Delhi District Court
Cbi vs B. M. Sethi Etc. (Safdarjung C.G.H.S) on 13 October, 2025
CBI vs. B.M. Sethi & Ors.
IN THE COURT OF SH. PRASHANT SHARMA
SPECIAL JUDGE, PC ACT, CBI-15,
ROUSE AVENUE DISTRICT COURT NEW DELHI
CBI CASE NO. 189/2019
CNR NO. DLCT11-000-798-2019
FIR NO. RC.09(A)/2006/SCU.V/CBI/SCR.II/NEW DELHI
UNDER (i). SECTION 120-B READ WITH SECTION 419,
SECTION 420,468, 471 OF INDIAN PENAL CODE, 1860
SECTION 13(2) READ WITH SECTION 13(1)(d)
OF PREVENTION OF CORRUPTION ACT, 1988
(AS AMENDED IN 2018)
COMPLAINANT CENTRAL BUREAU OF INVESTIGATION
REPRESENTED SH. NEETU SINGH, LD. SENIOR PUBLIC
BY PROSECUTOR
VERSUS
(1). B.M. SETHI (EXPIRED)
S/o Late Sh. Hira Lal Sethi
R/o L-8, Kirti Nagar, New Delhi.
(2). KARAMVIR SINGH
S/o Late Sh. Shobha Chand
ACCUSED R/o D-36, Pocket-B, Mayur Vihar, Phase-II,
PERSONS (17) Delhi Administration Flats, New Delhi.
Represented by : Mr. Anuj Chauhan, Advocate.
Digitally signed
CBI Case No.189/2019 by PRASHANT Page 1 of 591
PRASHANT SHARMA
SHARMA Date:
2025.10.13
11:22:41 +0530
CBI vs. B.M. Sethi & Ors.
(3). NARENDER KUMAR
S/o Late Sh. Jagat Singh
R/o House No.394 D, J&K Pocket,
Dilshad Garden, Delhi-95.
Represented by : Mr. Anuj Chauhan, Advocate.
(4). MAHA NAND SHARMA
S/o Late Sh. Ram Swaroop Sharma
R/o RZP 6, Raj Nagar-II, Palam Colony,
New Delhi {Near Sector-8, Dwarka}.
Represented by : Dr. Sushil Kumar Gupta, Advocate
(5). PANKAJ MADAN
S/o Late Sh. C.M. Madan
R/o Kothi No.20, Jagriti Enclave, Delhi-92.
Represented by : Mr. Amit Khanna, Advocate
(6). ASHWANI SHARMA
S/o Late Sh. R.K. Sharma
R/o MIG Flat No.291 A, Pocket C,
Mayur Vihar, Phase II, Delhi.
Represented by :Dr. Sushil Kumar Gupta, Advocate
(7). ASHUTOSH PANT
S/o Sh. Mahesh Chander Pant
R/o B-160, Gali No.2, Sadatpur Colony,
Karawal Nagar, Delhi-94.
Represented by :Dr. Sushil Kumar Gupta, Advocate
(8). SUDARSHAN TANDON
S/o Late Sh. J.R. Tandon
R/o House No.149, Gali No.29, Arjun Nagar,
[Behind Green Park], Delhi.
Represented by : Mr. Tabrez Ahmed, Advocate
(9). URMILA GUPTA (EXPIRED)
W/o Sh. T.R. Gupta
R/o House No.1534, Chandrawal Road,
Clock Tower, Subzi Mandi, Delhi.
CBI Case No.189/2019 Page 2 of 591
CBI vs. B.M. Sethi & Ors.
(10). BHISHAM KUMAR GROVER (EXPIRED)
S/o Late Sh. Roop Chand Grover
R/o F-2/78, Sector-16, Rohini, Delhi
(11). MANOJ VATS
S/o Sh. Samarth Vats
R/o House No.15, Village & Post Office Mitraon,
Near Najafgarh, New Delhi-43.
Represented by : Mr. Anuj Chauhan, Advocate.
(12). VIJAY THAKUR
S/o Sh. Chunni Lal Thakur
R/o House No.15, Village & Post Office Mitraon,
Near Najafgarh, New Delhi-43.
Represented by : Mr. Tarun Chandiok, Advocate
(13). VIKAS MADAN
S/o Late Chandra Mohan Madan
R/o House No.20, Jagriti Enclave, New Delhi.
Represented by : Mr. Amit Khanna, Advocate
(14). POONAM AWASTHI
W/o Sh. Sunil Awasthi
R/o S-3, J-14, Dilshad Colony, Delhi.
Represented by : Mr. Amit Khanna, Advocate
(15). NARINDER DHIR
S/o Late Sh. Ram Nath Dhir
R/o F-4, 1st Floor, Lajpat Nagar-I, New Delhi.
Represented by : Mr. Amit Khanna, Advocate
(16). GOPAL DIXIT
S/o Late Sh. R.B. Dixit
R/o House No.50, Ishwar Nagar, New Delhi.
Represented by : Mr. Neeraj Chaudhary, Advocate
(17). RAMESH BAJAJ
S/o Late Murlidhar Bajaj
R/o B-2/2314, Vasant Kunj, New Delhi.
(Discharged Vide Order Dated 12.09.2018)
CBI Case No.189/2019 Page 3 of 591
CBI vs. B.M. Sethi & Ors.
DATE OF FIR 29.09.2006
DATE OF INSTITUTION 13.02.2008
DATE OF FRAMING OF CHARGES 26.09.2018
DATE OF COMMENCEMENT OF EVIDENCE 03.01.2019
DATE ON WHICH JUDGMENT IS 01.09.2025
RESERVED
DATE OF JUDGMENT 13.10.2025
TABLE OF CONTENTS
S. No. CONTENTS Page Nos.
Introduction 9
1.
Understanding Cooperative Society's Brief 9-15
2. History and Legal Recognition
Reference to Relevant Provisions of Delhi 16-21
3. Cooperative Societies Act, 1972 (in short 'DCS
Act')
Origin of Present Case 21-22
4.
Facts mentioned in the Charge-Sheet 22-41
5.
Charge against Accused Persons 41-42
6.
Proceedings during Trial 42-91
7. ► Evidence led by Prosecution
► Statement of Accused Persons, recorded
under Section 313 CrPC
► Evidence in Defence
Reference to Legal Aspects
8. 91
► Law relating to Appreciation of Oral
Evidence
CBI Case No.189/2019 Page 4 of 591
CBI vs. B.M. Sethi & Ors.
► Law relating to Appreciation of 92-93
Evidence in cases involving Corruption Laws
Appreciation of Oral Testimonies of 93-196
9.
Prosecution Witnesses
Appreciation of Prosecution Evidence, based 196-237
10.
on Testimony of Handwriting Expert (PW43)
Reference to Legal Aspects
11. 237-239
1. Law relating to Appreciation of
Statement of Accused under Section 313 CrPC
2. Law pertaining to Appreciation of 239-240
Circumstantial Evidence
3. Law on Criminal Conspiracy 240-261
Brief Recapitulation of Prosecution's Case 261-262
12.
Accused Karamvir Singh (A-2)
13.
262-313
► Appreciation of Record viz-a-viz
Accused Karamvir Singh (A-2)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Karamvir Singh (A-2)
► Appreciation of his Statement recorded
under Section 313 CrPC
► Appreciation of Defence Evidence, led
by Accused Karamvir Singh (A-2)
► His Written Submissions
Accused Narender Kumar (A-3)
14.
► Appreciation of Record viz-a-viz 314-337
Accused Narender Kumar (A-3)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Narender Kumar (A-3)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
CBI Case No.189/2019 Page 5 of 591
CBI vs. B.M. Sethi & Ors.
15. Accused Maha Nand Sharma (A-4) 337-375
► Appreciation of Record viz-a-viz
Accused Maha Nand Sharma (A-4)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Maha Nand Sharma (A-4)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Pankaj Madan (A-5)
16. 375-387
► Appreciation of Record viz-a-viz
Accused Pankaj Madan (A-5)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Pankaj Madan (A-5)
► Appreciation of his Statement recorded
under Section 313 CrPC
► Appreciation of Defence Evidence, led
by Accused Pankaj Madan (A-5)
► His Written Submissions
Accused Ashwani Sharma (A-6)
17. 387-410
► Appreciation of Record viz-a-viz
Accused Ashwani Sharma (A-6)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Ashwani Sharma (A-6)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Ashutosh Pant (A-7)
18. 410-419
► Appreciation of Record viz-a-viz
Accused Ashutosh Pant (A-7)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Ashutosh Pant (A-7)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
CBI Case No.189/2019 Page 6 of 591
CBI vs. B.M. Sethi & Ors.
Accused Sudershan Tandon (A-8)
19. ► Appreciation of Record viz-a-viz 419-443
Accused Sudershan Tandon (A-8)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Sudershan Tandon (A-8)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Manoj Vats (A-11)
20. 443-463
► Appreciation of Record viz-a-viz
Accused Manoj Vats (A-11)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Manoj Vats (A-11)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Vijay Thakur (A-12)
21. 464-489
► Appreciation of Record viz-a-viz
Accused Vijay Thakur (A-12)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Vijay Thakur (A-12)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Vikas Madan (A-13)
22. 489-512
► Appreciation of Record viz-a-viz
Accused Vikas Madan (A-13)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Vikas Madan (A-13)
► Appreciation of his Statement recorded
under Section 313 CrPC
► Appreciation of Defence Evidence, led
by Accused Vikas Madan (A-13)
► His Written Submissions
CBI Case No.189/2019 Page 7 of 591
CBI vs. B.M. Sethi & Ors.
Accused Poonam Awasthi (A-14)
23. ► Appreciation of Record viz-a-viz 512-526
Accused Poonam Awasthi (A-14)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Poonam Awasthi (A-14)
► Appreciation of her Statement recorded
under Section 313 CrPC
► Her Written Submissions
Accused Narinder Dhir (A-15)
24. 526-543
► Appreciation of Record viz-a-viz
Accused Narinder Dhir (A-15)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Narinder Dhir (A-15)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Written Submissions
Accused Gopal Dixit (A-16)
25. 544-565
► Appreciation of Record viz-a-viz
Accused Gopal Dixit (A-16)
► Appreciation of Prosecution Evidence
viz-a-viz Accused Gopal Dixit (A-16)
► Appreciation of his Statement recorded
under Section 313 CrPC
► His Defence Evidence
► His Written Submissions
A Holistic View Of The Case Of Prosecution
26. 566-582
27. Offences proved against accused persons and 582-591
Conclusion
CONCLUSION CONVICTION
28.
CBI Case No.189/2019 Page 8 of 591
CBI vs. B.M. Sethi & Ors.
JUDGMENT
Introduction 1 Having residential accommodation in metropolitan cities like Delhi is everyone's dream and its worth it. There is no issue with that. Problem arises when for making that dream a reality, one take recourse to illegal means. In the process, lies are churned out, ethics are compromised, documents are falsified /forged, professional duties are ignored and everyone involved in the conspiracy with the aim of getting residential accommodation, pays no hoot to the morality and moral principles.
2 Present case highlights one such situation where facts revealed how Members of Cooperative Society in Question, in their zeal of getting residential accommodation in Delhi, manipulated records, hid truth, aligned government officials/ Officers with them and cheated government offices. All that was done, with malafide intentions, under pre-planned conspiracy.
Understanding Cooperative Society's Brief History and Legal Recognition 3 Since, present case involved appreciation of activities in Safdarjung CGHS Limited, so, I must mention here, brief history behind creation of Cooperative Societies, in India. I must also mention objectives behind creation of such like Societies which legislature, borne in mind, while promulgating Delhi Cooperative CBI Case No.189/2019 Page 9 of 591 CBI vs. B.M. Sethi & Ors.
Societies Act, 1972. I must also mention here relevant law, concerning said Act, along with relevant provisions, briefly.
4. In India, historically, before formation of formal cooperative structures, being sanctioned by law, there was practice of concept of cooperation and cooperative activities in different parts. Village communities used to have collective permanent assets, like village tanks and village forests. People used to pool in resources in groups, for assimiliting food grains for addressing future tough situations. It was the said set-up which successfully continued for decades together, which formed the underlying idea, behind creation of "Cooperative Societies".
5. "A Cooperative is a ground of independent people, who have come together voluntarily to work for the same economic, social and cultural goals through a jointly owned and democratically run business" (Bello and Dogarawa, 2005).
6. The Cooperative Credit Societies Act, which allowed for the creation of Primary Cooperative Credit Societies, was introduced in 1904 following the proposal of committee appointed by the government of India and headed by Sir Edward Law. The Cooperative Movement in India gained impetus as a result of this action. In October 1904, Kanjivaram in the Madras Presidency saw the registration of India's first "Urban Cooperative Credit Sociey"
(Alderman, 1987) Cooperatives were then registered practically everywhere in India. After a few years, the nation understood the CBI Case No.189/2019 Page 10 of 591 CBI vs. B.M. Sethi & Ors.
importance of cooperatives to its social and economic development. This paper highlights the function and obligation of cooperatives in uplifting the indigenous populace.
7. "A voluntary organisation of people who have agreed to pool their resources together to undertake an economic enterprise to meet their common needs and which they democratically manage and control and share the economic benefits based on participation and patronage, is what is meant by a cooperative"
(Deshpande, n.d.) according to the Cooperative Development Authority (CDA), the government agency responsible for the development and monitoring of cooperatives in the nation. Cooperative Societies have significantly increased in India since independence, particularly in the banking, housing, agriculture, sugar and dairy industries.
8. Subsequently, various laws mentioned Cooperative Societies related provisions viz., Cooperative Societies Act, 1912, Maclagen Committee on Cooperation (1914), Government of India Act, 1919 (in which Cooperation as a subject was transferred to the provinces), Multi-Unit Cooperative Societies Act, 1942, NABARD Act, 1981, Multi-State Cooperative Societies, 1984, Model Cooperatives Act, 1990, Multi-State Cooperative Societies Act, 2002 and likewise.
9. Cooperative Societies are governed by the laws of their states and their governing bodies are the Cooperation CBI Case No.189/2019 Page 11 of 591 CBI vs. B.M. Sethi & Ors.
Commissioner and the Registrar of Societies. "Thr Multi-State Cooperative Societies Act, which permits the registration of Cooperative Societies with operations in many states, was passed by the Centre in 2020. Currently, these Multi-State Cooperative Societies (MSCs) are primarily banks, dairies and sugar mills with operations spread across states. These MSCs are administered by the Central Registrar of Societies; however, the State Registrar governs them on the ground" (India's New Ministry of Cooperation - Catalysing The Cooperative Movement, 2021).
10. Reference to above-mentioned brief history revealed that concept of Cooperative Societies was found proper, reasonable and capable of achieving utilitarian society in India.
11. Hon'ble Apex Court in case titled as Daman Singh & Ors. vs. State of Punjab & Ors. AIR 1985 SC 973, had noted about the significance of Cooperative Societies in following words :-
"The very philosophy and concept of cooperative movement is impregnated with the public interest......".
12. Hon'ble Delhi High Court in case titled as Navjivan Cooperative House Building.... vs. Delhi Cooperative Tribunal & Ors ILR 1987 DELHI 323, had observed as under :-
16. ......... It is necessary to keep the principles which have given birth to Cooperative Societies in one's mind.
In a book titled "Indian Cooperative Laws viz-a-viz - Cooperative Principles" written by Shri P. E. Wearaman, the then Regional Director for South East Asia, International Cooperative Alliance, cooperative CBI Case No.189/2019 Page 12 of 591 CBI vs. B.M. Sethi & Ors.
principles have been dealt with. The author of the Book says this about "Cooperative Societies" at page 2. A cooperative Society is thus an association of persons or of societies, which has as it object the economic and social betterment of its Members, through the satisfaction of their common economic needs by means of a common undertaking based upon mutual aid and profit-elimination, and which conforms to the Cooperative Principles. It is stated that there are six Principles of Cooperation. The first four set out the working methods of the cooperatives and the other two state what is essential for the continued progress of the movement. All the six principles are equally important.
"They form a system and are inseparable. They support and reinforce one another. They can and should be observed in their entirety by all cooperatives if they claim to belong to the Cooperative Movement" (ICA Principles Commission). The six principles are stated as follows :-
(1)Voluntary and open membership.
(2)Democratic control.
(3)Limited interest on capital.
(4)Equitable division of surplus.
(5)Cooperative Education among Cooperation (17) The principle that the membership shall be voluntary in the Cooperative Society means that :- (1)a person who joins a cooperative Society of his own free will, and.
(2)the Society which admits a person into its membership should likewise do so voluntarily.
The principle open membership is that :-
(1)there shall be no artificial restriction on the admission of Members;
(2)there shall be no social, political, racial or religious discrimination against persons who wish to join, and (3)membership shall be available to all persons who need and can make use of the Society's services and are willing to accept the responsibilities of Member ship.CBI Case No.189/2019 Page 13 of 591
(18) The principle of voluntary open membership would naturally exclude the State from becoming a Member of a Cooperative Society, and would exclude the State interference in the affairs of the Society. (19) The author also reproduced the address of Pt. Jawaharlal Nehru, addressing the Third Indian Cooperative Congress in April 1958, and the same is as follows :- "NOW, I want to make a confession to you, and that is that I think our government was quite wrong in accepting some of the decisions of the Rural Credit Survey Committee-not all, but: some. I am sorry for it. I am responsible for it as much as anybody else. It is as much my fault as anybody else's. The more thought I have given to it, the more I have realised that the approach of the Rural Credit Survey Committee in some respects was not a right or sound approach and they tended to push the cooperative movement in the country in the wrong direction. What was this wrong direction ? There was a tendency, on the part of that .committee to distrust our people, if I may say so, our common people, a tendency to think that they are not competent enough, that they cannot do a job by themselves; that, therefore, government officials must come in and help, that government money should push them up. If government money comes, that mosey is followed by government officials. The small cooperative has not enough resources or money or competent technical personnel ; therefore, you should have large cooperatives, which can be started and helped by government and so on. Now I believe that that approach, which has certainly something to say for it-it may be argued that there is some reason behind it-was, nevertheless, a wrong approach, and it has given a wrong turn to our cooperative movement. Ever since I realised this, I have been trying to point this out; and here on this occasion I should like to say to you, who are chiefly responsible, that that approach, even though it might bring some results locally and temporarily, pushes the cooperative movement in a direction which is net cooperative at all, which is something else, and which offends against the whole philosophy which, I believe, has grown up round this movement. Because, if it is to be a stage-sponsored movement, with government officials running it, it may CBI Case No.189/2019 Page 14 of 591 CBI vs. B.M. Sethi & Ors.
do some good if the government officials are competent enough, but it does infinite harm in the sense that it does not allow the people to learn how to do things for themselves, how to develop a spirit of self-reliance, self- dependence and even to make mistakes, if they have to make mistakes".
13. In the wake of above-mentioned observations of higher echelon of judiciary, it is clear that Cooperative Societies are to be constituted, for public interest. Its Members have to be made, based on their voluntariness. The membership in Cooperative Societies, in general are open membership. Coupled with the same, there has to be democratic control of the said Society which means that Members have to participate in elections for electing their Executive Body. As such, government is not to be made Member in such Societies. Aim of creation of said Societies is to make them self-reliant and self-dependent, subject to law / rules promulgated by the government. Such Societies are created as government cannot be present everywhere in Society for the upliftment of Members of Society. Creation of such like Societies, as such, aid government in extending benefits to the citizens of India to a larger extent and in the process, making them self-dependent.
14. So, the aim of Cooperative Societies in general is to create a eco-system at ground level, which is capable of running, on its own, for the benefit of larger number of Members of Society. Such Societies are not meant for family members or close acquaintance of a person, only. Such Societies are meant for public at large, so that public at large can take benefit from the same.
CBI Case No.189/2019 Page 15 of 591Reference to Relevant Provisions of Delhi Cooperative Societies Act, 1972 (in short 'DCS Act')
15. The DCS Act comprised of 12 Chapters.
15.1. Chapter I pertained to the short title, extent and commencement of the Act, along with definitions of the expressions, used in the Act. Section 2 (d) noted that Cooperative Society meant a Society, registered under the Act. Section 2 (k) talked about the meaning of "Member" in the Society, as a person who joins through an application for becoming Member of Society, while said Society is getting registered or after registration of said Society. Section 2(l) talked about the meaning of "Officer" by including President, Vice-President, Chairman, Vice-Chairman etc., empowered by the Act to do business of the Society. Section 2(m) referred to the expression "Prescribed" to mean prescribed by rules. Section 2(p) referred to "Rules" to mean rules made under this Act.
15.2. Chapter II of the Act talked about registration of Cooperative Societies. Section 3 under said Chapter recognized the designation of "Registrar of Cooperative Societies". Said Registrar can be appointed by Lieutenant Governor of Union Territory of Delhi, through official notification in Delhi Gazette. The Cooperative Societies with the object of promotion of economic interests of its Members, can get registered under Section 4. Section 5 talked about restriction on registration of Cooperative Society, by noting that such Society must consists of at least 10 CBI Case No.189/2019 Page 16 of 591 CBI vs. B.M. Sethi & Ors.
persons, each of whom must be from different families. Sections 7, 8 & 9 noted the manner, in which registration of said Societies, has to take place. Section 10 talked about issuance of Registration Certificate of the said Societies by Registrar of Societies. Section 11 to 19 talked about the law with respect to a situation, wherein, status of Societies, change in different circumstances.
15.3. Chapter III of the Act talked about Members of Cooperation Societies and their rights & liabilities. The provisions under said Chapter, pertained to the qualifications of Members of Cooperative Societies, their voting rights, delegation of their rights to other Members and procedure in case of a Member transferring his interest or dying during his tenure as Member of Society.
15.4. Chapter IV of the Act talked about management of Cooperative Societies. The General Body of Members of Society is seen as final authority in Cooperative Societies as per Section 28. Further, mandatory directions of conducting Annual General Meeting and Special General Meeting, within a fixed time, mentioned therein, were mentioned in Section 29 & 30. The manner in which elections in Societies have to be conducted, is mentioned in Section 31 & 32.
15.5. Chapter V of the Act talked about privileges of Cooperative Societies. Section 40 noted that there has to be register, pertaining to list of Members of Society and said list shall be prima-facie evidence about the date, when said Member had CBI Case No.189/2019 Page 17 of 591 CBI vs. B.M. Sethi & Ors.
become Member of Society and the date, when he had ceased to be a Member of the Society. Section 41 noted that copy of entry in a book of Society, shall be kept in ordinary course of its business and if it is certified, then, it will amount to prima-facie evidence of existence of such entry. The Chapter talked about details of properties of Society, contribution by Members of Society and other related aspects with respect to running of Society, in other provisions.
15.6. Chapter VI pertains to properties and funds of Cooperative Societies.
15.7. Chapter VII talked about audit, inquiry, inspection and surcharge aspects with regard to running of Cooperative Societies. Provisions under the said Chapter highlight the power of Registrar, Cooperative Societies (in short 'RCS') to audit, inspect and inquire about the records and proceedings of the Societies.
15.8. Chapter VIII of the Act mentioned the manner in which disputes, pertaining to running of Society have to be settled through arbitration.
15.9. Chapter IX pertained to winding up of Cooperative Societies. It contained provisions with respect to power of Registrar, to order for winding up of Societies and the procedure to be followed with regard to the same.
CBI Case No.189/2019 Page 18 of 59115.10. Chapter X talked about execution of Awards, decrees, orders and decisions, passed by Registrar, Arbitrator or Tribunal. Details of the same are not relevant for the purpose of adjudication of this case.
15.11. Chapter XI noted provisions with respect to appeals and revisions.
15.12. Chapter XII of the Act talked about offences and penalties.
16. Section 97 of the Act mentioned the Rules, which Lieutenant Governor of NCT of Delhi, may promulgate, from time to time.
17. Therefore, DCS Act, 1972 is a legislation which not only catered to the above-mentioned objectives, pertaining to Cooperative Societies, rather, it was a legislation which laid down provisions & rules, pertaining to effective working of Delhi Cooperative Societies. The Act did not give unbridled powers to Cooperative Societies, rather, noted checks and balances, in the shape of powers and rights, given to Registrar of Cooperative Societies, bestowed to him by Lieutenant Governor of Delhi.
18. The outcome of above-mentioned reference to the provisions of the Act is that a Cooperative Society is governed by the provisions of the said Act. A Cooperative Society, cannot work in an arbitrary manner. Its working is governed by the provisions of CBI Case No.189/2019 Page 19 of 591 CBI vs. B.M. Sethi & Ors.
DCS Act. Registrar of Cooperative Societies, has got power to audit, inspect and inquire about the records and proceedings of Society. He also has power for winding-up of Society, if situation so requires. The Society has to be registered with the office of RCS. Above-mentioned provisions, therefore, indicate that overall management of Society is answerable to the office of RCS. If office of RCS, issues notice, seeking some information from Society, then, said Society has to respond. Society, as such, cannot simply ignore said notice, without any reason. The activities of the Society are to be accounted/ explained by the Society through its Office Bearers / Authorized Members to the office of RCS. In various situations, like; amendment of bylaws of Society, change of name of Society, amalgamation/ transfer of assets and liabilities of Society, cancellation of Registration Certificate of Society and likewise, order of office of RCS is the final order. So, in a way, one can say that a Cooperative Society is answerable to the office of RCS.
19. So, office of RCS, basically had to be kept in loop of all the affairs of Society. It is the Society which had to make efforts to keep office of RCS, informed about the working of Society. If a Society keeps mum about the activities which are taking place in it and does not inform the office of RCS then it cannot be brushed aside, just like that. Similarly, if office of RCS, issues notice and seeks some information from a Society then Society has to respond to it. Society, as such, cannot simply sit over said notice, without any reason. If Society does not respond to such notice from the CBI Case No.189/2019 Page 20 of 591 CBI vs. B.M. Sethi & Ors.
office of RCS, then Society has to explain as to why it acted so. In the absence of any reasonable explanation, there remains only one possibility which is that Society is hiding truth with ulterior motives. In other words, Society can be seen as an organization, working illegally, contrary to the provisions of DCS Act. The repercussions can entail criminal offences.
Origin of Present Case
20. Order of Hon'ble High Court of Delhi in WP(C) No.10066/2004 was the germane of this case. In the said Writ Petition, Hon'ble High Court of Delhi, noted in order dated 02.08.2005 as follows:-
" We direct the Director of CBI to conduct a thorough investigation in all the matters of 135 Cooperative Societies. It has been stated that in case of four Societies, the cases have been registered and the apprehension expressed by this Court, in the earlier orders of a nexus between the Builders, taking over the cooperative movement in Delhi, has been found to be correct. It is unfortunate that the same has been done prima- facie as it seems in connivance with the office of the Registrar of Cooperative Societies and the Officer of the DDA. Land in Delhi is allotted at a pre-determined rate and not on the basis of market value of the land. Cooperative Societies were formed in order to have flats at affordable prices by the middle income group and lower income group. It is the element of profit making in view of difference of market value of land and the value on which land is allotted to the Societies, have resulted in the nexus of builders and officials to reap gain by unholy alliance. If apartments are sold on the basis of market price, the very purpose of land given on concessional rate to the Cooperative Societies stands defeated. Keeping in view the enormous amount of money invested and involvement of CBI Case No.189/2019 Page 21 of 591 CBI vs. B.M. Sethi & Ors.
influential persons, nature of crime, voluminous records, we also direct Director, CBI to formulate a Special Investigating Team headed by an Officer not below the rank of DIG with adequate staff to investigate the whole matter. We also direct the Chief Secretary, Govt. of NCT of Delhi as well as Secretary, DOPT to provide additional staff for this purpose to the Special Investigating Team. We would also like at the first instance that a report be submitted on the next date of hearing by the Special Investigating Team with regard to the office bearers of these 135 Societies viz-a-viz their present profession as well as their past profession, whether these Presidents or Secretaries were some contractors or sub- contractors by profession. This Court will monitor the progress of investigation of these Societies".
21. Above-mentioned order of Hon'ble High Court of Delhi, thus, noted illegal connivance between Builders and Officials of RCS/ DDA, for the purpose of allotment of land, at a rate, lower than market price. The order also reflected that Hon'ble High Court of Delhi, prima-facie observed involvement of criminal offences and that is why, it directed CBI to formulate a Special Investigating Team for investigating the working of Societies.
22. Present case, involved, one such Society namely Safdarjung CGHS Limited, which was investigated by CBI, pursuant to order of Hon'ble High Court of Delhi.
Facts mentioned in the Charge-Sheet
23. Charge-sheet revealed that in 1970s & 1980s, various Cooperative Societies were registered but no land was allotted by Delhi Development Authority (in short 'DDA'). As a result of that, CBI Case No.189/2019 Page 22 of 591 CBI vs. B.M. Sethi & Ors.
those Societies became defunct. Some of those Societies were wound-up by the RCS under the provisions of Section 63(2) of DCS Act. Section 63(3) of the said Act provided revival of defunct Society by the RCS. Various builders exploited the said provision, in conspiracy with, officials of RCS, NCT of Delhi, as a result of which, they gained financially in an undue manner, causing financial loss to the government.
23.1. Present case pertained to illegal activities for financial gain, in one amongst such like Societies namely Safdarjung CGHS Limited (hereinafter referred to as 'Society/ Society in Question').
23.2. Persons namely B.M. Sethi (the then Assistant Registrar), Karamvir Singh (Liquidator), Narender Kumar (Election Officer), Maha Nand Sharma (President of Society in Question), Pankaj Madan, Ashwani Sharma, Ashutosh Pant, Sudarshan Tandon and other persons, entered into a criminal conspiracy, pursuant thereto, they cheated Government of NCT of Delhi by committing the offences of impersonation, cheating, forgery and abuse of official position by public servants for revival of Society in Question, on 26.04.1999 and secured allotment of land measuring 5000 square metres at Plot No.4, Dheerpur, Delhi.
23.3. On 09.08.1983, Sudarshan Tandon submitted an application for registration of proposed Society in Question, in the office of 'RCS'. Society conducted its first General Body Meeting (in short 'GBM') on 29.09.1983 at L Block Market, Green Park CBI Case No.189/2019 Page 23 of 591 CBI vs. B.M. Sethi & Ors.
Extension, New Delhi, which was attended by Office Bearers namely S.L. Sachar (President), I.J. Kalucha (Vice President), R. Bajaj (Vice President), Sudarshan Tandon (Secretary) and Ratish Maurya (Treasurer).
23.4. Thereafter, Sudarshan Tandon submitted various documents like list of 83 Promoter Members, Affidavits of said Promoter Members, Affidavit on behalf of Society etc. with the office of RCS. Society in Question was registered with RCS on 18.11.1983 with Registration No. 917 (GH) having registered address at C-21/1, S.D.A. Shopping Complex, Opposite IIT Gate, New Delhi. In March 1984, Ramji Prasad was elected as President as S.L. Sachar resigned from Presidentship and also from the Membership of Society.
23.5. On 19.05.1985, Society in Question conducted another GBM, which was attended by Office Bearers namely Ramji Prasad (President), I.J. Kalucha (Vice President), R. Bajaj (Vice President), Sudarshan Tandon (General Secretary) and Ratish Maurya (Treasurer).
23.6. On 18.06.1985, Sudarshan Tandon sent a letter to RCS, Parliament Street, New Delhi, furnishing List of Members, Affidavits of new Members with attestation, Affidavit for Society, photocopy of Resolution, passed by the GBM, etc. After scrutiny of said papers, it was found that details like; date of payment of share money was not given; entry in column no.11 was not correct;
CBI Case No.189/2019 Page 24 of 591enrollment of new Members was not as per rule 30 and final list was not signed by the Vice President at the end of list.
23.7. Repeated reminders were sent by office of RCS to Society in Question from 1985 to 1990 but no reply was received from Society. The Members' list was not approved by office of RCS as Society failed to respond and its Audit was also pending since registration.
23.8. On 06.11.1990, order for liquidation of Society in Question was issued by Satish Mathur, Deputy Registrar (GH) as Society was not functioning in accordance with provisions of DCS Act.
23.9. Records of Society in Question were found to be in the custody of Maha Nand Sharma, fraudulently. As such, Maha Nand Sharma was not a primary Member of the Society in Question and had no connection with the Society in Question till its liquidation. Infact, it was Sudershan Tandon who was the custodian of the records of Society and his signature on the document, mentioning him being custodian of records of Society was confirmed by the Report from GEQD/ Shimla in Opinion no.CX-114/2007 dated 03.10.2007.
23.10. On 01.12.1998, an application was submitted in the office of RCS by some unknown person, claiming himself to be President of the said Society for its revival.
CBI Case No.189/2019 Page 25 of 59123.11. On 08.01.1991, Karamvir Singh, who was working as Clerk in the office of RCS, was appointed as Liquidator, as previous Liquidator namely I.C. Sahni was transferred from the department. Maha Nand Sharma had visited the office of RCS on 18.01.1999 and had handed over relevant records of the Society for its revival to Karamvir Singh and had signed on the margin of note- sheet, at page no.10/N of file of office of RCS, pertaining to Society in Question. GEQD/ Shimla has confirmed the said signature belonging to Maha Nand Sharma. On the same day, Karamvir Singh had noted on the note-sheet :-
"Present : M.N. Sharma on behalf of the Society on 18.01.1999 and handed over the relevant records of the Society for revival of the Society. After verification of the list of Members, the undersigned has issued Agenda on the same for Spl. GBM on 27.01.1999 to seek Opinion / view of Members for revival of the Society".
23.12. Karamvir Singh did not conduct any Special GBM on 27.01.1999 at the registered address of Society at RZ-P6, Raj Nagar, Part II, Sector 8, Dwarka, Palam Colony, Delhi, for seeking Opinion of the Members of the Society, seeking their proposal for revival/ withdrawal of liquidation order dated 06.11.1990. Karamvir Singh wrote Minutes of Special GBM dated 27.01.1999 in the Proceedings Register of Society in Question in connivance with Maha Nand Sharma. It was resolved in the said meeting that a request may be made to RCS for considering sympathetically the demand of its Members for revival of Society in Question. It also resolved to authorize Maha Nand Sharma to represent, argue and plead on behalf of Members of Society, in the office of RCS and CBI Case No.189/2019 Page 26 of 591 CBI vs. B.M. Sethi & Ors.
other officials etc. with respect to decision of GBM for withdrawal of liquidation/ cancellation of winding-up order.
23.13. Investigation revealed that various persons namely; K. Manoj Subudhi, Shyam Bhardwaj, Puneet Sharma, Amit Kumar Sharma, Papkesh Kumar Bhardwaj, Misri Lal Bhardwaj, Dhan Singh Sehrawat, Sachin Sharma and Vijay Sharma were shown as participants who had attended meeting on 27.01.1999 but all the said persons denied that they had attended said meeting of Society in Question. Those persons also denied the fact that they had signed in token of having attended the Special GBM on 27.01.1999, conducted by Karamvir Singh, Liquidator, which was so mentioned in the Proceedings Register of Society in Question. It was found that most of the above-mentioned persons were relatives of Maha Nand Sharma. Some of the name namely; Smt. Dayawati, Youdhveer Singh, Smt. Ved Kaur, Smt. Satyawati, Manish Sharma, Naresh Solanki and Mitesh Pal, who were shown as Members of Society in Question, were found to be fictitious persons, as their names did not figure in the list of Members of Society. The Report from GEQD/ Shimla pertaining to GBM dated 27.01.1999 noted certain conclusions viz., that names of Members were written by Maha Nand Sharma who had signed at two places against his name in token of having attended the meeting; that signature against the name of Sachin Sharma definitely were not of Sachin Sharma and that signature of Manoj Vats were bogus in the said records of meeting.
CBI Case No.189/2019 Page 27 of 59123.14. Investigation also revealed that after conducting the said meeting, Karamvir Singh had submitted a false Report, dated Nil, enclosing documents viz., copy of Agenda, copy of Minutes of Special GBM and copy of UPC list.
23.15. On 10.12.1999, Maha Nand Sharma wrote a letter to RCS, in the capacity of being President of Society for approval of frozen list of Society along with list of 125 Members, Affidavits of 125 Members, List of 60 resigned Members, List of 109 enrolled Members, Resolutions, election record, proof of dispatch of letters to the Members and Affidavit of Secretary. As such, Maha Nand Sharma was not the President of Society, as on 10.02.1999 but despite that, he had signed the said letter, list of 125 Members, list of enrolled and resigned Members, as President of the Society. His signatures on the said documents were confirmed by the Report from GEQD/ Shimla.
23.16. The above-mentioned list of 125 Members was also certified by Vice-President and Secretary of Society in Question. Amit Kumar Sharma and Misri Lal Bhardwaj who were shown as Vice-President and Secretary of Society, in the proceedings before the office of RCS, denied that they were Members of said Society, besides denying their signatures on the list of 125 Members. 23.17. Some of the Affidavits, Membership Letters, Resignation Letters and Minutes of Resolution were prepared by Ashwini Sharma and Ashutosh Pant. GEQD/ Shimla, in its Report, confirmed the same.
CBI Case No.189/2019 Page 28 of 59123.18. Further, in the said list of Society, furnished before the office of, persons namely; Misri Lal Bhardwaj, Shyam Bhardwaj, Papkesh Bhardwaj, Sachin Sharma, Puneet Sharma, Manoj Subudhi, Amit Sharma, Vijay Sharma, Jagbir Singh, Ram Niwas, Rakesh Dabas, Binni Vats, Anil Sharma and Dhan Singh, were shown as Members of Society but they denied the same and also the fact that they had signed on applications and affidavits etc. 23.19. It was also revealed during investigation that Karamvir Singh had noted on the note-sheet of file of RCS on 18.02.1999, thereby proposing to cancel the order for winding up of Society with prior approval of Hon'ble Minister concerned and marked it to Assistant Registrar, South [in short 'AR (S)']. The then AR (S) namely B.M. Sethi noted :-
"Kindly see the details from page 13/N to 16/N. Action as 'A' may be approved, subject to the condition that Audit of the Society is completed and fresh election is conducted by appointing Election Officer from the department".
23.20. Thereafter, B.M. Sethi marked it to DRCS (South), who in turn, marked it to N.K. Sharma, the then Joint Registrar and from N.K. Sharma, it was marked to the then Registrar, Cooperative Societies namely Gopal Dikshit.
23.21. On 26.02.1999, the then RCS namely Gopal Dikshit noted on page 15 (N) of the note-sheet :-
"The matter has been examined in detail on page 13/N to 16/N and in view of the decision, taken in the first meeting of the Working Committee of Delhi Cooperative CBI Case No.189/2019 Page 29 of 591 CBI vs. B.M. Sethi & Ors.
Development Board under the Chairmanship of Hon'ble Chief Minister on 01.05.1998 that each and every case of liquidated Society should be examined strictly on merit and put up to the Minister with recommendation before reviving the Society. The present case has been examined on merit and put up for consideration of the Competent Authority as well as for consideration of approval of the Hon'ble Development Minister".
23.22. Finally, the proposal of revival of the Society was approved by Sh. Yoganand Shastri, the then Minister for Development, Food and Supplies on 20.04.1999. Subsequently, an order for revival of Society was passed by Registrar, Cooperative Societies vide F.No.47/ NGH/917/Coop./S/202-207 dated 26.04.1999, subject to certain conditions like; Society shall get all pending Audit completed within one month; that Society shall get the list of Members verified by the RCS within two month; that Society shall abide by all the provisions of Coop. Act/ Rules and Directives, issued by the department from time to time and that election of Society shall be conducted by an Election Officer, appointed by the RCS Department within one month.
23.23. In May 1999, Maha Nand Sharma attended the office of RCS in connection with the approval of general list of Members of Society and also submitted an affidavit. In token of attending the said office, he signed on page 18/N of the note-sheet of RCS file. Said signatures were confirmed by GEQD/ Shimla.
23.24. After revival of Society, Smt. Urmila Gupta, the then Head Clerk as Senior Auditor submitted an Audit Note with main CBI Case No.189/2019 Page 30 of 591 CBI vs. B.M. Sethi & Ors.
objection / suggestions of said Society during the period from 31.05.1999 to 01.06.1999. The balance-sheet, certificate of cash etc., attached with the said Audit Note were signed by Maha Nand Sharma as President, though he was elected as President, later on, on 05.06.1999 in the election meeting, conducted by Narender Kumar. Signature of Maha Nand Sharma was confirmed by GEQD/ Shimla. One Narayan Singh, the then Assistant Registrar (Audit) confirmed that Audit of records of Society for the period 1985-86 and 1998-99 was done by Smt. Urmila Gupta and he has received Audit Report from Smt. Urmila Gupta along with check- list in three sets. He identified the signatures of Smt. Urmila Gupta and had counter-signed on the check-list on 21.06.1999, after ensuring that Audit fees was deposited.
23.25. Thereafter, Society wrote a letter dated 05.07.1999 to RCS regarding compliance of objections, pointed out in the Audit Report. The signatures of Secretary and Treasurer of the Society on the said Audit Report were not genuine signatures of said Secretary and Treasurer. These facts indicated connivance of Smt. Urmila Gupta with Maha Nand Sharma.
23.26. Further, it was found during investigation that Narender Kumar, who was working as a Clerk in the office of RCS was appointed as Election Officer, for holding election of Society in Question. He submitted a false Report dated Nil, stating that election was held on 05.06.1999. Along with said Report, he enclosed copy of Minutes of Special GBM, recorded in the CBI Case No.189/2019 Page 31 of 591 CBI vs. B.M. Sethi & Ors.
Proceedings Register of the Society. Those Minutes were signed by Narender Kumar, on each page and those Minutes were dated 07.06.1999. Various persons namely; K. Manoj Subudhi, Shyam Bhardwaj, Puneet Sharma, Amit Kumar Sharma, Papkesh Kumar Bhardwaj, Misri Lal Bhardwaj, Sachin Sharma and Vijay Sharma, were shown as Members, who had attended said meeting on 05.06.1999 but they denied the fact that they were ever Members of Society in Question. They also denied the factum of signing said Minutes, as token of their attendance. As per said false meeting, Maha Nand Sharma and Amit Sharma were shown as elected President and Vice President respectively. Sachin Sharma, Manoj Vats, Misri Bhardwaj, Ms. Dayawati and Ms. Digambeshwari were shown as persons who were elected as Managing Committee Members. With regard to said Minutes of Meeting, GEQD/ Shimla opined that Ashwini Sharma had written the names of Members and had signed for one of the Member namely Anju. It was also opined that Maha Nand Sharma had signed in token of having attended said meeting.
23.27. It was also revealed that Ashwini Sharma had written Minutes of Meeting dated 08.08.1985, 12.09.1985, 10.10.1985, 07.11.1986, 05.12.1986, 09.01.1988, 13.02.1988, 13.08.1988 and 10.09.1988 in the Proceedings Register of Society. Photocopies of the said Minutes were enclosed with letter dated 10.02.1999, submitted by Maha Nand Sharma with RCS for approval of freeze list of Members. Some of the Managing Committee Members like; I.J. Kalucha, Ratish Maurya, D.N. Gandhi, stated that Sudarshan CBI Case No.189/2019 Page 32 of 591 CBI vs. B.M. Sethi & Ors.
Tandon used to obtain the signatures of the Managing Committee Members without Minutes having been written, in order to show that meeting was so held.
23.28. After the Audit and election of Society, one B.K. Grover, the then Head Clerk gave an exhaustive note on 14.07.1999 in the note-sheet regarding compliance of the conditions which had to be complied with in terms of Revival Order of Society. He recommended approval of list of 125 Members for further transmission to DDA for allotment of land. In his note, he mentioned that he had verified the records of the Society. Said B.K. Grover and B.M. Sethi, did not check the records of the Society and had wrongly recommended approval of freeze list of 125 Members, though, as per rules, only 90 were eligible.
23.29. B.M. Sethi, the then Assistant Registrar (South) intimated Assistant Registrar (Policy), Office of RCS, vide letter No. F.47/ NGH/917/Coop./ South/389 dated 14.09.1999, that Competent Authority had approved freeze list of 90 Members of the Society, which was accompanied with the said list of Members in duplicate for further transmission to DDA (Group Housing) for allotment of land to the Society. Said list of 90 Members was certified by Maha Nand Sharma, as President of Society. GEQD/ Shimla confirmed that B.K. Grover had signed the said list in token of having verified it. That list was also signed by B.M. Sethi, the then Assistant Registrar along with Vice President namely Amit Kumar Sharma and Secretary Misri Lal Bhardwaj, who were so CBI Case No.189/2019 Page 33 of 591 CBI vs. B.M. Sethi & Ors.
projected. Said facts established connivance of Maha Nand Sharma, B.M. Sethi and B.K. Grover.
23.30. Investigation further revealed that Pankaj Madan and his brother Vikas Madan, after learning that their names did not figure in the approved above-mentioned freeze list of Members of Society, had a dispute with Maha Nand Sharma. In consequence thereof, all the records of Society were taken over by Pankaj Madan and Vikas Madan from Maha Nand Sharma and both of them started running the Society.
23.31. Two letters dated 21.10.1999 and 16.11.1999 were sent by Society, vide which names of 10 & 15 resigned Members respectively, were given to the office of RCS for approval. On 26.12.1999, Society sent a list of 25 new Members for approval by RCS, in which, names of Pankaj Madan, Vikas Madan and their father late C.M. Madan, besides other names were mentioned. Similarly, on 27.12.1999, another list was sent by Society, mentioning 25 resigned Members, for approval by RCS. In this regard, Satish Maurya, Inderjeet Kalucha, Raj Kumar, Ratish Maurya and Yatish Maurya who were shown as Members who had resigned from the Society, denied that they had signed on their respective resignation letters. GEQD/ Shimla confirmed that Satish Maurya, Inderjeet Kalucha and Raj Kumar had not signed the resignation letters, which were in their names.
CBI Case No.189/2019 Page 34 of 59123.32. GEQD/ Shimla also opined that Maha Nand Sharma had attested the resignation letters of D.N. Gandhi, Misri Lal Bhardwaj, G. Bhardwaj, Shyam Bhardwaj, Papkesh, Sachin Sharma, Puneet, Dayanand Sharma, Dushyant Sharma, Manoj Subudhi, V. Bhardwaj, Vijay, Amit Sharma, Jagbir Singh, Nirmala, Roopender Gahlaut, Ram Niwas, Rakesh Dabas, Binni Vats, Vijay, Anil Sharma, Anand Sharma, Anju, Naresh and Vikram Singh. Said government organization also confirmed that resignation of D.N. Gandhi, Ram Niwas, Anil Sharma, Anand Sharma and Vikram Singh were signed by Ashwini Sharma. It confirmed the connivance of Maha Nand Sharma and Ashwini Sharma. Rest of the persons, mentioned above, denied that they were even Members of Society in question, besides denying their signatures. GEQD/ Shimla, further opined that Sudarshan Tandon had accepted the resignation letters in the name of Satish Maurya, Inderjeet Kalucha, Raj Kumar and Ratish Maurya, under his signatures. Those persons denied that they had ever resigned from their primary membership in Society in Question, besides denying their signatures against their names in the resignation letters.
23.33. Investigation also revealed that Society in Question was maintaining its accounts in three banks viz., Delhi State Cooperative Bank Limited, South Extension, New Delhi (in short 'DSC Bank'), Global Trust Bank Limited, which later on merged with Oriental Bank of Commerce (in short 'OBC Bank') and State Bank of India, Friends Colony, New Delhi (in short 'SBI Bank').
CBI Case No.189/2019 Page 35 of 59123.34. Society had Account No.137 in DSC Bank, which was opened on 20.05.1984. Record revealed that authorized signatories who can use the said account, were R. Prasad (President), Sudarshan Tandon (Secretary) and Ratish (Treasurer). That account was active but it was not operated since 01.09.1997. Balance in the said account, as on 10.03.2007, was Rs.22,374.95 (Rupees Twenty Two Thousand Three Hundred Seventy Four and Ninety Five Paisa).
23.35. Society had Account No.17000111335 in Global Trust Bank, which was opened on 26.02.2002. That bank later on merged with OBC Bank in August 2004. That account was opened by Vijay Thakur (President), Vikas Madan (Secretary), Poonam Awasthi (Treasurer) and Narinder Dhir (Executive Member), who were authorized signatories. That bank account was opened by Vijay Thakur in connivance with Vikas Madan, fraudulently as Vijay Thakur had signed various documents for opening said account in the capacity of being President of Society, though he was never elected as President of the said Society.
23.36. In SBI, Society opened Account No.75066, on 12.04.2003. It was opened by Narinder Dhir, Vikas Madan and Smt. Poonam Awasthi as President, Secretary and Treasurer respectively of Society. They were also authorized signatories, in the said capacities.
CBI Case No.189/2019 Page 36 of 59123.37. Delhi Development Authority (in short 'DDA'), after receiving initial payment of Rs.86,73,630/-, from Society in Question, had issued a demand-cum-allotment letter No.F.7(15) 2001/GH/DDA/868 dated 13.02.2003, in favour of Society in Question.
23.38. Further, it was revealed that Society in Question had paid a total amount of Rs.4,34,51,592/- to DDA, during the period from 2002 to 2006. Said amount was paid by Society, through six challans, as mentioned below :-
S.No DD Number Issuing Bank Challan Amount
with Date Number with
Date
1. 942557 dated Global Trust, CP, 78660 dated Rs.86,73,630/-
27.02.2002 for New Delhi (now 27.02.2002
Rs.56,73,630/- OBC)
328339 dated Indus Indl., Nehru
27.02.2022 for Place, New Delhi
Rs.30,00,000/-
2. 742015 dated Citi Bank, Nehru 170816 dated Rs.1,56,39,000/-
28.04.2003 for Place, New Delhi 30.04.2003
Rs.6,00,000/-
052215 dated SBI, Friends
28.04.2003 for Colony, New Delhi.
Rs.7,29,500/-
112133 dated Bombay
30.04.2003 for Merchantile Bank
Rs.1,43,09,500/-
3. 092693 dated UBI, Safdarjung 170834 dated Rs.94,922/-
30.04.2003 for Development Area, 01.05.2003 Rs.94,922/- New Delhi
4. 052698 dated SBI, Friends 32487 dated Rs.85,600/-
24.06.2003 for Colony, New Delhi. 24.06.2003 Rs.85,600/-
CBI Case No.189/2019 Page 37 of 5915. 135020 dated Bombay 72182 dated Rs.1,80,38,500/-
14.11.2005 for Merchantile Bank 16.11.2005 Rs.1,80,38,500/-
{loan}
6. 618647 dated OBC, CP, New 10604 dated Rs.9,19,940/-
24.01.2006 for Delhi. 24.01.2006 Rs.2,26,750/-
618648 dated OBC, CP, New
24.01.2006 for Delhi
Rs.6,94,204/-
Rs.4,34,51,592/-
23.39. Further, Society secured a loan of Rs.3,23,48,000/- from Delhi Cooperative Housing Finance Corporation Limited, 3/6, Siri Fort Institutional Area, August Kranti Marg, New Delhi.
23.40. It was also found during investigation that Society had paid an amount of Rs.44,90,000/- through 20 cheques between 04.11.2004 to 03.01.2006, to Pankaj Madan through its bank account, maintained in OBC Bank, though Pankaj Madan was not a Member of the Society, as he had already resigned, by then. Similarly, Society paid Rs.16,50,000/- to Vikas Madan, on five occasions, without any valid cause. It signified the fact that amount paid to DDA through bank, was financed by Pankaj Madan and Vikas Madan only and that Society was being run by said two persons. Most of the cheques were signed by Vikas Madan and Poonam Awasthi. Narinder Dhir had signed two cheques as an authorized signatory. Narinder Dhir was the father-in-law of Pankaj Madan.
23.41. Investigation also revealed that payment to DDA was also made through two cheques, issued by a non-Member namely CBI Case No.189/2019 Page 38 of 591 CBI vs. B.M. Sethi & Ors.
Narender Shah. He had paid Rs.36 Lacs from his bank namely Indus Industrial & City Bank. Further, one Ashok Sood had paid Rs.94,722/- through one cheque, which was drawn on his bank account which was in UBI Bank. Names of said non-Members were not mentioned in the Proceedings Register of Society in Question.
23.42. Investigation, therefore, established that Vikas Madan, Poonam Awasthi and Narinder Dhir had opened a bank account in the name of Society in OBC Bank, Connaught Place Branch, in connivance with Vijay Thakur who projected himself to be President of Society and had signed in said capacity, though he was not. Those persons had signed cheques for making payment to Pankaj Madan, without approval of the Society.
24. Based on said investigation, it was found that:-
24.1. Offences under Section 120-B IPC read with Section 420, 468, 471 Indian Penal Code, 1860 (in short 'IPC') and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (in short 'PC Act') were committed by Accused persons namely B.M. Sethi (A-1), Karamvir Singh (A-2), Narender Kumar (A-3), Maha Nand Sharma (A-4), Pankaj Madan (A-5), Ashwani Sharma (A-6), Ashutosh Pant (A-7), Sudarshan Tandon (A-8), Urmila Gupta (A-9), B.K. Grover (A-10), Manoj Vats (A-11), Vijay Thakur (A-12), Vikas Madan (A-13), Poonam Awasthi (A-14) and Narinder Dhir (A-15).CBI Case No.189/2019 Page 39 of 591
24.2. Further, substantive offences under Section 13(2) read with Section 13 (1)(d) of PC Act were committed by Accused persons namely B.M. Sethi (A-1), Karamvir Singh (A-2), Narender Kumar (A-3), Urmila Gupta (A-9) and B.K. Grover (A-10).
24.3. Further, it revealed that substantive offence under Section 420 IPC was committed by Accused persons namely Maha Nand Sharma (A-4), Pankaj Madan (A-5), Ashwani Sharma (A-6), Ashutosh Pant (A-7), Manoj Vats (A-11), Vijay Thakur (A-12), Vikas Madan (A-13), Poonam Awasthi (A-14) and Narinder Dhir (A-15) and that;
24.4. Substantive offences under Section 468 & 471 IPC were committed by Accused persons namely Maha Nand Sharma (A-4), Ashwani Sharma (A-6) and Ashtosh Pant (A-7).
24.5. Further substantive offence under Section 468 IPC was committed by Accused Sudarshan Tandon (A-8).
24.6. Charge-sheet was accompanied with original Sanction Orders under Section 19 of PC Act, 1988 with respect to Accused persons namely Karamvir Singh (A-2) and Narender Kumar (A-3), who were working in Directorate of Education, Delhi and in the Office of Commissioner of Industries, Delhi respectively. Those Sanction Orders were issued by Competent Authority.
24.7. After collecting evidence, in support of above- mentioned facts, based on oral statements, documents and Report CBI Case No.189/2019 Page 40 of 591 CBI vs. B.M. Sethi & Ors.
from GEQD/ Shimla, above named Accused persons were charge- sheeted by CBI for the offences, mentioned above.
25. It is relevant to mention here that Accused Gopal Dixit (A-16) was charge-sheeted by CBI, by putting him in column no.12. Court summoned him vide order dated 10.07.2008.
25.1. After filing of charge-sheet, Court took cognizance of offences, vide order dated 10.07.2008. Accused persons were then summoned by the Court.
Charge against Accused Persons
26. Subsequently, proceedings under Section 207 Code of Criminal Procedure, 1973 (in short 'CrPC') were concluded and thereafter, arguments on Charge were addressed. Vide detailed order dated 12.09.2018, Accused Ramesh Bajaj (A-17) was discharged. It is relevant to mention here itself that Accused B.M. Sethi (A-1) had expired prior to passing of Order on Charge. Vide the said order, it was also concluded that :-
26.1. Charge under Section 120-B read with Sections 420/468/471 IPC and Section 13(2) read with Section 13(1)(d)(iii) PC Act was liable to framed against A-2 to A-16 (named above).
26.2. Further, Charge under Section 13(2) read with Section 13(1)(d)(iii) of PC Act was liable to be framed against A-2, A-3, A-9, A-10 & A-16.CBI Case No.189/2019 Page 41 of 591
26.3. Further Charge under Section 420 IPC was liable to be framed against A-4, A-5, A-6, A-7, A-8, A-11, A-12, A-13, A-14 & A-15.
26.4. Further additional Charge under Section 468/471 IPC was liable to be framed against A-6, A-7 & A-8 whereas additional Charge under Section 471 IPC was liable to be framed against A-4.
26.5. Accordingly, said Accused persons were formally charged on 26.09.2018. Accused persons pleaded not guilty and claimed trial.
26.6. Matter was then fixed Prosecution Evidence.
Evidence led by Prosecution
27. Prosecution examined 53 witnesses in total.
28. PW1 - Inderjeet Kalucha deposed in his testimony that he had taken membership of Society in Question, in 1984-85 through Accused Sudarshan Tandon (A-8). He had attended only one meeting of the Society in the year 1984-85 and had not attended any other meeting of Society. He identified his name at S.No.9 in Membership Register Ex.PW1/A (D-7 page 4) which noted his signature at point Q-440. As per him, he had never resigned from the Society and had never given any Resignation Letter. After seeing Resignation Letter Ex.PW1/B (D-11 page 9), he denied that he had signed the said document at point Q-669.
CBI Case No.189/2019 Page 42 of 591After seeing the Proceedings Register of the Society Ex.PW1/C (D-8), he deposed that though his signatures appeared at points X1 to X14 on the Minutes of various meetings but he had never attended those meetings. As per him, Accused Sudarshan Tandon (A-8) had obtained his signatures on those Minutes, afterwards. Further, he was put an Affidavit (D-5 page 9), which he confirmed, to have submitted at the time of becoming Member of Society in Question. Same was marked as Ex.PW1/D.
29. PW2 - Daya Nand Gandhi deposed that he had taken membership of Society in Question in 1983 through one Mr. Maurya, who was his senior in the office. He had paid Rs.110/- as membership fee for which he received a proper receipt. He had attended one or two meetings of the Society. He identified Receipts dated 09.10.1983 & 18.06.1984 (D-14) as Ex.PW2/A (colly), which were handed over to him by Accused Sudarshan Tandon (A-8). Further, after seeing Membership Register Ex.PW1/A (D-7 page 14), he deposed that his name was mentioned at S.No.37, bearing his signatures at point A. The page where he had found his name and signature in Membership Register was exhibited as Ex.PW2/B. He deposed that he had never resigned from the membership of Society in Question till date. After seeing the Resignation Letter Ex.PW2/C (D-11 page 36), where his signature appeared at point Q-687A, he deposed that he had neither submitted said Resignation Letter nor had signed the same at said point. Further, he deposed, after seeing Proceedings Register Ex.PW1/C (D-8) that though his signature appeared at points Y1 to CBI Case No.189/2019 Page 43 of 591 CBI vs. B.M. Sethi & Ors.
Y8 but he had never attended those meetings. As per him, he had signed those Minutes afterwards in the office of Society. Mr. Maurya had asked him to visit the office of Society, for the said purpose. He identified original Receipts Ex.PW2/A (colly), which he had given to IO in CBI office. Those receipts along with two letters were seized by IO through Production Memo Ex.PW2/D which mentioned his signature at point A. As per him, he had never received back his membership fee and was not allotted any flat in Society in Question. Further, he was put an Affidavit (D-5 page 37) which he confirmed, to have submitted at the time of becoming Member of Society in Question. Same was marked as Ex.PW2/E.
30. PW3 - Yatish Maurya deposed in his testimony that he had taken membership of Society in Question in 1983 through his brother Ratish Maurya. He was acquainted with Accused Sudarshan Tandon (A-8) as his office and that of Accused Sudarshan Tandon (A-8) were in same building. He attended only one meeting of Society. He identified his name at S.No.36 in Membership Register Ex.PW1/A (D-7 page 13) bearing his signature at point A. The page where he had found his name and signature in Membership Register was exhibited as Ex.PW3/A. 30.1. PW3 further deposed that he had never resigned from the membership in Society and denied the fact that he had signed on Resignation Letter Ex.PW3/B (D-11 page 35) at point Q-687. He also identified his signatures at point Z1 and Z2 on the Minutes of Meeting, recorded in Proceedings Register Ex.PW1/C (D-8).
CBI Case No.189/2019 Page 44 of 59131. PW4 - Satish Maurya deposed in his testimony that he had taken membership of Society in Question in 1983 through his brother Ratish Maurya. He was also acquainted Accused Sudarshan Tandon (A-8). He identified his name at S.No.6 in Membership Register (D-7 page 3) which he signed at point A. The page where his name and signature figured in the Membership Register was exhibited as Ex.PW4/A. He denied that he had resigned from the membership of Society in Question. He denied that he had signed Resignation Letter Ex.PW4/B (D-11 page 6) at point Q-684 and also the fact that he had submitted the said letter. He identified his signatures at point A1 & A2 in Proceedings Register Ex.PW1/C (D-8) but deposed that he had not attended the meeting dated 19.05.1985.
32. PW5 - Ratesh Maurya deposed that he had taken membership of Society in Question in 1983 through Accused Sudarshan Tandon (A-8), who was a Property Dealer. He confirmed that he was one of the Promoter Member of Society. That Society was created by him, Accused Sudarshan Tandon (A-8) and other Members. He was acquainted with Ramesh Bajaj (A-17) as Ramesh Bajaj used to visit Accused Sudarshan Tandon (A-8). He was elected as Treasurer in the first meeting, in the year 1983. He had attended only two meetings of Society but could not attend subsequent meetings. He confirmed his name at S.No.13 in Membership Register (D-6 page 6) Ex.PW1/A. The page where he signed at point A is Ex.PW5/A. He denied that he had submitted his Resignation Letter or had signed Resignation Letter (D-11 page CBI Case No.189/2019 Page 45 of 591 CBI vs. B.M. Sethi & Ors.
13) Ex.PW5/B at point Q-676. He identified his signatures at points B1 to B27 in Proceedings Register Ex.PW1/C (D-8) but denied the fact that he had attended the said proceedings/ meetings. As per him, Accused Sudarshan Tandon (A-8) used to obtain his signatures after conclusion of said proceedings/ meetings. He had also signed on certain blank papers at the instance of Accused Sudarshan Tandon (A-8). He was later on told by Accused Sudarshan Tandon (A-8) that Society was cancelled. He confirmed that Accused Sudarshan Tandon (A-8) was the Secretary of the Society. He also deposed that he could identify the signatures of Accused Sudarshan Tandon (A-8).
33. PW6 - Raj Kumar deposed that he had become Member of Society in Question in the year 1983 through his landlord Shravan Kumar, who had taken him to Accused Sudarshan Tandon (A-8) for said purpose. Further, he identified his name at S.No.12 in Membership Register Ex.PW1/A (D-7 page 5) which bears his signatures at point A. The page which noted his said signature was Ex.PW6/A. He also confirmed that he had not resigned from Society in Question till date and had never submitted any Resignation Letter. He denied the contents of his alleged Resignation Letter (D-11 page 12) Ex.PW6/B. He denied the fact that he had ever attended any meeting of Society. He affirmed that he had signed at points C1 and C2 in Proceedings Register (D-8) Ex.PW1/C. He only had attended one meeting. He identified his specimen signatures, taken by CBI at point S-208 to S-211 in Ex.PW6/C (colly).
CBI Case No.189/2019 Page 46 of 59134. PW7 - Sachin Sharma deposed that he had become Member of Society in Question, about 18 to 20 years back, through his maternal uncle Sunil Bhardwaj. He was acquainted Accused Maha Nand Sharma (A-4), who was his maternal uncle (Mausa Ji).
34.1. PW7 was cross-examined by Ld. Sr. PP for CBI as he was found resiling from his previous statement, recorded before CBI. In the said cross-examination, he admitted his signatures at point A in documents viz., Membership Application Form (D-10 at page 108), Ex.PW7/1, Affidavit dated 10.02.1999 (D-6 at page 180/C-181/C) Ex.PW7/2. He deposed that his specimen signatures were obtained by CBI during investigation which he identified at point S-267 to S-271 Ex.PW7/3 ((D-51).
34.2. PW7 confirmed that his statement was recorded by CBI. He denied the fact in his statement, recorded by CBI, he had mentioned that he was never a Member of Society in Question, despite being confronted with his previous statement dated 07.11.2006, recorded by CBI under Section 161 CrPC. He further confirmed that he had not denied his signatures on the aforesaid Membership Application Form, Affidavit and Minutes of Meeting dated 27.01.1999, when his statement was recorded by CBI. He was confronted with his previous statement under Section 161 CrPC dated 07.11.2006 where those facts were mentioned. He denied that he was deposing falsely at the instance of Accused Maha Nand Sharma (A-4) who was his maternal uncle and that he was won over by said Accused.
CBI Case No.189/2019 Page 47 of 59135. PW8 - K. Manoj Kumar Subudhi deposed that he had not become Member of Society in Question. He denied his signature at point A on Membership Application Form Ex.PW8/1 (D-10 at page 21). He identified his signatures at points A & B on the Affidavit dated 10.02.1999 Ex.PW8/2 (D-6 at page 200-201). He did not attend any meeting of Society and denied his signature at point A in Minutes of Meeting dated 27.01.1999 in Proceedings Register Ex.PW1/C (D-8 at page 85). He was acquainted with Accused Maha Nand Sharma (A-4), whom he identified in the Court.
35.1. PW8 was cross-examined by Ld. Sr. PP for CBI as he was found resiling from his previous statement, recorded by CBI. In the said cross-examination, he admitted that he had not submitted any document to Society in Question as he had not become its Member. He had signed Affidavit Ex.PW8/2 on the asking of Sunil Bhardwaj who was his neighbour for about 10 years and due to said reason, he did not ask Sunil Bhardwaj as to why Sunil Bhardwaj was taking his signatures on the Affidavit. Neither did he go through the said Affidavit nor Sunil Bhardwaj read the same to him. He denied signing at point A in Minutes of Meeting dated 27.01.1999 (D-8 at page 85) Ex.PW1/C.
36. PW9 - Rakesh Dabas deposed that he was working in Hotel City Park, Mundka, New Delhi and neither had become Member of Society in Question nor had heard about said Society. He did not admit his signatures on Affidavit dated 10.02.1999 CBI Case No.189/2019 Page 48 of 591 CBI vs. B.M. Sethi & Ors.
Ex.PW9/1 (D-6 page 254/C & 255/C) at points A and B. He denied that he had signed Resignation Letter (D-12 page 55) Ex.PW9/2 at point A or had submitted said Resignation Letter. Those documents, though, were in his name, but he denied the same.
37. PW10 - Ram Niwas deposed that he had never become Member of Society in Question and never heard about said Society. He denied his signature at point A on Membership Application Form Ex.PW10/1 (D-10 at page 46) as well as on the Affidavit dated 10.02.1999 Ex.PW10/2 at points A and B (D-6 at page 252/C & 253/C). He also denied his signature on a Resignation Letter Ex.PW10/3 at point A (D-12 at page 54) All the said documents were shown as documents, executed by this witness, which this witness denied.
38. PW11 - Narender Kumar Awasthi deposed in his testimony that he was working in a private company from where he had retired. He had become Member of Society in Question in the year 1999/2000, at the instance of one C.M. Madan, who had come to his showroom for purchasing a vehicle and who had suggested him to become Member of Society in Question. He paid Rs.2 Lacs to Mr. Madan for becoming Member of Society in Question. He admitted his signature at point A in Membership Application Form Ex.PW11/1 (D-10 page 73). He admitted his signatures at points A & B in his Affidavit dated 08.02.1999 Ex.PW11/2 (D-6 at page 322/C & 323/C). He also admitted his signatures at points A& B in his another Affidavit dated 24.12.1999 Ex.PW11/3 (D-6 at page CBI Case No.189/2019 Page 49 of 591 CBI vs. B.M. Sethi & Ors.
517/C). He admitted his specimen signatures Ex.PW11/4 (from S-326 to S-330) which CBI had taken during investigation. As per him, neither, he was allotted any flat by Society nor he was repaid Rs.2 Lacs. He tried to contact Mr. Madan but came to know that he had expired. From some other Members of Society, he came to know about pendency of Court case against Society and also that flats would be allotted later on.
39. PW12 - Amit Kumar Sharma deposed that he was an Advocate by profession who was doing practice since 1993. He knew Accused Maha Nand Sharma (A-4) as Accused Maha Nand Sharma (A-4) was cousin of brother-in-law (Saala) of his maternal uncle namely Rajender Sharma. He was not certain about his signatures at point Q-606 in Membership Application Form Ex.PW12/1 (D-10 at page 27), at points Q-301 & Q-302 in Affidavit dated 10.02.1999 Ex.PW12/2 (D-6 at page 213/C) and at point Q-541 in Minutes of GBM dated 27.01.1999 (D-8 at page 35, S.No.8).
39.1. PW12 was cross-examined by Ld. Sr. PP for CBI and was put facts which he had deposed before CBI during investigation, but he continued to remain unsure about those facts. He admitted that he had paid money to Society which was never refunded to him. He deposed that in 1999, stamp paper on which affidavit Ex.PW12/2 was prepared, was purchased by Sunil Bhardwaj. He did not recollect if he had resigned from membership of said Society or name of any Office Bearer of Society or whether CBI Case No.189/2019 Page 50 of 591 CBI vs. B.M. Sethi & Ors.
CBI had made inquiries from him regarding this case. He identified Accused Maha Nand Sharma (A-4) in the Court. He also deposed that his signatures had undergone a change in last 15 or 20 years.
40. PW13 - Anil Sharma deposed that he was an ACP in Delhi Police. Accused Ashwini Sharma (A-6) was his elder brother. As per him, he never had become Member of Society in Question. He denied that he had ever resigned from said Society through Resignation Letter Ex.PW13/1 (D-12 at page 62). He denied his signature at point Q-745 on Resignation Letter. He also denied that he had signed at points Q-334 & Q-335 in Affidavit dated 03.01.1999 Ex.PW13/2 (D-6 at page 269/C).
41. PW14 - Dushyant Vats deposed that he was serving in Delhi Jal Board as Beldar in 1997. He had applied for becoming Member in Society in Question through Sunil Sharma, who was his elder brother. He had taken membership of Society about 20-25 years back. His date of birth was 10.06.1977. He had met Sunil Sharma at his residence in Raj Nagar, New Delhi and had signed an Application Form. He admitted his signature at point Q-635 in Membership Application Form Ex.PW14/1 (D-10 at page 51). He was not allotted any flat by Society and was not returned back the money, he had deposited with Society.
41.1. PW14 further admitted his signatures at point Q-328 & Q-329 in his Affidavit dated 10.02.1999 Ex.PW14/2 (D-6 page 265/C). He did not identify his signatures in Minutes of Meeting CBI Case No.189/2019 Page 51 of 591 CBI vs. B.M. Sethi & Ors.
dated 27.01.1999, Ex.PW14/3 (D-8 at page 87). He deposed that he never resigned from the membership of Society in Question.
