persons. There is no case built-up by the prosecution that public servants were in touch with these persons. The connection between accused Anna Wankhede and these accused persons is CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 135 not propagated by prosecution. The stand of the prosecution is that accused enters the picture after the revival of the Society as they purchased the same and inducted their own members. There is only a cursory linkage with accused Srichand which I shall deal with in later paragraphs.
1.4.4 There were many witnesses produced by the prosecution who deposed that they never became a member of the Society nor did they sign on any application form nor the affidavit. However, all these witnesses have not deposed anything against these accused persons. The forged signatures of these witnesses on these documents were sent to GEQD (Handwriting Expert-PW/80), which gave its report. The expert opinion of handwriting expert also does not incriminate these accused persons. In fact, it is not even the case of the prosecution that these accused persons have forged the signatures or prepared the false documents for the purpose of revival of the Society by the Registrar of Cooperative Societies.
1.4.5 It would be apposite to discuss the testimonies of witnesses who, the prosecution alleges to have, signed the forms and affidavits at the instance of accused persons and handed over these signed documents to these accused persons.
PW-4 Sh. Bhartu deposed that he became a member of Imperial Residency CGHS through one Sh. Deepak in the year 2006. He, after seeing the affidavit Ex. PW4/A, Form 60 Ex. PW4/B and Election I Card Ex.PW4/C, identified his CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 136 signatures on these documents and deposed that he submitted these documents alongwith membership application form through Mr. Deepak.
Thus, PW4 has deposed that he has handed over his ID card to Deepak (identity not known).
PW6 Arun Kumar deposed that he never signed on any affidavit or form (Ex. PW6/A & PW6/B) towards the membership of the Society. He did identify copy of his ration card who he alongwith passport size photograph and form gave it Mahavir Prasad (uncle) who assured him that he will get arrange a flat for him. He specifically denied the suggestion that Kuldeep Goel asked for his photograph or that he told him about materialization about a flat in the society or that he provided bank details to Kuldeep Goel. He also denied the suggestion that Kuldeep Goel was controlling NCERT CGHS.
PW-7 Sh. Mukesh Jain deposed that he never became member of any Group Housing Society including NCERT CGHS. He, after seeing the affidavits Ex. PW7/A and Ex. PW7/B, denied the signatures in his name on Ex. PW7/A and also denied the signatures in the name of his father on Ex. PW 7/B. He further deposed that neither he nor his father had purchased the stamp paper for the affidavit nor got the same attested in the year 2005. He denied having given photograph or documents to Kuldeep Goel.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 137 PW-8 Sh. Sunil Arora deposed that he never became member of any Group Housing Society including NCERT/ Imperial Residency CGHS and had not filed any document in the said society. He, after seeing the affidavit Ex. PW8/A, denied the signatures in his name on it. He did not incriminate A-6 & A-7.
PW-9 Sh. Gaurav Kainth deposed that he never became member of any Group Housing Society including NCERT or Imperial Residency CGHS and also denied to have deposited any document to the said society. He, after seeing the affidavit Ex. PW9/A and Form 60 Ex. PW9/B, denied the signatures in his name on these documents. He did not incriminate A-6 & A-7.
PW-2 Sh. Anish Singla deposed that he never became member of NCERT or Imperial Residency CGHS. He, after seeing the affidavit Ex. PW2/A and Form 60 Ex. PW2/B, denied the signatures in his name and also denied to have deposited these documents to NCERT CGHS, seeking its membership. He further deposed that he had given two photographs, copy of his election I Card and bank details to some persons in Dwarka. He was declared hostile by prosecution.
PW13 Ramesh Chand Bansal deposed that he has a shop at Defence Colony and Nehru Place and Suresh Gupta is his partner at his shop at Nehru Place. He had copy of ration card, CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 138 bank statement and photograph to Suresh Gupta. He denied his signature on the affidavit Ex. PW13/A but identified his photograph in the said affidavit as handed over to Suresh Gupta. He denied his signature on form-60 Ex. PW13/B and the copy of the ration card Ex. PW13/C attached with the form. He deposed that he had given the said copy to Suresh Gupta. He further deposed that he had not paid any money to Suresh Gupta for becoming member in the Society.
