Delhi District Court
Cbi vs . Narayan Diwkar Etc. (Siemens Cghs) ... on 27 November, 2013
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
IN THE COURT OF SPLECIAL JUDGEII
(PREVENTION OF CORRUPTION ACT 1988) CBI, ROHINI, DELHI
CC No. 32/2010
(Siemens CGHS)
CBI Vs 1 Narayan Diwakar
S/o Late Sh. Chhati Lal
R/o G30, Masjid Moth, Greater
KailashII, New Delhi.
2 Yogi Raj
S/o Sh. Girdhari Lal
R/o AP77, Shalimar Bagh,
Delhi110088.
3 Niranjan Singh
S/o Late Sh. Babu Lal
R/o 309 Karkarduma, Delhi Govt.
Flats, Delhi92.
4 Faiz Mohammad
S/o Late Sh. Gulam Mohammad
R/o 4794, Ahatakidara, Pahari Dhiraj,
Delhi110006.
5 Sri Chand
S/o Late Sh. Hari Singh
R/o 274A, ProcketC, Mayur Vihar,
PhaseIII, Delhi110091.
6 Anna Wankhede
S/o Late Sh. Parmnuji Wankhede
R/o 148E/A2, Mayur Vihar,
PhaseIII, Delhi96.
7 Mohan Lal
S/o Late Sh. Ajmeri Lal
R/o F228/3, Andrews Ganj, New
Delhi49.
CC No. 32/2010 Page 1/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
8 R.N. Yadav (Expired)
S/o Late Sh.Chandagi Ram
R/o Village Khaira, P.O.Khaira, P.S.
Jafarpur, New Delhi110043.
9 Sushil Kumar Sharma
S/o Sh. Madan Lal Sharma
R/o Village Lalsa, P.O. Dansa.
Tehsil Rampur Bushar, Distt
Shimla (Himachal Pradesh).
10 Nitin Mehta
S/o Sh. Major Surinder Kumar Mehta
R/o Proprietor, YaWeDo
International, C465, Defence
Colony, Ground Floor, New
Delhi24, Delhi110043.
Date on which the final arguments were concluded : 13.11.2013
Date of judgement : 27.11.2013
JUDGEMENT
In CWP No. 2885/90 i.e. Kaveri CGHS Vs Union of India, High Court of Delhi passed an order dated 10.5.1991 to the effect that original date of registration of society with RCR Office was to be considered for establishing the seniority of the society for allotment of land by DDA. Delhi High Court in WP(C) No. 10066/2004 had passed an order, wherein it was observed that there appeared to be a nexus between the builders taking over the cooperative movement in Delhi in connivance with the officials of Registrar of Cooperative Societies.
CC No. 32/2010 Page 2/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 It was observed that land in Delhi is alloted at a predetermined rate and not on the basis of the market value of the land. These cooperative societies were formed in order to provide flats at affordable price to middle income group and lower income group. It was observed that its element of profit making in view of difference of market value of land and value on which the land is allotted to the society, which has resulted in nexus between the builders and officials. In view of the enormous amount of money invested and involvement of the RCS officials & builders, nature of crime and voluminous records, High Court directed CBI to formulate a special investigating team to investigate the whole matter. Preliminary enquiry in respect of the each society in all 135 societies was conducted and in appropriate cases, the regular cases were registered including the present one.
In pursuance of the order dated 02.08.2005 of the Hon'ble High Court of Delhi in Civil Writ Petition No. 10066/2004, directing the CBI to conduct investigation in the matter relating 135 cooperative Group housing Societies, a regular case RC 3(A)/2006/ACUIV/CBI/New Delhi dated 03.01.2006 u/s 120 B r/w 420, 468,471 of IPC and section 8, 9 & 13 (2) 13 (1)(d) of PC Act, 1988 was registered against Narayan Diwakar, the then RCS Delhi and others. The allegations in brief were that during the year 200203 the accused persons entered CC No. 32/2010 Page 3/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 into criminal conspiracy at criminal conspiracy at Delhi with an object to cheat the DDA (Govt. of India). In furtherance of the said criminal conspiracy, private accused persons connived with officials RCS, NCT of Delhi, who recommended for allotment of land to the DDA on the basis of forged and false documents and abused their official position as public servants and gave undue pecuniary advantage/favour to the private persons and thereby committed offences punishable u/s 120B r/w 420,468,471 IPC and sec.8,9 and 13(2) r/w 13 (1) (d) of PC Act, 1988.
The investigation has revealed that SIEMENS Employees Cooperative Group Housing Society Ltd. (CGHS Ltd.) was registered in the office of Registrar of Cooperative Societies (RCS), Delhi on 18.01.1972 vide Registration No. 105(H) with 21 promoter members and 29 members writing to join the said society having its registered office at 6. EBlock, Connaught Place, New Delhi . This address was subsequently changed to B5, Jangpura, New Delhi14. The founding members elected the management committee with K. K. Mehta as President, R.L. Kapoor, as Vice President, S.C. Garg, as Secretory, B.R. Sethi, as treasurer and V. P. Gera, K.C. Paul and H.L. Gupta were made the executive members of the body.
Subsequently, due to lack of positive response from DDA which was not recommending for allotment of land, the members lost CC No. 32/2010 Page 4/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 interest in the project. Consequently, the Registrar of Cooperative Societies wound up the society on 26.12.1978 vide order no. 6/47/105/78/Coop./726671,issued by Ashok Bakshi, the then Dy. Registrar on the grounds that the society had failed to achieve its objective for which it was formed. The original records of the society could not be traced during investigation but it has been revealed that the same were not transferred to any other persons(s).
The investigation has revealed that a communication dt. 21.2..03, from one Diwakar Rao, representing himself as Secretary of the society, was received in the office of RCS, Delhi on 24.02.2003 with a request for revival of the society. Along with this letter dt. 21.2.03, Diwakar Rao also submitted another letter dt. 18.02.2003, mentioning therein that at the time of registration, the address of the society was at 6th Radial Road, Connaught Place and later it was shifted to B5, Jangpura, Mathura Road, New Delhi and now it has been shifted to 3794, Saraswati Vihar, Delhi34 vide Management Committee resolution dt. 17.2.03. In the request letter dt. 21.2.2003 for the revival of the society, Sh. Diwakar Rao, Secretary of the society, inter alia mentioned the reasons for liquidation of the society, requested for revival and sought condonation for the lapses that occurred due to a lack of knowledge in running the society in accordance with provisions of the DCS Act, 1972 and DCS Rules, CC No. 32/2010 Page 5/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 1973. It was further stated that the liquidation order No. F46/47/105/78/H/Coop/726671 dt. 26.12.78 had been put up before the General Body Members and it was resolved unanimously to request the RCS to withdraw the above liquidation order u/s 63 of DCS Act and to revive the society and to approve the list of its members for allotment of land. It was also mentioned that the Management Committee would comply with the DCS Act & Rules to complete all the statutory obligations and that the accounts of the society have also been completed since registration till 31.3.2002 and are ready for audit.
It is alleged that Niranjan Singh, the then dealing assistant dishonestly put up a proposal to appoint Faiz Mohd. Gr. II as Inspection Officer u/s 54 of DCS Act, 1972 for the purpose of verification of the records and to submit the factual position regarding the society. The Assistant Registrar (NorthWest) Yogi Raj vide noting dt. 25.2.03 marked the proposal to Rakesh Bhatnagar, the then joint Registrar, (N/W). The JR (N/W) marked the proposal to the Registrar, Cooperative Societies (RCS) on 26.02.2003. N. Diwakar, the then RCS approved this proposal on 27.2.03.
Investigation has revealed that after approval of the Competent Authority, an order dt. 28.02.2003 was issued by Yogi Raj, AR (NW) appointing Faiz Mohd. Gr.II, as Inspecting Officer to submit the factual CC No. 32/2010 Page 6/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 position of the society, verify the records/ documents of the society and submit the report at the earliest.
Faiz Mohd. GrII, Inspecting officer submitted the following Inspection report dt. 03.03.2003, alongwith relevant documents:
(i) " I have visited at the office Address of the society i.e. 3794, Saraswati Vihar, Delhi110034 on 02.03.2003 and there I met Sh. Diwakar Rao, Secretary of the society.
(ii) Sh. Diwakar Rao, Secretary of the Society produced all the relevant records of the Society and informed that there are 120 members existing in the Society and list of members has not been 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 B5, Jangpura, Mathura Road, New Delhi to 3794, Saraswati Vihar, Delhi110034 vide Managing Committee resolution passed on 17.02.2003.
(iv) The Membership Register is complete in all respect.
(v) The Audit of the Society is complete up to 30.06.1972 and is is pending since 01.07.72 onwards. All the accounts are ready for audit since 01.07.72 up to 31.03.2002. (A copy of unaudited accounts since 01.07.72 up to 31.03.2002 enclosed)
(vi) The Proceeding Register is also complete and the last Managing Committee meeting was held on 17.02.2003.
(vii) As per records of the Society the last Election was held on 16.02.2003 as per RCS Rules (Copies of Election records are enclosed)
(viii)All the records of the society are found under the safe custody of Sh.
Diwakar Rao, Secretary of the Society.
(ix) AS per records of the Society, seen by me it was found that the Society was not functioning since long. And the Society was liquidated vide order NO. F46/47/105/78/H/Coop/726671 dated 26.12.78 for the following reasons:
(a) That the Society failed to get its accounts audited from the RCS office for allotment of land.
(b) That the Society failed to get its accounts audited from the RCS office since 01.07.72 onwards.
(c) That the Society was failed to conduct its election of Managing Committee members timely.
CC No. 32/2010 Page 7/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
(d) That the Society had failed to achieve its aim."
Investigation revealed that Faiz Mohammed, neither visited the office of the society, nor met any Diwakar Rao at any point of time since the address of the society has been found to be non existing and the records of the society were also false. The list of 120 members that had been shown enrolled in the society consisted of the 50 original members from S.No. 1 to S. No.50 and 70 other members shown to have been enrolled from S.No.51 to S.No.120. The office bearers of this society were shown as Arun Kumar, President, Diwakar Rao, Secretary, Suresh Kumar, Treasurer, Ms. Kusum Lata, Vice President and Mrs. Prabha Devi, Executive Member. This false and bogus inspection report by Faiz Mohammed was then put up by Niranjan Singh on 5.3.03 to Yogi Raj, AR (NW) for consideration of the following facts by the RCS:
1 Request for revival of the society u/s 63(3) of DCS Act, 1972. 2 To approve the list of member for allotment of land.
Therefore, a letter dt. 6.3.2003 was issued by the Reader, asking Diwakar Rao, Secretary of the society to appear before the RCS at
3.P.M on 11.03.2003 and to produce the original records for examination/verification. As per records Arun Kumar, President of the society appeared befodre the RCS on 11.3.2003. The RCS then directed to send the file to Zonal Assistant Registrar i.e. north West CC No. 32/2010 Page 8/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Zone for verification and adjourned the proceedings to 18.3.03.
As per records of office of RCS, the records of SIEMENS Employees CGHS Ltd. were produced before Niranjan Singh on 12.3.2003. The original records were compared with the photo copies, submitted earlier before the AR (NW). Accordingly, a detailed note regarding verification was put up on 13.3.03 by Niranjan Singh mentioning that all the members had been enrolled prior to the freeze date i.e. 30.6.1986, and therefore, no approval was required for the same, It was also mentioned that the society had produced original records for verification, which were examined and verified accordingly. All the enrollments were found in order and in accordance with the provision of Delhi Cooperative Societies Act & Rules. It was also mentioned that no residence proof was required as all the enrollments were made prior to 01.05.1985 as per notification of Special Secretary (Cooperation) No. F. 47/Legal/Policy/Coop/92/23052316 dated 5.12.2001. Niranjan Singh then submitted the following for consideration:
(1)Request for revival of the society u/s63 of DCS Act, 1972. (2)Approval of the freeze list of 120 members for allotment of land.
(3)The freeze list would be forwarded to DDA subject to audit of accounts of the society up to 31.3.2002.CC No. 32/2010 Page 9/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Investigation revealed that Niranjan Singh, the dealing assistant had processed the application of the society for revival and received the records from his coaccused persons for verification. He knowingly accepted the false and forged records of the society as genuine and put up the note recommending the revival of the society by the RCS.
Yogi Raj, the AR (NW) marked the aforesaid proposal to the Reader to RCS on 13.03.2003. The recommendation of Yogi Raj was based on false and bogus documents of the society. These documents were treated by him as genuine knowingly. On the basis of this report, Narayan Diwakar, the Registrar, reserved the case for order on 18.03.2003 and finally, revival order No. F 47/105/GH/NW/Coop/256672 dt. 18.3.03. was issued by Narayan Diwakar, the then RCS on unreasonable and illegal grounds. It is alleged that Narayan Diwakar also allowed Anna Wankhede to impersonate before him as Arun Kumar and revived the society, by abusing his official position as public servant.
On 20.3.03, vide Diary No. 1123/AR (NW) a letter along with managing Committee resolution dt. 18.03.03 was received from Sh. Diwakar Rao regarding change of address of the society from 3794, Sarswati Vihar, Delhi to 24/4, East Avenue Market, Punjabi Bagh (East), New Delhi. On 20.03.03 itself Yogi Raj, the AR (NW) sent the list of 120 members to AR (Policy), O/o RCS requesting him to CC No. 32/2010 Page 10/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 forward the same to DDA for allotment of land. Since Yogi Raj was himself functioning as AR (Policy), he forwarded the list of 120 members of SIEMENS Employees CGHS Ltd. to DDA vide letter No.F. 47(19)/RCS/Policy/220 dt. 24.03.2003.
Investigation disclosed that on receipt of list of members of the SIEMENS CGHS Ltd., the DDA requested the Registrar, Cooperative Societies to intimate the present status of 80 societies and also furnish the reasons for forwarding the societies bearing registration No. below 582 as the RCS had earlier sent the seniority list of the societies only from Registration No. 582 onwards. In response to this, the joint Registrar (Policy), replied vide letter dt. 24.09.2003 that all the societies mentioned in the list were functional, except five as per regn. No. 1212, 1433, 1447 & 1465. As regards societies with registration number below 582, it was clarified by the RCS Office that these societies were under liquidation and had been revived by the order of RCS and thereafter, the freeze list had been sent to DDA for allotment of land.
Investigation further revealed that in response to the query of DDA regarding area of preference for allotment of land, Nitin Mehta, the secretary of SIEMENS CGHS Ltd. intimated that their preference for getting land was Dwarka, Subsequently, the SIEMENS CGHS Ltd. vide their letter dt. 13.10.2003 intimated that the society address has CC No. 32/2010 Page 11/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 now changed to NP33B/DDA Flats, Pitampura, New Delhi88.
Investigation revealed that the addresses of the new office bearers of the SIEMENS Employees CGHS Ltd., namely Arun Kumar, Diwakar Rao, Mrs. Kusum Lata, Suresh Kumar and Mrs. Prabha Devi were non existing. Similarly the persons shown as new members in the society were not living at the given addresses.
Investigation has established that S.C.Garg and K.K. Mehta, the original Secretary & President and other promoter members of the society, never submitted any request or affidavit to the RCS Delhi and the signatures of all the promoter members on such affidavits are not genuine. GEQD has also confirmed the aforesaid situation.
Investigation revealed that Sushil Kumar Sharma typed the list of members & letters available in File No. 47/105/GH/(NW)Coop. Vol.II, pertaining to SIEMENS. Employees CHHS Ltd., on the computers available in the office of Sri Chand with his connivance. Further, the nomination forms for election of the management committee members were also filed in by him. Besides, he has also prepared several minutes of meeting of the society on the directions of Sri Chand. Further, on the reverse of the stamp papers, on which affidavits dated 19.02.2003 in respect of each of the members of the society have been prepared, the particulars to be filled in by the vendor, had actually been written by Sushil Kumar Sharma only. These CC No. 32/2010 Page 12/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 documents were later on used for the purpose of revival of the the society in the office of RCS. Further,the minutes of the meeting of 18.3.2003 of the society have been prepared by Sri Chand only.