41.2. Since, PW14 resiled from his statement, recorded before CBI, so he was cross-examined by Ld. Sr. PP for CBI. During said cross-examination, he admitted that he had participated in one of the meetings of Society in Question and that one of the Members who were present in said meeting was, Accused Maha Nand Sharma (A-4), whom he identified in the Court. He admitted that he was summoned by CBI, in connection with this case in 2006. He denied the suggestions that he never became Member of Society in Question and that his signatures on the documents were forged. He denied that he was deposing falsely.
42. PW15 - Jagbir Singh deposed that he had never become Member of Society in Question. He denied his signatures in documents viz., Membership Application Form Ex.PW15/1 (at point Q-625, D-10 at page 43), Affidavit dated 10.02.1999 Ex.PW15/2 (at point Q-313 & 314 in D-6 at page 245/C) and Resignation Letter Ex.PW15/3 (at point Q-729, in D-12 at page
50).
43. PW16 - Vijay Sharma deposed that he knew Accused Maha Nand Sharma (A-4) as said Accused was his co-brother-in- law (Saadu). He further deposed that he was an illiterate person, who can write his name in Hindi. He denied his signatures in documents viz., Membership Application Form Ex.PW16/1 (at CBI Case No.189/2019 Page 52 of 591 CBI vs. B.M. Sethi & Ors.
point Q-618, D-10 at page 37), Affidavit dated 10.02.1999 Ex.PW16/2 (at points A & A1 in D-6 at page 233/C) and Minutes of Meeting dated 27.01.1999 Ex.PW16/3 (at point X in D-8 at page
86).
44. PW17 - Papkesh Kumar Bhardwaj deposed that he was working as a Driver in Telcom Engineering Centre, Janpath, New Delhi and knew Accused Maha Nand Sharma (A-4) as said Accused was his brother-in-law (Jija). He became Member of Society in Question, 25 years ago through his late younger brother Sunil Kumar Bhardwaj. He had studied upto 7th class and could sign in English script. He was not allotted any flat in Society in Question and did not resign from membership of said Society. He had paid Rs.100/- to Sunil Bhardwaj as membership fee but did not receive any receipt from him.
44.1. PW17 identified his signature at point Q-578 in Membership Application Form Ex.PW17/1 (D-10 at page 7). He also identified his signatures at point Q-277 & Q-278 in Affidavit dated 10.02.1999 Ex.PW17/2 (D-6 at page 173/C). He could not identify his signatures on the page Ex.PW16/3 in the Proceedings Register (D-8 at page 86).
44.2. PW17 was cross-examined by Ld. Sr. PP for CBI, in which, he deposed lack of his knowledge with regard to Accused Karamvir Singh (A-2) or Accused Maha Nand Sharma (A-4) or any other Member or Office Bearer of Society. He was not aware about CBI Case No.189/2019 Page 53 of 591 CBI vs. B.M. Sethi & Ors.
office address of Society or the proceedings of said Society. He only knew that Accused Maha Nand Sharma (A-4) was an Office Bearer of the Society. He admitted that he was summoned by CBI in connection with this case and from him, CBI had made inquiry.
45. PW18 - Shyam Sunder Bhardwaj deposed that he was working a Taxi Driver till 2016 and he knew Accused Maha Nand Sharma (A-4) as said Accused was his brother-in-law (Jija). He became Member of Society in Question, 20 years ago through his late brother Sunil Kumar Bhardwaj. He was not allotted any flat in Society in Question and did not resign from membership of said Society. He had paid Rs.100/- to Sunil Bhardwaj as membership fee but did not receive any receipt from him.
45.1. PW18 identified his signature at point Q-576 in Membership Application Form Ex.PW18/1 (D-10 at page 6). He also identified his signatures at point Q-274 & Q-275 in Affidavit dated 10.02.1999 Ex.PW18/2 (D-6 at page 171/C). He identified his signature at point Z on the page Ex.PW16/3 in the Proceedings Register (D-8 at page 86).
45.2. PW18 was cross-examined by Ld. Sr. PP for CBI, in which, he deposed lack of his knowledge with regard to Accused Karamvir Singh (A-2). He deposed that he had attended one of the meetings of Society, which was attended by 10-12 Members. He was not made aware about the proceedings of meeting. No writing work was done in his presence. None of his brothers was present in CBI Case No.189/2019 Page 54 of 591 CBI vs. B.M. Sethi & Ors.
the said meeting. He did not participate in any elections of Society. He never resigned from membership in Society in Question. His specimen signatures were taken by CBI during investigation when inquiries were made from him.
46. PW19 - Naresh Kumar, deposed in his testimony that in the year 2000, he was working as Peon in M/s. Paul Textiles, Katra Ashrafi, Chandni Chowk, Delhi. That he had become Member of Society in Question through his maternal uncle namely Ved Prakash Aggarwal and had paid membership fee of Rs.100/- to him. Later on, he paid further sum of Rs.12,000/- to the Society. He resigned from membership of said Society and got his money back. He never attended any meeting of Society. He identified his signatures in Membership Application Form Ex.PW19/1 (at point A, D-10 page 67) and in his Affidavit dated 08.02.1999 Ex.PW19/2 (at points A1 & A2, D-6 page 311/C).
47. PW20 - Mool Chand deposed in his testimony, in 1997, he was in the factory of his father-in-law in Delhi. In that year, he had taken membership of Society in Question through his brother- in-law (Jija) namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society in the year 2004 or 2005 and had received back his money. He never attended meeting of the Society. He identified his signature in Membership Application form Ex.PW20/1 (at point A, D-10 page 59) and in his Affidavit dated 08.02.1999 Ex.PW20/2 (at points A1 & A2, D-6 page 295/C).
CBI Case No.189/2019 Page 55 of 59148. PW21 - Sudhir Sharma deposed that in 1997, he was a student, pursuing course in ITI. In that year, he had taken membership of Society in Question through his neighbour namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never the Society. He identified his signature in Membership Application Form Ex.PW21/1 (at point A, D-10 page 61) and in his Affidavit dated 08.02.1999 Ex.PW21/2 (at points A1 & A2, D-6 page 299/C).
48.1. PW21 also deposed that his brother Sunil Kumar Sharma (since expired) had also become Member of said Society and later on, had resigned from said Society. Said brother of PW21 had also received back the money, he had deposited with Society. He confirmed that he can identify the signatures of his said brother. He identified signature of his late brother in Membership Application form Ex.PW21/3 (at point A, D-10 page 60) and in his Affidavit dated 08.02.1999 Ex.PW21/4 (at points A1 & A2, D-6 page 297/C.
49. PW22 - Sushil Garg deposed that in 1998-1999, he was doing a private job. In that year, he had taken membership of Society in Question through his uncle namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never attended CBI Case No.189/2019 Page 56 of 591 CBI vs. B.M. Sethi & Ors.
meeting of the Society. He identified his signature in Membership Application form Ex.PW22/1 (at point A, D-10 page 63) and in his Affidavits dated 08.02.1999 & 24.12.1999 Ex.PW22/2 & Ex.PW22/3 (at points A1 & A2, D-6 page 303/C & 507/C).
50. PW23 - Sunil Kumar Goyal deposed that he had three brothers namely; Anil Kumar, Naresh Kumar and Sushil Kumar. In 1997-1998, he was running a factory at Nehru Gali, New Delhi. He had taken membership of Society in Question through his maternal uncle namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never attended meeting of the Society. He identified his signature in Membership Application form Ex.PW23/1 (at point A, D-10 page 65) and in his Affidavits dated 08.02.1999 & 24.12.1999 Ex.PW23/2 & Ex.PW23/3 (at points A1 & A2, D-6 page 306/C & 509/C).
51. PW24 - Sushil Kumar deposed that he had three brothers namely; Anil Kumar, Naresh Kumar and Sunil Kumar. In 1997-1998, he was doing a private job. He had taken membership of Society in Question through his maternal uncle namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never attended meeting of the Society. He identified his signature in Membership Application form Ex.PW24/1 (at point A, CBI Case No.189/2019 Page 57 of 591 CBI vs. B.M. Sethi & Ors.
D-10 page 66) and in his Affidavits dated 08.02.1999 & 24.12.1999 Ex.PW24/2 & Ex.PW24/3 (at points A1 & A2, D-6 page 309/C & 510/C).
52. PW25 - Anil Kumar deposed that he had three brothers namely; Sushil Kumar, Naresh Kumar and Sunil Kumar. In 1997- 1998, he was running a shop in Jwala Nagar, Delhi. He had taken membership of Society in Question through his maternal uncle namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never attended meeting of the Society. He identified his signature in Membership Application form Ex.PW25/1 (at point A, D-10 page 68) and in his Affidavits dated 08.02.1999 & 24.12.1999 Ex.PW25/2 & Ex.PW25/3 (at points A1 & A2, D-6 page 313/C & 512/C).
53. PW26 - Anuj Goyal deposed that he was doing photography in the year 1997-1998. He had taken membership of Society in Question through maternal uncle of his father namely Ved Prakash Aggarwal, to whom he had paid membership fee of Rs.100/-. Later on, he had paid Rs.12,000/- to the Society. He resigned from the said Society and had received back his money. He never attended meeting of the Society. He identified his signature in Membership Application form Ex.PW26/1 (at point A, D-10 page 69) and in his Affidavits dated 08.02.1999 & 24.12.1999 Ex.PW26/2 & Ex.PW26/3 (at points A1 & A2, D-6 page 315/C & 511/C).
CBI Case No.189/2019 Page 58 of 59154. PW27 - Ashok Sood deposed that in 1999, he had taken membership of Society in Question through Accused Pankaj Madan (A-5) who was his Chartered Accountant. He identified Accused Pankaj Madan (A-5) in the Court correctly. He paid Rs.100/- for the membership initially and later on, had paid Rs.3 Lacs in cash and Rs.94,000/-, through cheque. He had handed over cash amount to Accused Pankaj Madan (A-5). He denied attending any meeting of Society in Question and had no idea about the Office Bearers of the Society.
54.1. PW27 identified his signature in Membership Application Form Ex.PW27/1 (at point A D-10 page 88). He also identified his signatures on the Affidavit dated 08.02.1999 Ex.PW27/2 (at points A & A1 D-6 page 338/C)
55. PW28 - Dr. Harvinder Singh Kukreja had deposed that he was a Doctor by profession. In 1998, he had taken membership of Society in Question, through his patient namely C.M. Madan. He had paid Rs.10,000/-, for the said membership, in cash, either to C.M. Madan or his son Accused Pankaj Madan (A-5). He was not sure as to whether he had received receipt in lieu of said payment. He had attended one or two meetings of Society and on one occasion, had gone to the residence of C.M. Madan for attending meeting. He identified Accused Pankaj Madan (A-5) in the Court, correctly.
CBI Case No.189/2019 Page 59 of 59155.1. PW28 identified his signature in Membership Application Form Ex.PW28/1 (at point A, D-10 page 91). He also identified his signatures on his Affidavit dated 08.02.1999 Ex.PW28/2 (at points A & A1, D-6 page 343/C). He never held any post in the said Society.
56. PW29 - Pradeep Aggarwal deposed that in 1997-1998, he was running a family business of Timber. He along with his father late Sh. Ved Prakash Aggarwal had become Members Society in Question through C.M. Madan, who was a friend of his father. He and his father had paid Rs.12,000/- each to C.M. Madan in cash for becoming Members in said Society. He did not attend any meeting of the Society and did not know the Office Bearers of said Society or the location of said Society. His father had told him of receiving one or two letters from Society, which he had not gone through, as he was not acquainted with English language. His father expired in 2002 and he also resigned from the membership of Society in Question in 2004. He received back entire amount which he had given to Society from Mr. Garg. Further, he deposed that he could sign his name in English language.
56.1. PW29 admitted his signatures in Membership Application Form Ex.PW29/1 (at point A, D-10 page 57). He also identified his signatures on his Affidavit dated 08.02.1999 Ex.PW29/2 (at points A & A1, D-6 page 291/C).
CBI Case No.189/2019 Page 60 of 59156.2. PW29 deposed that he could identify signatures of his father. He identified signatures of his father in documents viz., Membership Application Form Ex.PW29/3 (at point A, D-10 page
64) and Affidavit dated 08.02.1999 Ex.PW29/4 (at points A & A1, D-6 page 305/C).
56.3. PW29 further deposed that his father had made his brother Deepak Aggarwal as Member of Society in Question. His father had made his neighbours Sunil Sharma and Sudhir Sharma as Members of said Society. Further, he had met Accused Pankaj Madan (A-5) at the time of becoming Member of Society in Question, who used to visit his shop along with his father C.M. Madan.
56.4. When cross-examined by Ld. Sr. PP for CBI, PW29 deposed that CBI had made inquiry from him regarding this case. He refuted that he had given statement to CBI, to the effect that he had handed over cash amount of Rs.12,000/- to Accused Pankaj Madan (A-5) in 2000-2001. He knew that Accused Pankaj Madan (A-5) was having his office at Jagriti Enclave but did not know the job said Accused was doing. He denied the fact that in his statement to CBI, he had told that he had received his money from Accused Pankaj Madan (A-5) in 2004. He identified Accused Pankaj Madan (A-5) in the Court and refuted the suggestion that he was deposing falsely for shielding Accused Pankaj Madan (A-5).
CBI Case No.189/2019 Page 61 of 59157. PW30 - Kavinder Garg deposed that in 1998-1999, he had taken membership of Society in Question through C.M. Madan and had paid Rs.100/- as membership fee. He had attended 4-5 meetings of said Society. His father had also become Member of said Society, who expired in the year 2015. He had attended initial meetings at Jagriti Enclave and thereafter Shakurpur.
57.1. PW30 admitted his signatures in Membership Application Form Ex.PW30/1 (at point A, D-10 page 75). He also identified his signatures on his Affidavit dated 08.02.1999 Ex.PW30/2 (at points A & A1, D-6 page 327/C).
57.2. PW30 deposed that he could identify signatures of his father. He identified signatures of his father in documents viz., Membership Application Form Ex.PW30/3 (at point A, D-10 page
74) and Affidavit dated 08.02.1999 Ex.PW30/4 (at points A & A1, D-6 page 325/C).
57.3. PW30 further deposed that Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) were two sons of C.M. Madan.
57.4. Since, PW30 did not depose in terms of prosecution version, so, he was cross-examined by Ld. Sr. PP for CBI. In the said cross-examination, he deposed that Accused Vikas Madan (A-13) had come to his father along with C.M. Madan, 4-5 times, in relation to the work of Society. That his signatures were obtained by CBI on blank papers and his father had deposited all the CBI Case No.189/2019 Page 62 of 591 CBI vs. B.M. Sethi & Ors.
payments with the Society on his behalf. He denied that he had made payments to Accused Vikas Madan (A-13) and that he was deposing falsely to shield Accused Vikas Madan (A-13).
58. PW31 - Anju Sharma deposed that she was the wife of Accused Ashwini Sharma (A-6) and that she had not taken membership of Society in Question. She denied that she had signed on documents viz., Membership Application Form Ex.PW31/1 (at point A, D-10 page 53), Affidavit dated 03.06.1999 Ex.PW31/2 (at points Q-340, Q-341 & Q-342, D-6 page 273/C), Resignation Letter Ex.PW31/3 (at point Q-749, D-12 page 62) and her signature on the page Ex.PW31/4 of Minutes of Meeting dated 05.06.1999 at S.No.20, at point Q-565.
59. PW32 - Harvinder Singh deposed that he remained posted in the office of RCS (South Zone) from November 1998 to July 1999 as a Statistical Investigator. He knew Accused Karamvir Singh (A-2) as said Accused Karamvir Singh (A-2) was posted as UDC in his office. He and Accused Karamvir Singh (A-2) worked in the said office, during said period. One B.K. Grover was also posted as Head Clerk in the said office for the said period. He deposed that he can identify the signatures of Accused Karamvir Singh (A-2) but not that of B.K. Grover. Thereafter, he identified signatures of Accused Karamvir Singh (A-2) at points Y, Y1, Y2, Y3, Y4 & Y5 on pages 7/N to 17/N on the note-sheet file relating to Society in Question (D-4).
CBI Case No.189/2019 Page 63 of 59160. PW33 - Narain Singh deposed in his testimony that he was posted as Assistant Registrar in the office of RCS from October 1998 to September 2000 and had worked in the Audit Branch of said office. Accused Urmila Gupta (A-9) was posted as an Auditor in the said office for the said period and she had worked under him.
60.1. PW33 identified signatures of Accused Urmila Gupta (A-9) on Audit Report Ex.PW33/1 (at points A & A1 at page no.340/C to 349/C in file no.D-5). Further, he deposed that Accused Urmila Gupta (A-9) used to submit her Report in three copies which used to be checked by Head Clerk and said Head Clerk used to produce the Reports before him. Thereafter, he used to counter-sign the Reports. He identified the Audit Report of Accused Urmila Gupta (A-9), forwarded to him by the Head Clerk vide Covering Letter dated 21.06.1999 Ex.PW33/2. He identified signatures of Accused Urmila Gupta (A-9) on the Covering Letter of the said Report at point A.
61. PW34 - Anil Dalal deposed that he was working in Delhi State Cooperative Bank since September 1992. Vide letter dated 09.04.2007, the said bank had forwarded certain documents, mentioned therein to CBI. He deposed that he can identify the signatures of Smt. Anita Rawat at point A, who was the then Manager, as he had worked with her and was conversant with her signatures. The said letter along with documents were identified as Ex.PW34/1 (colly) (D-20).
CBI Case No.189/2019 Page 64 of 59162. PW35 - Balraj Singh deposed that he was posted as Deputy Manager in the Local Head Office of State Bank of India at New Delhi. He remained posted as Clerk in the Okhla Branch of said bank for 11 years, from 1985, from where he was transferred to Nehru Place Branch for next five years. Thereafter, he was transferred to Friends Colony Branch of the Bank for about 4 years. In 2007, he had visited the office of CBI and had handed over certain documents to CBI which were given to him by the bank for said purpose. Those documents were seized through seizure memo dated 25.05.2007. The said memo along with documents were identified by him as Ex.PW35/1 (colly) (D-31).
63. PW36 - Rajeev Bagai deposed that he had his own Offset Printing Press at Okhla. He was acquainted with Ashok Sood as Ashok Sood was his business partner as well as his tenant. Further, he along with his wife Anita Bagai were having a joint account in United Bank of India, Safdarjung Development Area Branch bearing account no.8921. At request of Ashok Sood, he had issued a cheque in the sum of Rs.95,207/- drawn on the said bank account, in favour of DDA, which he handed over to Ashok Sood. That cheque was cleared from his bank account. He identified the said cheque dated 30.04.2003 bearing his signatures at points A & A1 as Ex.PW36/1 (D-39 page 359). He received back the said amount from Ashok Sood.
64. PW37 - Rajender Thakur deposed that Accused Vijay Thakur (A-12) was his elder brother, who was an Architect by CBI Case No.189/2019 Page 65 of 591 CBI vs. B.M. Sethi & Ors.
profession. He had taken membership of Society in Question through N.K. Garg by paying membership fee of Rs.100/- initially. Later on, he paid Rs.12,000/- & Rs.30,000/-. His brother Accused Vijay Thakur (A-12) was also Member of said Society. He identified his signatures in documents viz., Membership Application Form Ex.PW37/1 (at point A, D-10 page 87) and Affidavit dated 08.02.1999 Ex.PW37/2 (at points A & A1, D-6 page 337/C).
65. PW38 - Laxmi Kant Pandey deposed that he was serving as a Senior Clerk in Bombay Mercantile Cooperative Bank Limited, Netaji Subhash Park, Darya Ganj, since 1991. Delhi Cooperative Housing Finance Corporation Limited was having its account no.18120 in his bank. After receiving letter from CBI, he had handed over relevant documents with regard to the Pay Orders, issued by his bank from aforesaid account of DHFC Ltd. in favour of DDA. Those documents were seized by IO through memo dated 25.04.2007.
65.1. PW38 identified his signatures on the Memo dated 25.04.2008 Ex.PW38/1 (at point A). He further identified the documents viz., Letter dated 29.04.2003, received from DCHFC Ltd. Ex.PW38/2, Letter dated 14.11.2005, received from DCHFC Ltd. Ex.PW38/3 and Pay Orders, issued by his bank, pursuant to said two letters as Ex.PW38/4 & Ex.PW38/5. He also identified signature of Mohd. Israil Khan at point A and of Rakesh Bhagat at point B in Pay Order Ex.PW38/4. He identified signature of Nasim CBI Case No.189/2019 Page 66 of 591 CBI vs. B.M. Sethi & Ors.
Aara Khan at point A and of Sushil Banjani at point B in Pay Order Ex.PW38/5.
66. PW39 - Rohtash Singh deposed that he retired from the post of Assistant Manager in Central Bank of India in 2018. In 2006, he was posted as Assistant Manager in Vikas Sadan Branch of the said bank. He had handed over two bank challans to the IO in this case in 2006 which were seized by IO, vide Memo dated 23.03.2007. He identified said Memo as Ex.PW39/1 bearing his signature at point A. He identified the two challans which were seized through said Memo as Ex.PW39/2 (D-42) & Ex.PW39/3 (D-43). Vide those two challans, money was deposited on behalf of Society in favour of DDA, in his bank. The amount which was deposited through Challan Ex.PW39/2 was 1,56,39,000/- and the amount, mentioned in Challan Ex.PW39/3 was Rs.94,922/-. Said amounts were deposited by way of demand drafts.
67. PW40 - Kishore Kumar Khanna deposed in his testimony that he was a Chartered Accountant by profession and was having one firm namely M/s. K.K. Khanna & Associates. About 25-30 years ago, he had conducted Audit of Society in Question on the directions of RCS, as he was on the panel of Auditors of the office of RCS. He identified his said Audit Report as Ex.PW40/1, bearing his signature at point A on each page. The record of the Society was produced before him by the Secretary of said Society namely Accused Sudershan Tandon (A-8). He annexed Balance-Sheet of the Society, its Profit & Loss account along with receipt/ payment details.
CBI Case No.189/2019 Page 67 of 59168. PW41 - Narender Shah deposed that he was into the business of Garment Export as well as Finance. He used to do his business under the name & style of M/s. Narender Shah Manoj Kumar and M/s. N.S.M.K. Investments Pvt. Ltd. He was acquainted with Accused Pankaj Madan (A-5) and also father of said Accused. He identified Accused Pankaj Madan (A-5) correctly.
68.1. PW41 deposed further that he had given a loan of Rs.50 Lacs to Accused Pankaj Madan (A-5) in 2002 and a further sum of Rs.6 Lacs in 2003. Those amounts were paid by him through cheques. One of the cheques was drawn on Citi Bank and other cheque was drawn on IndusInd Bank. He required money for some big land deal. Accused Pankaj Madan (A-5) had paid back only Rs.1.5 Lacs to him and rest of the amount was due towards said Accused.
69. PW42 - Sandeep Kumar deposed that in December 2007, he was posted as Director, Education, Government of NCT of Delhi. During that time, he had accorded Sanction for prosecuting Accused Karamvir Singh (A-2) through Sanction Order Ex.PW42/1 bearing his signature & seal at point A. At that time, Accused Karamvir Singh (A-2) was posted as UDC in Directorate of Education and he was competent to remove him from services. Therefore, he was Competent Authority to accord Sanction for prosecution of Accused Karamvir Singh (A-2).
CBI Case No.189/2019 Page 68 of 59170. PW43 - Dr. B.A. Vaid deposed in his testimony that he had qualifications of M.Sc and Ph.D in Physics. He had received specialized training in the scientific examination of documents including handwriting identification, detection of forgery and allied subjects in the Government of India Laboratory at Shimla for three years. He had examined thousands of documents and had expressed Opinion on them, independently. He further deposed that he had attended various Courts of Law throughout the country and had about 42 years of experience in that field. He had also given lectures to various students of Forensics Science of various universities.
70.1. PW43 further deposed that in this case, his laboratory had received Letter dated 05.03.2007 from CBI along with enclosures viz., Ex.PW43/1 (colly) for examination and Opinion. After examining said documents, he had given his Opinion Ex.PW43/2 bearing his signature at point A on each page. Those documents which he had examined, were also examined by another Dy. GEQD namely Sh. Mohinder Singh, independently, after he had examined the same. Said Dy. GEQD concurred with his Opinion and had signed at point B on Ex.PW43/2 which he identified. He handed over the said Opinion to SP, CBI through Forwarding Letter dated 15.05.2007, signed by N.C. Sood, the then GEQD at point A, which he identified as Ex.PW43/3.
70.2. PW43 further deposed that in this case, his laboratory had received another Letter dated 18.06.2007 from CBI along with CBI Case No.189/2019 Page 69 of 591 CBI vs. B.M. Sethi & Ors.
enclosures viz., Ex.PW43/4 (colly) for examination and Opinion. After examining said documents, he had given his Supplementary Opinion Ex.PW43/5 bearing his signature at point A on each page. Those documents which he had examined, were also examined by another Dy. GEQD namely Sh. Mohinder Singh, independently, after he had examined the same. Said Dy. GEQD concurred with his supplementary Opinion and had signed at point B on Ex.PW43/5 which he identified. He handed over the said Opinion to SP, CBI through Forwarding Letter dated 16.10.2007, signed by N.C. Sood, the then GEQD at point A, which he identified as Ex.PW43/6.
70.3. PW43 further deposed that he had prepared his detailed Reasons for Opinion on both occasions, which he identified as Ex.PW43/7 & Ex./8, respectively, bearing his signature at point A on each page. He explained that figure Q-667 was incorrectly typed due to inadvertent mistake at point X in the first line of second paragraph on page 12 of the Reasons Ex.PW43/7 in place of Q-674. So, he deposed that Q-674 may be read in place of Q-667. Similarly, he explained that figure Q-464 was incorrectly typed due to inadvertent mistake at point X in the first line of paragraph no.2 on page 13 of Ex.PW43/7 in place of Q-463. So, as per him, Q-463 may be read in place of Q-464.
70.4. During cross-examination of PW43, rough notes which he had prepared while examining documents were brought on record by him as he had brought the same in the Court. Those CBI Case No.189/2019 Page 70 of 591 CBI vs. B.M. Sethi & Ors.
rough notes consisted of 51 pages and were marked as Ex.PW43/9 (colly).
71. PW44 - Shankar Prasad deposed that in the year 2007, he was posted as Front Officer in IndusInd Bank, Nehru Place Branch, New Delhi. He had handed over demand draft slip and one cheque in the sum of Rs.30 Lacs to the IO which were seized by IO through Memo dated 01.06.2007. He identified said Memo as Ex.PW44/1 bearing his signature at point A. He identified the slip as Ex.PW44/2 and cheque as Ex.PW44/3. Based on said cheque, a demand draft of Rs.30 Lacs was prepared in favour of DDA by his bank. The cheque was issued by Narender Shah Manoj Kumar and aforesaid demand draft slip was filled by him.
72. PW45 - Jagroop Singh deposed that in 2006, he was posted as Inspector, SCR-II, CBI, New Delhi and that he had conducted preliminary inquiry in this case. During said inquiry, he had collected documents, relating to this case from the office of RCS and Secretary, Safdarjung CGHS. He had recorded statements of various witnesses. He had prepared Memo Ex.PW45/1 (D-53) dated 03.04.2006, based on collection of documents from K. Haridasan, Inspector in the office of RCS. The documents, he had collected were in three files viz., Ex.PW45/2 (D-4), Ex.PW45/3 (D-5) and Ex.PW45/4 (D-6). He also identified Receipt-cum- Production Memo Ex.PW45/5 (D-53 page 447), with regard to receiving of documents from Accused Vikas Madan (A-13), Secretary, Society. Those documents were five registers and five CBI Case No.189/2019 Page 71 of 591 CBI vs. B.M. Sethi & Ors.
files viz., Ex.PW45/6 to Ex.PW45/15. After completing inquiry, he had submitted his Report.
73. PW46 - Suresh Kumar deposed that in 2006-2007, he was posted as Senior Manager in OBC, M Block, Rajiv Chowk, New Delhi and Society had opened a savings account in the said branch. He had handed over various documents, relating to the bank account of Society to CBI through Memos dated 16.03.2007, 20.03.2007, 11.04.2007 & 19.04.2007 viz., Ex.PW46/1 to Ex.PW46/4 respectively (D-20). Those documents consisted of Account Opening Form, copy of Resolution of the Society, printout of Statement of Account bearing his seal and signature at point A, several original cheques and their deposit slips, application for preparation of bank draft/ pay order and another printout of the Statement of Account bearing his seal and signature at point A (D-21 to D-28). All those documents were marked as Ex.PW46/5 (colly).
74. PW47 - Narender Kumar deposed that in 2007-2008, he was posted as Commissioner-cum-Secretary, Industries, Government of NCT of Delhi. During that time, he had accorded Sanction for prosecution of Accused Narender Kumar (A-3) through Sanction Order Ex.PW47/1 bearing his signature at point A on each page. At that Accused Narender Kumar (A-3) was posted as UDC in the Department of Industries and PW47 was competent to remove him from services. Therefore, he was competent authority to accord Sanction for prosecution of Accused Narender Kumar (A-3).
CBI Case No.189/2019 Page 72 of 59175. PW48 - Deepak Aggarwal deposed in his testimony that he had taken membership of Society in Question in 1999, through a known person namely Accused Pankaj Madan (A-5). He had paid Rs.100/- for membership of Society to said Accused Pankaj Madan (A-5). He identified said accused in the Court. Besides that, he deposed that he had paid further amount of Rs.12,000/- to Accused Pankaj Madan (A-5) in respect of membership of Society in Question. Accused Pankaj Madan (A-5) kept assuring him that building of Society would be constructed and flats would be allotted but nothing happened for about 3-4 years. In 2005 or 2006, he resigned from said Society and got refund of his money. He identified his signatures in Membership Application Form Ex.PW48/1 (at point A, D-10 page 58) and in his Affidavit dated 08.02.1999 Ex.PW48/2 (at points A1 & A2, D-6 page 293/C).
75.1. PW48 deposed further that his father late Sh. Ved Prakash Aggarwal expired in the year 2002, who in turn had also taken membership of Society in Question and had paid Rs.12,100/- for the membership of Society. Later on, his father had resigned from membership of said Society and got refund of his money.
76. PW49 - Rajiv Wahi was the Investigating Officer of the present case, who, in his testimony deposed that after registration of the FIR of the present case, the investigation was entrusted to him by the then SP Javed Siraj. He further deposed that he collected various documents and examined several witnesses during the investigation of present case.
CBI Case No.189/2019 Page 73 of 59176.1. During his testimony, PW49 identified and relied upon various documents which are mentioned in tabular form below :-
S.No Document Exhibit Signatures identified by Number PW-49 or documents collected by PW-49 during investigation
1. FIR of present case Ex.PW49/1 He identified signature of the then SP Javed at point A and his own at point B.
2. Production Memo dated Already Bearing his signature at 19.01.2007 vide which exhibited as point B. certain documents from D.N. Ex.PW2/D Gandhi were collected.
3. Documents collected vide Ex.PW2/A Documents collected during Memo already exhibited as (colly.) (D-14 investigation Ex.PW2/D to 16).
4. Production Memo dated Ex.PW49/2 Bearing his signature at 22.01.2007, vide which, the point A. death certificate of C.M. Madan was collected from his son Vikas Madan.
5. Death Certificate of C.M. Ex.PW49/3 Document collected during Madan (D-17) investigation
6. Production Memo dated Ex.PW49/4 Bearing his signature at 22.03.2007 vide which point A certain documents from Anil Dalal, Accounts Officer, Delhi State Cooperative Bank were collected
7. Bank statement and Ex.PW49/5 & Documents collected during specimen signature card Ex.PW49/6 investigation collected vide Memo (D-18 & 19) Ex.PW49/4 respectively
8. Production Memo dated Already Bearing his signature at 23.03.2007, vide which exhibited as point B. certain documents from Ex.PW39/1 Rohtash Singh, Assistant Manager, Central Bank of India were collected.CBI Case No.189/2019 Page 74 of 591
9. Documents collected vide Already Documents collected during Memo already exhibited as exhibited as investigation Ex.PW39/1 Ex.PW39/2 and Ex.PW39/3 (D-42 & D-43) respectively.
10. Production memo dated Ex.PW49/7 Bearing his signature at 29.03.2007, vide which point A certain documents were collected from Rajiv Srivastava, Dy. Manager, SBI.
10. Documents, collected vide Ex.PW49/8 and Documents collected during Memo Ex.PW49/7 Ex.PW49/9 investigation (D-44 & D-46) respectively
11. Seizure memo dated Already Bearing his signature at 25.04.2007, vide which exhibited as point B. certain documents were Ex.PW38/1.
collected from Laxmi Kant Pandey, Clerk, Merchantile Cooperative Bank Ltd.
12. The documents collected Already Documents collected during vide Memo already exhibited as investigation exhibited as Ex.PW38/1 Ex.PW38/2 to Ex.PW38/5 (D-36 & D-37) respectively
13. Seizure Memo dated Ex.PW49/10 Bearing his signature at 17.05.2007, vide which point A. certain documents were collected from Sita Ram Garg, Sr. Manager, United Bank of India.
14. Documents collected vide Ex.PW49/11 Documents collected during Seizure Memo Ex.PW49/10 (colly.) (D-38, investigation D-39 & D-40).
15. Seizure Memo dated Already Bearing his signature at 01.06.2007, vide which exhibited as point B. certain documents were Ex.PW44/1 collected from Shanker Prasad, Front Officer, IndusInd Bank Ltd.
16. Documents received vide Ex.PW44/2 and Documents collected during Memo already exhibited as Ex.PW44/3 investigation Ex.PW44/1 (D-47 & D-48) CBI Case No.189/2019 Page 75 of 591 CBI vs. B.M. Sethi & Ors.
17. Seizure Memo dated Ex.PW49/12 Bearing his signature at 04.06.2007, vide which point A certain documents were collected from Dharampal, Head Messenger, SBI.
18. Documents collected vide Ex.PW49/13 Documents collected during Seizure Memo Ex.PW49/12 (colly.) (D-41 investigation and D-45).
19. Production Memos dated Already Each bearing his signature at 16.03.2007, 20.03.2007, exhibited as point B. 11.04.2007 and 19.04.2007, Ex.PW46/1 to vide which certain Ex.PW46/4 documents were collected from Suresh Kumar, Manager, Oriental Bank of Commerce.
20. Documents collected vide Ex.PW46/5 Documents collected during Memos already exhibited as (Colly.) (D-21 investigation Ex.PW46/1 to Ex.PW46/4 to D-29).
21. Letter dated 19.04.2007 Already Documents collected during from Manager, Delhi State exhibited as investigation Cooperative Bank Ltd Ex.PW34/1 stating that the records sought from the bank were not traceable.
22. Letter dated 05.06.2007 Ex.PW49/14 Documents collected during from Citi Bank along with a (colly) (D-49) investigation copy of demand draft in the sum of Rs.6 Lacs enclosed with the said letter.
23. Files / registers, obtained Already Documents collected during from CBI Malkhana exhibited as investigation Ex.PW45/2 to Ex.PW45/15.
24. Specimen Signatures Sheets Ex.PW49/15 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Accused Ashwini Sharma (A-6) from point S-1 to S-102
25. Specimen Signatures Sheets Ex.PW49/16 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Accused Ashutosh Pant (A-7) from point S-103 to S-132 CBI Case No.189/2019 Page 76 of 591 CBI vs. B.M. Sethi & Ors.
26. Specimen Signatures Sheets Ex.PW49/17 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Accused Maha Nand Sharma (A-4) from point S-132 to S-157
27. Specimen Signatures Sheets Ex.PW49/18 Bearing his signature at bearing Specimen (colly) & point A. Signatures/ handwriting of Ex.PW49/18A Accused Sudershan Tandon (colly) (A-8) from points S-158 to S-178 and S-331 to S-402.
28. Specimen Signatures Sheets Ex.PW49/19 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Satish Maurya from point S-192 to S-196
29. Specimen Signatures Sheets Ex.PW49/20 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Inderjeet from point S-197 to S-201
30. Specimen Signatures Sheets Already Bearing his signature at bearing Specimen exhibited point A. Signatures/ handwriting of Ex.PW6/C Raj Kumar from point S-207 (colly).
to S-211
31. Specimen Signatures Sheets Ex.PW49/21 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Prabh Dayal from point S-237 to S-241
32. Specimen Signatures Sheets Ex.PW49/22 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Manoj Kumar from point S-247 to S-251
33. Specimen Signatures Sheets Already Bearing his signature at bearing Specimen Signatures/ exhibited as point B. handwriting of Satish Sharma Ex.PW7/3 from point S-267 to S-271 (colly).
34. Specimen Signatures Sheets Ex.PW49/23 Bearing his signature at bearing Specimen (colly). point A. Signatures/handwriting of Daya Nand from point S-277 to S-281 CBI Case No.189/2019 Page 77 of 591 CBI vs. B.M. Sethi & Ors.
35. Specimen Signatures Sheets Ex.PW49/24 Bearing his signature at bearing Specimen (colly). point A. Signatures/ handwriting of Accused Manoj Vats (A-11) from point S-306 to S-310
36. Specimen Signatures Sheets Already Bearing his signature at bearing Specimen exhibited as point B. Signatures/ handwriting of Ex.PW11/4 Narender Kumar Awasthi (colly).
from point S-326 to S-330
37. Two forwarding letters dated Already Both letters bearing his 05.03.2007 and 18.06.2007 exhibited as signature at point B. (D-50 and D-57) under the Ex.PW43/1 and signatures of the then SP Ex.PW43/4 R.M. Krishna.
76.2. Besides identifying above-mentioned documents, PW49 deposed that he had sent Specimen Signatures Sheets along with questioned documents to GEQD/ Shimla for expert Opinion vide letters Ex.PW43/1 & Ex.PW43/4. He received expert Opinion from GEQD/ Shimla. Finally, after completing investigation, he filed charge-sheet in the Court.
77. PW50 - Ashish Mandal deposed that in 2007, he was doing the work of photocopying in the office of CBI where he had installed one photocopier machine. He feebly remember that one CBI official was taking signatures of some persons who were sitting there but he was not informed about names of those persons by CBI officials. His signatures were taken on the said documents. He identified his signatures at point X on each page of Specimen Signature Sheets Ex.PW49/18A (S-331 to S-402, part of D-51), when they were put to him. He had studied upto 9 th class. Since, he CBI Case No.189/2019 Page 78 of 591 CBI vs. B.M. Sethi & Ors.
was resiling from his previous statement, so, with the permission of the Court, Ld. Sr. PP for CBI, cross-examined him.
77.1. In the said cross-examination by Ld. Sr. PP for CBI, PW50 deposed that he had worked in CBI office for about two years. He did not remember the branch of CBI where he had installed the photocopier machine and did not remember the name of CBI official who had taken his signatures on the sheets. He admitted that specimen signatures of one person i.e. Sudershan Tandon. He identified Accused Sudershan Tandon (A-8) by pointing him out in the Court. He admitted that due to lapse of time, he had stated earlier that his signatures by CBI officials on the sheets wherein only the heading was written.
78. PW51 - Anil Kumar Joshi deposed that in October- November 2006, he was asked by his department to appear in CBI office for some proceedings. Consequently, he reached CBI office where he met one official namely Mr. Rajiv. Signatures of some persons were taken by CBI officials, in his presence. He was shown ID Card of one of the persons whose specimen signatures were taken by CBI officials. He did not remember the name of said person but deposed that said person was aged between 31-32 years. He identified his signatures at point X on each page in Specimen Signatures Sheets S-306 to S-310, already exhibited as Ex.PW49/24 (colly) (Part of D-51). He also identified the name of Accused Manoj Vats (A-11) on said sheets. He identified Accused Manoj Vats (A-11), correctly in the Court and deposed that it was CBI Case No.189/2019 Page 79 of 591 CBI vs. B.M. Sethi & Ors.
the said person whose specimen signatures were taken in his presence by CBI officials.
79. PW52 - S.K. Auluck deposed that in February 2007, when he was posted as Assistant Director (Survey) in DDA, he was summoned by CBI. After reaching the office of CBI, he met with an Inspector, CBI. He was summoned in the CBI office with respect to some other matter. After getting free from the proceedings of said case, the Inspector sent him to another Inspector. In his presence, some persons had given their specimen signatures. He identified his signatures at point X on Specimen Sheets S-1 to S-102, which were in the name of Accused Ashwini Sharma (A-6) [part of D-51]. The Specimen Sheets were already exhibited as Ex.PW49/15 (colly). He also identified his signatures at point X on each page of said Specimen Sheets from S-103 to S-132, which were in the name of Accused Ashutosh Pant (A-7) and the same were already exhibited as Ex.PW49/16. He deposed that he could not identify Accused Ashutosh Pant (A-7) or Accused Ashwini Sharma (A-6), if shown to him due to lapse of time.
80. PW53 - Mahipal Singh deposed in 2007, when he was posted as a Babu (Clerk) in Department of Vanaspati, Ministry of Food, Central Government, New Delhi, he was called by CBI, where he had met one Inspector from CBI. Some signatures of a person namely M.D. Sharma were taken in his presence and he was shown the Voters ID of said M.D. Sharma. He also signed on the Specimen Signatures Sheets at point X. He identified those sheets CBI Case No.189/2019 Page 80 of 591 CBI vs. B.M. Sethi & Ors.
as Ex.PW49/17 (colly). He explained that due to passing of long time, he will not be able to identify said M.D. Sharma in the Court, though, he confirmed that complete name of said persons was Maha Nand Sharma. He identified signatures of M.C. Gaur at point R on Specimen Signatures Sheets also.
81. Ld. Sr. PP for CBI, made statements, which were duly recorded on 07.08.2019 and 27.05.2019 vide which, witnesses namely; Misri Lal Bhardwaj and Vinod Kumar Bansal respectively were dropped from the list of witnesses.
82. Thereafter, prosecution evidence was closed on 09.10.2019.
83. Matter was then fixed for recording of Statement of Accused Persons under Section 313 CrPC.
84. Here, I must mention that Accused Urmila Gupta (A-9) and Accused Bhisham Kumar Grover (A-10) had expired during trial of the present case, before recording of their Statements under Section 313 CrPC.
85. So, Statements under Section 313 CrPC were recorded with respect to remaining accused persons namely Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3), Accused Maha Nand Sharma (A-4), Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Ashutosh Pant (A-7), Accused Sudarshan Tandon (A-8), Accused Manoj Vats (A-11), Accused CBI Case No.189/2019 Page 81 of 591 CBI vs. B.M. Sethi & Ors.
Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14), Accused Narinder Dhir (A-15) and Accused Gopal Dixit (A-16).
Statement of Accused Persons, recorded under Section 313 CrPC
86. Accused Karamvir Singh (A-2), in response to incriminating evidence, put to him under Section 313 CrPC, deposed that he was not knowing the contents of depositions, given by prosecution witnesses. He explained that Society was responsible for correctness of details of Members and was required to enroll genuine Members. The power to enroll a Member vested with Managing Committee of the Society (Section 20 of DCS Act and Rule 30 of DCS Rules, 1973). The power to accept resignation of Member vest with Managing Committee of Society (Rule 31 of DCS Rules, 1973). He denied his role in enrollment and resignation of Members of Society. He denied the fact that he was posted in the office of RCS at the relevant time and admitted Membership Register as evidence of membership. He denied the creditworthyness of prosecution witnesses. He claimed that documents, prepared by IO were matter of record.
86.1. Accused Karamvir Singh (A-2) further claimed that he was falsely implicated in this case and that prosecution had not placed any evidence for showing that he ever had knowledge about the authenticity of documents, dealt by him. The land was allotted to Society but Society did not take possession of the same. Further, CBI Case No.189/2019 Page 82 of 591 CBI vs. B.M. Sethi & Ors.
he claimed that he had not committed any illegal act, based on putting up of the proceeding on 27.01.1999. As per him, he had done his duty properly and had not violated any provision of DCS Act or Rules. He denied having any departmental inquiry against himself. He also claimed that IO had done investigation, based on pick & choose policy. As per him, all the prosecution witnesses were interested witnesses.
87. Accused Narender Kumar (A-3) deposed in his Statement under Section 313 CrPC that he did not know the facts, deposed by prosecution witnesses, as they were not related to him. He also claimed that prosecution failed to show his role except the fact that he was assigned duty for holding Special GBM which he did to the best of his ability in consultation with records, available to him. He denied being involved in conspiracy with other accused persons and highlighted short-comings in the investigation, done by IO. Further, he had not obtained any pecuniary gain or extended any benefit to any individual or to the Society. He referred to the provisions of DCS Act and DCS Rules, 1973 for claiming that he had not done any illegal act while conducting Special GBM.
88. Accused Maha Nand Sharma (A-4), in response to incriminating evidence, put to him, replied by claiming that he did not know about the evidence, brought on record against him by prosecution. He admitted that PW12 - Amit Sharma had become Member of Society in Question at the instance of Sunil Bhardwaj and had attended GBM dated 27.01.1999 of Society. He also CBI Case No.189/2019 Page 83 of 591 CBI vs. B.M. Sethi & Ors.
admitted his acquaintance with PW14 - Dushyant Vats, PW16 - Vijay Sharma, PW17 - Papkesh Kumar Bhardwaj and PW18 - Shyam Sunder Bhardwaj. He claimed that he was falsely implicated in this case and witnesses had deposed falsely against him.
89. Accused Pankaj Madan (A-5) responded to the incriminating evidence, put to him, by claiming that he did not know about the said evidence. He also claimed that he was falsely implicated in this case and witness had deposed falsely against him. He also claimed that IO had done faulty investigation in this case.
90. Accused Ashwini Sharma (A-6), in response to incriminating evidence, claimed that CBI had filed false charge- sheet against him. He denied his role in Society in Question. He claimed himself to be an innocent person and that he had not done any illegal act. He also claimed that IO had done improper investigation. He denied having knowledge about incriminating evidence, brought on record. He also challenged the veracity of prosecution witnesses. Further, as per him, IO did not furnish documents and facts which supported his innocence.
91. Accused Ashutosh Pant (A-7), in response to incriminating evidence, claimed that CBI had filed false charge- sheet against him. He denied his role in Society in Question. He claimed himself to be an innocent person and that he had not done CBI Case No.189/2019 Page 84 of 591 CBI vs. B.M. Sethi & Ors.
any illegal act. He also claimed that IO had done improper investigation. He denied having knowledge about incriminating evidence, brought on record. He also challenged the veracity of prosecution witnesses. Further, as per him, IO did not furnish documents and facts which supported his innocence.
92. Accused Sudershan Tandon (A-8), in response to incriminating evidence, claimed that CBI had filed false charge- sheet against him. He claimed that he did not know the incriminating evidence, brought on record by prosecution and that he was falsely implicated in this case.
93. Accused Manoj Vats (A-11) responded to the incriminating evidence, put to him by stating that he was not responsible for the acts/ omissions of co-accused persons and cannot answer on behalf of said co-accused persons regarding the said evidence. He claimed that he was falsely implicated in this case. He also claimed that prosecution could not place on record, any evidence which can show that he ever indulged in the acts, alleged by prosecution. He also claimed that none of the prosecution witnesses deposed against him. As per him, his status was akin to that of prosecution witnesses and he had not gained anything from the Society. He denied committing any offence and claimed that investigation done by IO was done in a careless manner. He claimed himself to be a victim.
CBI Case No.189/2019 Page 85 of 59194. Accused Vijay Thakur (A-12) replied to incriminating evidence by stating that he did not want to answer each of the questions, put to him, individually, rather, sought permission to submit written statement as per Section 313(5) CrPC. In the said written statement, he stated that he was not privy to alleged conspiracy. He denied allegations of prosecution and claimed that he had acted in accordance with law. He denied getting any benefit or favour from entire transaction. He claimed that investigation was shoddy and he was implicated without evidence. He also replied that he was a victim in this case.
95. Accused Vikas Madan (A-13), in response to incriminating evidence, put to him, replied that he had no knowledge about the same. Besides that, he claimed that investigation was faulty and he was falsely implicated in this case. He explained that he was not benefitted in any manner. So far as Society is concerned, he stated that all the Members of Society were inducted as per rules of the Society and none of the Members, during his tenure were bogus. All the Members were scrutinized by SDM (Returning Officer), during the election, conducted in 2006 and said SDM did not find any person who was not fit to be a Member. Further, none of the Members of Society made complaint regarding the resignations and that Members who had resigned, were duly attested and forwarded by Accused Maha Nand Sharma (A-4), but it was not investigated by the IO.
CBI Case No.189/2019 Page 86 of 59196. Accused Poonam Awasthi (A-14), also did not admit the case of prosecution, in response to incriminating evidence, put to her. She did not know about the evidence, which was put to her. She claimed that prosecution witnesses had deposed falsely. She also stated that resignations of PW7 - Sachin Sharma, PW8 - K. Manoj Kumar Subudhi, PW9 - Rakesh Dabas, PW12 - Amit Kumar Sharma, PW13 - Anil Sharma, PW14 - Dushyant Vats, PW16 - Vijay Sharma, PW17 - Papkesh Kumar Bhardwaj, PW18
- Shyam Sunder Bhardwaj and PW31 - Anju Sharma were handed over and duly attested by Accused Maha Nand Sharma (A-4). Said witnesses were not made Members of Society while she was the Office Bearer. Further, PW11 - Narender Kumar Awasthi was not the Member of Society in Question when she was Office Bearer of the Society. She explained that necessary intimation of meetings was sent to all the Members of Society. Some of the Members attended the meetings and some never attended the meetings. She also claimed that investigation was faulty and she had not committed any offence. She replied further, in the same manner, as was done by Accused Vikas Madan (A-13).
97. Accused Narinder Dhir (A-15), also replied in response to incriminating evidence, put to him, on the same lines as was replied by Accused Vikas Madan (A-13) and Accused Poonam Awasthi (A-14). Same needs no repetition.
98. Accused Gopal Dixit (A-16) also did not admit the case of prosecution when incriminating evidence was put to him. He CBI Case No.189/2019 Page 87 of 591 CBI vs. B.M. Sethi & Ors.
claimed that prosecution case was false. He referred to the facts, mentioned in charge-sheet, which needs no repetition and claimed that he had not violated any provisions of DCS Act, Rules or Regulations. Further, no person had made complaint about suffering any loss on account of his purported act.
99. After recording of said Statements of accused persons under Section 313 CrPC, matter was fixed for defence evidence as accused persons namely Accused Karamvir Singh (A-2), Accused Ashwini Sharma (A-6), Accused Ashutosh Pant (A-7), Accused Urmila Gupta (A-9), Accused Bhisham Kumar Grover (A-10), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Poonam Awasthi (A-14), Accused Narinder Dhir (A-15) and Accused Gopal Dixit (A-16) wanted to lead defence evidence.
100. Matter was then fixed for defence evidence.
Evidence in Defence
101. Accused Karamvir Singh (A-2) examined only one witness i.e. DW1 - Anil Kumar who was the Section Officer, Vigilance Branch, Directorate of Education, Government of NCT of Delhi, who placed on record file relating to grant of Sanction for prosecution of Accused Karamvir Singh (A-2) in this case. Same was kept on record and was marked as Ex.DW1/1.
102. Accused Pankaj Madan (A-5) examined DW2 - D. Karthikeyan, who deposed that he was appointed as Liquidator for CBI Case No.189/2019 Page 88 of 591 CBI vs. B.M. Sethi & Ors.
Society. He did not remember the exact date and month when he was appointed so. He was not provided with records of Society by previous Liquidator S.K. Jha, despite him writing various letters to Mr. Jha, who was posted at Chandigarh in Chandigarh Administration, at the time, when his testimony was recorded.
103. Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) examined DW3 - S.K. Bangia, who deposed that he was an Authorized Representative of D. Karthikeyan, who in turn was Liquidator for Society, appointed in August 2019. Prior to appointment of D. Karthikeyan as Liquidator in August 2019, Mr. S.K. Jha was the Liquidator of the Society. Said Mr. Jha had appointed him to assist D. Karthikeyan with regard to the work of Society in Question. He placed on record Authority Letter, issued by D. Karthikeyan Ex.DW3/1 in his favour, bearing his signature at point A. Mr. S.K. Jha had taken into custody all record of Society in Question with his assistance and same was kept in D.C. Office, Shamnath Marg, Delhi. He placed on record summoned record viz., Ledger Account of Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) and audited balance-sheet of Society for the period from 01.04.2001 to 31.03.2018. Same was marked as Ex.DW3/2 (colly.)
104. Here, I must mention that at the stage of closing prosecution evidence on 09.10.2019, prosecution had examined 49 prosecution witnesses. After closing prosecution evidence on 09.10.2019, matter was fixed for recording of Statement of CBI Case No.189/2019 Page 89 of 591 CBI vs. B.M. Sethi & Ors.
Accused. Subsequently, Statements of Accused Persons and defence evidence were recorded. Matter was then fixed for final arguments. At the stage of final arguments, prosecution filed an application under Section 311 CrPC, for examining witnesses namely S.K. Auluck, Mahipal Singh, M.C. Gaur, Anil Kumar Jain, Anil Joshi and Ashish Mandal. Said application was allowed by the Court on 11.01.2025. Consequent thereto, PWs i.e. PW50 to PW53 were examined by prosecution. Thereafter, Statements of Accused Persons under Section 313 CrPC (351 of BNSS 2023), were recorded on 28.04.2025. In their said supplementary statements under Section 313 CrPC, they denied the evidence of said witnesses, put to them. They claimed that said witnesses had deposed falsely and submitted that their Statements under Section 313 CrPC which were recorded earlier, prior to recording of evidence of PW50 to PW53, be considered along with their said Statements. They did not prefer to lead defence evidence. Therefore, matter was then fixed for final arguments.
105. After hearing final arguments, matter was fixed for Judgment.
106. Now, the first question which needs to be addressed is, whether oral testimonies of prosecution witnesses, were trustworthy and reliable? In other words, whether prosecution witnesses had or had not deposed falsely against accused persons?
CBI Case No.189/2019 Page 90 of 591107. For deciding said question, I must refer to relevant law, pertaining to appreciation of oral evidence of witnesses, as laid down by higher echelon of judiciary, in such like matters.
Law Relating to Appreciation of Oral Evidence
108. Hon'ble High Court of Delhi in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
108.1. So, in the wake of above-mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as a whole. Minor discrepancies over trivial matters CBI Case No.189/2019 Page 91 of 591 CBI vs. B.M. Sethi & Ors.
and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
Law pertaining to Appreciation of Evidence in cases, involving Corruption Laws
109. Further, present case involves the issue of corrupt practices allegedly done by accused persons. Now, how evidence in such like matters, has to be appreciated, is a relevant consideration. Law pertaining to appreciation of evidence in cases, involving corrupt practices.
(i). In the case of Sultan Salahuddin Owasi vs. Mohd. Osman Shaheed & Ors. (1980) 3 SCC 281, the Apex Court observed as under:-
"It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case".
(ii). In the case of Ram Sharan Yadav vs. Thakur Muneshwar Nath Singh & Ors. (1984) 4 SCC 649, the Hon'ble Apex Court observed as under :-
"The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge of a corrupt practice is in the nature of criminal charge, it is for the party who sets up the plea of 'undue influence' to prove it to the hilt beyond CBI Case No.189/2019 Page 92 of 591 CBI vs. B.M. Sethi & Ors.
reasonable doubt and the manner of proof should be the same as for an offence in a criminal case......... By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations:
(1) the nature, character, respectability and credibility of the evidence, (2) the surrounding circumstances and the improbabilities appearing in the case, (3) the slowness of the appellate Court to disturb a finding of fact arrived at by the trial Court who had the initial advantage of observing the behaviour, character and demeanor of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
This, therefore, conclude the question regarding the standard of proof.
110. In the wake of above-mentioned law, it is clear that cases involving corruption, must be proved by prosecution, through convincing evidence. The veracity of the evidence, led by prosecution, therefore, comes to the center stage. Court has to appreciate the said evidence of prosecution, for satisfying itself, as to whether said evidence is trustworthy and reliable. In other words, Court has to decide, as to whether prosecution evidence is false or not. Based on said understanding of law, I am proceeding further and appreciating testimonies of prosecution witnesses.
Appreciation of Oral Testimonies of Prosecution Witnesses PW1
111. PW1 - Inderjeet Kalucha was one of the Member of Society in Question, who had taken membership in said Society in the year 1984-85. His testimony revealed that he confirmed the CBI Case No.189/2019 Page 93 of 591 CBI vs. B.M. Sethi & Ors.
factum of him being Member of said Society since 1984-85. He identified his name and signature in Membership Register Ex.PW1/A at S.No.9, point Q-440. That Register was filed by CBI, in original. It was not disputed on the mode of proof and / or admissibility. So, that document was proved by prosecution.
111.1. Further, PW1 denied that he had ever resigned from said Society and also the fact that he had signed Resignation Letter Ex.PW1/B at point Q-669 or had submitted the same. He denied the fact that he had attended meetings, as mentioned in Proceeding Register Ex.PW1/C and explained that signatures in the said Register at point X1 to X14 were obtained by Sudarshan Tandon (A-8) after those meetings had taken place.
111.2. Above-mentioned facts, therefore, indicated that he was one of the original Members of Society in Question, who had not attended meetings which took place in the said Society and had never tendered his resignation. It was Sudarshan Tandon (A-8), through whom, he became Member in said Society and it was Sudarshan Tandon (A-8), who obtained his signatures on the Proceeding Register after meetings had concluded.
111.3. Testimony of PW1, based on above-mentioned facts, was challenged by Sudarshan Tandon (A-8) through cross- examination. He put certain suggestions to PW1 viz., that Office Bearers were duly elected in the meeting, as noted in the Minutes dated 29.09.1983; that he had attended the subsequent meetings of the Society as Vice President; that his signatures were not obtained CBI Case No.189/2019 Page 94 of 591 CBI vs. B.M. Sethi & Ors.
by Sudarshan Tandon (A-8) on the Minutes of Meeting afterward and that he had deposed falsely against Sudarshan Tandon (A-8) due to fear of CBI officials. All the said suggestions were refused by PW1. So, PW1 did not accept the probable defence of Sudarshan Tandon (A-8).
111.4. Besides that, Sudarshan Tandon (A-8) questioned the educational qualification of PW1, the date & month when PW1 was summoned by CBI and the name of IO who had taken his signatures. PW1 deposed that he had completed M.A. (Eng.) from Delhi University and had obtained Diploma in Administrative Law from Indian Law Institute. Said educational qualification, indicated that he was well educated. Besides that, no other inference can be drawn with regard to his said testimony. It did not make his testimony doubtful.
111.5. The want of knowledge with regard to the name of IO and the date, when he was summoned by CBI, did not make his testimony doubtful, as his evidence was recorded in the year 2019, whereas, charge-sheet in this case, was filed in the year 2008. Investigation had taken place prior to the year 2008. So, there was evident gap of more than 11 years between the time, he had met CBI officials during investigation and the time, when he had come to the Court for deposing in this matter. Possibility of his memory, fading away, with respect to above-mentioned facts, as such, cannot be ruled out. So, said want of knowledge with regard to the facts, pertaining to investigation, did not make his testimony CBI Case No.189/2019 Page 95 of 591 CBI vs. B.M. Sethi & Ors.
doubtful. Even otherwise, those aspects were inconsequential in nature.
111.6. PW1 stood his ground when he was cross-examined by Sudarshan Tandon (A-8) with regard to the facts, he had deposed in his examination-in-chief. He only made the examination-in-chief, more clear by deposing that he had attended the meeting in a Meeting Hall in Safdarjung Development Area where 25-30 Members were present and that meeting lasted for about 10-15 minutes. In the said meeting, formation of the Society was discussed and no Office Bearer was elected. He confirmed that Minutes of said meeting were not prepared in his presence and his signatures were obtained afterwards. It was Sudarshan Tandon (A-8), who had told him that he was elected as Vice President of the Society after 1-2 months of the said meeting.
111.7. So, Sudarshan Tandon (A-8) failed to create any doubt in the testimony of PW1, by cross-examining him.
111.8. PW1 was also cross-examined by Pankaj Madan (A-5), Vikas Madan (A-13), Poonam Awasthi (A-14) and Narender Dhir (A-15). In the said cross-examination, PW1 refuted the suggestions viz., that he had deposed falsely and that he had participated in all the proceedings of the Society, on which his signatures appeared. So, he did not accept the defence of said Accused persons.
111.9. PW1 admitted in his cross-examination that he had mentioned in his statement to CBI that he knew Sudarshan Tandon CBI Case No.189/2019 Page 96 of 591 CBI vs. B.M. Sethi & Ors.
(A-8), since 1981, when he had purchased a house in Malviya Nagar through him. His attention was drawn towards his affidavit Ex.PW1/D which he had submitted at the time of becoming Member of Society in Question. In the said affidavit, five facts were affirmed and declared by PW1, in paras (i) to (v). Para (iv) of the said affidavit noted that PW1 had declared that neither he or his wife or any Member of his undivided family owns any house in Delhi.
111.10. So, PW1, on one hand, had confirmed in his testimony that his wife had purchased a house in Malviya Nagar through Sudarshan Tandon (A-8) in 1981 and on other hand, he had declared in his affidavit Ex.PW1/D, which was verified on 30.09.1983, that he or his wife did not own any house in Delhi. So, suggestion was given to him that he had sworn a false affidavit.
111.11. The above-mentioned suggestion did not help the cause of accused persons, who had cross-examined him. Reasons being, his attention was not drawn towards the contents of said affidavit Ex.PW1/D and more precisely, para (iv) of said affidavit for the purpose of seeking his explanation with regard to said declaration. Even otherwise, one of allegations of prosecution was that, officials of the office of RCS namely; Accused Karamvir Singh (A-2) and Accused Narender Kumar (A-3), in connivance with other co-Accused persons had forged documents. So, if version of Accused persons who had given above-mentioned suggestion to PW1, is to be believed, then it would mean that those Accused CBI Case No.189/2019 Page 97 of 591 CBI vs. B.M. Sethi & Ors.
persons wanted to convey that Ex.PW1/D was a false document. If that is so, then it only strengthened the case of prosecution, that Accused persons had obtained revival of Society in Question, on the basis of false documents. Further, that suggestion based on false affidavit, was inconsequential as PW1 deposed in his cross- examination that when he filed that affidavit, he did not know that he was not entitled to become a Member of Society in Question as his wife owned a house in Delhi. His ignorance, towards the said fact, only made him an ignorant person not knowing the law. It did not absolve Accused persons with the crime in question. Apart from that, Promoters of Society in Question, could have pointed out to PW1, that he should not have residential property at the time of furnishing said affidavit. Same was not done by Promoters/ Office Bearers of Society. So, they did not perform their duties bonafidely. Their inaction in this regard can be viewed only as an act which they did with ulterior motive. No other possibility was possible. No explanation was given by any of the accused persons, in this regard, during trial. Coupled with the same, I found that there was every possibility that said affidavit was filed by PW1, without reading its contents, at the behest of Sudarshan Tandon (A-8) as PW1 was introduced in Society in Question through Sudarshan Tandon (A-8) only. All in all, based on aforesaid appreciation, alleged false affidavit Ex.PW1/D of PW1, did not make his testimony doubtful.
111.12. Further, PW1 deposed, in his testimony, that he had not signed Resignation Letter Ex.PW1/B. He denied the fact that said CBI Case No.189/2019 Page 98 of 591 CBI vs. B.M. Sethi & Ors.
Resignation Letter was submitted by him. Those facts were not countered by Accused persons by cross-examining him and by giving suggestions to the contrary.
111.13. The Resignation Letter Ex.PW1/B needed a closer look. Contents of the said letter were denied by PW1 which means that it cannot be believed that said letter was written by PW1. The signature of PW1 at point Q-669, when compared by me with his signatures, mentioned in his evidence, clearly were found to be distinct. Further, I found that colour of blue ink, with which contents of said letter were written, was different from the colour of blue ink with which PW1 had allegedly signed said letter. It only created further doubt in the veracity of said letter. So, claim of PW1 that he had not signed said letter, was correct.
111.14. The Proceeding Register Ex.PW1/C noted signatures of PW1 at points X1 to X14. The colour of ink with which proceedings of meeting were recorded, was different from the colour of ink with which PW1 had made signatures in said Register. Possibility of said signatures being made by PW1 in mechanical manner, cannot be ruled out. Moreso, where PW1 categorically deposed that he had not attended those meetings and his signatures were obtained by Sudarshan Tandon (A-8) after those meetings had taken place. So, it indicated that said meetings had not taken place in ordinary course of business. It also indicated that signatures on said documents were not made in ordinary course of business.
CBI Case No.189/2019 Page 99 of 591111.15. Rest of the Accused persons, did not cross-examine PW1. So, testimony of PW1 remained unchallenged, with respect to said Accused persons, who did not cross-examine him.
111.16. The net result is that based on above-mentioned consideration of evidence, I found testimony of PW1, to be trustworthy and reliable.
PW2
112. PW2 - Daya Nand Gandhi deposed in his testimony that he had taken membership in Society in Question in 1983 through a person namely Mr. Maurya and had paid Rs.110/- as membership fee, against which he received proper receipt. He had attended one or two meetings in the Society. He denied the fact that he resigned from the membership of said Society vide document Ex.PW2/C which was allegedly his Resignation Letter. He denied his signatures at point Q-687A in said letter. Further, as per him, he had not attended meetings, regarding which, his signatures were obtained by Mr. Maurya in Proceeding Register Ex.PW1/C. 112.1. Sudarshan Tandon (A-8) had cross-examined him and asked his educational qualifications, which he answered properly. Said details of qualifications of PW2 were inconsequential for the purpose of adjudication of this case.
112.2. PW2 clarified in his testimony that he was working as Assistant Production Manager where his senior Mr. Maurya was CBI Case No.189/2019 Page 100 of 591 CBI vs. B.M. Sethi & Ors.
also working. He was asked questions about his visits to CBI office, which he answered by deposing that he had visited CBI office in the year 2006 and 2007. He did not remember the exact dates of said visits. Those aspects did not make his testimony doubtful. Reason being, that the factum of his visits to CBI office, was not challenged by Sudarshan Tandon (A-8) by giving suggestion to the contrary. In such circumstances, the fact that he could not answer the exact dates of his visits, lost its significance. Evidently, there was a gap of more than 10 years, when he had visited the office of CBI from the time he had come to the Court for deposing in this case. Possibility of his memory fading away with time cannot be ruled out with regard to said details. It did not make his testimony doubtful.
112.3. Besides that, PW2 refuted the suggestions, based on him deposing falsely under threat from CBI. So, he did not accept the defence of Sudarshan Tandon (A-8).
112.4. PW2 was put his affidavit Ex.PW2/E, wherein, he had sworn certain facts, mentioned in para (i) to (v). One of the fact, he had declared in said affidavit, which he had submitted along with membership form for becoming Member in Society in Question, was that he was not the owner of any plot/ house in Delhi. That affidavit lost its significance, once, PW2 had deposed that the house in which, he was living in 1983, was in the name of his father and he became owner of said house only in the year 2001.
CBI Case No.189/2019 Page 101 of 591112.5. PW2 was not sure about the time, when he was elected as Executive Member of the Society. He was not sure about the type of resolutions which were passed in the meetings of the Society. His ignorance towards said relevant facts, only indicated that activities like; passing of resolutions and his election as Executive Member, were done, behind his back and not in ordinary course of business. It only strengthened the case of CBI regarding fudging of records.
112.6. PW2 deposed in his testimony that Mr. Maurya used to update him about the affairs of the Society. It means that PW2 was not part of the proceedings which took place in Society and was a mere Member in papers only. So, his name was used to complete the records of Society, pertaining to membership and nothing else. He was never meant to be an active Member of Society who knew about the affairs of Society, truthfully. Based on said appreciation, I conclude that records were falsified by mentioning his name in the meetings of Society, with ulterior motives by the Office Bearers of Society, arrayed as accused persons in this case. That is the only inference, one can draw, based on testimony of PW2.
112.7. Rest of the Accused persons did not cross-examine PW2 and therefore, his testimony remained unchallenged qua said Accused persons, who did not cross-examine him.
112.8. The documents, identified by this witness, were not challenged by Accused persons on the mode of proof or CBI Case No.189/2019 Page 102 of 591 CBI vs. B.M. Sethi & Ors.
admissibility.
112.9. Therefore, testimony of PW2 was found by me to be trustworthy and reliable.
PW3
113. PW3 - Yatish Maurya was another witness, who had taken his membership in Society in Question, in 1983, not by himself solely but through his brother Ratish Maurya. He also denied the fact that he had resigned from the membership of Society in Question through Resignation Letter Ex.PW3/B. 113.1. The body of Resignation Letter Ex.PW3/B was written with green colour ink pen but it was signed allegedly by PW3 with black colour ink pen. Difference in said inks indicated possibility of falsity of said letter. Since, it was record of Society, so, some of the accused persons viz., Accused Maha Nand Sharma (A-4), Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Sudershan Tandon (A-8), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15), who were Office Bearers / Members of Society should have explained the reason/s behind said difference of colour of inks, used in said letters. They did not give any explanation, during trial. It did not help their cause. Coupled with the same, I found that manner in which PW3 had signed on his evidence, recorded in the Court, differed from his signature at point Q-687 in Ex.PW3/B. CBI Case No.189/2019 Page 103 of 591 CBI vs. B.M. Sethi & Ors.
The manner in which alphabets 'Y', 'A', 'T', 'I', 'S' & 'H' were made in Ex.PW3/B differed from his signatures, mentioned in his evidence as his signatures in the evidence reflected that each alphabet was properly made and said signatures were not made in running hand. The signature at point Q-687 in Ex.PW3/B was made in running hand. Another feature which made the said two categories of signatures distinct, was the manner in which, line was drawn beneath the signatures. There was no gap between alphabets and line drawn beneath the signature at point Q-687 in Ex.PW3/B. That line was drawn with conscious effort, as it was made uniformly by pressing the pen. Contrary to the same, the line drawn beneath the signatures, made by PW3, in his evidence, was made in running manner and there was gap between said line and the alphabets. So, I conclude that signature at point Q-687 in Ex.PW3/B was not that of PW3 and said signature was forged. The signature of PW3 in said letter, as such, did not match his signatures, as mentioned in his evidence. So, this conclusion only supported veracity of the claim of PW3, made in his testimony.
113.2. PW3 was cross-examined by Sudarshan Tandon (A-8). In his cross-examination, he was asked questions, pertaining to his educational qualifications and his professional background which he answered properly. Said questions were inconsequential in nature. Their answers did not make his testimony doubtful.