In his cross-examination, he deposed that he does not know Kuldeep Goel.
In his re-examination, he deposed that " it is correct that Suresh Gupta used to take name of Kuldeep Goel, however, I personally do not know about him".
PW20 Shalini Gupta deposed that she did not remember whether she became member of any society. She, after seeing the affidavit alongwith its enclosures i.e. Form-60 and copy of passport (page 52 of file D-6) Ex. PW20/A (Colly), denied her signatures on the said affidavit and Form No. 60 and stated that same are forged one. She further deposed that she never executed the said affidavit nor got attested the same. She further deposed that she had never given these details as well as the documents to anybody for her membership in NCERT CGHS. She further deposed that she does not have any idea if her husband had given these documents to Mr. Kuldeep Goel (A-
8) to become member in the said society.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 139 PW-31 Sh. Surjeet Goel deposed that he had two brothers namely Sh. Pradeep Goel and Sh. Kuldeep Goel (A-8). He further deposed that Sh. Kuldeep Goel (A-8) was linked with two societies including NCERT CGHS, but he cannot say as to whether he was a member in those two societies or not. He, after seeing the affidavits Ex. PW31/A, Ex. PW6/A, Ex. PW7/A, Ex. PW24/A, Ex. PW20/4 and Ex. PW31/B, denied the signatures appearing at points A on these documents. He denied knowing accused Subhash Chander Gupta or having dropped accused Kuldeep Goel to office of Subhash Gupta. He denied having done any documentation of CGHS Society.
PW-33 Sh. Ramesh Duggal deposed that he had been running an advertisement agency under the name and style of Rank Advertising Agency and vide seizure memo Ex. PW33/A he handed over the duplicate copy of receipt dated 24.02.2005 Ex. PW 33/A-1 to the IO. He further deposed that said receipt was given to Imperial Residency. He further deposed that he had issued the aforesaid receipt in lieu of receiving an amount of Rs. 18,500/- from the official of Imperial Residency Apartments CGHS towards publication of advertisement in the newspaper in Navbharat Times and Times of India.
PW-35 Sh. Sanjay Aggarwal deposed that he was doing the liasioning work in the private capacity8 with the DDA regarding freehold of the plots and sanction of the maps etc. He further deposed his brother-in-law Sh. Subhash Chand Gupta (A-
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 140
7) was doing property dealing business and used to give him work related to the DDA. He further deposed that Sh. Subhash Chand Gupta introduced him to Sh. H.P.S Thapar, who also used to give him work related to the DDA. He further deposed that he knew Sh. Kuldeep Goyal (A-8) having introduced to him by Sh. Subhash Chander Gupta (A-7) in 2005 or 2006. He does not know address of Kuldeep Goel and no transaction took place before him brokered by Kuldeep Goel.
PW-37 Sh. Narender Nath deposed that he is a Chartered Accountant by profession. He, after seeing the affidavit Ex. PW31/A, denied the signatures in his name. He further deposed that he knew Sh. S.K. Relan, CA having its office at Karol Bagh, Delhi. He further deposed that he used to visit his office as and when required. He further deposed that he never met any person by the name of Kuldeep Goyal (A-8) at his office. He further deposed that he never handed over his photographs to any person by the name of Kuldeep Goyal (A-8) for the purposes of his becoming a member in some society.
PW-38 Sh. Kanhiya Lal deposed that he knew Sh. Sher Singh and his son Sh. Deepak Kumar, who approached him and got his signatures on some blank form and took his photograph and he was told that he shall be allotted with a flat in NCERT CGHS. He, after seeing the affidavit Ex. PW38/A, identified his signatures at points A and A1.