Investigation revealed that the cash receipts for admission fee & share money of the members of the society have been prepared by Mohan Lal, R/o228,Andrews Ganj, New Delhi49. Mohan Lal is working in the Armed Forces (HQ) and is a friend of Sri Chand. He has prepared these receipts for the period from 1971 to 1985 in the alleged capacity of treasurer of the society.
Investigation revealed that the fictitious accounts for the society for 30 years were got prepared by Sri Chand with the help of a Chartered Accountant, which were later on audited by R.N.Yadav, Jr. Auditor in the office of RCS, who neither visited the registered office of the society, nor contacted any of the office bearers for this purpose. The auditor deputed to conduct the audit of the society is required to conduct the audit on the spot so as to have first hand information regarding the existence of the society, but R.N. Yadav prepared the reports in office.
Investigation disclosed that Anna Wankhede, an associate of Sri Chand, made the signatures in the name of Arun Kumar and Diwakar Rao, who were shown president and the secretary of the SIEMENS Employees CGHS Ltd., on all the records filed in the office of RCS for CC No. 32/2010 Page 13/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the purpose of revival of the society. Anna Wankhede, also wrote the minutes of meeting dt. 04.05.1971, 30.06.1976, 30.05.1983 & 03.04.1985. This was done by him with full consent, knowledge and active connivance of Sri Chand, the mastermind behind this whole episode of forgery of documents. The GEQD has given positive opinion in this regard. Anna Wankhede has also appeared before Narayan Diwakar, the then RCS on two occasions as Arun Kumar, the President of The SIEMENS CGHS Ltd. for the purpose revival of the society. In another society i.e. Taj CGHS Ltd., too, he was the Secretory.
Investigation has revealed that Nitin Mehta S/oMajor Surinder Kumar Mehta r/o C465, Defence Colony, New Delhi showing his address as NP33B/DDA Flats, Pitampura, New Delhi88 wrote three letters to the DDA authorities for allotment of land in the name of SIEMENS CGHS Ltd. at Dwarka, showing himself as Secretary of the society in connivance with Sri Chand, investigation has established that Nitin Mehta never resided at the given address in the letters. In fact, the said premises belonged to one Ashok Kumar Vahi and he is residing in the said premises for many years.
Ld. Sr. Public Prosecutor Sh. Amritpal Singh submits that from these facts it has been established that the above mentioned accused persons in furtherance of criminal conspiracy got the SIEMENS Employees CGHS Ltd. revived on the basis of forged documents and CC No. 32/2010 Page 14/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 attempted to cheat the Government by getting the land allotted to the said society by the DDA.
Sanctions under Section 19 of Prevention of Corruption Act 1988.
Sanction for prosecution u/s 19 of the Prevention of Corruption Act, 1988 against Yogi Raj & Niranjan Singh was obtained from the competent authority. PW49 R. Narayanaswami, the then Chief Secretary, proved the grant of sanction for prosecution of accused Niranjan Singh (A3). PW37 S. K. Khosla, the then Deputy Secretary, Government of NCT of Delhi, accorded the sanction to prosecutre accused Yogi Raj (A2).
Narayan Diwakar (A1), Faiz Mohammed (A4) & R.N.Yadav (A8) had retired from the service and hence they ceased to be the public servants. Therefore, sanctions for their prosecution are not required.
Charge On the aforesaid facts and circumstances, a charge was framed u/s 120 B r/w 419/420/468/471 IPC and section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 against all the accused persons.
Further a charge under Section 15 read with 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against accused Narayan Diwakar (A1), Yogi Raj (A2), Niranjan Singh (A3), Faiz CC No. 32/2010 Page 15/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Mohd. (A4) and R. N. Yadav (A8).
Separate charge was framed against accused Sri Chand (A5) under Section 420 read with Section 511 IPC.
A separate charge was framed against accused Anna Wankhede (A6) and Mohan Lal (A7) under Section 420/511 IPC and under Section 419/468/471 IPC.
A separate charge was framed accused Sushil Kr. Sharma (A9) under Section 420/511 IPC and under Section 419/468/471 IPC.
A separate charge was framed against accused Nitin Mehta (A10) under Section 420 read with Section 511 IPC. Prosecution Evidence, statement under Section 313 CrPC and defence evidence.
The prosecution examined in all 52 witnesses. The statements under Section 313 CrPC of all the accused persons were recorded. In these statements the public servants i.e. A1, A2, A3, A4 and A8 had admitted their signatures and the note sheets in accordance with the prosecution case. Accused Sri Chand (A5), Anna Wankhede (A6), Mohal Lal (A7) and Sushil Kumar Sharma (A9) denied having given the specimen hand writings and also denied having written the proceedings, the photocopies of which were proved by the prosecution. However, none of these accused persons led any evidence in defence.
CC No. 32/2010 Page 16/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Accused Nitin Mehta (A10) had admitted his signatures on the letters written to DDA but stated that these signatures were taken by his maternal uncle Ravi Abrol, who was a builder. He signed these letters in good faith.
Accused Nitin Mehta also examined his mother in his defence in support of his version.
Accused R. N. Yadav (A8) Accused R. N. Yadav (A8) expired during trial after making his statement under Section 313 CrPC and therefore proceedings against him abated.
Kaveri CGHS Judgement of High Court of Delhi Sh. Amritpal Singh, Ld. Sr. Public Prosecutor argues that in Kaveri Cooperative Group Housing Society Ltd. Vs Union of India (AIR 1991 Delhi 217), Delhi High Court had ordered the criteria of seniority of the society as per the date of their registration, so as to stop the bunglings in the office of RCS. But the RCS officials were smart enough to defeat the purpose of that judgement and had invented a new trick by fraudulently reviving the defunct societies at the instance of builder mafia. This was done because the registration number of such society would be up in seniority list on account of its early date of registration.
For sake of understanding the logic of Hon'ble High Court of CC No. 32/2010 Page 17/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Delhi in Kaveri CGHS judgement, I would like to reproduce the relevant paragraphs from this judgement as under :
"Where in respect of allotment of land by the Delhi Development authority (DDA) to the Group Housing Societies, under the Delhi Development Authority (Disposal of Developed Nazul Land) Rules (1981) framed under S. 22 read with S. 56 of the Delhi Development Act (1957), an office memorandum was issued determining seniority on the basis of finalisation of list of members of such societies by the Registrar, Cooperative Societies, instead of earlier criteria of date of registration of such Societies, the said office memorandum was unreasonable and hence arbitrary. The main principle which has been set out in the said office memorandum is that the seniority is to be determined with effect from the date on which the papers of the Society have been found in order and approved by the office of the Registrar, Cooperative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so filed. This criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of CC No. 32/2010 Page 18/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the Registrar of Cooperative Societies.
There may be cases, and they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which show that with no fault of the societies they have been relegated to a lower position in the seniority list, as there are societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list originally filed."
In this judgement it was specifically held that land was to be allotted to the society according to the seniority i.e. date of registration. The purpose of this judgement was to restrict the powers of RCS so that these powers are not abused. The facts of the present case show that RCS officials and builder mafia joined hands and made most of the new criteria laid by Hon'ble High Court, by reviving the old defunct/wound up societies by creating fake members and fake documents, which would have greater chance of allotment of land due to its higher seniority.
Law in respect of Section 13(1)(d)(III) of Prevention of Corruption Act 1988 One of the main and most important submission on behalf of all CC No. 32/2010 Page 19/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 these public servants is that they had done the work in routine manner and have relied upon the documents furnished by the society and they had no knowledge that the said documents were forged. It is, therefore, argued that they had acted in routine manner without having any knowledge of the forgery or without having any intention to abuse the official position. In view of these common submissions, the court is faced with the question as to whether the mens rea in form of intent or knowledge is a necessary ingredient of Section 13(1)
(d) of Prevention of Corruption Act 1988.
It is argued by Sh. Amritpal Singh, Ld. Sr. Public Prosecutor that till recently, no judgment had thrown any light on this aspect. Therefore, when this question arose before High Court of Delhi, Hon'ble Mr. Justice S. Muralidhar vide his order dated 24.09.2009 referred this issue to a larger Bench. Accordingly, this issue was considered by Hon'ble Mr. Justice S.Ravindra Bhatt and Hon'ble Mr. Justice G.P. Mittal in CRL.A. 482/2002, CRL.A. 509/2002 and CRL.A. 484/2002 i.e. Runu Ghosh, T.Rama Rao and Sukhram Vs CBI vide judgment dated 21.12.2011. I reproduce the relevant paragraphs of the judgment as under:
"73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Court the conclusion which this Court draws is that mens rea is inessential to convict an accused CC No. 32/2010 Page 20/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest."
.....................
"75. It would be profitable to emphasize the public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitute expected of them, both in the discharge of their duties, and otherwise. In the case of ministerswho are members of the council of Ministers (the Cabinet) in the Union and State Governments, as well as holders of other constitutional offices there is a requirement that before their appointment, each of them has to subscribe to an oath of office and secrecy according to the form set out in the Schedule, to the Constitution of India by which holders of such offices are required to take oath that he or she would discharge her or his duties in accordance with the Constitution and the law without fear or favour, affection or ill will. This requirement is a constant reminder to the holder of that office that she or he is a trustee and custodian of public interest,and all decisions taken in that capacity are to be based on that factor alone. Holders of other public offices, under the State (a compendious term) are equally bound by such a condition. To ensure that they are afforded the amulet protection and immunity, the Constitution has mandated some safeguards (in the case of members of a service or holders of office under a State or the Union, the protection from arbitrary loss of employment, under Article 311, and the protection of status accorded by virtue of rules or enactments made, pursuant to Article 309 of the Constitution of India). There is an added layer of immunity in the form of requirement of sanction under section 197 or other similar provisions, to protect public servants from needless harassment. However, when the public servant acts in a manner that is devoid of public interest, not only would the action become suspect, then, having regard to the nature of his action, and the heightened degree of blameworthiness, he is said to have transgressed the bounds of protection afforded to his decisions, and is then exposed to prosecution."CC No. 32/2010 Page 21/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 "77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are infact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" without public interest" needs to be spelt out."
I also refer to a prior judgment in J. Jayalalitha Vs State (MANU/TN/1423/2001) decided on 4.12.2001 and I reproduced the relevant portions of the same as under : "...........The contention of the prosecution that mere exercise of power to confer pecuniary advantage to another person even without any dishonesty, can attract the penal provisions of the Prevention of Corruption Act, cannot be accepted, since if such a contention is accepted, any order passed by a public servant, which confers pecuniary advantage, can be prosecuted under the said Act. Section 13(1)(d) of the Prevention of Corruption Act, 1988 relates to the offence of criminal misconduct, whether it is under Clause (i) or (ii) or (iii) and therefore, the offence recognized under all the CC No. 32/2010 Page 22/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 three clauses is only an offence of criminal misconduct. In my view, all clauses in Section 13(1)(d) of the Act require mens rea and it is an essential ingredient for the offence. The judgment of the Supreme Court in M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC 116), which was quoted with approval by the Apex Court in Major S. K. Kale v. State of Maharashtra (MANU/SC/0139/1976 : (1977) 2 SCC 394), shows that in order to come within the mischief of the Section, the abuse of position must necessarily be dishonest on the part of the accused. If the words "corrupt, illegal means or abuse" are not read into Section 13(1)(d)(iii) of the said Act, innocent persons will be harassed in the course of performance of their official duties."
The judgments referred to above show that what is sought to be punished under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is not mere misconduct but criminal misconduct and for criminal misconduct, the element of mens rea is essential and if there is no mens rea, the act does not by itself become punishable, except in certain cases, like Section 304A IPC as it provides punishment for rash and negligent act committed without mens rea.
I have already extracted Section 13(1)
(d)(iii) of the Prevention of Crruption Act, 1988, and in that, the words, "without any public interest" (emphasis supplied) are found.
CC No. 32/2010 Page 23/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 The words, "without any public interest" used in the said Section show that for the offence under Section 13(1)(d)(iii), the prosecution must establish that the interest shown for obtaining pecuniary advantage or valuable thing, was private interest and even if the act serves one public interest and if the said one public interest is against another public interest, a person cannot be prosecuted, since the Section states emphatically that the act shall be done without any public interest. The word 'any' is therefore to be understood that there should be a zero public interest. The word 'any' is defined in Judicial Dictionary of words and Phrases (Fifth Edition by John S. James) as a word which excludes limitation or qualification. Therefore, the word 'any' used Section 13(1)(d)(iii) is absolute. The trial Judge has also conceded in his judgment that tourism involves public interest, but went on to hold that it cannot override another public interest, i.e. Ecological system. Therefore, it is not a case where we can fit in the words "without any public interest", To make out an offence of criminal misconduct, two requirements are necessary and they are, (1) the absence of any public interest whatsoever, and (2) the knowledge of the accused that his act is without any public interest. The first requirement is the objective absence, as a fact, of any public interest and the second requirement flows from the legal maxim regarding mens rea.
CC No. 32/2010 Page 24/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 If the accused acted bona fide without any public interest, believing that he is acting in the public interest, he is not guilty of the offence of criminal misconduct."
Regarding Jayalalitha judgement, I would say that when a judgement of our own High Court on the issue of Section 13(1)(d)(iii) of Prevention of Corruption Act is before this court, the same is binding upon this court. Moreover, a careful perusal of Jayalalitha judgement would show that this judgement is not contrary to the dicta of our own High Court in Runu Ghosh case, rather it supplements the same. The purport of this judgement of Madras High Court is that the element of "mens rea" is applicable to Section 13(1)
(d)(iii) of Prevention of Corruption Act only to the extent that the public servant should also have the knowledge that his act is without any public interest. This observation has been admitted by Hon'ble High Court in Runu Ghosh case but in different words. In Runu Ghosh case in para 79 Hon'ble High Court has observed that "however it is only those facts done with complete and manifest disregard to the norms, and manifestly injurious to public interest which were avoidable, but for the public servant overlooking or disregarding precautions and not heeding the safeguards he or she was accepted and which resulted in pecuniary advantage to another..........". To put CC No. 32/2010 Page 25/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 it in different words, the judgement means that the if the public servant knew that his act of over looking or disregarding the precautions would be injurious to public interest, he would be covered under the mischief of Section 13(1)(d)(iii) of Prevention of Corruption Act 1988. Delhi High Court in Runu Ghosh also noted that the knowledge of the injury to public interest, however, has to be deduced from the note sheets because normally no other evidence would be available against such public servants. The conjoint reading of both the judgements would lead to the conclusion that when an issue affecting public interest comes before a public servant, it is natural that such public person would know that any disregard of the norms would harm the public interest. This knowledge of public interest has to be gathered from the facts of the case. For example in the present case allotment of land/plot to the society would be an act in public interest but if land is granted to a fake society, it would be injurious to the public interest. Needless to say that land is extremely expensive in NCT of Delhi.
Sh. Abhishek Prasad, Adv. has referred to a judgment 'A.K. Ganju Vs CBI CRL M.C. 2384/2011 dated 22.11.2013 ' passed by Hon'ble Mr. Justice Suresh Kait of Hon'ble Delhi High Court wherein it was held that if it is not established that there has been any violation under the MCD Act, then relatable offences committed under the IPC CC No. 32/2010 Page 26/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 or PC Act are hardly established. It is argued by Ld. Defence Counsel that same is the case in the matters of the societies. It is submitted that when the CBI has not been able to establish any violations on the part of the accused persons under the DCS Act, 1972 and DCS Rules, 1973, the offences under the IPC or PC Act would not be established. I have perused this judgment and I am of the opinion that these observations of Hon'ble High Court of Delhi do not lay down any legal proposition. Rather, these observations should be read only in the matrix of the facts before the Hon'ble High Court of Delhi which were being dealt with. This court is not trying any of the offences of DCS Act. Rather, only IPC offences and the offences under the PC Act are under the purview of this court. I may point out that u/s 13(1)(d) PC Act, law presupposes that a public servant was having the legal powers to do a particular act. However, he used those powers with dishonest intentions. Therefore, the word "abuse of official position"
have been mentioned in Section 13(1)(d) of PC Act. Thus a person exercising his powers legally may still be convicted of abuse of his official position. On the other hand, there may be violations of law and rules of DCS Act or any other Act by a public servant but still the same may not fall in the definition of abuse of the official position due to the simple reason that such act could only be an outcome of the negligence by a particular public servant on account of various CC No. 32/2010 Page 27/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 reasons for example: he may be a new entrant into the service having no experience of working and knowledge of rules, laws and practices. Here, this court is not meant to punish the negligences or violations of the rules. Rather, this court is to catch hold of a public servant who has abused his official position with a particular objective i.e. obtaining pecuniary advantage for himself or for some other person.