113.3. PW3 was asked by Sudarshan Tandon (A-8) about the details of meetings viz., number of Members who had attended CBI Case No.189/2019 Page 104 of 591 CBI vs. B.M. Sethi & Ors.
first meeting of Society; the time period for which said meetings continued and whether he remained in said meetings through out. He was not having specific knowledge about said facts. It only indicated the possibility of him not attending said meetings and records of meetings being manipulated, at his back. This conclusion only supported prosecution version.
113.4. PW3 refuted the suggestions, based on him deposing falsely and him participating in all the proceedings of the Society. So, he did not buy the defence of Sudarshan Tandon (A-8).
113.5. Rest of the Accused persons did not cross-examine PW3 and his testimony remained unchallenged qua said Accused persons who did not cross-examine him.
113.6. Therefore, testimony of PW3 was found by me to be trustworthy and reliable.
PW4
114. PW4 - Satish Maurya was another witness, who had taken his membership in Society in Question in 1983, not by himself solely but through his brother Ratish Maurya. He also denied the fact that he had resigned from the membership of Society in Question through Resignation Letter Ex.PW4/B. 114.1. PW4 had claimed in his testimony that he had not signed Resignation Letter Ex.PW4/B. After considering said letter, I found CBI Case No.189/2019 Page 105 of 591 CBI vs. B.M. Sethi & Ors.
that said Resignation Letter Ex.PW4/B was written with blue colour ink pen but it was signed allegedly by PW4 with different blue colour ink pen. Difference in colours of said inks indicated possibility of falsity of said letter. Coupled with the same, I found that signatures of PW4, made by him in his evidence, were clearly different from the signature, he had allegedly made at point Q-664 in Ex.PW4/B. The manner in which alphabets 'S', 'A', 'T', 'I', 'S' & 'H' were made in his evidence, recorded before the Court, were clearly different from the manner in which said alphabets were written in his signatures at point Q-664 in Ex.PW4/B. In addition to that, I found that in Membership Register Ex.PW43/A at page 3, at point Q-438, signature of this witness was mentioned and that signature again did not match with his signatures, which he had made in his evidence, recorded before the Court. The alphabets of his name were made with different strokes, in all the said three categories of his signatures. The extension of the alphabet 'S' was made differently in his signatures at point Q-438 in Ex.PW4/A (part of Ex.PW43/A) and at point Q-664 in Ex.PW4/B. So, I conclude that his said signatures on the Resignation Letter and in the Membership Register were forged. So, this conclusion only supported veracity of the claim of PW4, made in his testimony.
114.2. PW4 was cross-examined by Sudarshan Tandon (A-8). In his cross-examination, he was asked questions, pertaining to his educational qualifications and professional details of his mother which he answered properly. Said aspects were not relevant for the purpose of adjudication of this case and therefore, it did not make CBI Case No.189/2019 Page 106 of 591 CBI vs. B.M. Sethi & Ors.
his testimony doubtful.
114.3. PW4 was not able to give categorical answers with regard to aspects viz., fact regarding handing over of form and affidavit to his brother or Sudarshan Tandon (A-8); the time, when he had submitted those documents; whether he had attended the first meeting and who all had attended said meeting and about his statement, being recorded by CBI officials. It only indicated the possibility of him not attending said meetings and records of meetings being manipulated, at his back. This conclusion only supported prosecution version.
114.4. PW4 refuted the suggestions, based on him deposing falsely. So, he did not accept the defence of Sudarshan Tandon (A-8).
114.5. Rest of the Accused persons did not cross-examine PW4 and his testimony remained unchallenged qua said Accused persons who did not cross-examine him.
114.6. Therefore, testimony of PW4 was found by me to be trustworthy and reliable.
PW5
115. PW5 - Ratesh Maurya deposed in his testimony that he came Member of Society in Question in 1983, through Sudarshan Tandon (A-8). He had attended only one or two meetings of said Society. As per him, though his signatures in Proceeding Register CBI Case No.189/2019 Page 107 of 591 CBI vs. B.M. Sethi & Ors.
were present from point B1 to B27 but he had not attended those proceedings. He denied the fact that he had resigned from said Society or had submitted Resignation Letter Ex.PW5/B, allegedly bearing his signatures at point Q-676.
115.1. PW5 was cross-examined by Sudarshan Tandon (A-8) at length. He was asked questions, based on his educational qualifications and office of his mother which he satisfactorily answered. Those questions were not relevant for the purpose of adjudication of this case.
115.2. PW5 confirmed in his cross-examination that Sudarshan Tandon (A-8) had approached him with proposal for formation of Society in Question, which he accepted. In the meeting, which he had attended, pertaining to Society, he was elected as Treasurer, Mr. Bajaj was elected as Vice President, Mr. Kalucha was elected as an Office Bearer and Dr. Ramji Prasad was elected as President. He was asked questions about the dates of meetings, which he had attended, which he could not answer. Further, he could not answer about the kind of resolutions, passed in second meeting of the Society. He lacked knowledge regarding the money of Society which was deposited in bank for opening account in Delhi Cooperative Bank, South Extension in 1983. He failed to recollect as to whether he had to operate said bank account individually or jointly with Sudarshan Tandon (A-8). He lacked knowledge regarding the address of Society where its accounts were audited. He could not recollect the documents, which were submitted to the CBI Case No.189/2019 Page 108 of 591 CBI vs. B.M. Sethi & Ors.
bank for opening account of the Society in the bank. It only indicated the possibility of him not attending said meetings and records of meetings being manipulated, at his back. This conclusion only supported prosecution version.
115.3. PW5 refuted suggestions viz., that he had attended all the meetings of the Society; that he along with Sudarshan Tandon (A-8) and Office Bearers of Society had gone to the office of RCS for registration of the Society; that communication with the office of RCS used to done by him and his mother; that he falsely deposed that he was not aware that his mother's office was shown as address of Society in the Letter Head of the Society and that he was fully aware about the entire affairs of the Society. So, he did not accept the defence of accused persons.
115.4. PW5 also deposed in his cross-examination that no communication was received by Society from the office of RCS. He confirmed that he had gone to CBI office once and had not gone to the office of RCS after formation of Society. As per him, Audit of accounts of Society took place when he was not present in the Society. Those facts indicated that said proceedings of Society took place, without his knowledge and at his back. They also indicated that he had joined investigation with CBI and had never gone to the office of RCS after formation of Society. It indicated that his role in the working of Society and his knowledge about working of Society was bare minimum. As such, said aspects did not make his testimony doubtful.
CBI Case No.189/2019 Page 109 of 591115.5. While cross-examining PW5, Sudarshan Tandon (A-8) had put certain documents viz., letter dated 29.07.1985 Ex.PW5/C, letter dated 04.05.1988 Ex.PW5/D and letter dated 31.03.1990 Ex.PW5/E, which he confirmed.
115.6. Now, letter Ex.PW5/C was dated 29.07.1985. That letter was written by Accused Sudershan Tandon (A-8), addressing Deputy Registrar, Cooperative Group Housing Society, New Delhi. Vide said letter, Accused Sudershan Tandon (A-8) had requested the office of Deputy Registrar to approve the list of Members of Society. As such, that letter was accompanied with enrollment of new Members of Society, Books of Accounts, Proceedings Register, Membership Register, Receipt Book etc., which were produced before the Inspector for verification. Now, question arises, as to whether said documents were verified by the concerned Inspector? What was the response of Deputy Registrar concerned, to the said letter? Why lack of details of dates in Membership Register Ex.PW45/8 with regard to membership of concerned Members were not explained by Accused Sudershan Tandon (A-8)? Why some of the Members in the said Membership Register had not signed against their names? Such like questions were never answered by Accused Sudershan Tandon (A-8), who had placed on record said letter. It indicated that falsity in said record and Accused Sudershan Tandon (A-8) hiding the same with ulterior motives.
CBI Case No.189/2019 Page 110 of 591115.7. Documents Ex.PW5/D & Ex.PW5/E were requisitioned and show-cause notice dated 04.05.1988 and 31.03.1990 respectively. Both the said letters were issued by Assistant Registrar and Deputy Registrar, from the office of RCS, respectively. Both the said letters noted that election, as required by DCS Act, of Managing Committee of Society in Question had become due. Vide Ex.PW5/D, direction was given for conducting Special GBM, to Managing Committee of Society. Vide letter Ex.PW5/E, show-cause notice was issued, asking the Managing Committee, Society to explain as to why Election Officer be not appointed. Those letters only indicated that Society was not conducting its elections of Managing Committee, regularly. It means that Society was not working as per the provisions of DCS Act, during the said time. For the said period, record of Proceedings Register of Society was not maintained in ordinary course of business. In such circumstances, short-comings in the records of Society, as highlighted above and as highlighted in this Judgment, only indicated that said record was manipulated. It only supported prosecution version. So, Ex.PW5/D & Ex.PW5/E did not help the cause of Accused Sudershan Tandon (A-8).
115.8. The cross-examination of PW5 done by Sudarshan Tandon (A-8), as such, reflected that it was probing in nature and not for the purpose of showing that said witness was a false witness of prosecution. Sudarshan Tandon (A-8), as such, culled out facts by cross-examining PW5, pertaining to the knowledge and role of PW5 in running the affairs of Society in Question. PW5 stuck to CBI Case No.189/2019 Page 111 of 591 CBI vs. B.M. Sethi & Ors.
his version that he had not attended all the meetings of Society; that he had not resigned from said Society and that he was not having complete information about the working of Society. Though, Sudarshan Tandon (A-8) gave suggestion to PW5 that PW5 knew about the official address of Society which was the office address of mother of PW5 and that PW5 had attended all the meetings of Society but PW5 refuted those suggestions. PW5 denied that he was aware about all the affairs of Society. As such, Sudarshan Tandon (A-8) did not put any material fact while cross- examining PW5 which could have shown that PW5 had the knowledge about all the affairs of Society in Question. Sudarshan Tandon (A-8) did not put any fact to PW5 for showing that PW5 had some false motive in withholding true facts from the Court. Said cross-examination, therefore, did not help the cause of Accused Sudershan Tandon (A-8).
115.9. Other Accused persons did not cross-examine PW5 and therefore, testimony of PW5 remained unchallenged qua them.
115.10. Based on aforesaid appreciation, I find that testimony of PW5 was trustworthy and reliable.
PW6
116. PW6 - Raj Kumar also deposed, on the same lines, as was deposed by previous witnesses regarding him becoming Member of Society in Question in 1983, in the presence of Sudarshan Tandon (A-8). He denied that he had attended meetings CBI Case No.189/2019 Page 112 of 591 CBI vs. B.M. Sethi & Ors.
of Society except one and that he had resigned from the said Society as Member. He confirmed his signatures on the Proceeding Register Ex.PW1/C but denied attending the said proceedings. He also deposed that CBI had taken his specimen signatures, which indicated that he had joined investigation, in this case.
116.1. Sudarshan Tandon (A-8) cross-examined PW6, at length. He asked questions with respect to aspects viz., type of resolutions, passed by Society; date of second meeting of Society; documents, he had submitted for becoming Member of Society and the person who had told him that his membership was struck off. He could not give any specific reply to said questions. It only indicated the possibility of him not attending said meetings and records of meetings being manipulated, at his back. This conclusion only supported prosecution version. He refuted the suggestion of him deposing falsely which indicated that he did not accept the defence of Sudarshan Tandon (A-8). So, his testimony stuck the ground of truthfulness, firmly.
116.2. Other Accused persons did not cross-examine PW6 and therefore, testimony of PW6 remained unchallenged qua them.
116.3. Based on aforesaid appreciation, I find that testimony of PW6 was trustworthy and reliable.
PW7
117. PW7 - Sachin Sharma was cross-examined by Ld. Sr. CBI Case No.189/2019 Page 113 of 591 CBI vs. B.M. Sethi & Ors.
PP for CBI, as he was resiling from his previous statement, recorded by CBI, during investigation, dated 07.11.2006. When so cross-examined, he admitted his signatures on certain documents viz., Ex.PW7/1 to Ex.PW7/3, which were relied by CBI. He confirmed that his statement was recorded by CBI but denied that he had become Member of Society in Question. So, question arises, how evidence of such witness, has to be appreciated? In other words, PW7, partly had supported prosecution and partly had not. His testimony, therefore, was akin to that of a witness who had turned partially hostile against prosecution. Before appreciating his testimony, I must mention here relevant law, which will throw light on issues viz., how testimony of hostile witness needs to be appreciated by the Courts and how testimonies of witnesses which are partially reliable and partially not reliable, have to be appreciated by the Courts.
117.1. It is settled law evidence of a hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remained admissible in the trial and there is no legal bar to base his conviction upon his testimony, if corroborated by other reliable evidence. Reliance in this regard is placed upon case law titled as Bhagwan Singh vs. State of Haryana (1976) 1 SCC 389 and Satpaul vs. Delhi Administration (1976) 1 SCC 727.
117.2. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact.
CBI Case No.189/2019 Page 114 of 591However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. Reliance in this regard is placed upon case law titled as Lallu Manjhi vs. State of Jharkhand AIR 2003 SC 854.
117.3. In the wake of above-mentioned case laws, it is clear that testimony of a hostile witness and testimony of a witness which is not totally reliable or unreliable, should not be dismissed, just like that. Testimony of such witnesses, can be relied by the Courts, by appreciating their testimonies, cautiously and appreciating them in the background of corroboration on material particulars, in the shape of direct or circumstantial evidence.
117.4. Keeping in mind above-mentioned law and understanding of law, I am proceeding further with respect to appreciation of testimony of PW7.
117.5. PW7, in his testimony, did not dismiss the case of prosecution, in totality. He admitted that he had signed Membership Application Form of Society in Question Ex.PW7/1, CBI Case No.189/2019 Page 115 of 591 CBI vs. B.M. Sethi & Ors.
Affidavit dated 10.02.1999 Ex.PW7/2 and Minutes of Meeting dated 28.01.1999 at point A. He also admitted that he had attended one or two meetings of Society in Question. Further, he had become Member of Society in Question through his maternal uncle Sunil Bhardwaj. Maha Nand Sharma (A-4) was his maternal uncle also.
117.6. So, PW7 confirmed in his testimony that he had become Member of Society in Question, had attended meetings of said Society and had signed documents with respect to becoming Member of Society in Question. He did not depose that he had resigned from being Member of Society in Question. He did not depose that all the proceedings in Society in Question, took place in a correct manner and meetings of Society, he had attended, took place in ordinary course of business. As such, his testimony revealed that he was a Member of Society in Question, who had never resigned from said Society. He did not give any clean chit to any of the Accused persons in question, regarding working of Society in Question. Said facts can be clearly inferred from his testimony. This conclusion only supported prosecution version.
117.7. PW7 admitted in his testimony that Maha Nand Sharma (A-4) was his maternal uncle. PW7 was 40 years of age. He did not depose that he was suffering from any mental or physical illness. Now, why would he one fine day, resile from his previous statement, recorded before CBI? Ld. Sr. PP for CBI gave a suggestion to PW7 that he was resiling from his previous statement CBI Case No.189/2019 Page 116 of 591 CBI vs. B.M. Sethi & Ors.
as he was won over by Maha Nand Sharma (A-4). That suggestion, appeared to me, to be probable as neither PW7 nor any of the Accused persons, brought on record any other circumstance, which could have probabilised the reason, based on which, PW7 had resiled from his previous statement. I conclude that PW7 had resiled from his previous statement, only for the purpose of supporting and saving Maha Nand Sharma (A-4). No other conclusion can be drawn, with regard to his testimony, regarding him resiling from his previous statement. This conclusion only supported prosecution.
117.8. For creating any doubt, in the said appreciation of evidence of PW7, Accused persons should have cross-examined him. Surprisingly, none of the Accused persons cross-examined PW7, for reasons best known to them. Their non-cross-examination only gave strength to the version of prosecution, in the wake of above-mentioned appreciation of evidence of PW7.
117.9. Other Accused persons did not cross-examine PW7 and therefore, testimony of PW7 remained unchallenged qua them.
117.10. In the wake of above-mentioned appreciation, I find that testimony of PW7 was trustworthy and reliable to the extent, mentioned above.
PW8
118. PW8 - K. Manoj Subudhi, again supported prosecution partially. His evidence is appreciated by me, keeping in mind the CBI Case No.189/2019 Page 117 of 591 CBI vs. B.M. Sethi & Ors.
law, mentioned above, while appreciating the testimony of PW7. Same is not repeated here for the sake of brevity.
118.1. PW8 stuck to his version that he was never the Member of Society in Question. He had signed Affidavit Ex.PW8/2 without knowing its contents, at the instance of Sunil Bhardwaj, who was his neighbour.
118.2. PW8 deposed that he had not read the contents of his affidavit Ex.PW8/2 and that he had signed the said affidavit, on the asking of Sunil Bhardwaj, who in turn was his neighbour. He also deposed that he did not know how to read English language. That deposition, indicated that PW8 had signed on affidavit Ex.PW8/2 without reading its contents and therefore, he had no knowledge about its contents. That claim of PW8 was not challenged by Accused persons, by giving suggestion to the contrary. So, I believed that PW8 had signed his affidavit Ex.PW8/2 without knowing as to what was written in it.
118.3. A bare perusal of affidavit Ex.PW8/2 revealed that it was an affidavit in which besides, personal details of PW8, rest of the contents were already typed. The verification column did not mention the date and year of its execution. It is not brought on record, as to who had filled the personal details of PW8 in said affidavit. Said circumstances indicated that there was every possibility that said affidavit was prepared with ulterior motives. It was not prepared in ordinary course of business. This conclusion only supported the version of prosecution regarding falsity in said CBI Case No.189/2019 Page 118 of 591 CBI vs. B.M. Sethi & Ors.
affidavit.
118.4. PW8 denied his signatures in Minutes of Meeting dated 27.01.1999. He denied the suggestions viz., that he had deposed that he had never become Member of Society in Question due to lapse of memory; that due to lapse of memory, he denied attending meeting of Society dated 27.01.1999 and for the same reason, he had deposed that he had never become Member of Society in Question. So, he did not accept the defence of Maha Nand Sharma (A-4), who had cross-examined him.
118.5. Besides that, PW8 admitted that Maha Nand Sharma (A-4) had not discussed anything about Society with him.
118.6. As such, testimony of PW8 indicated that he never became Member of Society in Question and his signatures on Minutes of Meeting dated 27.01.1999 were forged. So, said record of Minutes of Meeting was a false record.
118.7. PW8 dismissed the theory of Maha Nand Sharma (A-4), put to him by way of suggestions, regarding him deposing in above manner, lacking details of his membership in Society in Question on account of fading of memory.
118.8. Other Accused persons did not cross-examine PW8 and therefore, testimony of PW8 remained unchallenged qua them.
CBI Case No.189/2019 Page 119 of 591118.9. So testimony of PW8 to that extent was found by me to be trustworthy and reliable.
PW9
119. PW9 - Rakesh Dabas, in his testimony, denied that he had become Member of Society in Question. In fact, he had never heard about said Society. He also denied the contents and signatures of Affidavit Ex.PW9/1 and Resignation Letter Ex.PW9/2, though, they were prepared in his name. He did not take U-turn with regard to said depositions.
119.1. PW9 was cross-examined by Ashutosh Pant (A-7). In the said cross-examination, he denied that he had falsely deposed about not signing documents Ex.PW9/1 & Ex.PW9/2. He denied that signatures on said documents, were his genuine signatures and that he had become Member of Society in Question. He also denied that he had deposed falsely at the behest of CBI. So, he did not accept the defence of Ashutosh Pant (A-7).
119.2. PW9 had deposed that he had not signed at point A & B in an affidavit which noted his name and signatures viz., Ex.PW9/1. He denied suggestion to the contrary, put to him by Ashutosh Pant (A-7), during cross-examination. A closer look of said affidavit Ex.PW9/1 revealed that that it was an affidavit in which besides, personal details of PW9, rest of the contents were already typed. The verification column did not mention the date and year of its execution. It is not brought on record, as to who had CBI Case No.189/2019 Page 120 of 591 CBI vs. B.M. Sethi & Ors.
filled the personal details of PW9 in said affidavit. Said circumstances indicated that there was every possibility that said affidavit was prepared with ulterior motives. It was not prepared in ordinary course of business. This conclusion only supported the version of prosecution regarding falsity in said affidavit.
119.3. PW9 had denied the fact that he had tendered his resignation through Resignation Letter Ex.PW9/2. Again, except his signatures, rest of the details were typed. The name, column of said letter was blank. It was undated. The signatures of PW9 mentioned at point Q-737, clearly differed from his admitted signatures, mentioned in his evidence, when seen with naked eyes. So, I find that said Resignation Letter, was a false document, executed with ulterior motives. Since, Ashutosh Pant (A-7) had claimed by way of suggestion that said letter noted correct signatures of PW9, so, it means that said Accused was claiming that said letter was executed properly by PW9, which is not the case, in view of above-mentioned appreciation and conclusion.
119.4. Besides that, PW9 was not cross-examined with regard to the reason as to why, he had deposed so in his examination-in- chief. The suggestions, based on his false deposition, were vague and not based on specific reasoning.
119.5. Other Accused persons did not cross-examine PW9 and therefore, testimony of PW9 remained unchallenged qua them.
CBI Case No.189/2019 Page 121 of 591119.6. So testimony of PW9 to that extent was found by me to be trustworthy and reliable.
PW10
120. PW10 - Ram Niwas, again was a witness, who denied his involvement in any manner in the affairs of Society in Question. His testimony revealed that he was a complete stranger to Society in Question, who had not executed and signed documents viz., Ex.PW10/1, Ex.PW10/2 & Ex.PW10/3. He did not take U-turn from his said stand in his testimony.
120.1. Ashutosh Pant (A-7) had cross-examined only. In the said cross-examination, he denied the suggestions viz., that he had deposed falsely regarding him denying signatures on documents Ex.PW10/1 to Ex.PW10/3; that those documents bore his genuine signatures and that he had become Member of Society in Question. He also denied that he had deposed falsely, at the behest of CBI. So, he did not accept the defence of Ashutosh Pant (A-7).
120.2. PW10 had deposed that he had not signed at point A in Membership Application Form Ex.PW10/1. He also deposed that he had never become Member of Society in Question. So, as per him, Ex.PW10/1 was a false document. That document, when seen with naked eyes, revealed that except personal details of PW10, rest of the contents were typed. The specific date of execution of said form was not mentioned. The signatures of PW10 mentioned at point A in said document did not match with his signatures, CBI Case No.189/2019 Page 122 of 591 CBI vs. B.M. Sethi & Ors.
mentioned in his evidence. In fact, signatures at point A in Ex.PW10/1 were made in Hindi language but said witness had signed in English language, when his evidence was recorded, in the Court. So, said document was a false document.
120.3. PW10 also had denied that he had signed at point A & B on an affidavit Ex.PW10/2. He denied suggestion to the contrary, put to him by Ashutosh Pant (A-7), during cross-examination. A closer look of said affidavit Ex.PW10/2 revealed that that it was an affidavit in which besides, personal details of PW10, rest of the contents were already typed. The verification column did not mention the date and year of its execution. It is not brought on record, as to who had filled the personal details of PW10 in said affidavit. Said circumstances indicated that there was every possibility that said affidavit was prepared with ulterior motives. It was not prepared in ordinary course of business. This conclusion only supported the version of prosecution regarding falsity in said affidavit.
120.4. PW10 had denied the fact that he had tendered his resignation through Resignation Letter Ex.PW10/3. Again, except his signatures, rest of the details were typed. The name, column of said letter was blank. It was undated. The signatures of PW10 mentioned at point Q-735, clearly differed from his admitted signatures, mentioned in his evidence, when seen with naked eyes. So, I find that said Resignation Letter, was a false document, executed with ulterior motives. Since, Ashutosh Pant (A-7) had CBI Case No.189/2019 Page 123 of 591 CBI vs. B.M. Sethi & Ors.
claimed by way of suggestion that said letter noted correct signatures of PW10, so, it means that said Accused was claiming that said letter was executed properly by PW10, which is not the case, in view of above-mentioned appreciation and conclusion. So, said document was a false document.
120.5. Other Accused persons did not cross-examine PW10 and therefore, testimony of PW10 remained unchallenged qua them.
120.6. So testimony of PW10 to that extent was found by me to be trustworthy and reliable.
PW11
121. PW11 - Narender Kumar Awasthi deposed in his testimony that he had become Member of Society in Question, through Mr. C.M. Madan, after paying Rs.2 Lacs. He admitted his signatures on Membership Application Form Ex.PW11/1 and affidavits Ex.PW11/2 & Ex.PW11/3. He also admitted his signatures, taken by CBI during investigation on Ex.PW11/4. As per him, he was never allotted any flat by Society and he never received back Rs.2 Lacs which he had paid for becoming Member of Society in Question.
121.1. Above-mentioned deposition of PW11 was not challenged by any of the Accused persons, as none of the Accused persons, cross-examined him. Based on his testimony, it is clear that he was never allotted flat by Society and he never got back his CBI Case No.189/2019 Page 124 of 591 CBI vs. B.M. Sethi & Ors.
money, which he had paid for becoming Member of Society in Question. So, he was in total loss. That loss had occurred as he acted on the advise of Mr. C.M. Madan. Questions arose, as to why he was not allotted any flat and why he was not repaid back Rs.2 Lacs by Society once he was not allotted any flat? Question also arose, as to what happened to Rs.2 Lacs, which he had paid to Society? Absence of answers to those questions, indicated that there was every possibility that something was fishy. In other words, absence of answers to the said question indicated that Society was not working legally, as per the provisions of DCS Act and was not maintaining its accounts properly.
121.2. The affidavits of PW11 viz., Ex.PW11/2 & Ex.PW11/3 needed appreciation. Contents of both the said affidavits, were more or less same, as they disclosed the address of PW11 where he was living and the declaration that neither he nor his family members owned any plot of land or house in Union Territory of Delhi. Apart from that, I find that affidavit Ex.PW11/3 noted that PW11 was residing in Union Territory of Delhi for last 11 years. The date and year columns under the heading of verification in said affidavit were blank. It had stamp of concerned Oath Commissioner, affixed on it, dated 24.12.1999. So far as, affidavit Ex.PW11/2 is concerned, it noted stamp of concerned Notary dated 08.02.1999. That affidavit noted the fact under the verification heading that it was verified at Delhi on 08.02.1999. It mentioned that PW11 was residing in Union Territory of Delhi for last 09 years. So, there was evidently difference in the number of years, CBI Case No.189/2019 Page 125 of 591 CBI vs. B.M. Sethi & Ors.
since when, PW11 was residing in Union Territory of Delhi in said two affidavits. Further, one of them had blank columns of date & year, whereas, other had filled columns. Notary stamps on said affidavits reflected that both the said affidavits were executed in the year 1999. In such situation, difference of above facts, mentioned in the affidavits, made those affidavits, doubtful. Coupled with the same, I failed to understand as to why those two affidavits were executed by PW11, pertaining to declaration of similar facts. It only indicated that PW11 had signed those affidavits, without knowing the contents thereof. It also indicated that there was every possibility that those affidavits were prepared, with some ulterior motive. This conclusion, only strengthened the version of prosecution.
121.3. To that extent, I believed the testimony of PW11 to be trustworthy and reliable.
PW12
122. PW12 - Amit Kumar Sharma supported prosecution, partially. He was cross-examined by Ld. Sr. PP for CBI, as he was found resiling from his previous statement. So, he was a hostile witness who did not support prosecution, completely.
122.1. Keeping in mind above-mentioned law, relating to appreciation of testimony of hostile witness, I find that PW12 was not sure in his testimony about his connection with Society in Question. He continuously deposed by using the expressions, "I CBI Case No.189/2019 Page 126 of 591 CBI vs. B.M. Sethi & Ors.
may have..... / I do not recollect..... / I am not aware...../ I might have become...../ I am not certain...../ the signatures might be his signatures ...../. Though said expressions indicated that he was not sure about the facts, he had deposed using said expressions but he did not explain as to why he was not sure about those facts. In other words, he did not explain the reason of him not giving deposition, based on specific details. His testimony revealed that he was 50 years of age when he had deposed in the Court. That age was not on the higher side. He did not depose that he was suffering from any particular ailment which did not allow him to depose with clarity. The only conclusion, after appreciating his testimony, which I can make out is that he had deposed vaguely, intentionally, without any reason, in order to support Accused persons, mainly Accused Maha Nand Sharma (A-4), who was cousin of brother-in- law of his maternal uncle namely Rajender Sharma. No other conclusion can be drawn, based on his testimony. One fact which was deposed by him with clarity, was that the money, he had paid to Society, was never refunded to him. That fact indicated that he had paid the money for becoming Member of said Society. He was a lawyer by profession, admittedly and therefore, must have known the pros & cons of becoming Member of Society in Question. Therefore, it is clear that he wanted to become Member of Society in Question, for which purpose, he had paid money to Society. Since, that money was never returned back to him, so, possibility of that money being misused by those who were running the Society, cannot be ruled out.
CBI Case No.189/2019 Page 127 of 591122.2. PW12 was not sure as to whether he had signed at point Q-606 in Membership Application Form Ex.PW12/1. He had deposed also that he had signed the said form after going through its contents. After comparing said signature of PW12 with his admitted signatures in his affidavit at point Q-301 & Q-302, Ex.PW12/2, I am sure that PW12 had signed the said Membership Application Form at point Q-606. This is based on my own assessment with respect to the manner in which alphabets "A" "S"
"H" "R" were written by PW12. Those alphabets were written with same style and stroke.
122.3. Further, affidavit of PW12 viz., Ex.PW12/2, had blank columns of date & year under the heading of verification. It indicated the possibility of PW12 signing the same, in mechanical manner, without going through its contents. It further indicated the possibility of said affidavit being prepared, in a routine manner, to fill-up lacuna. In other words, I find that there was every possibility that said affidavit was executed for completing the paper work for showing that Society in Question was working properly.
122.4. Testimony of PW12 was not challenged by any of the Accused persons.
122.5. So, in the wake of above-mentioned appreciation, I conclude that PW12 was not a false witness. His testimony was trustworthy and reliable to the extent mentioned above.CBI Case No.189/2019 Page 128 of 591
CBI vs. B.M. Sethi & Ors.
PW13
123. PW13 - Anil Sharma was not cross-examined by any of the Accused persons. His examination-in-chief, therefore, remained unchallenged.
123.1. PW13 deposed that he had not executed and signed documents viz., Ex.PW13/1 & Ex.PW13/2. He did not take U-turn from his said stand in his testimony.
123.2. PW13 had deposed that he had not signed Resignation Letter Ex.PW13/1 at point Q-745 on Resignation Letter. He also denied that he had signed at points Q-334 & Q-335 in Affidavit dated 03.01.1999 Ex.PW13/2. He also deposed that he had never become Member of Society in Question. So, based on his testimony, I find that documents Ex.PW13/1 & Ex.PW13/2 were false documents.
123.3. Document Ex.PW13/1 was allegedly, Resignation Letter of PW13. As such, contents of said document and signatures at points Q-745 were denied by PW13. That document, when seen with naked eyes, revealed that the blue colour ink with which PW13 was shown to have signed at point Q-745 differed from blue colour ink with which his name was written, below his signature. That Resignation Letter was undated. Those facts indicated that there was every possibility that said Resignation Letter was a false documents.
CBI Case No.189/2019 Page 129 of 591123.4. So far as, Affidavit of PW13 viz., Ex.PW13/2 is concerned, I find that except personal details of PW13, rest of the contents were typed. The specific date of execution of said affidavit was not mentioned. The signature of PW13 mentioned at point Q-334 & Q-335 in said document did not match with his signatures, mentioned in his evidence. So, I conclude that said document again was a false document.
123.5. So testimony of PW13 to that extent was found by me to be trustworthy and reliable.
PW14
124. PW14 - Dushyant Vats, in his testimony, denied that he had never become Member of Society in Question and that his signatures on the documents viz., Ex.PW14/1 & Ex.PW14/2 were forged signatures. At the same time, he admitted that signature at page Ex.PW14/3 in Minutes of Meeting dated 27.01.1999 (D-8 at page 87) were not his signatures.
124.1. Further, PW14 admitted that he was never allotted any flat by Society and he had never resigned from said Society. He also never received back the money, he had paid to the Society. So, possibility of his money being misused by Society, cannot be ruled out. That was very much evident.
124.2. Further, in his testimony, I find that he had deposed certain facts, which were not challenged by Accused persons, CBI Case No.189/2019 Page 130 of 591 CBI vs. B.M. Sethi & Ors.
through cross-examination, viz., that he was never allotted flat by Society; that he was never refunded back the money which he had deposited with Society and that he had not signed signed documents Ex.PW14/1 to Ex.PW14/3. Those facts indicated that Society was not working properly. It also indicated that PW14 faced loss of money which he had deposited with Society, for which Society was responsible. The fact that PW14 denied his signatures in Minutes of Meeting dated 27.01.1999, at page 87, D-8, referred as Ex.PW14/3 indicated that said record was false and it was prepared with ulterior motive.
124.3. The Membership Application Form Ex.PW14/1 noted signatures of PW14 at point Q-635 which evidently differed from his signatures, mentioned in his evidence. Similarly, signatures of PW14, mentioned in his evidence differed from his alleged signatures in his affidavit Ex.PW14/2 and Proceedings Register Ex.PW14/3. The difference in signatures of said witness, indicated that those documents were false documents. It only made the oral testimony of PW14 reliable.
124.4. PW14 was cross-examined by Karamvir Singh (A-2) and Manoj Vats (A-11). In the said cross-examination, PW14 deposed that he used to sign differently at different times. He admitted that he used to sign with two names namely - Dushyant Vats and Binni Vats. He admitted his signatures at point X at S.No.41 on page Ex.PW14/3. As such, PW14, in his examination- in-chief, could not identify his signatures at page Ex.PW14/3 but CBI Case No.189/2019 Page 131 of 591 CBI vs. B.M. Sethi & Ors.
identified the same as his own signatures when cross-examined by Karamvir Singh (A-2). The said contradictory versions of PW14, as such, raised the issue, as to whether, he had or had not signed at point X at S.No.41 on page 87 in record of Special GBM dated 27.01.1999. I saw his signature at point X in said record and found that same was made against his name "Binni Vats". The said signature started with the alphabet 'B' and rest of the alphabets were in running writing for completing the name "Binni". PW14 did not explain, as to why, he initially denied his signature, in his examination-in-chief at page 87 in Ex.PW45/9 and later on admitted the same to be his signature, when cross-examined by Accused Karamvir Singh (A-2). Now, PW14, in his examination- in-chief had deposed that he had applied for becoming Member in Society in Question through Sunil Sharma, who was known to his elder brother. Question arises, as to who was the elder brother of Dushyant Vats. Now, name of father of Dushyant Vats as Sh. Samrat Vats. Name of father of Accused Manoj Vats (A-11), was also Sh. Samrat Vats. The residential address of PW14 Dushyant Vats and Accused Manoj Vats (A-11), as per record, was same as "H.No.15, Village & Post-Office Mitraun, Najafgarh, New Delhi". It means that Accused Manoj Vats (A-11) was the elder brother of PW14 - Dushyant Vats. It also means that there was every possibility that PW14 - Dushyant Vats had initially told truth by denying his signature at point X at page 87 in Ex.PW45/9 and he later on, took U-turn, without any reason, by identifying said signature, belonging to him, for saving his brother i.e. Accused CBI Case No.189/2019 Page 132 of 591 CBI vs. B.M. Sethi & Ors.
Manoj Vats (A-11). That is the only inference, one can draw by appreciating his testimony. Further, PW14 was cross-examined by Accused Manoj Vats (A-11) and only one suggestion was given which he admitted, to the effect that he had two names viz., Dushyant Vats and Binni Vats. In support of said oral claims, he did not place on record any documentary proof. So, I conclude that his first statement that signature at point X at page 87 in Ex.PW45/9 did not belong to him, was correct deposition and his U-turn in respect of said fact in the cross-examination, was done by him for saving Accused Manoj Vats (A-11), who was his brother.
124.5. Rest of the Accused persons did not cross-examine PW14.
124.6. So, based on appreciation of testimony of PW14, it is clear that money he had deposited with Society in Question was never returned back. Accused persons did not give any explanation as to why that money was not returned back to him. Infact, Accused persons did not deny the fact that PW14 had deposited money with Society. Non-refund of said money and non-allotment of flat to PW14 indicated that activities in Society in Question were doubtful. To that extent, testimony of PW14 supported the version of prosecution. As such, testimony of PW14 was trustworthy and reliable, in the manner, appreciated above.
PW15
125. PW15 - Jagbir Singh in his testimony, denied the fact CBI Case No.189/2019 Page 133 of 591 CBI vs. B.M. Sethi & Ors.
that he had been Member of Society in Question. In support thereof, he denied his signatures on documents viz., Ex.PW15/1 to Ex.PW15/3, which bore his signatures at points Q-625, Q-313, Q-314 and Q-729. So, his said testimony revealed that he was wrongly shown as Member of Society in Question.
125.1. PW15 was cross-examined by Maha Nand Sharma (A-4). In the said cross-examination, PW15 further explained as to how Membership Application Form Ex.PW15/1, allegedly shown in his name, was false. He explained that his age and occupation along with post office details were wrongly mentioned in said form. He denied the suggestions, based on correctness of said documents. So, he did not accept the defence of Accused Maha Nand Sharma (A-4).
125.2. Further, I compared myself the signatures of PW15, made by him in his evidence, recorded before the Court and his signatures in documents Ex.PW15/1 to Ex.PW15/3. Ex.PW15/1 was the Membership Application Form of PW15, in which he had signed at point Q-625. Similarly, in documents Ex.PW15/2 & Ex.PW15/3, which were Affidavit and Resignation Letter of PW15 respectively, I found that it was shown that PW15 had signed in those documents in English language, at points Q-314/ Q-313 and Q-729 respectively. Now, PW15 had signed in Hindi language in his evidence but his signatures in Ex.PW15/1 to Ex.PW15/3 were made in English language. No suggestion was given to PW15, to the effect that he was acquainted with English language and/ or can CBI Case No.189/2019 Page 134 of 591 CBI vs. B.M. Sethi & Ors.
sign in English language. In the wake of his deposition that he had never become Member of Society in Question and in the wake of above-mentioned appreciation, I found that above-mentioned signatures of PW15 in documents Ex.PW15/1 to Ex.PW15/3 to be forged and false. Further, Affidavit of PW15 Ex.PW15/2 was undated under the heading of verification. It only made the oral testimony of PW15 reliable.
125.3. As such, PW15 refuted the defence of him being a Member of Society in Question. No false motive was imputed to him, when he was cross-examined. There was nothing unreasonable or improbable in his testimony.
125.4. Rest of the Accused persons did not cross-examine PW15 and therefore, his testimony remained unchallenged qua said Accused persons.
125.5. Therefore, I believed the testimony of PW15 to be trustworthy and reliable.
PW16
126. PW16 - Vijay Sharma, in his testimony, denied his signatures on documents viz., Ex.PW16/1 to Ex.PW16/3. So, his said testimony revealed that he was wrongly shown as Member of Society in Question.
CBI Case No.189/2019 Page 135 of 591126.1. As per record, PW16 had allegedly signed in three documents viz., Ex.PW16/1 to Ex.PW16/3. I compared myself the signatures of PW16, made by him in his evidence, recorded before the Court and his signatures in documents Ex.PW16/1 to Ex.PW16/3. The signatures in said documents were made in English Language, whereas, PW16 had signed in Hindi Language in his evidence. He categorically deposed, in his testimony, that he can write his name in Hindi Language. So, said signatures in the records of Society were found by me to be forged and false. No suggestion was given to PW16 by any of the accused persons that he can sign in English Language. The difference in signatures of said witness, indicated that those documents were false documents. Further, Affidavit of PW16 Ex.PW16/2 was undated under the heading of verification. It only made the oral testimony of PW16 reliable.
126.2. PW16 was cross-examined by Accused Maha Nand Sharma (A-4). In the said cross-examination, PW16 deposed that he had become Member of Society in Question through Sunil Bhardwaj and it was said Sunil Bhardwaj who used to fill up all the forms, pertaining to his membership of Society in Question. Infact, Sunil Bhardwaj had paid Rs.100/- from his own pocket as membership fee of Society in Question. He confirmed that he was summoned by CBI in connection with this case and he had given his specimen signatures on various sheets. He had attended two meetings of Society. He was not sure if Sunil Bhardwaj used to sign on his behalf.
CBI Case No.189/2019 Page 136 of 591126.3. Above cross-examination by Accused Maha Nand Sharma (A-4) indicated that said Accused wanted to raise the defence that it was Sunil Bhardwaj who used to sign on behalf of PW16. That defence was not confirmed by PW16. Infact PW16 deposed that Sunil Bhardwaj never used to do writing work in his presence. Even if, it is believed that Sunil Bhardwaj used to sign on behalf of PW16 then also, it was not proper as ordinarily PW16, if he was the Member of Society in Question then he had to sign documents, by himself. The theory of Sunil Bhardwaj signing on behalf of PW16 indicated the possibility of documents being signed by Sunil Bhardwaj without the knowledge of PW16 which attracted illegality.
126.4. PW16 was also cross-examined by Accused Karamvir Singh (A-2). In the said cross-examination, he deposed that he had not filed any complaint against the Office Bearer of the Society or any other Member of Society or any official of the office of RCS. He admitted that he had not filed any claim before any government authority with regard to his membership in Society in Question. Non-filing of any such complaint or claim by itself did not make him a doubtful witness. He was an illiterate person, as deposed by him, in his examination-in-chief. If such person had not filed any complaint or claim as asked from him, then it was not improbable for him. Such like persons often are ignorant of their rights and PW16 is no exception. Further, he denied the suggestion that he used to request someone else to sign as Vijay Sharma on his behalf. That suggestion by Accused Karamvir Singh (A-2) surprised and CBI Case No.189/2019 Page 137 of 591 CBI vs. B.M. Sethi & Ors.
shocked me. Reason being, that Accused Karamvir Singh (A-2) by way of said suggestion wanted to raise defence to the effect that PW16 had delegated his right to sign documents, pertaining to Society to someone else. If that was the case, then Accused Karamvir Singh (A-2) should have explained as to who that "someone else" was. He did not do so. As such, said suggestion indicated that as per Accused Karamvir Singh (A-2), somebody else used to sign on behalf of PW16. That fact by itself, attracted illegality. It only strengthened the case of prosecution to the effect that documents were forged in Society with respect to its working. It did not help the cause of Accused Karamvir Singh (A-2).
126.5. Accused Manoj Vats (A-11) also had cross-examined PW16. In the said cross-examination, PW16 deposed that he did not know as to whether his statement was recorded by CBI in CBI office. He was not aware about the contents of his statement dated 10.11.2006 under Section 161 CrPC. That deposition did not make his testimony doubtful. Reason being, firstly, that his statement in the Court was recorded in the year 2019 which means that after a gap of 13 years from the time, his statement was recorded by CBI, he had deposed in the Court. Possibility of his memory fading away with the passage of time, cannot be ruled out. Infact PW16 did not say that CBI had not recorded his statement, categorically. Coupled with the same, his substantive evidence recorded in the Court, was relevant for the purpose of adjudication of this case. That evidence is already appreciated above. As such, lack of his knowledge with regard to recording of his statement by CBI, did CBI Case No.189/2019 Page 138 of 591 CBI vs. B.M. Sethi & Ors.
not make his testimony doubtful.
126.6. As such, PW16 was not given any suggestion of him deposing falsely by any of the Accused persons, who had cross- examined him.
126.7. Rest of the Accused persons did not cross-examine PW16 and therefore, his testimony remained unchallenged qua said Accused persons.
126.8. Therefore, in the light of above-mentioned appreciation, I believed the testimony of PW16 to be trustworthy and reliable.
PW17
127. PW17 - Papkesh Kumar Bhardwaj, partially supported prosecution case. Keeping in mind the law, laid down in Bhagwan Singh vs. State of Haryana (supra) and Satpaul vs. Delhi Administration (supra), as mentioned above, I am proceeding further.
127.1. PW17 had testified that he had become Member of Society in Question. He identified his signatures on Membership Application Form Ex.PW17/1 and Affidavit Ex.PW17/2. Further, he was never allotted any flat in Society and he never resigned from membership in said Society. Those facts remained unchallenged as none of the Accused persons challenged said facts.
127.2. Karamvir Singh (A-2) cross-examined PW17 and in the said cross-examination, PW17 admitted his signatures appearing at CBI Case No.189/2019 Page 139 of 591 CBI vs. B.M. Sethi & Ors.
point Y against his name at S.No.10 on page already exhibited as Ex.PW16/3. That admission only indicated that he was a Member in Society in Question, who had attended the proceedings of said Society.
127.3. No suggestion was put to PW17 by any of the Accused persons, to the effect that he was deposing falsely.
127.4. While considering the testimony of PW17, I noticed an interesting fact, in his examination-in-chief. In his examination-in- chief, PW17 identified his signatures in Membership Application Form Ex.PW17/1 and his Affidavit dated 10.02.1999 Ex.PW17/2. The signatures of PW17 in those documents were made by him in Hindi language. Those signatures were made, in a manner, which indicated that maker of said signatures was amateur. Those signatures were not made with fluency. Now, PW17 could not identify his signatures in Proceedings Register Ex.PW16/3 (D-8 at page 86, S.No.10 at point Q-549). The said signature in Proceedings Register was made in English language but it was so made in fluent manner. The signatures of PW17 in his evidence were not made in fluent manner. There was evident difference in the signature of PW17, made by him in Proceedings Register Ex.PW16/3 and in his evidence, when seen with naked eyes. PW17 admitted his signature in Proceeding Register when he was cross- examined by Karamvir Singh (A-2). Now, all the above-mentioned facts have to be seen in the light of the fact that PW17 categorically admitted in his examination-in-chief that Maha Nand Sharma (A-4) CBI Case No.189/2019 Page 140 of 591 CBI vs. B.M. Sethi & Ors.
was his brother-in-law. Now, Maha Nand Sharma (A-4), based on the cross-examination of prosecution witnesses, wanted to project a picture that said documents, which were put to PW17 were proper documents, which were executed in ordinary course of business. I have already mentioned above that signatures of PW17, made in above-mentioned documents, in Hindi language, appeared to be in the handwriting of an amateur. Now, why PW17 signed those documents in Hindi language? Why PW17 signed in Proceedings Register in fluent manner in English language? Why PW17, initially, did not identify his signatures in Proceedings Register but identified the same, when cross-examined by Karamvir Singh (A-2)? All those unanswered questions, only indicated that PW17, because of his close relation with Maha Nand Sharma (A-4), wanted to project a picture that documents, so put to him, noted his proper signatures. I did not believe the said projection of the documents, so projected by PW17. I find that PW17, though had claimed in his testimony that he had signed documents Ex.PW17/1, Ex.PW17/2 & Ex.PW16/3 but same was not true. Those signatures in the said documents did not belong to him. He wanted to save Maha Nand Sharma (A-4) as said Accused was his brother-in-law (Jija) and that is why, he had deposed falsely, in said manner. So, suggestion of Ld. Sr. PP for CBI, to the effect that PW17 was deposing falsely for shielding Maha Nand Sharma (A-4), appeared to be probable and reasonable.
127.5. Based on appreciation of testimony of PW17, as noted above, I conclude that he was never the Member of Society in CBI Case No.189/2019 Page 141 of 591 CBI vs. B.M. Sethi & Ors.
Question and he wanted to save Maha Nand Sharma (A-4), in this case. That is why, he had deposed falsely, by admitting his false signatures in documents, referred in his testimony, above. I believed the testimony of PW17 to be trustworthy and reliable, in the manner, appreciated above.
PW18
128. PW18 - Shyam Sunder Bhardwaj partially supported prosecution case. Keeping in mind the law, laid down in Bhagwan Singh vs. State of Haryana (supra) and Satpaul vs. Delhi Administration (supra), as mentioned above, I am proceeding further.
128.1. PW18 had testified that he had become Member of Society in Question. He identified his signatures on Membership Application Form Ex.PW18/1 and Affidavit Ex.PW18/2. Further, he was never allotted any flat in Society and he never resigned from membership in said Society. Those facts remained unchallenged as none of the Accused persons challenged said facts.
128.2. Accused Maha Nand Sharma (A-4) had cross-examined PW18. In the said cross-examination, PW18 again deposed that he had not signed any points Q-274 & Q-275 in Affidavit Ex.PW18/2. So, that affidavit was a false document, based on said deposition.
128.3. Again, PW18, in his examination-in-chief, had deposed that Accused Maha Nand Sharma (A-4) was his brother-in-law CBI Case No.189/2019 Page 142 of 591 CBI vs. B.M. Sethi & Ors.
(Jija). It means that there was every possibility that he wanted to save Accused Maha Nand Sharma (A-4) due to his close relation with said Accused. For appreciating said possibility, I have to consider his deposition and his signatures.
128.4. Before appreciating the testimony of PW18, I must mention here that Accused Accused Maha Nand Sharma (A-4), based on the cross-examination of prosecution witnesses, wanted to project a picture that said documents, which were put to PW18 were proper documents, which were executed in ordinary course of business. PW18 also deposed on the same lines that those documents were executed in ordinary course of business and they were true and correct.
128.5. Question arises, whether those documents were true and correct? Question also arises, whether picture projected by PW18 regarding due execution of documents, identified by him, was correct picture or false picture? In order to get answers to said questions, I must appreciate the signatures of PW18 in those documents, identified by him, in his testimony.
128.6. The signatures of PW18, made by him, in his evidence, were so made in running manner. As such, said signatures were not decipherable. I cannot understand his name, from said signatures. Surprisingly, his signature at point Q-576, was made in a manner, which reflected his name, in clear terms. His signatures at points Q-274 & Q-275 in his Affidavit Ex.PW18/2, were small initials, CBI Case No.189/2019 Page 143 of 591 CBI vs. B.M. Sethi & Ors.
made with green colour ink pen. Those initials clearly were distinguishable from his signatures, referred above. So, signatures of PW18 were not uniform in those documents and in the evidence, recorded in the Court. I find that PW18, with ulterior motives, had admitted his false signatures in documents Ex.PW18/1 & Ex.PW18/2, for saving Accused Maha Nand Sharma (A-4), who was his Jija (brother-in-law). So, suggestion of Ld. Sr. PP for CBI that PW18 was deposing falsely for saving Accused Maha Nand Sharma (A-4) was proper and reasonable suggestion. That was the only possibility, which remained in this case, with regard to the reason, as to why PW18 had deposed in said manner, in this case.
128.7. No suggestion was put to PW18 by any of the Accused persons, to the effect that he was deposing falsely.
128.8. Based on appreciation of testimony of PW18, as noted above, I conclude that he was never the Member of Society in Question and he wanted to save Maha Nand Sharma (A-4), in this case. That is why, he had deposed falsely, by admitting his false signatures in documents, referred in his testimony, above.
PW19
129. PW19 - Naresh Kumar, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership CBI Case No.189/2019 Page 144 of 591 CBI vs. B.M. Sethi & Ors.
Application Form Ex.PW19/1 and his Affidavit Ex.PW19/2.
129.1. PW19 was not cross-examined by any of the Accused persons.
129.2. As such, testimony of PW19 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
129.3. I believed his testimony to be trustworthy and reliable.
PW20
130. PW20 - Mool Chand, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership Application Form Ex.PW20/1 and his Affidavit Ex.PW20/2.
130.1. PW20 was not cross-examined by any of the Accused persons.
130.2. As such, testimony of PW20 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
130.3. I believed his testimony to be trustworthy and reliable.
CBI Case No.189/2019 Page 145 of 591PW21
131. PW21 - Sudhir Sharma, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership Application Form Ex.PW21/1 and his Affidavit Ex.PW21/2. PW21 also identified the signatures of his late brother Sh. Sunil Kumar Sharma on Membership Application Form Ex.PW21/3 and his Affidavit Ex.PW21/4.
131.1. PW21 was not cross-examined by any of the Accused persons.
131.2. As such, testimony of PW21 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
131.3. I believed his testimony to be trustworthy and reliable.
PW22
132. PW22 - Sushil Garg, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership CBI Case No.189/2019 Page 146 of 591 CBI vs. B.M. Sethi & Ors.
Application Form Ex.PW22/1 and his Affidavits Ex.PW22/2 & Ex.PW22/3 132.1. PW22 was not cross-examined by any of the Accused persons.
132.2. As such, testimony of PW22 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
132.3. I believed his testimony to be trustworthy and reliable.
PW23
133. PW23 - Sunil Kumar Goyal, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership Application Form Ex.PW23/1 and his Affidavits Ex.PW23/2 & Ex.PW23/3.
133.1. PW23 was not cross-examined by any of the Accused persons.
133.2. As such, testimony of PW23 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
CBI Case No.189/2019 Page 147 of 591133.3. I believed his testimony to be trustworthy and reliable.
PW24
134. PW24 - Sushil Kumar, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership Application Form Ex.PW24/1 and his Affidavits Ex.PW24/2 & Ex.PW24/3.
134.1. PW24 was not cross-examined by any of the Accused persons.
134.2. As such, testimony of PW24 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
134.3. I believed his testimony to be trustworthy and reliable.
PW25
135. PW25 - Anil Kumar, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership CBI Case No.189/2019 Page 148 of 591 CBI vs. B.M. Sethi & Ors.
Application Form Ex.PW25/1 and his Affidavits Ex.PW25/2 & Ex.PW25/3.
135.1. PW25 was not cross-examined by any of the Accused persons.
135.2. As such, testimony of PW25 remained unchallenged. There was nothing doubtful about his oral testimony and the documents he had exhibited.
135.3. I believed his testimony to be trustworthy and reliable.
PW26
136. PW26 - Anuj Goyal, in his testimony, as such, had deposed that he had become Member in Society in Question, after paying membership fee. Later on, he resigned from being Member of said Society and received back the amount, he had deposited with Society. He identified his signatures on Membership Application Form Ex.PW26/1 and his Affidavits Ex.PW26/2 & Ex.PW26/3.
136.1. PW26 was not cross-examined by any of the Accused persons.
136.2. PW26 had identified his signatures on documents viz., Ex.PW26/1, Ex.PW26/2 & Ex.PW26/3. A closer look of said documents revealed that signatures of this witness, made by him, in his testimony were clearly different from the signatures, he had CBI Case No.189/2019 Page 149 of 591 CBI vs. B.M. Sethi & Ors.
made in those documents.
136.3. Coupled with the same, I find that in Membership Application Form Ex.PW26/1, name of this witness was written as 'Anuj Singhal s/o Anil Singhal'. The columns of 'Age, Number of Shares and Monthly Income' were blank in said form. Why those columns were blank? None of the accused persons explained the same. Accused persons should have explained the same as that was part of record of Society and accused persons, in their respective capacities, had the power, authority and/ or right to go through the said document, for maintaining it correctly. Absence of answer to the said question, indicated possibility of said document being a forged document. It also indicated that PW26 had either no knowledge about said document or he was hiding truth from the Court, which in given circumstances, only helped Accused persons.
136.4. The Affidavits of PW26 viz., Ex.PW26/2 & Ex.PW26/3, again noted him as 'Anuj Singhal s/o Anil Singhal', instead of 'Anuj Goyal s/o Anil Goyal'. The signatures in the said Affidavits did not match with each other and also did not match with the signatures, made by this witness in his evidence.
136.5. After comparing signatures of PW26, made by him in his evidence, to the signatures, he had made in documents Ex.PW26/1 to Ex.PW26/3, I found that manner in which alphabets 'A', 'N', 'U' & 'J' were not made uniformly. The alphabets 'N' & 'U' were hardly decipherable in Ex.PW26/1. In Ex.PW26/2 at CBI Case No.189/2019 Page 150 of 591 CBI vs. B.M. Sethi & Ors.
points A1 & A2, there were only initials of some person. Those initials were not decipherable and evidently, did not match with the signatures of PW26, made by him in his evidence, recorded before the Court. Similarly, in Ex.PW26/3, there were only initials at points A1 & A2. Surprisingly, initials in Ex.PW26/2 & Ex.PW26/3 also did not match with each other. Those initials did not make out any alphabet of English language and were made in some alien language. It only indicated that documents Ex.PW26/1 to Ex.PW26/3 were forged and fabricated.
136.6. Why PW26 identified his signatures in Ex.PW26/1 to Ex.PW26/3, when evidently, they did not match with his signatures, made by him in his evidence? Absence of answer to the said question only indicated one possibility, which was that he wanted to save Accused persons. No other possibility was possible.
136.7. In the wake of above-mentioned appreciation, I found that the testimony of PW26, supported prosecution version only.
PW27
137. PW27 - Ashok Sood, in his testimony, had deposed that he had become Member of Society in Question through Accused Pankaj Madan (A-5) by paying membership fee. He had also paid cash amount of Rs.3 Lacs and Rs.94,000/- through cheque. The purpose of payment of said amounts through cheque and in cash, was not explained by him. Accused persons namely Accused Maha Nand Sharma (A-4), Accused Pankaj Madan (A-5), Accused CBI Case No.189/2019 Page 151 of 591 CBI vs. B.M. Sethi & Ors.
Ashwani Sharma (A-6), Accused Sudershan Tandon (A-8), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) who were connected with the working of Society in Question, should have cross-examined this witness for explaining the purpose of receiving said big amounts. It was not done by any of the Accused persons. Infact, Accused persons namely Pankaj Madan (A-5), Vikas Madan (A-13), Poonam Awasthi (A-14) and Narinder Dhir (A-15) had cross- examined this witness to a limited extent. In the said cross- examination, this witness deposed only two facts viz., that receipt in lieu of payments was issued by Society and that he was still a Member of said Society. He did not explain the purpose of giving said amounts to Society. Why some amount was taken in cash, was not explained by him. Those were material questions which accused persons should have asked from him for showing that Society was working properly and handling its financial affairs, truthfully. None of the accused persons cross-examined PW27 with regard to said aspects. His testimony only supported prosecution version regarding illegalities and manipulations in the working of Society in Question and in the handling of financial affairs of Society.
137.1. PW27 identified his signatures on Membership Application Form Ex.PW27/1 and his Affidavit Ex.PW27/2. The signatures of this witness, made by him in his evidence, were similar to those which were mentioned in the said documents.
CBI Case No.189/2019 Page 152 of 591137.2. Testimony of this witness was free from any doubt. I believed to be trustworthy and reliable.
PW28
138. PW28 - Dr. Harvinder Singh Kukreja, in his testimony, had deposed that he had become of Member of Society in Question through C.M. Madan and had paid Rs.10,000/- for said membership. He identified his signatures on Membership Application Form Ex.PW28/1 and Affidavit Ex.PW28/2. His signatures in the evidence matched with his signatures, made in said documents.
138.1. PW28 also deposed that he had attended one or two meetings of Society in Question.
138.2. Besides that PW28 was cross-examined by Accused persons namely Pankaj Madan (A-5), Vikas Madan (A-13), Poonam Awasthi (A-14) and Narinder Dhir (A-15). In the said cross-examination, he deposed about the working of Society in Question, by deposing that he had attended one meeting of said Society in the residence of C.M. Madan and another meeting at Shakarpur, which were attended by many Members of Society. He was not aware about the proceedings that took place in said meetings and the person who had prepared and signed those proceedings. He had reached late in those meetings.
138.3. Testimony of PW28, therefore, indicated that proceedings in meetings in Society in Question, took place without CBI Case No.189/2019 Page 153 of 591 CBI vs. B.M. Sethi & Ors.
his knowledge and he did not know about the person who had maintained record of said proceedings. Further, he was not given any suggestion to the effect that Society had informed him or had tried to inform him about the proceedings in the meetings, in some particular manner. None of the other Accused persons had cross- examined him. So, it indicated that Society conducted meetings surreptitiously.
138.4. Based on said appreciation, I believed his testimony to be trustworthy and reliable.
PW29
139. PW29 - Pradeep Aggarwal, as such, did not support prosecution version, in totality. He was cross-examined by Ld. Sr. PP for CBI but then also, he did not accept the version of CBI completely. So, he partially supported prosecution and partially did not. His evidence is appreciated by me, keeping in mind the mandate of law, given in case Bhagwan Singh vs. State of Haryana (supra) and Satpaul vs. Delhi Administration (supra).
139.1. PW29 categorically deposed that he had become Member of Society in Question along with his father late Sh. Ved Prakash Aggarwal. He deposed that his father was friend of Sh. C.M. Madan. He identified the Membership Application Form and Affidavit, which he had signed and which his father had signed. He disclosed the names of persons, who were made Members in CBI Case No.189/2019 Page 154 of 591 CBI vs. B.M. Sethi & Ors.
Society in Question, through his father. He deposed in his examination-in-chief that he and his father had paid Rs. 12,000/- each in cash to Sh. C.M. Madan. When he was cross-examined by Ld. Sr. PP for CBI, he deposed that he had not mentioned in his statement made to the CBI that he had paid Rs. 12,000/- to Accused Pankaj Madan (A-5) in 2000-2001. Question arises as to whether he had paid Rs. 12,000/- to Accused Pankaj Madan (A-5) or not ?
139.2. In order to get answer of above mentioned question, I have to appreciate documents, signed by PW-29. After comparing signatures of PW29 which he had made in his evidence, recorded in the Court with his signatures in Membership Application Form Ex.PW29/1 and Affidavit Ex.PW29/2, I find that signatures of this witness, made by him in his evidence, categorically highlighted each alphabet of his first name. The said alphabets of his first name were made in a fluent manner. The strokes of said alphabets of his first name were clear. I did not get the impression that said alphabets were copied from original. Now, when I saw his signatures in Ex.PW29/1 & Ex.PW29/2, I find that those signatures were underlined by the maker. That underlining was not mentioned in the signatures of this witness, which he had made in his evidence. Coupled with the same, signatures of this witness in Ex.PW29/1 & Ex.PW29/2 seemed to have been made by somebody who tried to copy the original. The manner in which alphabets 'P', 'a', 'r', 'd', 'ee' ,'p' were made in those documents were not fluently made and they differed with the signatures which CBI Case No.189/2019 Page 155 of 591 CBI vs. B.M. Sethi & Ors.
this witness had made in his evidence.
139.3. The net result is that signatures of PW29 were not uniformly made by him in above-mentioned documents, in comparison to his signatures, made in evidence. Possibility of said documents, prepared and signed at the back of this witness cannot be ruled out. Further, in the background of said appreciation, I find that PW29 intentionally had admitted his false signatures on documents Ex.PW29/1 & Ex.PW29/2, in order to save accused persons. No other possibility was present, with regard to his testimony.
139.4. This witness knew Accused Pankaj Madan (A-5) and identified him also in the Court. He also admitted that he had paid Rs.12,000/- for his membership to C.M. Madan. Since, I have concluded that this witness had falsely admitted his signatures on documents Ex.PW29/1 & Ex.PW29/2, so, there remained possibility of him denying the fact of handing over Rs.12,000/- in cash to Accused Pankaj Madan (A-5), for saving him, as this witness categorically admitted in his testimony that his father was friend of Late Sh. C.M. Madan, who in turn is father of Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13). So, I conclude that PW29 had intentionally refuted the suggestions put to him by Ld. Senior PP for CBI regarding him paying Rs. 12,000/- to Accused Pankaj Madan (A-5), for saving said accused. No other possibility was present, in the wake of above mentioned appreciation. Moreso, where PW-29 did not give the date, time and CBI Case No.189/2019 Page 156 of 591 CBI vs. B.M. Sethi & Ors.
place details when he and his father had paid Rs.12,000/- to Sh. C.M. Madan, who is no more alive, today. No other possibility and inference can be seen in the light of appreciation of his testimony.
PW30
140. PW30 - Kavinder Garg in his testimony deposed that he had become Member of Society in Question after paying requisite membership fee in 1998-1999. He confirmed that he had attended 4-5 meetings of Society and that his father was also Member of said Society. He identified his Membership Application Form Ex.PW30/1 and his Affidavit dated 08.02.1999 Ex.PW30/2. He also identified Membership Application Form of his father Ex.PW30/3 and Affidavit of his father dated 08.02.1999 Ex.PW30/4.
140.1. PW30 did not deposed completely in favour of prosecution and therefore, with the permission of the Court, he was cross-examined by Ld. Sr. PP for CBI. His evidence is appreciated by me, keeping in mind the mandate of law, given in case Bhagwan Singh vs. State of Haryana (supra) and Satpaul vs. Delhi Administration (supra). In the said cross-examination, he refuted the suggestions of him paying to Accused Vikas Madan (A-13) with respect to Society in Question and that him deposing falsely for shielding Accused Vikas Madan (A-13).
140.2. PW30 was not cross-examined by any of the accused persons.
CBI Case No.189/2019 Page 157 of 591140.3. Testimony of PW30, therefore, indicated that he and his father had become Members of Society in Question. It also reflected that he was acquainted with Accused Vikas Madan (A-13) and Accused Pankaj Madan (A-5). He also confirmed that Accused Vikas Madan (A-13) had come to his father along with his father C.M. Madan, 4-5 times, in relation to Society work.
140.4. Based on above-mentioned testimony, it is clear that PW30 and his father were acquainted with C.M. Madan and accused persons Accused Vikas Madan (A-13) and Accused Pankaj Madan (A-5). It also indicated that C.M. Madan and Accused Vikas Madan (A-13) had come to his home with regard to Society work. Coupled with the same, his testimony indicated that he had taken membership of Society in Question through C.M. Madan. All the said facts, only indicated the possibility of him shielding Accused Vikas Madan (A-13) with some ulterior motives, as he did not mention the name of person, to whom he and his father had made payments with respect to their respective memberships of Society in Question. Possibility of him shielding Accused Vikas Madan (A-13), as such, cannot be ruled out.
140.5. PW30, therefore, was not found by me to be a false witness.
PW31
141. PW31 - Anju Sharma was the wife of Accused Ashwini Sharma (A-6). She identified her Membership Application Form CBI Case No.189/2019 Page 158 of 591 CBI vs. B.M. Sethi & Ors.
Ex.PW31/1 and her Affidavit dated 03.06.1999 Ex.PW31/2. She also identified her Resignation Letter Ex.PW31/3. She confirmed that she had not attended of meeting of Society in Question and denied her signatures on Minutes of Meeting dated 05.06.1999 at S.No.20, Ex.PW31/4.
141.1. PW31 was not cross-examined by any of the accused persons.
141.2. Testimony of PW31, therefore, indicated that she was a Member of Society in Question but she had not signed on the Minutes of Meeting dated 05.06.1999 at page Ex.PW31/4.
141.3. There was nothing to doubt her said testimony. I believed her testimony to be trustworthy and reliable.
PW32
142. PW32 - Harvinder Singh deposed in his testimony that he was working in the office of RCS (South Zone) where Accused Karamvir Singh (A-2) and B.K. Grover were also working. He identified signatures of Accused Karamvir Singh (A-2) in the note- sheet file relating to Society in Question from point Y to Y5. He was acquainted with Accused Karamvir Singh (A-2).
142.1. PW32 was not cross-examined by any of the Accused persons.
CBI Case No.189/2019 Page 159 of 591142.2. As such, there was nothing doubtful about his testimony. I believed his testimony to be trustworthy and reliable.
PW33
143. PW33 - Narain Singh identified the Audit Report of Accused Urmila Gupta (A-9) as Ex.PW33/1 which noted her signatures at point A & A1. He also identified her signatures at point A in Covering Letter of the Audit Report, Ex.PW33/2.
143.1. PW33 was not cross-examined by any of the Accused persons.
143.2. As such, there was nothing doubtful about his testimony. I believed his testimony to be trustworthy and reliable.
PW34
144. PW34 - Anil Dalal was an official witness, who had identified the signatures of Smt. Anita Rawat, the then Manager, of the above DSC bank, where he was working at point A in letter Ex.PW34/1.
144.1. PW34 was not cross-examined by any of the Accused persons.
144.2. As such, there was nothing doubtful about his testimony. I believed his testimony to be trustworthy and reliable.
CBI Case No.189/2019 Page 160 of 591PW35
145. PW35 - Balraj Singh was an official witness, who had identified the memo dated 25.05.2007 as Ex.PW35/1, bearing his signatures at point A. That memo pertained to handing over of certain documents by him to CBI on behalf of his bank.
145.1. PW35 was cross-examined by Accused persons namely Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross-examination, he admitted that he had no personal knowledge about the documents which were handed over to CBI and he was not posted in the Friends Colony Branch of SBI during the period when those documents were prepared. Said cross- examination did not make his testimony doubtful as he was an official witness who had submitted documents with CBI during investigation, at the instance of his employer bank. Those documents and memo Ex.PW35/1 were relevant.
145.2. The description of documents Ex.PW35/1 (colly) (D-31) is as follow :-
a) Account Opening Form of Account No.75066 by the Safdarjung CGHS along with copy of its Bye Laws (18 pages)
b) Pay Order/ DD Requisition Slips dated 28.04.2003 and 24.06.2003 in favour of Delhi Development Authority (2 slips).
c) Cheque No.053025 dated 28.04.2003 and 053051 dated 24.06.2003 for Rs.7,30,960/- and Rs.85,772/- issued CBI Case No.189/2019 Page 161 of 591 CBI vs. B.M. Sethi & Ors.
from A/c No.75066 (2 cheques).
d) Pay Order No.052215 dated 28.04.2003 for Rs.7,29,500/- and Pay order No.052698 dated 24.06.2003 for Rs.85,600/- in favour of DDA (2 Pay Orders)
e) Computerised bank statement of account no.010000075066 (now a/c no.10484942810) since 12.04.2003 till 31.03.2006 duly certified by Sh. A. Saxena, Branch Manager (7 pages).
145.3. None of the other Accused persons cross-examined PW35.
145.4. As such, there was nothing doubtful about his testimony. I believed his testimony to be trustworthy and reliable.
PW36
146. PW36 - Rajeev Bagai deposed in his testimony that he had issued a cheque Ex.PW36/1 in favour of DDA, amounting to Rs.95,207/-, which he had given to Ashok Sood, drawn on his bank account no.8921, which was a joint account with his wife, maintained in United Bank of India. That amount was later on received back by him.
146.1. There was nothing abnormal or improbable about his said deposition.
146.2. His said examination-in-chief was not challenged by any of the Accused persons by way of cross-examination.
CBI Case No.189/2019 Page 162 of 591146.3. So, testimony of PW36 remained unchallenged and it was believed by me to be trustworthy and reliable.
PW37
147. PW37 - Rajender Thakur had deposed that he had become Member of Society in Question through his brother Accused Vijay Thakur (A-12). He had paid membership fee of Rs.100/- initially and later on, had paid Rs.12,000/- & Rs.30,000/-. He identified his signatures on Membership Application Form Ex.PW37/1 & Affidavit dated 08.02.1999 Ex.PW37/2.