PW28 Sh. Vineet Gupta deposed that Sh. Deepak CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 141 Verma is his childhood friend, who told him that one group housing society was being formed and for membership in that society, he asked him to sign the forms to become member. He further deposed that thereafter he filled up an affidavit. He, after seeing the affidavit Ex. PW28/A, identified his signatures at points A on it and deposed that except the name, other particulars in the said affidavit were not filled up by him. He also identified his photograph at point X, which was given by him to said Sh. Deepak Verma.
PW-40 Sh. Deepak deposed that he was working as a driver with Mr. Thappar for 2 ½ years and Mr. Thappar informed him that some society has been formed for economically weaker persons. He further deposed that Mr. Thappar gave him some forms and affidavits which were got filled up by him from 6-7 persons residing in his street. He further deposed that he handed over those filled up forms to Mr. Thapar alongwith the photographs. He, after seeing the affidavit Ex. PW38/A in the name of Sh. Kanhiya Lal, affidavit Ex. PW27/A in the name of Sh. Deepak Kumar, affidavit Ex. PW40/B in the name of Sh. Hariraj Sharma, affidavit Ex. PW28/A in the name of Sh. Vineet Gupta, affidavit Ex. PW4/A in the name of Sh. Bhartu , affidavit Ex. PW40/D in the name of Sh. Gopal and affidavit Ex. PW31/B in the name of Sh. Arun Kumar Gautam, deposed that aforesaid affidavits alongwith photograph and photocopy of ID proof of the aforesaid persons were handed over by him to Mr. Thapar. He further deposed that particulars in the aforesaid affidavits were not filled up by him.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 142 He further deposed that handwritten portion of the aforesaid affidavit was blank when the same were handed over by him to Mr. Thapar. He further deposed that he did not know any person by the name of Sh. Subhash Gupta (A-7). He further deposed that Mr. Thapar was working on his own as an architect.
PW51 Sh. Pawan Garg deposed that Sh. Subhash Chand Gupta (A-7) is his brother in law (Jija), who is/was a property dealer having office at Sector-28, Rohini, Delhi. He further deposed that he did not know accused Kuldeep Goyal (A-8). He, after seeing the Minutes of the Managing Committee of Imperial Residence Apartments CGHS held on 15.12.2003, deposed that his name is appearing at Sl. No. 5 on this document showing as member in the said meeting, but he never became member of the society. He identified his signatures on these minutes at point C. He further deposed that he never became member of Imperial Residency Apartments CGHS or NCERT CGHS. He further deposed that his specimen signatures/ handwriting Ex. PW51/A (Colly.) were taken by the IO during investigation. He further deposed that he had given his statement before the Ld. MM, New Delhi.
Thus, no witness has given any substatially incriminating evidence against A-7 & A-8.
1.5 There is accused Rakesh Kumar Jain who became an approver and analysis of his testimony is very important.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 143 PW-75 Sh. Rakesh Kumar Jain (approver) deposed that he deal in real estate at Dwarka, Delhi and was doing the same business in the year 2006. He further deposed that he applied for the membership of NCERT CGHS by filling up of a form. He after seeing Ex. PW14/B, identified his signature on it at points A and A1. He further deposed that during investigation of this case, he gave statement Ex. PW75/A before the Magistrate at Patiala House Courts, New Delhi. He further deposed that he arranged 13-14 members for NCERT CGHS society on being requested by Subhash Chand Gupta (A-7) and the application forms of all 13-14 members were filled up in the office of Sh. Subhash Chand Gupta (A7), on his asking and were handed over to Sh. Subhash Chand Gupta (A-7) Kuldeep Goel (A-8). He further deposed that he knew accused Kuldeep Goel (A-8), who was present during testimony of this witness and the witness correctly identified him. He further deposed that Sh. Subhash Chand Gupta (A-7) had asked him to arrange members of the said society and same was stated by Sh. Kuldeep Goyal (A-8). He, after seeing the affidavits Ex. PW18/A, Ex. PW12/A, Ex. PW14/A, Ex. PW75/B, Ex. PW23/A, Ex. PW26/A, Ex. PW5/A, Ex. PW21/A, Ex. PW22/A, Ex. PW22/B, Ex. PW57/A, Ex. PW75/C and Ex. PW75/D, deposed that all these affidavits were got signed by him from those members on the asking of Sh. Subhash Chand Gupta (A-7) and Sh. Kuldeep Goyal (A-8). He further deposed that he was never elected as an office bearer of NCERT CGHS. He further deposed that he knew Sh. Sri Chand (A-5), who used to come to him and he formed some societies and used to deal in same. He further deposed that he arranged CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 144 membership for one