I may point out that investigation in the present case of CBI was ordered by Hon'ble High Court of Delhi and similar question was dealt by Hon'ble Mr. Justice S.N. Dhingra in Criminal MC No. 2784 of 2007 in order dt. 17.09.2007 wherein his Lordship was pleased to make the following observations: "The investigation was referred to CBI in this case by the High Court. Once investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a matter for investigation to CBI.
Investigation is done by police under CrPC. There is no such as investigation under Delhi Cooperative Societies Act. In fact a lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the charge sheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."CC No. 32/2010 Page 28/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 There cannot be any scope of any disagreement on the point as raised by Ld. Defence Counsels that "obtaining pecuniary advantage for himself or any other persons" is the main ingredient of Section 13(1) (d) on Prevention of Corruption Act 1988. It is also true that prosecution has been unable to prove any evidence to show that if any public servant had obtained any pecuniary advantage for himself or for any other person. But it must be kept in mind that the charge against the public servants in this case is under Section 15 read with Section 13(1)(d) of Prevention of Corruption Act i.e. an attempt to obtain the pecuniary advantage for himself or for some other person. Since it is an offence of "attempt" only therefore there is no question of these public servants having actually obtained any pecuniary advantage to themselves or to the persons operating the fake society. Effect of approval of list of members by RCS The importance of this issue has been specified by Hon'ble High Court of Delhi in Kaveri judgment and I reproduce the relevant portion of the same as under: "It is open to the Registrar to fix a time limit within which the defects, if any, must be removed by the society so as to enable the Registrar to grant approval. If the defects are not removed within the stipulated time, then the society can have no grievance if the approval is not accorded. But once the approval is accorded the same must relate back to the date of the filing of the list.
CC No. 32/2010 Page 29/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 What is the effect of approval? The effect of approval is that the Registrar recognises the correctness of the list as filed by the society."
Notings on the file In the 'Runu Ghosh case', it has also been held that since the offences of corruption are done under the cloak of official duties and in a very clever and shrouded manner, the only evidence available is note sheets written or approved by public servants and the court would be fully justified to draw appropriate inferences from such note sheets. This court has to carefully peruse the note sheets to consider as to whether there has been any abuse of powers, as per Section 13(1)(d)(ii) or whether the public servant has acted without any public interest to obtain pecuniary advantage to any person, bringing the case under Clause (iii) of Section 13(1)(d) of Prevention of Corruption Act 1988.
Requirement of sanction u/s 197 CrPC u/s 19 of P.C. Act, 1988 It is argued by Ld. Defence Counsels that there is no sanction under Section 197 CrPC to prosecute accused persons though sanction under Section 19 of P. C. Act has been accorded. I may point out that since accused Narayan Diwakar and Faiz Mohd. had retired before filing of charge sheet, there was no requirement for obtaining sanction under Section 19 of P. C. Act. Ld. Defence Counsels argue that for a CC No. 32/2010 Page 30/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 prosecution under IPC, a sanction under Section 197 CrPC is required irrespective of the fact as to whether the public servant is still serving or has retired. I have considered the submissions of the accused persons. All the accused persons have argued that since there is no sanction under Section 197 CrPC, therefore they cannot be convicted under any IPC offence including under Section 120B IPC. Almost everyone of them has referred to R. Balakrishna Pillai Vs State of Kerala and another AIR 1996 SUPREME COURT 901 in their support. Therefore I would like to reproduce relevant paragraphs of this judgement as under :
"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a Criminal conspiracy. In support of his contention he placed strong reliance on the decision of this Court in Harihar Prasad v State of Bihar, 1972 CriLJ 707:(1972)8 SCC 89. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the concerned public servants, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation CC No. 32/2010 Page 31/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 with the discharge of official duties by the concerned public servant would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197 (1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a threeJudge decision in S. B. Saha v. M. S. Kochar, (1979) 4 SCC 177 : (AIR 1979 SC 1841). The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed Section 197 (1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit and offence, and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The night approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the hand, it is not every offence CC No. 32/2010 Page 32/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the coaccused while functioning as a Minister. The Criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the consent of the Government of Kerala which is an illegal act' under the provision of the electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegations is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs.
19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegations is that it was an illegal act in as much as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under Section 120B CC No. 32/2010 Page 33/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 I.P.C. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract the protection of Section 197(1) of the Act.
8. For the above reasons, we are unable to accept the view taken by the High Court of Kerala insofar as the requirement of sanction under Section 197(1) of the Code is concerned, in relation to the charge of criminal conspiracy. We, therefore, allow this appeal, set aside the decision of the High Court insofar as that charge is concerned and hold that sanction under Section 197(1) of the Code was a sine qua non. As pointed out earlier so far as the second charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act is concerned, the view of the High Court remains undisturbed. The appeal is allowed accordingly and will stand so disposed of."
A perusal of this case would show that Supreme Court of India has relied upon the criteria, which had already been held repeatedly by Supreme Court. This criteria is that while deciding the question of applicability of Section 197(1) CrPC, neither this provision can be interpreted too widely nor too narrowly and a balance has to be maintained by the court because if this provision is construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official duty to commit an offence and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in course of the same transaction in which the official duty is CC No. 32/2010 Page 34/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 performed. The Apex Court held that right approach is to see that the meaning of the expression lies between two extremes. Therefore the court will have to assess the facts to take a decision as to whether the conspiracy charge is so intertwined with the discharge of the official duty that a sanction under Section 197 would be required, or, the official duty is discharged in such a fashion that the public servant becomes active stimulator of the conspiracy in question. In later case, the sanction under Section 197 CrPC would not be required. Therefore the aforesaid authority can not be applied mechanically for or against the public servant.
In 'Dharambir Khattar Vs. CBI decided on 5.5.2009 in Criminal Revision Petition No. 340 of 2008, by the High Court of Delhi, it was observed that:
"There is a merit in the contention of the learned counsel for the CBI that sanction under Section 197 CrPC is actually not required when the often committed are under the PCA. It is submitted that a criminal conspiracy to commit an offence under the PCA cannot be cloaked with any immunity to indulge in criminal misconduct. Want of sanction under Section 197 of Code of Criminal Procedure is, therefore, no bar. The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3(1)
(d) "any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (I).CC No. 32/2010 Page 35/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject." Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."
Thus, the Delhi High Court in its above quoted order has categorically observed the offence under Section 120B IPC in chapter VA IPC would also become punishable under the Prevention of Corruption Act and hence once sanction under Section 19 of Prevention of Corruption Act has been obtained, no sanction under Section 197 CrPC would be required.
Similar is the law settled in 'Kaushal Kumar Vs. CBI, 2009 (1) LRC 56, Delhi.
The aforesaid legal proposition has been reiterated by Hon'ble Mr. Justice M. L. Mehta in C. K. Jaffer Sharief Vs. State (Through CBI) 2012 IV AD (DELHI) 214, wherein it was held that if there is a sanction under Section 19 of P. C. Act, the absence of sanction under Section 197 CrPC would not come to the rescue of an accused even if CC No. 32/2010 Page 36/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the public servant has been charged for IPC offences.
Hence, accused persons against whom sanction u/s 19 of P.C. Act have been obtained, cannot claim any benefit on the ground that there is no sanction under Section 197 CrPC.
But where there was no requirement of obtaining sanction u/s 19 of PC Act due to retirement of public servants, it is to be seen as to whether the prosecution is able to prove its charge against them under Section 120B IPC. I may point out that being in conspiracy with the persons who have committed the forgeries of various records of the society would be altogether a different act, which is not connected with performance of official duties. In this case the records of the society have been forged by the private person and presented in the office of Registrar Cooperative Societies. Therefore, it would be discussed in later part of the judgment, if the RCS officials hobnobbing with these offenders, went much beyond the scope of protection under Section 197 CrPC?
Powers of police to take handwriting sample during investigation Ld. Defence Counsels have referred to Sapan Haldar & Anr. Vs. State 191(2012) Delhi Law Times 225 of High Court of Delhi decided on 25.5.2012 and submit that the Investigating Officer had no power to take/ specimen signatures. On the other hand, Ld. Public Prosecutor has referred to Ravinder Kumar @ Dara Singh Vs CC No. 32/2010 Page 37/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Republic of India AIR 2011 SC 1436 in which Supreme Court of India held that Investigating Officer had power to take specimen signatures during investigation.
I have considered the rival contentions. The Supreme Court of India, in State of Bombay V. Kathi Kalu Oghad & Ors. AIR 1961 Supreme Court 1808, considered this issue in detail and held that police does not require the permission of the Magistrate before taking the specimen handwriting of an accused during investigation. Relying upon the ratio of Kathi Kalu case, Supreme Court of India in a recent judgement Ravinder Kumar Pal @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, where a question was raised about the admissibility of the specimen signatures of the accused taken during investigation by police without permission of the Magistrate, has held that taking of specimen signatures/writings of accused for examination by expert during investigation, without permission of the Magistrate, is proper and report of expert based on such signatures/writings can be used as evidence against the accused. In this judgment, the Supreme Court had also noticed Section 311A CrPC, brought by a recent amendment of 2006. Relevant portion of para no. 35 of this judgment contain the rival submission put before it, which is reproduced as under :
"Another question which we have to consider CC No. 32/2010 Page 38/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10: AIR 1961 SC 1808. This larger Bench was constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M. P. Sharma & Ors. Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077:
(AIR 1954 SC 300)."
The Supreme Court of India then upheld the view of Orissa High Court which had held that police had power to take specimen signatures of accused during investigation. Thus, I find no illegality in taking of specimen signatures of the accused persons by the CBI CC No. 32/2010 Page 39/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 during investigation.
Evidentiary value of opinion of handwriting expert.
It is argued by Ld. Defence Counsels that the opinion of hand writing expert can not be the sole basis for convicting an accused. It is argued by Sh. R. P. Shukla, adv. that at the most it can be used as a corroborative piece of of evidence. It is submitted that convicting an accused on the opinion of hand writing expert would be a highly dangerous proposition. I would like to discuss the law on this issue.
Section 45 of the Indian Evidence Act lay down that when the court has to form an opinion as to the identity of hand writing or finger impressions, the opinions upon that point of the persons expert in that science are relevant facts. If the two hand writings match with each other, this itself is an evidence as per the Indian Evidence act. To say it differently, the matching of two hand writings is itself a substantial evidence u/s 45 of Indian Evidence Act and the opinion of the hand writing expert is sought only to facilitate the court to form an opinion on this point. Therefore, to say that conviction can be or cannot be based solely upon the report of hand writing expert would be misleading. The appropriate interpretation of Section 45 of Indian Evidence Act is that court is competent to form its own opinion on the point of identity of hand writing and for that purpose the court may call for the report of a hand writing expert. Therefore, the relevant CC No. 32/2010 Page 40/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 fact before this court is the matching or non matching of the hand writing of an accused with the questioned hand writing. If the hand writings match, there cannot be any hitch in convicting the accused even if further corroborative evidence is not available. I quote from the judgment dated 5.7.2011 passed by the division Bench of Hon'ble Mr. Justice S. Ravindra Bhatt and Hon'ble Mr. Justice G. P. Mittal in Jaipal Vs State Criminal appeal No. 137/98 and Rajendra Vs State Criminal Appeal No. 181/98 as under :
"it is true that except the handwriting Expert's report Ext.PW4/A there is no corroboration that the ransom letter Ext.PW12/A was in the handwriting of Appellant Jaipal. The question was dealt in detail by the Supreme Court in Murari Lal v. State of M. P., AIR 1980 SC 531. The Court observed that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration."
It is pertinent to note that High Court of Delhi had relied upon Murari Lal v. State of M.P., AIR 1980 SC 531 wherein Hon'ble Supreme Court held that there was no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted upon, unless substantially corroborated. I would like to quote from CC No. 32/2010 Page 41/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 this judgment extensively as under:
"An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion on 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 witnessthe quality of credibility or incredibility being one which an expert shares with all other witness, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. 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. (para 4) Expert testimony is made relevant by S.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. There is nothing in the Evidence Act, as for example like illustration (b) to S. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the Court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells that 'A fact is said to be provided when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that prudent man ought, under the CC No. 32/2010 Page 42/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 circumstances of the particular case, to act upon the supposition that it exists.' Further, under S. 144 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
(Para 6) There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. (Cases law discussed).
(Para 11) Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other CC No. 32/2010 Page 43/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 evidence.
(Para 12) In view of the above stated law, I am of the opinion that when a case is being pressed by the prosecution solely on the basis of handwriting expert, the court should be very cautious and the reasons for the expert opinion must be carefully examined. In case where reasons for opinion are convincing and there is no reliable evidence throwing a doubt upon it, the testimony of handwriting expert may be accepted.
Notings of RCS officials and revival order A letter dated 21.2.2003 Ex.PW12/A placed at page 62/C to 64/C in D3, filed on behalf of the Siemens CGHS, the following notings (in D2) were written by the RCS officials.
11/N Dy. No. 762/ AR(NW) dated 24.2.03 ( Page 64/C).
PUC is a request under subsection (3) of Section 63 of DCS Act. 1972 for the revival of the Siemens Emp. CGHS ltd. (Regn No. 105) from Sh. Diwakar Rao, Secretary of the society stating therein the society was brought under liquidation on the following grounds :
1. At the time of registration the society had 21 members and Ex Managing Committee was failed to enrolled further 29 memvers as directed by this office within one month from the date of its registration as per DCS Act & Rules.
2. The society failed to hold the Annual General Body Meeting and MC Elections from time to time as required under DCS Act & Rules.
3. That the society failed to get its accounts audited from time CC No. 32/2010 Page 44/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 time to time as required under DCS Act & rules and as per directions of this office the MC enrolled more members from time to time in its meetings.
It has been further informed that Annual General Body Meeting of the society was held on 16.2.03 and the liquidation order dated 26.12.78 was placed before the General Body Meeting and it was unanimously resolved to request the Worthy RCS to withdraw the liquidation order and to revive the society and approve the list of its members for allotment of land. It was also resolved to seek condation for the lapses accured due to lack of knowledge to run the society in accordance with provisions given under DCS Act 7 Rules.
The secretary of the society has further stated that the accounts of the society has been completed upto date since registration and are ready for audit. And the managing committee of the society has assured that in future they will comply with the DCS Act & Rules to complete all the statutory obligations to run the society smoothly.
It has been finally prayed to review the order passed under section 63 of DCS Act 1972 considering the plight of the members of the society having their life dream to have shelter to them.
In this connections submissions are as under : a. The soceity was brought under liquidation vide this office order No. F.46/47/105/78/H/Coop/726671 dated 26.12.78 (page59/C).
B. The society was registered at 51 No.105 (H) dated 18.1.9172 page24/C. The society was registered with its 21 member with the condition that the society will enrolled another 29 members to have a strength of 50 members within one month of its registration (page8/N).
The society was placed under liquidation on the following ground :
1. The society failed to achieve its object for which it was registered.
2. The society failed to fulfil the statutory obligations as provided under DCS Act & Rules & Byelaws of the society.
3. The members of the society are not taking interest in the affair of the society.CC No. 32/2010 Page 45/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Now, the general body meeting of the society vide its Ex.PW10/PX1 (page11/N to 25/N) contd.../ SPL Judge Rohini 21/5/2013 12/N resolution dated 16.2.2003 unanimously resolved to request the Competent Authority to withddraw the liquidation order U/S63 of DCS Act, 1972 and to revive the society and approve the list of its members for allotment of land.