147.1. There was nothing abnormal or improbable about his said deposition.
147.2. His said examination-in-chief was not challenged by any of the Accused persons by way of cross-examination.
147.3. So, testimony of PW37 remained unchallenged and it was believed by me to be trustworthy and reliable.
PW38
148. PW38 - Laxmi Kant Pandey was an official witness, who had deposed about the account of DCHFC Ltd. He identified the documents which he had supplied to IO during investigation as Ex.PW38/2 to Ex.PW38/5 through Memo Ex.PW38/1. He identified his signatures on the said Memo and signatures of the persons who had signed said documents.
CBI Case No.189/2019 Page 163 of 591148.1. There was nothing abnormal or improbable about his said deposition.
148.2. His said examination-in-chief was not challenged by any of the Accused persons by way of cross-examination.
148.3. So, testimony of PW38 remained unchallenged and it was believed by me to be trustworthy and reliable.
PW39
149. PW39 - Rohtash Singh again was an official witness, who had deposed about the amounts, deposited by Society in Question with his bank in favour of DDA, through Challans Ex.PW39/2 & Ex.PW39/3. Those documents were given by him to IO during investigation in this case and which were so seized by IO through Memo Ex.PW39/1.
149.1. There was nothing abnormal or improbable about his said deposition.
149.2. His said examination-in-chief was not challenged by any of the Accused persons by way of cross-examination.
149.3. So, testimony of PW39 remained unchallenged and it was believed by me to be trustworthy and reliable.
PW40
150. PW40 - Kishore Kumar Khanna deposed in his CBI Case No.189/2019 Page 164 of 591 CBI vs. B.M. Sethi & Ors.
testimony that he had prepared Audit Report Ex.PW40/1 (D-13), on the directions of RCS as he was a Chartered Accountant who was on the panel of Auditors of said office. He identified said Report as Ex.PW40/1, bearing his signature at point A, on each page.
150.1. PW40 was cross-examined by Accused persons namely Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross-examination, he deposed that he had not interacted with any Members of the Society and had prepared Audit Report on the basis of records, produced before him. Said deposition, by itself, did not make the Audit Report, he had prepared, doubtful. He was an Auditor on the panel of the office of RCS and was directed by the said office to prepare Audit Report, based on record of Society in Question. He prepared the Audit Report, based on records of Society in Question. As such, there was nothing doubtful about the said Report and / or the manner in which he had prepared said Report.
150.2. There was nothing abnormal or improbable about his said deposition.
150.3. His said examination-in-chief was not challenged by any of the Accused persons by way of cross-examination.
150.4. So, testimony of PW40 remained unchallenged and it was believed by me to be trustworthy and reliable.
CBI Case No.189/2019 Page 165 of 591PW41
151. PW41 - Narender Shah, in his testimony, had deposed that he was a businessman, doing business of Garment Export and Finance under the name & style of M/s. Narender Shah Manoj Kumar and M/s. N.S.M.K. Investments Pvt. Ltd. He was acquainted with Accused Pankaj Madan (A-5) and had given Rs.50 Lacs and Rs.6 Lacs through cheques in 2002 & 2003. Said Accused Pankaj Madan (A-5) did not return back the said amount, he had received from PW41 except Rs.1.5 Lacs.
151.1. PW41 was cross-examined by Accused persons namely Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross-examination, he clarified that he had obtained permission from RBI for doing finance business and had not initiated any legal proceedings against Accused Pankaj Madan (A-5) for recovery of loan amount. He explained that Accused Pankaj Madan (A-5) had deposited all original title deeds of his property at Laxmi Nagar and had also executed a Mortgage Deed regarding the same in his favour. He admitted that Accused Pankaj Madan (A-5) had executed his Power of Attorney in his favour. Those documents were executed by Accused Pankaj Madan (A-5) in 2002-2003.
151.2. PW41 further deposed that his statement was recorded by IO but he had not told IO about the above-mentioned CBI Case No.189/2019 Page 166 of 591 CBI vs. B.M. Sethi & Ors.
documents, executed by Accused Pankaj Madan (A-5), in his favour and with regard to deposition of original title deeds by Accused Pankaj Madan (A-5) with him. He admitted that he had not initiated legal proceedings against Accused Pankaj Madan (A-5) for the reason that he had with him title deeds of aforementioned property of Accused Pankaj Madan (A-5). He also deposed that Accused Pankaj Madan (A-5) had executed said documents with regard to that property in his favour and therefore, he can sell the said property whenever he wish to.
151.3. Rest of the Accused persons did not cross-examine PW41 and therefore, his testimony remained unchallenged qua them.
151.4. The testimony of PW41, therefore, indicated that he had given Rs.50 Lacs and Rs.6 Lacs to Accused Pankaj Madan (A-5) in 2002 & 2003 respectively. That amount was never returned back by Accused Pankaj Madan (A-5), in total. Infact, Accused Pankaj Madan (A-5) had given original title deeds of his property at Laxmi Nagar to PW41. The said version of PW41 is believable. No doubt was created by Accused persons, who had cross-examined him, in the testimony of PW41.
151.5. There was nothing abnormal or improbable about his said deposition.
151.6. So, testimony of PW41 was believed by me to be trustworthy and reliable.
CBI Case No.189/2019 Page 167 of 591PW42
152. PW42 - Sandeep Kumar deposed that being Director in Education Department where Accused Karamvir Singh (A-2) was employed as UDC, he was competent to remove said Accused. In December 2007, he had granted Sanction Order Ex.PW42/1 for prosecution of said Accused.
152.1. PW42 was cross-examined by Accused Karamvir Singh (A-2). He was asked questions with regard to the time when he had received requisition from CBI and other communications from CBI with regard to this case during investigation. He did not recollect the exact time, when said communications were made with him by CBI. Said want of knowledge on his part, did not make his testimony doubtful as his evidence was recorded after a gap of 12 years from the time, he had communicated with CBI during investigation and it was but natural that his memory with regard to said facts had faded away.
152.2. PW42 was asked questions with regard to non- mentioning of date below his signature or any other place in the Sanction Order Ex.PW42/1. Non-mentioning of date by itself did not make the Sanction Order doubtful. PW42 had admitted his signature in the said Sanction Order and it was not disputed by Accused Karamvir Singh (A-2) that said witness had not signed the Sanction Order at point A. So, admission of his own signature in said Sanction Order, was sufficient to prove said Sanction Order. Absence of date, lost its significance, thereafter.
CBI Case No.189/2019 Page 168 of 591152.3. PW42 refuted the suggestions, based on probable defence of Accused Karamvir Singh (A-2) viz., that he was not Competent Authority to remove Accused Karamvir Singh (A-2) from services at the time of passing of Sanction Order; that he had merely signed the draft Sanction Order, produced before him by CBI, without application of mind and without perusing the documents; that he was deposing falsely. So, he did not admit the defence of Accused Karamvir Singh (A-2).
152.4. PW42 was a government servant who had passed Sanction Order Ex.PW42/1 bearing his signature at point A, which he identified in his testimony. No fact was brought on record through cross-examination by Accused Karamvir Singh (A-2) which could have been indicated and he had not signed the said order, otherwise, than in ordinary course of his official duties.
152.5. Rest of the Accused persons did not cross-examine PW42 which means that they had no issue with the facts, deposed by said witness.
152.6. There was nothing abnormal or improbable about his said deposition.
152.7. So, testimony of PW42 was believed by me to be trustworthy and reliable.
CBI Case No.189/2019 Page 169 of 591PW44
153. PW44 - Shankar Prasad was an official witness who had handed over demand draft slip and cheque of Rs.30 Lacs Ex.PW44/2 & Ex.PW44/3 through Memo Ex.PW44/1 to IO during investigation. Based on said cheque, a demand draft of Rs.30 Lacs was prepared in favour of DDA by IndusInd Bank. The cheque was issued by Narender Shah Manoj Kumar who also filled it.
153.1. None of the accused persons, cross-examined him. His testimony, therefore, remained unchallenged.
153.2. There was nothing doubtful about his testimony.
153.3. I believed his testimony to be trustworthy and reliable.
PW45
154. PW45 - Jagroop Singh was initial Officer of CBI who had conducted preliminary inquiry into the allegations, in this case. He deposed about collection of documents through Memos from the office of RCS and Society. Those Memos were exhibited as Ex.PW45/1 & Ex.PW45/5. The documents, he had collected through said Memos were exhibited as Ex.PW45/2 to Ex.PW45/4 and Ex.PW45/6 to Ex.PW45/15 respectively.
154.1. In his cross-examination by accused persons namely Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), CBI Case No.189/2019 Page 170 of 591 CBI vs. B.M. Sethi & Ors.
Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15), he deposed that he had conducted said inquiry, pursuant to order of Hon'ble High Court. Details of said order, he could not recollect. Further, he could not recollect as to whether he had imputed any role to any person in his inquiry Report. Lack of knowledge of said facts did not make his testimony doubtful as documents, he had exhibited, indicated that he had done preliminary inquiry, as deposed by him. His official rank was not disputed by accused persons and it was also not disputed that he had conducted preliminary inquiry in this case.
154.2. PW45, in his cross-examination by Accused Maha Nand Sharma (A-4), Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7), deposed that he had collected documents and recorded statements of witnesses, as per the provisions of CBI Manual but could not recollect said provisions. Lack of details of said provisions, did not make his testimony doubtful as procedural laws are handmaid of justice and not hand mistress. Fact of the matter remains that he had conducted preliminary inquiry and had collected documents through Memos as per his testimony. Those facts held their ground and no doubt can be raised with regard to said facts.
154.3. Rest of the accused persons did not cross-examine this witness and therefore, his testimony remained unchallenged, qua them.
CBI Case No.189/2019 Page 171 of 591154.4. Based on aforesaid appreciation, I believed his testimony to be trustworthy and reliable.
PW46
155. PW46 - Suresh Kumar was the bank officer who testified that he had given documents Ex.PW46/5 (colly) to CBI in the year 2007 through Memos Ex.PW46/1 to Ex.PW46/4.
155.1. None of the Accused persons cross-examined PW46 which means that they had no issue with the facts, deposed by said witness.
155.2. There was nothing abnormal or improbable about his said deposition.
155.3. So, testimony of PW46 was believed by me to be trustworthy and reliable.
PW47
156. PW47 - Narender Kumar was the Competent Authority who had accorded Sanction for prosecution of Accused Narender Kumar (A-3). He identified his Sanction Order as Ex.PW47/1, bearing his signature at point A. 156.1. PW47 was cross-examined by Accused Narender Kumar (A-3) only. In the said cross-examination, he did not recollect the details of this case. He was not aware about the election process of CBI Case No.189/2019 Page 172 of 591 CBI vs. B.M. Sethi & Ors.
Societies, conducted in the office of RCS and did not collect the nature of allegations against Accused Narender Kumar (A-3). He also did not recollect the documents, he had received from CBI, along with request letter. Lack of knowledge with regard to said facts, did not make his testimony doubtful as he had given Sanction for prosecution of Accused Narender Kumar (A-3) in the year 2007, whereas, his testimony was recorded in the year 2019. Gap of more than 10 years was evident between the said chain of events and it was but natural that his memory had faded away. So, it was not unnatural for him to depose in said manner.
156.2. Besides that, PW47 was not sure if being Commissioner- cum-Secretary in Government of NCT of Delhi, he was not competent to remove Grade-III employees of Government of NCT of Delhi from service. That question was vague in nature. It was not specific. No specific rule / circular was put to this witness when that question was put to him. It was not specifically asked from him that in the said capacity of being Commissioner-cum-Secretary in Government of NCT of Delhi, he was not competent to remove Accused Narender Kumar (A-3). Therefore, said question lost its significance.
156.3. PW47 categorically deposed that after going through the Report of IO and other documents, he formed an Opinion that Sanction for prosecution of Accused Narender Kumar (A-3) should be granted and accordingly, he passed Sanction Order. He also deposed that he had remained in IAS Cadre for about 29 years i.e. CBI Case No.189/2019 Page 173 of 591 CBI vs. B.M. Sethi & Ors.
till his retirement in the year 2017. As such, being an IAS officer, who had deposed that he was competent to remove Accused Narender Kumar (A-3), one cannot brush aside said claim, just like that. Moreso, where no specific rule /law/ circular/ provision was put to him, based on lack of his competence to accord Sanction for prosecuting Accused Narender Kumar (A-3).
156.4. No suggestion was given to PW47 to the effect that based on specific rule/ law/ circular/ provision, he was not competent to pass Sanction Order Ex.PW47/1. So, his cross- examination was meritless.
156.5. Rest of the Accused persons did not cross-examine PW47 which means that they had no issue with the facts, deposed by said witness.
156.6. There was nothing abnormal or improbable about his said deposition.
156.7. So, testimony of PW47 was believed by me to be trustworthy and reliable.
PW48
157. PW48 - Deepak Aggarwal deposed in his testimony that he had become Member of Society in Question through Accused Pankaj Madan (A-5) by paying Rs.12,100/- to him. In 2005 or 2006, he resigned from the membership of said Society and got CBI Case No.189/2019 Page 174 of 591 CBI vs. B.M. Sethi & Ors.
refund of his money. He identified his Membership Application Form as Ex.PW48/1 and Affidavit dated 08.02.1999 as Ex.PW48/2 by identifying his signatures on the said documents. He also deposed that his father had taken membership of said Society by paying Rs.12,100/- which his father received back later on, while resigning from membership of said Society.
157.1. PW48 was cross-examined by Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross- examination, he deposed that he used to deposit the money with regard to his membership. Said money was deposited by him in cash. He was not aware about the Office Bearers of the Society, when he took membership of said Society. As such, his testimony indicated that he had become Member of Society in Question through Accused Pankaj Madan (A-5) by paying Rs.12,100/- to him, in cash, which he received back on resigning from Society.
157.2. Testimony of PW48 with regard to his father becoming Member of Society in Question by paying Rs.12,100/-, which he received back later on, remained unchallenged.
157.3. PW48 refuted the suggestion of deposing falsely against Accused Pankaj Madan (A-5) on behalf of CBI. So, he did not accept the defence of said accused persons, who had cross- examined him.
CBI Case No.189/2019 Page 175 of 591157.4. Rest of the Accused persons did not cross-examine PW48 which means that they had no issue with the facts, deposed by said witness.
157.5. There was nothing abnormal or improbable about his said deposition.
157.6. So, testimony of PW48 was believed by me to be trustworthy and reliable.
PW49
158. PW49 - Rajiv Wahi was the Investigating Officer of this case, who deposed about the manner in which, he had conducted investigation in this case. His investigation primarily was based on collection of documents and verifying the veracity of the same by sending them to GEQD/ Shimla. He was cross-examined by accused persons, in detail.
158.1. So far as, Accused Bhisham Kumar Grover (A-10) and Accused Urmila Gupta (A-9) are concerned, they had put certain suggestions based on their defence viz., that PW49 was deposing falsely about mentioning of wrong Members of Society in charge- sheet; that he had intentionally not obtained specimen signatures / writings of Misri Lal and Amit Sharma, who were Secretary and Treasurer of Society in Question though they were deeply involved in this case for shielding them; that Accused Bhisham Kumar Grover (A-10) had not forwarded the freeze list of Society without CBI Case No.189/2019 Page 176 of 591 CBI vs. B.M. Sethi & Ors.
checking or examining the records; that he had intentionally not written to DDA for not allotting any land to Society in view of manipulation and irregularities in its records; that he had not conducted the investigation fairly and properly and that Accused Bhisham Kumar Grover (A-10) and Accused Urmila Gupta (A-9) were falsely implicated in this case. So, he did not admit the defence of said accused persons.
158.2. Besides that, PW49 was asked questions by said accused persons with respect to aspects viz., that accused persons had not obtained any financial benefit; that he did not seize any document from the office of RCS for showing how verification of Members of Society was to be conducted by Dealing Assistant; that he did not recommend any departmental action Accused Bhisham Kumar Grover (A-10); that he had not recorded the statement of Vivek Rai; that he had not investigated as to who had signed the list of 90 Members on behalf of Society which was finally forwarded to DDA; that he did not remember as to who was the Deputy Registrar and Joint Registrar who had processed the file of Society in Question and that he had not obtained Sanction under Section 197 CrPC for prosecution of said accused persons. Lack of knowledge of PW49 with regard to said aspects, by itself, did not create doubt with regard to the evidence, he had collected during investigation. Those aspects did not make his testimony doubtful and did not absolve said accused persons from this case.
CBI Case No.189/2019 Page 177 of 591158.3. Further, PW49 was asked questions with regard to aspects viz., that no witness had stated about manipulation of records against said accused persons; that no victim had suffered financial loss on account of acts of accused persons; that there were no direct allegations of forgery against Accused Urmila Gupta (A-9); that no official of the office of RCS had stated that Accused Urmila Gupta (A-9) had submitted a false Audit Report; that he did not receive any specific complaint against Accused Urmila Gupta (A-9); that no victim had suffered any financial loss on account of acts of Accused Urmila Gupta (A-9) and that he had not recommended any departmental action against Accused Urmila Gupta (A-9). Again, said aspects, were such, which said accused persons expected from PW49. Those were not based on any specific law or provision. Therefore, if PW49 had not conducted investigation, based on said aspects, then by itself, it did not make the investigation of PW49, illegal, completely.
158.4. So, there was nothing which was brought on record by Accused Urmila Gupta (A-9) and Accused Bhisham Kumar Grover (A-10), based on which, I could have concluded that PW49 investigated the matter, partially against said accused persons. PW49 answered the questions properly and convincingly. He admitted, what he had not investigated, but he stuck to his version regarding wrongful acts of accused persons in this case. 158.5. So cross-examination, done by Accused Urmila Gupta (A-9) an Accused Bhisham Kumar Grover (A-10) did not help their cause.
CBI Case No.189/2019 Page 178 of 591158.6. PW49 was cross-examined by Accused Narender Kumar (A-3). In the said cross-examination, he answered questions, pertaining to the manner in which, he had conducted investigation. He was not sure as to whether, he had sent a request letter to Government of NCT of Delhi for Sanction of prosecution of Accused Narender Kumar (A-3). In the same breath, he admitted that Sanction Order was not obtained from the department to which this case pertained. He was not specifically put Sanction Order of Accused Narender Kumar (A-3) viz., Ex.PW47/1. Considering his above-mentioned replies, Accused Narender Kumar (A-3) should have put said Sanction Order to this witness. It was necessary as it would have resulted in proper and complete answer with regard to veracity of said Sanction Order. In the absence of same, I find that his oral testimony with regard to non-obtaining of Sanction Order of Accused Narender Kumar (A-3), was a fact which did not match with documentary proof of Sanction Order of Accused Narender Kumar (A-3). Said non-uniformity regarding the aspect of Sanction Order of Accused Narender Kumar (A-3), did not make the testimony of PW49 doubtful as he had deposed in his testimony that he took voluntary retirement from his service in 2008. His testimony was recorded in the year 2019. There was evident gap of more than 10 years, between the said two chain of events. So, possibility of his memory fading away with time, resulting in incoherent deposition regarding Sanction Order of Accused Narender Kumar (A-3), cannot be ruled out. Based on said appreciation, I did not find his testimony, doubtful.
CBI Case No.189/2019 Page 179 of 591158.7. Further, PW49 lacked knowledge with regard to facts viz., the date, when he had sent request letter for obtaining Sanction for prosecuting Accused Narender Kumar (A-3); the department to which, said request letter was sent by him; whether all Members of Society in Question were summoned by him during investigation to attend CBI office; the total number of Members to whom he had sent summons for joining investigation and the place, where election of Society was held. Again, lack of knowledge with regard to said aspects, did not make his testimony doubtful as possibility of his memory fading away with time, cannot be ruled out.
158.8. PW49 admitted in his cross-examination, done by Accused Narender Kumar (A-3), that no evidence came forth during investigation regarding any relations between Accused Narender Kumar (A-3) and Office Bearers of the Society. Said deposition did not make his testimony doubtful. Reasons being, firstly, that said deposition indicated the Opinion of PW49 only. It was based on appreciation of record by PW49. It did not make out a situation where I have to discard rest of the evidence, brought by prosecution, based on said deposition. That Opinion is not binding on the Court. Each evidence, has to be appreciated, separately, for checking its veracity. Secondly, if PW49 was of the Opinion that there was no evidence about any relations between Accused Narender Kumar (A-3) and Office Bearers of Society, then why did he charge-sheet said accused, for committing offences, which included offence of criminal conspiracy also. Thirdly, said CBI Case No.189/2019 Page 180 of 591 CBI vs. B.M. Sethi & Ors.
deposition of lack of evidence regarding relations between Accused Narender Kumar (A-3) and officer bearers of Society, by itself cannot be seen in isolation. There are other accused persons also, who are not Office Bearers of the Society. This case has to be appreciated with regard to relations of Accused Narender Kumar (A-3) with said accused persons who are not Office Bearers of Society. Therefore, facts deposed by PW49 with regard to Accused Narender Kumar (A-3), as appreciated above did not make him a false witness.
158.9. PW49 also admitted that he had not recorded the statements of senior officers in the office of RCS about the election process of Society and that he did not verify whether election meeting of Society had taken place at the venue, at which, it was stated to be held. He did not give categorical replies with regard to the documents, he had sent with request letter to concerned authority for obtaining Sanction for prosecution of Accused Narender Kumar (A-3). Said deposition again did not make him a false witness as he had conducted investigation with regard to various other aspects of this case. Lack of investigation with regard to above-mentioned aspects, did not make his testimony false, in totality. What PW49 had investigated and what evidence he had collected, were relevant aspects which this court has to consider. The investigation which PW49 had not done and the evidence which he had not collected, did not create doubt on the veracity of evidence, PW49 had collected in this case. So, lack of categorical replies with regard to documents and the fact that he had not CBI Case No.189/2019 Page 181 of 591 CBI vs. B.M. Sethi & Ors.
investigated the matter in a particular manner as was asked by accused Narender Kumar (A-3) did not make him a false witness.
158.10. Accused Vijay Thakur (A-12) also cross-examined PW49 in detail. In said cross-examination, PW49 categorically deposed that in this case, conspiracy was for getting the Society revived, on the basis of false / forged documents. He also confirmed that Accused Maha Nand Sharma (A-4) was the kingpin of the conspiracy, when application for revival of Society was submitted, as he was President of the Society at that time. He confirmed the fact that membership of all Members of Society was invalidated as there was irregularity in the revival of Society. He gave details of the investigation, based on collection of documents and implication of accused persons. He was asked questions with regard to persons who were not arrayed as accused persons and persons who were arrayed as accused persons in this case. Said aspects were satisfactorily answered by him. It did not make his testimony doubtful.
158.11. PW49 refuted the suggestions of Accused Vijay Thakur (A-12) viz., that he had not done investigation regarding the elections, prior to revival of Society; that he had not conducted investigation with regard to bank accounts, maintained by Society and that Accused Vijay Thakur (A-12) was the elected President of Society in 2002. So, he did not accept the defence of Accused Vijay Thakur (A-12).
CBI Case No.189/2019 Page 182 of 591158.12. Suffice it is to conclude that Accused Vijay Thakur (A-12) through cross-examination of PW49, failed to cull out any relevant fact, based on which, I could have concluded that PW49 had falsely implicated him in this case.
158.13. Apart from that, he refuted suggestions viz., that he had obtained Sanction Order from a person who was not competent; that he had not sent any document along with requisition for Sanction; that he had not obtained telephone records of any accused persons; that he had falsely recorded statements of witnesses under Section 161 CrPC; that he had falsely implicated Accused Karamvir Singh (A-2); that his investigation was biased; that he had investigated without authority and that he was deposing falsely. So, he did not accept the defence of Accused Karamvir Singh (A-2).
158.14. Suffice it is to conclude that Accused Karamvir Singh (A-2) through cross-examination of PW49, failed to cull out any relevant fact, based on which, I could have concluded that PW49 had falsely implicated him in this case.
158.15. Accused Sudershan Tandon (A-8) had also cross- examined PW49. He was asked questions with regard to the manner in which liquidation proceedings of Society took place and Audit Report of Society was prepared. He identified the said Audit Report. He gave satisfactory answers to the said questions.
CBI Case No.189/2019 Page 183 of 591158.16. PW49 refuted the suggestions viz., that he had not done investigation properly; that Accused Sudershan Tandon (A-8) was falsely implicated in this case; that actual custodian of the Society record was Mr. Ritesh Maurya who was malafidely shown as witness and that he had not conducted investigation fairly. As such, he did not accept the defence of said accused.
158.17. As such, no relevant fact was culled out from the cross- examination of PW49 by Accused Sudershan Tandon (A-8), based on which, I could have concluded that Accused Sudershan Tandon (A-8) was falsely implicated in this case.
158.18. PW49, in his cross-examination by Accused Maha Nand Sharma (A-4) deposed facts viz., revival of Society, based on approval by Minister Yoganand Shastri; non-implication of S. Malichamy, the then Secretary (Cooperative), Government of NCT of Delhi as accused, the manner in which specimen signatures of Accused Maha Nand Sharma (A-4) were taken; the manner in which specimen signatures were sent to GEQD/ Shimla and the manner in which documents were deposited in Malkhana. He gave satisfactory replies to the said aspects.
158.19. PW49 refuted the suggestions viz., that documents given to accused were different from the documents, which were filed along with charge-sheet; that he had not mentioned the specific rule which was violated regarding submission of list of 125 Members of Society to the office of RCS; that he had recorded false statements CBI Case No.189/2019 Page 184 of 591 CBI vs. B.M. Sethi & Ors.
of witnesses; that in Special GBM dated 27.01.1999, Accused Maha Nand Sharma (A-4) was authorized to correspond on behalf of Society with the office of RCS; that Society was revived properly, based on Special GBM dated 27.01.1999; that documents were submitted with the office of RCS, based on said revival of Society; that RCS had approved the list, submitted by Society, pursuant to said Special GBM and that due to perfunctory investigation, wrong application of provision of DCS & Rules, wrong charge-sheet was filed by falsely implicating accused persons. Thus, he did not accept the defence of Accused Maha Nand Sharma (A-4).
158.20. Besides that, PW49 categorically deposed that documents, submitted for the revival of Society were false and forged, which included Affidavits of Members, Membership Applications, Resignation Letters, etc. Said deposition only strengthened his testimony.
158.21. As such, no relevant fact was culled out from the cross- examination of PW49 by Accused Maha Nand Sharma (A-4), based on which, I could have concluded that Accused Maha Nand Sharma (A-4) was falsely implicated in this case.
158.22. PW49 was then cross-examined by Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7). In the said cross- examination, he was asked questions with regard to registration of case; filing of charge-sheet; the Members of Society, who were CBI Case No.189/2019 Page 185 of 591 CBI vs. B.M. Sethi & Ors.
examined by him during investigation and the manner in which, he had examined witnesses in this case and had investigated the matter. He answered the said aspects satisfactorily.
158.23. PW49 refuted the suggestions viz., that a proper GBM of Society was convened with regard to obtaining bridge loan from Delhi Cooperative Housing Finance Corporation Ltd., Khel Gaon, New Delhi; that he had seized the documents from the offices of RCS and DDA but did not annexed the same with charge-sheet; that he had destroyed the documents, collected by him from the offices of RCS and DDA; that he had supplied manipulated and tampered documents to accused persons in this case; that he had manipulated records against Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7) for falsely implicating them and that he was deposing falsely. So, he did not accept the defence of said accused persons.
158.24. Based on said cross-examination, as such, Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7) failed to cull out any relevant fact, indicating that PW49 was deposing falsely against them.
158.25. PW49 was cross-examined by Accused Manoj Vats (A-11). In the said cross-examination, he was asked questions with regard to aspects viz., loss sustained by Members of Society; investigation from Members of Society; the manner in which, he had taken specimen signatures of Members of Society; Members of CBI Case No.189/2019 Page 186 of 591 CBI vs. B.M. Sethi & Ors.
Society, who had signed Minutes of Meeting dated 27.01.1999 and the place where meeting of Society had taken place. He gave satisfactory answers to the said aspects.
158.26. PW49 refuted the suggestions viz., that he did not do proper investigation; that his investigation was hushed-up; that he had not done investigation in a cyclostyled manner; that he had done investigation without application of mind; that he had no reason to implicate Accused Manoj Vats (A-11) in this case; that there was no evidence to show that meeting dated 27.01.1999 was a bogus meeting and that there was no incriminating evidence against Accused Manoj Vats (A-11). So, he did not accept the defence of Accused Manoj Vats (A-11).
158.27. Based on said cross-examination, as such, Accused Manoj Vats (A-11) failed to cull out any relevant fact, indicating that PW49 was deposing falsely against him.
158.28. PW49 was lastly cross-examined by Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross-examination, he was asked questions with regard to aspects viz., elections in Society in 2006; outstanding amount from any Member towards Society and vice-versa; the person, who was managing the Society at the time of filing of charge-sheet; the Members who were examined by him and the manner in which, he had conducted investigation regarding taking specimen signatures CBI Case No.189/2019 Page 187 of 591 CBI vs. B.M. Sethi & Ors.
of accused persons, collecting documents and bank account details. He gave satisfactory answers with regard to said aspects.
158.29. PW49 refuted the suggestions viz., that he had not done investigation properly; that he had filed present charge-sheet as said accused persons had some financial transactions with Society and that he had charge-sheeted accused persons without incriminating evidence. So, he did not accept the defence of accused persons namely Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15).
158.30. Based on said cross-examination, as such, said accused persons failed to cull out any relevant fact, indicating that PW49 was deposing falsely against them.
158.31. PW49, as such, was not asked as to why specifically, he had implicated accused persons in this case. No specific motive was imputed on him by accused persons for implicating them in this case.
158.32. As such, I found that testimony of PW-49 was trustworthy and reliable.
PW50
159. PW50 - Ashish Mandal was a Photocopier in the office of CBI, who had witnessed Accused Sudershan Tandon (A-8), CBI Case No.189/2019 Page 188 of 591 CBI vs. B.M. Sethi & Ors.
giving specimen signatures on Specimen Signature Sheets Ex.PW49/18A (colly), bearing his own signatures at point X on each of said sheets. He identified Accused Sudershan Tandon (A-8) in the Court.
159.1. PW50 was cross-examined by Accused Sudershan Tandon (A-8) only. In the said cross-examination, he deposed that he was not the owner of photocopier machine, installed on 3 rd floor of CBI office. Further, one Inspector R.K. Aggarwal from CBI had called him to become witness in the proceedings in present case. Said depositions, were explanatory in nature. They justified presence of said witness in the office of CBI and also the fact that he had signed Specimen Signatures Sheets Ex.PW49/18A at point X. 159.2. PW50 refuted the suggestions viz., that R.K. Aggarwal had called him and had taken his signatures on the papers; that other persons in the office of CBI had not signed the papers in his presence and that he was deposing falsely at the behest of CBI. So, he did not admit the defence of Accused Sudershan Tandon (A-8).
159.3. Rest of the Accused persons did not cross-examine PW50 which means that they had no issue with the facts, deposed by said witness.
159.4. There was nothing abnormal or improbable about his said deposition.
CBI Case No.189/2019 Page 189 of 591159.5. So, testimony of PW50 was believed by me to be trustworthy and reliable.
PW51
160. PW51 - Anil Kumar Joshi was the witness, who had deposed that in his presence, CBI officials had taken specimen signatures of Accused Manoj Vats (A-11) on Specimen Signatures Sheets Ex.PW49/24 (colly) in October-November 2006. He identified his own signatures at point X on said sheets. He identified Accused Manoj Vats (A-11) in the Court also.
160.1. Accused Manoj Vats (A-11) cross-examined PW51. In the said cross-examination, certain suggestions were put to PW51, viz., that specimen signatures of Accused Manoj Vats (A-11) were not taken by CBI officials in his presence; that CBI officials had taken his signatures on blank sheets; that he had identified Accused Manoj Vats (A-11) in the Court, after being pointed out by CBI officials; that he had deposed falsely at the behest of CBI officials and that specimen signatures of Accused Manoj Vats (A-11) were not taken in his presence. So, he refuted the version of said accused, put to him by way of suggestions. Besides that, he was not cross-examined with respect to any aspect.
160.2. Accused Sudershan Tandon (A-8) also cross-examined PW51. In his cross-examination, he stuck to the version, to the effect that he had gone to CBI office in 2006-2007, on the directions of his senior officials. He explained that he had made CBI Case No.189/2019 Page 190 of 591 CBI vs. B.M. Sethi & Ors.
necessary entry at reception of CBI office on said day of his visit. Further, he remained in CBI office for about 2-2½ hours and his statement was recorded by CBI officials. Said deposition, only confirmed his visit to CBI office for the purpose of becoming witness to the specimen signatures of Accused Manoj Vats (A-11).
160.3. PW51 did not remember the exact dates with respect to aspects viz., the day when he had gone to CBI office; the room number in CBI office which he had visited; the floor of the office of CBI, where he had gone and the name of persons, whom he had met in CBI office. Lack of knowledge with regard to said date and details, did not make his testimony doubtful as those were minute details which ordinarily witnesses do not remember. Even otherwise, there was a gap of more than 10 years between his visit to CBI office and recording of his evidence in the Court. Possibility of his memory fading away with time, resulting in lack of knowledge regarding said aspects, as such, cannot be ruled out.
160.4. Rest of the Accused persons did not cross-examine PW51 which means that they had no issue with the facts, deposed by said witness.
160.5. There was nothing abnormal or improbable about his said deposition.
160.6. So, testimony of PW51 was believed by me to be trustworthy and reliable.
CBI Case No.189/2019 Page 191 of 591PW52
161. PW52 - S.K. Auluck was the witness, who had deposed in his testimony that he had witnessed the fact that accused persons Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7) had put their respective specimen signatures on Specimen Sheets Ex.PW49/15 (colly) & Ex.PW49/16 (colly) respectively. He identified his signatures on the said sheets at point X. He explained that he cannot identify accused persons namely Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7) due to lapse of time.
161.1. PW52 was cross-examined by Accused Maha Nand Sharma (A-4), Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7). In the said cross-examination, he deposed that he was summoned by CBI in another case when Specimen Sheets, identified by him, above, were prepared, for giving details of procedure of working of DDA. That case pertained to some land issue in which DDA had given possession to some persons and he was asked to disclose the manner of working with DDA and procedure adopted thereto. So, he gave proper explanation with regard to the first case, in which, he was summoned by CBI. That explanation was not challenged by way of counter-suggestions by the accused persons, who had cross-examined him. It indicated that he was present in CBI office on the day when Specimen Sheets in question were prepared.
CBI Case No.189/2019 Page 192 of 591161.2. Moving further, PW52 was put certified copy of his testimony dated 01.04.2022, recorded in CBI Case No.99/2019 Ex.PW52/DX-1, in which he had deposed that in 2007, he had visited CBI office when CBI officials obtained hand-writings / signatures of Accused Ashwini Sharma (A-6) in his presence and that he had signed those sheets as a witness. In his cross- examination, he had deposed that on 21.02.2007, when he was called in CBI office, he had gone there in that case only and no other case. It means that on 21.02.2007, he had gone to CBI office with respect to case in which his said testimony was recorded. Ld. Counsel for accused persons argued that this witness had deposed so in the said case which means that on 21.02.2007, this witness had gone to CBI office with regard to the said case only. He further argued that in the light of said deposition, PW52, had deposed falsely to the effect that in 2007, he had gone to CBI office in another case and after completing proceedings of said case, he had become witness of specimen signatures of Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7).
161.3. Above-mentioned argument was not tenable. Reason being, that unlike, in his testimony Ex.PW52/DX-1, PW52, in his testimony in this case, had not specified as to on which specific date, he had gone to CBI office in February 2007. In other words, PW52 did not depose in this case that he had gone to CBI office on 21.02.2007 as was deposed by him in the matter noted in Ex.PW52/DX-1. There remained possibility of this witness going to CBI office in February 2007 on different dates. Even otherwise, CBI Case No.189/2019 Page 193 of 591 CBI vs. B.M. Sethi & Ors.
while cross-examining PW52, no suggestion was given by Ld. Counsel while putting Ex.PW52/DX-1, to the effect that he was deposing falsely, in the light of his deposition, mentioned in Ex.PW52/DX-1.
161.4. Besides that, I find that PW52, in his examination-in- chief, specifically deposed that after getting free from other proceedings of the case, in which, he was called, he met with the Inspector of this case and thereafter, became witness to execution of Specimen Sheets, exhibited as Ex.PW49/15 (colly) & Ex.PW49/16 (colly). So, he sufficiently explained his presence at the time of execution of said Specimen Sheets in his presence.
161.5. Rest of the Accused persons did not cross-examine PW52 which means that they had no issue with the facts, deposed by said witness.
161.6. There was nothing abnormal or improbable about his said deposition.
161.7. So, testimony of PW52 was believed by me to be trustworthy and reliable.
PW53
162. PW53 - Mahipal Singh was the witness, who had deposed that in his presence, CBI officials had taken specimen signatures of Accused Maha Nand Sharma (A-4) on Specimen CBI Case No.189/2019 Page 194 of 591 CBI vs. B.M. Sethi & Ors.
Signatures Sheets Ex.PW49/17 (colly) in 2007. He identified his own signatures at point X on said sheets.
162.1. PW53 lacked knowledge with regard to facts viz., the exact floor in CBI office which he had visited; the physical attributes of the person whose specimen signatures were taken in his presence; the address of said person whose specimen signatures were taken in his presence; whether stamps were affixed on the said specimen sheets in his presence or not and whether portions encircled with blue pencil, marked as D & E were so encircled in his presence. Lack of knowledge with regard to said aspects did not make his testimony doubtful as possibility remained that with the passage of time, his memory, must have faded away.
162.2. PW53 refuted the suggestions viz., that Accused Maha Nand Sharma (A-4) had not given specimen signatures in his presence; that he was not shown the ID proof of the person who had signed the said Specimen Sheets and that he was a false witness, being tutored by CBI. So, he did not accept the defence of accused persons namely Accused Maha Nand Sharma (A-4), Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7), who had cross-examined him.
162.3. Rest of the Accused persons did not cross-examine PW53 which means that they had no issue with the facts, deposed by said witness.
CBI Case No.189/2019 Page 195 of 591162.4. There was nothing abnormal or improbable about his said deposition.
162.5. So, testimony of PW53 was believed by me to be trustworthy and reliable.
Appreciation of Prosecution Evidence, based on Testimony of Handwriting Expert
163. Besides aforesaid witnesses, prosecution also examined handwriting expert as a witness i.e. PW43 - Dr. B.A. Vaid.
164. In order to appreciate testimony of said handwriting expert i.e. PW43, I must mention here relevant law, governing appreciation of evidence of an expert witness.
164.1. Section 45 Indian Evidence Act, 1872 (in short 'IEA') mandates that when the Court has to form an Opinion upon a point of Foreign Law, or of Science or Art or as to identity of handwriting (or finger impressions), the Opinion upon that point of persons, specially skilled in such Foreign Law, Science or Art (or in questions as to identity of handwriting) (or finger impressions) are relevant facts. Such persons are called 'Experts'.
164.2. Above-mentioned provision of IEA talks about a category of witnesses, namely, "Experts". Question arises, how evidence of such experts, has to be appreciated by the Courts. In this regard, I must mention here, relevant case laws, which will CBI Case No.189/2019 Page 196 of 591 CBI vs. B.M. Sethi & Ors.
throw light on the question, highlighted in this para. Same are mentioned in subsequent paragraphs.
164.3. In Pandit Ishwari Prasad Misra vs. Mohd. Isa 1962 SCC Online SC 88, Hon'ble Apex Court held - "Evidence given by experts of handwriting can never be conclusive, because it is, after all, Opinion evidence."
164.4. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee 1963 SCC Online SC 114, it was held by Hon'ble Apex Court -
"In these circumstances, the mere Opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this were there are no suspicious circumstances.
164.5. The observation of Hon'ble Apex Court in the case of Devi Prasad vs. State 1964 SCC Online All 381 are reproduced as under:-
24. The next category of evidence in this case consists of the evidence of the expert, Mr. Gregory (P. W. 286), with regard to the disputed documents. It has been contended that the Opinion of the handwriting expert is a very unsafe basis for conviction. A number of authorities have been cited for this well established proposition. I may mention, in particular, the following: Ishwari Prasad v. Mohd. Isa, AIR 1963 SC 1728;
Ram Chandra v. U. P. State, AIR 1957 SC 381; Kameshwar Nath v. The State, 1957 Cr L J 276 (All); Sudhindhra Nath Dutt v. The King, AIR 1952 Cal 422; Ambal Bagyam v. Ramayya Padayachi, AIR 1955 Mad 88.
25. In Ishwari Prasad's case, AIR 1963 SC 1728 (supra), Gajendragadkar, J. (as he then was) observed: "Evidence given by experts of handwriting can never be conclusive, because it is, after all Opinion evidence." It appears hardly necessary for me to point out that Opinion evidence cannot, as a general rule, be considered infallible.
CBI Case No.189/2019 Page 197 of 59126. ......"It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction". And, after making this observation, their Lordships accepted the expert evidence as it was corroborated by other evidence including the internal evidence furnished by the writing on the document itself.
27. Even in Kameshwar Nath's case, 1957 Cri LJ 276 (All.) (supra) in which Asthana, J. of this Court, cited a passage from Sircar's Law of Evidence pointing out the deceptibility of the evidence of handwriting experts, on which strong reliance is placed by the appellants. It was pointed out, relying on Kalicharan Mukherji v. King Emperor, 6 All LJ 184 that there might be such characteristic peculiarities of a writer as to lead to an irresistible conclusion about his identity from a writing. Mr. P. C. Chaturvedi drew my attention to an unreported decision of this Court in Kameshwar v. State, Criminal Appeals Nos. 1672, 1675 and 2132 of 1958, dated 10-2-1960 (All) in which the accused is apparently the same individual as Kameshwar Nath of the 1957 case.
28. .........No useful purpose will be served by discussing the fallibility and deceptibility of expert Opinion evidence and of evidence relating to identity or the abstract general principles about such evidence which are well established. An appellate court has to examine whether the trial Court has correctly understood the general principles and then rightly applied them in assessing the worth of the particular Opinion evidence upon the data in a given case. Reliable criteria have been scientifically formulated for judging the worth of the evidence of handwriting experts. The trial court has rightly relied upon Jitendranath Gupta v. Emperor, AIR 1937 Cal 99 (SB) and has pointed out that the evidence of an expert has to be tested with care and caution and has set out the considerations which the learned Judge has applied in judging the worth of the expert's evidence in this case.
29. ......Nevertheless, the trial court was, in my Opinion, quite justified in pointing out that the Opinion can be stated by the expert both by means of a Report and by means of the statement in the witness box which must be there in addition. ........the expert has supplemented his reasons by his statement in court, and he has been subjected to quite stringent and searching and expert cross-examination. It may be observed that the appellants did not produce any expert in reply to the evidence of the expert produced by the prosecution.
CBI Case No.189/2019 Page 198 of 59131. ......The object of expert evidence is to assist the court in forming its own Opinions. Even if an expert's Opinion was not reliable in any particular case, a court is not absolved from the duty of forming its own Opinion about the disputed handwriting.
32. .........The only effective safeguard against erroneous conclusions is for courts to use their own powers of observation well and to study and use the recognised tests in a manner which satisfied the conscience of the court.
33. In AIR 1957 SC 381 their Lordships of the Supreme Court examined the contents of a document, and relied upon internal evidence in addition to other external and corroborative evidence before accepting the expert evidence about the writing before their Lordships. A comparison of disputed and admitted writings, which are pieces of evidence on record, is also a method of examining the internal evidence of a document and of judging whether it finds support from other evidence on record which is external qua the document containing the disputed writing. Another method of testing whether the Opinion of an expert should be accepted or not, suggested by what was laid down in Ram Chandra's case, AIR 1957 SC 381 (supra), is to look for other kinds of circumstantial or direct corroborative evidence on record. It is certainly hazardous to rely upon expert evidence solely without any corroboration from other kinds of evidence in the case. But, it is seldom that a prosecution case hinges purely on expert Opinion evidence. Usually there is also other evidence as there is in this case.
34. .........Section 73 of the Indian Evidence Act empowers courts of law to compare admitted and disputed writings for the purposes of forming their own Opinions. The rule of caution is not to base a conclusion entirely upon the courts own comparison because the court's function is distinct from and above the role of an expert witness giving evidence on handwriting which is tested by cross-examination: (See Bhagwandin v. Gouri Shankar, AIR 1957 All 119 and Fazaladdin Mandal v. Panchanau Das, AIR 1957 Cal 924). The court is, however, bound to form its own Opinions with the aid of all the permissible methods, and to arrive at a conclusion where a conclusion can safely be arrived at. Such a conclusion can safely be arrived at where the conclusions of a court, after comparing the admitted and disputed writings, coincide with the Opinions of the expert and are further CBI Case No.189/2019 Page 199 of 591 CBI vs. B.M. Sethi & Ors.
corroborated by other pieces of evidence. In other words, the method contemplated by Section 73 of the Evidence Act can and ought to be employed by courts in order to test and find corroboration or contradiction of the Opinion of the expert. The court does not, in such a case, function as a handwriting expert itself, but it acts as the authority charged with the duty of arriving at a conclusion with the aid of all the data upon the record by all legally permissible means at its commands (See Bisseswar Poddar v. Nabadwip Chandra, AIR 1961 Cal 300). With great respect, I find myself in complete agreement with what was laid down in Fazaladdin's case, AIR 1957 Cal 92 (supra) by the Calcutta High Court per K. C. D. Gupta, j. (see p. 93):
"It is true, if there was no evidence before the court as regards the genuineness of the signature, the court could not, in law, rely on its own examination of the signature to supply the evidence because the learned Judge could not treat himself as an expert. I am unable to find anything in principle or authority which bars the judge of facts from using his own eyes and looking at the admitted signature along with the disputed signature in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not."
35. If the Opinion of the handwriting expert is found by a court to be honest and reliable, after subjecting it to the recognised tests of soundness, it can even be considered better evidence than the evidence of indifferent witnesses whose motives are often mixed and whose powers of observation and recollection are very faulty. The observations of the expert are far more careful and guided by scientific knowledge and skill which, where they exist must be duly appreciated. Prof. Wigmore, the celebrated authority on the law of Evidence wrote, in 1910, in his introduction to Mr. Cabora's book on "Questioned Documents" 2nd Edition:
"A century ago the science of handwriting study did not exist. A crude empiricism still prevailed. This hundred years past has seen a vast progress. All relevant branches of modern science have been brought to bear. Skilled students have focused upon this field a manifold of appurtenant devices and apparatus. A science and an Art have developed. A firm place has now been made for the expert witness who is emphatically scientific and not merely empiric."CBI Case No.189/2019 Page 200 of 591
38. One of the ways in which the honesty of an expert can be tested is to consider the number of instances in which he has given Opinions contrary to the Opinions which those who consult him may be presumed to desire. I find that Mr. Gregory has given quite a number of Opinions rejecting the disputed handwritings sent to him after comparing them with the admitted handwritings. In other cases, I have also found that his Opinions are not dogmatic or obstinate. It has been held in Subodh Kumar v. Soshi Kumar, AIR 1958 Cal 264 at p. 268 that an expert is entitled to more credit if his answers indicate that he appreciates the other side of the case, and can and does look at the problems before him impartially. The general impression created by the replies to the cross- examination of Mr. Gregory, from this point of view also, is quite favourable.
39. The worth of the expert's Opinions with regard to the handwriting of each appellant can only be judged by examining his reasons and comparing the admitted and the disputed writings about which the Opinion was given. As I have already indicated, I propose to adopt this method of judging the reliability of the evidence of the handwriting expert with reference to each accused person. Another test which I propose to employ is to see whether the effect of the expert evidence is corroborated by other kinds of evidence in the case from other sources such as the approver's evidence about handwritings, the confession, and the evidence of other witnesses. I have already held that the evidence of the approver and the confession of Abdul Hameed can be used in this case for the purpose of finding corroboration for the evidence of handwriting as they are not so unreliable as to merit total rejection even if the part of the approver's statement relating to the two alleged meetings of conspirators is so thoroughly unreliable that it must be rejected.
164.6. In Fakhruddin vs. State of Madhya Pradesh 1966 SCC Online SC 55 , Hon'ble Apex Court held as under :-
"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The Courts should, therefore, be vary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo vs. Babu Ganesh Prasad Bhagat and CBI Case No.189/2019 Page 201 of 591 CBI vs. B.M. Sethi & Ors.
Others, this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.
164.7. In Bhagwan Kaur vs. Maharaj Krishan Sharma (1973) 4 SCC 46, Hon'ble Apex Court held as under :-
"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The Courts should, therefore, be vary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo vs. Babu Ganesh Prasad Bhagat and Others, this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case. 164.8. In Ram Narain vs. State of UP (1973) 2 SCC 86, two main questions were to be decided by the Hon'ble Apex Court, viz., (1) whether the appellant's conviction based on the uncorroborated testimony of the handwriting expert was legal and proper; and (2) whether sentence awarded to the appellant could be condoned.
It was Held :
(i). it is no doubt true that the Opinion of a handwriting expert given in evidence is no less fallible than any other expert Opinion adduced in evidence with the result that such evidence has to be received with great caution. But this Opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the Court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the Opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the niece ground that comparison handwriting is generally considered as hazardous CBI Case No.189/2019 Page 202 of 591 CBI vs. B.M. Sethi & Ors.
and inclusive and that the Opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or gave failure of justice is shown, this Court would normally refrain from reappraising the matter on appeal by special leave.
164.9. In Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, Hon'ble Apex Court observed as under :-
" Expert Opinion must always be received with great caution and perhaps none so with more caution than the Opinion of a handwriting expert. It is unsafe to base a conviction solely on expert's Opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. This type of evidence, being Opinion evidence , is by its very nature, weak and infirm and cannot of itself form the basis for a conviction.
164.10. In Murari Lal vs. State of MP (1980) 1 SCC 704, Hon'ble Apex Court made the following observations :-
"The hazard in accepting the Opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible. While, the science of identification of finger-prints has attained near perfection and the risk of an incorrect Opinion is practically non-existent, the science of identification of handwriting is not nearly so perfect and the risk is higher. Therefore, on the facts of a particular case, a court may require corroboration of a varying degree of the evidence of the handwriting expert. There can, however, be no hard and fast rule in this regard.
But there is nothing to justify the rejection of the Opinion of an expert supported by unchallenged reasons on the sole ground that it is no corroborated. An expert is not an accomplice and therefore, corroboration of his evidence is not always essential.CBI Case No.189/2019 Page 203 of 591
CBI vs. B.M. Sethi & Ors.
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'. Therefore, the approach of a court while dealing with the Opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the Opinion, consider all other relevant evidence and decide finally to accept or reject it.
Section 73 of the Evidence Act enjoins the Court to compare disputed writings itself and this duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert Opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge.
4. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the Opinion- evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with observation that the expert is no accomplice. There is no justification for condemning his Opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the Opinion of a handwriting expert. But, the hazard in accepting the Opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses- the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect Opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect Opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the Opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, CBI Case No.189/2019 Page 204 of 591 CBI vs. B.M. Sethi & Ors.
howsoever the Opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his Opinion with an initial suspicion and to treat him as an inferior sort of witness. His Opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty `is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'.
5. From the earliest times, courts have received the Opinion of experts. As long ago as 1553 it was said in Buckley v. Rice-Thomas :
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. 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 us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under s. 114 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 CBI Case No.189/2019 Page 205 of 591 CBI vs. B.M. Sethi & Ors.
Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the Opinions of experts, when such Opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the Opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the Opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the Opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the Opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws of England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chander v. U.P. State,(1) Jagannatha Das, J. observed : "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours) "May" and "normally" make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammed Isa,(2) Gajendragadkar, J. observed : "Evidence given by experts can never conclusive, because after all it is Opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, s. 46 expressly makes Opinion evidence challengeable by facts, otherwise irrelevant. And as Lord President Cooper observed in Davie v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar,(3) Wanchoo, J., after noticing various features of the Opinion of the expert said :
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in CBI Case No.189/2019 Page 206 of 591 CBI vs. B.M. Sethi & Ors.
1943 as it purports to be. Besides it is necessary to observe that expert's evidence as to handwriting is Opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's Opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's Opinion; there are other features also which made the expert's Opinion unreliable. The observation regarding corroboration must be read in that context and it is worthy of note that even so the expression used was `it is usual' and not "it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh,(4) Hidayatullah, J. said :
"Both under s. 45 and s. 47 the evidence is an Opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the Opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to comparison depends on an analysis of the characteristics in appraise the value of the Opinion in the other case. This the admitted or proved writing and the finding of the same characteristics in large measure in the disputed writing. In this way the Opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's Opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the Opinion whether of the expert or other witness."CBI Case No.189/2019 Page 207 of 591
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though these Judges took the precaution of comparing the writings themselves.
10. Finally, we come to Magan Bihari Lal v. State of Punjab, (1) upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court :
"......but we think it would be extremely hazardous to condemn the appellant merely on the strength of Opinion evidence of a handwriting expert. It is now well settled that expert Opinion must always be received with great caution and perhaps none so with more caution than the Opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert Opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 that it is unsafe to treat expert handwriting Opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all Opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being Opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentially value of expert Opinion in regard to handwriting in Fakhruddin v. State of M.P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was CBI Case No.189/2019 Page 208 of 591 CBI vs. B.M. Sethi & Ors.
plainly intended to be a rule of caution and not a rule of law as is clear from the statement `it has almost become a rule of law'. "Almost", we presume, means "not quite". It was said by the Court there was a "profusion of presidential authority"
which insisted upon corroboration and reference was made to Ram Chandra v. State of U.P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M.P. (supra). We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before Opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of M. P. (supra) any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the Opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab (supra) must be understood as referring to the facts of the particular case.
11. We are firmly of the Opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that Opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the Opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the Opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the 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 CBI Case No.189/2019 Page 209 of 591 CBI vs. B.M. Sethi & Ors.
purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert Opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh (supra) were cases where the Court itself compared the writings.
164.11. In State of Maharashtra vs. Sukhdev Singh (1992) 3 SCC 700, Hon'ble Apex Court held as under :-
A handwriting expert is a competent witness whose Opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the Opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of of his Opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been vary in placing implicit reliance on such Opinion evidence. Since such Opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. But that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the Opinion of the expert. If there exist numerous striking CBI Case No.189/2019 Page 210 of 591 CBI vs. B.M. Sethi & Ors.
peculiarities and mannerisms which stand out to identify the writer, the court can act on the expert's evidence. However, before a court can act on the Opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt, namely, (I) the genuineness of the specimen/admitted handwriting of the concerned accused and
(ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence.
Prudence demands that before acting on such Opinion the court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the court should also be fully satisfied about the competence and credibility of the handwriting expert. Though by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an Opinion which is helpful to the party engaging him. Therefore, before a court can place reliance on the Opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his Opinion are convincing and satisfactory. It is, therefore, necessary to exercise extra care and caution in evaluating their Opinion before accepting the same".
164.12. In State of HP vs. Jai Lal (1999) 7 SCC 280, Hon'ble Apex Court held as under :-
An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject.
An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific Opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The CBI Case No.189/2019 Page 211 of 591 CBI vs. B.M. Sethi & Ors.
credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. The Report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination.
There is no evidence, direct or circumstantial, in support of the charge of conspiracy amongst the accused persons to cheat the State exchequer and with that object having entered inflated quantities of scabbed apple brought by the growers.
164.13. In Alamgir vs. State (NCT, Delhi) (2003) 1 SCC 21, Hon'ble Apex Court observed as under :-
There is no rule of law, nor any rule of prudence which has crystallised into a rule of law that Opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. However, since human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination the acceptability of creditworthiness of the same depends. (Para
13) 164.14. In Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (2009) 9 SCC 280, Hon'ble Apex Court held as under :-
A Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the Opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.
Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of the Opinions of experts must take into consideration the difference between an `expert witness' and an `ordinary witness'. The Opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The CBI Case No.189/2019 Page 212 of 591 CBI vs. B.M. Sethi & Ors.
evidence of an expert should, however, be interpreted like any other evidence.
This Court in State of H.P. v. Jai Lal and others, [ (1999) 7 SCC 280] held as under :-
" 17. Section 45 of the Evidence Act which makes Opinion of experts admissible lays down that when the court has to form an Opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the Opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific Opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
19. The Report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross- examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B. concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an Opinion unsupported by any reasons."
164.15. In Ramesh Chandra Agrawal vs. Regency Hospital Ltd., (2009) 9 SCC 709, Hon'ble Apex Court observed as under :-
CBI Case No.189/2019 Page 213 of 591CBI vs. B.M. Sethi & Ors.
EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert Opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise
ii) that the evidence must be based on reliable principles, and
iii) that the expert must be qualified in that discipline.
[See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178
19. It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific Opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].
CBI Case No.189/2019 Page 214 of 59121. In the case of State of Maharashtra v. Damu s/o Gopinath Shinde and others., [AIR 2000 SC 1691 at page 1700], it has been laid down that without examining the expert as a witness in Court, no reliance can be placed on an Opinion alone. In this regard, it has been observed in The State (Delhi Administration) v. Pali Ram, [AIR 1979 SC 14] that "no expert would claim today that he could be absolutely sure that his Opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him."
22. In the Article "Relevancy of Expert's Opinion" it has been opined that the value of expert Opinion rest on the facts on which it is based and his competency for forming a reliable Opinion. The evidentiary value of the Opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an Opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the Opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which Opinion is formed. The same is clear from following inference: "Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their Opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value."
164.16. In Sandeep Dixit vs. State 2012 SCC Online Del 2430, Hon'ble Apex Court observed as under :-
Assuming that the learned ASJ was in two minds regarding the culpability of the petitioner due to the Opinion of the handwriting expert, still the view favouring the accused should have been adopted in the light of settled legal proposition. It is one of the golden principles of criminal law that if after appreciation of evidence on record, the Court finds the possibility of two equally good views, the one favouring the accused is to be accepted. In Dilawar Balu Kurane (supra) the Hon'ble Supreme Court followed the ratio laid down in Union of India v. Prafulla Kumar Samal reported as (1972) 2 SCC 392 and observed that CBI Case No.189/2019 Page 215 of 591 CBI vs. B.M. Sethi & Ors.
".....by and large if two view are equally possible and the judge is satisfied that the evidence produced before him gave rise to some suspicion, but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 Cr PC, the judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial....."
165. In the light of above-mentioned case laws, following principles emerged :-
a) That Opinion of handwriting expert is not conclusive;
b) That Opinion of handwriting expert, solely, for the purpose of convicting a person, is not safe;
c) That evidence of handwriting expert has to be tested with care and caution by the Court;
d) That in case, Opinion of handwriting expert is not reliable then Court has the duty to form its own Opinion about the disputed handwriting, by appreciating the records and making necessary observations, as per Section 73 of IEA;
e) That Opinion of handwriting expert is not binding on the Court;
f) That if Opinion of handwriting expert is found to be honest and reliable after subjecting it to recognise tests of soundness, it can be considered better evidence than the evidence of indifferent CBI Case No.189/2019 Page 216 of 591 CBI vs. B.M. Sethi & Ors.
witnesses, whose motives are often mixed and whose power of observation and recollection are very faulty;
g) That Opinion of handwriting expert must be viewed as observations of an expert who is very careful and is guided by scientific knowledge and skill;
h) That Opinion of handwriting expert has to be tested by the acceptability of the reasons, given by him;
i) That the Opinion of handwriting expert should not be viewed with initial;
j) That Court must be satisfied itself, based on its own observation that it is safe to accept the Opinion of handwriting expert;
k) That handwriting expert is not an accomplice;
l) That handwriting expert is not a witness of fact, rather, his evidence is of advisory character;
m) That duty of an expert is to furnish the Judge with necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Judge to form his independent Judgment by the application of that criteria to the facts, proved by the evidence of the case;
n) That scientific Opinion evidence, if intelligible, convincing and tested, becomes a factor and often an important factor for consideration, along with other evidence of the case;
CBI Case No.189/2019 Page 217 of 591o) That there is no law to the effect that Opinion of handwriting expert must never be acted upon unless substantially corroborated, but since, human judgment cannot be said to be totally infallible, so, due caution must be exercised for appreciating the creditworthiness of handwriting expert.
166. Keeping in mind above-mentioned principles, I am appreciating the testimony of PW43 and the Report, he had submitted, based on comparison of specimen signatures of accused persons and witnesses.
167. PW43 - Dr. B.A. Vaid was a Scientific Examiner of documents who had done Ph.D in Physics, had examined thousands of documents, had given Opinion, based on examination of said documents, had attended various Courts in the country, had 42 years of experience in his field and had given lectures to various students of Forensic Science. Those facts were not disputed by any of the Accused persons. If that is so, then his said claims cannot be seen with suspicion. So, it is clear that he was not a person, lacking knowledge and / or experience in the field of examination of hand- writings. His Opinion Ex.PW43/2 and Ex.PW43/5, as such, cannot be seen with suspicion. That is the first finding regarding his testimony, which only indicated that he was not a false witness.
167.1. Moving further, I found that PW43 duly deposed, in his testimony, that during investigation, in this case, his office had received certain enclosures vide Ex.PW43/1 (colly) from CBI along with Forwarding Letter for giving Expert Opinion with CBI Case No.189/2019 Page 218 of 591 CBI vs. B.M. Sethi & Ors.
respect to handwriting/ signatures. After examining the said record, he prepared his Opinion in writing which he identified as Ex.PW43/2. Again, manner in which, he had received the said enclosures from CBI, were not disputed by any of the accused persons, as no suggestion, to the contrary, was given by any of them. So, it indicated only one possibility, which was that his office had received the said enclosures from CBI in ordinary course of its official business. Presumption under Section 114 (Illustration (e) IEA), therefore, was raised in favour of this witness. Same was not rebutted by any of the accused persons.
167.2. Further, PW43 testified that his enclosures, which he had examined in this case, were also examined by another Dy. GEQD namely Sh. Mohinder Singh, independently and said Dy. GEQD, gave his independent Opinion, after examination of the records, which concurred with the Opinion of PW43. As a result of that, said Dy. GEQD had signed at point B on the Report of PW43 viz., Ex.PW43/2. Subsequently, said Opinion/ Report was sent back to CBI through Forwarding Letter dated 15.05.2007, signed by the then GEQD - N.C. Sood, which he identified as Ex.PW43/3. Again, said deposition was not challenged by any of the accused persons, by giving suggestions to the contrary. Therefore, it indicated that said record and Opinions were sent back to CBI in ordinary course of official business of his office. Presumption under Section 114 (Illustration (e) IEA), therefore, was raised in favour of this witness. Same was not rebutted by any of the accused persons.
CBI Case No.189/2019 Page 219 of 591167.3. Further, PW43 deposed that his office had received more documents, in similar fashion from CBI, through Letter Ex.PW43/4, based on which, he prepared Supplementary Opinion Ex.PW43/5, which was duly confirmed by Dy. GEQD - Mohinder Singh. Same were returned back to CBI in ordinary course of official business of his office. Presumption under Section 114 (Illustration (e) IEA), therefore, was raised in favour of this witness. Same was not rebutted by any of the accused persons.
167.4. Further, PW43 deposed that he had prepared Reasons for Opinion in support of his above-mentioned two Reports which were exhibited as Ex.PW43/7 & Ex.PW43/8 which were duly confirmed by Dy. GEQD - Mohinder Singh. Same were returned back to CBI in ordinary course of official business of his office. Presumption under Section 114 (Illustration (e) IEA), therefore, was raised in favour of this witness. Same was not rebutted by any of the accused persons.
167.5. PW43 clarified that there were certain typographical mistakes in Ex.PW43/7 which again were not challenged by any of the accused persons through cross-examination. So, said explanations did not make his testimony, doubtful.
167.6. The examination-in-chief of PW43, therefore, was free from any doubt.
CBI Case No.189/2019 Page 220 of 591167.7. Coming to the cross-examination of PW43, I found that he was cross-examined by Accused Gopal Dixit (A-16), Accused Bhisham Kumar Grover (A-10) and Accused Urmila Gupta (A-9), jointly. In the said cross-examination, he was asked about the time, which he took for examining the documents in this case and the time, when he had received the requisite documents from CBI. He did not give specific reply to said aspects. It did not make his testimony doubtful as those were not relevant aspects which could have created doubt in the veracity of his Opinions and reasons for Opinions, which he had furnished in this case.
167.8. PW43 denied the suggestions, based on destroying rough notes deliberately without seeking permission of Competent Authority which means that he did not accept the defence of said Accused persons. Infact, he had placed on record his rough notes Ex.PW43/9 (colly), which indicated that he had examined said documents, objectively by using his scientific knowledge. He was asked questions about the photographs of relevant signatures / handwriting, which he had taken while examining the documents and which he did not bring in the Court. Again, non-furnishing of those photographs did not make any difference to his testimony, pertaining to furnishing of Opinion and supplementary Opinion, based on examination of documents. So, cross-examination by said Accused persons was a futile exercise as it failed to cull out relevant facts from his testimony.
CBI Case No.189/2019 Page 221 of 591167.9. PW43 was cross-examined by Accused Sudershan Tandon (A-8), separately. In the said cross-examination, he was asked about the total number of documents which were referred to him for examination in this case and the documents which pertained to Accused Sudershan Tandon (A-8). He was not able to give specific reply to said questions. It did not make any difference as there is every possibility of his memory fading away as his Reports, based on Opinions were dated 2006 & 2007, whereas, evidence was recorded in the Court in the year 2019. There was evidently a gap of more than 10 years between the same. Even otherwise, said aspects were not relevant for rejecting testimony of this witness. Coupled with the same, he admitted that his Opinion was based on specimen signatures of Accused Sudershan Tandon (A-8). So, there was nothing doubtful about the said deposed facts. Cross-examination, done by Accused Sudershan Tandon (A-8), remained inconsequential.
167.10. PW43 was cross-examined by Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). In the said cross- examination, he was asked about possessing any certificate from any university or institution, certifying him as a handwriting expert. He denied the same. No suggestion was given to him, based on said question. I failed to appreciate as to what was the purpose of asking said question. It was all the more irrelevant as factum of this witness possessing qualifications of M.Sc & Ph.D in Physics along with his designation as the then GEQD/ Shimla were not CBI Case No.189/2019 Page 222 of 591 CBI vs. B.M. Sethi & Ors.
disputed. Now, GEQD stands for Government Examiner of Questioned Documents. So, the government has given him that post of being Examiner of documents. There is presumption that government has given him said post after verifying that he was qualified to hold that post. Had he been not such expert, why would government give him such post. The above-mentioned Accused persons who had asked him about certificate of being handwriting expert, failed to answer said question. It made the said cross-examination, baseless. Based on said appreciation, it was irrelevant for said Accused persons, to ask him about his certificate of being a handwriting expert from any university or institution.
167.11. Accused Manoj Vats (A-11) cross-examined this witness and had put one suggestion which he admitted. The suggestion was PW43 used to give Opinions in various matters, referred to his laboratory by CBI during his service tenure. Admission of said fact by PW43, only made his testimony more reliable. He denied the suggestion that CBI had any control over his laboratory which indicated that he did not accept the said claim of Accused Manoj Vats (A-11).
167.12. PW43 was cross-examined at length by Ld. Counsels for Accused Maha Nand Sharma (A-4), Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7).
167.13. In the said cross-examination, various questions were put to the witness and in response to the same, witness had given his explanation. The said questions and answers are mentioned in CBI Case No.189/2019 Page 223 of 591 CBI vs. B.M. Sethi & Ors.
verbatim below (cross-examination done on 23.07.2019) :-
Question: Is it correct that as per handwriting science, if there is a fundamental difference in two sets of handwriting which cannot be explained and same is consistent, same authorship cannot be given?
Answer: In general it is correct, though it depends from case to case.
Question: I put it to you that in the questioned signatures Q316 and Q317 the capital letter M is connected with the following letter A whereas in the specimen signatures S89 and S90, the same are not connected. What have you to say? Answer: Both these letters are connected in some of the specimen signatures also.
Question: I say that the writer of specimen signatures S89 and S90 is in the habit of not connecting letter M with letter A and this is a fundamental characteristic. What have you to say?
Answer: It is incorrect to say so.
Question: I put it to you that size of letter A is much bigger as compare to other alphabets in the questioned signatures Q340 to Q342 whereas it is not so in the specimen signatures of accused Ashwani Sharma S3 to S7 and S65 to S68. What have you to say?
Answer: it is incorrect to say so. The relative size of the letter A is similar in the both questioned as well as specimen signatures.
Question: Please see questioned signatures Q340 to Q342. There is a small dot above letter j but a similar dot is not there in the specimen signatures S3 to S7 and S65 to S68 of accused Ashwani Sharma which is mostly ambegular stroke and downward extension. What have you to say? Answer: The similar type of dot over the letter j is available in S65 at point X and Y. Similar dot is also available in S3 at point X, Y and Z. CBI Case No.189/2019 Page 224 of 591 CBI vs. B.M. Sethi & Ors.
Question: I put it to you that the connecting stroke in the Hindi Alphabet "Sa" is straight in the questioned writings Q319 and Q320 whereas the same is curved in specimen writings of accused Ashwani Sharma. What have you to say?
Answer: These are similarly available in the both sets of signatures with natural variations.
Question: Please see Q337 and Q338. There is a double hooking in under scoring but the same is not the position in the specimen signatures of accused Ashwani Sharma S69 to S71. What have you to say?
Answer: Such type of under scoring is available in S71 at points X and Y, at point X on S70 and at point X on S69. Question: I put it to you that the execution of the small letters "nan" of word Anand in questioned signatures Q337 and Q338 shows compactness and angularity with short spacing, which is not the case in specimen signatures S69 to S71. What have you to say?
Answer: Such type of spacing is available in S69 to S71 and the short spacing in the questioned signatures is due to the less space available to the writer.
Question: Is it correct that in Para 3 of your Opinion Ex.PW43/2 you have mentioned about Q655 but in your "reasons for Opinion" Ex.PW43/7, there is no mention about the said questioned signature Q655?
Answer: It is correct that there is no specific mention of Q655 in the reason Ex.PW43/7 but the same is included in the expression "Q362, Q363 etc.".
Similar is my answer with regards to the questioned signatures mentioned in para No. 2 of my Opinion which are not specifically mentioned in para No. 2 of the reasons. Question: I put it you that in questioned signatures Q603 and Q722, there is no bifurcation of letter 'V' as stated by you on page 6 line No. 3 of your reasons Ex.PW43/7?CBI Case No.189/2019 Page 225 of 591
CBI vs. B.M. Sethi & Ors.