person on the asking of said Sh. Sri Chand (A-5). He further deposed that said Sri Chand asked him to arrange for a buyer for a society which, he had for sale. He further deposed that he refused stating that he did not deal in such matter. He further deposed that Sh. Sri Chand (A-5) came to him again after 3 or 4 days and made same request asking him to contact Sh. Subhash Chand Gupta (A-7) as he was dealing in such matters. He further deposed that he contacted Sh. Subhash Chand Gupta (A-7), who agreed to purchase said society. He further deposed that he arranged a meeting between both of them i.e. Sh. Sri Chand (A-5) and Sh. Subhash Chand Gupta (A-7) and the deal was finalized. He further deposed that accused Subhash Chand Gupta (A-7) agreed to purchase the said society for a sum of Rs. 60 lakhs to be paid to Sh. Sri Chand (A-5). He further deposed that Sh. Subash Chand Gupta (A-7) gave him Rs. 1 lakh as part consideration to be paid to Sh. Sri Chand (A-5) and he paid the said amount to Sh. Sri Chand (A-5) in his office. He further deposed that after some days, Sh. Sri Chand (A-5) came to him in his office to receive the remaining amount and at that time, he refused to sell that society. He further deposed that Sh. Sri Chand (A-5) told him that he made arrangements for purchase of same society. He further deposed that on the asking of Sh. Subhash Chand Gupta (A-7), he went to his office and received Rs. 9 lacs and handed over the said amount to Sh. Sri Chand (A-5). He further deposed that Sh. Subhash Chand Gupta (A-7) also asked him to talk to Sh. Kuldeep Goel (A-8) as that deal was through him (Kuldeep Goel). He further deposed that both of them talk to each other, after he made payment and CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 145 did not know about the further payments. He further deposed that Sh. Subhash Chand Gupta (A-7) asked him to be partner in that deal, but he refused stating that he had no money and on this, Sh. Subhash Chand Gupta (A-7) told him that he did not require to pay any money and still he refused. He further deposed that Sh. Subhash Chand Gupta (A-7) told that the payments of Rs. 26.5 had already been made by him (Subhash Chand Gupta) and Kuldeep Goel (A-8). He further deposed that he had an amount of Rs. 7 lakhs due against Sh. Subhash Chand Gupta (A-7), who did not pay that amount that stating that same were paid in that transaction of the said society. He further deposed that he had business dealing with Sh. Subhash Chand Gupta (A-7). He further deposed that thereafter, he arranged membership of that society for persons on the asking of Sh. Subhash Chand Gupta (A-7). He further deposed that during investigation of this case, he went to CBI office and disclosed all this story. He further deposed that IO took his specimen signatures Ex. PW75/E. PW-78 Sh. Manish Yaduvanshi deposed that on 26.09.2006, he was posted as MM, Patiala House Courts, New Delhi. He, after seeing the document Ex. PW75/A i.e. copy of the proceedings including the statement given by Sh. Rakesh Jain u/s 164 Cr.P.C, deposed that on 26.09.2006, an application of the IO was marked to him by the then ACMM, New Delhi. He further deposed that on the said date itself, the proceedings were done in the chamber annexed to his Court room and after being satisfied, he recorded the statement of witness Sh. Rakesh Jain (approver) and thereafter, gave a certificate about correctness of CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 146 the said statement as recorded by him. He further deposed that the said proceedings were sent to ACMM, in a sealed cover. He further deposed that on 30.10.2006, an application of the IO for recording statement of witness Sh. Pawan Garg was marked to him by the then ACMM, New Delhi. He further deposed that on the said date itself, the proceedings were done in the chamber annexed to his Court room and after being satisfied, he recorded the statement of said witness Sh. Pawan Kumar Ex. PW51/B and thereafter, gave a certificate Ex. PW78/A about correctness of the said statement as recorded by him. He further deposed that the said proceedings were sent to ACMM, in a sealed cover. He further deposed that on 30.10.2006, an application of the IO for recording statement of witness Sh. Dhanna Ram was marked to him by the then ACMM, New Delhi. He further deposed that on the said date itself, the proceedings were done in the chamber annexed to his Court room and after being satisfied, he recorded the statement of said witness Sh. Dhanna Ram Ex. PW78/E and thereafter, gave a certificate Ex. PW78/F about correctness of the said statement as recorded by him. He further deposed that the said proceedings were sent to ACMM, in a sealed cover. He further deposed that copy of the statements of Sh. Pawan Garg and Sh. Dhanna Ram were allowed to be given to IO on an application Ex. PW-78/C filed by him.