The newly selected managing committee of the society has assured that in future they will comply with the provisions of DCS Act & Rules. The accounts of the society is completed upto date for audit.
In view of above, if agreed we may appoint Sh. Faiz Mohhammad, GrII, Inspection officer U/S54 of DCS Act, 1972 to verify the record and to submit the factual position in this regard.
Submitted Pl.
25.2.03 ARC/NW)
May kinldy approve A' above
128/ARNW
RCS JRC/NW) 25/2/03 25.2.03
RCS
26/2/03 606/JR
26/2/03
JR/NW
27/2/03 4489/819
26/2/03
AR/NW 27/2
DA
As approved fair action is added 27/2/03
for sign. Pl.
27/2/3 28/2/03
CC No. 32/2010 Page 46/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
13/N
1.Dy. No. 869/AR(NW) dated : 4.3.02 ( page 289/C)
May kindly see Sh. Faiz Mohammad, GrII was appointed an Inspecting Officer U/S54 of DCS Act. vide order dated 28.2.03 (page65/C) to bring out the factual position of the society and to verify the record/documents of the society on the requ est of the society U/S63 (3) of DCS Act, 1972 (page64/C) for the revival of the society. The findings of the Inspecting officer is as under :
1. The Inspecting officer visited the office of the society at 3794, Saraswati Vihar Delhi on 2.3.03 and met Sh. Diwakar Rao Secretary of the society.
2. The secretary of the society produced the all relevant record/ documents and as per record ther are 120 members are existing in the society and list of members is not yet approved by this office for allotment of land.
3. That as per record of the society the office of the society was shifting from B5, Jangpura, Mathura Road, New Delhi to 3794, Saraswati Vihar, Delhi vide managing committee resolution passe ed on 17.2.03. Photocopy of the MC resolution placed on record at page60/C.
4. That membership Register of the society is complete in all respect.
5. That audit of the society is completed upto 30.6.72 and accounts are pending for audit since 1.7.72. the accounts of the society are completed upto 31.3.02.
6. Proceeding Register of the society is found complete on the record. The last managing committee meeting was held on 17.2.03.
7. That the last managing committee election was held on 16.2.03 as per provisions of DCS Act & Rules (page 277/C)
8. That all the record of the society was found in the safe cust ody of Sh. Diwakar Rao, Secretary of the society.
The society was liquidated vide order No. F.46/47/105/78/H/ Coop/726671 dated 26.12.78 on the following grounds : a. That the society was failed to get its accounts audited from the RCS Office since 1.7.72 onwards.
b. That the society was failed to get its list approved from RCS office for allotment of land.
c. That the society was failed to conduct its election of the CC No. 32/2010 Page 47/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 managing committee timely.
d. That the society was failed to achieve its aim.
In view of above stated facts that the present MC was continuously managing the affairs of the society and was instrument al in its efforts to revive the society. The MC of the society has assured that in future they will fullfil/comply with the provisions of DCS Act & Rules and complete all the statutory obli gations.
We may submit the request of the society to the Worthy contd../ 14/N RCS to consider the following : a. Request for revival of the society U/S63 (3) of DCS At, 1972.
b. To approve the list of members for allotment of land.
5.3.03 AR 5/3/03
Reader to RCS A6/1 144/AR NW
5/3/03
the instant proposal for the revival of
Siemens Coop. G/H Society Ltd. under section 63 of Delhi Coop. Societies Act. 1972 have been forwarded by AR(NW). The society was liquidated vide order dated 26.12.78. and the same was resolved in the G B M held on 16.2.03 for the revival of the society. The inspection u/s 54 has already been made by the departmental Inspecting Officer and placed in the file.
In view of above, the society may be summoned to appear in the court for inital bearing on 11/03/03 at 3. p.m. Submitted pl.
D X1 RCS
6/3/03
R dr.
CC No. 32/2010 Page 48/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
15/N
11.3.2002
Sh. Arun Kr., President of the society present. Reader is directed to send the file to concerned zone verification.
Proceedings adjourned for 18.3.2003.
193/Reader (N. DIWAKAR)
12/3/03 R.C.S.
AR (N/W) for n/a pl.
18032003
Sh. Arun Kumar, President of the Society present. The zonal officer has submitted his report, as directed by this court vide order dated 1132002.
Inview of the above, case is reserved for orders.
(N.DIWAKAR) R.C.S. 16/N REVIVAL OF THE SIEMENS EMPLOYEES COOPERATIVE GROUP HOUSING SOCIETY LTD. UNDER SECTION 63 (3)OF DCS ACT, 1972.
The Siemens Cooperative Group Housing Society Ltd. is registered with this department at S. No. 105 (H) on 24.4.1972 at its regd. Address at 6th Radial Road, E Block, Connaught place, New Delhi, later shifted to B 5, Jangpura, Mathura Road, New Delhi and presently functioning at 3704, Saraswati Vihar, Delhi - 110034 and is governed by the byelaws registered under the provisions of Bombay Cooperative Societies Act, 1925 (Bombay Act No. VII of 1925) as extended to the Union Territory of Delhi and later governed under the provisions of Delhi Cooperative Societies Act, 1972 & Rules framed thereunder with the object to acquire land for construction of flats for its members (Copy of the Registration Certificate and Regd. Byelaws are placed at P 25/C & P 32/C respectively).
The society was put under liquidation vide this office order No. F46/47/105/78/H/Coop./726671 dated 26.12.78 (see P59/C) due to the reasons given below : CC No. 32/2010 Page 49/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013
a) The society has failed to achieve its basic objective and not likely to achieve its objective in near future.
b) The society has failed to act in accordance with Delhi Cooperative Societies Rules, 1973 and as per the provisions of registered byelaws of the society.
c) The Managing Committee members and other members of the society are not showing any interest in the working of the society.
d) 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.
The Secretary of the society has submitted vide its letter dated 21.02.03 (see P61/C) that the society had shifted its office from B 5, Jangpura, Mathura Road, New Delhi to 3794, Saraswati Vihar, Delhi during the year 200203. The same was resolved in the Managing Committee meeting held on 17.02.2003 (refer P306/C to P /C) and subsequently by the General Body on 16.2.03 (refer P 307/C to P308/C). He has further stated that the society has recently come to know about the liquidation order u/s 63 of the DCS Act, 1972. 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 Registrar Cooperative Societies. He has further submitted that no auditor from this department has ever approached the society for audit till date.
Sh. Diwakar Rao, Secretary of the society has further submitted that the matter of revival of the Society was put up before the Special General Body on 16.02.2003 (see P 307/C to P 308/C) and it was unanimously approved by the General Body to pray before the Registrar Cooperative Societies to withdraw such order u/s 63 of the DCS Act, 1972 and also to approve the final list of 120 members in order to achieve its objective to provide shelter to its member. He has further submitted that the elections of the society are held time to time and the last election was held on 16.02.2003 in the Annual General Body Meeting (photocopy of the minutes of the meeting are placed at 306/C to 318/C).
In this connection, an inspection under section 54 of the DCS Act, 1972 was conducted to know the existence and functioning of the society before initiating any quasijudicial proceedings u/s 63 of the DCS Act, 1972 and Sh. Faiz Mohammad, Gr.II of NorthWest Zone was appointed as Inspecting Officer vide 17/N this office order No. F47/105/GH/NW/Coop/381 dated 28.02.2003 (see P 65/C) The Inspection Report of Inspecting Officer is placed at P288/C. Keeping in view of the facts stated above it appears that the society is still functioning, but failed to fulfill the statutory obligations under the provisions of DCS Act & Rules and byelaws of the society CC No. 32/2010 Page 50/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 and the members of the society are still hoping to have a shelter of their own.
Further the worthy RCS has directed AR (N/W) for verification of membership and to ascertain the audit/election position, etc. (see P15/N and adjourned the proceedings for 18.03.2003.
In compliance with the direction of the worthy RCS, the Secretary of the society has produced/submitted the original records and documents pertaining to membership, audit & election, etc. for verification on 12.03.2003. The same was counterchecked/verified and found in order. A detailed report in this regard is given as under :
1. The society has submitted a list of 120 members (see P302/C to P 311/C) for approval and onward submission to DDA for allotment. Of land.
2. The society was registered with this department at S. No.105 (H) to 18.02.1972 with 21 promoter members (refer copy of the byelaws at P 25/C).
3. Resignations prior to 30.6.86 : Nil.
4. Enrolments prior to 30.6.86 : The society has enrolled 99 members prior to freeze dated i.e. 30.6.86. A consolidated list of these members is placed at P 293/C to P 301/C and the details are given as under : S. M. Members Name Date of Date of Date of No. No. Appli M.C. Receipt of cation Approval Share Money
1. 22 S. P. Sareen 25.06.76 30.06.76 05.06.83 ........................................................
99. 120 Smt. Prabha Devi 25.04.85 30.04.85 05.05.85 Since all the above mentioned enrolments were made prior to freeze date i.e. 30.6.86, therefore, no approval is required for the same. However, the society has submitted the following documents in connection with these above mentioned enrolments : (FolderII)
i) Photocopy of application for membership from 99 enrolled members is placed from P 181/C to P 298/C.
ii) Photocopy of receipt of Share Money from enrolled members is placed from P 121/C to P 180/C.
iii) Photocopy of the minutes of the managing committee meetings in which CC No. 32/2010 Page 51/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the enrolments were approved are placed from P 299/C to P 303/C.
iv) Affidavits in original in r/o 120 existing members stating that 'he/she was resident of Delhi at the time of applying for membership in the society' are placed at p 1/C to P 120/C).
20/N
5. Resignations after 1.7.86 : Nil.
6. Enrolemnts after 1.7.86 : Nil.
The society produced original records for verification which were examined and verified accordingly. All the enrolments are found in order and in accordance with the provisions of Delhi Cooperative Societies Act & Rules. No. Residence proof is required as all the enrolments were made prior to 01.05.1983 (refer notification of Special Secretary (Cooperation) No.F.47/Legal/Policy/ Coop/92/23052316 dated 5.12.2001.
7. Transfer Cases & Joint membership : Since registration of the society, there are no cases of Transfer of membership & Joint Membership.
Present Strength of the society :
Promoter members 21
Number of members enrolled prior to 99
30.6.86.
Number of members enrolled after 1.7.86 Nil
Total 'A' 120
Number of members resigned prior to Nil
30.6.86.
Number of members resigned after 1.7.86 Nil.
Total 'B' Nil
Present Strength (AB) (1200) 120
The Secretary of the society has filed an affidavit in respect of above mentioned enrolments alongwith a final list of 120 present members for approval and onward submission to DDA for allotment of land (see P 315/C to P 320/C) and fresh affidavits in r/o 120 members (see P 1/C to P 120/C).
In this regard, it is submitted that since the membership strength of the society CC No. 32/2010 Page 52/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 prior to freeze dated i.e. 30.6.86 was 120 (21 + 99), hence the freeze strength of the society may be treated as 120. The details of these 120 membgers are given as under : S. M. Members Name No. No. 01 01 S. C. Garg ..................................
1201120 Smt. Prabha Devi The Secretary of the society has also filed an Affidavit (see P 321/C) stating that :
a) The society is ready to take responsibility, if any member who had resigned, files any case/claim before any court of law.
b) There is no court case pending in any court of law against the society.
c) There is no inspection u/s 54 and inquiry u/s 55 & 59 pending against the society.
Audit : The society has submitted unaudited accounts of the society till March' 2002 (see P 66/C to P 262/C) and sought permission to audit the same in accordance with the provisions of DCS Act & Rules.
Election : The election of the Managing Committee of the society was held in the Gneral Body Meeting dated 16.02.2003 and following Managing Committee has been constituted : S.No. M.S.No. Name of the M.C.Member Post Held
1. 116 Sh. Aruj Kumar President
2. 119 Smt. Kusum Lata VicePresident
3. 118 Sh. Diwakar Rao Secretary
4. 117 Sh. Suresh Kumar Treasurer
5. 120 Smt. Prabha Devi Member The society has submitted the following documents in connection with election of the society :
i) Minutes of the General Body Meeting held on 16.02.2003 (Photocopies are placed at P 275/C to P 277/C).
ii) A copy of the Agenda Notice dated 16.01.2003 issued to all the members for the G.B.M. Of the society held on 16.02.2003 is placed at P 286/C to P 287/C).
iii) Service proof of the Agenda Notice issued to all the members of the society is placed at P 282/C to P 285/C.
iv) Photocopy of the Nomination forms of the candidates is placed at P. 277/C to P 281/C. CC No. 32/2010 Page 53/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 All the original records pertaining to the election of the Managing Committee of the society held on 16.02.2003 in the G.B.M. Were called for verification. The same are verified and found in accordance to DCS Act & Rules.
The President and Secretary have given declaration vide affidavit at P29/C & P. 292/C to abide by the statutory obligations cast upon them by Delhi Cooperative Societies Act & rules and affirmed and declared : 24/N
1. That the society will 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 ScheduleII of DCS Rues, 1973.
3. That the society ensures the 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 DCS Rules, 1973 shall be filed in time.
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 and found in order & as per the provision 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 120 members (placed at P 302/C to P 311/C) for allotment of land.
c) The Freeze list will be forwarded to DDA subject to audit of accounts of the society upto 31st March 2002.
13.3.03 AR (N/W)
Reader to RCS 13.3.03
18.3.03 File sent to AR (NW).
25/N
1. Dy. No. 1123/AR(NW) dated 20.3.03 (P329/C) May kindly see PUC is from the secretary of the society informing that M C vide its CC No. 32/2010 Page 54/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 meeting dated 18.3.03 resolved to change the address of the society to 24/4, East Avenue Market, Punjabi Bagh (East), Delhi26 (P 328 to 329/C).
We may keep the information on record.
30/3/03 AR(NW)
My kindly see worthy RLS vide
order dated 18.3.03 (P - 327) has
revived the society.
We may forward the list of 120
members to AR (Policy) for onward
transmission to DDA for allotment of
land.
20/3/03 AR(NW)
Legal issues raised by accused Narayan Diwakar (A1) It is argued by Sh. Abhishek Prasad, Adv. (Amicus Curiae) that in official setting, the superior officer cannot work unless he has faith upon his subordinates. He had no reason to believe that the documents presented before him were fake. My attention has been drawn by Sh. Abhishek Prasad, Adv. Ld. Amicus Curiae that in his testimony PW38 Sh. Rakesh Bhatnagarthe then Jt. Registrar had approved the note of Assistant Registrar believing the reports of his subordinates and approved the proposal of appointing Faiz Mohd. as inspection officer. Similarly Narayan Diwakar also believed the reports of his subordinates. Therefore Narayan Diwakar should be treated in same manner as CBI has treated Rakesh Bhatnagar.
CC No. 32/2010 Page 55/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 I disagree with the submissions of Ld. Defence Counsel. PW38 Sh. Rakesh Bhatnagarthe then Jt. Registrar has no where stated that he had believed his subordinates on any factual position. His testimony is limited to the fact that a note proposing the appointment of Faiz Mohd. as Inspection Officer was forwarded by him for approval to the RCS i.e. Narayan Diwakar who approved the appointment of Faiz Mohd. as Inspector. A perusal of the relevant noting Ext.PW10/PX1 (page 12/N D2) would show that only portion A of the noting was forwarded by PW38 Sh. Rakesh Bhatnagarthe then Jt. Registrar to the RCS in which Faiz Mohd. was proposed to verify the records and submit the factual position. Thereafter, PW38 does not come in picture, so far as question of revival is concerned. A proposal for the revival of the society and for approving the list of members for allotment of land was not routed through PW38 Sh. Rakesh Bhatnagarthe then Jt. Registrar. Therefore, Narayan Diwakar stands entirely on a different footing as PW38 has no role in approval of the revival of the society.