Answer: As per my terminology the lower part of the letter 'V' is meant bifurcation as such there is a bifurcation in the said letter.
167.14. Above-mentioned questions and their respective answers indicated that PW43 gave his explanations/ replies to said questions. Those replies, only explained the considerations, which PW43, borne in mind, while comparing the specimen signatures of accused persons with their disputed signatures. Those explanations, as such, did not make his Reports, as Reports, based on illogical reasoning. The said replies were given by PW43 who was an expert. I have no reason to doubt those replies. Further, I found that said replies sufficiently answered the questions. One of the suggestion, given to this witness was that he had given his Opinion in hurry, without proper examination and that he had not examined the entire set of questioned and specimen signatures which were given to him for Opinion. He denied that suggestion. Once, he had denied that suggestion, the accused persons who had given said suggestion, should have examined some handwriting expert in their defence, so that, they could get some support based on counter-
expert Opinion. As such, no counter-expert was examined by accused persons. The said suggestion, therefore, remained bald suggestion without any basis. It did not support the cause of accused persons.
167.15. Besides that, PW43 denied following suggestions, put to him, reproduced in verbatim. (23.07.2019) :-
CBI Case No.189/2019 Page 226 of 591CBI vs. B.M. Sethi & Ors.
It is wrong to suggest that the lower body of the letter small "h" in Q338 is not similar in any specimen signature S69 to S71.
It is also wrong to suggest that size of curve of right side stroke of letter V in Q347 and Q348 is different from S57 to S60.
It is wrong to suggest that the under scoring in Q347 and Q348 has angular hooking at right side in a typical manner which is not so in S57 to S60. (vol. These are within the natural variations).
It is wrong to suggest that the location of under scoring in Q347 and Q348 starts from K of the word "Vikram" whereas it starts from V or before V in specimen signatures S57 to S60.
It is wrong to suggest that the speed of writing questioned signatures Q347 and Q348 is slow whereas the speed of writing specimen signatures is fast with wider spacing. (Vol. These are within the natural variations). It is wrong to suggest that the size and length of the word "Sunita" in Q353 and Q354 is much smaller as compared to the word "Sunita" in the specimen signature S52 and S53. (vol. These are within the natural variations). It is wrong to suggest that the nature of crossing of letter "t" in the word "Sunita" in Q353 and Q354 is not similar to that in the word "Sunita" in the specimen signature S52 to S54. It is wrong to suggest that the letters "un" in the word "Sunita" in questioned signatures Q353 and Q354 looks like letter "mi" whereas it does not appear so in the specimen signatures S52 to S54.
It is wrong to suggest that the speed of writing questioned signatures Q353 and Q354 is slow whereas the speed of writing specimen signatures is fast with wider spacing. (Vol. These are within the natural variations). It is wrong to suggest that the word "Pal" in Q359 and Q360 is different from word "Pal" in S46 to S48. (vol. These are within the natural variations).CBI Case No.189/2019 Page 227 of 591
CBI vs. B.M. Sethi & Ors.
It is wrong to suggest that the relative spacing the letter "Pal" quite short in Q359 and Q360 as compared with the said word in the specimen signatures S46 to S48. It is wrong to suggest that the combination of the letters "mar" in the word "Amar" is different in Q359 and Q360 as compared to these letters appearing in the specimen signatures S46 to S48.
It is wrong to suggest that the small letter "s" in word "Naresh" in Q344 and Q345 has a double loop which is not there in the execution of the word "s" in specimen S61 to S64.
It is wrong to suggest that in Q344 the letter "a" of the word "Naresh" touches with capital N whereas it is not so in the specimen signatures S61 to S64. (vol. These are within the natural variations).
It is wrong to suggest that the small "r" in the word "Naresh" in Q344 and Q345 shows a prominent loop at the base which is not there in the specimen signatures S61 to S64. (vol. such a loop exists at point X in S61 also).
It is wrong to suggest that you have not examined Q655 and that is why no specific reasoning has been given with regards to the same.
It is wrong to suggest that in the absence of the specimen signatures to whom the questioned signatures are attributed, it is not possible to give a definite Opinion with regards to the authorship of those signatures.
It is wrong to suggest that the Opinion given by me was given in hurry without proper examination and I have not examined the entire set of questioned and specimen signatures before giving the Opinion.
167.16. Refutal of above-mentioned suggestions by PW43, indicated that he did not accept the probable defence of accused persons. It only supported prosecution version.CBI Case No.189/2019 Page 228 of 591
167.17. Based on aforesaid appreciation, I conclude that PW43 was a trustworthy witness who was a handwriting expert and who had given his Opinions in ordinary course of his official duties. The documents he had exhibited were not objected to by accused persons. Since, PW43 had given his Opinion when he was a government servant, so, there is a presumption of correctness of said Reports. That presumption was not rebutted by accused persons through cross-examination. I believed his testimony to be reliable.
167.18. Above-mentioned conclusion, therefore, indicated that testimony of PW43 and Opinions, he had given were trustworthy and reliable. Above-mentioned case laws, clearly mandate that Opinion of an expert has to believed by the Court with caution as said Opinion is advisory in nature. Court is empowered to independently assess and give findings on the disputed handwriting/ signatures of accused persons. Keeping in mind the principles, highlighted above for appreciating evidence of an expert, I am proceeding further and appreciating the disputed signatures of concerned accused persons and witnesses, in comparison to their specimen / admitted signatures, independently.
167.19. As per record, CBI obtained two GEQD Reports viz., Ex.PW43/2 and Ex.PW43/5.
167.20. Ex.PW43/2 noted in para 2 that signatures / writing marked at points, mentioned therein (details of the same are not CBI Case No.189/2019 Page 229 of 591 CBI vs. B.M. Sethi & Ors.
mentioned here for the sake of brevity), were of same person, who had written/ signed in Sheets from S-1 to S-102. Now, said Sheets were signed by Accused Ashwani Sharma (A-6) and same were exhibited as Ex.PW49/15 (colly). The points, mentioned in para 2 were handwriting/ signatures of Accused Ashwani Sharma (A-6). The flow of alphabets, the pressure applied, while writing/ signing and the manner, in which alphabets were made on the points in records of Society, as such, matched with the specimen signatures of Accused Ashwani Sharma (A-6). The handwriting of Accused Ashwani Sharma (A-6), in Specimen Sheets, matched with his writing which he had made in Proceedings Register. I have compared the said two sets of documents, individually and have come to said conclusion. The writing of Accused Ashwani Sharma (A-6) on the said records of Society, therefore, matched with his specimen handwriting/ signatures.
167.21. Ex.PW43/2 noted in para 3 that signatures / writing marked at points, mentioned therein (details of the same are not mentioned here for the sake of brevity), were of same person, who had written/ signed in Sheets from S-103 to S-132. Now, said Sheets were signed by Accused Ashutosh Pant (A-7) and same were exhibited as Ex.PW49/16 (colly). The points, mentioned in para 3 were handwriting/ signatures of Accused Ashutosh Pant (A-7). The flow of alphabets, the pressure applied, while writing/ signing and the manner, in which alphabets were made on the points in records of Society, as such, matched with the specimen signatures of Accused Ashutosh Pant (A-7). The handwriting of CBI Case No.189/2019 Page 230 of 591 CBI vs. B.M. Sethi & Ors.
Accused Ashutosh Pant (A-7), in Specimen Sheets, matched with his writing which he had made in Affidavits and Membership Application Forms. I have compared the said two sets of documents, individually and have come to said conclusion. The writing of Accused Ashutosh Pant (A-7) on the said records of Society, therefore, matched with his specimen handwriting/ signatures.
167.22. Ex.PW43/2 noted in para 4 that signatures / writing marked at points, mentioned therein (details of the same are not mentioned here for the sake of brevity), were of same person, who had written/ signed in Sheets from S-133 to S-157. Now, said Sheets were signed by Accused Maha Nand Sharma (A-4) and same were exhibited as Ex.PW49/17 (colly). The points, mentioned in para 4 were handwriting/ signatures of Accused Maha Nand Sharma (A-4). The flow of alphabets, the pressure applied, while writing/ signing and the manner, in which alphabets were made on the points in records of Society, as such, matched with the specimen signatures of Accused Maha Nand Sharma (A-4). The handwriting of Accused Maha Nand Sharma (A-4), in Specimen Sheets, matched with his writing which he had made in concerned Registers viz., Membership Register, Proceedings Register, Resignation Letters and on Freeze lists etc. I have compared the said two sets of documents, individually and have come to said conclusion. The writing of Accused Maha Nand Sharma (A-4) on the said records of Society, therefore, matched with his specimen handwriting/ signatures.
CBI Case No.189/2019 Page 231 of 591167.23. Ex.PW43/2 noted in para 22 that signatures / writing marked at points, mentioned therein (details of the same are not mentioned here for the sake of brevity), were of same person, who had written/ signed in Sheets from S-306 to S-310. Now, said Sheets were signed by Accused Manoj Vats (A-11) and same were exhibited as Ex.PW49/24 (colly). The points, mentioned in para 22 were handwriting/ signatures of Accused Manoj Vats (A-11). The flow of alphabets, the pressure applied, while writing/ signing and the manner, in which alphabets were made on the points in records of Society, as such, matched with the specimen signatures of Accused Manoj Vats (A-11). The handwriting of Accused Manoj Vats (A-11), in Specimen Sheets, matched with his writing which he had made in concerned Affidavits and Proceedings Register. I have compared the said two sets of documents, individually and have come to said conclusion. The writing of Accused Manoj Vats (A-11) on the said records of Society, therefore, matched with his specimen handwriting/ signatures.
167.24. This brings me to the handwriting expert report Ex.PW43/4 which noted in para 2 that signatures / writing marked at points, mentioned therein (details of the same are not mentioned here for the sake of brevity), were of same person, who had written/ signed in Sheets from S-158 to S-178 and from S-331 to S-402. Now, said Sheets were signed by Accused Sudershan Tandon (A-8) and same were exhibited as Ex.PW49/18 (colly) & Ex.PW49/18A (colly) respectively. The points, mentioned in para 2 were handwriting/ signatures of Accused Sudershan Tandon (A-8).
CBI Case No.189/2019 Page 232 of 591The flow of alphabets, the pressure applied, while writing/ signing and the manner, in which alphabets were made on the points in records of Society, as such, matched with the specimen signatures of Accused Sudershan Tandon (A-8). The handwriting of Accused Sudershan Tandon (A-8), in Specimen Sheets, matched with his writing which he had made in concerned record viz., Proceedings Register, Resignation Form File, Audit Record File, Affidavits and Bylaws etc. I have compared the said two sets of documents, individually and have come to said conclusion. The writing of Accused Sudershan Tandon (A-8) on the said records of Society, therefore, matched with his specimen handwriting/ signatures.
167.25. In addition to above-mentioned Reports, PW43 had furnished Reasons for Opinions for his above-mentioned Reports which he identified as Ex.PW43/7 & Ex.PW43/8. Said reasoning was not countered by any accused persons, by giving counter- reasoning, in total. Only, Ld. Counsel for Accused Ashutosh Pant (A-7) and Accused Ashwani Sharma (A-6) had put certain questions to PW43, challenging certain reasons in the said Reports but same were not accepted by PW43. In the wake of denial of said counter-reasoning, Accused Ashwani Sharma (A-6) and Accused Ashutosh Pant (A-7) should have examined expert, in their defence. They did not do so, for reasons, best known to them. As such, said reasoning in support of Reports, given by PW43 made the said Reports, trustworthy and reliable.
CBI Case No.189/2019 Page 233 of 591167.26. In addition to above-mentioned reasoning, I must observe that this case was not based on handwriting expert opinion only. Oral testimonies of prosecution witnesses and documents, placed on record, in totality, only indicated the guilt of accused persons. Said oral testimonies and documentary evidence, corroborated the opinion of handwriting expert. It did not help the cause of accused persons.
167.27. Ld. counsel for Accused Maha Nand Sharma (A-4) relied upon certain case laws in support of his claim that expert opinion in this case, was not trustworthy and reliable. Said case laws did not help the cause of Accused Maha Nand Sharma (A-4) due to reasons as mentioned in the table, mentioned below :-
S.No. Case Title Applicability on facts of present case
1. Chakrapani Shukla vs. It was a civil matter, unlike present Chandoo 1958 SCC OnLine criminal matter. Therefore, it was MP 148 distinguishable of present case.
2 Ravjaippa vs. Nilakanta Rao It was a civil matter, unlike present 1960 SCC OnLine Kar 55 criminal matter. Therefore, it was distinguishable of present case.
3. Pandit Ishwari Prasad Misra It was a civil matter, unlike present vs. Mohd. Isa 1962 SCC criminal matter. Therefore, it was Online SC 88 distinguishable of present case.
4. Shashi Kumar Banerjee vs. It was a civil matter, unlike present Subodh Kumar Banerjee criminal matter. Therefore, it was 1963 SCC Online SC 114 distinguishable of present case.
5. Devi Prasad vs. State 1964 The object of conspiracy in the said SCC Online All 381 matter pertained to obtaining cement and iron by means of forged permits in favour of fictitious individuals and for using the controlled goods for the purpose of black marketing and adulteration of cement. Same was not CBI Case No.189/2019 Page 234 of 591 CBI vs. B.M. Sethi & Ors.
the situation in present matter and therefore, said case was distinguishable on facts.
6. Fakhruddin vs. State of The offences, involved in said matter, Madhya Pradesh 1966 SCC pertained to IPC only. The case did not Online SC 55 involve offences under PC Act and therefore, said case was distinguishable on facts.
7. Bhagwan Kaur vs. Maharaj The offence, involved in said matter Krishan Sharma (1973) 4 was Section 302 IPC only. The case SCC 46 did not involve offences under PC Act and therefore, said case was distinguishable on facts.
8. Ram Narain vs. State of UP The offences, involved in said matter, (1973) 2 SCC 86 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
9. Magan Bihari Lal vs. State The offences, involved in said matter, of Punjab (1977) 2 SCC 210 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
10. Murari Lal vs. State of MP The offences, involved in said matter, (1980) 1 SCC 704 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
11. State of Rajasthan vs. Dr. J.P. The case involved conspiracy of Sharma 1982 SCC OnLine making fictitious indents of records of Raj 80 medicine. Same was not the situation here.
12. State of Maharashtra vs. The offences, involved in said matter, Sukhdev Singh (1992) 3 pertained to IPC only. The case did not SCC 700 involve offences under PC Act and therefore, said case was distinguishable on facts.
13. Bhargav Kundalik Salunkhe The offences, involved in said matter, vs. State of Maharashtra pertained to IPC only. The case did not 1995 SCC OnLine Bom involve offences under PC Act and therefore, said case was distinguishable on facts.
CBI Case No.189/2019 Page 235 of 59114. S. Gopal Reddy vs. State of The offences, involved in said matter, AP (1996) 4 SCC 596 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
15. Amarjit Singh vs. State of The offences, involved in said matter, UP (1998) 8 SCC 613 pertained to Terrorists & Disruptive Activities (Prevention Act), 1985 only.
The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
16. State of HP vs. Jai Lal The case involved criminal conspiracy (1999) 7 SCC 280 amongst public servants in procurement and destruction of fruits and growers concerned who prepared false record, showing inflated quantities of scabbed apple, causing loss to government exchequer. Same was not the situation here.
17. Alamgir vs. State (NCT, The offences, involved in said matter, Delhi) (2003) 1 SCC 21 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
18. M. Durga Prasad vs. State of The case involved conspiracy amongst AP 2003 SCC OnLine AP accused persons for cheating income-
1261 tax department. Same was not the
situation here.
19. Malay Kumar Ganguly vs. The case involved issue of medical Dr. Sukumar Mukherjee negligence. Same was not the situation (2009) 9 SCC 280 here.
20. Ramesh Chandra Agrawal The case involved issue of medical vs. Regency Hospital Ltd., negligence. Same was not the situation (2009) 9 SCC 709 here.
21. Sandeep Dixit vs. State 2012 The offences, involved in said matter, SCC Online Del 2430 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
22. Padum Kumar vs. State of The offences, involved in said matter, UP (2020) 3 SCC 596 pertained to IPC only. The case did not involve offences under PC Act and therefore, said case was distinguishable on facts.
CBI Case No.189/2019 Page 236 of 591167.28. Above-mentioned case laws were distinguishable on facts and they did not help the cause of Accused Maha Nand Sharma (A-4). Therefore, I discarded the same.
167.29. Further, in the wake of above-mentioned appreciation and conclusions, I find that testimonies of prosecution witnesses, were trustworthy and reliable.
167.30. In the wake of above-mentioned conclusion, now, I am appreciating the impact of said prosecution evidence on each accused person. While doing said appreciation, besides appreciating prosecution evidence, I will be dealing with the statements of accused persons under Section 313 CrPC and the involvement of criminal conspiracy amongst accused persons also. Coupled with the same, I find that this case was not based on direct evidence, rather, it was based on circumstantial evidence. Therefore, I must mention here relevant law, pertaining to the legal concepts of statements of accused persons under Section 313 CrPC, circumstantial evidence and offence of criminal conspiracy, which I have borne in mind, while appreciating the record, in this case. Same is mentioned below.
Law Relating to Appreciation of Statement, recorded under Section 313 CrPC
168. Statement of accused under Section 313 CrPC is a stage where all the incriminating evidence, brought on record by CBI Case No.189/2019 Page 237 of 591 CBI vs. B.M. Sethi & Ors.
prosecution is put to accused, so that accused can explain the same and give his version. It is a stage where dialogue between Court and accused takes place. So, said statement is of great importance.
168.1. Object of statement under Section 313 CrPC is to put all incriminating evidence to accused to afford him an opportunity to explain as to why they cannot be taken against him and to ask him as to what he has to say about it. At the same time, also to permit him to put forward his own version or reasons, if he choses in relation to his involvement or otherwise, in the crime. This is the statement which accused makes without fear or right of other party to cross-examine him. If statement made is/ are false, then Court in entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The purpose is to have a direct dialogue between Court and the accused. Once such statement is recorded, the next question is to what extent and consequences such statement can be used during trial and enquiry. That statement can be used to test the veracity of the exculpatory of the admission, made by the accused. It can be taken into consideration, in enquiry or trial, but strictly, it is not an evidence in the case. It has to be used in conjunction with evidence adduced by accused. Reliance in this regard is placed on case laws; Hate Singh Bhagat Singh vs. State of MP AIR 1953 SC 468 and Ajay Singh vs. State of Maharashtra (2007) 12 SCC 341.
168.2. Further, when the attention of the accused is drawn to such circumstances that inculpate him in relation to the CBI Case No.189/2019 Page 238 of 591 CBI vs. B.M. Sethi & Ors.
commission of crime and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. Reliance in this regard is placed on case law titled as State of Maharashtra vs. Suresh (2000) 1 SCC
471. 168.3. So, in the wake of above-mentioned case laws, it is clear that statement of accused persons under Section 313 CrPC, recorded by the Court, has to be appreciated in conjunction with the evidence, brought on record by accused. In case, the responses of accused persons are found to be false or inappropriate, then, it may be treated as missing link in completing the prosecution story.
Law Pertaining to Appreciation of Circumstantial Evidence
169. Accused persons, in this case, were charge-sheeted and charged with various offences including offence of criminal conspiracy. The offence of criminal conspiracy was not based on direct evidence, rather, it was based on circumstantial evidence. Therefore, I must mention here law pertaining to appreciation of circumstantial evidence and law pertaining to appreciation of evidence, pertaining to the offence of criminal conspiracy.
169.1. In the case law titled as Vijay Shankar vs. State of Haryana (2015) 12 SCC 644 in which the general principle of cases revolving around circumstantial evidence was laid down which is reproduced as under :-
CBI Case No.189/2019 Page 239 of 591CBI vs. B.M. Sethi & Ors.
"There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC.
169.2. Above-mentioned law on circumstantial evidence, therefore, clearly mandates that in cases, which are based on circumstantial evidence, the chain of circumstances must be so complete that only one possibility should remain which should be consistent with the guilt of an accused and inconsistent with his innocence.
Law on Criminal Conspiracy
170. Section 120-A of the IPC defines /conspiracy' to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as "criminal conspiracy". No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120-B of the IPC prescribes punishment for criminal conspiracy.CBI Case No.189/2019 Page 240 of 591
CBI vs. B.M. Sethi & Ors.
171. In V.C. Shukla vs. State (Delhi Admn.), (1980) 2 SCC 665, it was held by Hon'ble Apex Court :-
"To prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
171.1. In Kehar Singh & Ors. vs. State Delhi Administration (1988) 3 SCC 609, Hon'ble Apex Court observed as under :-
Coleridge, J., while summing up the case to jury in Regina v. Murphy (173 Eng. Reports 508) pertinently states:
I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, CBI Case No.189/2019 Page 241 of 591 CBI vs. B.M. Sethi & Ors.
and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, "Had they this common design, and did they pursue it by these common means - the design being unlawful?"
It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition:
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or CBI Case No.189/2019 Page 242 of 591 CBI vs. B.M. Sethi & Ors.
conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms to pursue the unlawful object there need never have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done".
From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. It is true that the observations of Subba Rao. J., in Sardar Sardul Singh Caveeshar v. State of Maharashtra lend support to the contention that the admissibility of evidence as between co-conspirators would be (sic more) liberal than in English law. The learned Judge said: (SCR p. 390) The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
But, with respect, the above observations that the words of Section 10 have been designedly used to give a wider scope than the concept of conspiracy in English law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. King Emperor, where Lord Wright said that there is no difference in principle in Indian law in view of Section 10 of the Evidence Act.CBI Case No.189/2019 Page 243 of 591
CBI vs. B.M. Sethi & Ors.
The decision of the Privy Council in Mirza Akbar case has been referred to with approval in Sardul Singh Caveeshar v. State of Bombay where Jagannadhadas. J., said (SCR p.
193) The limits of the admissibility of evidence in conspiracy cases under Section 10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. King Emperor. In that case, their Lordships of the Privy Council held that Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under Section 10 of the Evidence Act of "anything said, done, or written, by any one of such persons" (i.e., conspirators) must be "in reference to their common intention". But their Lordships held that in the context (not-withstanding the amplitude of the above phrase) the words therein are not capable of being widely construed having regard to the well known principle above enunciated.
171.2. In Ajay Aggarwal v. Union of India (1993) 3 SCC 609, it Hon'ble Apex Court held as under :-
It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements:
(1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg and the House of Lords in unanimous decision reiterated in Quinn v. Leathem":
"A conspiracy consists not merely in the intention of two or CBI Case No.189/2019 Page 244 of 591 CBI vs. B.M. Sethi & Ors.
more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or for the use of criminal means."
This Court in E.G. Barsay v. State of Bombay held:
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law."
In Yash Pal Mittal v. State of Punjab the rule was laid as follows: (SCC p.543, para 9) "... The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be Interested. There must he unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators."
In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra it was held that for an offence under Section 120-B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the CBI Case No.189/2019 Page 245 of 591 CBI vs. B.M. Sethi & Ors.
illegal act, the agreement may be proved by necessary implication. In Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra it was held that Section 120-B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means. If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect. In R.K. Dalmia v. Delhi Administration it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy. In Shivanarayan Laxminarayan Joshi v. State of Maharashtra this Court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.
The question then is whether conspiracy is a continuing offence. Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy. Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive.
171.3. In State of Maharashtra V. Som Nath Thapa, (1996) 4 SCC 659, it was observed by Hon'ble Apex Court as under :-
The following quotations in Lauria from the decision in Direct Sales is very pertinent:
"All articles of commerce may be put to illegal ends..... But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge.... The step from e knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack CBI Case No.189/2019 Page 246 of 591 CBI vs. B.M. Sethi & Ors.
of concern. There is informed and interested cooperation, simulation, instigation."
171.4. In L.K. Advani vs. Central Bureau of Investigation 1997 SCC OnLine Del 382, Hon'ble Apex Court, referred to Section 10 of IEA, while interpreting the law of criminal conspiracy, in following words:-
Section 10 of the Evidence Act reads as under:-
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
Section 10 of the Evidence Act is an exception to the rule of hearsay as is Section 21 of the Evidence Act. The said section is based on the principle of agency. However, to make a piece of evidence admissible under the said section it must be prima facie shown that:
(a) there was a conspiracy;
(b) if the conspiracy is shown to be in existence in that eventuality anything said, done or written by any of the persons who are members of the said conspiracy would be admissible against any one of the co-conspirators;
(c) the said thing done or written by any of such co-
conspirators must be in reference to their common intention in order to be made admissible in evidence; and
(d) the said piece of evidence would also be relevant for the said purpose against any other co- conspirator who entered the conspiracy irrespective of the fact whether the said thing was done or written before he entered the conspiracy or after he left it.
CBI Case No.189/2019 Page 247 of 591The earliest law on the above point was laid down by their Lordships of the Privy Council in The Queen v. Blake, 6 QB 126. It was observed .... "Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is in the contemplation of law the act of the whole party, and there-fore, the proof of such act would be evidence against any of the others who were engaged in the same conspiracy; and, further, any declarations, made by one of the party at the time of doing such illegal act, seem not only to be evidence against himself, as tending to determine the quality of the act, but to be evidence also against the rest of the party, who are as much responsible as if they had themselves done the act. But what one of the party may have been heard to say at some other time, as to the share which some of the others had in the execution of the common design, or as to the object of the conspiracy, cannot, it is conceived, be admitted......" It was observed by Patterson J, " I entirely agree on both points. As to the first, it is laid down that you must establish the fact of a conspiracy before you can make the act, of one the act of all. But you are not bound to bring the parties into each other's presence; the concert may be shewn by either direct or indirect evidence.
171.5. In State & CBI V. Nalini & Ors. (1999) 5 SCC 253, Hon'ble Apex Court held as under :-
It is true that provision as contained in Section 10 is a departure from the rule of hearsay evidence. There can be two objections to the admissibility of evidence under Section 10 and they are (1) the conspirator whose evidence is sought to be admitted against the co-conspirator is not confronted or cross-examined in court by the co-conspirator and (2) prosecution merely proves the existence of reasonable ground to believe that two or more persons have conspired to commit an offence and that brings into operation the existence of agency relationship to implicate co-conspirator. But then precisely under Section 10 of the Evidence Act, statement of a conspirator is admissible against a co-conspirator on the premise that this relationship exists. Prosecution, no doubt, has to produce independent evidence as to the existence of the conspiracy for Section 10 to operate but it need not prove the same beyond a reasonable doubt. Criminal conspiracy is a CBI Case No.189/2019 Page 248 of 591 CBI vs. B.M. Sethi & Ors.
partnership in agreement and there is in each conspiracy a joint or mutual agency for the execution of a common object which is an offence or an actionable wrong. When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them. A conspirator is not, however, responsible for acts done by a conspirator after the termination of the conspiracy as aforesaid. The court is, however, to guard itself against readily accepting the statement of a conspirator against a co-conspirator. Section 10 is a special provision in order to deal with dangerous criminal combinations. Normal rule of evidence that prevents the statement of one co-accused being used against another under Section 30 of the Evidence Act does not apply in the trial of conspiracy in view of Section 10 of that Act. When we say that court has to guard itself against readily accepting the statement of a conspirator against a co-conspirator what we mean is that court looks for some corroboration to be on the safe side. It is not a rule of law but a rule of prudence bordering on law. All said and done, ultimately it is the appreciation of evidence on which the court has to embark.
In Bhagwandas Keshwani v. State of Rajasthan, Criminal Appeals Nos. 155 and 170 of 1969, decided on 03.04.1974, this Court said that in cases of conspiracy better evidence than acts and statements of co-conspirators in pursuance of the conspiracy is hardly ever available.
Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute a crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused CBI Case No.189/2019 Page 249 of 591 CBI vs. B.M. Sethi & Ors.
have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.
Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy C like giving shelter to an absconder.
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
Conspirators may for example, be enrolled in a chain enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella- spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
CBI Case No.189/2019 Page 250 of 591It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual CBI Case No.189/2019 Page 251 of 591 CBI vs. B.M. Sethi & Ors.
agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a a conspiracy into several different conspiracies.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other b conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
From a survey of cases, referred to above, the following position emerges:
In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is f the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless g they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them CBI Case No.189/2019 Page 252 of 591 CBI vs. B.M. Sethi & Ors.
and some others may quit from the conspiracy. All of them cannot but be conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to prove that each one of them can justifiably be treated as a conspirator.
171.6. In State of Kerala V. P. Sugathan, (2000) 8 SCC 203, Hon'ble Apex Court held as under :-
Section 120-B prescribes the punishment for criminal conspiracy which by itself is an independent offence, punishable separately from the main offence. The offence of criminal conspiracy can be established by direct evidence or by circumstantial evidence. Section 10 of the Evidence Act introduces the doctrine of agency and will be attracted only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable ground, that is to say, there should be prima facie evidence that the person was a party to the conspiracy before his acts can be used against the co- conspirators. This Court in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only CBI Case No.189/2019 Page 253 of 591 CBI vs. B.M. Sethi & Ors.
"as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of 9 showing that any such person was a party to it".
It was further held:
"In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour."
171.7. In Esher Singh V. State of A.P. (2004) 11 SCC 585, Hon'ble Apex Court observed as under :-
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of minds. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to encompass all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the CBI Case No.189/2019 Page 254 of 591 CBI vs. B.M. Sethi & Ors.
agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
It is not, however, necessary that each conspirator should have been in communication with every other."
There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra.) It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only "... 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. the section can be analysed as CBI Case No.189/2019 Page 255 of 591 CBI vs. B.M. Sethi & Ors.
follows: (1) There shall be a prima facie In short, evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other, (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour." (AIR p. 687, para 8) We are aware of the fact that direct independent evidence of criminal conspiracy may not ordinarily and is generally not available and its existence invariably is a matter of inference except as rare exceptions. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators.
......Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence proof of a conspiracy is seldom available; offence of conspiracy proved by either direct or circumstantial evidence. It is not always poss give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
"Conspiracy can be proved by circumstances and other materials." (See State of Bihar v. Paramhans Yadav) "[T]o establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of CBI Case No.189/2019 Page 256 of 591 CBI vs. B.M. Sethi & Ors.
conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use." (emphasis in original) (See State of Maharashtra v. Som Nath Thapa's, SCC p. 668, para 24.) The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B IPC.
171.8. In Yash Pal Mittal vs. State of Punjab, Crl. App. No.81 of 1973, decided on 3rd November 1977, Hon'ble Apex Court held - "There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators."
171.9. In State of H.P. vs. Krishan Lal Pardhan AIR 1987 SC 773, Hon'ble Apex Court reiterated that "every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts".
171.10. Further, there cannot be direct evidence for the offence of criminal conspiracy. Express agreement between the parties, as such, cannot be proved. Court should consider the circumstances, proved to decide upon the complicity of accused, in cases CBI Case No.189/2019 Page 257 of 591 CBI vs. B.M. Sethi & Ors.
involving criminal conspiracy. Reliance in this regard is placed upon the case law titled as Chandra Prakash vs. State of Rajasthan 2014 (86) ACC 836 (SC).
171.11. In the wake of above-mentioned case laws, following relevant legal points, pertaining to appreciation of evidence regarding offence of criminal conspiracy, emerge :-
a) That direct evidence, pertaining to occurrence of offence of criminal conspiracy is seldom found.
b) That Court has to appreciate existence of "common design"
while considering circumstances of a particular case, pertaining to existence of offence of criminal conspiracy.
c) That Court must inquiry as to whether two or more persons had come together in pursuit of attaining unlawful object.
d) That evidence as to transmission of thoughts, sharing the unlawful design, may be sufficient.
e) That it is not necessary to prove that accused persons had actually come together and agreed in terms to pursue the unlawful object. A tacit understanding between conspirators as to what should be done, is sufficient.
f) That Section 10 of IEA is intrinsically linked with the offence of criminal conspiracy.
g) That it is not necessary to prove that each conspirator knew about all details of scheme or that each conspirator knew about other conspirators.CBI Case No.189/2019 Page 258 of 591
h) That offence of criminal conspiracy is based on an agreement to break the law.
i) That offence of criminal conspiracy may comprise of commission of a number of acts.
j) That there must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another amongst conspirators.
k) That agreement may be proved by necessary implication.
l) That it is not necessary that each member of a conspiracy must know all the details of conspiracy.
m) That offence of criminal conspiracy can be only proved largely from the inferences drawn from acts or illegal omissions, committed by the conspirators, in pursuance of a common design.
n) That prosecution has to produce independent witness as to the existence of conspiracy for Section 10 to operate but it need not prove the same beyond a reasonable doubt.
o) That existence of conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
p) That conspirators may join with other conspirators at any time before the consummation of the intended objective and all are equally responsible. What part each conspirator has to play, may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
CBI Case No.189/2019 Page 259 of 591q) That joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of other conspirators and the mere fact that conspirators individually or in groups perform different tasks to a common end, does not split-up a conspiracy into several different conspiracies.
r) That a man may join a conspiracy by word or by deed.
s) That a person who tacitly consents to the object of a conspiracy and goes along with other conspirators, is guilty of the offence of criminal conspiracy. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy. Some may join the conspiracy, after the time, when such intention was entertained by any of them and some other may quit.
t) That the agreement in conspiracy can be proved by direct evidence or it may be inferred from utterances, writings, acts, omissions and conduct of the parties.
u) That there must be a reasonable ground for the Court to believe that two or more persons are members of a conspiracy.
v) That circumstances, relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence, in furtherance of the alleged conspiracy.
w) That it is not necessary that each conspirator should have been in communication with every other conspirator.
CBI Case No.189/2019 Page 260 of 591172. At this stage, for better grip and understanding of the said appreciation, I must reiterate the case of prosecution, in brief, here.
Brief Recapitulation of Prosecution's Case
173. Pursuant to order of Hon'ble High Court of Delhi, present FIR in question was registered by CBI on 29.09.2006. Investigation revealed that Society in Question was created in the year 1983. Till 1986, it functioned properly. Later on, it stopped responding to the notices, issued by the office of RCS and winding- up proceedings started. In 1998, an application for revival of Society was received by the office of RCS. Thereafter, Society was revived subject to certain terms & conditions. In the process, records of Society were submitted with the office of RCS. Liquidator and Election Officer were appointed for conducting Special GBM and Elections in Society, who submitted their respective Reports. Audit Report also did not note down the factum of falsification of records of Society. There were financial manipulations also in the accounts of Society. The records of Society, collected by CBI revealed various manipulations and falsification. Expert opinion from GEQD/ Shimla, supported said conclusions, drawn by CBI. CBI did not find any theory in consonance with innocence of accused persons and therefore, charge-sheeted them in this case.
CBI Case No.189/2019 Page 261 of 591173.1. Keeping in mind above-mentioned law points and brief reference of the case of prosecution, I am appreciating the record of this case, viz-a-viz each accused person separately, in my subsequent paragraphs.
Appreciation of Record viz-a-viz Accused Karamvir Singh (A-2)
174. Accused Karamvir Singh (A-2) was charged with offences, punishable under Section 120-B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act. He was also charged with offence punishable under Section 13(2) read with Section 13(1)(d)(iii) of PC Act.
174.1. Allegations against Accused Karamvir Singh (A-2) were that between 1999-2002, he had been part of a criminal conspiracy with co-accused persons for doing illegal act of cheating the office of RCS, for the purpose of revival of Society in Question, based on forged documents. For achieving said aim, he as a Public Servant had prepared/ recommended/ forwarded various notes and Reports with malafide intention.
174.2. In order to appreciate as to whether said allegations were proved against him, it is worth while to mention here the specific role, assigned to him in charge-sheet.
174.3. As per charge-sheet, Accused Karamvir Singh (A-2) was found to be a Clerk in the office of RCS on 08.01.1999, when he was appointed as Liquidator. In that capacity, he had received CBI Case No.189/2019 Page 262 of 591 CBI vs. B.M. Sethi & Ors.
relevant records of Society in Question from Accused Maha Nand Sharma (A-4) on 18.01.1999, for revival of Society. He signed on the margin of note-sheet at page 10/N of Registrar of Cooperative Societies file. In the said note, besides noting the presence of Accused Maha Nand Sharma (A-4), he noted, "After verification of the list of Members, the undersigned had issued Agenda on the same for Special GBM on 27.01.1999 to seek the Opinion/ view of Members for revival of the Society". Investigation revealed that various Members denied attending the said meeting on 27.01.1999 and signing in the Minutes of Meeting. Besides that, said Minutes of Meeting dated 27.01.1999 noted names of fictitious Members. The Report of GEQD/ Shimla, supported the said conclusions.
Appreciation of Prosecution Evidence viz-a-viz Accused Karamvir Singh (A-2) 174.4. As such, Accused Karamvir Singh (A-2), nowhere denied that he was a Clerk in the office of RCS on 08.01.1999. He did not deny the fact that he had received records of Society from Accused Maha Nand Sharma (A-4), in the capacity of being Liquidator. Now, question arises, as to whether, he performed his duties bonafidely or malafidely? In order to decide said question, I must refer here, Section 66 of DCS Act.
174.5. As per Section 66 of DCS Act, being Liquidator, Accused Karamvir Singh (A-2), was required to take into custody, all the property, effects and actionable claims, to which Society in Question was or appeared to be entitled. Further, said provision CBI Case No.189/2019 Page 263 of 591 CBI vs. B.M. Sethi & Ors.
noted that in such capacity of being a Liquidator, Accused Karamvir Singh (A-2) had to take steps, as he may deem necessity or expedient for preventing loss or deterioration or damage to such property, effects and claims. Further, he was required to carry on the business of Society, so far as, may be necessary with the previous approval of the Registrar.
174.6. Since, Society in Question was defunct at the relevant time, so, aspect of carrying out business by him, with the approval of Registrar was absent. Besides that as a Liquidator, Accused Karamvir Singh (A-2) had to take into custody and control all the property, effects and actionable claims of Society.
174.7. Now, Accused Karamvir Singh (A-2) nowhere gave any suggestion to any the prosecution witnesses that he had taken over control of all the property, effects and actionable claims of Society in Question. In response to incriminating evidence, put to him, he did not reply that he acted in compliance of said provision of law. Ld. Counsel for Accused Karamvir Singh (A-2) argued that said accused acted as per law but did not specify as to which provision of law, said accused followed, while performing his duties. It made the said argument vague. I discarded it, accordingly.
174.8. In the light of above appreciation, it is clear that Accused Karamvir Singh (A-2) nowhere alleged during trial that he performed his duties, in compliance of Section 66 of DCS Act, categorically. It means that he never asserted during trial that he performed his duties, as per law. He also nowhere claimed that he CBI Case No.189/2019 Page 264 of 591 CBI vs. B.M. Sethi & Ors.
had taken possession of documents, from any person and source apart from Accused Maha Nand Sharma (A-4). He nowhere claimed that he had visited the office of Society for collecting complete documents of Society. It was not his case that he had satisfied himself with regard to completeness of documents, pertaining to Society, in any particular manner. Absence of said claim by him clearly indicated that he did not admit the fact that he performed his duties, diligently. The only inference, which one can draw, was that he received documents from Accused Maha Nand Sharma (A-4), pertaining to Society in Question, which for reasons, best known to him, he believed to be complete documents of Society in Question. Since, he did not verify the completeness of documents, submitted to him by Accused Maha Nand Sharma (A-4), so, it indicated that he did not perform his duty diligently.
174.9. Moving further, I find that in his statement under Section 313 CrPC, he had claimed that he had conducted Special GBM as per the settled provision of law and practice. The said Special GBM was dated 27.01.1999. That Special GBM was preceded by Agenda/ Notice dated 18.01.1999 which was Ex.A-3/1.
174.10. The said Agenda Ex.A-3/1 was issued by Accused Karamvir Singh (A-2) and he admitted the same during trial. Said Agenda noted facts viz., that Accused Karamvir Singh (A-2) was appointed as Liquidator; that representation was received from Accused Maha Nand Sharma (A-4) for revival of Society and that being Liquidator, Accused Karamvir Singh (A-2) was calling CBI Case No.189/2019 Page 265 of 591 CBI vs. B.M. Sethi & Ors.
Special GBM. That Agenda/ Notice was bereft of any objective satisfaction of Accused Karamvir Singh (A-2) regarding the fact that he had considered complete record of Society in Question. As such, said document did not absolve Accused Karamvir Singh (A-2) from his legal liability under DCS Act.
174.11. The Special GBM dated 27.01.1999 Ex.A-3/2 was also admitted by Accused Karamvir Singh (A-2). The said meeting record noted signatures of 53 Members of Society in Question. Initially, 20 Members joined said meeting and at 4.00 PM, it was adjourned for 30 minutes. So, after 30 minutes, at 4.30 PM, record revealed that 53 Members had joined the said meeting.
174.12. During trial, prosecution witnesses viz., PW8 - K. Manoj Kumar Subudhi and PW16 - Vijay Sharma, categorically denied their signatures in said Special GBM dated 27.01.1999 at S.No.18 & S.No.20 respectively. That deposition clearly indicated that said witnesses had not signed at said serial numbers in Ex.A-3/2. PW8 and PW16, infact did not categorically depose that they were Members of Society in Question.
174.13. PW14 - Dushyant Vats had deposed that he used to sign as 'Dushyant Vats' and 'Binni Vats'. In his testimony, he denied the fact that he had signed in Ex.A-3/2, at S.No.41, which noted his name as 'Binni Vats'. It indicated that his signature against his name at said serial number was false. The page in Ex.A-3/2, where his name as 'Binni Vats' is mentioned is Ex.PW14/3.
CBI Case No.189/2019 Page 266 of 591174.14. Besides that, PW12 - Amit Kumar Sharma, was not sure if he had signed at S.No.3 in Ex.A-3/2. So, said testimony of PW12 did not confirm the fact that he had signed in Ex.A-3/2 at S.No.3.
174.15. Above facts were proved on record. It means that above- mentioned witnesses were falsely named and their signatures were put on Ex.A-3/2 falsely. This conclusion only indicated that Accused Karamvir Singh (A-2) was not a naive person. He very well knew the aim of Accused Maha Nand Sharma (A-4) and knowingly, helped said accused for getting Society in Question revived.
174.16. The case of prosecution also got support from the Opinion of GEQD/ Shimla which is Report Ex.PW43/2. That Report is based on comparison of signatures in Special GBM dated 27.01.1999 Ex.A-3/2 with specimen signatures/ hand-writings of accused persons. That Report noted that names mentioned at points Q-543C, Q-543B & Q-543A and Q-552A, were not written by the said persons, mentioned therein, rather, same were written by Accused Maha Nand Sharma (A-4). Further, signatures at point Q-537 & Q-544 were also made by Accused Maha Nand Sharma (A-4). So, said Report only proved the fact that document Ex.A-3/2 was a false document. Accused Karamvir Singh (A-2) owed an explanation in that regard. He failed to give any explanation with regard to said false document. Said expert Opinion, therefore, hinted towards the guilt of Accused Karamvir Singh (A-2) only.
CBI Case No.189/2019 Page 267 of 591174.17. Here, I must also mention the noting of Accused Karamvir Singh (A-2) in the records of RCS which is part of Ex.PW45/2. In the said noting dated 18.02.1999, Accused Karamvir Singh (A-2) mentioned the circumstances, based on which order of winding-up of Society was passed by the concerned Registrar under Section 66 of DCS Act. It also mentioned the proceedings which took place when previous Liquidator I.C. Saini was appointed for Society. Thereafter, it noted about the proceedings of Special GBM dated 27.01.1999.
174.18. Above-mentioned noting did not mention as to what Accused Karamvir Singh (A-2) in the capacity of being Liquidator thought about revival of Society in Question. He was a Public Servant and his Opinion mattered. He simply referred to the Minutes of Special GBM and the resolutions, passed in said meeting in the said noting. Once, he was given the duty of being a Liquidator of Society in Question, Section 66 of DCS Act required that he should have taken steps, necessary or expedient for preventing loss or deterioration of said Society. Section 67(3) of the said Act noted that he shall have powers, subject to the control of Registrar for doing acts, as mentioned therein for Society. So, said provisions clearly indicate that he had to act responsibly while dealing with Society against which winding-up order has been passed. He could not have simply turned blind eye towards clear illegalities, decipherable from the records which were submitted to him by Accused Maha Nand Sharma (A-4). In other words, he should have noted the fact that there were various blank spaces in CBI Case No.189/2019 Page 268 of 591 CBI vs. B.M. Sethi & Ors.
Ex.PW45/9. He should have also noted that fake Members had signed in the record of Special GBM Ex.A-3/2. He did not do so. Infact, from the stage of framing of Charges till the stage of final arguments, he nowhere claimed that he had asked Accused Maha Nand Sharma (A-4) about the reasons of said short-comings in the records. His conduct revealed that he simply acted like a mouth- piece of Accused Maha Nand Sharma (A-4). His said conduct only paved the way for believing that he had acted in conspiracy with Accused Maha Nand Sharma (A-4) for preparing said false record. It also indicated that he also wanted revival of Society in Question, by all means, keeping the rules & regulations, at bay.
174.19. So, in the light of above-mentioned logical and reasonable inferences, drawn from the prosecution evidence, coupled with the prosecution evidence, I conclude that prosecution was able to prove beyond reasonable doubt that Accused Karamvir Singh (A-2) was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4), for the purpose of revival of Society in Question. In the process, he prepared false record pertaining to Special GBM dated 27.01.1999. He did not verify the record of Society in Question, submitted by Accused Maha Nand Sharma (A-4), malafidely. He did not perform his duties like a reasonable prudent Public Servant, placed in his situation. His said acts led to illegal allotment of land by DDA to Society in Question. Therefore, he caused pecuniary advantage, without any public interest, to Accused Maha Nand Sharma (A-4) and other Office Bearers of Society in Question. The said criminal conspiracy also involved CBI Case No.189/2019 Page 269 of 591 CBI vs. B.M. Sethi & Ors.
cheating departments of RCS & DDA, who were made to believe that said record was correct, which infact, was not true.
174.20. This brings me to the Statement of Accused Karamvir Singh (A-2) recorded under Section 313 CrPC.
Appreciation of Statement of Accused Karamvir Singh (A-2), recorded under Section 313 CrPC
175. In response to incriminating evidence, put to Accused Karamvir Singh (A-2), he simply shifted the onus of maintaining the correct record, on Society in Question. As per him, Society was responsible for maintaining correct details of its Members. He referred to Section 20 of DCS Act and Rule 30 DCS Rules, 1973 and claimed that power to enroll new Member vested with Managing Committee of the Society. Further, power to accept resignation of a Member also vested with Managing Committee of Society under Rule 31 of DCS Rules, 1973. Further, he claimed that he was not posted in the office of RCS at the relevant time. So, as per him, he had no role to play with respect to enrollment and resignation of a Member, in Society in Question. Besides that, he claimed that he was falsely implicated in this case and that there was no evidence, to the effect that he had knowledge about authenticity of documents, dealt by him. Further, he claimed that no departmental inquiry was initiated against him and that IO had done investigation by adopting pick & choose policy.
CBI Case No.189/2019 Page 270 of 591175.1. Aforesaid version of Accused Karamvir Singh (A-2), is appreciated by me, in subsequent paragraphs, one by one.
175.2. The first response of Accused Karamvir Singh (A-2) was that it was the Society which had the duty and power under DCS Act and DCS Rules, 1973 to allow a person to become Member of Society in Question and to accept resignation of a Member in said Society. Further, Society had to maintain the record with regard to its correct Members. To that extent, there is no dispute. Accused Karamvir Singh (A-2) failed to appreciate facts of this case properly. He failed to appreciate the Charges which were framed against him. He failed to appreciate that in the criminal conspiracy, claimed by prosecution, he was seen as one of the wrong-doer who did his part, for the purpose of achieving aim of allotment of land, in the name of Society, in illegal manner, based on false and forged documents. What was his duty and what was he expected to do, while performing his duties, were the relevant questions, which he had to answer, for showing his bonafide. He failed to do so, during trial. So aforesaid response was evasive and it did not help his cause. I discarded it accordingly.
175.3. Accused Karamvir Singh (A-2) admittedly was a Liquidator. It was an official post. In that capacity, he had to take possession of documents of Society. He was not merely a Record Keeper of said documents. The note-sheet in Ex.PW45/2 mentioned that he had recommended for revival of Society in Question. It was not a mere recommendation in casual manner. It was an official document in which he should have recommended, CBI Case No.189/2019 Page 271 of 591 CBI vs. B.M. Sethi & Ors.
based on objective assessment of official record of Society. That objective assessment was missing in the said recommendation and Accused Karamvir Singh (A-2) never explained the same, during trial. His acquaintance with Accused Maha Nand Sharma (A-4), based on visits of Accused Maha Nand Sharma (A-4) to the office of RCS, further aggravated the situation against him. As such, in his statement under Section 313 CrPC, he never explained, as to why he did not find record of Society in Question, doubtful? Further, no doubt, Society had to maintain record of membership of its Members, once, Special GBM was called by Accused Karamvir Singh (A-2), he had the responsibility for making sure that correct Members of Society had attended the said meeting. It was not an ordinary meeting as Agenda of said meeting, dated 18.01.1999, Ex.A-3/1, which was admitted by Accused Karamvir Singh (A-2), noted that said meeting was called for seeking view/ Opinion of Members of Society regarding the proposal for revival / withdrawal of Liquidation Order dated 30.11.1990. The Agenda was, therefore, such that it went to the root of future prospect of Society in Question. So, it was a serious affair. Accused Karamvir Singh (A-2) in blatant disregard to the seriousness of said Agenda, prepared record with regard to said meeting Ex.A-3/2 which noted names of persons who were never Members of Society in Question. Why he did not make any effort to make sure that correct Members attended said meeting? Did he discuss the issue of joining of correct Members of Society with Accused Maha Nand Sharma (A-4)? If not, why? Such questions were directly linked to Accused CBI Case No.189/2019 Page 272 of 591 CBI vs. B.M. Sethi & Ors.
Karamvir Singh (A-2). Failure on his part, to answer said questions, did not absolve him from this case. So, issue of Society responsible for maintaining membership record of its Members was inconsequential and is discarded by me, accordingly.
175.4. Accused Karamvir Singh (A-2) further claimed that he was falsely implicated in this case. He failed to explain why and how he was falsely implicated in this case. He did not claim that he had filed counter-litigation against CBI for implicating him in this case. So, his said claim was vague and I dismissed it, accordingly.
175.5. Accused Karamvir Singh (A-2) also claimed that no departmental inquiry was initiated against him. That fact did not make him an innocent person as initiation of departmental inquiry is an independent process. Same is within the domain of concerned department. Law does not mandate that for prosecuting Public Servant like Accused Karamvir Singh (A-2), department should initiate departmental inquiry against him. So, said reply is dismissed by me being inconsequential in nature.
175.6. Accused Karamvir Singh (A-2) also claimed that IO had adopted pick & choose policy in this case. Again, same is vague plea which I discarded accordingly.
175.7. The net result is that Accused Karamvir Singh (A-2) failed to give plausible and reasonable explanation to the incriminating evidence, put to him. Said statement, recorded under CBI Case No.189/2019 Page 273 of 591 CBI vs. B.M. Sethi & Ors.
Section 313 CrPC, did not help his cause. I discarded it, accordingly.
Appreciation of Defence Evidence, led by Accused Karamvir Singh (A-2) 175.8. In his defence, Accused Karamvir Singh (A-2) only examined DW1 - Anil Kumar. Said witness being a Section Officer, Vigilance Branch, Directorate of Education, Government of NCT of Delhi, had brought file pertaining to grant of Sanction for prosecution of said accused. Said file in original was taken on record and was marked as Ex.DW1/1.
175.9. In Ex.DW1/1, I find certain notings of concerned officials. It also contained Sanction Order, issued by Sh. Sandeep Kumar, Director, Directorate of Education. Said officer was examined by prosecution as PW42 and he had exhibited the said Sanction Order Ex.PW42/1. I have already concluded in my preceding paragraphs that said witness was trustworthy and reliable. Reasons for said conclusion are not repeated here for the sake of brevity.
175.10. Here, I must refer to Membership Register Ex.PW45/8. That Register contained details of Members of Society. It contained various columns including column of "date of admission", which pertained to the date when concerned Members of Society were admitted. The said columns of concerned Members, were blank.
CBI Case No.189/2019 Page 274 of 591Infact, after S. No.96, rest of the Members had not signed in the said Register, except Accused Maha Nand Sharma (A-4) at S.No.98, Ahilya Sharma at S.No.106 and Amit Sharma at S.No.124. Why dates of admission of Members were not mentioned in said Register? Why Members had not signed against their names in said Register? Why Accused Karamvir Singh (A-2) did not check the said short-comings in the said Register? Those were questions which Accused Karamvir Singh (A-2), should have answered during trial. Those were the questions which Accused Karamvir Singh (A-2) should have dealt with, in his noting in Ex.PW45/2. Those were the questions, which he should have argued at the time of final arguments. He failed on all said accounts. It did not help his cause and only strengthen the case of prosecution.
175.11. PW42 was given suggestions viz., that he was not competent authority to remove Accused Karamvir Singh (A-2) from services at the time when Sanction Order was passed and that he had merely signed the draft Sanction Order, produced before him by CBI, without application of mind and without perusal of the documents. Those suggestions were refuted by him. The file Ex.DW1/1, nowhere noted that PW42 was not competent to remove Accused Karamvir Singh (A-2) at the time of passing of Sanction Order Ex.PW42/1. Said file noted, notings of different officials of concerned department. Those notings are not disputed by Accused Karamvir Singh (A-2). It means that accused did not challenge the manner in which said file moved in the concerned CBI Case No.189/2019 Page 275 of 591 CBI vs. B.M. Sethi & Ors.
department, through Vigilance Department. If that is so, I find that said file was maintained in ordinary course of official business. There is a presumption of correctness in the maintenance of record in said file. Sanction Order Ex.PW42/1 was part of said official file and I find the said Order to be trustworthy and reliable.
175.12. The suggestion, put to PW42, to the effect that he had not applied his mind and had merely signed the draft Sanction Order, remained a bald suggestion, only. It was not supported by any evidence, whatsoever. DW1, who was examined by Accused Karamvir Singh (A-2), could have been asked by the said accused about the above-mentioned aspect but it was not done. Infact, the best person, who could have answered the said aspects was PW42 and said witness did not support the claim of Accused Karamvir Singh (A-2). Thus, I find no illegality in the passing of Sanction Order Ex.PW42/1. Defence evidence, in this regard, led by Accused Karamvir Singh (A-2), did not help his cause. I did not believe the said evidence of accused to be trustworthy and reliable.
Written Submissions of Accused Karamvir Singh (A-2) 175.13. Accused Karamvir Singh (A-2) raised certain arguments, in the shape of written submissions, which I am appreciating in my subsequent paragraphs.
(i). Sanction for Prosecution 175.14. In this case, Accused Karamvir Singh (A-2) was charged CBI Case No.189/2019 Page 276 of 591 CBI vs. B.M. Sethi & Ors.
with Section 420/468/471 IPC read with Section 120-B IPC, besides offences under PC Act. Ld. Counsel for Accused Karamvir Singh (A-2) argued that CBI had not taken Sanction under Section 197 CrPC for prosecuting said accused for the said offences, punishable under IPC, rather, had only taken Sanction under Section 19 of PC Act. So, as per him, whole trial was bad on that account. He relied upon case laws viz., (1). N.K. Ganguly vs. Central Bureau of Investigation (2016) 2 Supreme Court Cases 143, (2). Rakesh Bhatnagar vs. Central Bureau of Investigation WP (CRL) 299 of 2019, decided on 22.11.2023, (3). Central Bureau of Investigation vs. Rakesh Bhatnagar SLP (CRL) No.16496 of 2024, decided on 03.12.2024 and (4). Krishna Kumar vs. Central Bureau of Investigation CRL MC 3481 of 2019, decided on 21.08.2024.
175.15. In order to appreciate said argument, I must mention here relevant law, concerning the said issue.
175.16. Section 197 CrPC mandates that for prosecuting a Public Servant as an accused for committing an offence, alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, Sanction of the office, capable of removing him from public service, shall be required and without that Sanction, no Court shall take cognizance of such offence.
175.17. Question arises as to whether acts of Accused Karamvir Singh (A-2) in this case, were done by him in discharge of his official duty or not? The said expression viz., "offence alleged to have been committed by him while acting or purporting to act in CBI Case No.189/2019 Page 277 of 591 CBI vs. B.M. Sethi & Ors.
the discharge of his official duty" needs closer appreciation. Hon'ble High Court of Delhi and Hon'ble Apex Court, in the judgments, referred by Accused Karamvir Singh (A-2), had the occasion to interpret said expression. I am referring relevant paragraphs of the said case laws, below, for better understanding of the said expression.
175.18. Hon'ble High Court of Delhi, in the case of Rakesh Bhatnagar (supra) had the occasion to appreciate the said expression. In the said judgment, it was noted as below :-
52. To appreciate the arguments addressed by both the counsel, it would be appropriate to first examine the ratio laid down by the Supreme Court in Parkash Singh Badal & Anr. vs. State of Punjab & Ors. (2007) 1 SCC 1. The relevant paragraph is extracted hereunder :-
"49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable under Sections 467 and 468 Sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case27. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.
50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any Public Servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
What is to be noted in the aforesaid judgment is that the Supreme Court after having examined a catena of judgments in regard to the requirement of Sanction under CBI Case No.189/2019 Page 278 of 591 CBI vs. B.M. Sethi & Ors.
section 197 Cr.PC in respect of offences committed by Public Servant is concerned, had concluded that the offences under sections 420, 467, 468, 471 and 120B IPC by their very nature cannot be regarded as offences committed while acting or purporting to act in the discharge of official duty. It was this observation and ratio of Parkash Singh Badal (supra) which was subsequently considered by the Supreme Court in A.Srinivasulu (supra) and distinguished.
53. The Supreme Court had, in A. Srinivasalu vs. State Rep. By the Inspector of Police 2023 SCC OnLine SC 900 held as under:-
"48. Shri Padmesh Mishra, learned counsel for the respondent placed strong reliance upon the observation contained in paragraph 50 of the decision of this Court in Parkash Singh Badal v. State of Punjab. It reads as follows:-
"50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any Public Servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
*Emphasis as marked in the judgment
49. On the basis of the above observation, it was contended by the learned counsel for the respondent that any act done by a Public Servant, which constitutes an offence of cheating, Signing Date:22.11.2023 17:10:39 cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
50. But the above contention in our Opinion is far-fetched. The observations contained in paragraph 50 of the decision in Parkash Singh Badal (supra) are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under sections 420, 468, 471 and 120B cannot be regarded as having been committed by a Public Servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the CBI Case No.189/2019 Page 279 of 591 CBI vs. B.M. Sethi & Ors.
decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra (supra) was distinguished in paragraph 49 of the decision in Parkash Singh Badal, before the Court made the observations in paragraph 50 extracted above.
51. No Public Servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous Sanction will thus be rendered redundant by such an interpretation."
It is clear from the aforesaid paragraphs that the Supreme Court in the subsequent judgment of A. Srinivasulu (supra) had not only distinguished the observations in para 50 of Parkash Singh Badal (supra) but has also categorically held that in case the observations therein are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty and hence, concluded that the requirement of previous Sanction would be rendered otiose. Keeping in view the aforesaid ratio in A. Srinivasulu, the arguments of Mr. Goel based on Parkash Singh Badal (supra) would be untenable.
54. That, apart from the above, the judgments of the Supreme Court in N.K. Ganguly vs. Central Bureau of Investigation (2016) 2 Supreme Court Cases 143 and A. Srinivasa Reddy (supra) have categorically laid down the law in respect of Sanction under section 197 Cr.PC, as under :-
(a) Paras 19 and 35 of N.K. Ganguly:-
"19. In the instant case, it is alleged in the charge- sheet that the appellants entered into an agreement to commit an illegal act, which is an offence punishable under Section 120-B IPC. Therefore, the provision of Section 197 CrPC squarely applicable to the facts of the case. Prior CBI Case No.189/2019 Page 280 of 591 CBI vs. B.M. Sethi & Ors.
Sanction of the Central Government was required to be taken by the respondent before the learned Special Judge took cognizance of the offence once the final Report was filed under Section 173(2) Cr P C. In this regard, Mr Gopal Subramanium, learned Senior Counsel appearing on behalf of the appellant has very aptly placed reliance on the decision of a three-Judge Bench of this Court in R.R. Chari v. State of U.P., wherein, while examining the scope of Section 197 Cr P C, this Court made an observation indicating that the term "cognizance" indicates the stage of initiation of proceedings against a Public Servant. The Court placed reliance upon the judgment of the Calcutta High Court delivered in Supt. and Remembrancer of Legal Affairs v. Abani Kumar Banerjee, wherein it was held that before taking cognizance of any offence, a Magistrate must not only be said to have applied his mind to the contents of the petition: (Supt. and Remembrancer case, SCC OnLine Cal para 8)
8. ... but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. xxx xxx
35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous Sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final Report against the appellants, to decide whether previous Sanction is required to be obtained by the respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the appellants in the final Report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous Sanction from the Central CBI Case No.189/2019 Page 281 of 591 CBI vs. B.M. Sethi & Ors.
Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(b) Paras 41, 42, 60 and 61 of A. Srinivasa Reddy:-
41. Section 197 Cr PC provides that when any person who is or was a Public Servant, not removable from his office save by or with the Sanction of the Central Government of State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous Sanction of the appropriate Government.
42. Sub-section (1) of Section 197 CrPC shows that Sanction for prosecution is required where any person who is or was a judge or Magistrate or a Public Servant not removable from his office save by or with the Sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Article 311 of the Constitution lays down that no person, who is a Member of a civil service of the Union or State or holds a civil post under the Union or State, shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-
section (1) of Section 197 Cr P C is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every Public Servant.
xxx xxx
60. Thus, although in the present case, the appellant has been discharged from the offences punishable under the PC Act, 1988 yet for IPC offences, he can be proceeded further in accordance with law.
61. From the aforesaid, it can be said that there can be no thumb rule that in a prosecution before the Court of Special Judge, the previous Sanction under Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the Public Servant is expected to be put on trial include the offences other than those punishable under the PC Act, CBI Case No.189/2019 Page 282 of 591 CBI vs. B.M. Sethi & Ors.
1988 that is to say under the general law (i.e. IPC), the Court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of Sanction under Section 197 Cr P C. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 Cr P C, on the other hand. In the prosecution for the offences exclusively under the PC Act, 1988, Sanction is mandatory qua the Public Servant. In cases under the general penal law against the Public Servant, the necessity (or otherwise) of Sanction under Section 197 CrPC depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official duty of the Public Servant. To commit an offence punishable under law can never be a part of the official duty of a Public Servant. It is too simplistic an approach to adopt and to reject the necessity of Sanction under Section 197 CrPC on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the Public Servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197 CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts."
According to the ratio laid down in A. Srinivasa Reddy (supra), the individual against whom the allegations are made, ought to be a 'Public Servant' whose appointing authority is the Central Government or the State Government to entitle him to the protection under section 197 Cr.PC and not to every Public Servant.
175.19. Hon'ble Apex Court did not set aside the said judgment of Hon'ble High Court of Delhi in SLP (CRL) NO.16946/2024.
175.20. In another judgment of Krishna Kumar (supra), Hon'ble High Court of Delhi, again had the occasion to interpret said CBI Case No.189/2019 Page 283 of 591 CBI vs. B.M. Sethi & Ors.
provision, in following manner :-
12. In Rakesh Bhatnagar (supra), a Co-ordinate bench of this Court observed that, according to the ratio laid down in A. Srinivasa Reddy v. Rakesh Sharma, 2023 SCC OnLine SC 952, the individual against whom the allegations are made must be a 'Public Servant' whose appointing authority is either the Central Government or the State Government to be entitled to the protection under Section 197 Cr. PC, and this protection does not extend to every Public Servant. In the present case, it is undisputed that the petitioner is a DANICS officer and his appointing authority is the Central/State Government. There is equally no doubt in the mind of this Court that the allegations against the petitioner pertain to offenses committed in the discharge of his official duties, and as such, the rigors of Prof. N.K. Ganguly v. CBI New Delhi, 2015 SCC OnLine SC 1205 shall apply in full. Therefore, it would be imperative for the prosecution to have obtained Sanction under Section 197 Cr. PC before proceeding. In the absence of the appropriate Sanction, the prosecution of the petitioner for the aforesaid offenses would be untenable.
13. In Subramanian Swamy v. Manmohan Singh & Anr., 2012 (1) SCC 1041, the Supreme Court held that if a Public Servant is accused of an offense related to any recommendation made or decision taken while discharging official duties, then Sanction under Section 197 of the Cr.PC is required. Similarly, in Rakesh Kumar Mishra vs. State of Bihar and Ors., AIR 2006 Supreme Court 820, the Apex Court held that if the act is intrinsically linked to official duties, Sanction is required. However, if the act has no connection with the duties of the Public Servant, then the protection under Section 197 Cr.PC does not apply.
14. Besides this, all the facts of the present petition are identical to those in the case decided by this Court in Rakesh Bhatnagar (supra). Admittedly, the CBI has not obtained Sanction under Section 197 Cr.P.C.I consider that nothing would further detain this Court in deciding this petition as on the similar proposition the petitioner has been discharged in Rakesh Bhatnagar (supra).
175.21. Hon'ble Apex Court also had the occasion to appreciate the said provision in the case of N.K. Ganguly (supra), wherein CBI Case No.189/2019 Page 284 of 591 CBI vs. B.M. Sethi & Ors.
reference was made to previous case laws on the subject in question in following manner:-
It was held by this Court that the correct position of law was laid down in the case of Hori Ram Singh, which is as under:-
"I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests."
Bose, J., further held in Shreekantiah case referred to supra that there are cases and cases and each must be decided on its own facts. It was held as under:
"Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it." (emphasis laid by this Court) While considering the facts of the case, Bose J. observed that the offence in question, could not have been committed any other way, and held as under:
"...If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately; there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the order, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
The decision in the case of Hori Ram Singh (supra) was also quoted with approval, especially the categorisation of situations in three scenarios, as under:
CBI Case No.189/2019 Page 285 of 591CBI vs. B.M. Sethi & Ors.
"a) Decision which held that Sanction was necessary when the act complained of attached to the official character of the person doing it;
b) Judgments which held that Sanction was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime; and
c) Those which held it was necessary when the offence was committed while the accused was actually engaged in the performance of official duties."
It was further held in the Amrik Singh case that:
"The result of the authorities may thus be summed up: it is not every offence committed by a Public Servant that requires Sanction for prosecution under Section 197 of the Cr.PC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then Sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be invested at the trial and could not arise at the stage of grant of Sanction, which must precede the institution of the prosecution." (emphasis laid by this Court) The position of law, as laid down in the case of Hori Ram Singh was also approved by the Privy Council in the case of H.H.B. Gill v. The King[6], wherein it was observed as under:
"A Public Servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty."
Reliance was further rightly placed by the learned senior counsel on the decision of a constitution bench of this Court in the case of Matajog Dobey v. H.C. Bhari[7], which pertained to an income tax investigation. It was alleged by the appellant therein that while conducting a search, the officials of the income tax department had forcibly broke open the entrance door of the house and interfered with the boxes and drawers of the tables. It was also alleged by the CBI Case No.189/2019 Page 286 of 591 CBI vs. B.M. Sethi & Ors.
appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial, the issue pertaining to want of Sanction was urged. This Court held as under:
"Article 14 does not render Section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard." (emphasis laid by this Court) On the other hand, ordinary citizens not so engaged do not require this safeguard. It was further observed that:-
"....Whether Sanction is to be accorded or not, is a matter for the Government to consider. The absolute power to accord or withhold Sanction on the Government is irrelevant and foreign to the duty cast on that Court which is the ascertainment of the true nature of the act." The Court finally summed up the result of the discussion as follows:- "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty....."
(emphasis laid by this Court) In the case of Satwant Singh v. State of Punjab[8], a constitution bench of this Court while examining the scope of Section 197 of CrPC, observed as follows:
"It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under s.161 of IPC, is one of them and the offence of cheating or abetment thereof is another... where a Public Servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a Public Servant, the official status furnishing only the occasion or opportunity for the commission of the offences...... ...the Act of cheating CBI Case No.189/2019 Page 287 of 591 CBI vs. B.M. Sethi & Ors.
or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the Public Servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." In the case of R.R. Chari referred to supra, while examining the scope of Section 197 of CrPC, this Court held as follows:
"It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the Sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a Sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants form frivolous prosecution....." (emphasis laid by this Court) The learned senior counsel further placed reliance on a three judge bench decision of this Court in the case of Baijnath Gupta v. State of Madhya Pradesh[9], wherein the question that arose before this Court was whether the conviction of the appellant under Sections 409 and 477A of the IPC was illegal for want of Sanction. This Court observed as follows:
"It is not that every offence committed by a Public Servant that requires Sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then Sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the CBI Case No.189/2019 Page 288 of 591 CBI vs. B.M. Sethi & Ors.
official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable." (emphasis laid by this Court) In the case of B. Saha v. M.S Kochar[10], the constitution bench of this Court observed that the question of Sanction under Section 197 of CrPC could be raised and considered at any stage of the proceedings. On the issue of when the protection of Section 197 of CrPC is attracted, this Court held as under:
"In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the Public Servant either in his official capacity or under colour of the office held by him."
175.22. Recently, in G.C. Manjunath & Ors. vs. Seetaram, Crl. App.No.1759 of 2025, arising out of Crl. SLP No.6053 of 2021, Hon'ble Apex Court appreciated the said expression in para 32, 33, 35 & 36.
32. This Court in B. Saha vs. M.S. Kochar, (1979) 4 SCC 177 ("B. Saha") observed 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 in Section 197 of the CrPC, are capable of a narrow as well as a wide interpretation. This Court observed that if these words are 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". In the wider sense, these words 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 purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a Public Servant while engaged in the performance of his official duty, that is entitled to the protection of Section 197 of the CrPC, an act constituting an offence, directly and reasonably connected with his official duty will require Sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in CBI Case No.189/2019 Page 289 of 591 CBI vs. B.M. Sethi & Ors.
Baijnath vs. State of Madhya Pradesh, (AIR 1966 SC 220), "it is the quality of the act that is important and if it falls within the scope and range of his official duties, the protection contemplated under Section 197 CrPC will be attracted".