1.6 Analysis of testimony of PW-75 1.6.1 PW-75 deposed that he had applied for the membership of NCERT CGHS by filling up a form but he does not know that he was made member. He did not pay any CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 147 membership fee. He identified his signatures on the affidavit Ex. PW14/B. He arranged 13-14 members for that Society on being requested by Subhash Gupta. The forms were filled up in the office of Subhash Gupta and on his asking to accused Subhash Gupta and Kuldeep Goel.
He has deposed that Srichand had formed some societies and used to deal in the same. He had asked him to arrange a buyer for the society which he refused. Later, Srichand came and asked me to contact Subhash Gupta whom he contacted and Subhash Gupta agreed to purchase the Society. The deal was finalized as Subhash Gupta gave Rs. One Lakh as part consideration to him to be paid to Srichand. He made the said payment in his office. Later on, Srichand came to his office to receive remaining amount and he refused to sell the Society. He conveyed the message to Subhash Gupta who stated that he has made arrangements. On his asking, he went to his office received Rs. Nine Lakhs from him and handed it over to Srichand. Subhash Chand Gupta asked him to talk to Kuldeep Goel as the deal was through him. Both of them talked to each other. Subhash Chand Gupta asked him to be a partner but he told him that he does not have money on which Subhash Gupta stated that it is not required to pay any money but he refused. Subhash Gupta told him that payment has already been made.
1.6.2 From the deposition of PW-75, it is clear that CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 148 he alleges transaction between him and Subhash Chand Gupta regarding the Society and the payment of money/consideration between Subhash Chand Gupta and Srichand but in this regard does not say anything about Kuldeep Goel. Even as per his testimony, he has not witnessed the transaction of money for the alleged purchase of the society involving accused Kuldeep Goel. He only goes so far to say that Subhash Gupta asked him to talk to Kuldeep Goel as the deal is through him but does not incriminate Kuldeep Goel in this regard.
PW-75 also deposed that he arranged the members of the society on the request of Subhash Gupta and not Kuldeep Goel. He did say that Kuldeep Goel gave the applications form to be filled up by the members to him.
1.6.3 PW-18, PW-12, PW-14, PW-23, PW-26, PW- 5, PW-21, PW-22, PW-57 have deposed that they had signed on documents pertaining to the membership of the Society and handed it over to Rakesh Jain. These witnesses did not depose anything against accused Subhash Chand Gupta and Kuldeep Goel.