It is true that PW51 Sanjeev Bharti has not supported the prosecution case regarding interaction of Sri Chand with Sanjeev Bharti. Therefore, this court is only left with the notings and revival order and it is to be seen as to whether the revival order was passed in good faith or it was a malafide act.
CC No. 32/2010 Page 56/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Sh. Abhishek Prasad, Adv. argues that the Registrar had cancelled the winding up order in exercise of the powers under Section 63(3) of DCS Act.
It is argued that once a society is not liquidated within three years, the society automatically revives and winding up order looses its steam. Therefore, it is argued that Narayan Diwakar had no option but to revive such a society. It is argued that in none of the cases, Narayan Diwakar had rejected application for revival as he was bound to revive the society by the mandate of law. Further elaborating this issue, Ld. Defence Counsel has drawn my attention Rule 105 of DCS Act 1972, which is reproduced as under :
"105. Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar.
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the 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 Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings."CC No. 32/2010 Page 57/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 It is submitted that as per the rules the winding up proceedings shall be closed within one year from the order of winding up unless the period is extended by the Registrar. It is submitted that the Registrar can extend this period for three years and shall immediately after the expiry of three years from the date of the order of winding up society, deem that liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings.
Thus not only Registrar was within his rights to cancel the winding up order but it would be more appropriate to say that he was bound by the law quoted above to cancel the winding up order and revive the society.
Ld. Defence Counsel has referred to the judgement dated 21.11.1986 passed by Hon'ble High Courtof Delhi in Civil Writ Petition No. 1767/1986 in Vikas CGHS Vs. RCS and I reproduce the last paragraph of the same as under :
"There is an application (C.M. 3058/86) on behalf of Shri Nirmal Singh and Shri Pitam Singh for being impleaded as parties in the petition. The contention is that for the last number of years no annual general meeting has been held for electing members of the committee. The petitioner has no objection to CC No. 32/2010 Page 58/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the holding of the annual general meeting for the election of the members of the committee. We direct that the Registrar shall within three months made arrangements for the holding of the elections and the elections shall be held under the supervision of the Registrar or his nominee. Another contention raised is that the petitioner society have removed 60 persons from the membership and made 42 new members. It is contended that before an election is held it should be decided as to who are the members of the society. We leave this to the Registrar to decide as to who are the legally admitted members of the petitioner society. If any member is aggrieved against his removal from the membership of the society or against the induction of a new members to the society he can take appropriate steps in accordance with law."
The above mentioned part shows that High Court has left it for the Registrar to decide as to who are the legally admitted members of the society. In other words, High Court was of the view that if the liquidation proceedings have not been terminated as per Rule 105 of DCS Rules, the society still survives because winding up order has not been taken to its logical conclusion by completely liquidating the society, but in respect of verifying the members of the society, it was held that it was purely within the domain of the CC No. 32/2010 Page 59/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Registrar. I may repeat that this court is not disputing the powers of the Registrar, as it cannot, being not an appellate authority upon the RCS and therefore cannot and should not question the legality of the order. The simple issue before this court is as to whether as the time of the passing of the revival order and approving/sending the list of members to DDA for allotment of land, the accused had the knowledge that fraud is being played or documents are forged or the members fake. Therefore, real issue is not the revival order and powers to do so by the Registrar, rather the issue is the intention involved in approval of freeze list of fake members and sending the same to DDA for allotment of land. I have already held that as per dicta of 'Runu Ghosh' case, such intention has to be seen from the note sheet and order available on file.
Stressing the point that the Narayan Diwakar was acting in judicial capacity, Ld. Defence Counsel has drawn my attention to Section 77, 78 and 79 IPC, which are reproduced as under :
77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
78. Act done pursuant to the judgment or order of Court - Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if CC No. 32/2010 Page 60/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
My attention has also been drawn to Section 76(j) of DCS Act, which provides appeal against the winding order under Section 63 of DCS Act. Ld. Defence Counsel has drawn my attention to Section 19 IPC, which defines 'judge'. I reproduce the same as under :
19. "Judge". The word "Judge" denotes not only every person who is officially designatred as a Judge, but also every persons, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give CC No. 32/2010 Page 61/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 such a judgment.
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.
I have considered the submissions of Sh. Abhishek Prasad, Adv. and I find no substance in this submission. To say that while exercising the powers under Section 63(3) of DCS Act in cancelling of winding up order of a society, the Registrar was acting judicially has not been accepted by Delhi High Court in Narayan Diwakar Vs CBI 129 (2006) DLT decided on 7.3.2006. This petition was filed by this accused raising same pleas and claiming the protection available to a judge under Section 19 IPC and Section 2 of Judges (Protection) Act 1985. Hon'ble Mr. Justice R. C. Jain of Delhi High Court rejected the said pleas of this accused and opined as under :
"15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Cooperative Societies Act, 1972 and Judges CC No. 32/2010 Page 62/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large ramifications in the society.
Thus, it is clear that he cannot avail the protection of being a judge while passing the revival order, if prosecution is able to prove 'bad faith' on his part.
Legal issue raised by accused Mohal Lal Accused Mohan Lal has referred to Lalita Kumari Vs. Government of U.p. (2013) Scale. Only Hon'be Supreme Court of India had stated that before registering of FIR, the preliminary inquiry is illegal. I am of the opinion that even if it holds that preliminary inquiry is illegal, still the FIR remains to be legal.
NARAYAN DIWAKAR (A1), YOGI RAJ (A2) & NIRANJAN SINGH (A3) First of all, I would like to reproduce the revival order passed by CC No. 32/2010 Page 63/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 this accused, which is as under :
"IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW DELHI110001. Case No.F.47/105/GH/NW/Coop/256672 Dated : March, 18, 2003 ORDER Whereas the SIEMENS EMPLOYEES COOPERATIVE GROUP HOUSING SOCIETY LTD. (Regd. No. 105), 3794, Saraswati Vihar, Delhi110034 was issued a Show Cause Notice u/s 63(2) of Delhi Cooperative Societies Act, 1972 mainly on the following grounds:
1) The Society has failed to achieve its basic objectives and not likely to achieve its objectives in near future.
2) The Society has failed to act in accordance with DCS Rules, 1973 and as per the provisions of registered byelaws of the Society.
3) The M.C. members and other members of the Society are not showing any interest in the working of the Society.
4) The Society has failed to get its accounts audited for years together.
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 no. F.46/47/105/78/H/Coop/726671 dated 261278.
And whereas, the society vide its letter dated 21022003, requested for revival of the society u/s 63(3) of the D.C.S. Act, 1972 and submitted the following clarifications:
1) The elections were held on 16022003 in the Annual General Body meeting.
2) The alleged irregularities have been removed due to which the Society was put under liquidation.
3) The books of accounts and the audit of the Society are completed up to 313 2002.
4) A list of members drawn afresh as per the records of the Society for verification.
And whereas, the Society has further requested the Registrar Cooperative Societies for CC No. 32/2010 Page 64/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the withdrawal of winding up order dated 261278.
And whereas, Sh. Arun Kumar, President of the Society appeared before this court on the dates fixed. He stated that in the Special General Body Meeting held on 1602 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 120 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 unaudited accounts of the society till 31032002. The President and Secretary of the society made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 03032003 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 120 members as on date and unaudited accounts till the period ending 31032002. The records regarding holding of election of M.C. of the Society on 16022003 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 120 members of the society have also been filed. It has been mentioned in the report of Asstt. Registrar (N/W) that the society was put under liquidation vide order dated 26121978. 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 file d 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 CC No. 32/2010 Page 65/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 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 26121978 issued to the SIEMENS EMPLOYEES COOP. G/H SOCIETY LTD. (Regd. No. 105/GH) in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the SIEMENS EMPLOYEES COOP. G/H SOCIETY LTD. (Regd. No. 105/GH) is hereby revived with immediate effect subject to the condition that the pending Audit shall be got completed within two months time and the final list of 120 members sent to DDA.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Sanjeev Bharti, Gr.III 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 Siemens Employees CGHS Ltd.
2. Joint Registrar.
3. Asstt. Registrar (N/Wt)
4. Asstt. Registrar (Audit)
5. Sh. Sanjeev Bharti, Gr.III, Election Officer.
6. Dy. Director (GH), INA, Vikas Sadan, New Delhi.
7. Order file.
(N. DIWAKAR) REGISTRAR COOP. SOCIETIES"
CC No. 32/2010 Page 66/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 I have already discussed that in Runu Ghosh's case, the court has held that there is no other evidence forthcoming and the only material before the court is the notings and orders, the court would be fully justified in drawing appropriate inference of malafides or bonafides on part of the public servants from the evidence itself. First and foremost striking fact is that a society was wound up in the year 1978 by Ashok Bakshithe then Dy. Registrar (PW16). Thereafter, the letter for revival of the society was received by the RCS office in the year 2003 i.e. after about quarter a century. This extremely a long gap of 25 years could not in any manner have escaped attention of any of the officials including Narayan Diwakar. In such a background it is surprising that what to talk of the members of the society, the identification proof of the office bearers who were appearing before the RCS is not being taken.
One of the arguments of accused Narayan Diwakar is that it was not his job to see the micro issues i.e. the minor details which was to be done by the staff and that he was only concerned with the macro issues. It is argued that in view of the Vikas CGHS case and Rule 105, he had no option but to revive the society by cancelling the winding up order which he was competent to do as per Section 63(3) DCS Act. The arguments of Narayan Diwakar are specious. Now it is necessary to peruse this revival order. In the first portion, the grounds on which CC No. 32/2010 Page 67/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 the society was wound up vide order dt. 26.12.1978 has been mentioned. Thereafter, Narayan Diwakar, the then RCS has mentioned that the society in its letter dt. 21.02.2003 requested for revival of the society and submitted the following clarifications i.e.
1. elections were held on 16.02.2003 in AGM;
2. audit was completed upto 31.03.2002 and
3. the list of members drawn afresh as per the records of the society for verification.
It was further mentioned in the order that Arun Kumar President of the society appeared and stated that the list of 120 members has been drawn up in prescribed proforma on the basis of the records of the society. President and Secretary of the society made oral commitment to fulfill all statutory liabilities and to file affidavits to that effect. He mentioned that AR (NW) has reported that the original records were produced by the society and were got verified. It is mentioned that the society has submitted list of 120 members as on date and that records regarding holding of election of MC of the society on 16.02.2003 have been verified. He also mentioned that the application forms, share money receipts and resolution of MC of newly enrolled members have also been verified from the original records. Therefore, affidavits in respect of 120 members of the society have also been filed. It is mentioned in the CC No. 32/2010 Page 68/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 order that MC of the society was continuously managing the affairs of the society and was instrumental in its effort to revive the society. Hence, it was opined that in absence of finalization of liquidation proceedings, action initiated u/s 63 of the DCS Act has become a nullity. Thereafter, Narayan Diwakar has mentioned in his order that since no final liquidation order has been passed, he was cancelling the winding up order. In the entire order and in the entire notings, no question has been raised as to why the society was not interacting for 25 years and how its is suddenly woke up after such a long time. The seeds of the malafides in this order can be seen in Kaveri CGHS case where it was held that the original registration of the society was to be considered for establishing the seniority of the society for allotment of land by DDA. This criteria in the Kaveri CGHS case was laid down by the Hon'ble High Court of Delhi because there was a big scope for corruption in the earlier criteria vide which the seniority of the society would be decided by the date on which the Registrar sends the list of members to DDA. In view of this decision, the officials of RCS and the builders found out a new trick to bye pass the order of Hon'ble High Court in Kaveri CGHS and this method was to get the old societies revived so that such revived society gets a priority in the allotment of the land.CC No. 32/2010 Page 69/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 It is pertinent to note that the noting Ext.PW10/PX1 (Page 11/N of D2) as well as the noting at page 16/N have mentioned specifically that the society was put to liquidation on 26.12.1978. On page 17/N, 18/N & 19/N, the enrollments of the members were mentioned. As per this noting, member no. 1 to 29 were enrolled in the year 1976. Member at serial no. 30 to 65 were enrolled in the year 1983 and member no. 66 to 99 were enrolled in the year 1985. The noting dt. 13.03.2003 at page no. 23/N also mentions that election of the managing committee of the society was held on 16.02.2003. I may point out that the noting dt. 13.03.2003 was written by Niranjan Singh and Yogi Raj, the respective dealing clerk and the Assistant Registrar in response to the order dt. 11.03.2002 passed by Narayan Diwakar vide which he directed the file to the concerned zone for verification. When this report was produced before the RCS, as reflected in the noting dt. 18.03.2003, Registrar did not ask any question as to if the society had been so active that it had enrolled 99 new members upto the year 1985, why it failed to interact with the RCS for such a long time and why the society did not challenge the winding up order till 1985 when it was busy enrolling new members. He did not ask the society as to why the elections were not conducted till 1985 when new members were being enrolled and why such elections were held in the year 2003? These are the CC No. 32/2010 Page 70/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 glaring points which could not have escaped from the experienced eye of Narayan Diwakar while he passed the revival order. Though, I agree that being the senior most officer, the Registrar is not expected to go in the minor issues and he has to see the entire matter on macro level, however, the above mentioned points are so glaring that no one could have ignored the same. It is not the case of Narayan Diwakar that he did not notice these facts from the report of the Assistant Registrar. In fact, he has specifically noted in his order the fact of winding up in the year 1978, holding of election in the year 2003 and completing of audit as well as the list of 120 members having been enrolled. Perusal of the revival order passed by Narayan Diwakar clearly shows that he had gone through the said report. In view of such glaring circumstances, he is not raising any query on the report of Assistant Registrar which includes the verification by Faiz Mohd. leads to only one inference that the order of Narayan Diwakar was malafide with intention to afford pecuniary advantage to the persons who had resurrected the society by fraudulent means. In fact, these circumstances clearly indicate that Narayan Diwakar was aware of the fact that fake members were being included and fake records were being presented. It is interesting to note that not even once he asked the person who represented himself as Arun KumarPresident of the society on 11.01.2003 and 18.03.2003 as to how the society has CC No. 32/2010 Page 71/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 woken up for after such a long time. Not once he asked his subordinates as to why the identity proofs of newly enrolled members was not taken. At the cost of repetition, I mention that as per the dicta of Kaveri CGHS case, it is the Registrar, who recognizes the correctness of the list of members. The revival of the society was a pre requisite to sending of the list of members to DDA. The correctness of this list of members was responsibility of the Registrar. Therefore, not asking for identity proofs of any of the office bearers and newly enrolled members by registrar, clearly indicates that he knew that these new members were fake.
Regarding Niranjan Singh and Yogi Raj, it is argued by Ld. Defence Counsels that they prepared the notings dt. 05.03.2003 and 13.03.2003 simply on the basis of the records produced by the office bearers of the society. It is further argued that they had even proposed that Faiz Mohd. may be appointed to verify the records and submit the factual position in this regard. It is submitted that when Faiz Mohd. had filed a report that records were correct, they had no option but to recommend the revival of the society to the Registrar. It is argued by Ld. Defence Counsels that role of the dealing clerk and the Assistant Registrar is simply to put the case of the society to the higher officers and the final decision is to be taken by the Registrar. I have carefully perused the notings. None of these officials raised any CC No. 32/2010 Page 72/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 objection that if the society was so active and manged to enroll 120 members till 1985, why it never came to RCS office for the revival. In the revival application dt. 21.02.2003 Ext.PW12/A (placed at page 64/C and 62/C in file D3), it is no where mentioned that the liquidation order did not come to the notice of the society. In fact, the revival application Ext.PW12/A, specifically mentions the fact of passing of the winding up but is silent as to why it remained dormant for such a long time. Notings dt. 25.02.2003, 05.03.2003 and 13.03.2003 written by Niranjan Singh and Yogi Raj are totally silent without having raised any query that when the society was wound up in the year 1978, then how it remained active till 1985 (because as per the noting dt. 13.03.2003 itself, the society was enrolling members till the year 1985). None asked as to why the society did not make any attempt to revive the society and cancel the winding up order till 1985. The fraudulent nature of notings is reflected from the fact that on page 20/N, these officials have written that :
"The society produced original records for verification which were examined and verified accordingly. All the enrolments are found in order and in accordance with the provisions of Delhi Cooperative Societies Act & Rules. No. Residence proof is required as all the enrolments were made prior to 01.05.1983 (refer notification of Special Secretary (Cooperation) No.F.47/Legal/Policy/ Coop/92/23052316 dated 5.12.2001."