33. This Court in Amod Kumar Kanth vs. Association of Victim of Uphaar Tragedy, (2023) 16 SCC 239 held that the State performs its obligations through its officers/public servants and every function performed by a Public Servant is ultimately aimed at achieving public welfare. Often, their roles involve a degree of discretion. But the exercise of such discretion cannot be separated from the circumstances and timing in which it is exercised or, in cases of omission, when the omission occurs. In such circumstances, the courts must address, whether the officer was acting in the discharge of official duties. It was observed that even when an officer acts under the purported exercise of official powers, they are entitled to protection under Section 197 of the CrPC. This protection exists for a valid reason so that the public servants can perform their duties fearlessly, without constant apprehension of legal action, as long as they act in good faith. While Section 197 of the CrPC does not explicitly mention the requirement of good faith, such a condition is implied and is expressly included in several other statutes that offer protection to public servants from civil and criminal liability. Recently, this Court in Gurmeet Kaur vs. Devender Gupta, 2024 SCC OnLine SC 3761 dealt with the object and purpose of Section 197 of the CrPC which reads as follows:
"22. ... the object and purpose of the said provision is to protect officers and officials of the State from unjustified criminal prosecution while they discharge their duties within the scope and ambit of their powers entrusted to them. A reading of Section 197 of the CrPC would indicate that there is a bar for a Court to take cognisance of such offences which are mentioned in the said provision except with the previous Sanction of the appropriate government when the allegations are made against, inter alia, a Public Servant. There is no doubt that in the instant case the appellant herein was a Public Servant but the question is, whether, while discharging her duty as a Public Servant on the relevant date, there was any excess in the discharge of the said duty which did not require the first respondent herein to take a prior Sanction for prosecuting the appellant herein. In this regard, the salient words which are relevant under subsection (1) of Section 197 are "is accused of any offence alleged to have been committed CBI Case No.189/2019 Page 290 of 591 CBI vs. B.M. Sethi & Ors.
by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous Sanction". Therefore, for the purpose of application of Section 197, a sine qua non is that the Public Servant is accused of any offence which had been committed by him in "discharge of his official duty". The said expression would clearly indicate that Section 197 of the CrPC would not apply to a case if a Public Servant is accused of any offence which is de hors or not connected to the discharge of his or her official duty."
36. In light of the aforesaid judgments, the guiding principle governing the necessity of prior Sanction stands well crystallised. The pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the Public Servant, the requirement of Sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the Public Servant, the protective umbrella of Section 197 of the CrPC and Section 170 of the Police Act is attracted. In such cases, prior Sanction assumes the character of a sine qua non, regardless of whether the Public Servant exceeded the scope of authority or acted improperly while discharging his duty.
175.23. After considering above-mentioned case laws, it is clear that expression "offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", is interpreted by Hon'ble High Court of Delhi and Hon'ble Apex Court, in the facts, pertaining to said respective cases. As such, there is no clear mandate in said case laws, to the effect that if a Public Servant is to be prosecuted for committing an offence under IPC, Sanction under Section 197 CrPC is always required. There are cases in which such Sanction is not required and there are cases in which it is required. The aspect which has to be appreciated in each case in which Public Servant is prosecuted for CBI Case No.189/2019 Page 291 of 591 CBI vs. B.M. Sethi & Ors.
committing offence under IPC is, whether the alleged act/s, which was/ were part of his official duties, or not? If the said alleged act/ acts was/ were part of his official duties, then Sanction is required and if not, then Sanction under Section 197 CrPC is not required.
175.24. In this case, Accused Karamvir Singh (A-2) did not perform his duties at all. The acts, he did, were not part of his duties. He simply acted, at the beck and call of Accused Maha Nand Sharma (A-4). He did not apply his own mind objectively on the records of Society in Question. His acts reflected that he was part of criminal conspiracy with co-accused persons for getting Society revived through use of illegal and forged documents. The action of Accused Karamvir Singh (A-2) in preparing false record of Special GBM dated 27.01.1999, reflected that he had prepared said record intentionally. Preparation of said record, only benefited co-accused persons for revival of Society in Question. Since, land was allotted to Society, based on said forged document, so, offices of RCS and DDA were cheated through use of said document. The noting in the records of office of RCS Ex.PW45/2, nowhere reflected application of mind, on his part. So, he committed the offences for which he was charged. As such, for committing said offences, which were not part of his duty, reference to Section 197 CrPC was misplaced. The documents, he prepared, in this case, on cursory look, appeared to be proper execution of his duty but when they are thoroughly checked and appreciated, in the light of other evidence and circumstances of this case, they are found by me constituting offences. So, argument with regard to want of Sanction CBI Case No.189/2019 Page 292 of 591 CBI vs. B.M. Sethi & Ors.
under Section 197 CrPC, raised by Accused Karamvir Singh (A-2), has no merit.
175.25. Apart from above-mentioned appreciation, I find that issue of want of Sanction under Section 197 CrPC can be seen with other perspective also. In other words, I mean, whether Accused Karamvir Singh (A-2) has raised the said objection, at the stage of final arguments, just for the sake of it or he was serious about it? The question can be answered by appreciating the conduct of Accused Karamvir Singh (A-2). Record reveals that he had raised similar issue at the time of framing of Charge. It was dealt by the Court in the order dated 12.09.2018. In the said order, Ld. Predecessor of this Court categorically noted in para 43 that Ld. Counsel for said accused had argued that since, said accused was performing his duties as a Public Servant, it was necessary for CBI to obtain separate Sanction for his prosecution under Section 197 CrPC. In subsequent paragraphs no.44 to 47, Ld. Predecessor of this Court referred to the relevant case laws and finally, in para 48 & 49, highlighted the wrongful acts of said accused which are part of charge-sheet. Finally, it was concluded that acts of said accused by no stretch of imagination can be said to be the acts, done by him in the official discharge of his duties or purported to be acts in the discharge of his official duties and hence, he is precluded from claiming protection under Section 197 CrPC.
175.26. Order on Charge dated 12.09.2018 and formal framing of Charge vide order dated 26.09.2018 were challenged by CBI Case No.189/2019 Page 293 of 591 CBI vs. B.M. Sethi & Ors.
Accused Karamvir Singh (A-2) before Hon'ble High Court of Delhi vide Crl.Rev.P 26/2019 but he withdrew it. So, said orders remained unchallenged. They have attained finality.
175.27. The net result is that Accused Karamvir Singh (A-2) had already raised the issue of prosecution being bad on account of lack of Sanction under Section 197 CrPC before this Court which was appreciated and dismissed vide order dated 12.09.2018. That order was not challenged by him. So, I find that Accused Karamvir Singh (A-2) has raised the said issue, just for the sake of it.
175.28. Accused Karamvir Singh (A-2) relied upon certain case laws, in support of his arguments. Question arises, as to whether facts of said case laws, were similar to present case? Here, I must mention the observations of Hon'ble Apex Court in Parkash Singh Badal (supra), wherein, it was observed, "A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context". So, in the wake of said observations, it is clear that facts of each case are material and they have to be appreciated, before applying any Judge-Made Law.
175.29. Based on aforesaid understanding of law, I am appreciating the case laws, furnished by Accused Karamvir Singh (A-2).
175.30. In N.K. Ganguly (supra), there were no allegations of offences, punishable under Section 420/468/471 IPC against the CBI Case No.189/2019 Page 294 of 591 CBI vs. B.M. Sethi & Ors.
concerned accused. Besides that, Hon'ble Apex Court noted in para 35 of the judgment that, "In the instant case, since, the allegations made against the appellants in the final Report, filed by the respondent that the alleged offences were committed by them, in discharge of their official duty, therefore, it was essential for the Ld. Special Judge to correctly decide, as to whether the previous Sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order, issuing summons to appellants for their presence". In the case in hand, as such, CBI has not stated in the charge-sheet that offences, committed by Accused Karamvir Singh (A-2) were committed by him, in discharge of his official duties. So, said case law is distinguishable on facts.
175.31. In Rakesh Bhatnagar (supra), Hon'ble High Court of Delhi had highlighted two issues in para 38 of the judgment, in following manner :-
(i) that no case is made out even if the entire allegations as contained in the chargesheet against the petitioner on facts are taken at their face value; and
(ii) even otherwise the petitioner is entitled to be discharged on the ground that no Sanction under section 197 Cr.PC has been obtained by the respondent in accordance with law.
175.32. While deciding issue no.1, Hon'ble High Court of Delhi, appreciated the facts of that case from para 44 onwards and finally, concluded in para 49 that :-
"49. The question of petitioner being part of larger conspiracy along with all the other co-accused persons including other government servants does not appear to be CBI Case No.189/2019 Page 295 of 591 CBI vs. B.M. Sethi & Ors.
made out on the basis of the aforesaid allegations. It is trite that, suspicion, unless found to be grave, shall not entail framing of charges".
175.33. Once, Hon'ble High Court of Delhi concluded that charge-sheet, filed by CBI in the said case, did not make out any offence, taken on face value, then, in such circumstances, Hon'ble High Court of Delhi proceeded further and observed in para 54 :-
In the present case, undoubtedly, the petitioner is a DANICS officer and his appointing authority is the Central/State Government. There is equally no doubt in the mind of this Court that the allegations against the petitioner are of offences in the discharge of his official duties and as such the rigors of N.K. Ganguly (supra) shall apply on all fours and it would be imperative for the prosecution to have obtained the Sanction under section 197 Cr.PC As such, it is apparent that the prosecution of the petitioner for the aforesaid offences in the absence of the appropriate Sanction under section 197 Cr.PC would be untenable.
175.34. Same is not the situation in the present case, as I have concluded that accused had committed offences, punishable under Section 420/468/471/120-B IPC. The commission of said offences by accused, as such, was not part of his official duties. So, Sanction in this case under Section 197 CrPC was not required. above-
mentioned case law was found by me to be distinguishable from the facts of case in hand, accordingly.
175.35. The case law of Krishna Kumar (supra), was passed by Hon'ble High Court of Delhi when aggrieved concerned accused challenged the Order on Charge before Hon'ble High Court of Delhi. Same is not the situation here. As such, I have concluded CBI Case No.189/2019 Page 296 of 591 CBI vs. B.M. Sethi & Ors.
that evidence, produced by prosecution is proved beyond reasonable doubt. There is no scope of any doubt with regard to the illegal acts, done by accused in conspiracy with co-accused persons. So, said case law also does not help his cause.
175.36. So, case laws, referred by Accused Karamvir Singh (A-2), did not help his cause.
175.37. Therefore, argument, based on want of Sanction under Section 197 CrPC, raised by Accused Karamvir Singh (A-2) stands dismissed.
(ii). Material witnesses dropped : Adverse inference to be taken 175.38. Accused Karamvir Singh (A-2) claimed that prosecution in this case did not examine Misri Lal Bhardwaj and Puneet Sharma, intentionally. They were material witnesses and in the light of their non-examination by prosecution, adverse inference has to be drawn against prosecution. He relied upon the case law of Takhaji Hiraji vs. Thakore Kubersing Chamansing & Ors. Manu/SC/0345/2001 = 2002(2) ACR 1659 SC, in support of said submissions.
175.39. The above submissions are not tenable. Reasons being, that, firstly, Accused Karamvir Singh (A-2) has not explained in what manner, non-examination of said witnesses, dropped by prosecution prejudiced him. In other words, he did not explain, as CBI Case No.189/2019 Page 297 of 591 CBI vs. B.M. Sethi & Ors.
to what facts those dropped witnesses would have deposed, which would have helped his cause. Secondly, if prosecution had dropped those witnesses, nothing stopped him from examining those witnesses in his defence. He could have done so but for reasons, best known to him, he did not do so. Thirdly, this case is not based on direct evidence. It is based on circumstantial evidence. The circumstances brought on record are to be appreciated. Same is done by me in this judgment. Based on said appreciation, I do not find that examination of the said dropped witnesses, would have helped the cause of Accused Karamvir Singh (A-2).
175.40. Lastly, I find that Accused Karamvir Singh (A-2) referred to the observations in para 19 of the said cited judgment which were :-
It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material.
175.41. The above observations of Hon'ble Apex Court, were appreciated by Accused Karamvir Singh (A-2), out of context. As CBI Case No.189/2019 Page 298 of 591 CBI vs. B.M. Sethi & Ors.
such, he failed to explain as to how said two dropped witnesses by prosecution, would have unfolded the genesis of the crime, involved in this case. There was nothing on record, which could have indicated that said two dropped witnesses, would have testified facts, which were essential part of prosecution case and which could have highlighted infirmity in the case of prosecution. There was nothing on record, which could have indicated that had said two dropped witnesses were examined by prosecution, their testimonies would have resulted in causing reasonable doubt in the case of prosecution. There was nothing on record, which could have indicated that had said two dropped witnesses were examined by prosecution, then other evidence, led by prosecution, would have become doubtful. Coupled with the same, I found that facts of said case were not similar to the facts of present case. That case was a case in which, accused persons were charged with offences, punishable under Section Sections 147, 148, 302/34/149, 307/34/149, 302/307/109, 325, 325/34, 324 and 324/34 of the Indian Penal Code. Same is not the situation here.
175.42. Based on said appreciation, I find that argument with regard to dropping of witnesses by prosecution, to be considered as adverse against prosecution, has no merit. Same stands dismissed.
(iii). Meeting dated 27.01.1999 not proved 175.43. Accused Karamvir Singh (A-2), in his written submissions, stated that meeting dated 27.01.1999 was not proved as per law. That argument is not tenable as record revealed that CBI Case No.189/2019 Page 299 of 591 CBI vs. B.M. Sethi & Ors.
Accused Karamvir Singh (A-2) had admitted the same on 03.01.2019, as noted in the order-sheet. Once, he had admitted the contents of said document, he cannot take U-turn and challenge the proof of the same. In the wake of his admission of said document, prosecution was discharged from proving the same. Moreso, where Accused Karamvir Singh (A-2) admitted his signatures at point Y7 in said document.
(iv). No violation of DCS Act, DCS Rules, 1973 & Circulars/ Notifications thereunder 175.44. Further, in the written submissions, Accused Karamvir Singh (A-2), claimed that no violation of DCS Act, DCS Rules, 1973 and circulars was done by him. Said argument is declined for the reasons, mentioned in preceding paras. Said reasoning is not repeated here for the sake of brevity.
(v). No knowledge of forgery, if any 175.45. He further noted in his written submissions that he had no knowledge of forgery of any document. As per him, he was not supposed to know the identity of Members of Society in Question who had attended Special GBM on 27.01.1999. That argument is dismissed for the reason that he was not an ordinary person, bereft of any official duty. He was admittedly a Liquidator, who was so appointed by the office of RCS, under DCS Act. In that official capacity, he was supposed to perform his duties, keeping in mind the mandate of Section 66 of DCS Act. In that official capacity, it was expected of him, that he should have verified the identities of CBI Case No.189/2019 Page 300 of 591 CBI vs. B.M. Sethi & Ors.
the Members, who were signing Special GBM record Ex.A-3/2. During course of arguments, Ld. Counsel for Accused Karamvir Singh (A-2) submitted that Members used to come and sign Ex.A-3/2 and that was the practice which accused also followed in Special GBM. That argument only indicated the callous approach of said accused. If that version is to be believed, then it would mean that any person going on road, not connected with Society in Question, had the opportunity to sign the official document of Special GBM, Ex.A-3/2. That possibility in this case, became reality when names and signatures of persons / Members who had not attended the said meeting, were mentioned in the said record, falsely. I failed to understand, as to why, Accused Karamvir Singh (A-2) simply believed the version and documents, which were given to him by Accused Maha Nand Sharma (A-4), as gospel truth. I failed to understand as to why Accused Karamvir Singh (A-2) did not act like a Public Servant, placed in his situation, who was given official duty to be a Liquidator for dealing with the affairs of Society in Question. The only impression, which surfaced from the record, was that Accused Karamvir Singh (A-2) did not perform his duties diligently. The fact that Accused Maha Nand Sharma (A-4) who was a Member of Society in Question, was in constant touch with him before and after Special GBM dated 27.01.1999 indicated that there was every possibility of him working with Accused Maha Nand Sharma (A-4) in cahoot. That is the only inference, which can be drawn with regard to the conduct of Accused Karamvir Singh (A-2).
CBI Case No.189/2019 Page 301 of 591175.46. It was further claimed by him in his written submissions that he had no knowledge of forgery. I am surprised with the said submissions as I have already concluded above that Minutes of Meeting Ex.A-3/2, was a false document.
(vi). No knowledge of any nexus of Accused Karamvir Singh (A-2) with Accused Maha Nand Sharma (A-4) and other co-accused persons 175.47. Accused Karamvir Singh (A-2) also claimed in the written submissions that there is no evidence which can show that he had nexus with Accused Maha Nand Sharma (A-4) and other co-accused persons. Said argument is not tenable, as above- mentioned appreciation of his conduct reflected that he was acquainted with Accused Maha Nand Sharma (A-4). It also reflected that he acted at the behest of Accused Maha Nand Sharma (A-4) and not independently. Had he been independent, he would have checked the identities of Members who had attended the Special GBM dated 27.01.1999 by himself. He could have asked those Members to show him their respective identities and membership proofs. He failed on all accounts and just became spectator of the proceedings. He was not supposed to be a mere spectator of the proceedings. He was a Liquidator who had to perform his duties, independently and objectively. Since, he did not do said duties diligently, it only gave rise to the inference that he was in conspiracy with Accused Maha Nand Sharma (A-4).
CBI Case No.189/2019 Page 302 of 591175.48. The written submissions of accused reflected that he expected that prosecution should have brought on record direct evidence with regard to criminal conspiracy. He failed to appreciate above-mentioned law, pertaining to criminal conspiracy, which is not repeated here for the sake of brevity.
175.49. The conduct of Accused Karamvir Singh (A-2) clearly reflected that he had an agreement with Accused Maha Nand Sharma (A-4), to somehow get Society in Question, revived. His role was to make the procedural requirements for revival of Society, complete. To that extent, he performed his part. His role was part of bigger conspiracy, which in turn, aimed to get allotment of land from government after revival of Society. That role was clearly proved by prosecution evidence.
175.50. Further, I find that as per Section 84 DCS Act, mandates that every Cooperative Society shall have a registered address, in the manner to which all notices and communications may be sent and shall sent to Registrar, notice of every change thereof, within 30 days of such change.
175.51. Now, Special GBM dated 27.01.1999 was conducted by Accused Karamvir Singh (A-2) at RZ-P6, Raj Nagar, Part II, Sector 8, Dwarka, Palam Colony. Same was mentioned in Ex.A-3/2. The said address was different from the address of Society in Question, mentioned in Bye-Laws of said Society, which was C-21/1, SDA Shopping Complex, Opposite IIT Gate, New Delhi-110016. So, said meeting was conducted at a place, different from registered CBI Case No.189/2019 Page 303 of 591 CBI vs. B.M. Sethi & Ors.
address of Society in Question. Accused Karamvir Singh (A-2) did not place on record any evidence, which could have shown that registered address of Society in Question was changed from SDA Shopping Complex (mentioned above) to Dwarka, Palam Colony (mentioned above). So, it indicated that there was breach of above- mentioned provision of DCS Act, 1972. In the given circumstances of this case, only inference, which can be drawn is that Accused Karamvir Singh (A-2) conducted said meeting at changed address, illegally, in order to somehow complete the documents for getting Society in Question revived, illegally.
(vii). No pecuniary advantage/ no loss caused to any authority 175.52. It was next submitted by Accused Karamvir Singh (A-2) in written submissions that prosecution failed to place on record any evidence which showed that he had obtained or attempted to obtain any pecuniary advantage for himself or for any other person. He referred to testimony of IO viz., PW49, who had deposed that Accused Karamvir Singh (A-2) and his family members had not taken membership of Society in Question and no complaint was received against him from DDA or Government of NCT of Delhi. Further, no evidence was found against said accused for obtaining any pecuniary gain on account of his purported official acts.
175.53. For appreciating said argument, I must refer to Section 13(1)(d) PC Act, 1988. Said provision mandates that 'a Public Servant is said to commit the offence of criminal misconduct, if he CBI Case No.189/2019 Page 304 of 591 CBI vs. B.M. Sethi & Ors.
while holding office as a Public Servant obtains for any person any valuable thing or pecuniary advantage, without any public interest.....'.
175.54. A reading of said provision would reveal that a Public Servant can be prosecuted only if he while holding office as Public Servant, either obtains for any person any valuable thing or pecuniary advantage, without any public interest. The expression, "pecuniary advantage without any public interest" is relevant for present case.
175.55. In this case, land was allotted to Society in Question by DDA. That land can be viewed as "valuable thing". It can also be viewed as "pecuniary advantage". Reason being, that said land was of some value. Since, proceedings and chain of events, which led to allotment of said land, were based on falsification and forgery of records, as noted in this Judgment, under a criminal conspiracy, so, Public Servant like Accused Karamvir Singh (A-2), committed offence under said provision, based on said understanding.
175.56. Accused Maha Nand Sharma (A-4) was instrumental in getting Society in Question revived. His intentions were not bonafide as he possessed records of Society, which was not complete. Now, Accused Karamvir Singh (A-2), took said record from Accused Maha Nand Sharma (A-4), in the capacity of being Liquidator for conducting Special GBM dated 27.01.1999, without verifying the genuineness of said record. Coupled with the same, CBI Case No.189/2019 Page 305 of 591 CBI vs. B.M. Sethi & Ors.
Accused Karamvir Singh (A-2) prepared record, pertaining to Special GBM dated 27.01.1999 which was not true and correct as it mentioned names of persons who were not Members in Society in Question. So, Accused Karamvir Singh (A-2), while holding his office as a Public Servant, helped Accused Maha Nand Sharma (A-4), in preparation of false record with regard to Special GBM dated 27.01.1999, which in turn, was later on used for the purpose of revival of Society in Question. So, Accused Karamvir Singh (A-2) caused pecuniary advantage to Accused Maha Nand Sharma (A-4) and other co-accused persons, as record prepared by Accused Karamvir Singh (A-2), was part of record which was considered by DDA, while allotting land to Society in Question. So, in said manner, Accused Karamvir Singh (A-2) caused pecuniary advantage without any public interest to Accused Maha Nand Sharma (A-4) and other co-accused persons. In such circumstances, argument of Accused Karamvir Singh (A-2) that he did not get any pecuniary advantage or caused any loss to any authority, had no basis. Same stands declined.
175.57. Coupled with the same, I find that Accused Karamvir Singh (A-2) herein had not performed his duties diligently. There is colour of dishonesty in the performance of his duties which he never explained, during trial. Why he did not cross-check the identities of Members who had attended Special GBM on 27.01.1999? Why he did not make sure that he had received complete documents/ records of Society in Question from Accused Maha Nand Sharma (A-4)? Whether he had gone through the said CBI Case No.189/2019 Page 306 of 591 CBI vs. B.M. Sethi & Ors.
record before conducting Special GBM on 27.01.1999? Did he inform the office of RCS in any manner about the fact that he had conducted Special GBM on 27.01.1999 by taking adequate precautions for ruling out joining of false Members? Whether he had made sure that record he had received from Accused Maha Nand Sharma (A-4) was true and correct and if yes, then, how did he make sure the same? Why he did not appreciate the fact that Society in Question which was not functioning for many years, without any reason and which was ordered to wound up by RCS vide order dated 06.11.1990 was prayed by Accused Maha Nand Sharma (A-4) to be revived? Such questions should have been answered by Accused Karamvir Singh (A-2) during trial by putting necessary suggestions to prosecution witnesses and / or by leading defence evidence. Those questions were directly related to the duty of said accused. By not answering the same, he did not perform his duty at all. The notings, he had made in Ex.PW45/2 nowhere mentioned that he had raised any question whatsoever with regard to the working of Society in Question. It was, as if, he believed the said Society to be a Society which had stopped working and which wanted to start again, with no doubtful circumstances. He failed to appreciate the fact that prior to winding-up of Society in Question, various notices were sent by office of RCS to Society which were never answered by said Society. Absence of response by said Society to the notices, given by office of RCS indicated that something was wrong with Society. That was a fact which any reasonable prudent person would have appreciated, placed in the CBI Case No.189/2019 Page 307 of 591 CBI vs. B.M. Sethi & Ors.
seat of Accused Karamvir Singh (A-2). The least, he could have done, was to have explained said aspects when incriminating evidence was put to him under Section 313 CrPC. He failed on all said accounts. It was necessary for him, to have explained said aspects as Proceedings Register Ex.PW45/9 clearly noted various blank spaces at points Q-526, Q-529, Q-532, Q-533, Q-534 & Q-536. Those blank spaces were preceded by the observations, "following were present in the meeting". So, ordinarily those spaces should have mentioned the Members' details who had attended the concerned meetings. Those details were absent. I failed to understand as to what Accused Karamvir Singh (A-2) checked in the records which he had received from Accused Maha Nand Sharma (A-4). Accused Karamvir Singh (A-2) should have been cautious as it was a case where office of RCS had ordered winding-up of Society in Question, as said Society never responded to the communications, issued by office of RCS. That cautious approach would have made Accused Karamvir Singh (A-2) on guard, while considering the record, furnished by Accused Maha Nand Sharma (A-4). Lack of said cautious approach, was not merely an irregularity. It was an intentional act on his part as it was followed by falsity in Special GBM dated 27.01.1999, as mentioned above.
175.58. So, he did not perform his duties legally, rather, did it in a manner, which only attracted guilty mind on his part. By performing his duties in said illegal manner, he only helped the cause of Accused Maha Nand Sharma (A-4), for getting Society in CBI Case No.189/2019 Page 308 of 591 CBI vs. B.M. Sethi & Ors.
Question revived, by hook or by crook. The said manner, in which, he had performed his duties, only resulted in giving Accused Maha Nand Sharma (A-4), valuable thing in the shape of one further step towards attainment of aim of revival of Society in Question, based on false documents. No other inference can be drawn, based on his conduct. If that is so, then, he had used illegal means for Accused Maha Nand Sharma (A-4) so that Accused Maha Nand Sharma (A-4) can succeed in his aim of getting Society revived for the purpose of allotment of land. Absence of any pecuniary advantage by Accused Karamvir Singh (A-2) and lack of any complaint from any quarter of Society against Accused Karamvir Singh (A-2), did not absolve him from this case. Those aspects were not relevant in the given facts of this case. So, it cannot be concluded that ingredients of Section 13(1)(d) of PC Act were not proved by prosecution during trial.
(viii). No Criminal Prosecution against Accused Karamvir Singh (A-2), in the light of Section 95 of DCS Act 175.59. Lastly, it was stated in the written submissions that present case could not have been registered against him as it was barred under Section 95 of DCS Act which says that, "no suit, prosecution or other legal proceedings shall lie against the Registrar or any person, subordinate to him or acting on his authority in respect of anything in good faith, done or purporting to have been done under this Act".
CBI Case No.189/2019 Page 309 of 591175.60. Above argument is also not tenable. Reason being, that I have already concluded in my preceding paragraphs that Accused Karamvir Singh (A-2) had not performed his duties bonafidely and diligently. Reflection of malafide was found in his conduct. If that it so, then, it cannot be said that he had performed his duties in good faith. Infact, he did not perform his duties at all. What to say, of "good faith". The above-mentioned provision of DCS Act was made to save officers and officials of RCS from false cases. Present case is not a false case. Here, witnesses had deposed that they had not signed the record Ex.A-3/2, prepared by Accused Karamvir Singh (A-2). Further, Accused Karamvir Singh (A-2) had not given any plausible explanation of said short-coming in the record Ex.A-3/2. So, above-mentioned provision of DCS Act, did not help the cause of Accused Karamvir Singh (A-2).
175.61. So, defence of Accused Karamvir Singh (A-2) and his written submissions, did not help his cause.
175.62. Based on aforesaid appreciation of evidence and record of this case, I find that following facts and inferences can be drawn, as against Accused Karamvir Singh (A-2) :-
a) He met Accused Maha Nand Sharma (A-4), prior to revival of Society in Question.
b) He collected false documents in the shape of Ex.PW49/2 from Accused Maha Nand Sharma (A-4).CBI Case No.189/2019 Page 310 of 591
c) He prepared note-sheet, as mentioned in Ex.PW45/2 dated 18.02.1999 which was cryptic and not based on his own objective assessment.
d) He prepared record of Special GBM dated 27.01.1999 Ex.A-3/2, which was false.
e) He did not perform his duties diligently and gave no plausible explanation of his said manner of doing duties, during trial.
f) He failed to give any plausible explanation, as to why he was implicated in this case, if he had not done any illegal act.
g) He failed to make any inroads in prosecution version, based on any reasonable doubt.
h) He failed to give any reasonable explanation, contrary to the version of prosecution, which can be believed to be probable.
i) He failed to raise any theory which was possible, apart from the theory of prosecution, highlighting his role in the criminal conspiracy and other offences in question.
j) He did not give any explanation, as to why he had raised the issue of want of Sanction under Section 197 CrPC, at the stage of final arguments, when said issue was already decided by this Court, at the time of framing of Charge.
k) He did not perform his acts, as per the mandate of DCS Act.
l) He failed to explain as to why he did not foresee the repercussions of the manner in which, he had performed his acts.
CBI Case No.189/2019 Page 311 of 591m) All the facts brought on record by prosecution only indicated theory consistent with his guilt.
n) So, said facts only indicated that Accused Karamvir Singh (A-2) acted malafidely for the purpose of cheating office of RCS and DDA, by dishonestly and fraudulently inducing them to pass an order for revival of Society in Question by way of cancellation of winding-up order and by approving the freeze list of 90 fake Members of Society, on the basis of false and forged documents. I also find that Accused Karamvir Singh (A-2) had prepared the false document Ex.A-3/2, which he forwarded to DDA for allotment of land and for arranging finances for payment of price of land. He did so for obtaining pecuniary advantage for Accused Maha Nand Sharma (A-4) and other co-accused persons, without any public interest. Finally, Society in Question was revived on the basis of false and forged documents, prepared by him on 26.04.1999.
175.63. Ld. counsel for Accused Karamvir Singh (A-2) argued that only PW16 had denied his signatures in the Special GBM dated 27.01.1999. He explained that since PW16 was illiterate, so, his memory had washed away and that is why, he had forgotten to identify his signatures on said Special GBM dated 27.01.1999. Said argument, stands discarded as no such suggestion was given to PW16, when, he was cross-examined by Accused Karamvir Singh (A-2). Therefore, said argument was an after-thought and it is discarded by me.
CBI Case No.189/2019 Page 312 of 591175.64. Ld. counsel for Accused Karamvir Singh (A-2) further argued that there were no advisory guidelines to the effect that he had to check identity details of the persons who had signed in Special GBM dated 27.01.1999 and therefore, Accused Karamvir Singh (A-2) did not perform his duty with guilty mind. Said argument has no merits. Reason being, that being a Liquidator, he had to perform his duties of maintaining truthful record of Special GBM dated 27.01.1999. One of the essential aspect of maintaining said record in a true manner was verificiation of the persons who had signed said Special GBM dated 27.01.1999. Any layman having no concern with Society, could not have signed the said meeting record, just like that. Accused Karamvir Singh (A-2) being Liquidator, should have verified as to who all had signed said meeting record dated 27.01.1999, either by verifying himself or by asking any Office Bearer of Society in Question. He failed on both accounts. Said failure was not a simple failure. It had serious repercussions as it led to creation of false record. That false record later on formed part of record, based on which Society in Question was revived. So, above-mentioned argument stands declined.
175.65. Therefore, Accused Karamvir Singh (A-2) committed offences, with which he was charged. He failed to raise plausible and probable defence in his favour. Prosecution was able to prove the same beyond reasonable doubt.
CBI Case No.189/2019 Page 313 of 591Appreciation of Record viz-a-viz Accused Narender Kumar (A-3)
176. Accused Narender Kumar (A-3) was a Public Servant. He was charged with the offences, punishable under Section 120-B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act. He was also charged with offence punishable under Section 13(2) read with Section 13(1)(d)
(iii) of PC Act.
176.1. Accused Narender Kumar (A-3), as per charge-sheet was working as a Clerk in the office of RCS and he was appointed as Election Officer for holding of election of Society in Question. He submitted false Report dated Nil, stating that said election was held on 05.06.1999. That Report was accompanied with copy of Minutes of Special GBM, recorded in the Proceedings Register of the Society. The Minutes of Meeting noted signatures of various Members but some of them refuted that they had signed the said Minutes. So, it was alleged by CBI that he had conducted false meeting. The Report from GEQD/ Shimla also supported the said claim of CBI.
Appreciation of Prosecution Evidence viz-a-viz Accused Narender Kumar (A-3)
177. To start with, Accused Narender Kumar (A-3), was appointed as Election Officer, through noting Ex.A-3 (which he admitted during trial on 03.01.2019). After conducting elections, he sent Report to Assistant Registrar (South), Cooperative Societies, CBI Case No.189/2019 Page 314 of 591 CBI vs. B.M. Sethi & Ors.
New Delhi-110001. That Report was in the shape of letter, Ex.A-5 (which he admitted during trial on 03.01.2019). That letter was undated. Now, question arises, why it was undated? Since, it was written by Accused Narender Kumar (A-3), so he should have answered the same. He did not answer the same during trial. It indicated that he wanted to hide true facts from the Court. It did not help his cause.
177.1. That undated letter Ex.A-5 was accompanied with record of Special GBM dated 05.06.1999, which was marked as Ex.PW31/4, during trial. Accused Narender Kumar (A-3) admitted the said record of Special GBM dated 05.06.1999 on 03.01.2019 during trial, by identifying his signature at point B2. So, said record of Special GBM dated 05.06.1999 was admitted by Accused Narender Kumar (A-3).
177.2. The said record of Special GBM dated 05.06.1999, noted names and signatures of various Members of Society. It included names and signatures of Members namely Shyam Bhardwaj, K. Manoj Kumar Subudhi, Amit Kumar Sharma, Anju Sharma, Vijay Sharma and Sachin Sharma. Those persons were examined by prosecution as prosecution witnesses.
177.3. Shyam Bhardwaj was examined as PW18 by prosecution. He was cross-examined by Ld. Sr. PP for CBI in which, he admitted the fact that he never participated in any election of Society in Question. Accused Narender Kumar (A-3) did not cross-examine him. So, his deposition that he never CBI Case No.189/2019 Page 315 of 591 CBI vs. B.M. Sethi & Ors.
participated in any elections of Society, remained uncontroverted. It means that he did not participate in election of Society, which was conducted by Accused Narender Kumar (A-3) on 05.06.1999. If that is so, then, his name and signature at S.No.17 should not have been there. Surprisingly, his name and signature at S.No.17 were mentioned in said record. Therefore, it made the said record, false.
177.4. Further, prosecution examined K. Manoj Kumar Subudhi as PW8. In his testimony, he had deposed that he had never become Member of Society in Question. Accused Narender Kumar (A-3) did not cross-examine this witness. So, his said testimony remained unchallenged. I, therefore, conclude that he could not have signed in record of Special GBM Ex.PW31/4 against his name at S.No.12. Since, his name and signature are mentioned therein, so, it made Ex.PW31/4, a forged document.
177.5. Further, prosecution examined Anju Sharma as PW31. In her testimony, she deposed that she had never become Member of Society in Question. She denied categorically her signature at point Q-565 at S.No.20 in Ex.PW31/4. Accused Narender Kumar (A-3) did not cross-examine her. So, her said testimony went unchallenged. I, therefore, conclude that her name and signature were forged in Ex.PW31/4. It made the said document a forged document.
177.6. Vijay Sharma who was examined as PW16 by prosecution, had deposed that he was an illiterate person who can write his name in Hindi language. Again, he was not cross-
CBI Case No.189/2019 Page 316 of 591examined by Accused Narender Kumar (A-3). So, this witness could have signed only in Hindi language. Ex.PW31/4, revealed that his name was mentioned at S.No.16 against which his signature in English language was mentioned. As such, he could not have signed in English language. It made the said signature, a forged signature. Besides that, I find that PW16 categorically denied his signatures on Membership Application Form Ex.PW16/1, Affidavit dated 10.02.1999 Ex.PW16/2 and Minutes of Meeting dated 27.01.1999 Ex.PW16/3. In the wake of said denial, I find that he was not a Member of Society in Question. If he was not a Member of said Society then how did signature and name, figured in Ex.PW31/4 at S.No.16? Accused Narender Kumar (A-3) did not answer the same, so, based on said appreciation, that document Ex.PW31/4 was found by me to be a forged document. 177.7. The net result is that record of Special GBM Ex.PW31/4, was a false and forged record, prepared by Accused Narender Kumar (A-3).
177.8. Here, I must mention that as per Report of GEQD/ Shimla Ex.PW43/2, in para 2, it was noted that Accused Ashwini Sharma (A-6) had written the names of Members cumulatively referred as Q-555 and had signed at point Q-565 against the name of Smt. Anju Sharma in Ex.PW31/4. So, said Report only proved the factum of conspiracy between Accused Narender Kumar (A-3) and Accused Ashwini Sharma (A-6).
CBI Case No.189/2019 Page 317 of 591177.9. Further, Report of GEQD/ Shimla Ex.PW43/2 further noted in para 3 that Accused Maha Nand Sharma (A-4) had signed against his name at S.No.2, at point Q-557, in Ex.PW31/4. It indicated that conspiracy between Accused Maha Nand Sharma (A-4) and Accused Narender Kumar (A-3), in preparing said forged document.
Appreciation of Statement of Accused Narender Kumar (A-3) under Section 313 CrPC 177.10. Now, coming to Statement of Accused Narender Kumar (A-3), recorded under Section 313 CrPC, in response to incriminating evidence, put to him, Accused Narender Kumar (A-3) replied in an evasive manner. He answered by denying his knowledge with respect to the incriminating evidence, put to him. He confirmed that he had conducted Special GBM as per settled provisions of law and practice. He did not explain in detail as to what were the settled provisions of law and practice, which he followed while conducting said meeting. So, it was a vague explanation on his part which did not help his cause. He did not explain the reasons of short-comings in his record Ex.PW31/4 with regard to Members who were falsely shown in said meeting, as mentioned above. So, his reply to incriminating evidence was inconsequential and vague. It did not help his cause.
177.11. Accused Narender Kumar (A-3) also replied, by claiming that as per Rule 60 & 61 of DCS Rules, 1973, if some irregularities are found with respect to conducting elections of CBI Case No.189/2019 Page 318 of 591 CBI vs. B.M. Sethi & Ors.
Managing Committee of Society then arbitration case has to be filed. Said reference to the Rules was not correct. Reason being, that said Rules of DCS Rules, 1973 did not create a bar for CBI, for registering present case. In this case, it was not merely the issue of irregularities in election of Managing Committee of Society, which was involved. The issue was illegal revival of Society in Question, based on filing of forged documents by accused persons, in conspiracy with each other. As such, Accused Narender Kumar (A-3) failed to fathom the scope of present case and that is why, he replied in a very circumscribed manner. So, his Statement under Section 313 CrPC is discarded by me being vague and inconsequential in nature.
177.12. Accused Narender Kumar (A-3) did not lead any defence evidence to counter above-mentioned conclusion.
Written Submissions of Accused Narender Kumar (A-3) 177.13. Accused Narender Kumar (A-3) filed written submissions at the time of final arguments, in which, he highlighted certain issues, which I am appreciating in my subsequent paragraphs.
(i). Sanction for Prosecution 177.14. Accused Narender Kumar (A-3) claimed that in present case, proceedings were not maintainable for want of Sanction under Section 197 CrPC. He relied upon the case laws viz., N.K. Ganguly (supra) and Rakesh Bhatnagar (supra).
CBI Case No.189/2019 Page 319 of 591177.15. In order to appreciate above-mentioned argument, it is admitted position that he was a Clerk in the office of RCS when he was appointed as Election Officer in 1999. The record, he prepared dated 05.06.1999 Ex.PW31/4, was found by me to be a forged record. So, at the time of commission of said offence, he was a Public Servant.
177.16. I have concluded in my previous paragraphs that Accused Narender Kumar (A-3) had prepared forged record in the shape of Ex.PW31/4. In the light of said conclusion, it is clear that act of forging record, can never be considered as part of his official duty, on the part of Accused Narender Kumar (A-3). That act of forging record was such that it cannot be seen an act, done by Accused Narender Kumar (A-3), in discharge of his official duty. So, reference to Sanction under Section 197 CrPC, was misplaced, on the part of Accused Narender Kumar (A-3). Coupled with the same, I find that reference to case laws of N.K. Ganguly (supra) and Rakesh Bhatnagar (supra), did not help the cause of Accused Narender Kumar (A-3) as said case laws are distinguishable on facts, in comparison to facts of this case. Reasons of distinction of said case laws from facts of this case are similar to those, which are mentioned by me in my preceding paragraphs while appreciating the testimony of Accused Karamvir Singh (A-2). Same are not repeated here for the sake of brevity.
177.17. Accused Narender Kumar (A-3) further claimed that Sanction under Section 19 of PC Act was obtained by CBI from CBI Case No.189/2019 Page 320 of 591 CBI vs. B.M. Sethi & Ors.
authority which was not competent to remove him from the office, which he had allegedly misused. So said Sanction was defective. He relied upon the case law of R.S. Nayak vs. A.R. Antulay 1984 SCC (Crl.) 172.
177.18. Aforesaid arguments is not tenable for the reason that PW47, who was the Officer, who had accorded Sanction under Section 19 of PC Act Ex.PW47/1, categorically deposed in his testimony that Accused Narender Kumar (A-3) was posted as UDC in the Department of Industries, at the time when CBI had approached him for granting Sanction under Section 19 of PC Act for prosecuting Accused Narender Kumar (A-3). PW47 had granted said Sanction in the capacity of Commissioner of Industries. He categorically deposed in his testimony that he was competent to remove Accused Narender Kumar (A-3) from services and therefore had granted said Sanction. The said testimony only proved that PW47 was Commissioner of Industries at the time of grant of Sanction Ex.PW47/1 where Accused Narender Kumar (A-3) was working as UDC. It also indicated that PW47 was competent to remove Accused Narender Kumar (A-3) from services. Said conclusion, only supported prosecution version and it did not make out a ground of PW47 not being competent authority to pass Sanction Order Ex.PW47/1.
177.19. Further, PW47 was cross-examined by Accused Narender Kumar (A-3). In the said cross-examination, he admitted that he was not working under him when alleged offence was committed by Accused Narender Kumar (A-3).
CBI Case No.189/2019 Page 321 of 591177.20. PW47 was asked that being Commissioner-cum- Secretary in Government of NCT of Delhi, he was not competent to remove Grade-III employees of Government of NCT of Delhi from service. He was not sure about whether it was correct or not. That question and answer did not make any difference. Reason being, that it was a general question and not specific to Accused Narender Kumar (A-3). Coupled with the same, I find that from the testimony of PW47, uncontroverted facts which came on record, besides above-mentioned facts, were viz., that he was an IAS Officer for about 29 years, till his retirement in 2017 and that he had formed Opinion for granting Sanction under Section 19 of PC Act, after going through the Report of IO and documents received by him. Those facts only probabilized the case of prosecution, regarding authority of PW47 to grant Sanction against Accused Narender Kumar (A-3). Further, Accused Narender Kumar (A-3) did not place on record any documentary proof or evidence to the effect that PW47 was not competent to pass Sanction Order Ex.PW47/1. So, said arguments based on defective Sanction under Section 19 of PC Act is discarded by me being meritless.
(ii). Mechanical Sanction Order passed 177.21. Accused Narender Kumar (A-3) argued that PW47 had signed Sanction Order dated 02.01.2008 in a mechanical manner. He explained that one Dhan Singh Sehrawat had attended the meeting dated 05.06.1999 but his name was not mentioned in the records of said proceedings.
CBI Case No.189/2019 Page 322 of 591177.22. As such, Accused Narender Kumar (A-3) did not put the factum regarding Dhan Singh Sehrawat to PW47, as submitted by him, while cross-examining said witness for checking veracity of said fact. He should have asked PW47 as to why name of Dhan Singh Sehrawat was mentioned in Sanction Order Ex.PW47/1, so that, PW47 could have explained the same. He did not do so. As such, said argument, by itself, is not tenable. In the light of said appreciation, argument of Accused Narender Kumar (A-3), based on Dhan Singh Sehrawat, was found by me to be meritless.
177.23. Accused Narender Kumar (A-3) further argued that proceedings dated 05.06.1999 were not put to prosecution witnesses viz., PW7, PW8, PW12, PW16, PW17 & PW18. That argument is not tenable. Reason being, if prosecution failed to put proceedings dated 05.06.1999 to said witnesses, then Accused Narender Kumar (A-3) could have put the said proceedings to said witnesses, for showing that said witnesses had attended the proceedings dated 05.06.1999. He did not do so for reasons best known to him. In my preceding paragraphs, I have already appreciated and concluded the fact regarding forgery in Ex.PW31/4. Same needs no repetition and in the wake of said conclusion, non-putting of Ex.PW31/4 to above-mentioned witnesses, did not make the case of prosecution doubtful.
177.24. So far as PW31 - Anju Sharma is concerned, it was stated by Accused Narender Kumar (A-3) that she had denied her signature on the Minutes of Meeting dated 05.06.1999. He CBI Case No.189/2019 Page 323 of 591 CBI vs. B.M. Sethi & Ors.
explained that there can be possibility of some other Anju Sharma, who was a Member of Society and who had attended the said meeting. Now, that possibility was not put to PW31 when she was cross-examined by Accused Narender Kumar (A-3). Infact, PW31 was not cross-examined by Accused Narender Kumar (A-3) at all. In the light of said non-cross-examination, it is clear that Accused Narender Kumar (A-3) admitted the examination-in-chief of PW31 which only proved the fact that she had not signed in proceedings dated 05.06.1999, making said proceedings false & forged.
(iii). Defective/ Incomplete Investigation 177.25. Accused Narender Kumar (A-3) next submitted that IO, in his testimony, had deposed that he had taken specimen of those Members whom he found relevant. So, as per, Accused Narender Kumar (A-3), there can be possibility of Members who were relevant but who were not found to be relevant by IO for taking specimen. Further, testimony of IO revealed that he had not investigated the venue of proceedings dated 05.06.1999 and did not conduct inquiry from owner of premises, where election was shown.
177.26. Above arguments, have to be appreciated in the light of observations of Hon'ble Apex Court in case titled as Hema vs State Tr.Insp. Of Police AIR 2013 SUPREME COURT 1000 which are reproduced as under :-
It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been CBI Case No.189/2019 Page 324 of 591 CBI vs. B.M. Sethi & Ors.
considered in various decisions. In C. Muniappan and Others vs. State of Tamil Nadu, 2010 (9) SCC 567, the following discussion and conclusion are relevant which are as follows:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
11) In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), this Court held thus:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
12) In Gajoo vs. State of Uttarakhand, 2012 (9) SCC 532, while reiterating the same principle again, this Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal CBI Case No.189/2019 Page 325 of 591 CBI vs. B.M. Sethi & Ors.
Singh v. State of Uttaranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the Court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the Court in such cases. In Sathi Prasad v. State of U.P this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held: (SCC p. 657, para 5) '5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so [pic]would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the Court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that:
'42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and CBI Case No.189/2019 Page 326 of 591 CBI vs. B.M. Sethi & Ors.
sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the Society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the Society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under:
.... "35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the Society and it is the community that acts through the State and prosecuting agencies. Interest of Society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case.CBI Case No.189/2019 Page 327 of 591
CBI vs. B.M. Sethi & Ors.
In State of Karnataka v. K. Yarappa Reddy this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows:
'19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, was found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the [pic]action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit the investigating officer's suspicious role in the case.'
33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that:
'12. ... In case of defective investigation the Court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.'
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the Society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also CBI Case No.189/2019 Page 328 of 591 CBI vs. B.M. Sethi & Ors.
that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the Society as well.
177.27. In the wake of above-mentioned law, it is clear that simply because Accused Narender Kumar (A-3) has claimed that there was defective / incomplete investigation by IO, he should be acquitted in this case. Above-mentioned law mandates that this Court has to appreciate the evidence, brought on record by prosecution and by defence, objectively. This Court is also expected to be cautious, while appreciating the evidence, brought on record by rival parties.
177.28. Keeping in mind above-mentioned law, I am proceeding further.
177.29. The argument of defective/ incomplete investigation in this case, on account of IO not taking specimens of rest of the Members of Society and on account of not investigating the premises where proceedings dated 05.06.1999 took place, is not tenable. Reason being, that evidence, which is collected by IO, is relevant. What IO has not collected, is not relevant. If evidence, collected by IO is trustworthy and reliable and it constitutes ingredients of offences for which an accused is charge-sheeted, CBI Case No.189/2019 Page 329 of 591 CBI vs. B.M. Sethi & Ors.
then that is relevant. In this case, circumstantial evidence against Accused Narender Kumar (A-3), appreciated above, indicate and prove his involvement in crime in question. It is not the situation that Accused Narender Kumar (A-3), was simply arrayed in charge-sheet, without evidence. There are documents which supported prosecution version against Accused Narender Kumar (A-3), as appreciated above. Non-examination of rest of the Members of Society and absence of inquiry with regard to place of proceedings dated 05.06.1999 were not relevant aspects. The documents, placed on record, speak for themselves. Those documents, in the light of testimonies of relevant witnesses, proved the factum of them being forged documents. Accused Narender Kumar (A-3) should have explained the reasons of said forgery, which he did not do during trial. So, arguments, based on defective/ incomplete investigation, primarily was baseless. Even if, said arguments are believed to be true, then also, they did not absolve Accused Narender Kumar (A-3) from this case. Said arguments stand dismissed accordingly.
(iv). Two views 177.30. Accused Narender Kumar (A-3) next submitted that if two views are possible, then, benefit should be given to accused. He explained the same by submitting that various witnesses like Sunil Bhardwaj, Mukesh Bhardwaj, Ahilya Sharma, Om Prakash, Digambeshwari, Madhu Sharma, Ram Swaroop Sharma, K.S.N. Subudhi and Kahho Priya were not examined during trial, who had CBI Case No.189/2019 Page 330 of 591 CBI vs. B.M. Sethi & Ors.
attended the proceedings dated 05.06.1999. Only PW31 had spoken incriminating fact regarding not attending proceedings dated 05.06.1999. Further, prosecution dropped Puneet Sharma and Misri Lal Bhardwaj from list of witnesses and did not examine them, though, they had attended the said proceedings. In the light of said facts, he claimed that there can be two possibilities viz., one favouring and one against him.
177.31. Above-mentioned submission was not tenable. Reason being, that it is the quality of evidence which is relevant and not the quantity. Prosecution by examining witnesses, as already appreciated above, was able to prove the fact that proceedings dated 05.06.1999 were false proceedings and documents, based on same Ex.PW31/4 was a forged document. The said conclusion, as such, proved the case of prosecution against Accused Narender Kumar (A-3). Non-examination of above-mentioned persons, therefore, was an irrelevant aspect, in such circumstances. The only conclusion, which I have drawn above is that Accused Narender Kumar (A-3) had committed the offences with which he was charged by abusing his position in the form of preparing forged document Ex.PW31/4, for benefiting co-accused persons for the purpose of achieving aim of revival of Society in Question in an illegal manner. In the process, he committed offences, for which he was charged. So, there are no two views against said accused. There is only one view and one conclusion, which is that Accused Narender Kumar (A-3) is guilty of offences for which he was charged.
CBI Case No.189/2019 Page 331 of 591(v). No wrongful gain / no wrongful loss caused to anyone as the possession of land was not taken in this case 177.32. Accused Narender Kumar (A-3) submitted that possession of land, as per the case of prosecution, was not taken by the Society from DDA and therefore, there was no wrongful loss to DDA or wrongful gain to any other person.
177.33. Above-mentioned submission, again was not tenable. Reason being, that charge-sheet at page 19, categorically mentioned the fact that Society in Question secured allotment of land measuring 5000 sq. meters at Plot No. 4, Dheerpur, Delhi. Said fact was not controverted by Accused Narender Kumar (A-3) during trial. It means that Society in Question had secured allotment of said land. In the light of evidence, collected by prosecution that allotment of land was secured, on the basis of forged documents. Once, that land was secured by Society in Question, it means that said land went out of the control of DDA and was allotted to Society in Question. So, Society in Question gained said land in an illegal manner as documents prepared by Accused Narender Kumar (A-3), were forged. In such circumstances, it does not lie in the mouth of Accused Narender Kumar (A-3) that there was no wrongful loss to DDA and no wrongful gain to the Society.
177.34. Further, above-mentioned aspect can be viewed from another angle, which was, that evidence brought on record by CBI Case No.189/2019 Page 332 of 591 CBI vs. B.M. Sethi & Ors.
prosecution revealed that various persons were shown as Members of Society in Question in the records of Society, though they were not Members of said Society. It was also brought on record by prosecution that various Members were deleted from the list of Members of Society, on the basis of their forged resignation letters. So, for said Members who were deleted from list of Members of Society there was wrongful loss and those Members who were made Members of Society, based on false and forged documents, gained wrongfully.
177.35. Further, I find that Accused Narender Kumar (A-3) had claimed that it was "admitted case of prosecution that possession of the land was not taken by Society from DDA" . I failed to understand as to what was the basis of said submission of Accused Narender Kumar (A-3). So far as, the charge-sheet is concerned, it did not mention the said fact. PW49 Rajeev Wahi, who was the IO in this case, deposed in his cross-examination, done on 12.09.2019 by Accused Bhisham Kumar Grover (A-10) and Accused Urmila Gupta (A-9) that land had been allotted to the Society in Question by DDA before filing the charge-sheet. Accused Narender Kumar (A-3), while cross-examining PW47, did not cross-examine said witness with regard to allotment of land by DDA to Society in Question. Accused Narender Kumar (A-3) should have categorically asked from PW47 as to whether land was or was not given to Society in Question, for the purpose of getting clarity. He did not do so for reasons best known to him. Be that as it may, I conclude that it is not the admitted case of the prosecution that land CBI Case No.189/2019 Page 333 of 591 CBI vs. B.M. Sethi & Ors.
was not given to Society in Question. The argument, therefore, stands dismissed.
(vi). No evidence of any pecuniary advantage by Accused Narender Kumar (A-3) 177.36. Accused Narender Kumar (A-3) claimed that there was no evidence that he or his family members had received any pecuniary advantage in any form from anybody at any point of time.
177.37. Admittedly, there was no evidence, that Accused Narender Kumar (A-3) or his family members had gained financially, in this case. But that aspect is very narrow way of understanding present matter. In this case, Accused Narender Kumar (A-3) by preparing forged documents aided Society in Question, in getting allotment of land from DDA. That act of preparing forged documents by Accused Narender Kumar (A-3), was proved during trial. In the light of said proof of forgery being done by Accused Narender Kumar (A-3) leading to allotment of land to Society in Question, factum of financial gain by Accused Narender Kumar (A-3) or his family member, became a minuscule aspect. There cannot be a full proof investigation which has no scope of improvement. IO, at the end of the day, is a human being. He is not God. He cannot be expected to investigate a matter in a manner which leaves no scope of short-comings. In this case, scope of investigation was very wide. This case was not a simple case in CBI Case No.189/2019 Page 334 of 591 CBI vs. B.M. Sethi & Ors.
which one or two documents had to be collected. There were plethora of documents, which were collected by IO. The investigation, he has done, is relevant and what he has not done is not relevant. So, if he has not investigated about the aspect of financial gain to Accused Narender Kumar (A-3) or his family members, then that lacuna by itself cannot sit over and above the evidence, which was brought on record. Therefore, absence of proof of pecuniary advantage to Accused Narender Kumar (A-3) or his family members, is not relevant aspect for absolving accused in this case.
(vii). No evidence against accused being party to any criminal conspiracy 177.38. Accused Narender Kumar (A-3) claimed that he was not party to any criminal conspiracy. Said argument, was not tenable. Reason being, that Accused Narender Kumar (A-3) by forging documents, only aided co-accused persons in getting Society in Question revived for the purpose of getting land allotted by DDA. That aim was met out as land was allotted to Society in Question by DDA. Accused Narender Kumar (A-3) was one Member of said criminal conspiracy, who did his part, in support of said criminal conspiracy. I had already appreciated his conduct, evidence brought on record by prosecution, his statement under Section 313 CrPC and the fact, that he did not lead defence evidence, in my preceding paragraphs. Same are not repeated here for the sake of brevity, but they be read as part of appreciation of above-mentioned argument CBI Case No.189/2019 Page 335 of 591 CBI vs. B.M. Sethi & Ors.
of Accused Narender Kumar (A-3). Suffice it is to conclude, that there was evidence against Accused Narender Kumar (A-3), being part of criminal conspiracy with other accused persons. So, argument of Accused Narender Kumar (A-3) regarding absence of evidence based on his involvement in criminal conspiracy, stands dismissed.
177.39. So, Accused Narender Kumar (A-3) committed offence of criminal misconduct, as mentioned in Section 13 (1)(d)(iii) of PC Act, as he prepared false record with regard to Election dated 05.06.1999. Said act was not done by him alone. Based on plausible inferences, as drawn above, I found that he did so in criminal conspiracy with Accused Maha Nand Sharma (A-4) and other co-accused persons for cheating the departments of RCS & DDA. He did not give any reasonable and prudent explanation, as to why, he did not conduct Election dated 05.06.1999 properly and correctly, considering the suspicious background of working of Society in Question and manipulations in the records of said Society. The Report from GEQD/ Shimla also supported said conclusion. The acts of Accused Narender Kumar (A-3) resulted in causing pecuniary advantage to Accused Maha Nand Sharma (A-4) and other co-accused persons as land was allotted to Society in Question by DDA. In the alternative, since, land was allotted by DDA to Society in Question, based on false & forged documents of Society including the record, prepared by Accused Narender Kumar (A-3), so, said Society through Accused Maha Nand CBI Case No.189/2019 Page 336 of 591 CBI vs. B.M. Sethi & Ors.
Sharma (A-4) and other accused persons got valuable thing in the shape of said land.
Appreciation of Record viz-a-viz Accused Maha Nand Sharma (A-4)
178. Accused Maha Nand Sharma (A-4) was charged with offences punishable under Section 120-B read with 420/468/471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 & 471 IPC.
178.1. As per charge-sheet, role of Accused Maha Nand Sharma (A-4) started when records of Society in Question came in his possession from Accused Sudershan Tandon (A-8). The facts which led to impleadment of Accused Maha Nand Sharma (A-4), in present case are mentioned below :-
a) That he was not a primary Member of Society in Question and had no connection with the Society till its liquidation. It was he, who had visited the office of RCS on 18.01.1999 and had handed over records of Society for its revival to Accused Karamvir Singh (A-2). His signatures were found in the file concerning Society, maintained by the office of RCS. His signatures were confirmed by GEQD/ Shimla.
b) The Special GBM dated 27.01.1999, which was conducted by Accused Karamvir Singh (A-2), noted his presence in the concerned meeting record. That record was false as various CBI Case No.189/2019 Page 337 of 591 CBI vs. B.M. Sethi & Ors.
Members in the said meeting were falsely shown, to have attended said meeting, though they did not attend the same. Various relatives of Accused Maha Nand Sharma (A-4) also attended said meeting.
c) That in the said meeting dated 27.01.1999, it was resolved that Accused Maha Nand Sharma (A-4) shall represent, argue and plead on behalf of Members of Society in the office of RCS, with regard to the decision of GBM for withdrawal of liquidation/ cancellation of winding-up order.
d) That said meeting was falsely conducted by Accused Karamvir Singh (A-2) in conspiracy with Accused Maha Nand Sharma (A-4).
e) That he wrote letter dated 10.02.1999 to office of RCS, in the capacity of being President of Society in Question for approval of freeze list of 125 Members which was accompanied with Affidavits of said Members, list of 60 Members who had resigned, list of 109 enrolled Members, Resolutions, Election Record, proof of dispatch of letters to the Members and Affidavit of Secretary. That he was not President of said Society as on 10.02.1999. The said list was certified by Vice President and Secretary namely Amit Kumar Sharma and Misri Lal Bhardwaj, but they denied being Members of said Society. Various Members denied being Members of said Society, though, they were shown as Members in the said Society.
CBI Case No.189/2019 Page 338 of 591f) That in May 1999, he attended the office of RCS in connection with the approval of general list of Members of Society and had submitted an Affidavit. He signed in token of attending the office of RCS on page 18/N which was confirmed by GEQD/ Shimla.
g) After revival of Society in Question, Audit Note was prepared by Accused Urmila Gupta (A-9) [since expired]. That Note was accompanied with balance-sheet, certificate of cash etc., signed by him as President of Society, though, he was elected as President on 05.06.1999.
h) The signatures of Secretary and Treasurer of Society were not genuine signatures. So, said Audit Report was a false Report which was prepared by Accused Urmila Gupta (A-9), in conspiracy with him.
i) That he had submitted photocopies of Minutes of Meetings dated 08.08.1985, 12.09.1985, 10.10.1985, 07.11.1986, 05.12.1986, 09.01.1988, 13.02.1988, 13.08.1988 and 10.09.1988 in the office of RCS with letter dated 10.02.1999 for approval of freeze list. Said record was not genuine record as various Members like I.J. Kalucha, Ratish Maurya, D.N. Gandhi stated that Accused Sudershan Tandon (A-8) used to obtain their signatures without Minutes being written for showing that said meetings were held.
j) That freeze list of 90 Members, submitted in the office of RCS, which was approved by the said office. That list was CBI Case No.189/2019 Page 339 of 591 CBI vs. B.M. Sethi & Ors.
certified by him as President of Society. It was also signed by Vice President and Secretary of Society which indicated his connivance with Accused B.M. Sethi (A-1) [since expired] and Accused Bhisham Kumar Grover (A-10) [since expired], who were officials in the office of RCS.
k) That he had dispute with Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) and that is why their names did not figure in, in the freeze list, submitted to the office of RCS. From him, records of Society in Question were taken by Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13).
l) That he had attested Resignation Letters of D.N. Gandhi, Misri Lal Bhardwaj, G. Bhardwaj, Shyam Bhardwaj, Papkesh, Sachin Sharma, Puneet, Dayanand Sharma, Dushyant Sharma, Manoj Subudhi, V. Bhardwaj, Vijay, Amit Sharma, Jagbir Singh, Nirmala, Roopender Gahlaut, Ram Niwas, Rakesh Dabas, Binni Vats, Vijay, Anil Sharma, Anand Sharma, Anju, Naresh and Vikram Singh. GEQD/ Shimla confirmed that resignations of various Members were not signed by said Members, rather, they were signed by Accused Ashwini Sharma (A-6). So, he, in said manner, conspired with Accused Ashwini Sharma (A-6).
178.2. Above-mentioned facts were found by the IO during investigation. It has to be appreciated, as to what evidence was CBI Case No.189/2019 Page 340 of 591 CBI vs. B.M. Sethi & Ors.
brought on record by prosecution, in support of said observations of IO.
Appreciation of Prosecution Evidence viz-a-viz Accused Maha Nand Sharma (A-4) 178.3. Now, IO claimed that Accused Maha Nand Sharma (A-4) was not primary Member of Society in Question. In order to appreciate the same, it has to be seen, as to when exactly, said accused became Member of Society in Question.
178.4. The Membership Application Form of Accused Maha Nand Sharma (A-4), which is part of ExPW45/11 at page 1, was an undated document. It did not help his cause. The Membership Register Ex.PW45/8 at S.No.98 again was undated. It again did not help his cause. Infact, in the said Membership Register, signatures of concerned Members at S.No.97 & 99 were absent. It created doubt regarding the veracity of said record. Further, Proceedings Register Ex.PW45/9 at page 38 noted record of Meeting of the Management Body dated 08.08.1985, which was attended by various Members. Report of GEQD/ Shimla Ex.PW43/2 noted at para no.2 that writing at point Q-483 & Q-484, was that of Accused Ashwini Sharma (A-6). Further, PW1 - I.J. Kalucha had deposed in his testimony that he had not attended any meeting of Society, rather, Accused Sudershan Tandon (A-8) used to obtain his signatures afterwards. It means that his signature at point X-5 in meeting dated 08.08.1985 were obtained, after said meeting had CBI Case No.189/2019 Page 341 of 591 CBI vs. B.M. Sethi & Ors.
taken place. It also means that said witness had not attended said meeting. Similarly, PW2 - Daya Nand Gandhi and PW5 - Ratesh Maurya had deposed that they never attended any meeting of Society in Question, though, they admitted their signatures at points Y3 and B19 respectively. Said facts, deposed by the witnesses were never challenged by Accused Maha Nand Sharma (A-4). If that is so, then, I find that said witnesses did not attend the meeting dated 08.08.1985. The net result is, based on said appreciation, I find that meeting dated 08.08.1985 in Ex.PW45/9, was falsely shown there.
178.5. As such, based on above-mentioned record, it was not clear as to when exactly, Accused Maha Nand Sharma (A-4) had become Member of Society in Question. He failed to reveal said fact, during trial. In the wake of allegations of prosecution, coupled with above-mentioned evidence, onus of proving the fact regarding the exact date, when he had become Member of Society in Question, shifted on him. He never discharged the said onus, during trial. It was a material omission on his part. Moreso, where he had claimed himself to be President of Society in Question, as per letter dated 10.02.1999 which was part of Ex.PW45/4.
178.6. The net result is that exact date, when Accused Maha Nand Sharma (A-4) had become Member of Society in Question, was not brought on record. This case was based on documentary evidence. CBI had not prepared those documents. They were prepared by officials/ Members of Society in Question. So, CBI Case No.189/2019 Page 342 of 591 CBI vs. B.M. Sethi & Ors.
explanation with regard to said documents, had to be given by said officials/ Members of Society. Accused Maha Nand Sharma (A-4) had claimed himself to be a Member of Society. So, documents, pertaining to him, showing his membership and showing his involvement in affairs of Society and which noted his signatures, had to be explained by him. It was all the more relevant as those documents were not completely filled and had forged writings / signatures. In the light of said appreciation, I find that Accused Maha Nand Sharma (A-4) failed to place on record clear picture with regard to him being bonafide Member of Society in Question, who had become the Member, on some particular date. It did not help his cause.
178.7. This brings me to the record of Special GBM dated 27.01.1999, which is part of Ex.PW45/9. In the said Register, individual pages of meeting dated 27.01.1999 were marked as Ex.PW16/3 and Ex.PW14/3. On those pages, various Members had signed against their respective names. Now, amongst those Members were, Ashwini Sharma at S.No.34 had not signed against his name. Further, there is no name at S.No.50. Member Kannu Priya had not signed at S.No.19. Coupled with the same, I find that PW8 - K. Manoj Kumar Subudhi and PW16 - Vijay Sharma, categorically denied their signatures in the said Special GBM at S.No.18 & 20 respectively. Said testimonies were never controverted by Accused Maha Nand Sharma (A-4), through cross- examination and no counter evidence was led by him, in that regard. It means that said witnesses had not signed against their CBI Case No.189/2019 Page 343 of 591 CBI vs. B.M. Sethi & Ors.
names in said Special GBM dated 27.01.1999. It made the said document a false document. Accused Maha Nand Sharma (A-4) had infact signed the said Special GBM at point Q-537 at S.No.1 and Q-544 at S.No.1 on Ex.PW16/3. The names of Members written at points Q-543A, Q-543B, Q-543C & Q-552A were in the handwriting of Accused Maha Nand Sharma (A-4), as per the Report of GEQD/ Shimla Ex.PW43/2. So, Accused Maha Nand Sharma (A-4) had not only attended said meeting, rather, had written names of various Members. Further, PWs viz., PW8 - K. Manoj Kumar Subudhi, PW14 - Dushyant Vats, PW16 - Vijay Sharma and PW17 - Papkesh Kumar Bhardwaj, denied their signatures in the said Special GBM dated 27.01.1999. PW12 - Amit Kumar Sharma was not sure, as to whether he had signed at point Q-541 in the said record of meeting. So, said witnesses did not confirm their signatures in the said meeting, making the said meeting record as false. Since, said meeting was attended by co- accused persons namely; Accused Ashwini Sharma (A-6) and Accused Manoj Vats (A-11), so, it indicated conspiracy amongst said accused persons with Accused Maha Nand Sharma (A-4). Further, since, said Special GBM was conducted by Accused Karamvir Singh (A-2), so, it indicated that he was also part of said criminal conspiracy in preparing false and forged document.
178.8. Moving further, it was the case of prosecution that Accused Maha Nand Sharma (A-4) was not President of Society, as on 10.02.1999, when he had written a letter to office of RCS for approval of freeze list of 125 Members, which was accompanied CBI Case No.189/2019 Page 344 of 591 CBI vs. B.M. Sethi & Ors.
with various documents. That letter noted his signature at point Q-382 and Opinion of GEQD Ex.PW43/3 at para 4 noted that said signature was of Accused Maha Nand Sharma (A-4). So, it was proved that said letter was written by Accused Maha Nand Sharma (A-4). Even otherwise, Accused Maha Nand Sharma (A-4) nowhere denied the fact that he had written said letter.
178.9. Now, question arises as to why and how Accused Maha Nand Sharma (A-4) had claimed approval of freeze list of 125 Members? That question was a relevant question. Reason being, that Society had sent list of 90 Members, as per the record Ex.PW45/3, to the office of RCS, on 12.06.1985. So, office of RCS, was lastly informed prior to issuance of letter dated 01.12.1998 that Society in Question had 90 Members. If some of those Members resigned and some were added then that fact had to be informed to the office of RCS, as per DCS Act, 1972 DCS Rules, 1973 and Directives/ Instructions, as mentioned above. Society, as per record never informed the said increase in number of Members. So, letter written by Accused Maha Nand Sharma (A-4) dated 01.12.1998 was based on improper and illegal representation of number of Members of Society in Question.
178.10. In addition to above appreciation of evidence, I find that Accused Maha Nand Sharma (A-4) had submitted freeze list of 125 Members. In the said list, there were names of Members viz., C.M. Madan, Pankaj Madan, Vikas Madan, Pradeep Aggarwal, Deepak Aggarwal, Mool Chand Garg, Sunil Sharma, Sudhir Sharma, Man CBI Case No.189/2019 Page 345 of 591 CBI vs. B.M. Sethi & Ors.