1.6.4 The cross-examination of PW-75 is important to ascertain his veracity. Following are certain extracts :
"I met Accused Sh. Kuldeep Goyal two or three times in matters mentioned above. I do not know where Sh. Kuldeep Goyal resides or what his Phone number or where his office, if any, is situated or who are his family members, It is true CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 149 that I never found Sh. Kuldeep Goyal and Sri Chand together. Vol. Whenever I met Sh. Kuldeep Goyal, that happened in the office of Sh. Subhash Chand Gupta. None of them paid any money to Sri Chand in my presence. It is true that Sri Chand did not hand over any document to them before me. I used to ask Sh. Subhash Chand Gupta to repay that amount of Rs. 7 lakhs, but I did not take any legal action against him in this regard. I have no written evidence to show that Sh. Subhash Chand Gupta owed Rs. 7 lakhs to me. I do not know if any public notice was issued in any newspaper about said society or my address i.e. A-77. Dilshad Garden was shown in that advertisement as address of said society. It is wrong to say that I am deliberately not giving reply in this regard......"
".....I have no written evidence to verify that I handed over any payment ton Sri Chand on the asking of Sh. Kuldeep Goyal and Sh. Subhash Chand Gupta. It is wrong to say that I have made a concocted story, as mentioned above, to save myself. It is true that I was arraigned accused earlier in this case. It is wrong to say that I connived with CBI/IO later on or became approver and concocted a false story. It is wrong to say that Sri Chand ever had any meeting with me in relation to said society. It is wrong to say that I am deposing falsely......"
"...... I know Sh. Subhash Chand Gupta for about 20 years as he was also a Property Dealer. I worked with Sh. Subhash Chand Gupta for some time. I have no written evidence to show that Sh. Subhash Chand Gupta owed Rs. 7 lakhs to me. It is wrong to say that no such transaction, as mentioned by me in my examination-in-chief, took place involving Sh. Subhash CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 150 Chand Gupta, Sh. Kuldeep Goyal and Sh. Sri Chand or that same is a story, concocted by me to save myself from punishment. It is wrong to say that I was in control of affairs of NCERT CGHS. It is wrong to say that I am deposing falsely......"
".......I have deposed earlier in another case of CBI titled as CBI vs. Naval Singh & Ors. in Patiala House Courts, New Delhi. I was not made an accused in any case pertaining to any other society except in the case of NCERT CGHS. I know Advocate Sh. Naval Singh Verma. It is correct that Advocate Sh. Naval Singh Verma discussed me in relation to the NCERT CGHS case. It is correct that I was introduced with Sh. N M Sherawat by said Advocate Naval Singh Verma in the marriage of the daughter of Sh. Naval Singh Verma. I did not know about Sh. N M Sherawat but Sh. N M Sherawat himself told me that he was an Inspector in CBI. It is correct that I gave money to Sh. Naval Singh Verma as Naval Singh Verma approached me and asked me if I want any help and get rid of my name in the case of NCERT CGHS, he would help me. It is correct that I was called by CBI in relation with Naval Singh's case. My statement was recorded by CBI in case pertaining to CBI vs. Naval Singh & Ors.
Witness is shown statement u/s 161 Cr.P.C. Ex.DW1/2. After seeing the statement I state that I cannot say if the statement shown to me is my statement as I cannot read English. However, I can say that my statement was recorded by the CBI and the statement as shown to me today bears my name and particulars.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 151 It is correct that my statement was also recorded u/s 164 Cr.P.C. before a Magistrate or a Judge in case titled CBI vs. Naval Singh & Ors. I have been shown certified copy of my statement given u/s 164 Cr.P.C. and it bears my signature at point 'A' on all the pages. The same is already exhibited as Ex.DW1/3.
It is correct that I had also deposed in the aforesaid case before the court of Sh. Dharmesh Sharma, Id. Special Judge- 03, CBI, New Delhi in Patiala House Courts, New Delhi. I have been shown my statement dated 02.08.2011and 29.08.2011. The statements bear my signatures on all the pages at point 'A'. The said statement and cross-examination are already exhibited as Ex.DW1/4.
I had myself moved the application for recording my statement u/s 164 Cr.P.C. in the case titled as CBI vs. Naval Singh & Ors.