A perusal of this para makes it clear that the reference to the notification dt. 05.12.2001 is being used to dispense with the identification proof of the members. Even the residence proof was CC No. 32/2010 Page 73/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 dispensed with, there was no explanation as to why the identity proofs at least of the office bearers were not asked by these officials. It is clear that these officials, by mentioning the non requirement of the residence proof in the noting, were in fact camouflaging the need for taking the identity proofs of the members and the office bearers. It is clear that by referring the aforesaid notification, these officials are dispensing with the identity proofs of the office bearers and the members of the society which is reflective not only of the malafide intentions of these officials, but, also the natural inference can be drawn that they knew that all the proceedings produced before them were fraudulent.
Sh. Abhishek Prasad, Adv. has filed a copy of an order dt. 29.05.1998 of Gopal Dixit, the then RCS and submits that the decision was taken vide this order to revive all the defunct societies. I am reproducing the said order:
OFFICE OF THE REGISTRAR COOPERATIVE SOCIETIES GOVT. OF NCT OF DELHI OLD COURTS BUILDING: PARLIAMENT STREET: NEW DELHI110001.
No. PA/RCS/98/966986 Dated: 29/5/98
O R D E R
The Hon'ble Chief Minister while presiding over the meeting of the working group of the Delhi Cooperative Development Board on 1.5.98 has taken a decision regarding revival CC No. 32/2010 Page 74/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 of liquidated societies. It was decided that each and every case of liquidated society should be examined on merit and put up to the Minister with recommendations before reviving the society. Minutes of the meeting may be taken from the relevant file and be placed in the policy file where an administrative decision has been taken by the Secretary (Coopn.) not to revive the liquidated societies.
In this connection, I will like to refer to the minutes of meeting taken with the officers of the department by me on 26.3.98 where a decision was taken that all the Zonal Assistant Registrar's will send the files of liquidated societies and defunct societies to Sh. M.L. Kaler, Assistant Registrar. This decision has been changed with the redistribution of work amongst the officers of the department vide order dated 13.5.98 wherein Sh. R.P. Kalra has been made Incharge of liquidated and defunct societies with the designation of A.R. (L/D/South). All the Zonal Assistant Registrars are requested to send all such files to him POSITIVELY by 31.5.98, failing to comply by the officers concerned will be viewed seriously.
Whenever any request is received from the society for its revival, the request will be attended by the AR(L/D/S), who will call the files from the concerned Zonal Assistant Registrars and will process the case. All such files, nowithstanding that they pertain to a particular zone will be routed through Deputy Registrar (Policy) and then submitted to Joint Registrars for final approval of Registrar Coop. Societies.
(GOPAL DIKSHIT) REGISTRAR COOP. SOCIETIES Copy to:
1. Joint Registrar (A)
2. Joint Registrar
3. Deputy Director (Planning)
4. All Deputy Registrars
5. All Assistant Registrars
6. P.A. to R.C.S. I have perused this circular and I agree that as per this circular it was decided that each and every case of liquidated society should be examined on merit and put up to the Minister with recommendations CC No. 32/2010 Page 75/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 before reviving the society. It is also written in this order that whenever any request from the society for its revival, the request will be attended by the Assistant Registrar who will call the files from the concerned zonal AR and will process the case. Therefore, in this order it is clear that the society can be revived only on merits and after due process. This circular does not dispense with responsibility of Registrar to send a correct list of members to DDA, nor it mandates the registrar and his subordinates to throw all care and cautious to wind and automatically & mechanically revive the liquidated societies.
In this case, all these officials appear to be overzealous in reviving this society, of course, with malafide intentions. Therefore, the Registrar is expected to observe all care and caution especially when a society is coming for revival after such a long time. I have no hesitation in holding that circumstances in which the society was revived and the list of members were sent to DDA after such an extremely long period was done fraudulently by the aforesaid RCS officials with dishonest intention to procure pecuniary advantage to the private persons, who are coaccused herein.
Faiz Mohd. (A4) Sh. S.K. Bhatnagar, Adv. argues that as per the prosecution case, accused Faiz Mohd. was appointed as Inspection Officer vide order of Yogi RajAR dt. 28.02.2003 Ext.PW10/H placed at page 65/C of D3.
CC No. 32/2010 Page 76/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 As per prosecution case, Faiz Mohd. conducted inspection of records of this premises on 2.3.2003 vide his report Ex.PW10/G dated 3.3.2003. Ld. Sr. PP has drawn my attention to this report in which accused Faiz Mohd. had written that he had visited the office address of the society i.e. at 3794, Saraswati Vihar, Delhi on 02.03.2003 and there he met Diwakar RaoSecretary of the society. Ld. Sr. PP submits that no such address exists. My attention has been drawn to the testimony of PW33 Naresh KumarPostman who testified that no such number exists in the locality. I may point out that the investigating officer in order to verify the existence of the address, had sent the letter at this address but the same returned undelivered. Ld. Defence Counsel argues that the said letter was not proved by the prosecution. Ld. Defence Counsel has drawn my attention to the cross examination of the Investigating Officer (PW52) where he has stated that he had not personally visited the said address not he recorded the statement of any person from the locality or any government agency about the existences of this address. He testified that he had recorded the statement of Naresh KumarPostman (PW33) in this regard on the basis of the letter sent by him to the above said address in the month of August2006. It is argued by Ld. Defence Counsel that neither this letter was produced by the prosecution which means that this letter had reached the office CC No. 32/2010 Page 77/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 of the society and that the office of the society exists at the said address. Ld. Defence Counsel has drawn my attention to the various letters sent from the office of RCS like the revival order. However, none of the letters were received back by the office of RCS undelivered. It is submitted that it means that this address actually exists.
I have perused the testimony of PW33 Naresh Kumar. He is the postman in the concerned area. He testified that he was working as Postman in Saraswati Vihar post office since 1982 and in Saraswati Vihar there is no house no. 3794 in any of the blocks. The testimony of this witness is worthy of credence. He has been working in the area and delivering the letters since 1982 and therefore he is an appropriate person to testify as to whether a particular address exists in the area or not. Whether the undelivered letter has been proved by the prosecution or not does not in any manner affect the authenticity of the testimony of this witness. I may point out that this testimony has not been challenged in cross examination nor accused brought any evidence in defence to prove that this address does not exist. In such circumstances, I have no hesitation in holding that the address 3794, Saraswati Vihar, Delhi does not exist and Faiz Mohd. has given fake report about having conducted inspection of the society in the said premises.
CC No. 32/2010 Page 78/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Anna Wankhede (A6) Specimen hand writings of accused Anna Wankhede (A6) are S219 to S240 (collectively exhibited as Ex.PW50/PX8. I reproduce the relevant paragraph of the GEQD report (D22) as under : "The specimen writings and signatures are of one Sh. Anna Wankhade S219 to S240 (D25) now collectively marked as Ext.PW50/PX8 bearing seal of GEQD at points A on each page. These specimen signatures were compared with the questioned writings and on comparison, I found positive opinion on Q97 to Q101 collectively marked as Ext.PW11/F (D3), Q106 to Q109 collectively marked as Ext.PW11/F, Q113 to Q116 Ext.PW11/F, Q119 to Q122; Q126 to Q129, Q132 to Q135, Q139 to Q142, Q146 to Q149, Q153 to Q156, Q160 to Q163, Q167 to Q170, Q174 to Q177, Q181 to Q184, Q188 to Q191, Q195 to Q198, Q202 to Q205, Q209 to Q212, Q216 to Q219, Q221, Q224 to Q227, Q230 to Q233, Q235, Q237 to Q240, Q242 to Q245, Q247 to Q250, Q252 to Q255, Q257 to Q260, Q262 to Q265, Q267 to Q270, Q272 to Q276, Q278 to Q281, Q283 to Q286, Q288 to Q293 collectively marked as Ext.PW11/F, Q296 to Q298 already Ext.PW12/A (D3), Q299 already Ext.PW12/A1, Q301 already Ext.PW11/E, Q303 already Ext.PW15/B (D4), Q304 to Q313 collectively Ext.PW50/PX9, Q314 to Q317 already Ext.PW11/D, Q319 already Ext.PW50/PX7, Q326 & Q328 already Ext.PW43/C, Q330 & Q332 already Ext.PW43/D, Q334 Q336 already Ext.PW43/E, Q338, Q340 to Q344 already Ext.PW43/F, Q345 Ext.PW43/L, Q346 Ext.PW43/G, Q347 Ext.PW50/PX10, Q348 Ext.PW50/PX11, Q348A Ext.PW50/PX12, Q349 to Q522 collectively marked as Ext.PW50/PX13 as per para 18 of opinion DXC287/2006.
Q553, Q555, Q564, Q566, Q568, Q574, Q576, Q578, Q580, Q586, Q588, Q590, Q592, Q598, Q600, Q602, Q604, Q610, Q 612,Q614,Q616, Q623, Q627, Q631, Q635, Q643, Q647, Q651, Q655, Q663, Q667, Q671, Q675, Q683, Q687, Q691, Q695, Q703, Q707, Q711, Q715, Q723, Q727, Q731, Q735, Q743, 747, Q751, Q755, Q763, Q767, Q771, Q775, Q783, Q787, Q791, Q795, Q803, Q807, Q811, Q815, Q823, Q827, Q831, Q835, Q843, Q847, Q851, Q855, Q863, Q867, Q871, Q875, Q881, Q886, Q890, Q894, Q898, Q905, Q909, Q913, Q917, Q923, Q928, Q932, Q936, Q940, Q946, Q950, Q954, Q958, Q963, Q967, Q971, Q975, Q981, Q985, Q989, Q993, Q999, Q1003, Q1007, Q1011, Q1017, Q1021, Q1025, Q1029, Q1035, Q1039, Q1043, Q1047, Q1053, Q1057, Q1061, Q1065, Q1069, Q1075, Q1079, Q1083, Q1087, Q1093, Q1097, Q1101, Q1105, Q1111, Q1114, CC No. 32/2010 Page 79/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Q1117, Q1121, Q1125 & Q1129 now marked as Ext.PW50PX14 (colly) (D5) as well as the writings whose xerography writings marked Q321, Q325, Q327 already marked as Ext.PW43/C, Q329, Q331 already marked as Ext.PW43/D, Q333, Q335 Ext.PW43/E, Q337 & Q339 Ext.PW43/F. These specimen signatures were compared with the questioned writings and on comparison, I found positive opinion as per para 18 of opinion DXC287/2006."
Now I produce the reasons given by the hand writing expert in his report at page 11 and 12 of Ex.PW50/F (D23) as under : "................Q221, Q224 to Q227, Q230 to Q233, Q235, Q237 to Q240, Q242 to Q245, Q247 to Q250, Q252 to Q255, Q257 to Q260, Q262 to Q265, Q267 to Q270, Q272 to Q276, Q278 to Q281, Q283 to Q286, Q288 to Q293, Q296 to Q299, Q301, Q303, Q304 to Q317, Q319, Q326, Q328, Q330, Q332, Q334, Q336, Q338, Q340 to Q348, Q348A, Q349 to Q420, Q420A, Q421 to Q522, Q553, Q555, Q564, Q566, Q568, Q574, Q576, Q578, Q580, Q586, Q588, Q590, Q592, Q598, Q600, Q602, Q604, Q610, Q612, Q614, Q616, Q623, Q627, Q631, Q635, Q643, Q647, Q651, Q655, Q663, Q667, Q671, Q675, Q683, Q687, Q691, Q695, Q703, Q707, Q711, Q715, Q723, Q727, Q731, Q735, Q743, Q747, Q751, Q755, Q763, Q767, Q771, Q775, Q783, Q787, Q791, Q795, Q803, Q807, Q811, Q815, Q823, Q827, Q831, Q835, Q843, Q847, Q851, Q855, Q863, Q867, Q871, Q875, Q881, Q886, Q890, Q894, Q898, Q905, Q909, Q913, Q917, Q923, Q928, Q932, Q936, Q940, Q946, Q950, Q954, Q958, Q963, Q967, Q971, Q975, Q981, Q985, Q989, Q993, Q999, Q1003, Q1007, Q1011, Q1017, Q1021, Q1025, Q1029, Q1035, Q1039, Q1043, Q1047, Q1053, Q1057, Q1061, Q1065, Q1069, Q1075, Q1079, Q1083, Q1087, Q1093, Q1097, Q1101, Q1105, Q1111, Q1114, Q117, A1121, Q1125 and Q1129 as well as the writings whose xerographic reproductions similarly stamped and marked Q321 , Q324, Q327, Q329, Q331, Q333, Q335, Q337, and Q339 (subject to the condition that it represents its original truly) are based on similarities in handwriting characteristics of skill, speed, movement (writs), overall size and proportion of the letters, slant, alignment. They also show the characteristics similarities, among other things, such as : the execution of signature reading "D. Rao", the slanted of staff of "D", the retracing at its lower portion of staff, relative location of upper loop as well as its extent beyond the staff, extent of retracing of staff of "R", manner of termination, relative spacing between the "DR" and "Rao", relative alignment of the letters and termination of signatures."
CC No. 32/2010 Page 80/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 It is argued by Sh. Abhishek Prasad, Adv. that the specimen signatures of accused Anna Wankhede were not taken in presence of any independent witness and that Anna Wankhede denies having given these specimen signatures. It is argued by Sh. Abhishek Prasad, Adv. that even signatures of Anna Wankhede were not taken below the specimen handwritings which are collectively Ext.PW50/PX8 (S219 to S240).
I have considered the submissions of Ld. Defence Counsel and I agree that the investigating officer should have taken the signatures of Anna Wankhede on each sheet of the paper, in case no independent witness was available. However, just by giving bald suggestion, the testimony on oath by the investigating officer cannot be discarded. Nothing has come in cross examination to doubt the testimony of the investigating officer that he had taken the specimen handwritings of Anna Wankhede. Accused had an opportunity to give his own specimen handwritings or admitted handwritings before this court and could have examined the expert to prove that the specimen signatures Ext.PW50/PX8 (colly) do not belong to him, which he did not. Therefore, I do not have any ground to accept the plea of Anna Wankhede that the specimen signatures do not belong to him.
Ld. Defence Counsel had tried to caste doubt on the prosecution case by pointing out that the specimen signatures of Anna Wankhede CC No. 32/2010 Page 81/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 were not taken on 21.06.2006 whereas in the present case he was arrested on 11.09.2006. It simply means that the specimen signatures of Anna Wankhede were taken by the investigating officer earlier and he was arrested in this case later on. To my mind, this is a correct approach. A person should be arrested only after there is some material against him. It is argued by Ld. Defence Counsel that the opinion of the handwriting expert on the photocopies which are Q321, Q324, Q327, Q329, Q331, Q333, Q335, Q337 & Q339 should be discarded because the handwriting expert's opinion on photocopies would always be doubtful. I have perused these photocopies which are the photocopies of the proceedings/minutes of the society. Each of these photocopies/proceedings are duly signed in original by one D.Rao. I may point out that there is some over writing due to which Q324 can be read as Q325. I have already reproduced the opinion of the handwriting expert above. A perusal of the cross examination of the handwriting expert would show that accused in the cross examination was not able to show any infirmity in this opinion. Furthermore, the accused had an option to produce his own handwriting expert in support of his contentions, which he did not. I have also perused the reasons and have seen the questioned and specimen handwritings. I fully agree with the opinion of the handwriting expert (PW51) and reasons given by him. I may point CC No. 32/2010 Page 82/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 out that on each page of these proceedings the original signatures of D.Rao are available and as per the report of the handwriting expert, the same are in the hand of Anna Wankhede. The matching of the original signatures with the specimen handwriting/signatures given by Anna Wankhede further reinforces the prosecution case that the proceedings were written by Anna Wankhede. I may add here that these proceedings are the true representation of the originals. I may refer to the proceedings dt. 13.03.2003 which shows that the original records were called and verified. On page 24/N it is specifically written that the original records of the society were called after verification of the membership, audit, elections etc. and same had been checked and found in order. The aforesaid note sheets would show that these proceedings were filed in the RCS when the Registrar ordered for verification of the records of the society. Thus, these photocopies were seen and verified from the original records by the RCS officials and hence these photocopies can be safely considered to be the true copies of the original.