Chand Garg, Sunil Garg, Ved Prakash Aggarwal, Sunil Singhal, Sushil Singhal, Naresh Singhal, Anil Singhal, Anuj Singhal, N.K. Awasthi, N.K. Garg, Kavinder Garg, Vijay Thakur, Narinder Dhir, B.M. Chaddha, Harpal Gumbar, Achin Gumbar and Sachin Gumbar. In the said list, it was mentioned that they filed applications for becoming Members, in the year ranging from 1988 to 1990. Surprisingly, their Membership Application Forms, which were part of Ex.PW45/11, noted the dates, pertaining to the year 1999. There was evidently discrepancy in the said records. In other words, on one hand, Accused Maha Nand Sharma (A-4) had filed list of above-mentioned Members, showing that they had applied for membership in Society in Question, between 1988 to 1990, whereas, Membership Application Forms of said persons in original were of the year 1999. So, Accused Maha Nand Sharma (A-4) had furnished false membership record along with his letter dated 01.12.1998 for the purpose of cheating the office of RCS. In the said effort, he was successful as officials/ officers of RCS, who were arrayed as accused persons, did not object to the said false record and in conspiracy with Accused Maha Nand Sharma (A-4), they proceeded further with the matter, for revival of Society in Question. Infact, prosecution witnesses viz., PW11 - Narender Kumar Awasthi, PW19 - Naresh Kumar, PW20 - Mool Chand, PW21 - Sudhir Sharma, PW22 - Sushil Garg, PW23 - Sunil Kumar Goyal, PW24 - Sushil Kumar, PW25 - Anil Kumar, PW26
- Anuj Goyal, PW29 - Pradeep Aggarwal, PW30 - Kavinder Garg and PW48 - Deepak Aggarwal, had deposed in their respective CBI Case No.189/2019 Page 346 of 591 CBI vs. B.M. Sethi & Ors.
testimonies that they had become Members of Society in Question and identified their respective Membership Application Forms, as mentioned above, which were part of Ex.PW45/11. Those witnesses also admitted their respective signature in their Affidavits, which were part of D-6 (Vol.III). So, their testimonies only indicated that list of Members, as submitted by Accused Maha Nand Sharma (A-4) was false as dates of memberships of above- mentioned witnesses, in the said list were different from the dates of Affidavits of said witnesses. The said discrepancy only indicated that Accused Maha Nand Sharma (A-4) submitted false record with the motive of cheating the office of RCS, for the purpose of getting Society in Question revived, in conspiracy with co-accused persons.
178.11. The Report of GEQD/ Shimla Ex.PW43/2, further opined that Accused Maha Nand Sharma (A-4) had signed in the Noting File Ex.PW45/2 of office of RCS at point 18/N. Said fact indicated that Accused Maha Nand Sharma (A-4) had visited the office of RCS. It also indicated his active involvement in getting the Society in Question revived, illegally.
178.12. Further, Accused Maha Nand Sharma (A-4) had submitted copy of the Proceedings Register Ex.PW45/9 to the office of RCS along with his letter dated 10.02.1999, for the period till 10.09.1988. He did not annex copy of Proceedings Register, pertaining to the proceedings, post 10.09.1988. So, he did not file complete record to the office of RCS. I can see, why he did so.
CBI Case No.189/2019 Page 347 of 591Reason is, that post 10.09.1988, original Proceedings Register Ex.PW45/9 was not complete. In Minutes of Meetings dated 20.04.1989, 25.08.1989 and 11.04.1990, there were various blank spaces with respect to the Members who had attended said meetings. Besides that, one of the meeting prior to Special GBM dated 27.01.1999 was undated and it lacked list of Members who had attended it. So, Accused Maha Nand Sharma (A-4) filed incomplete record with office of RCS with purpose. He wanted to hide true and correct picture from the office of RCS. The motive was simple and that was to somehow get Society in Question revived, in conspiracy with other co-accused persons. The concerned officers of RCS, who were arrayed as accused persons in this case, did not bother to question Accused Maha Nand Sharma (A-4) with regard to the said fact regarding submission of incomplete record. It indicated a clear conspiracy between them and Accused Maha Nand Sharma (A-4).
178.13. Here, I must mention that Accused Maha Nand Sharma (A-4) was not alone in this case. His relatives, were Members in Society in Question. Those relatives were viz., PW7 - Sachin Sharma, PW8 - K. Manoj Subudhi, PW12 - Amit Kumar Sharma, PW16 - Vijay Sharma, PW17 - Papkesh Bhardwaj and PW18 - Shyam Sunder Bhardwaj.
178.14. Now, the fact that those Members were relatives of Accused Maha Nand Sharma (A-4), by itself and in isolation, was CBI Case No.189/2019 Page 348 of 591 CBI vs. B.M. Sethi & Ors.
not a material fact. It became material in the light of facts viz., existence of false and forged records, existence of criminal conspiracy, existence of offence of cheating and other offences under PC Act, as already appreciated above. Further, amongst said witnesses, PW7, PW8, PW12, PW17 & PW18 did not support prosecution completely. They were cross-examined by Ld. Sr. PP for CBI. I have already appreciated their testimonies and same needs no repetition. Suffice it is to conclude, that said witnesses did not support prosecution completely as they wanted to save Accused Maha Nand Sharma (A-4). Except that possibility, no other possibility was seen by me. Infact, said witnesses did not give any explanation regarding the facts which they did not depose in favour of prosecution, for which they were cross-examined by Ld. Sr. PP for CBI. In other words, they could have explained that they forgot facts due to passage of time or likewise reason based on which, they did not remember their statements, recorded before CBI, during investigation. So, I found that those witnesses took U-turn in the Court, without any reason. Their said conduct only indicated that they wanted to save Accused Maha Nand Sharma (A-4).
178.15. This brings me to the Audit Report, prepared by Accused Urmila Gupta (A-9) [since expired]. That Report was admitted by accused persons during trial. It was marked as Ex.PW33/1. A perusal of said Report revealed that it contained names of Members viz., C.M. Madan, Pankaj Madan, Vikas Madan, Pradeep Aggarwal, Deepak Aggarwal, Mool Chand Garg, Sunil Sharma, CBI Case No.189/2019 Page 349 of 591 CBI vs. B.M. Sethi & Ors.
Sudhir Sharma, Man Chand Garg, Sunil Garg, Ved Prakash Aggarwal, Sunil Singhal, Sushil Singhal, Naresh Singhal, Anil Singhal, Anuj Singhal, N.K. Awasthi, N.K. Garg, Kavinder Garg, Vijay Thakur, Narinder Dhir, B.M. Chaddha, Harpal Gumbar, Achin Gumbar and Sachin Gumbar, mentioned under the heading of "Share Capital Summary" for the period "01.04.1990 to 31.03.1991" (at page 260/C. Now, Membership Application Forms of those witnesses were of the year 1999, as already appreciated above. Meaning thereby that said record was false as those Members were shown as Members of Society, prior to them becoming Members of Society. Coupled with the same, Report of GEQD/ Shimla Ex.PW43/2 noted that Accused Maha Nand Sharma (A-4) had signed the said Audit Report Ex.PW33/1, as Office Bearer as President at points Q-103, Q-106, Q-114, Q-117, Q-127, Q-130, Q-139, Q-142, Q-148, Q-150, Q-153, Q-162, Q-165, Q-173, Q-176, Q-185, Q-188, Q-197, Q-200, Q-209, Q-212, Q-221, Q-224, Q-233, Q-236, Q-245 and Q-248. It means that Accused Maha Nand Sharma (A-4) had signed said Audit Report and he, by signing said Report, confirmed the fact that said Report was duly prepared. The facts, mentioned in the said Report regarding the membership details of Members, mentioned therein, in the light of above-mentioned appreciation, were found to be false. Accused Maha Nand Sharma (A-4), as such, did not explain the reason of falsity of said record. Since, he had claimed himself to be President of Society in Question, so, he owed responsibility about correctness of said record. He failed to discharge said CBI Case No.189/2019 Page 350 of 591 CBI vs. B.M. Sethi & Ors.
responsibility. It did not help his cause.
178.16. Besides, above-mentioned signatures, I found that Accused Maha Nand Sharma (A-4) had made signatures on various documents of Society viz., at points Q-374 to Q-379, Q-382 to Q-392 (in RCS file Vol.III), Q-395, Q-532, Q-537, Q-543A, Q-543B, Q-543C, Q-544, Q-544A, Q-547 (Proceedings Register), Q-687B, Q-695 to Q-699, Q-701,Q-703, Q-705, Q-707, Q-711, Q-713, Q-715, Q-717, Q-719, Q-721, Q-723, Q-725, Q-728, Q-730, Q-732, Q-734, Q-736, Q-738, Q-740, Q-742, Q-744, Q-746, Q-748, Q-750, Q-752 and Q-755 (Resignation Letters). So, he actively participated in the affairs of Society and if that is so, then, he should have explained the short-comings in the records, as highlighted above. He did not explain the same for reasons, best known to him. It did not help his cause.
178.17. Record revealed, that PW45 Jagroop Singh had deposed that he had received record consisting of Resignation Letters of different Members of Society in Question, from K. Haridasan, Inspector in office of RCS, through Memo dated 03.04.2006, Ex.PW45/1. He had also deposed that he had received certain documents from Accused Vikas Madan (A-13), vide memo Ex.PW45/5, which contained various Registers and Resignation Letters, which were marked as Ex.PW45/6 to Ex.PW45/15. In Ex.PW45/15, I found that there was a document based on handing over of record of Society in Question, which was signed by Accused Maha Nand Sharma (A-4). That document noted that CBI Case No.189/2019 Page 351 of 591 CBI vs. B.M. Sethi & Ors.
records of Society were handed over to Accused Vikas Madan (A-13). It means that said record was handed over to Accused Vikas Madan (A-13) by Accused Maha Nand Sharma (A-4). That record included record of Resignation Letters of Members of Society Ex.PW45/13. Said record, was never challenged by any of the accused persons by cross-examining PW45. No suggestion was given to the said witness, to the effect that said record was false. So, it means that said record was admitted by accused persons. The said Resignation Letters, on bare perusal, reflected that contents of the same, were same, word by word, except the signatures of the concerned Member, who had allegedly resigned. Those letters were attested by Accused Maha Nand Sharma (A-4) at points Q-755, Q-752, Q-750, Q-748, Q-746, Q-742, Q-744, Q-738, Q-740, Q-736, Q-734, Q-732, Q-730, Q-728, Q-725, Q-723, Q-721, Q-719, Q-717, Q-715, Q-713, Q-711, Q-709, Q-707, Q-705, Q703, Q-701, Q-698, Q-697. Those letters were undated. PW9 Rakesh Dabas, PW10 Ram Niwas, PW13 Anil Sharma, PW15 Jagbir Singh and PW31 Anju Sharma, in their testimonies had deposed that they had not signed the Resignation Letters Ex.PW9/2, Ex.PW10/3, Ex.PW13/1, Ex.PW15/3 and Ex.PW31/3 respectively. It means that said Resignation Letters were forged and false. In such circumstances, I find that there was only one probability, which was that Accused Maha Nand Sharma (A-4) knew that he had attested the letters of PW9, PW10, PW13, PW15 and PW31, knowingly that said witnesses had not signed their letters. Further, it indicated that there was only one possibility, CBI Case No.189/2019 Page 352 of 591 CBI vs. B.M. Sethi & Ors.
which was, that said Resignation Letters were prepared in mechanical manner. It also indicated that those Resignation Letters were prepared, with ulterior motives of giving benefit to some new Members and ultimately, for getting the Society in Question revived. Those Resignation Letters, therefore, were not free from doubts. Accused Maha Nand Sharma (A-4), who had attested those letters, failed to explain above-mentioned possibilities and probabilities. Those Resignation Letters, in the light of above- mentioned appreciations, were incriminating pieces of evidence, which only pointed towards the fact that Accused Maha Nand Sharma (A-4) had prepared them illegally, in conspiracy with other co-accused persons.
Appreciation of Statement of Accused Maha Nand Sharma (A-4) under Section 313 CrPC 178.18. So far as his statement under Section 313 CrPC is concerned, Accused Maha Nand Sharma (A-4) replied by denying the incriminating evidence and by claiming that he did not know about the same. Said replies were evasive in nature and did not help his cause. Besides that, he claimed that IO had done perfunctory investigation and applied no mind, while investigating this case. He also claimed that he was an innocent person. Those claims, remained bald claims only. They were neither specific reasons based nor explanatory. Therefore, his statement under Section 313 CrPC did not help him.
CBI Case No.189/2019 Page 353 of 591178.19. So far as, defence evidence is concerned, Accused Maha Nand Sharma (A-4) did not lead any evidence in his defence. Considering the evidence, brought on record by prosecution, he should have stepped in the witness box for explaining said incriminating evidence as explanation with regard to the same, was within his personal knowledge. He did not do so and it made his probable defence, meritless.
Written submissions of Accused Maha Nand Sharma (A-4) 178.20. Accused Maha Nand Sharma (A-4) filed written submissions at the time of final arguments. He raised various points by way of said submissions and claimed that there was not even an iota of evidence, linking said accused with alleged charges. So, he prayed for his acquittal. I am appreciating his said submissions, in my subsequent paragraphs.
178.21. First argument of Accused Maha Nand Sharma (A-4) was that none of the witnesses had deposed against him. So, oral evidence led by prosecution did not help the cause of prosecution. That argument is dismissed, for the reason that Accused Maha Nand Sharma (A-4) failed to appreciate, that this case was not based on direct evidence. He expected that in this case prosecution witnesses should have deposed directly against him, alleging that he committed the offences for which he was charged. He failed to appreciate that this case was based on circumstantial evidence. In my preceding paragraphs, I have already appreciated the evidence CBI Case No.189/2019 Page 354 of 591 CBI vs. B.M. Sethi & Ors.
brought on record by prosecution, in detail. Same needs no repetition.
178.22. The next argument of Accused Maha Nand Sharma (A-4) was that documents seized by PW45 Jagroop Singh were seized during preliminary inquiry. He referred to Chapter 12 of CrPC and claimed that those documents which were seized during preliminary inquiry, were not seized legally as Chapter 12 of CrPC pertaining to investigation, nowhere recognizes that said documents could be seized, before commencement of investigation, after registration of FIR. That argument is dismissed, for the reason that CBI had seized those documents, pursuant to order dated 02.08.2005 passed by Hon'ble High Court of Delhi in WP(C) No.10066/2004. In the said order, directions were issued for investigation of various Societies including Society in Question. CBI, in compliance of said judgment, had conducted preliminary inquiry in which above-mentioned documents were seized. So, CBI did no illegal act by seizing those documents. Said seizure was done in terms of directions of Hon'ble High Court of Delhi and it was not done by CBI, just like that, on its own. Even otherwise Accused Maha Nand Sharma (A-4) failed to explain as to how he was prejudice by said seizure. Lastly, said seizure of documents at preliminary stage prior to registration of FIR in question, at the most, can be seen as a procedural lacuna. That lacuna by itself did not affect the substantive rights of the parties, in this case. In coming to said conclusion, I have borne in mind the principle that procedural laws are hand-maid of justice and not CBI Case No.189/2019 Page 355 of 591 CBI vs. B.M. Sethi & Ors.
hand-mistress.
178.23. Next, it was argued that there were manipulations in Membership Register. He claimed viz., that Membership Register consisted of 48 pages; that Membership Register shows entry from 4-170 Members only, even though one Membership Register was handed over by the present accused to Accused Vikas Madan (A-13) vide D-54, but two Membership Registers were handed over by Accused Vikas Madan (A-13) to Jagroop Singh (PW45); that these two registers do not reflect the membership from membership number S.No.171 to 192; that membership number from S.No.193 to 307 has not enclosed with the charge-sheet and thus, is not part of judicial record. So, as per him Membership Registers which were collected by PW45 from Accused Vikas Madan (A-13) (D-53 dated 31.08.2006) were not only incomplete rather, were manipulated, tampered and several pages of the same had been removed. So, Membership Registers handed over by Accused Vikas Madan (A-13) did not contain the name of Members from S.No.171 to 192, which means that Membership Register relied by Investigating Officer in this case, was not complete, rather various pages were removed from the said Register. Again, said arguments did not help his cause. Reason being, that while cross-examining PW45, he did not put any question to said witness, seeking his explanation with regard to the same. In other words, he did not bring above-mentioned facts on record while cross-examining PW45. Accused Maha Nand Sharna (A-4) should have put questions regarding said aspects by cross-
CBI Case No.189/2019 Page 356 of 591examining PW45, so that PW45 could have given his response / explanation pertaining to the said aspects. He should have atleast put suggestions based on above-mentioned aspects to PW45. It was not done, for reasons best known to Accused Maha Nand Sharma (A-4). Surprisingly, only one suggestion was given to PW45, to the effect that CBI manual had no provision authorizing an inquiry officer to collect documents and to record statement of witnesses during preliminary inquiry. That suggestion was denied by PW45. So, cross-examination done by Accused Maha Nand Sharma (A-4) with respect to PW45, did not help his cause.
178.24. It was next argued that Membership Register from S.No.2 of Memo (D-53 dated 31.08.2006) from S.No.193 to 307 had not been enclosed with the charge-sheet. That argument stands dismissed Accused Maha Nand Sharma (A-4) did not explain during trial as to what prejudice was caused to him due to non- filing of said Register. No suggestion was given by him based on said fact to any of the prosecution witnesses.
178.25. Accused Maha Nand Sharma (A-4) further argued with respect to Receipt-cum-Production Memo Ex.PW45/5 dated 31.08.2006. His counsel argued that said Memo reflected that documents, collected by CBI were incomplete, manipulated and tampered. In order to appreciate said argument, I must mention here the said Memo, in verbatim, below :-
CBI Case No.189/2019 Page 357 of 591CBI vs. B.M. Sethi & Ors.
RECEIPT CUM PRODUCTION MEMO DATED 31.08.2006
1. Case no. : PE 5(A)/2006-SCR-II/ND
2. Date and Place 31.08.2006, o/o SP, CBI/SCR-
II, Block-3, CGO Complex Lodhi Road, New Delhi
3. By whom Produced : Shri Vikas Madan, Secretary, Safdarjung, Cooperative Group Housing Society, 20, Jagriti Enclave, Delhi.
4. By whom Received : Shri Jagrup Singh, Inspector, CBI/SCR-II, N. Delhi Particulars of Documents
1. Membership Register of Safdarjung CGHS Ltd bearing SI. No. to 170 containing pages 1 to 48.
2. Membership Register of Safdarjung CGHS Ltd bearing SI. No. 193 to 307 containing written pages 1 to 17.
3. One Proceeding Register of Safdarjung CGHS Ltd in respect of AGB Meetings having written pages 1 to 21 for the period from 2.6.2002 to 2.01.2006. On page 1, 2, the white fluid was applied for erasing the name and signature.
4. One Proceeding Register of Safdarjung CGHS Ltd having written pages 3 to 95 for the period from 29.09.83 to 05.06.99. The pages No.1, 2, 68 to 74, 79 to 84 & 90 are left blank. The page No. 7 and 8 are in torn condition in the middle. The page Nos. 56 to 59, 62 to 63, 65 to 67 and 75 to 78 are completely unsigned. At page No. 64 only three signatures are available at the middle of page. Page No. 60 & 61 are pasted together. All the pages of register are unstapled.
5. One Proceeding Register of Safdarjung CGHS Ltd having written pages 1 to 63 for the period 12.6.99 to 3.6.2001. On page 3 and 15, the signature of Shri Mishri Lal Bhadwaj is canceled and resigned. The page No. 54 to 59 are pasted together.
6. One Proceeding Register of Safdarjung CGHS Ltd having written pages 1 to 100 for the period 219.9.01 to 18.2.2005.
7. One Proceeding Register of Safdarjung CGHS Ltd written pages 1 to 28 for the period 20.3.2005 to 20.6.2006.
CBI Case No.189/2019 Page 358 of 5918. One file containing resignation letters of members in respect of Safdarjung CGHS Ltd. total pages 1 to 96. The No.78 is blank with signature at the end.
9. One file containing resignation letters of members of Safdarjung CGHS from page 8 to 67, page 1 to 7 are relating to list of resigned/rejected members.
10. One file containing resignation letters of members of Safdarjung CGHS containing page No. 1 to 18. The page No. 6 in torn condition.
11. One file containing application forms of respective members of Safdarjung Cooperative Group Housing Society containing pages 1 to 165.
12. One misc file containing correspondence with RCS List of members, Photo copies of affidavits, letters etc in respect of Safdarjung Cooperative Group Housing Society having page No. 1 to 116. The page No. 8 is half in position. The page No. 8, 9, 54, 76, 88 are in torn condition.
13. One misc file containing correspondence with DDA in respect of Safdarjung Cooperative Group Housing Society having page No. 1 to 49.
14. Audit file for the period from 1999-2000 to 2000-2001 in respect of Safdarjung Cooperative Group Housing Society containing pages 1 to 31.
15. Audit file for the period from 1983-84 and 1984-85 in respect of Safdarjung Cooperative Group Housing Society containing pages 1 to 32, with 13A and 18A.
16. Audit file for the period from 1985-86 to 1998-99 in respect of Safdarjung Cooperative Group Housing Society containing pages 1 to 131.
17. File containing Bye-Laws and registration certificate in respect of Safdarjung Cooperative Group Housing Society having page 1 to
9.
18. Receipt undated regarding handing over of documents in r/o Safdarjung CGHS issued by Shri Mahanand Sharma.
Handed Over By Taken Over By
(Sh. Vikas Madan) (JAGRUP SINGH)
S/o Late Chander Mohan Madan Inspector, CBI/SCR-II
R/o 20, Jagrity Enclave, Delhi-92 Block 3, CGO Complex
Lodhi Road, New Delhi.
CBI Case No.189/2019 Page 359 of 591
CBI vs. B.M. Sethi & Ors.
178.26. So, Accused Maha Nand Sharma (A-4) claimed that said Memo reflected that documents, collected by PW45 - Jagroop Singh were not complete. Further, they were manipulated and tampered. Further, he explained that Society usually maintains three sets of registers viz., pertaining to the Meetings of Managing Committee, pertaining to the Annual GBMs and pertaining to Special GBMs. So, document D-8 which was received by PW45 from Accused Vikas Madan (A-13) through D-53 dated 31.08.2006 was fabricated, manipulated and tampered document. Only proceedings till the year 1998 of which records are available in D-5 and D-6, can be considered as genuine. Further, Proceedings Register mentioned at S.No.5 of Memo D-53 dated 31.08.2006, as D-9 was tampered document. The contents of said Register were not proved during trial except the fact that it was exhibited by PW45.
178.27. Above-mentioned arguments have no merits. Reasons being, firstly, that Accused Maha Nand Sharma (A-4) did not specify as to who had manipulated and tampered with said documents. He did not explain as to why CBI would tamper or manipulate the documents, if it was not done by co-accused persons. So far as completeness of records was concerned, again, he did not give details of complete records and/ or the manner in which, it could be checked that said record was incomplete to any extent. As such, arguments of Ld. Counsel for Accused Maha Nand Sharma (A-4) regarding tampering, manipulation and CBI Case No.189/2019 Page 360 of 591 CBI vs. B.M. Sethi & Ors.
incompleteness of records, collected by CBI, during investigation through said Memo, appeared to be an open-ended argument, having no consequence. Moreso, where, he did not explain as to how Accused Maha Nand Sharma (A-4) was prejudiced due to said manipulation and incompleteness of records. Coupled with the same, I found that Accused Maha Nand Sharma (A-4) did not cross-examine any prosecution witness by referring to above- mentioned facts. No suggestion was given by him while cross- examining PW45 that said record was fabricated, manipulated and tampered. Infact, none of the accused persons denied the veracity of said record. Accused Maha Nand Sharma (A-4) could have explained the same either in his statement under Section 313 Cr.PC or could have led defence evidence, in that regard. He failed on those accounts also. As such, he did not challenge above- mentioned record, brought by prosecution, in any way when prosecution evidence was being recorded. So, it does not lie in his mouth, now at the stage of judgment to dispute said documents, just like that. His knowledge with regard to maintenance of three Registers by Society also saw light of the day, at the stage of final arguments. So, it was an argument, based on an after-thought, on the part of Ld. Counsel for Accused Maha Nand Sharma (A-4). It did not help the cause of Accused Maha Nand Sharma (A-4) and stands discarded.
178.28. Accused Maha Nand Sharma (A-4) next referred to resignation files and claimed that documents as per D-54 at S.No.9, consisted of only one resignation file which was handed over by CBI Case No.189/2019 Page 361 of 591 CBI vs. B.M. Sethi & Ors.
him to Accused Vikas Madan (A-13) but PW45 received three resignation files from Accused Vikas Madan (A-13) through D-53 dated 31.08.2006. The files, mentioned that S.No.8 and 9 of the said Memo, were annexed along with the charge-sheet as D-11 and D-12 whereas the file, mentioned at S.No.10 of the said Memo of which a part was in torn condition, was not annexed with the charge-sheet and it was not part of judicial record. Apart from that, other documents (except the Audit file upto the year 1998-1999) mentioned in memo D-53 dated 31.08.2006 were not handed over by Accused Maha Nand Sharma (A-4) to Accused Vikas Madan (A-13) and thus, he had no connection with the same. So, he raised a question "can a charge based on incomplete fabricated, manipulated and tampered documents sustains against the present accused specifically when the charge is of using false and forged documents for revival sustain?"
178.29. Above-mentioned explanation of record and raising of question, again, were meritless and misplaced. Reason being, that said fact based on appreciation of record, was done by Accused Maha Nand Sharma (A-4) for the first time, at the stage of final arguments. That explanation was based on appreciation of facts, pertaining to documents. If Accused Maha Nand Sharma (A-4) wanted to claim that record pertaining to resignation files, as explained above, was manipulated or fabricated or incomplete, then, he should have brought the same on record by cross- examining prosecution witnesses. He did not do so. Further, the answer to the question he raised in his written submissions, is CBI Case No.189/2019 Page 362 of 591 CBI vs. B.M. Sethi & Ors.
based on proper knowledge of law, pertaining to appreciation of evidence. In this case, circumstantial evidence against Accused Maha Nand Sharma (A-4) was sufficient to convict him for the offences, for which he was charged. Besides that, I find that none of the above-mentioned claims were raised by him, when his statement under Section 313 CrPC was recorded. In the said statement, he very conveniently used the expression "I do not know" when incriminating evidence was put to him. He did not take the said stand, as raised by him in his written submissions, in response to statement under Section 313 CrPC.
178.30. Here, I must highlight that Accused Maha Nand Sharma (A-4) himself admitted in his written submissions that there was fabrication, manipulation and tampering of records. For absolving himself from this case, he should have stepped in the witness box and / or could have led defence evidence to clear the doubts regarding the exact person/persons who had done said fabrication, manipulation and tampering of records of Society in Question. He did not do so. In the absence of the same, I find that his claim of fabrication, manipulation and tampering of records of the Society, only probabilized the case of prosecution.
178.31. The next argument of Accused Maha Nand Sharma (A-4) was based on his claim that there was no direct evidence for proving the charge of conspiracy. He referred to the facts pertaining to approval of 90 Members of Society on 12.06.1985 and claimed that after 12.06.1985 till 30.06.1986, 35 more Members were CBI Case No.189/2019 Page 363 of 591 CBI vs. B.M. Sethi & Ors.
enrolled in the Society and strength of the Society was increased to 125 Members. While making said submissions, he failed to mention about any correspondence which Society had with the office of RCS. In other words, he did not mention that when strength of Society was increased to 125 Members by adding 35 more Members then office of RCS was intimated about the same. In the absence of said communication, the only conclusion, which can be drawn, was that Society through its Office Bearers increased the said strength to 125, illegally. It did not help the cause of Accused Maha Nand Sharma (A-4).
178.32. Moving further, Accused Maha Nand Sharma (A-4) claimed that there was absence of criminal conspiracy on his part, in the light of following facts viz.,.
a) That he became Member of Society as per proceedings dated 08.08.1985 (at page 38 to 39 of D-8).
b) That he became active only after 1998, when he was authorized by Society. He received records of Society from previous Managing Committee in pursuance to GBM dated 27.09.1998.
c) That he was not linked with Accused Karamvir Singh (A-2).
d) That once, Society was approved by Minister and Secretary Cooperative concerned to be revived, then there was no conspiracy.
CBI Case No.189/2019 Page 364 of 591e) That there was no inference of conspiracy between him and other co-accused persons.
178.33. All the above-mentioned aspects, failed to answer the aspects which I have appreciated above with regard to the role of Accused Maha Nand Sharma (A-4) in illegal revival of Society in Question, based on false documents. Said appreciation is not repeated here for the sake of brevity.
178.34. Suffice it is to conclude, that written submissions filed by Accused Maha Nand Sharma (A-4), were based on his version pertaining to the case of prosecution. That version was based on facts but those facts were never brought on record. After going through the written submissions of Accused Maha Nand Sharma (A-4), I found that he failed to grasp the allegations, which were levelled against him, completely. He failed to appreciate that proceedings and membership records of Society in Question were not prepared by CBI. Those records were within the office of Society. Accused Maha Nand Sharma (A-4) was not a sleeping Member of the Society. His signatures appeared on various documents of said Society. Infact, he had signed on the documents annexed with Audit Report Ex.PW45/3 (D-5), in the capacity of the President of the Society in Question. He had also written letters to the office of RCS as mentioned in Ex.PW45/4 viz., for approval of resignation dated 27.12.1999 and 16.11.1999, approval of the freeze list of the Society dated 10.02.1999, amongst others. It means that he was actively involved in the affairs of the Society.
CBI Case No.189/2019 Page 365 of 591Those communications also indicated that he was representing Society officially, towards the office of RCS. In such capacity, he should have answered the questions viz., Why there were blank spaces in Proceedings Register of Society (D-8)? Why various Members were shown as Members of Society, though they had allegedly resigned? Why names of persons were mentioned in the Membership Register, when they claimed that they had never become Members of Society? Why Society did not respond to the office of RCS, regularly? Such questions and questions of like nature could have been answered by him only. He failed to do so. Therefore, his written submissions did not help his cause. Same are discarded by me, accordingly.
178.35. Accused Maha Nand Sharma (A-4) filed certain case laws, by referring to relevant paragraphs and pages, as mentioned below, in support of his claims and assertions.
S.No. CASE TITLES RELEVANT PAGE NO. PARAS 1. Natwarlal Sakarlal 21 1-9 Mody vs. The State of Bombay, 1961 SCC OnLine SC 1 2. Ajay Aggarwal vs. 8 10-31 Union of India, (1993) 3 SCC 609 3. L.K. Advani vs. CBI, 79-80 32-62 1997 SCC OnLine Del 382 4. State of Kerala vs. P. 12-13 63-76 Sugathan, (2000) 8 SCC 203 CBI Case No.189/2019 Page 366 of 591 CBI vs. B.M. Sethi & Ors. 5. Esher Singh vs. State of 44-46 77-104 A.P., (2004) 11 SCC 585 6. V.C. Shukla vs. State 8 105-123 (Delhi Admn.), (1980) 2 SCC 665 7. State & CBI vs. Nalini 583 & 662 124-132 & Ors. (1999) 5 SCC 253 8. State NCT of Delhi vs. 66-113 133-151 Navjot Sandhu (2005) 11 SCC 600 9. Kehar Singh & Ors. vs. 270 to 281 152-163 State Delhi Administration (1988) 3 SCC 609 10. Sharad Birdhichand 153 164-167 Sarda vs. State of Maharashtra, (1984) 4 SCC 116 11. State of Maharashtra vs. 22-24 168-194 Som Nath Thapa, (1996) 4 SCC 659 12. Magraj Patodia vs. R.K. 18 195-208 Birla, (1970) 2 SCC 888 13. Kalyan Kumar Gogoi 33 & 34 209-226 vs. Ashutosh Agnihotri, (2011) 2 SCC 532
178.36. Whether facts and circumstances in said case laws, matched with the facts and circumstances of present case ? For appreciating the same, I am referring to the said case laws, in brief below, for concluding as to whether Law laid down in said case laws is applicable to the facts and circumstances of present case.
CBI Case No.189/2019 Page 367 of 591178.37. In Natwarlal Sakarlal Mody's case (supra), accused persons were charge-sheeted for committing fraudulent transactions, criminal breach of trust and forgeries, thereby aggregating Rs.6,00,000/- belonging to complainant company. Ld. Magistrate ordered joint trial and separate trial, after segregating accused persons through an Order. That Order was under
consideration, before Hon'ble Apex Court. In the Judgment, Hon'ble Apex Court appreciated the aspect of Joint Trial and Separate Trial of accused persons by interpreting Sections 233 & 239 CrPC. Same was not the situation in the present case. The law laid down in the said case, was not relevant in present matter.
Factually also, that case was distinguishable from facts of this case and therefore, did not help the cause of Accused Maha Nand Sharma (A-4).
178.38. In Ajay Aggarwal's case (supra), allegations were that accused persons had hatched a conspiracy to cheat Punjab National Bank and forged and fabricated documents. Therefore, they were charge-sheeted under Section 120-B, 420, 468 & 471 IPC. Ld. Magistrate discharged all accused persons, which was set aside by Hon'ble High Court. Thereafter, one of the accused filed SLP before Hon'ble Apex Court against the order of Hon'ble High Court. Issue was whether prior Sanction of Central Government was necessary for the offence of conspiracy under Section 188 of CrPC to take cognizance of an offence punishable under Section 120-B IPC or to proceed with the trial. Same is not the situation CBI Case No.189/2019 Page 368 of 591 CBI vs. B.M. Sethi & Ors.
here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.39. In L.K. Advani's case (supra), the object of criminal conspiracy, amongst accused persons, involved in said case was to receive unaccounted money and to disburse the same amongst themselves, friends, close relations and amongst different persons including public servants and political leaders. For achieving said aim, one of the accused lobbied with different public servants and governments organisations in the Power and Steel Sectors of Government of India for the purpose of pursuing of award of various contracts to different foreign bidders with the motive of getting illegal kickbacks from them. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.40. In P. Sugathan's Case (supra), criminal conspiracy involved amongst accused persons was to commit murder of the victim. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.41. In Esher Singh's case (supra), criminal conspiracy involved amongst accused persons was to commit murder of the victim. The case involved provisions of Terrorist & Disruptive Activities (Prevention) Act, 1987. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
CBI Case No.189/2019 Page 369 of 591178.42. In V.C. Shukla's case (supra), issue pertained to illegal banning of a Film and seizure of its Prints by the Officers of Government. Offences involved were Sections 409, 435, 411, 414, 201 & 109 IPC. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.43. In Nalini's case (supra), offences under TADA, IPC, Foreigners Act, Explosives Substance Act, Arms Act, Passport Act and Wireless Telegraphy Act, were invovled. The aspect of criminal conspiracy was appreciated by the Hon'ble Apex Court with respect to the offences under said Acts. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.44. In Navjot Sandhu's case (supra), offence under Section 32 (1) POTA Act and Section 15(2) of TADA Act were appreciated by Hon'ble Apex Court while appreciating the aspect of criminal conspiracy involved in said matter. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.45. In Kehar Singh's case (supra), offence of murder was involved alongwith Section 120-B IPC and Section 109 IPC. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
CBI Case No.189/2019 Page 370 of 591178.46. In Sharad Birdhi Chand Sarda's case (supra), offences of murder and criminal conspiracy were involved, besides other offences. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.47. In Som Nath Thapa's case (supra), again provisions of TADA Act were involved alongwith the offence of criminal conspiracy. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.48. In Magraj Patodia's case (supra), issue was with regard to validity of the elections of Mr. R.K. Birla to the Lok Sabha in the General Elections held in 1967. Same is not the situation here. So, said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.49. In Kalyan Kumar Gogoi's case (supra), again it was a case based on elections where Hon'ble Apex Court appreciated the law of appreciation of hearsay evidence, extra judicial confession, in criminal trials. Same is not the situation here. So said case law did not help the cause of Accused Maha Nand Sharma (A-4).
178.50. Factually, therefore, the case laws referred by Accused Maha Nand Sharma (A-4) were distinguishable, from the facts of present case. Hon'ble Apex Court had appreciated the relevant laws including the law of criminal conspiracy, with respect to facts of those cases. So far as law of criminal conspiracy is concerned, same holds ground as was laid down in said case laws. At the same CBI Case No.189/2019 Page 371 of 591 CBI vs. B.M. Sethi & Ors.
time, since facts of those cases were different from facts of the case in hand, so findings of those cases, were not applicable to the facts of present case. Therefore, based on said case laws, Accused Maha Nand Sharma (A-4) cannot be acquitted in present case.
178.51. Ld. counsel for Accused Maha Nand Sharma (A-4) argued that there was discrepancy in the records which were in the possession of Accused Maha Nand Sharma (A-4), pertaining to Society in Question and the records which were collected by CBI from Accused Vikas Madan (A-13). He referred to Receipt-cum- Production Memo Ex.PW45/5 which mentioned particulars of documents, taken by PW45 - Jagroop Singh, Inspector/ CBI from Accused Vikas Madan (A-13). After referring to said Memo, he claimed that there were certain manipulations in document D-54 and no investigation was done with regard to the same. He also claimed that there was tampering in document D-53 as there was no reference to the documents from S.No.171 to 192. He also argued that Membership Register at S.No.1 noted that it had pages from 1 to 48 and ordinarily, no register has only 48 pages. All the said arguments were meritless. Reason being, if those arguments had to be believed, then it would mean, that said documents were not true and correct, as mentioned in Ex.PW45/5. If that was the case that Accused Maha Nand Sharma (A-4) should have lodged complaint with appropriate authority regarding tampering of documents. He could have questioned PW45 who had prepared said Memo with regard to said alleged discrepancies. Surprisingly, not an iota of question was put to PW45 with regard to said alleged CBI Case No.189/2019 Page 372 of 591 CBI vs. B.M. Sethi & Ors.
discrepancies. Therefore, said arguments were an after-thought. They were raised, baselessly. I discarded them, accordingly.
178.52. Ld. counsel for Accused Maha Nand Sharma (A-4) further argued that till 1988, records of Society seemed to be correct as it matched with the records of RCS. It is after 1988 that tampering and manipulations were done in the records of Society. That argument only indicated that Accused Maha Nand Sharma (A-4) himself admitted that records of Society were tampered with and also manipulated. It only supported prosecution version.
178.53. Ld. counsel for Accused Maha Nand Sharma (A-4) further argued that documents seized by CBI were forged and fabricated and they could not have been relied by CBI in this case. He denied the fact that those were the documents which Accused Maha Nand Sharma (A-4) had given to Accused Vikas Madan (A-13). Again, said arguments were an after-thought, as for checking their veracity, PW45 was not cross-examined. No suggestion was put to PW45, based on said arguments. Therefore, I discarded the same.
178.54. Ld. counsel for Accused Maha Nand Sharma (A-4) further argued that prior to 01.05.1998, there was blanket ban on revival of Society. In this regard, he referred to D-5, page 214/C. He further argued that on 29.08.1998, pursuant to D-5, Society was revived. He argued that Special GBM dated 27.09.1998 was illegal as Society in Question was in liquidation, on that day. He further argued that exact record was sent to the office of RCS which was CBI Case No.189/2019 Page 373 of 591 CBI vs. B.M. Sethi & Ors.
available and Accused Maha Nand Sharma (A-4) had not forged any document. He also claimed that all the public servants, involved in this case, acted in ordinary course of their official duties. Again said arguments had no merits. I have already appreciated in detail the role of Accused Maha Nand Sharma (A-4) in conspiracy, involved in this case. I have already appreciated the false and forged records which were in the possession of Accused Maha Nand Sharma (A-4), regarding which Accused Maha Nand Sharma (A-4) had no explanation. Even otherwise, Accused Maha Nand Sharma (A-4) did not explain as to in what capacity, without passing of resolution, he had handed over the records of Society to Accused Vikas Madan (A-13). It only indicated that he was in conspiracy with Accused Vikas Madan (A-13) for getting Society in Question revived, illegally, on the basis of false & forged documents. As such, Accused Maha Nand Sharma (A-4) never explained the manipulations in the records of Society, as highlighted in this judgment. Above mentioned arguments, therefore, stand discarded.
178.55. The net result is that based on appreciation of evidence, statement under Section 313 CrPC of Accused Maha Nand Sharma (A-4) and arguments he raised, only one conclusion can be drawn. The conclusion is that Accused Maha Nand Sharma (A-4) was instrumental in getting Society in Question revived, through illegal means. He had written letter dated 10.02.1999 to the office of RCS, in the capacity of being President of Society, which was accompanied with certain documents. The appreciation of said CBI Case No.189/2019 Page 374 of 591 CBI vs. B.M. Sethi & Ors.
documents, revealed that they mentioned false information. Said appreciation, already done above, is not repeated here, for the sake of brevity. Accused Maha Nand Sharma (A-4) also affixed his signatures on the Audit Report, which again was not true Report, as per above-mentioned appreciation. He did not explain the manipulations in the Membership Register, Proceedings Register, Resignation Letters, Affidavits and Membership Application Forms, as noted in this Judgment. He gave evasive replies, in his statement under Section 313 CrPC. He did not lead any evidence in support of his defence. So, he in conspiracy with co-accused persons, got Society in Question revived in an illegal manner, as it was based on falsification and forgery in records. His conduct revealed that he furnished false and fabricated records with the office of RCS, based on which said office was induced for believing that record was correct, though it was not. As a result of said inducement, office of RCS forwarded the record to the office of DDA and DDA was also induced to believe that said record was correct, though it was not. Based on said inducement, land was allotted to Society in Question. So, Accused Maha Nand Sharma (A-4), in conspiracy with officials of the office of RCS, who are arrayed as Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), obtained valuable thing in the shape of land from the office of DDA.
Appreciation of Record viz-a-viz Accused Pankaj Madan (A-5)
179. Accused Pankaj Madan (A-5) was charged with offences CBI Case No.189/2019 Page 375 of 591 CBI vs. B.M. Sethi & Ors.
punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 IPC.
179.1. As per charge-sheet, Accused Pankaj Madan (A-5) alongwith his brother Accused Vikas Madan (A-13) had taken over records of Society in Question from Accused Maha Nand Sharma (A-4) and thereafter, he alongwith his brother Accused Vikas Madan (A-13) forged documents which they submitted with the office of RCS. He also did not handle the finances of Society, legally. Those were the broad allegations against him.
Appreciation of Prosecution Evidence viz-a-viz Accused Pankaj Madan (A-5) 179.2. The very first aspect which needed appreciation was the membership of Accused Pankaj Madan (A-5). Now, his Membership Application Form, which was part of Ex.PW45/11 (D-10), noted that he had applied with Society for becoming its Member on 27.11.1999. Contrary to the same, noting file of RCS Ex.PW45/2 (D-4) reflected that his name was mentioned at S.No.110. As per said record, date of his application for becoming Member in Society in Question was 13.06.1990. So, said record of RCS, was contrary to his Membership Application Form, as mentioned above. The Membership Register of Society Ex.PW45/8 (D-7) nowhere mentioned his name. So, in the wake of said CBI Case No.189/2019 Page 376 of 591 CBI vs. B.M. Sethi & Ors.
documents, it was clear that he was not shown as a Member of Society in Question, uniformly, in the records. It also indicated that record pertaining to his membership was falsely created with ulterior motives. As such, he did not explain during trial about said manipulations.
179.3. Moving further, I found that role of Accused Pankaj Madan (A-5), can be seen from the fact that he was paid different amounts by Society in Question through cheques, in his account, maintained in OBC, which were part of documents referred as D-26. Those cheques are Ex.PW46/5 (colly). Details of said cheques are mentioned below:-
S.No. Cheque No. Dated Amount
1 269609 13.12.2004 Rs.1,60,000/-
2 100931 06.12.2004 Rs.1,00,000/-
3 269610 21.12.2004 Rs.3,00,000/-
4 100929 03.12.2004 Rs.20,000/-
5 873204 04.11.2004 Rs.1,50,000/-
6 873205 11.11.2004 Rs.2,00,000/-
7 873207 09.11.2004 Rs.35,000/-
8 100926 18.11.2004 Rs.1,00,000/-
9 100927 29.11.2004 Rs.40,000/-
10 100928 30.11.2004 Rs.1,00,000/-
11 275650 30.07.2005 Rs.1,00,000/-
12 275651 20.01.2005 Rs.1,00,000/-
13 275654 10.05.2005 Rs.1,00,000/-
14 275655 14.05.2005 Rs.9,50,000/-
15 275657 19.05.2005 Rs.2,50,000/-
16 275659 01.06.2005 Rs.4,50,000/-
CBI Case No.189/2019 Page 377 of 591
CBI vs. B.M. Sethi & Ors.
17 275662 27.07.2005 Rs.2,00,000/-
18 275670 03.01.2006 Rs.2,60,000/-
19 275675 10.06.2005 Rs.50,000/-
20 275676 07.06.2005 Rs.5,50,000/-
21 275678 08.06.2005 Rs.3,75,000/-
Total Rs.45,90,000/-
(Rupees Forty Five
Lacs Ninety
Thousand)
179.4. Aforesaid amounts, therefore, were received by Accused Pankaj Madan (A-5). That fact was never disputed by him. The said cheques were signed by Accused Vikas Madan (A-13), in the capacity being Secretary of Society in Question. The above- mentioned cheques were brought on record by prosecution through the testimony of PW46 Suresh Kumar. He was Senior Manager in OBC. He placed on record said cheques which he had handed over to CBI through Memos Ex.PW46/1 to Ex.PW46/4. Those cheques were part of Ex.PW46/5 (colly).
179.5. Accused Pankaj Madan (A-5) never explained, during trial, as to why he had received said cheques from Society. Absence of details, in this regard, indicated manipulations in the finances of Society by him and other co-accused persons. Moreso, where this case was based on manipulations of records of Society, which only corroborated above-mentioned conclusion. No other inference can be drawn with regard to the same.
CBI Case No.189/2019 Page 378 of 591Appreciation of Statement of Accused Pankaj Madan (A-5) recorded under Section 313 CrPC 179.6. Accused Pankaj Madan (A-5), in response to incriminating evidence put to him, did not explain as to why he had received said cheques from Society. Infact, he claimed that said cheques were "matter of record" in response to the testimony of PW46, put to him. He did not give any explanation with regard to the purpose of receiving said amount from Society in his said statement.
179.7. Accused Pankaj Madan (A-5) did not lead any defence evidence, explaining the purpose of receiving aforesaid amounts from Society. He did not give any suggestion to any of the prosecution witnesses regarding the purpose of receiving said amounts from Society.
179.8. The net result is that throughout trial Accused Pankaj Madan (A-5) did not explain the purpose of receiving said amounts from Society. Once, prosecution had raised the issue of illegal revival of Society in Question and illegal handling of affairs of said Society, Accused Pankaj Madan (A-5) should have brought on record the reason of receiving said amounts from Society, during trial. He failed to do so.
Written Submissions of Accused Pankaj Madan (A-5) 179.9. In the written submissions, filed at the stage of final CBI Case No.189/2019 Page 379 of 591 CBI vs. B.M. Sethi & Ors.
arguments, Accused Pankaj Madan (A-5) claimed that he had advanced loan to Society from time to time and above-mentioned amounts were the loan amount which he had given to Society.
179.10. The issue of advancement of loan by Accused Pankaj Madan (A-5) to Society in Question, saw light of the day, at the stage of final arguments, only. So, it was raised by him at a belated stage. It cannot be believed, just like that. Moreso ever, no suggestion was given by him to any of the prosecution witnesses, during trial.
179.11. Even otherwise, for the sake of argument, it is believed that loan was given by him to Society in Question, which was repaid by Society to him, through aforesaid cheques, then also various questions remained unanswered viz., When was loan given by him to Society? What was the purpose of him giving loan to Society? What were the terms and conditions of said loan? From where, he had arranged said amounts being given to Society? In what mode, said loan was given by him to Society in Question? Why said factum regarding advancement to loan to Society was not mentioned in Proceedings Register Ex.PW45/6 and Ex.PW45/7. Infact, suggestion was given to PW49 Rajiv Wahi, who was the Investigating Officer in this case, that he had not investigated regarding the reason of financial transaction between Society and Accused Pankaj Madan (A-5). PW49 admitted that he did not investigate the matter with regard to said aspect. That suggestion indicated that Accused Pankaj Madan (A-5) himself admitted that CBI Case No.189/2019 Page 380 of 591 CBI vs. B.M. Sethi & Ors.
there were financial transactions between Society and him. Those financial transactions were within his special knowledge and therefore, he should have explained the reason of said financial transactions, in the shape of defence evidence. He did not do so. As such, I find that Accused Pankaj Madan (A-5) had received said amount from Society, illegally, without any purpose. It only indicated that he had dealt with the affairs of Society, illegally.
179.12. In the written submissions, Accused Pankaj Madan (A-5) further claimed that he was neither an Office Bearer of Society nor controlled the affairs of Society, in any manner. Said submissions have no merits. Reason being, if that was the situation then, why he received membership fee and other payments on behalf of Society, from various persons viz., PW27 Ashok Sood, PW28 Dr. Harvinder Singh Kukreja and PW48 Deepak Aggarwal. That was never explained by him. Said fact regarding receiving of amounts from above-mentioned witnesses indicated that he was actively involved in the affairs of the Society and was not a sleeping Member.
179.13. This brings me to the testimony of PW41 Narender Shah. This witness deposed that he had given loan of Rs.50 Lacs in 2002 and Rs.6 Lacs in 2003 to Accused Pankaj Madan (A-5). He paid the said loan amount through cheques. Accused Pankaj Madan (A-5) received said loan amount as he wanted it for some big land deal. Out of said loan amount, Accused Pankaj Madan (A-5) returned back Rs.1.5 lakh only to this witness.
CBI Case No.189/2019 Page 381 of 591179.14. After referring to the testimony of said witness, Accused Pankaj Madan (A-5), in his written submissions, stated that testimony of said witness suggested that said witness was not put to any loss and that transaction between said witness and Accused Pankaj Madan (A-5) was not related to Society.
179.15. As such, testimony of PW41 was inconsequential for the purpose of adjudication of this case. The loan which Accused Pankaj Madan (A-5) had received from PW41, as such, was not related to the working of Society in Question. No evidence was brought on record, to the effect that Accused Pankaj Madan (A-5) had utilized the said amount for giving loan to Society in Question. So, question remained, as to what was the source from where Accused Pankaj Madan (A-5) had arranged loan amount, which he had advanced to Society in Question? That question was never answered by Accused Pankaj Madan (A-5) during trial.
179.16. Lastly, Accused Pankaj Madan (A-5) claimed that he was not part of any criminal conspiracy, with co-accused persons, in this case. He asserted that he became Member of Society in Question on 05.12.1999 whereas, said Society was revived on 16.04.1999. So, he did not connive with anybody for revival of Society in Question. That claim was again baseless. Reason being, that said fact, cannot be seen, in isolation. It has to be appreciated in the light of various facts viz., that in this case, Accused Pankaj Madan (A-5), was not alone. His brother Accused Vikas Madan (A-13) and his late father C.M. Madan were also involved in this CBI Case No.189/2019 Page 382 of 591 CBI vs. B.M. Sethi & Ors.
case. Names of all three of them, were mentioned in the list of Members of Society, in the record of RCS Ex.PW45/2, which pertained to the year 1990. Further, Membership Application Form of Accused Pankaj Madan (A-5) which was part of Ex.PW45/11 (D-10), noted that his application form was dated 27.11.1999. The said differences in the dates were material aspects, which he should have explained, during trial. He did not do so. Coupled with the same, his name was also mentioned in the list of Members of Society at S.No.110 which was part of Ex.PW45/4 (D-6 at page 408/C), which noted that he became Member of Society on 20.06.1990. Further, his name was also mentioned at S.No.94 in Ex.PW45/4 (D-6 at page 419/C), which mentioned that he became Member of Society on 20.06.1990. That record was never disputed by him. It means that he became Member of Society in Question in the year 1990 and if that is so, then, he must be deemed to have knowledge of affairs of the Society.
179.17. The record speaks for itself. Accused Pankaj Madan (A-5) did not deny the said record. The record spoke contrary to his claims. He cannot shirk away from the fact that he was actively involved in affairs of the Society. To say that he had no knowledge about the factum of co-accused persons interested in illegal revival of Society in Question was not possible. The fact that he had withdrawn money from Society in Question, without any cogent reason, only indicated his malafide. It indicated his involvement with co-accused persons.
CBI Case No.189/2019 Page 383 of 591179.18. The involvement of Accused Pankaj Madan (A-5), can be seen from another angle, which was that Accused Maha Nand Sharma (A-4) had submitted records to him and his brother Accused Vikas Madan (A-13). Now that record noted his name in Ex.PW45/4 as mentioned above, which pertain to the year 1990. How Accused Maha Nand Sharma (A-4) could have noted down his name in 1990, remained unanswered, during trial, if his claim of becoming Member of Society in Question, in the year 1999 is to be believed, to be true. It only indicated that he was in conspiracy with Accused Maha Nand Sharma (A-4) for revival of Society in Question. The said conspiracy can be further seen from the document with the heading "Share Capital Summary", which was part of Audit Record Ex.PW45/3. In the said record at page 258 (for the period 01.04.1990 to 31.03.1991), at page 276 (for the period 01.04.1992 to 31.03.1993), at page 283 (for the period 01.04.1993 to 31.03.1994, at page 293 (for the period 01.04.1994 to 31.03.1995), at page 301/C (for the period 01.04.1995 to 31.03.1996), at page 319 (for the period 01.04.1997 to 31.03.1998) and at page 331 (for the period 01.04.1998 to 31.03.1999). Said record was part of Audit Report of Accused Urmila Gupta (A-9), [since expired]. Said Accused Urmila Gupta (A-9), in her lifetime during trial, had admitted her signature at points A & A1 on "Brief Summary of the Society" Ex.PW33/1. The above-mentioned record was part of said Audit Report. So, his name was continuously reflected in the record of Society, much prior to 1999, when he had claimed to have become Member of Society in Question. The CBI Case No.189/2019 Page 384 of 591 CBI vs. B.M. Sethi & Ors.
record, as such, did not support his claims. I conclude that he was very much part of criminal conspiracy with co-accused Maha Nand Sharma (A-4) as record submitted by co-accused Maha Nand Sharma (A-4) reflected his name, to be a Member of Society in Question, right from the year 1990.
179.19. The written submissions of Accused Pankaj Madan (A-5), as such, did not help his cause.
179.20. Accused Pankaj Madan (A-5) did not cross-examine prosecution witnesses with regard to the defence, he had raised at the time of final arguments. He did not give any reply, based on said defence, when incriminating evidence was put to him under Section 313 CrPC. He did not lead any evidence in his defence in support of his claims. He raised arguments in his written submissions, based on his whims, contrary to record of this case.
179.21. Ld. counsel for Accused Pankaj Madan (A-5) argued that it was not a crime to finance Society in Question, as was done by Accused Pankaj Madan (A-5), in this case. That argument had no basis. Reason being, no doubt, financing a Society is not an illegal act by itself but then for financing a Society, there must be some record, in the shape of documentary proof. In other words, Accused Pankaj Madan (A-5) should have explained as to how he got the authority to finance Society in Question. He should have explained as to whether Society in Question, agreed, through resolution that it should receive financial aid from him for some specific purpose. After all, Society in Question was governed by CBI Case No.189/2019 Page 385 of 591 CBI vs. B.M. Sethi & Ors.
law and it was not a proprietorship concern, owned by a single person, not being governed by DCS Act. Accused Pankaj Madan (A-5) did not specify the record/ documentary proof, which could prove that he had the requisite amount with him, which he financed to Society in Question in a particular manner. He also did not refer to any resolution of Society in Question, vide which, he got the liberty to finance Society in Question. In such circumstances, if Accused Pankaj Madan (A-5) had financed Society in Question, then said financing was illegal in nature. It was done, with ulterior motives and it only indicated malafide of Accused Pankaj Madan (A-5).
179.22. Therefore, I conclude that during trial, Accused Pankaj Madan (A-5) did not explain, as to why, he had received money through cheques from Society. He did not explain, during trial, as to when exactly, he had become Member of Society in Question, as his Membership Application Form, pertained to the year 1999, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that he became Member in the year 1990. The fact that his name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that he had become a Member in the year 1990, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1990 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in CBI Case No.189/2019 Page 386 of 591 CBI vs. B.M. Sethi & Ors.
the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Ashwani Sharma (A-6), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Pankaj Madan (A-5) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Ashwini Sharma (A-6)
180. Allegations against Accused Ashwini Sharma (A-6) as per charge-sheet, were based on him signing Affidavits and Applications of various Members, in his own handwriting. Further, he had written Minutes of Proceedings of Society in Question which took place on different dates. Said handwriting was confirmed in the Report of GEQD/ Shimla.
CBI Case No.189/2019 Page 387 of 591180.1. Accused Ashwini Sharma (A-6) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 468, 420 & 471 IPC.
180.2. In the wake of above-mentioned allegations and charges, I am proceeding further with the appreciation of evidence, brought on record by prosecution against Accused Ashwini Sharma (A-6).
Appreciation of Prosecution Evidence viz-a-viz Accused Ashwani Sharma (A-6) 180.3. Accused Ashwini Sharma (A-6), was Member of Society in Question, as per record. He was not alone as his brother Anil Sharma and his wife Anju Sharma were also Members of said Society. These findings are based on records of Society. The details of said records are mentioned below.
180.4. As per Noting File Ex.PW45/2 (D-4), which was maintained by the office of RCS, name of Accused Ashwini Sharma (A-6), was mentioned at S.No.7 on page 22/N. Name of his brother Anil Sharma was mentioned at S.No.20 and name of his wife Anju Sharma was mentioned at S.No.22, both mentioned at page 23/N in the said file. The said record revealed that Accused Ashwini Sharma (A-6) had become Member of Society in Question on 05.12.1986, whereas, his brother Anil Sharma and his wife Anju Sharma had become Members of Society on 09.01.1988.
CBI Case No.189/2019 Page 388 of 591180.5. Further, at page 27/N, in Ex.PW45/2 (D-4), I found name of Accused Ashwini Sharma (A-6) at S.No.72, whereas, name of his brother was at S.No.85 and name of his wife was at S.No.87. Again, in the said record, it was noted that Accused Ashwini Sharma (A-6) had become Member of Society in Question on 05.12.1986 and his brother and his wife had become Members of Society in Question on 09.01.1988.
180.6. Record further revealed that name of Accused Ashwini Sharma (A-6) was mentioned at S.No.139 in Membership Register Ex.PW45/8 (D-7). Name of his brother Anil Sharma was mentioned at S.No.152 and name of his wife Anju Sharma was mentioned at S.No.154, in said Register. Here, I must mention that in the column of 'Father's Name' of concerned Member, there is cutting with pencil. Against the name of Anil Sharma, in the column of 'Father's Name', it was mentioned as 'R.D. Sharma'. I also found that against the name of Anju Sharma, in the column of 'Father's Name', it was written 'D/o R.R. Sharma'. I also found that 'Anju Sharma' was written with pencil in column no.154, where name of 'Smt. Alka Sharma' was written. Now, Anil Sharma and Anju Sharma were examined as PW13 & PW31 respectively by prosecution.
180.7. One fact, which is relevant, to be mentioned here is that neither Accused Ashwini Sharma (A-6) nor his wife and brother had put their signatures against their respective names, under the column of 'Signature/ Thumb Impression'.
CBI Case No.189/2019 Page 389 of 591180.8. Now, PW13 - Anil Sharma and PW31 - Anju Sharma, in their respective testimonies had deposed that they had never become Members of Society in Question. If that is so, then, I failed to understand, as to how their names were noted in above- mentioned records.
180.9. Moving further, I found that PW13 - Anil Sharma, in his testimony denied that he had signed at point Q-745 in his Resignation Letter Ex.PW13/1 (at page 62, part of D-12). He further deposed that he had not signed at points Q-334 & Q-335, in his Affidavit dated 03.01.1999, Ex.PW13/2 (at page 269/C, part of D-6). Now, Opinion of GEQD/ Shimla Ex.PW43/2 at para 2, noted that said signatures were made by Accused Ashwini Sharma (A-6).
180.10. Here, I must mention that Resignation Letter of PW13 Anil Sharma Ex.PW13/1 was attested by Accused Maha Nand Sharma (A-4) at point Q-746 and said signature of Accused Maha Nand Sharma (A-4) was confirmed by the Opinion of GEQD/ Shimla Ex.PW43/2 at para 2. It indicated that there was conspiracy between Accused Ashwini Sharma (A-6) and Accused Maha Nand Sharma (A-4), pertaining to manipulation of said record.
180.11. So far as, PW31 - Smt. Anju Sharma was concerned, she denied her signature at point Q-749, in her Resignation Letter Ex.PW31/3. The said Resignation Letter was attested by Accused Maha Nand Sharma (A-4) at point Q-750 & signature of Accused Maha Nand Sharma (A-4) at point Q-750 was confirmed by the CBI Case No.189/2019 Page 390 of 591 CBI vs. B.M. Sethi & Ors.
Opinion of GEQD/ Shimla Ex.PW43/2 at para 2. It indicated that Accused Maha Nand Sharma (A-4) had falsely attested said Resignation Letter of Smt. Anju Sharma.
180.12. Further, I found that though, it was mentioned in Noting File Ex.PW45/2, at page 27/N that PW13 Anil Sharma and PW31 Anju Sharma had become Members of Society in Question on 09.01.1988 but Proceedings Register Ex.PW45/9 (D-8), pertaining to the period 29.09.1983 to 05.06.1999, revealed that in the meeting of Managing Committee dated 09.01.1988, names of said witnesses were not mentioned in the item 'Enrollment of New Members'. So, on one hand, list of Members of Society in Question, which was part of Ex.PW45/2, mentioned that PW13 & PW31 had become Members of Society in Question, on 09.01.1988 but Proceedings Register did not mention the fact that said witnesses had become Members of Society in Question on 09.01.1988. So, there was evident manipulation in the records. Atleast, one record was false. That was the only conclusion, which one can draw by appreciating said records. Another fact which supported above-mentioned conclusion was that Accused Ashwini Sharma (A-6) had prepared the said Minutes Details at points Q-506, Q-509 & Q-510, dated 09.01.1988, which was confirmed by Opinion of GEQD/ Shimla Ex.PW43/2 at para 2. So, Accused Ashwini Sharma (A-6) was having knowledge that he was preparing false record with regard to meeting dated 09.01.1988. Since, said meeting was attended by various Members including Accused Sudershan Tandon (A-8), so, it indicated that there was CBI Case No.189/2019 Page 391 of 591 CBI vs. B.M. Sethi & Ors.
conspiracy between Accused Ashwini Sharma (A-6) and Accused Sudershan Tandon (A-8), with regard to preparation of said record. That was the only inference, one could draw from said record.
180.13. Now, I must refer to record of Special GBM dated 05.06.1999, Ex.PW31/4 (part of Proceedings Register Ex.PW45/9, D-8), pertaining to Society. That meeting was conducted by Accused Narender Kumar (A-3) in the capacity of being Election Officer. In the said meeting, names of 20 Members of Society, who had participated in the said meeting, were noted at page 91. Amongst those names were the names of Accused Maha Nand Sharma (A-4), Accused Ashwini Sharma (A-6) and PW31 - Smt. Anju Sharma. Against the name of Accused Ashwini Sharma (A-6), there was one signature at point Q-556. That signature, as such, did not match with the signature of Accused Ashwini Sharma (A-6), which he had made in his Statement under Section 313 CrPC. Same can be seen from naked eyes. The Opinion of GEQD/ Shimla Ex.PW43/2, noted in para 2 that signature at point Q-556 was not that of Accused Ashwini Sharma (A-6). Coupled with the same, I found that against the name of Smt. Anju Sharma, at S.No.20, there was a signature at point Q-565. PW31 Smt. Anju Sharma denied, in her testimony, that she had signed at point Q-565. Opinion of GEQD/ Shimla Ex.PW43/2, in para 2 also confirmed that said signature at point Q-565 was not that of Smt. Anju Sharma, rather, it was of Accused Ashwini Sharma (A-6). Further, all the names of Members of Society were written at point Q-555 by Accused Ashwini Sharma (A-6), in his own handwriting, as per Opinion of CBI Case No.189/2019 Page 392 of 591 CBI vs. B.M. Sethi & Ors.
GEQD/ Shimla Ex.PW43/2 at para 2. Accused Maha Nand Sharma (A-4) had signed at point Q-557 in said meeting, in his own handwriting, as per the Opinion of GEQD/ Shimla Ex.PW43/2 at para 4.
180.14. Above-mentioned record was prepared by Accused Narender Kumar (A-3), as it noted his signature at page 95 of Ex.PW31/4. So, ordinarily, he should have written complete details of the proceedings, including names of Members, who had attended said meeting. He should have made sure that Members, whose names were written in the said meeting, had signed against their names, properly. Contrary to the same, I found that it was Accused Ashwini Sharma (A-6) who had written the names of Members of Society, who had attended the said meeting. I also found that signature of Accused Ashwini Sharma (A-6) in the said meeting record at point Q-556 did not match his signature which he had made during course of trial, at the stage of recording of his Statement under Section 313 CrPC. I also found that Accused Ashwini Sharma (A-6) had forged the signatures of his wife Smt. Anju Sharma at point Q-565. The Opinion of GEQD/ Shimla Ex.PW43/2, in this regard, confirmed the above-mentioned conclusion. So, said record was forged and falsely created by Accused Narender Kumar (A-3), in conspiracy with Accused Maha Nand Sharma (A-4) and Accused Ashwini Sharma (A-6). That was the only conclusion, one can draw, based on appreciation of said records.
CBI Case No.189/2019 Page 393 of 591180.15. Now, I am coming to the Proceedings Register Ex.PW45/9 for the period from 29.09.1983 to 05.06.1999 (D-8). The Opinion of GEQD/ Shimla Ex.PW43/2 in para 2 noted that Accused Ashwini Sharma (A-6) had written details at points Q-483, Q-484, Q-490,Q-491, Q-494, Q-495, Q-496, Q-499, Q-500, Q-501, Q-504, Q-505, Q-506, Q-509, Q-510, Q-511, Q-514, Q-515, Q-516, Q-519, Q-520, Q-521, Q-524 to Q-531, Q-533 to Q-536 and Q-565. Same was confirmed by the Opinion of GEQD/ Shimla Ex.PW43/2, at para 2. The said Register noted details of meetings of Society dated 20.04.1989, 25.08.1989 and 11.04.1990. Those meetings did not mention the complete number of Members who had attended said meetings. If Accused Ashwini Sharma (A-6) had written the Minutes of said meetings, then how was it, that details of Members, who had attended said meetings, were absent. It made the said record of meetings, a false record. Further, at page 75 of said Register, I found that details of date of meeting and Members who had attended said meeting, were absent. I have already appreciated falsity in the preparation of record of Special GBM dated 27.01.1999, prepared by Accused Karamvir Singh (A-2), which was also part of said Register Ex.PW45/9. So, said incompleteness and falsity of record only indicated that Accused Ashwini Sharma (A-6), in conspiracy with other accused persons including Accused Maha Nand Sharma (A-4), Accused Karamvir Singh (A-2) and Accused Narender Kumar (A-3) had prepared the said false record, for the purpose of revival of Society in Question, in an illegal manner, for getting land allotted in favour of Society CBI Case No.189/2019 Page 394 of 591 CBI vs. B.M. Sethi & Ors.
through DDA. It was because of said conspiracy only that Accused Karamvir Singh (A-2) and Accused Narender Kumar (A-3), who were both officials of RCS, turned blind eye towards the blank unaccounted spaces in meeting records of Society, in said Proceedings Register Ex.PW45/9.
180.16. Further, I found that Accused Maha Nand Sharma (A-4) had given one letter to the office of Assistant Registrar (South) dated 10.02.1999 at page 413/C, which was part of Ex.PW45/4 (D-6). Said letter was accompanied with certain documents viz., list of 125 Members, Affidavits of 125 Members duly signed, consolidated list of Members resigned, consolidated list of Members enrolled, copy of Managing Committee Resolution, Election Record of Society with AGM Agenda and copy of Minutes, proof of dispatch of Agenda Notice and Affidavit of Secretary. That record was maintained by the office of RCS. The list of 125 Members of Society, annexed with the said letter mentioned name of Accused Ashwini Sharma (A-6) at S.No.72 at page 409, at S.No.72 at page 403/C, at S.No.72 at page 397, at S.No.72 at page 391/C and at S.No.72 at page 385/C. The date of his becoming Member of Society in Question in said lists, was same i.e. 05.12.1986. The UPC list of Members also mentioned his name and address, which was similar to the one, which was mentioned on the Membership Application Form at page 4257, as part of Ex.PW45/11 (D-10). Here, I must mention that said Membership Application Form was undated. The signature of Accused Ashwini Sharma (A-6) at point 623, matched with his CBI Case No.189/2019 Page 395 of 591 CBI vs. B.M. Sethi & Ors.
admitted signature, as per Opinion of GEQD/ Shimla Ex.PW43/2, para 2. Accused Ashwini Sharma (A-6) should have explained as to why his Membership Application Form was undated. He did not do so, either at the stage of cross-examination of prosecution witnesses or at the stage of recording of his Statement under Section 313 CrPC. His silence spoke volumes about his active involvement in criminal conspiracy with co-accused persons.
180.17. Further, the above-mentioned lists of Members of Society which were annexed with letter of Accused Maha Nand Sharma (A-4), noted names of co-accused persons namely Accused Maha Nand Sharma (A-4), Accused Sudershan Tandon (A-8), Accused Pankaj Madan (A-5), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). So, said record only indicated that said accused persons were acquainted with each other, before revival of Society in Question. It was never the case of any of the accused persons, during trial that they were not aware of each other. In such circumstances, only conclusion was that accused persons had conspired with each other to get Society in Question revived, illegally, based on false & forged documents.
180.18. In addition to above-mentioned documents, I found that letter of Accused Maha Nand Sharma (A-4) dated 10.02.1999, which was part of Ex.PW45/4 (D-6), was accompanied with Affidavits of 125 Members in original. Amongst said Affidavits, I CBI Case No.189/2019 Page 396 of 591 CBI vs. B.M. Sethi & Ors.
found there were Affidavits of Members viz., Amar Pal Singh at page 3177 (whose signatures were at points Q-359 & Q-360), Sunita at page 3185 (whose signatures were at points Q-353 & Q-354), Vikram Singh at page 3193 (whose signatures were at points Q-347 & Q-348), Naresh at page 3201 (whose signatures were at points Q-344 & Q-345), Anju Sharma at page 3205 (whose signatures were at points Q-340 & Q-341), Pramod at page 3209 (whose signatures were at points Q-337 & Q-338), Anil at page 3213 (whose signatures were at points Q-334 & Q-335), Ram Niwas at page 3245 (whose signatures were at points Q-319 & Q-320), Nirmala at page 3257 (whose signatures were at points Q-316 & Q-317), Badri at page 3269 (whose signatures were at points Q-307 & Q-308) and K. Manoj Subudhi at page 3353 (whose signatures were at point Q-297). The Opinion of GEQD/ Shimla Ex.PW43/2 at para 2 noted that said signatures were not made by the said Members of Society, rather, same were made by Accused Ashwini Sharma (A-6). It indicated that Accused Ashwini Sharma (A-6) had forged the signatures of said Members, with malafide intention. In addition to that, I found that PW8 - K. Manoj Subudhi, PW10 - Ram Niwas PW13 - Anil Sharma and PW31 - Anju Sharma, in their respective testimonies had deposed that they had not signed on above-mentioned Affidavits. Their said testimonies were never challenged by Accused Ashwini Sharma (A-6) which means that he admitted the said facts, deposed by said witnesses. It only indicated that Accused Ashwini Sharma (A-6) was actively involved in the false creation of records of Society.