It is wrong to suggest that I deposed falsely in NCERT CGHS matter in connivance with the CBI officials to get my name out of it through corrupt practices. (Vol. Naval Singh kept on harassing me and demanding money in relation with the abovementioned case and forced me to pay him money). It is correct that I did not make any complaint against Sh. Naval Singh with respect to his harassment and demand of money. It is wrong to suggest that I am deposing falsely and creating an after thought story regarding the aspect of pressure created by Naval Singh and the demand of money/bribe......."
1.6.5 From the testimony of PW-75, it is brought out that he does not even know where accused Kuldeep Goel CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 152 resides or what is his phone number or where is office is situated or who are his family members. He has never seen accused Kuldeep Goel and Sri Chand together. Neither accused Subhash Gupta nor Kuldeep Goel paid any money to accused Sri Chand in his presence nor did accused Sri Chand handed over any documents to them. He has no evidence to show that accused Subhash Gupta owed Rs.7 Lakhs to him.
However, more importantly PW-75 admitted that advocate Naval Singh Verma discussed this case with him and he was introduced to N. M. Sehrawat Inspector in CBI. He gave money to Naval Singh Verma to clear his name in the present case. He also admitted to another CBI matter pending in Patiala House Court involving Naval Singh Verma and in which he was also called by CBI.
In the defence evidence that particular file titled as CBI vs. N. M. Sehrawat, FIR no. A0001/2006, CC No. 46/11 (Ex.DW1/1) was called and his chief & cross-examination dated 29.08.2011 was exhibited as Ex.DW1/4 as also statement under Section 164 Cr.P.C.
1.6.6 In the present case, the prosecution witnesses have pointed their fingers at accused turned approver Rakesh Jain. It is essentially PW-75 Rakesh Jain who has deposed against accused Kuldeep Goel and Subhash Gupta.
The testimony of an approver has to be put to greater scrutiny than any other witness and the testimony of PW-75 does CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 153 not inspire confidence. His cross-examination shows that he is not consistent. Moreover, the testimony faces a serious dent in its authenticity as he is also involved in some transaction in relation to the present case and his being made approver for a consideration in respect of other CBI matters. The testimony of PW-75 is tainted and cannot be relied upon to convict any accused person.
1.6.7 Hon'ble Supreme Court of India in Ravinder Singh vs. State of Haryana, (1975) 3 Supreme Court Cases 742, inter-alia held that :-
".......12. An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 154 conviction may be based.
1.6.8 Reading Section 133 Evidence Act & illustration to Section 114 Evidence Act together, Hon'ble Apex Court in Hari Charan Kumari vs. State of Bihar, 1964 AIR 1184 held that "Accomplice is a competent witness but prudence demands that his evidence should not be acted upon unless it is materially corroborated."
In the present case, the testimony of PW-75 accused turned approver Rakesh Kumar Jain suffers from contradictions and his conduct is also not such so as to invite credence. Moreover, there is no substatiation/corroboration of allegations against these accused persons independent of PW-75. In fact, no witness has deposed anything to link them to the conspiracy, as alleged by the prosecution.
1.6.9 In view of the testimonies of prosecution witnesses, as discussed above, who have not incriminated these two accused persons, the prosecution cannot be said to have discharged its burden of proof against accused Subhash Chander Gupta (A-7) and Kuldeep Goel (A-8), which is beyond reasonable doubt.
22. I would underscore the cardinal principle of criminal jurisprudence that a criminal case has to be proved beyond reasonable doubt against an accused if he is to be pronounced guilty.
CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 155
23. In view of the above stated discussion, prosecution has not been able to prove its case against all six accused persons beyond reasonable doubt which is the touchstone of criminal law. Hence, all the seven accused persons are acquitted of all the charges against them.
Pronounced and Dictated in Digitally signed by AMITABH AMITABH Open Court today i.e. 23.08.2024 RAWAT RAWAT Date:
2024.08.23 07:26:32 +0530 (Amitabh Rawat) Special Judge (PC Act) CBI-14 Rouse Avenue District Court New Delhi CBI Case No. 148/19 CBI vs. Narayan Diwakar & Ors. (NCERT, CGHS) Page 156