A perusal of these records leaves me in no doubt that it was accused Anna Wankhede who appeared as D.Raothe Secretary of the society and produced these fake proceedings under the signatures of D.Rao in the RCS office. I may point out that the revival application Ext.PW12/A bears the signatures of D.Rao at Q296, Q297 and CC No. 32/2010 Page 83/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Q298. This application has been filed purportedly by Secretary of the society namely D.Rao. As per GEQD Report, all these questioned signatures match with the specimen handwriting of accused Anna Wankhede. This shows that accused Anna Wankhede had not only impersonated as Secretary but was also one of those persons who were recreating an already dead society.
It is pertinent to note that as per GEQD opinion report not only the signatures of D.Rao were found to have been written by Anna Wankhede on the balance sheets which are from Q553 to Q1129 (placed in D5) but also on the applications for membership (placed at page 181/C to 300/C in file D4) Ext.PW48/L (Colly), the signatures of D.Rao are present which as per the GEQD report tally with the specimen handwritings of Anna Wankhede. I may point out that the photocopies of membership receipts are placed in D4 from page 121/C to 180/C. On these receipts, the original signatures of D.Rao are present at points Q463 to Q522. As per GEQD report, all these signatures match with the specimen handwriting of accused Anna Wankhede. Thus, it is clear that accused Anna Wankhede represented the society under a fake name D.Rao or Diwakar Rao and he moved an application for revival of the society and also presented fake records of the society before the office of RCS. Hence, it is clear that accused Anna Wankhede was holding all the fakely created CC No. 32/2010 Page 84/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 records of the society, photocopies of which were produced by him in the office of RCS. At the cost of repetition I state that in the notings it has been clearly mentioned that the photocopies as well as the original records were produced in the office of RCS. Now it is for accused Anna Wankhede to explain as to who was D. Rao (Diwakar Rao) Secretary and how and when 99 new members were enrolled and in what circumstances the application for revival of the society was moved before the office of RCS. It is for him to explain as to where the original records of the society, photocopies of which were filed by him in RCS office and originals also shown there. His failure to do so clearly proves that he was actively involved in the entire conspiracy and creation of fake documents.
Sri Chand (A5), Mohan Lal (A7) and Sushil Kumar Sharma (A9) Sh. R. P. Shukla, adv. has referred to Roman Catholic Mission Vs. State of Madras, judgement dated 14.1.1966 283 Supreme Court reports (1966) 3 and submits that the photocopy of a document cannot be admitted in evidence. However, to my mind the facts of the same are not applicable to the notice of this case.
Sh. R.P. Shukla, Adv. has vehemently argued that the specimen signatures of accused Sri Chand were not taken by the IO and therefore the entire report of the handwriting expert becomes CC No. 32/2010 Page 85/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 irrelevant . I disagree with his submissions. The IO(PW52) has testified that during the course of investigation accused Sri Chand had given specimen signatures/handwritings voluntarily before him on 02.03.2006 which are from S21 to S70 (Colly Ext.PW50/PX15). The accused did not cross examine the witness due to which this testimony remained uncontroverted and has to be accepted to be true. Sh. R.P. Shukla, Adv. has drawn my attention to the statement u/s 313 CrPC of the accused in which the accused has denied having given his specimen signatures. It is submitted by Ld. Defence Counsel that in such circumstances, the burden shifted upon the prosecution to lead further evidence to prove that IO had actually taken the specimen handwritings of accused Sri Chand. Ld. Counsel has drawn my attention that in specimen handwritings which are S21 to S70 (D25), neither the signatures of accused Sri Chand were taken nor any independent witness was joined. I agree that the investigating officer should have taken the signatures of accused Sri Chand on each page, if any independent witness was not available. Still this discrepancy in investigation will not affect the evidence of the IO on oath before this court. I also disagree that by simply denying an particular fact in statement u/s 313 CrPC, the prosecution would have under an obligation to lead further evidence. The reason is simply. The opportunity of prosecution to lead evidence is only before CC No. 32/2010 Page 86/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 recording of statement u/s 313 CrPC and not thereafter. It is pertinent to note that in this case accused Sri Chand moved two applications u/s 311 CrPC praying that the IO may be called for the purpose of cross examination by accused Sri Chand. Both these applications were allowed. The witness appeared but accused did not cross examined the IO. Full details have been mentioned by me in my order dt. 21.10.2013. In such circumstances, it is clear that uncontroverted testimony of the IO in respect of taking specimen signatures of accused Sri Chand is worthy of credence.
It is argued by Ld. Counsels for these accused persons that specimen signatures were not taken by the IO and that this is the reason that neither there is any signatures of these accused persons below the specimen handwritings nor the IO had procured any independent witness. To my mind, the official acts are presumed to be done dutifully by the public servant and there is nothing on record to the contrary. Accordingly, I hold that the specimen signatures of these accused persons were taken by the IO.
In view of the above discussion, I am convinced that the specimen signatures of accused Sri Chand, Mohan Lal and Sushil Kumar Sharma were duly taken by the investigating officer. It is argued by Ld. Counsels that the only evidence against them is the photocopies of the proceedings and original documents are not CC No. 32/2010 Page 87/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 available. I agree with these submissions only in respect of accused Sri Chand. However, I may point out that the proceedings allegedly written by Mohan Lal and Sushil Kumar Sharma were compared by the RCS officials with the original when the RCS officials received the same for the purpose of revival of the society. Therefore, it is clear that the original of the same are in possession of these accused persons but could not be traced by the Investigating Officer.
Ld. Sr. PP argues that handwritings in the photocopies are extensive enough to enable the handwriting expert to give a correct opinion. It is argued that the photocopies are in good condition and in view of the nature of the extensive handwritings, it is ruled out that they could have been any manipulation in the same. It is argued that in cross examination, the opinion of handwriting expert remained unshaken. Ld. Defence Counsels in cross examination have not been able to point out any defect in the opinion or the reasons given by the handwriting expert. Ld. Sr. PP has referred to AIR 1968 Supreme Court 938, the relevant portion of which is reproduced as under:
19." On the whole, we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence. It is, of course, always admissible to prove the contents of the document, but subject to the safeguards indicated, to prove the authorship. This is all the more so in India under Section 10 of the Evidence Act to prove participation in a conspiracy. Detection and proof of crime will be rendered CC No. 32/2010 Page 88/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals. Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter, take its photograph and then to send it on and wait for the reply. But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not fake or false. In the present case no such suggestion exists and the originals having been suppressed by the accused, were not available. The evidence of photographs as to the contents and as to handwriting was receivable."
Ld. Defence Counsels has referred to "Treatise on Handwriting Forensics by Dr. B.R. Sharma" and submits that in a photocopy, a large number of details in handwriting get lost. It is submitted that it is not clear if it was first generation photocopy or a second generation photocopy. Therefore, it is argued that relying upon the opinion of handwriting expert would be a highly dangerous proposition. I have considered the submissions and I reproduce para 3.12 of Chapter 8 (2012 Edition) of this book as under:
"3.12 Photocopies Photocopies, as secondary evidence, are coming up frequently in the courts as substitutes for the original documents. They are sometimes questioned as to their authenticity.
Recent developments copiers have made it possible to create photocopies which permit proper evaluation of Handwriting Forensics problems occurring therein. The problems are similar to those mentioned above for text and signatures, CC No. 32/2010 Page 89/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 etc. Additional problems peculiar to photocopies are:
1. Is opinion based upon a photocopy valid, if the photocopy has not been compared with the original?
2. Are there any detectable sign of manipulations on the photocopy when original is not available?
3. Is the photocopy a true and faithful reproduction of the original?
4. Is the signature on the photocopy a true and faithful image of the signature on the original document?
5. Are there any alterations in the photocopy visavis the original?
A photocopy can be manipulated (altered) at will. The evaluation report based upon a photocopy is, therefore, qualified: " the report is valid subject to photocopybeing a true and faithful reproduction of the original." It is desirable that an expert checks its faithful reproduction himself.
There is always some loss of details of the handwriting characteristics in the copying process. The loss is often not substantial and does not prevent the evaluation of handwriting, signatures etc., provided:
1. The photocopy is created through modern technology.
2. Photocopy is of the first generation i.e. made from the original document. Sometimes a second generation photocopy (copy made from a first generation copy) may also give adequate results. Photocopies of other generations should not be used in Handwriting Forensics. They may lead to erroneous results.
3. There are umpteen ways in which a photocopy can be manipulated. It is, therefore, imperative that the photocopy used is a properly certified photocopy, preferably checked by an expert himself."CC No. 32/2010 Page 90/112
CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 From perusal of the above quoted portion of the book of Dr. B.R. Sharma it is clear that if a photocopy is of good quality, the evaluation of the handwriting can be done by an expert.
Now, I refer to the cross examination of the handwriting expert PW50 Bhakti Pad Mishra by Sh. R.P. Shukla, Adv. for accused Sri Chand. He testified that the line quality cannot be examined in photocopy document which were produced prior to 1980 xerography machine as the lighting system was very poor in that machine, but, nowadays, the xerox machines are having the facility of laser light with highly sophisticated selenium drum which is highly sensitive to a minimum amount of light and thus the fine details are coming out on the reproduction. Though, PW50 admitted that there are some restriction to study the line quality on the photocopy. In further cross examination, he testified that his reasoning and opinion are based on the characteristic similarities by which the authorship can be fixed beyond doubt has been explained in my reasons, not all the similarities. Therefore, it is clear that the handwriting expert found the photocopies good enough to give his opinion. Moreover, he was circumspect in giving opinion only of those characteristics about which a definite opinion of the authorship could be given. In cross examination on behalf of accused CC No. 32/2010 Page 91/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Mohan Lal (A7), PW50 specifically denied the suggestion that his opinion on Q1132 to Q1191 is doubtful because of non production of original documents for comparison. In cross examination by accused Sushil Kumar Sharma, he stated that he could not say as to whether the photocopies were correct or exact copies of the original as he was not a witness to the taking of photocopies of those documents. However, I have already stated that these photocopies as well as the original records were produced in the RCS office. Therefore, the photocopies ascribed to accused Mohan Lal and accused Sushil Kumar Sharma can safely be presumed to be the true copies of the originals. As regard accused Sri Chand, it is true that questioned documents Q12, which is a photocopy was not compared by RCS officials with the original but it must not be forgotten that it is a full page written in hand and I do not find any chance that it could have been tampered with or manipulated by someone. In fact, no suggestion has been given to the witness by accused Sri chand that the document is a manipulated one. When such extensive handwriting matches with the specimen handwriting of accused Sri Chand, it for him u/s 106 of Indian Evidence Act to point out if it is a manipulated copy or not. In absence of any such suggestion or plea, this court has no reason but to presume that it is the true copy of the original. Therefore, it is for the accused Sri Chand to explain as to where is the original copy of the CC No. 32/2010 Page 92/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 said photocopy (Q12). I further add here that neither in cross examination by any of the accused persons, nothing has been brought to the notice of this court as to why this court should not believe the opinion of the expert i.e. PW50. The defence has not produced any handwriting expert in defence to disbelieve the opinion of PW50. No suggestion has been given to the handwriting expert or to the IO that the said handwritings in the hand of accused Sri Chand, Sushil Kumar Sharma and Mohan Lal have been manipulated. I have perused opinion of the handwriting expert and reasons given by him, which I am not reproducing for the sake of brevity. I fully agree with his opinion. I reiterate that the handwritings of Sri Chand at Q12 are written in one full page. Similarly, the handwritings at Q1132 to Q1191 are quite substantial in number and were clear enough to enable the handwriting expert to match them with the specimen handwritings which are S286 to S306 (D25). Same is the case in respect of accused Sushil Kumar Sharma whose specimen handwritings S204 to S218 match with the questioned writings Q67A, Q67B, Q77A to Q82A, Q302 and Q320 (placed in file D3).
In view of these findings, let me discuss as to what is the importance of the proceedings written by these accused persons, photocopies of which has been proved by the prosecution as above. I CC No. 32/2010 Page 93/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 have already stated in the role of accused Anna Wankhede that it was he who was impersonating as Diwakar Rao or D.Rao and had moved revival application of the society by fraudulently representing himself as Secretary of the society for the purpose of getting the society revived , an election dt. 15.1.2003 was mentioned in the revival application to have been held by the society on 15.01.2003 at 5.30 p.m. The minutes of the managing committee in which the election officer was appointed to call the GBM on 16.02.2003. Ext.PW50/PX5 is the photocopy of such proceedings which are Q67A and Q67B. Interestingly, the said copy bears the stamp of SIEMENS CGHS. Q77A to Q82A (Ext.PW50/Px6) are the minutes of the GBM written specifically in which the elections have been shown to have taken place on 16.02.2003 and Arun Kumar and Diwakar Rao have been shown to have been elected as President and Secretary of the society. The fact of election have been mentioned in the revival application and these documents were filed in the RCS office to prove that the society has been activated and was ready to fulfill the requirements. The fact that in the application for revival Ext.PW12/A, which was filed by Anna Wankhede under the fake name of Diwakar Rao, copy of the proceedings of GBM dt. 16.02.2003 and 17.02.2003 (which are Q77A to Q82A) has been mentioned under the head 'Vol. I', shows that accused Sushil Kumar Sharma was acting in conspiracy and in CC No. 32/2010 Page 94/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 collusion with Anna Wankhede. At the cost of reiteration, I mention that as per GEQD report the Q77A to A82A are in the hand of Sushil Kumar Sharma.
In this revival application, under the head Vol.II Enrollments at point 5 there is a mention of "copies of receipt of share money and admonishing fee received from members." These copies of receipts are Q1132 to Q1191. These are the photocopies of the receipts bearing the stamp of SIEMENS Employees CGHS. In these receipts, the names of the members and the amount of Rs. One Hundred Ten only has been written in hand. Photocopies are very clear and the handwritings match with the specimen handwritings of Mohan Lal. Since accused Anna Wankhede is filing these copies of receipts along with the revival application by representing himself as Diwakar Rao, it is clear that Mohan Lal had created these large number of receipts as a part of conspiracy being a coconspirator of Anna Wankhede and Sushil Kumar Sharma.
Q12 (placed at page 329/C of D3) has been exhibited as Ext.PW11/G. It is clear that these proceedings are in the handwriting of Sri Chand. These proceedings would show that the meeting of managing committee of SIEMENS CGHS was held on 18.03.2003 and it was decided to shift the office address from 3794, Saraswati Vihar, Delhi to 24/14, East Avenue Market, Punjabi Bagh (East), Delhi24.
CC No. 32/2010 Page 95/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 This copy of the proceedings was sent to the AR vide letter dt. 20.03.2003 (Ext.PW50/PX) and on that very day i.e. on 20.03.2003 Yogi Raj vide letter Ext.PW10/D had sent the list of 120 members as approved by RCS to DDA for allotment of land. This shifting of address is fraudulent as I have discussed in the role of Faiz Mohd. that the Saraswati Vihar address was non existent. Similarly, the new address i.e. 24/14, East Avenue Market, Punjabi Bagh (East), Delhi24 is also non existent, as proved by PW47 Rajender Lal who has testified that he is residing at the given address and no CGHS by the name of SIEMENS CGHS ever existed or functioned at this address. I may add here that the address of the society is being repeatedly changed so that if there is any inquiry, no one is caught at this address.
Lot of arguments have been addressed by Ld. Defence Counsels that the photocopies being the secondary evidence cannot be admitted in evidence. I refer to Section 65 of The Indian Evidence Act 1872, which specifies the circumstances in which the secondary evidence relating to the documents may be given. As per Section 65 (a), such secondary evidence can be given, if the original is shown or appears to be in possession of the person against whom the document is sought to be proved. In the present case the handwriting on the photocopy are proved to be of Sri Chand, Anna Wankhede, Sushil Kumar Sharma and Mohan Lal. Therefore, it is clear that the originals CC No. 32/2010 Page 96/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 of these documents are in possession of these accused persons. Therefore, the prosecution is fully justified in proving the secondary evidence i.e. the photocopies. Now, it is for these accused persons to explain as per Section 106 of Indian Evidence Act as to where are the originals of these photocopies. Arguments have been led that the photocopies are likely to be tempered with. I find no substance in this argument because neither these accused persons have given any suggestion during the cross examination of the handwriting expert or the Investigating Officer nor raised any such defence in their statements under Section 313 CrPC that these are tempered documents. The dicta of AIR 1968 Supreme Court 938, (supra) as referred to by Ld. Sr. Public Prosecutor, is fully applicable to the present case, which is a case of conspiracy where these accused persons have withheld the originals with them and supplied the photocopies to the RCS office. Now, it is on the basis of the photocopies that the conspiracy and involvement of these conspirators has been unearth.
The Siemens Employee CGHS Ltd.
This society was formed by the employees of Siemens company on 18.1.972 vide registration no. 105 H with 21 promoters members. The minutes of meeting Ex.PW43/B have been proved by Kanwal Kishan Mehta (PW3) and these minutes specify that at point 4 that CC No. 32/2010 Page 97/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 membership of the society shall be restricted to the employees of Siemens India Ltd. The prosecution has examined the promoters members namely Bodh Raj Sethi (PW1), Jasbir Singh Bakshi (PW2), O.P. Narula (PW3), Ms. Shashi Wadhwa (PW4), H.S. Kapoor (PW5), Vas Raman (PW6), Rishi Virmani, (PW7), Prem Bhalla (PW34), Sh. Kanwal Kishan Mehta (PW43), Sh. Surender Kumar Batra (PW45), Sh. Satish Chander Talwar (PW46) and Sh. Satish Chand Garg (PW48). All these promoters members have testified that the society was remained functional upto 1978 and after that nobody took interest and therefore it was wound up by the office of RCS. They testified that Arun Kumar and D. Rao were not the members of the society. PW16 Ashok Bakshi, the then Deputy Registrar, has proved the winding up order Ex.PW16/A dated 26.12.1978. Thus it is clear that none of the members had taken part in any activity of the society after 1978. As per prosecution, all the new members show to be enrolled in the year 1983 and 1985 were fake members. Their names and addresses have been given in the list of members furnished along with the revival application. Prosecution examined some of the persons living at the addresses shown in approved list (placed at page 164/C to 173/C in D3. These witnesses are : PW17 Sh. Vijay Kumar Rajora, PW19 Sh. Karun Kumar Sharma, PW20 Sh. Ramesh Chandra Sharma, PW21 Sh. Mahinder Jain, PW22 Sh. Manjeet Singh, PW23 CC No. 32/2010 Page 98/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Sh. Joginder Kharbanda, PW25 Sh. Yashpal Aggarwal, PW26 Sh. Anil Kumar Gupta, PW27 Sh. Pawan Kumar Jain, PW28 Sh. Hira Lal, PW29 Sh. Mukesh Chand Madani and PW30 Sh. Darbari Lal Kataria. All of them have testified that no such person resided at the said addresses. Thus it is clear that the names of subsequently added members in the year 1983 and 1985 are absolutely fake. It is pertinent to note that in the freeze list 21 members are the original promoters members but they had lost interest in the year 1978. M. No. 22 to 50 are the proposed members but who never joined. Thereafter, all the members are fake. In fact the original members never knew that the society has been revived.
I may point out that along with the revival application the affidavits of the members were filed. The affidavits of D.Rao are placed in D3 and PW8 Chander Bhan Arya, Notary Public, has denied having attested the said affidavits. Same is the case of other Oath Commissioners namely Ms Rashmi gulati (PW31), Santosh Kumar (PW32, K. K. Kaul (PW36), (PW39), Suresh Kumar (PW40) and Suredner Kumar (PW44). They have denied having attested the affidavits purportedly having executed by the members, which are placed in D4. Thus it stands proved beyond doubt that the society was picked up and got revived by Anna Wankhede, Mohan Lal, Sushil Kumar Sharma and Sri Chand and got it revived by fraudulent means CC No. 32/2010 Page 99/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 and were successful in making the RCS office to send thelist of fake members to DDA for allotment of land.
Whether the RCS officials were in collusion with other conspirators.
One of the arguments, which is strongly raised by the RCS officials is that there is no evidence that they were in conspiracy with the other private persons and that they never knew that the members of office bearers and proceedings were all fake. In this regard a few facts must be noticed. (1) As per Kaveri CGHS case the Registrar was under the obligation to verify the correctness of the list of members but no effort has been made by any of the RCS officials in this direction. (2) The list of members produced before the RCS officials showed that the new enrollments were made in the year 1983 and 1985. No one asked that if the society was enrolling the members upto the yera 1985 why they did not come for revival earlier. I may point that showing enrollments upto the year 1985 is also fraudulent because upto the year 1985, the requirements for residence proof was dispensed with as per a particular policy decision mentioned in the notings. By resorting to this method, the RCS officials disposed with the requirements of residence proof and taking the cover of this policy they also disposed with any proof of the identity of the members. Here it is clearly visible as to how the RCS officials were actually CC No. 32/2010 Page 100/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 cooperating and aiding the private persons managing the society in fraudulently reviving this society. (3) Interestingly no physical verification of the members was done and no identity proof of the office bearers was sought by any of the officials. (4) Not only the members enrolled in the year 1983 and 1985 are fake but also no person as D. Rao and Arun Kumar i.e. the Secretary and the President of the society were found during investigation rather Anna Wankhede has been connected as the person, who moved the revival application as D. Rao, the Secretary and had filed large number of documents under his signatures as D.Rao. (5) Interestingly, Faiz Mohd., who was appointed as inspector files a false report because the address, which he stated to have visited does not exist. Same is the case with the audit. (6) In the revival order, the Registrar does not ask the office bearers of the society as to whether the society remained dormant for such a long time, though about 120 members had been enrolled upto the year 1985. Thus it is clear that A1 to A9 were acting in unison with one motive to revive the society fraudulently and get the land allotted by sending the fraudulent list of members to DDA.
Nitin Mehta (A10) Ld. Sr. Public Prosecutor has drawn my attention to the letter Ex.PW50/PX24, Ex.PS18/A, Ex.PW18/B and Ex.PW18/C and submits that accused Nitin Mehta had been corresponding with DDA for choice CC No. 32/2010 Page 101/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 of the land to be allotted to the society in the capacity of the Secretary of the society. Accused Nitin Mehta has not denied his signatures on these letters. Sh. J. R. Priani, adv. for this accused submits that in fact the society was being handled by Ravi Abrol, who is a builder. Ravi Abrol used to visit the house of Nitin Mehta quite often and under his influence Nitin Mehta signed those papers without knowing the consequences and without having the knowledge that a fraud was involved in the same. In his support Nitin Mehta examined his mother Smt. Ritu Mehta (A10/DW1). Smt. Ritu Mehta has testified that Ravi Abrol used to bring typed papers and get the signatures of Nitin Mehta. When CBI called him to the office, he stated the true facts and told CBI that his maternal uncle Mr. Ravi Abrol had got the signatures on the papers and that he signed in good faith without knowing the contents of the papers.
This court has perused the letters and this court has tried to find out as to whether there is some substance in the submissions of this young man. The Investigating officer in his cross examination by Sh. J. R. Priani, adv. has stated that he had called Ravi Abrol in the office and made inquiries from him but did not record his statement. He further stated that the address of Ravi Abrol was given to him by accused Sri Chand. He also stated that Nitin Mehta was called to CBI through Ravi Abrol, who told that Nitin Mehta was his nephew. He CC No. 32/2010 Page 102/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 also admitted that Nitin Mehta had stated to him that he had signed the letters at the instance of his maternal uncle Ravi Abrol. Investigating Officer admitted that Nitin Mehta had told him that Ravi Abrol was a builder. Investigating Officer further explained his stand by stating that "what transpired among Ravi Abrol, Nitin Mehta and the mother of Nitin Mehta was without any proof.....(hence) he had to believe the documentary evidence, which was before him." I have already discussed above that Sri Chand was handling the society at one stage and it appears that he had transferred the documents to Ravi Abrol that is why Investigating officer came to Ravi Abrol through Sri Chand. It was Ravi Abrol, who stated to the Investigating officer that the signatures are that of his nephew namely Nitin Mehta. In such circumstances, this court is anxious to know as to whether Nitin Mehta was actually dealing with the society or has been misused by his maternal uncle. For this purpose, I have perused the case diaries. Although in testimony before this court, the Investigating Officer has stated that he did not record the statement of Ravi Abrol but perusal of case diaries shows that statement of Ravi Abrol was very much recorded by the Investigating Officer. In this case the Investigating Officer has not searched the premises of Ravi Abrol and therefore no documents or incriminating material recovered from him. It appears from his statement that he had handed over the documents CC No. 32/2010 Page 103/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 to some other person. In his statement, he also stated that Nitin Mehta knew nothing about the society and put his signatures on the papers/letters on good faith.
In view of all these facts and circumstances, I am of the opinion that the possibility of Ravi Abrol being the real culprit, who managed to get the signatures of Nitin Mehta cannot be ruled out. There is a great probability in the defence of accused Nitin Mehta being truthful, therefore I give benefit of doubt to him and acquit him.
Whether protection u/s 197 CrPC is available to public servants?
I have already discussed that RCS officials i.e. Narayan Diwakar, Yogi Raj, Niranjan Singh and Faiz Mohd. were actively aiding the remaining accused persons namely Sri Chand, Anna Wankhede, Mohan Lal and Sushil Kumar Sharma in fraudulent revival of the society and sending the fraudulent lsit of members to DDA for allotment of land. Therefore the activities of the public servants go much beyond their official duties and the cloak of Section 197 CrpC would not be available to them.
To sum up In view of above discussions, accused Nitin Mehta (A10) stands acquitted.
All the other accused persons stand convicted under Section CC No. 32/2010 Page 104/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 120B read with Section 420/471 IPC and read with Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act 1988.
Accused Narayan Diwakar (A1), Yogi Raj (A2), Niranjan Singh (A3) and Faiz Mohd. (A4) stand convicted under Section 15 read with Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act 1988.
Since there is no evidence of accused Sri Chand (A5) having induced anyone personally, therefore I acquit him under Section 420 read with 511 IPC.
Similarly, accused Sushil Kumar Sharma (A9) has not induced personally. Therefore I acquit him under Section 420 read with 511 IPC nor he impersonated as someone. Therefore, he is also acquitted under Section 419 IPC. He also did not hand over any document to RCS. Therefore, he is also acquitted under Section 471 IPC. However, he forged/fake minutes of proceedings. Therefore, I convict him under Section 468 IPC.
Accused Anna Wankhede (A6) had represented himself as D. Rao and had also moved fraudulent application for revival and had also forged the proceedings and put fake signatures as D. Rao. Therefore, I convict him under Section 420/511 IPC and under Section 419/468/471 IPC.
CC No. 32/2010 Page 105/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 A charge of creating forged receipts is proved against accused Mohan Lal (A7) apart from his being in conspiracy. He is convicted under Section 468 IPC accordingly.
Announced in open court on 27.11.2013.
(VINOD KUMAR) Spl. JudgeII, CBI Rohini, Delhi CC No. 32/2010 Page 106/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 IN THE COURT OF SH. VINOD KUMAR SPL. JUDGE: CBIII : ROHINI: DELHI CBI VS. Narayan Diwakar etc. (SIEMENS CGHS) CC NO. 32/10 CBI Vs 1 Narayan Diwakar (A1) S/o Late Sh. Chhati Lal R/o G30, Masjid Moth, Greater KailashII, New Delhi.
2 Yogi Raj (A2) S/o Sh. Girdhari Lal R/o AP77, Shalimar Bagh, Delhi110088.
3 Niranjan Singh (A3) S/o Late Sh. Babu Lal R/o 309 Karkarduma, Delhi Govt.
Flats, Delhi92.
4 Faiz Mohammad (A4) S/o Late Sh. Gulam Mohammad R/o 4794, Ahatakidara, Pahari Dhiraj, Delhi110006.
5 Sri Chand (A5) S/o Late Sh. Hari Singh R/o 274A, ProcketC, Mayur Vihar, PhaseIII, Delhi110091.
6 Anna Wankhede (A6) S/o Late Sh. Parmnuji Wankhede R/o 148E/A2, Mayur Vihar, PhaseIII, Delhi96.
7 Mohan Lal (A7) S/o Late Sh. Ajmeri Lal R/o F228/3, Andrews Ganj, New Delhi49.
8 Sushil Kumar Sharma (A9) S/o Sh. Madan Lal Sharma R/o Village Lalsa, P.O. Dansa.
CC No. 32/2010 Page 107/112CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 Tehsil Rampur Bushar, Distt Shimla (Himachal Pradesh).
O R D E R O N S E N T E N C E 28.11.2013 Present: Sh. Amrit Pal Singh, Ld. Sr. PP for CBI.
All the convicts in person.
Sh. R.P. Shukla, Adv. for Convict no.'s 2, 3, 5 & 7. Sh. S.K. Bhatnagar, Adv. for convict no. 4.
Ld. Sr. Public Prosecutor argues that this is the fourth conviction for convict Narayan Diwakar and Anna Wankhede and third conviction for convict Faiz Mohd. Ld. Sr. Public Prosecutor further submits that this is the second conviction for convict Sri Chand, Mohan Lal and Sushil Kumar Sharma whereas convict Yogi Raj and Niranjan Singh have been convicted for the first time. Ld. Sr. PP submits that a full dose of sentence should be given to all the convicts except the first timers who may be awarded a normal dose of sentence.
On the other hand, all the convicts pray for a lenient view. I have considered the rival submissions and sentence the convicts as under:
NARAYAN DIWAKAR:
I sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 CC No. 32/2010 Page 108/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 days.
I further sentence him to rigorous imprisonment for one year and nine months and fine in the sum of Rs. 100/ u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. YOGI RAJ:
I sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. NIRANJAN SINGH:
I sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and CC No. 32/2010 Page 109/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 fine in the sum of Rs. 100/ u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. FAIZ MOHD.:
I sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and six months and fine in the sum of Rs. 100/ u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. SRI CHAND:
I sentence him to rigorous imprisonment for three years and three months and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
ANNA WANKHEDE:
I sentence him to rigorous imprisonment for three years and three CC No. 32/2010 Page 110/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 months and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s Section 420/511 IPC In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 419 IPC. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 468 IPC. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 471 IPC. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. MOHAN LAL:
I sentence him to rigorous imprisonment for three years and three months and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for a period of one CC No. 32/2010 Page 111/112 CBI Vs. Narayan Diwkar etc. (Siemens CGHS) Judgement dt. 27.11.2013 year and fine in the sum of Rs. 100/ u/s 468 IPC. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. SUSHIL KUMAR SHARMA:
I sentence him to rigorous imprisonment for three years and three months and fine in the sum of Rs. 100/ u/s 120B IPC r/w Section 420/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine he shall undergo simple imprisonment for 7 days.
I further sentence him to rigorous imprisonment for one year and fine in the sum of Rs. 100/ u/s 468 IPC. In default of payment of fine he shall undergo simple imprisonment for 7 days.
All the sentences shall run concurrently. Copy of judgment be supplied free of cost to each convict. File be consigned to record room.
Announced in the open court on this 28th day of November, 2013.
(Vinod Kumar) Spl. JudgeII, CBI Rohini/28.11.2013 CC No. 32/2010 Page 112/112