CBI Case No.189/2019 Page 397 of 591So, guilt of Accused Ashwini Sharma (A-6) with regard to creation of false record, was reflected from the said record in said manner.
180.19. In addition to above-mentioned appreciation, I found that Accused Ashwini Sharma (A-6) had furnished his Affidavit at page 3265, bearing his signatures were at points Q-310 & Q-311, which was also part of Ex.PW45/4 (D-6). His signatures were confirmed by the Opinion of GEQD/ Shimla Ex.PW43/2 at para 2. That Report was not disputed by Accused Ashwini Sharma (A-6) with regard to confirmation of his signatures on said points of his Affidavit at page 3265. It means that Accused Ashwini Sharma (A-6) was actively involved in preparation of said false Affidavits for the purpose of revival of Society in Question.
180.20. This brings me to the Membership Application Forms of Members of Society namely Nirmala, Ram Niwas, Vikram Singh, Sunita and Amar Pal. Their Membership Application Forms were at pages 4253, 4249, 4229, 4177 & 4173 respectively. Same were part of record of Membership Application Forms of Society's Members Ex.PW45/11 (D-10). The Opinion of GEQD/ Shimla Ex.PW43/2 in para 2 noted that said Members namely Nirmala, Ram Niwas, Vikram Singh, Sunita and Amar Pal had not signed at points Q-627, Q-630, Q-644, Q-647 & Q-651 respectively, rather, same were signed by Accused Ashwini Sharma (A-6) in his own handwriting. Here, I must mention that Ram Niwas, who was examined by prosecution as PW10, testified that he had not signed at point Q-630 which only supported the Opinion of GEQD/ CBI Case No.189/2019 Page 398 of 591 CBI vs. B.M. Sethi & Ors.
Shimla Ex.PW43/2. So, said Opinion of GEQD/ Shimla was genuine and believable. So, it means that Accused Ashwini Sharma (A-6) had falsely created said record, in his own handwriting for cheating the office of RCS, in which he was successful and same was done by him in conspiracy with co-accused persons for the purpose of revival of Society in Question.
180.21. Coming to the Resignation Letters of Members, I found that as per record, file Ex.PW45/13 (D-12), which was record, pertaining to Resignation Letters of Members, which was maintained by Society, contained Resignation Letters of various Members including Members namely; Ram Niwas, Anand Sharma and Vikram Singh. Those Members were shown as signing their said Resignation Letters at points Q-735, Q-747 & Q-754 and which were at pages 4565, 4547 & 4539 respectively. Now, Opinion of GEQD/ Shimla Ex.PW43/2, at para 2 noted that those signatures were in the handwriting of Accused Ashwini Sharma (A-6) and not in the handwriting of said persons. That Opinion only indicated that Accused Ashwini Sharma (A-6) had created said record falsely by forging signatures of said Members. Infact, Ram Niwas who was also examined by prosecution as PW10 deposed in his testimony that he had not signed at point Q-735 in his Resignation Letter Ex.PW10/3. That deposition was never challenged by Accused Ashwini Sharma (A-6) and it means that he admitted the said deposition which further gave strength to the version of prosecution, regarding falsity of the said record.
CBI Case No.189/2019 Page 399 of 591180.22. Lastly, I found that Accused Ashwini Sharma (A-6) had forged the signature of one Daya Nand Gandhi on the Resignation Letter at point Q-687A, at page 4463, Ex.PW2/C (which was part of Ex.PW45/12, D-11), as per the Opinion of GEQD/ Shimla Ex.PW43/2 at para 2. That alleged Letter of Resignation of Daya Nand Gandhi, was attested by Accused Maha Nand Sharma (A-4) at point Q-687B and signature of Accused Maha Nand Sharma (A-4) was confirmed by the Opinion of GEQD/ Shimla Ex.PW43/2 at para 4. So, it not only indicated that said Resignation Letter was false & forged by Accused Ashwini Sharma (A-6), rather, it indicated also that it was done by Accused Ashwini Sharma (A-6) in conspiracy with Accused Maha Nand Sharma (A-4). That was the only conclusion, one can draw, based on said letter.
180.23. In addition to above-mentioned documents, another record, which reflected the active involvement of Accused Ashwini Sharma (A-6) in the affairs of Society in Question for the purpose of revival of Society in Question in illegal manner was the Audit Report Ex.PW33/1 & Ex.PW33/2 (both of which were part of Ex.PW45/3). Said record was admitted by Accused Urmila Gupta (A-9) [since expired], during her lifetime, in trial of this case. That record had record with the heading "Share Capital Summary". In the said record, at page 251 (for the period 01.04.1989 to 31.03.1990) at S.No.139, at page 259 (for the period 01.04.1990 to 31.03.1991) at S.No.139, at page 269 (for the period 01.04.1991 to 31.03.1992 at S.No.139, at page 277 (for the period 01.04.1992 to 31.03.1993) at S.No.139, at page 284 (for the period 01.04.1993 to CBI Case No.189/2019 Page 400 of 591 CBI vs. B.M. Sethi & Ors.
31.03.1994) at S.No.139, at page 294 (for the period 01.04.1994 to 31.03.1995) at S.No.139, at page 302/C (for the period 01.04.1995 to 31.03.1996) at S.No.139, at page 320/C (for the period 01.04.1997 to 31.03.1998) at S.No.139 and at page 332 (for the period 01.04.1998 to 31.03.1999) at S.No.139. The said record reflected that name of Accused Ashwini Sharma (A-6) was continuously reflected in the records of Society. It only probabilized the situation that he was an active Member of Society in Question, who had interest in getting the Society revived in any manner.
180.24. Based on aforesaid appreciation and conclusions, it was clear that Accused Ashwini Sharma (A-6) was not sitting at the fence, in the working of Society in Question. He was very much involved in the working of said Society. His intention of getting Society in Question revived in an illegal manner, was reflected by the fact that he had forged records, with respect to documents of other Members of Society, which were confirmed by Opinion of GEQD/ Shimla Ex.PW43/2. Said illegal acts were also confirmed by the testimonies of concerned witnesses, who denied their signatures in the documents. Details of the same are not repeated here for the sake of brevity. All the said acts of Accused Ashwini Sharma (A-6) were not done by him alone, rather, they were done by him, in conspiracy with Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3), Accused Maha Nand Sharma (A-4) and Accused Sudershan Tandon (A-8), besides other accused persons. He created said false & forged records for the purpose of CBI Case No.189/2019 Page 401 of 591 CBI vs. B.M. Sethi & Ors.
cheating the office of RCS & DDA. That false & forged records were used by him and accused persons, for the purpose of cheating the office of RCS & DDA for the purpose of revival of Society in Question. The offices of RCS & DDA, were infact cheated due to inducement being given by the said forged records, furnished by Accused Ashwini Sharma (A-6) and other Office Bearers of Society in Question, arrayed as accused persons in this case. The said cheating took place as a result of conspiracy between Members of Society and officials of the office of RCS, who were arrayed as accused persons in this case. The Officers of the office of RCS, who were arrayed as accused persons in this case, were not the victims. They were the facilitators, who made sure that manipulations in the records of Society were not highlighted and brought to the knowledge of higher-ups in the office of RCS. This conclusion was the only conclusion, one can draw, after appreciating evidence, led by prosecution.
Appreciation of Statement of Accused Ashwani Sharma (A-6), recorded under Section 313 CrPC 180.25. This brings me to Statement of Accused Ashwini Sharma (A-6), recorded under Section 313 CrPC. He did not give any explanation regarding how Opinion of GEQD/ Shimla, regarding his handwriting/ signatures was doubtful. He mentioned facts of this case while answering incriminating evidence, put to him. He claimed that he was innocent and that investigation was not done fairly by IO. He claimed that IO had manipulated, CBI Case No.189/2019 Page 402 of 591 CBI vs. B.M. Sethi & Ors.
destroyed, suppressed and fabricated documents in this matter.
180.26. Above-mentioned replies to incriminating evidence, were bald facts and claims. They were not based on any specific reasoning. They did not refer to any evidence, brought on record by prosecution or by co-accused persons. They were not based on any plausible inferences, based on appreciation of evidence on record. He did not explain as to how his handwriting/ signatures were found in documents, which pertained to different Members of Society in Question. In other words, he did not explain as to why he had signed / written on behalf of other Members of Society in Question. Absence of answers to said aspects did not make his replies probable and believable. So, said replies were vague in nature. They did not categorically explain in any reasonable and probable manner, as to how Accused Ashwini Sharma (A-6) was an innocent person, in this case.
180.27. Accused Ashwini Sharma (A-6) did not lead any evidence in support of his claims. Surprisingly, he confirmed, in his Statement under Section 313 CrPC that he wanted to lead defence evidence but did not lead any evidence, as a matter of fact. It did not help his cause.
Written Submissions of Accused Ashwani Sharma (A-6) 180.28. Accused Ashwini Sharma (A-6) filed written submissions, in support of his final arguments. In the said written submissions, he referred to the testimonies of PW43, PW49 & CBI Case No.189/2019 Page 403 of 591 CBI vs. B.M. Sethi & Ors.
PW52. After referring to the said testimonies, he claimed that their testimonies were not trustworthy and reliable. Said claims did not help his cause, as I have already appreciated the testimonies of said prosecution witnesses in detail, above. Based on said appreciation, I have already concluded that those testimonies were trustworthy and reliable. The arguments, raised by Accused Ashwini Sharma (A-6), with respect to falsity in the testimonies of said witnesses, were already appreciated by me, while appreciating the testimonies of aforesaid witnesses. Same needs no repetition. Therefore, said written submissions, did not help his cause.
180.29. So far as PW43 is concerned, I have already appreciated in detail, his testimony. Said appreciation is not repeated here for the sake of brevity. In the said appreciation, I have considered the written submissions of Accused Ashwini Sharma (A-6). Suffice it is to conclude that testimony of PW43, was trustworthy and reliable.
180.30. PW49 was the IO in this case. After referring to his testimony, certain facts were highlighted viz., that he did not receive any complaint from any Member of Society against Accused Ashwini Sharma (A-6); that he did not conduct any search at any place during investigation; that he had not sought police custody of any accused during investigation; that he could not tell the exact number of witnesses or accused whose specimen signatures were obtained by him in this case; that he had not seized any document from the office of RCS, office of Society and DDA CBI Case No.189/2019 Page 404 of 591 CBI vs. B.M. Sethi & Ors.
in this case; that he did not know any person with the name S.K. Auluck and that on compiling testimonies of PW49 & PW52, it was proved that PW52 was not a truthful witness. Further, their testimonies reflected that proceedings, recorded vide Ex.PW49/15 (colly) were done in contradictory manner. So, testimony of PW49 must be discarded.
180.31. Above-mentioned claims with regard to PW49 did not help the cause of Accused Ashwini Sharma (A-6). Firstly, in his testimony, PW49 had deposed that he had obtained all the documents, related to this case from Malkhana. He exhibited documents, in his examination-in-chief and when he was cross- examined by Accused Ashwini Sharma (A-6), no suggestion, contrary to said exhibited documents, was put specifically to him, for checking veracity of the documents, he identified in his examination-in-chief. Secondly, this case was not based on any complaint from any private person. This case was registered, pursuant to directions of Hon'ble High Court of Delhi. So, it has to be viewed in that perspective. Thirdly, if PW49 as IO, did not conduct any search of any place or did not seek police custody of any accused during investigation, then it did not make him a false witness as he was the IO in this case and he must have reasons, for doing investigation in said manner. Accused Ashwini Sharma (A-6) did not refer to any particular rule book or provision, based on which, PW49 should have searched the place or should have taken police custody of any accused during investigation, while cross- examining PW49. So, said manner in which, investigation was CBI Case No.189/2019 Page 405 of 591 CBI vs. B.M. Sethi & Ors.
done by PW49, did not make Accused Ashwini Sharma (A-6), an innocent person. Further, if PW49 did not remember the exact number of witnesses or accused persons, whose specimen signatures were obtained in this case, then, it can be attributed to the fact that PW49 might have forgotten the same with the lapse of time. His evidence was recorded in the year 2019 and charge-sheet in this case was filed in the year 2006. There was evident gap of more than 10 years and it was but natural that PW49 had forgotten the said details. It did not falsify his testimony.
180.32. This brings me to the testimony of PW52 - S.K. Auluck. In his testimony, he categorically deposed that he had gone to the office of CBI in February 2007 and specimen signatures of Accused Ashwini Sharma (A-6) were taken in his presence on Sheets from S-1 to S-102 bearing his signatured at point X on each page which was marked as Ex.PW49/15 (colly). He also identified his signatures on Specimen Sheets S-103 to S-132 at point X on each sheet, on which, specimen signatures of Accused Ashutosh Pant (A-7) were taken by CBI. Same were marked as Ex.PW49/16 (colly). He could not identify Accused Ashwini Sharma (A-6) or Accused Ashutosh Pant (A-7) in the Court.
180.33. Again, testimony of PW52 was recorded in 2025 and he participated in investigation, in above-mentioned manner, in 2007. There was evident gap of more than 15 years, between the two. It was but natural that he had forgotten the faces of Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7). It did not make CBI Case No.189/2019 Page 406 of 591 CBI vs. B.M. Sethi & Ors.
him a false witness.
180.34. Testimony of PW52 was challenged by Accused Ashwini Sharma (A-6), on the ground that he had deposed on one hand, that he had been a witness in 3-4 CBI cases but they did not pertain to taking/ giving specimen signatures of accused persons and on other hand, his testimony recorded in CBI Case No.99/2019 dated 01.04.2022, Ex.PW52/DX-1, which was put to him and which he admitted, noted that in his presence, signatures of Accused Ashwini Sharma (A-6) involved in said case were taken on certain sheets, which he had signed. As such, Ld. Counsel for Accused Ashwini Sharma (A-6) failed to put specific suggestion to the effect that testimony of PW52 was false, in the light of his testimony, recorded in Ex.PW52/DX-1. It was necessary as it would have given an opportunity to PW52, to explain, as to why, he had deposed in said manner, in the light of document Ex.PW52/DX-1. So, PW52 was not given opportunity to explain the said discrepancy. Coupled with the same, I find that even if, it is believed that PW52 had stated falsely, the fact that he had not deposed on behalf of CBI in previous cases, with respect to taking/ giving specimen signatures, then that fact, by itself, did not make his testimony false as he categorically identified his signatures on the Specimen Sheets, pertaining to Accused Ashwini Sharma (A-6) and Accused Ashutosh Pant (A-7). No doubtful fact with regard to due execution of Ex.PW49/15 (colly) and Ex.PW49/16 (colly) was brought on record by Accused Ashwini Sharma (A-6), through cross-examination of PW52. No suggestion was given to PW52, CBI Case No.189/2019 Page 407 of 591 CBI vs. B.M. Sethi & Ors.
based on the reason, as to why, he would support the case of CBI against Accused Ashwini Sharma (A-6).
180.35. So, on combined reading of testimonies of PW49 & PW52, it cannot be concluded that Accused Ashwini Sharma (A-6) was an innocent person and that said witnesses had deposed falsely against him for implicating him, with ulterior motives. The net result is that written submissions of Accused Ashwini Sharma (A-6), did not help his cause. Same stand discarded.
180.36. Ld. counsel for Accused Ashwani Sharma (A-6) argued that there was no direct evidence against Accused Ashwani Sharma (A-6), to the effect that said accused had signed the documents, as alleged by prosecution. Said argument is baseless as this case was based on circumstantial evidence and circumstances only indicate guilty of Accused Ashwani Sharma (A-6).
180.37. Ld. counsel for Accused Ashwani Sharma (A-6) further argued that PW53 was not a trustworthy witness as he did not remember the name of persons whose specimen signatures, were taken before him. He also argued that said witness could not identify Accused Ashwani Sharma (A-6) in his testimony. He also argued that testimony of PW52 was also not trustworthy and reliable. I have already appreciated the testimonies of said witnesses, in detail, in preceding paragraphs. Same needs no repetition. It is sufficient to conclude that above-mentioned witnesses were trustworthy and reliable and challenged posed by CBI Case No.189/2019 Page 408 of 591 CBI vs. B.M. Sethi & Ors.
Ld. Counsel for Accused Ashwani Sharma (A-6) had no merits. I discarded the same, accordingly.
180.38. In the wake of above-mentioned appreciation and conclusion, I found that Accused Ashwani Sharma (A-6) had prepared false proceedings of Society in Question, in his own handwriting. He also had forged signatures in the records of Society in Question. Said forgery was confirmed by the Opinion of GEQD/ Shimla. Said forgeries resulted in falsification of records of Society and said records were used for revival of Society in Question by co-accused persons. Therefore, Accused Ashwani Sharma (A-6) was part of criminal conspiracy, as alleged by prosecution. He did not explain, during trial, as to when exactly, he had become Member of Society in Question, as his Membership Application Form was undated, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that he became Member in the year 1986. The fact that his name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that he had become a Member in the year 1986, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1986 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand CBI Case No.189/2019 Page 409 of 591 CBI vs. B.M. Sethi & Ors.
Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Ashwani Sharma (A-6) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Ashutosh Pant (A-7)
181. Allegations against Accused Ashutosh Pant (A-7), as per charge-sheet, were that he had signed the Affidavit of Jasveer Singh; that he had signed the application for membership for Vijay and Jasveer Singh and that he had signed the Resignation Letter of Vijay. Said allegations were based on the Report of GEQD/ Shimla, which confirmed the said facts.
181.1. Accused Ashutosh Pant (A-7) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with CBI Case No.189/2019 Page 410 of 591 CBI vs. B.M. Sethi & Ors.
468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 468, 420 & 471 IPC.
181.2. Keeping in mind above-mentioned allegations and Charge, I am proceeding further with appreciation of evidence, brought on record by prosecution.
Appreciation of Prosecution Evidence viz-a-viz Accused Ashutosh Pant (A-7) 181.3. Accused Ashutosh Pant (A-7), as per record, was neither Member of Society in Question nor he was an official of the office of RCS. If that is so, then, as such, he had no concern with the Society and / or with the office of RCS. In the background of this fact, I am proceeding further with the appreciation of evidence, brought on record by prosecution, against him.
181.4. During investigation, CBI collected Correspondence File, maintained by the office of RCS Ex.PW45/4 (D-6). That file contained various documents, including the Affidavit of one Jasveer at page 288/C & 289/C. On second page of the said Affidavit, at page 288/C, it noted signatures of Jasveer Singh at point Q-362 & Q-363. That document was sent to GEQD/ Shimla and from the Report of GEQD/ Shimla Ex.PW43/2, said signatures were found to be done by Accused Ashutosh Pant (A-7) in his own writing, as per para 3 of said Report.
CBI Case No.189/2019 Page 411 of 591181.5. Further, Membership Application Form of one Vijay, was found at page 4291, in Ex.PW45/11 (D-10), which was Membership File, maintained in the office of Society in Question. That Form noted signatures of Vijay Q-603. Again, as per Report of GEQD/ Shimla Ex.PW43/2, at para 3, said signatures were done by Accused Ashutosh Pant (A-7) in his own writing and not by Vijay. Similarly, at page 4169 in Ex.PW45/11 (D-10), there was Membership Application Form of Jasveer Singh which noted signatures of Jasveer Singh at point Q-655. The Report of GEQD/ Shimla Ex.PW43/2 at para 3, noted that said signatures at point Q-655 were done by Accused Ashutosh Pant (A-7) in his own writing and same were not done by Jasveer Singh.
181.6. Further, CBI collected Resignation File of Society in Question, maintained by Society Ex.PW45/13 (D-12). In the said file, there was a Resignation Letter of Vijay at page 4609. That letter noted signature of Vijay at point Q-722. The Report of GEQD/ Shimla Ex.PW43/2 at para 3, noted that said signatures at point Q-722 were done by Accused Ashutosh Pant (A-7) in his own writing and same were not done by Vijay.
181.7. Above-mentioned documents, therefore, clearly indicated that Accused Ashutosh Pant (A-7) had put his signatures in place of concerned persons namely Jasveer Singh and Vijay, illegally. He should not have done so. If he had done so, as the Report of GEQD/ Shimla reflected, he should have explained as to why he had done so? He failed to answer said question, during trial.
CBI Case No.189/2019 Page 412 of 591181.8. The Resignation Letter of Vijay, noted signatures of Accused Maha Nand Sharma (A-4) at Q-723, at page 4609, which indicated that Accused Ashutosh Pant (A-7) had put said signatures and said fact was within the knowledge of Accused Maha Nand Sharma (A-4). That is why, Accused Maha Nand Sharma (A-4) had attested the signature of Accused Ashutosh Pant (A-7) at point Q-723. The signature of Accused Maha Nand Sharma (A-4) at point Q-723 was confirmed by the Report of GEQD/ Shimla Ex.PW43/2 at para 4. It indicated that there was only one possibility, which was existence of criminal conspiracy between Accused Maha Nand Sharma (A-4) and Accused Ashutosh Pant (A-7).
181.9. Further, I found that File Ex.PW45/13 (D-12) was seized by PW45- Jagroop Singh during preliminary inquiry, from Accused Vikas Madan (A-13), as per Receipt-cum-Production Memo Ex.PW45/5. So, said file, mentioning false signature of Accused Ashutosh Pant (A-7) was seized from the possession of Accused Vikas Madan (A-13). That fact indicated that Accused Ashutosh Pant (A-7) had put his signatures illegally in the documents, as mentioned above, which were within the knowledge of Accused Vikas Madan (A-13). As a reasonable prudent person, once, he had received the official record of Society in Question from Accused Maha Nand Sharma (A-4), he should have gone through the said record and should have confirmed the genuineness of said record from Accused Maha Nand Sharma (A-4) and / or from the persons, CBI Case No.189/2019 Page 413 of 591 CBI vs. B.M. Sethi & Ors.
who had signed those documents. If he had done so, then, above- mentioned illegalities indicated that he had conspired with Accused Ashutosh Pant (A-7) and Accused Maha Nand Sharma (A-4). If he had not done so, then, he had to blame himself for the same. His ignorance and casual attitude in receiving the said record, did not absolve him from this case, as falsity in the said record, loomed large, in this case.
181.10. As per record, specimen signatures of Accused Ashutosh Pant (A-7) were taken by CBI in Sheets from points S-103 to S-132, which were exhibited as Ex.PW49/16 (colly) and same were sent to the office of GEQD/ Shimla. The said signatures were taken in the presence of PW52, whose testimony, I have already appreciated and have found to be trustworthy, in my preceding paragraphs. Further, Accused Ashutosh Pant (A-7) did not cross- examine PW49, who was the IO in this case with regard to the circumstances in which, he had obtained signature of Accused Ashutosh Pant (A-7) in Ex.PW49/16. As such, Accused Ashutosh Pant (A-7) did not dispute the fact that his signatures were taken by the IO in a proper, correct and reasonable manner. So, there was no doubt with regard to proper collection of said specimen signatures.
181.11. The very fact that his signatures appeared on documents, as appreciated by me above, indicated that he was part & parcel of criminal conspiracy with co-accused persons, for the purpose of revival of Society in Question, in an illegal manner. Otherwise, CBI Case No.189/2019 Page 414 of 591 CBI vs. B.M. Sethi & Ors.
why would he put his signatures on the documents, used by Society in Question, while communicating with the office of RCS, for the purpose of revival of Society in Question. The said documents, in which, he had put his signatures, made those documents false documents. The said documents were used by him and other accused persons, while communicating with the office of RCS. The office of RCS, believed the said documents to be true and based on said impression, proceeded further with the revival proceedings of Society and finally, Society was revived. The office of RCS would not have done so, but for the inducement, caused by accused persons, including Accused Ashutosh Pant (A-7), in making the above-mentioned false documents. So, office of RCS was cheated. The above-mentioned documents were used by accused persons, dishonestly by projecting said false documents as genuine documents, for the purpose of revival of Society and for the purpose of allotment of land at subsidized rate from DDA. Therefore, Accused Ashutosh Pant (A-7) committed the offecences, punishable under Section 468/420/471 IPC. He had not done the said offences alone, rather, they were done, in conspiracy with Accused Maha Nand Sharma (A-4) and Accused Vikas Madan (A-13). So, he committed the offences with which he was charged.
Appreciation of Statement of Accused Ashutosh Pant (A-7), recorded under Section 313 CrPC 181.12. So far as his Statement under Section 313 CrPC was concerned, I found that Accused Ashutosh Pant (A-7) had denied CBI Case No.189/2019 Page 415 of 591 CBI vs. B.M. Sethi & Ors.
the veracity of prosecution witnesses. Said denial was not based on any plausible or valid reason. I have already appreciated the testimonies of prosecution witnesses, in detail and have come to the conclusion that they were trustworthy and reliable witnesses. Said appreciation needs no repetition. Coupled with the same, Accused Ashutosh Pant (A-7) claimed that he was an innocent person and IO had manipulated, destroyed, suppressed and fabricated documents. Therefore, IO had not done fair investigation. Those claims were not supported by any reasoning. He did not explain, as to how, he was prejudiced by said faulty investigation, if his claim of faulty investigation is to be believed to be true. He failed to give any plausible explanation, contrary to the conclusions, drawn above, by me, based on appreciation of prosecution evidence. So, his statement under Section 313 CrPC did not help his cause. I discarded it accordingly.
181.13. Accused Ashutosh Pant (A-7), in his statement under Section 313 CrPC, showed his willingness to lead defence evidence, but he did not lead any evidence, in his defence, for reasons, best known to him, despite availing opportunity. So, absence of defence evidence by him did not make his version probable and believable.
Written submissions of Accused Ashutosh Pant (A-7) 181.14. Accused Ashutosh Pant (A-7) filed written submissions, in support of his final arguments. In the said written submissions, CBI Case No.189/2019 Page 416 of 591 CBI vs. B.M. Sethi & Ors.
he referred to the testimonies of PW43, PW49 & PW52. After referring to the said testimonies, he claimed that their testimonies were not trustworthy and reliable. Said claims did not help his cause, as I have already appreciated the testimonies of said prosecution witnesses in detail, above. Based on said appreciation, I have already concluded that those testimonies were trustworthy and reliable. The arguments, raised by Accused Ashutosh Pant (A-7), with respect to falsity in the testimonies of said witnesses, were already appreciated by me, while appreciating the testimonies of aforesaid witnesses. Same needs no repetition. Therefore, said written submissions, did not help his cause.
181.15. Further, Accused Ashutosh Pant (A-7), in the said written submissions, has raised same grounds for getting relief of acquittal, as were raised by Accused Ashwini Sharma (A-6). Here, I must mention that Ld. Counsel for Accused Ashutosh Pant (A-7) and Accused Ashwini Sharma (A-6) was same. Since, written submissions of Accused Ashutosh Pant (A-7) were similar to that of Accused Ashwini Sharma (A-6) and since, I have already appreciated and discarded the submissions of Accused Ashwini Sharma (A-6), so, based on same reasoning, written submissions of Accused Ashutosh Pant (A-7) also stand discarded. The reasoning for discarding written submissions of Accused Ashwini Sharma (A-6) be read as the reasoning for discarding written submissions of Accused Ashutosh Pant (A-7). Said reasoning and conclusions are not repeated here for the sake of brevity.
CBI Case No.189/2019 Page 417 of 591181.16. Ld. counsel for Accused Ashutosh Pant (A-7) argued that there was no direct evidence against Accused Ashutosh Pant (A-7), to the effect that said accused had signed the documents, as alleged by prosecution. Said argument is baseless as this case was based on circumstantial evidence and circumstances only indicate guilty of Accused Ashutosh Pant (A-7).
181.17. Ld. counsel for Accused Ashutosh Pant (A-7) further argued that PW53 was not a trustworthy witness as he did not remember the name of persons whose specimen signatures, were taken before him. He also argued that said witness could not identify Accused Ashutosh Pant (A-7) in his testimony. He also argued that testimony of PW52 was also not trustworthy and reliable. I have already appreciated the testimonies of said witnesses, in detail, in preceding paragraphs. Same needs no repetition. It is sufficient to conclude that above-mentioned witnesses were trustworthy and reliable and challenged posed by Ld. Counsel for Accused Ashutosh Pant (A-7) had no merits. I discarded the same, accordingly.
181.18. In the wake of above-mentioned appreciation and conclusion, I found that Accused Ashutosh Pant (A-7) had prepared false proceedings of Society in Question, in his own handwriting. He also had forged signatures in the records of Society in Question. Said forgery was confirmed by the Opinion of GEQD/ Shimla. Said forgeries resulted in falsification of records of Society and said records were used for revival of Society in Question by co-
CBI Case No.189/2019 Page 418 of 591accused persons. Therefore, Accused Ashutosh Pant (A-7) was part of criminal conspiracy, as alleged by prosecution, as he had forged records of Society in Question. Said record was used by co- Accused Maha Nand Sharma (A-4) and other accused persons for the purpose of revival of Society in Question. Said criminal conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Sudershan Tandon (A-8)
182. Allegations against Accused Sudershan Tandon (A-8) as per charge-sheet were, that he was one of the Promoter Member of Society in Question, who was instrumental in getting the Society, registered back in the year 1983. It was Accused Sudershan Tandon (A-8) who had filed application with the office of RCS for getting Society registered. He communicated with the office of RCS, on behalf of Society and furnished various documents to the office of RCS. Later on, he handed over the records of Society to Accused Maha Nand Sharma (A-4). Accused Sudershan Tandon (A-8) did acts, in conspiracy with, co-accused persons for the purpose of revival of Society in Question by forging records and by hiding truth.
CBI Case No.189/2019 Page 419 of 591182.1. Accused Sudershan Tandon (A-8) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 468, 420 & 471 IPC.
182.2. In the light of above-mentioned facts and allegations against Accused Sudershan Tandon (A-8), I am now appreciating prosecution evidence, for the purpose of deciding the fate of charges, levelled against him, in my subsequent paragraphs.
Appreciation of Prosecution Evidence viz-a-viz Accused Sudershan Tandon (A-8) 182.3. To start with, Accused Sudershan Tandon (A-8) was initial Member of Society in Question. His name was mentioned at S.No.7 in Membership Register Ex.PW45/8 (D-7). He was elected as Secretary of Society, vide first General Meeting of Promoter Members of Society, dated 29.09.1983. That Meeting was attended by 80 Members of Society. As Secretary of Society in Question, he was the Custodian of the records. The bylaws of Society in Question, which started from page 95/C and continued till page 89/C, noted signatures of Accused Sudershan Tandon (A-8) at points Q-61 to Q-73. Said bylaws were part of Correspondence File Ex.PW45/3 (D-5) and that file was maintained in the office of RCS. In Rule 25 Sub Rule 29 of the said bylaws, it was mentioned that Committee of the Society shall appoint a Custodian of CBI Case No.189/2019 Page 420 of 591 CBI vs. B.M. Sethi & Ors.
property of Society. Now, record of Society Ex.PW45/14 (D-13), at page 24 noted signature of Accused Sudershan Tandon (A-8) at point Q-798 above the heading 'Custodian of Records'. Similarly, his signature was found at page 14 under the similar heading at point Q-793. Signature of Accused Sudershan Tandon (A-8) at above-mentioned points, were confirmed by the Supplementary Opinion of GEQD/ Shimla Ex.PW43/5 & Ex.PW43/6 at para 2. So, in view of him being Custodian of record of Society, Accused Sudershan Tandon (A-8), had responsibility to maintain true & correct record of Society, bereft of any manipulations. Question arises, whether he was successful in maintaining said record truly and correctly?
182.4. The Membership Register Ex.PW45/8 (D-7) noted name of Accused Sudershan Tandon (A-8) at S.No.7. Against his name, his signature at Q-439, was confirmed by Supplementary Opinion of GEQD/ Shimla Ex.PW43/5 & Ex.PW43/6 at para 2. Said Register maintained record of Members of Society in Question. It had various columns with the headings including the headings viz., Residence of the Members; Name of Nominee with Father's Name; Age; Occupation; Thumb Impression; Date of Termination and Remarks. Those columns were not completely filled. It made the said record incomplete. The said incompleteness of record was never explained by Accused Sudershan Tandon (A-8), during trial. The only conclusion, which one can draw, based on appreciation of said record, was that it was incomplete, as names of Members were filled in an illegal manner and that names of said Members were CBI Case No.189/2019 Page 421 of 591 CBI vs. B.M. Sethi & Ors.
filled, simply to complete procedural formalities, without appreciating its significance. Same was done with ulterior motives. Apart from that, no other possibility was seen by me in the preparation and maintenance of said record.
182.5. Further, the Proceedings Register for the period 29.09.1983 to 05.06.1999 Ex.PW45/9 (D-8) noted details of various meetings of Management Body of Society in Question. One of the said meeting dated 08.08.1985 noted that it was attended by eight Execution Members of Society which included I.J. Kalucha, D.N. Gandhi and Ratish Maurya. Now, said persons were examined as PW1, PW2 & PW5 respectively by prosecution. Said witnesses deposed that they had signed in the record of said meeting at points X5, Y3 & B-19, respectively. Said witnesses also deposed that they had not attended said meeting and had signed the same afterwards in the office of Society. They had also deposed that Minutes were not prepared, in their presence. Said deposition was not limited to meeting dated 08.08.1985. Said witnesses had identified their signatures on various meetings, besides meeting dated 08.08.1985 and denied that they had attended said meetings. So, Accused Sudershan Tandon (A-8) who had the responsibility to maintain said record as Custodian, had falsely created said record by showing that above-mentioned witnesses had attended the meetings of Society, in ordinary course of business.
182.6. Besides that PW8 K. Manoj Subudhi and PW16 Vijay Sharma had deposed, in their testimonies, that they had never CBI Case No.189/2019 Page 422 of 591 CBI vs. B.M. Sethi & Ors.
become Members of Society in Question. If that is so, then, names of said Members as Members of Society in meeting dated 12.09.1985 was falsely shown. Accused Sudershan Tandon (A-8) being Custodian of said record, had falsely maintained the said record. He did not explain as to why, names of said Members were shown in the meeting dated 12.09.1985, when they were not Members of Society in Question.
182.7. Similarly, in meeting dated 05.12.1986 which noted name and signature of Accused Sudershan Tandon (A-8), mentioned name of Ram Niwas as Member of Society in Question but said Ram Niwas, when examined as PW10, deposed that he had never become Member of Society in Question. On the said footing was, Jagbir Singh, who was examined as PW15 by prosecution. So, said Ram Niwas and Jagbir Singh were falsely shown as Members of Society in meeting dated 05.12.1986. Accused Sudershan Tandon (A-8) being Custodian of record had the responsibility to explain the same. He failed to do so, during trial.
182.8. To make things worse for Accused Sudershan Tandon (A-8), I found that Proceedings Register Ex.PW45/9 for the period from 29.09.1983 to 05.06.1999 (D-8) noted handwriting of Accused Ashwini Sharma (A-6). The Opinion of GEQD/ Shimla Ex.PW43/2 in para 2 noted that Accused Ashwini Sharma (A-6) had written details at points Q-483, Q-484, Q-490,Q-491, Q-494, Q-495, Q-496, Q-499, Q-500, Q-501, Q-504, Q-505, Q-506, CBI Case No.189/2019 Page 423 of 591 CBI vs. B.M. Sethi & Ors.
Q-509, Q-510, Q-511, Q-514, Q-515, Q-516, Q-519, Q-520, Q-521, Q-524 to Q-531, Q-533 to Q-536 and Q-565. Same was confirmed by the Opinion of GEQD/ Shimla Ex.PW43/2, at para 2. The said Register noted details of meetings of Society dated 20.04.1989, 25.08.1989 and 11.04.1990. Those meetings did not mention the complete number of Members who had attended said meetings. If Accused Ashwini Sharma (A-6) had written the Minutes of said meetings, then how was it, that details of Members, who had attended said meetings, were absent. It made the said record of meetings, a false record. Further, at page 75 of said Register, I found that details of date of meeting and Members who had attended said meeting, were absent. I have already appreciated falsity in the preparation of record of Special GBM dated 27.01.1999, prepared by Accused Karamvir Singh (A-2), while appreciating the evidence against Accused Karamvir Singh (A-2), which was also part of said Register Ex.PW45/9. Same needs no repetition. So, said incompleteness and falsity of record only indicated that Accused Sudershan Tandon (A-8), in conspiracy with other accused persons including Accused Ashwini Sharma (A-6), Accused Maha Nand Sharma (A-4), Accused Karamvir Singh (A-2) and Accused Narender Kumar (A-3) had prepared the said false record, for the purpose of revival of Society in Question, in an illegal manner, for getting land allotted in favour of Society through DDA. It was because of said conspiracy only that Accused Karamvir Singh (A-2) and Accused Narender Kumar (A-3), who were both officials of RCS, turned blind eye towards the blank CBI Case No.189/2019 Page 424 of 591 CBI vs. B.M. Sethi & Ors.
unaccounted spaces in meeting records of Society, in said Proceedings Register Ex.PW45/9.
182.9. Above-mentioned record was, therefore, not maintained properly by Accused Sudershan Tandon (A-8). There were manipulations in the record which were never explained by him during trial. It reflected his guilty mind and intentional malafide. Otherwise, why would he maintain such manipulated record, in the capacity of being Custodian of the records of Society in Question. His association with Accused Maha Nand Sharma (A-4) and other accused persons, who were Members of Society in Question, was evident as per the said records, which mentioned their names. So, he was part & parcel of criminal conspiracy, for the purpose of creation of said false & fabricated record, which was later on used for the revival of Society in Question.
182.10. The prosecution evidence, therefore, only suggested his active involvement in criminal conspiracy in question.
Appreciation of Statement of Accused Sudershan Tandon (A-8), recorded under Section 313 CrPC 182.11. Accused Sudershan Tandon (A-8) had the opportunity to explain the incriminating evidence, when his Statement under Section 313 CrPC was recorded. His said statement again was bereft of any explanation and details regarding manipulations in the records of Society, as highlighted above. He simply claimed that this case was false; that prosecution witnesses were interested CBI Case No.189/2019 Page 425 of 591 CBI vs. B.M. Sethi & Ors.
witnesses and he was falsely implicated in this case. He failed to answer the questions viz., Why this case was false? Why prosecution witnesses were interested witnesses to depose against him? Why he was falsely implicated in this case? Absence of answers to said questions, made his said statement, a mere formality on his part, which he performed, while answering incriminating evidence, which was put to him. He did not fathom the seriousness of the allegations and the nature of the case, raised by prosecution, against him. Therefore, his said statement, did not help his cause. I discarded it accordingly.
182.12. Accused Sudershan Tandon (A-8) did not lead any defence evidence. Since, facts were within his personal knowledge, so, he should have examined himself under Section 315 CrPC. He failed to do so. As such, he failed to raise any defence, whatsoever in his favour. This also did not help his cause.
Written Submissions of Accused Sudershan Tandon (A-8) 182.13. At the stage of final arguments, Accused Sudershan Tandon (A-8) filed written submissions, highlighting the arguments, he wanted to raise for getting acquitted in this case. They are appreciated by me in my subsequent paragraphs.
182.14. Accused Sudershan Tandon (A-8), first, claimed that he was a victim of flawed investigation. He did not explain as to how the investigation was flawed and in what manner, he was a victim. As such, he did not file any counter-case against CBI, if he found CBI Case No.189/2019 Page 426 of 591 CBI vs. B.M. Sethi & Ors.
himself to be a victim, at the hands of CBI, which as per him, had implicated him, falsely. So, said claim stands discarded being too general in nature.
182.15. The next argument was that he with other like minded and respectable individuals, had formed Society in Question in 1983, with bonafide intention of acquiring residential plots to be allotted for their families and therefore, became a Founder Member. So, he categorically admitted that he had become Promoter Member of Society in Question, so that he could get residential plot through said Society. That admission, on his part, was the ultimate aim of criminal conspiracy, which was involved in this case. Coupled with the same, the aspect of him having "bonafide intention" of acquiring residential plots, was something which he should have brought on record, through cross- examination of prosecution witnesses or by leading evidence. I have already concluded in my preceding paragraphs that his acts were based on malafide, as he failed to explain the manipulations in the record, during his tenure. The fact that records of Society, which had manipulations and which were in his custody, were used by Accused Karamvir Singh (A-2), Accused Maha Nand Sharma (A-4), Accused Vikas Madan (A-13), Accused Narinder Dhir (A-15) and other accused persons for the purpose of revival of Society in Question, indicated that he was part of criminal conspiracy with other co-accused persons. There was nothing which could have separated him from the acts of other accused persons, as record, prepared during his tenure was used for revival CBI Case No.189/2019 Page 427 of 591 CBI vs. B.M. Sethi & Ors.
of Society in Question. So, above claim stands discarded.
182.16. Accused Sudershan Tandon (A-8), next, claimed that Society became inactive in the year 1985 and became completely defunct in 1988. Further, he claimed that he was one of the authorized signatories who had opened bank account No.137 for Society in Delhi State Cooperative Bank Limited, South Extension, New Delhi, on 20.05.1984. He referred to the contents of charge- sheet, wherein, it was mentioned that said bank account had become non-functional like the Society; that it was never used for any of the fraudulent activities and that said account was still active but was not operated since 01.09.1997. The said facts did not help the cause of Accused Sudershan Tandon (A-8). Reason being, that once, said Society had become defunct in 1988, question arises, as to why said bank account was not closed by Society, till 01.09.1997 and afterwards. The very fact that said bank account remained in open state till 01.09.1997, indicated that it remained so, for some reason. If Accused Sudershan Tandon (A-8) was bonafide Member and Secretary of Society in Question, then he should have made efforts to get the said account closed. He did not do so and therefore, opening of said bank account by him being one of the authorized signatories, amongst others, by itself did not absolve him from this case. Even otherwise, he failed to explain, as to what bonafide transactions took place, through said bank account with respect to the affairs of Society. The very fact that said bank account was never used by Society, indicated that it was not opened bonafidely for doing transactions for Society, rather, it was opened CBI Case No.189/2019 Page 428 of 591 CBI vs. B.M. Sethi & Ors.
with ulterior motive. That was the only conclusion, one can draw, in the given facts & circumstances of this case. Therefore, above- mentioned claims stand discarded.
182.17. Accused Sudershan Tandon (A-8), next, made certain submissions, which directly supported prosecution version, regarding existence of criminal conspiracy and forgery in the records of society. Said written submissions are mentioned in verbatim below :-
The following pages from page no.38 till page no.56 have genuine signature of the Office Bearers including the Applicant/ Accused, but all the contents including minutes of the meetings, written below in these pages are forged and fabricated and hence completely denied. The pages after Page No.56 are completely forged, backdated and fabricated with both signatures and the content written in these pages are also completely forged and fabricated. Another Proceeding of Register filed by the prosecution as Document D-9 (Exhibit PW45/7) is completely forged and fabricated. ......The core of the criminal acts alleged by the prosecution, the fraudulent revival of the defunct Safdarjung Cooperative Group Housing Society Ltd., the fabrication of records, inducting fresh memebers, the holding of bogus meetings and securing land allotment from the DDA, all transpired more than almost a decade later. These acts were orchestrated by an entirely different set of fraudulent office bearers and members in connivance with the concerned government officials including The Registrar of the Co-operative Societies, with whom the Applicant/ Accused had no connection of any nature whatsoever".
182.18. Accused Sudershan Tandon (A-8), next, claimed that office of Society initially started functioning from the address viz., C-21/1, SDA Shopping Complex, Opposite IIT Delhi, New Delhi and after one year, it was shifted to C-20/2, SDA Shopping CBI Case No.189/2019 Page 429 of 591 CBI vs. B.M. Sethi & Ors.
Complex, Opposite IIT Delhi, New Delhi, through a Resolution dated 09.01.1984 which was mentioned on page 9 of Proceedings Register of Society Ex.PW45/9 (D-8). Further, said change in address of office of Society, was duly informed to the Registrar of Cooperative Societies and subsequent meetings of Society took place at said changed address. As such, he wanted to claim that said change in address of office of Society, was done properly, as per rules/ law. The said claims, again, had no merits. Reasons being, firstly, that Ratish Maurya, who was examined as PW5 by prosecution and who was shown as Member of Society, who had attended meeting dated 09.01.1984, categorically deposed in his testimony, that he was not aware about the fact that his mother's office address i.e. C-20/2, SDA Shopping Complex, Opposite IIT Delhi, New Delhi, was shown as address of Society in the Letter Head of Society, when he was put letters, mentioning said address of Society viz., Ex.PW5/C to Ex.PW5/E. Infact, PW5 deposed that he had come to know about the said fact on that day (i.e. on the day, when he deposed in the Court). So, said witness did not know about the change of address of Society, as was claimed by Accused Sudershan Tandon (A-8). Coupled with the same, Accused Sudershan Tandon (A-8) did not refer to any letter or communication, which Society had sent to the office of RCS, informing change in the address of Society, as claimed by him. The Noting File of the office of RCS Ex.PW45/2 (D-4), did not contain any noting / record pertaining to Resolution dated 09.01.1984, based on change of address of Society. Infact, first page of said CBI Case No.189/2019 Page 430 of 591 CBI vs. B.M. Sethi & Ors.
Noting File of RCS, started with page no.3. The first two pages of said file were missing and for covering up the said manipulation, pagination of the said file was done by using the expression "1/N". It indicated that it was done by the concerned official of RCS, in conspiracy with other co-accused persons in this case. That was the only conclusion, one can draw in the given facts & circumstances of the case.
182.19. The next argument, raised by Accused Sudershan Tandon (A-8), was that PW49 Rajiv Wahi had deposed that Accused Sudershan Tandon (A-8) had played no role in the revival of Society. That argument did not help him. Reason was, firstly, that said deposition by PW49 Rajiv Wahi is not binding on this Court. Said deposition was not gospel truth. Said deposition, cannot be seen, in isolation to the other records and evidence of this case. Secondly, it was not Accused Sudershan Tandon (A-8), rather, it was Accused Maha Nand Sharma (A-4) who had approached the office of RCS, for the purpose of revival of Society in Question. So, Accused Sudershan Tandon (A-8) was involved in revival of Society in Question as records of Society in Question over which, he was Custodian, were obtained by Accused Maha Nand Sharma (A-4) and said accused Accused Maha Nand Sharma (A-4) had approached the office of RCS with said record for revival of Society in Question. If version of Accused Sudershan Tandon (A-8), that Members of Society had lost complete interest, was to be believed, then why said Society was revived? That was the million dollar question, which Accused Sudershan Tandon CBI Case No.189/2019 Page 431 of 591 CBI vs. B.M. Sethi & Ors.
(A-8) and other accused persons had to answer. They failed to do so, during trial. So, above-mentioned claims stand discarded.
182.20. Accused Sudershan Tandon (A-8), next, claimed that prosecution was silent regarding the transferring of documents as charge-sheet only stated that records of Society which were in the possession of Accused Sudershan Tandon (A-8), came in possession of Accused Maha Nand Sharma (A-4) fraudulently. That claim had no merits. Reason being, as per record, Accused Sudershan Tandon (A-8) was the Promoter Member and Secretary of Society in Question. Record Ex.PW45/14 (D-13) revealed that he was the Custodian of records of Society. Further, as per Handing Over Receipt which was part of Ex.PW45/15 (D-54), record of Society in Question was received by Accused Vikas Madan (A-13) from Accused Maha Nand Sharma (A-4). Now, in such situation, it was clear that record of Society in Question from Accused Sudershan Tandon (A-8) in the capacity of being Custodian of records of Society, was received by Accused Vikas Madan (A-13) through Accused Maha Nand Sharma (A-4). That was the only inference, one can draw, from the appreciation of above-mentioned evidence. That inference, did not help the cause of Accused Sudershan Tandon (A-8).
182.21. Accused Sudershan Tandon (A-8), next, claimed that prosecution was silent as to when he came in contact with Accused Maha Nand Sharma (A-4) and when Accused Maha Nand Sharma (A-4) was allowed to get hold of records of Society. He further CBI Case No.189/2019 Page 432 of 591 CBI vs. B.M. Sethi & Ors.
claimed that there was no evidence which could prove that he knew Accused Maha Nand Sharma (A-4) or had met Accused Maha Nand Sharma (A-4) at any point of time. So, there was absence of conspiracy between him and Accused Maha Nand Sharma (A-4). That claim had no merits. Reason being, as per record, Accused Sudershan Tandon (A-8) was the Promoter Member and Secretary of Society in Question. Record Ex.PW45/14 (D-13) revealed that he was the Custodian of records of Society. Further, as per Handing Over Receipt which was part of Ex.PW45/15 (D-54), record of Society in Question was received by Accused Vikas Madan (A-13) from Accused Maha Nand Sharma (A-4). Now, in such situation, it was clear that record of Society in Question was transferred, from Accused Sudershan Tandon (A-8) in the capacity of being Custodian of records of Society and same was received by Accused Vikas Madan (A-13) through Accused Maha Nand Sharma (A-4). That was the only inference, one can draw, from the appreciation of above-mentioned evidence. That inference, did not help the cause of Accused Sudershan Tandon (A-8). Coupled with the same, in my preceding paragraphs, I have already appreciated and have found that in the Membership Register Ex.PW45/8 and Proceedings Register Ex.PW45/9, there were manipulations, during the tenure of Accused Sudershan Tandon (A-8). Being Custodian of the records of Society, he had the responsibility for explaining reasons of said manipulations. He did not give any such explanation. That non-explanantion, coupled with other facts which I have already appreciated while appreciating role of each accused persons, CBI Case No.189/2019 Page 433 of 591 CBI vs. B.M. Sethi & Ors.
indicated that Accused Sudershan Tandon (A-8) was not involved individually. The written submissions which he has filed in this case, as highlighted above also, impliedly indicated his involvement in criminal conspiracy, involved in this case. The testimonies of PW1, PW2 & PW5, to the effect that Accused Sudershan Tandon (A-8) used to obtain their signatures on blank papers, only indicated that Accused Sudershan Tandon (A-8) did not perform his duty bonafidely, rather, had ulterior motives, in preparing record of meetings of Society. Said ulterior motives, only matched with the motives of co-accused persons, for revival of Society in Question, based on false & forged documents. So, Accused Sudershan Tandon (A-8) was involved in criminal conspiracy with co-accused persons in this case. Above-mentioned claims, therefore, had no merits and same stand discarded.
182.22. Accused Sudershan Tandon (A-8), next, claimed in his written submissions that there was lack of evidence for criminal conspiracy and mensrea. While explaining the same, he stated certain facts. Same are mentioned in verbatim below as it would help in better understanding of his version :-
3. Actual location of records established by prosecution witnesses: The prosecution's theory is further dismantled by combining the testimonies of its own witnesses. PW-40 Sh.
Kishore Kumar Khanna, the Chartered Accountant, testified that the Applicant/Accused produced the society's records for audit. However, PW-40 also stated he conducted the audit at the society's office in Safdarjung but could not recollect the complete address. The location of the office and the records was unequivocally established by the society's founding Treasurer, PW-5 Sh. Ratesh Maurya, who testified and thereby confirmed that the registered office was changed to CBI Case No.189/2019 Page 434 of 591 CBI vs. B.M. Sethi & Ors.
C-20/2, SDA Development area, which was his mother's place, thereby making that place and the person concerned, the natural custodian of the society's initial records. II. Absolute lack of evidence for criminal conspiracy and mens rea
1. The charge of conspiracy under Section 120-B IPC requires a meeting of minds and a clear agreement to commit an illegal act. The prosecution has failed to produce any evidence of such a meeting of minds between the Applicant/Accused and the other accused persons, who have committed a housing society scam in connivance with the concerned government officials. It has also come to my knowledge now that some of the accused persons are also accused in several other similar cases of housing society scam and are facing trials. This is a matter of public records and the same can be verified.
2. No connection of any nature, direct or indirect, to prove the conspiracy: Not a single prosecution witness or document has established any link, personal, pecuniary benefit, ог otherwise, between the Applicant/Accused and the other accused persons at any point of time. The fraud as alleged was conceived and executed a decade after the Applicant/Accused had moved on from the affairs of the aforesaid defunct society.
3. Act of 1983 to form and run a genuine society, which subsequently became defunct in 1988, cannot imply conspiracy for a fraud in 1999 as alleged: The prosecution has relied on the testimony of witnesses like PW-1 Inderjeet Kalucha, PW-2 Dayanand Gandhi, PW-5 Ratish Maurya, and others who stated that the Applicant/Accused would obtain their signatures on minutes of meetings, and would also do blank signatures. The prosecution witnesses have also accepted the fact that genuine regular meetings were held in the formative years and the same have duly been recorded in the proceedings register of the society which is filed by the prosecution as document D-8 (Exhibit PW 45/9). This document itself shows that genuine meetings were held and also the office bearers have signed on the minutes of the meeting. But on some of the blank pages on proceedings register, the office bearers had signed out of their free will. These blank pages now contain forged, fabricated and manipulated minutes of the meeting which is fraudently CBI Case No.189/2019 Page 435 of 591 CBI vs. B.M. Sethi & Ors.
added by the other accused persons with fraudulent intention for their illegal motives and benefits which are completely unknown to the Accused/Applicant and the Accused/Applicant had no role or motive, direct or indirect, whatsoever in this fabrication, manipulation, forgery and all the illegal acts that have transpired after almost a decade.
4. The above-mentioned prosecution witnesses were highly educated and discerning individuals (PW-1 holds a Diploma in Administrative Law, PW-2 was a government employee, PW-4 holds an M.A. in Geography: and PW-5 holds a B.Tech in Power Engineering). They were not gullible individuals who could be easily misled. They had signed on blank pages out of free will.
5. Their willingness to sign the registers, a fact they admitted to, was a reflection of their own disinterest in the society's affairs after it became clear that no land was being allotted at that time. This practice does not constitute a criminal act by the Applicant/Accused at any point of time. To connect these procedural regularities of a defunct society to a complex criminal fraud planned and executed by the other accused persons as alleged in connivance with the concerned government officials, a decade later is a stretch of imagination that cannot substitute for legal proof to show any sort of involvement of the Applicant/Accused.
6. The chargesheet alleges that the Applicant/Accused accepted forged resignation letters. However, all the concerned witnesses (PW-1 Kalucha, PW-4 Satish Maurya, PW-5 Ratish Maurya, PW-6 Raj Kumar) denied having resigned. Crucially, the prosecution has failed to prove when these resignations were supposedly accepted by the Applicant/Accused. There is no evidence to show that the Applicant/ Accused was part of the scheme to illegally replace original founder members with bogus ones or any of the aforementioned fraudulent criminal activities, as alleged by the prosecution that have transpired a decade later with the Applicant/ Accused having no knowledge whatsoever.
10. .......The prosecution's surmise is that as the founder Secretary, the Applicant/Accused was the custodian of records, and the fact that these records were later forged and misused implies his complicity. However, this argument collapses under legal scrutiny. At the very highest, the prosecution's case suggests that the Applicant/Accused, as the CBI Case No.189/2019 Page 436 of 591 CBI vs. B.M. Sethi & Ors.
erstwhile Secretary of a society that became defunct a decade earlier, could be accused of carelessness in the handling of initial records, an allegation which is also vehemently denied. It is repeated that the records were in the changed address of the society i.e C-20/2, SDA Shopping Complex, opposite IIT Delhi, New Delhi which belonged to the mother of PW5 Ratish Maurya and not with the Applicant/Accused........
12.........A completely fraudulent conspiracy was hatched nearly a decade later by an entirely different set of members in connivance with the concerned government officials who have been made a accused in this case.........
182.23. Above-mentioned written submissions clearly indicated that Accused Sudershan Tandon (A-8) wanted to convey following facts :-
a) that there were blank pages in Proceedings
Register Ex.PW45/9;
b) that those blank pages now contained forged,
fabricated and manipulated Minutes of Meetings, fraudulently added by other accused persons;
c) that benefits other accused persons had obtained by doing said manipulation/ forgery/ fabrication of records was not known to Accused Sudershan Tandon (A-8);
d) that said fabrication/ manipulation/ forgery of records and all the illegal acts had transpired after almost a decade;
e) that Accused Sudershan Tandon (A-8) had
carelessly handled the initial records;
CBI Case No.189/2019 Page 437 of 591
CBI vs. B.M. Sethi & Ors.
f) that complete fraudulent conspiracy was hatched
nearly a decade later by an entirely different set of members, in connivance with the concerned government officials, who are made accused in this case;
182.24. Above-mentioned facts were, therefore, admitted by Accused Sudershan Tandon (A-8). Such admission indicated that this case involved criminal conspiracy between accused persons other than Accused Sudershan Tandon (A-8) and government officials. Now, Accused Sudershan Tandon (A-8) did not explain the details of said criminal conspiracy, which he had alleged in his written submissions. He did not give details of roles of accused persons who were involved in the said criminal conspiracy. He did not explain, as to how, he had come to know that criminal conspiracy had hatched after a decade between other accused persons. So, on one hand, he admitted that other accused persons were involved in this case for the purpose of manipulation/ forgery/ fabrication of records of Society and on other hand, he did not give details of the said claims. If he was so bonafide, he should have given details of said aspects, during trial. He did not do so. He just fell short of disclosing complete details of criminal conspiracy, involved in this case. His conduct clearly indicated that he knew about criminal conspiracy involved in this case but did not inform CBI or the Court, at any point of time. By claiming in above- mentioned manner, he cannot simply shift the burden of criminal conspiracy on other accused persons. His above-mentioned written submissions clearly indicated that with ulterior motives, he had not CBI Case No.189/2019 Page 438 of 591 CBI vs. B.M. Sethi & Ors.
disclosed the details of criminal conspiracy, involved in this case. His said conduct did not absolve him from this case, rather, it strengthened the case of prosecution only. In other words, based on said written submissions, theory of innocence of accused persons, becomes completely nil.
182.25. Above-mentioned written submissions also indicated that Accused Sudershan Tandon (A-8) observed that by maintaining record of Membership Register and Proceedings Register, in the manner, as I have appreciated above, he had done no criminal act. As per him, his conduct reflected that he can be blamed for being careless in maintaining said record. Said written submission indicated that Accused Sudershan Tandon (A-8) admitted that record of Membership Register and Proceedings Register, of which he was Custodian, were not completely correct and proper. It further indicated that said records were not being maintained properly in ordinary course of official duties of Accused Sudershan Tandon (A-8). That fact, coupled with illegalities, committed by other accused persons, as appreciated in this Judgment, only indicated that Accused Sudershan Tandon (A-8) was not merely careless while maintaining said record, rather, he was brazen, in maintaining said record. It was surprising and shocking that Accused Sudershan Tandon (A-8) found that if some Members viz., PW1, PW2, PW4 and PW5, who had not attended the meetings of Society, as per their testimonies and who had signed blank papers, which were later on filled with details of Minutes of Meetings, then said manner of maintaining record, was CBI Case No.189/2019 Page 439 of 591 CBI vs. B.M. Sethi & Ors.
reflection of Accused Sudershan Tandon (A-8) being careless. As such, Accused Sudershan Tandon (A-8) made self-serving statement when he stated in his written submissions that his said conduct of maintaining record only reflected that he was careless. He was not careless, rather, he had done so intentionally with false motive. Otherwise, he should have explained, during trial, as to why, he had done so. He claimed that above-mentioned witnesses, who had signed blank papers, were highly educated persons and they had signed on blank papers, out of free will. If Accused Sudershan Tandon (A-8) believed so, then he should have put suggestion, based on said claim to said witnesses, for checking veracity of said claim. He did not do so, for reasons best known to him. At the time of final arguments, he cannot simply come up with new defence and surprise everyone. He failed to appreciate the fact that by maintaining said records of Society in said illegal manner, he prepared record falsely, which was used by other accused persons, for the purpose of revival of Society in Question. The act of Accused Sudershan Tandon (A-8), in falsely maintaining above- mentioned records of Society, cannot be seen in isolation to other facts & circumstances of this case. So, above-mentioned claims stand discarded being meritless. The said manner in which he had illegally prepared records of society in question, only helped the cause of co-accused persons, in getting the society in question, revived for the purpose of allotment of land. Acts of Accused Sudershan Tandon (A-8) therefore only helped co-accused persons. Therefore, only one inference can be drawn, which is that he had CBI Case No.189/2019 Page 440 of 591 CBI vs. B.M. Sethi & Ors.
done so under a preplanned criminal conspiracy, with co-accused persons. No other theory was possible in this case. No theory consistent with innocence of Accused Sudershan Tandon (A-8) was possible.
182.26. Accused Sudershan Tandon (A-8), next, claimed that he did not get any pecuniary gain in this case. That claim has no merits as offence of misappropriation of funds was not involved in this case. The offences, with which he was charged, were duly proved by prosecution.
182.27. Accused Sudershan Tandon (A-8), next, claimed that Accused Ramesh Bajaj (A-17) was discharged by this Court, vide order dated 12.09.2018. That accused was Vice President of original Managing Committee along with Accused Sudershan Tandon (A-8). So, since, said accused was discharged by the Court, whose role was similar to Accused Sudershan Tandon (A-8), so, it was claimed by Accused Sudershan Tandon (A-8) that he should also be acquitted. Said claim has no merits. Reasons being, firstly, that order on Charge now has attained finality. If Accused Sudershan Tandon (A-8) wanted to get himself discharged on parity grounds, he should have approached Hon'ble High Court of Delhi by filing appropriate petition/ application. He did not do so. Coupled with the same, Accused Sudershan Tandon (A-8), nowhere, gave any suggestion to any prosecution witnesses to the effect that he should be acquitted on account of the fact that Accused Ramesh Bajaj (A-17) was discharged in this case.
CBI Case No.189/2019 Page 441 of 591Secondly, Accused Sudershan Tandon (A-8) should have brought on record, through evidence, as to how, his case was similar to that of Accused Ramesh Bajaj (A-17). He failed to do so. Lastly, he raised the said claim at a belated stage, without any basis. So, said claim stands dismissed.
182.28. Based on above-mentioned appreciation, I conclude that written submissions of Accused Sudershan Tandon (A-8) were baseless. Same stand discarded.
182.29. In the wake of above-mentioned appreciation and conclusion, I found that Accused Sudershan Tandon (A-8) was the initial Promoter Member of Society in Question. During his tenure, I have already appreciated above that there were manipulations in the records of Society. He did not give any explanation with regard to the same. That record was used by co-accused persons including officers of RCS, for the purpose of revival of Society in Question and therefore, inference of criminal conspiracy, based on said false record, can be easily drawn against Accused Sudershan Tandon (A-8). The forgery in the records of Society was confirmed by the Opinion of GEQD/ Shimla. Said forgeries resulted in falsification of records of Society and said records were used for revival of Society in Question by co-accused persons. Therefore, Accused Sudershan Tandon (A-8) was part of criminal conspiracy, as alleged by prosecution, as he had forged records of Society in Question. Said criminal conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal CBI Case No.189/2019 Page 442 of 591 CBI vs. B.M. Sethi & Ors.
Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Manoj Vats (A-11)
183. Charge-sheet revealed that role of Accused Manoj Vats (A-11) was limited to the extent that he had put his signatures on the bogus GBM of Society in Question dated 27.01.1999, which was conducted by Accused Karamvir Singh (A-2).
183.1. Accused Manoj Vats (A-11) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 IPC.
183.2. In the wake of above-mentioned role of Accused Manoj Vats (A-11) and charges levelled against him, I am proceeding further and appreciating the evidence, brought on record by prosecution to assess the role of Accused Manoj Vats (A-11), in offences, alleged by prosecution.
Appreciation of Prosecution Evidence viz-a-viz Accused Manoj Vats (A-11) 183.3. In order to appreciate the fact that Accused Manoj Vats (A-11) had signed in meeting dated 27.01.1999, I must refer to the CBI Case No.189/2019 Page 443 of 591 CBI vs. B.M. Sethi & Ors.
documents, brought on record by prosecution, so that one can know the background of Accused Manoj Vats (A-11).
184. The noting file Ex.PW45/2 (D-4) at page 27/N at S.No.80 noted his name, against which, it was mentioned that he had become Member of Society in Question on 05.12.1986. That list of Members noted names of co-accused persons viz., Accused Sudarshan Tandon (A-8), Accused Maha Nand Sharma (A-4), Accused Ashwani Sharma (A-6), Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. Said document probabilized the facts that he had become Member of Society in Question in 1986 and that there was every possibility that he knew said co-accused persons.
184.1. Moving further, Membership Register Ex.PW45/8 (D-7) noted his name at S.No.147 at page 45. He did not put his signature against his name which made the said record false and forged as various Members, till page 33 in said Register, had put their respective signatures against their names. Again, said Membership Register noted names of co-accused persons viz., Accused Sudarshan Tandon (A-8), Accused Maha Nand Sharma (A-4), Accused Ashwani Sharma (A-6) also and therefore, lack of signature of Accused Manoj Vats (A-11) in the said Register indicated that there was every possibility that the said Register was false and forged. Possibility of him having criminal conspiracy with said co-accused persons, based on said Register cannot be CBI Case No.189/2019 Page 444 of 591 CBI vs. B.M. Sethi & Ors.
ruled out.
184.2. Further, Proceedings Register for the period 29.09.1983 to 05.06.1999 Ex.PW45/9 (D-8) at page 46 noted about details of meeting of Managing Committee dated 05.12.1986. That meeting record noted name of Accused Manoj Vats (A-11) at page 47. Now, Report of GEQD/ Shimla Ex.PW43/2 in para 2 opined that Accused Ashwini Sharma (A-6) had written details, highlighted as Q-501, Q-504 and Q-505. So, said fact indicated possibility of criminal conspiracy between Accused Manoj Vats (A-11) and Accused Ashwini Sharma (A-6). Moving further, in the said meeting, it was shown that Members namely Jagbir Singh and Ram Niwas were newly enrolled in the Society. Now, prosecution examined Ram Niwas as PW10 who testified that he had never become Member of Society in Question. That fact was never challenged by Accused Manoj Vats (A-11). Similarly, prosecution examined Jagbir Singh as PW15 who also testified that he had never become Member of Society in Question. Again, the said testimony was never challenged by Accused Manoj Vats (A-11). It means that said two witnesses were falsely shown as newly enrolled Members of Society in Question in meeting dated 05.12.1986 in Ex.PW45/9, making the said record as forged and false. It also indicated that said record was prepared by Accused Ashwini Sharma (A-6) in conspiracy with Accused Manoj Vats (A-11) and other accused persons.
CBI Case No.189/2019 Page 445 of 591184.3. Besides that, I found that Accused Manoj Vats (A-11) had signed at point Q-538 in Special GBM dated 27.01.1999, conducted by Accused Karamvir Singh (A-2). Same was mentioned at page 85 in Proceedings Register Ex.PW45/9 (D-8). The Report from GEQD/Shimla Ex.PW45/2 confirmed that Accused Manoj Vats (A-11) had signed at point Q-538 at para 22. I have already concluded in my preceding paragraphs, while appreciating the evidence qua Accused Karamvir Singh (A-2) and Accused Maha Nand Sharma (A-4) that record of said Proceedings Register, including meeting dated 27.01.1999, was false and forged (said reasoning is not repeated here for the sake of brevity). Since Accused Manoj Vats (A-11) had put his signatures in the said meeting which was false, so, I conclude that he had put his signatures, under a criminal conspiracy with Accused Maha Nand Sharma (A-4) and Accused Karamvir Singh (A-2). No other possibility was found by me with regard to the same.
184.4. Coupled with the same, I found that his name was mentioned at S.No.80, in list of Members of Society, which was accompanied with letter dated 10.02.1999, written by Accused Maha Nand Sharma (A-4), in the capacity of being President of Society in Question, addressing Assistant Registrar (South), Cooperative Societies Cell, Old Court Building, Parliament Street, New Delhi. That letter was at page 413/C. It was accompanied with two lists of Members of Society in Question. In those lists at page 409 and 397/C, name of Accused Manoj Vats (A-11) was mentioned at S.No.80. The address of Accused Manoj Vats (A-11) CBI Case No.189/2019 Page 446 of 591 CBI vs. B.M. Sethi & Ors.
in the said entries, was noted as Village & Post Office Mitaraun, Najafgarh, New Delhi. The date, when he had become Member of Society in Question, was mentioned as 05.12.1986. That record was attested by Accused Maha Nand Sharma (A-4), in the capacity of being President of Society in Question. All the said record, was part of correspondence file of Society in Question with the office of RCS Ex.PW45/4 (D-6). Signatures of Accused Maha Nand Sharma (A-4) in the said record at points Q-379 and Q-382, were duly confirmed by GEQD/Shimla in its Report Ex.PW43/2. Since, it was submitted by Accused Maha Nand Sharma (A-4) with the office of RCS, so, it reflected criminal conspiracy between him and Accused Manoj Vats (A-11).
184.5. This brings me to the Membership Application Form of Accused Manoj Vats (A-11), which was at page 48 in Ex.PW45/11 (D-10). That form was undated. It noted down the same address of Accused Manoj Vats (A-11), which was mentioned in above- mentioned records. Possibility of said undated form being falsely created, cannot be ruled out. Infact, that was the only possibility, which I found, with regard to execution of said form.
184.6. PW14 Dushyant Vats @ Binni Vats had deposed that he had applied for membership of Society in Question through his elder brother. He also deposed that he knew Accused Maha Nand Sharma (A-4) for last 25 to 30 years through his brother. Now, name of father of said witness and his residential address, matched with the record of Accused Manoj Vats (A-11). So, I conclude that CBI Case No.189/2019 Page 447 of 591 CBI vs. B.M. Sethi & Ors.
he was the brother of Accused Manoj Vats (A-11). If that is so, then his deposition that he knew Accused Maha Nand Sharma (A-4) for last 25-30 years through his brother, only indicated that he along with Accused Manoj Vats (A-11) were acquainted with Accused Maha Nand Sharma (A-4), for the last 25-30 years and considering the circumstances of this case, the only possibility was that Accused Manoj Vats (A-11) not only knew Accused Maha Nand Sharma (A-4) rather was in criminal conspiracy with Accused Maha Nand Sharma (A-4), to get Society in Question revived illegally, based on false and forged documents.
184.7. Aforesaid record, therefore, clearly indicated that Accused Manoj Vats (A-11) was involved in the affairs of Society, prior to revival of said Society. So, he was part of criminal conspiracy, right from very inception.
184.8. Now, coming to Proceedings Register Ex.PW45/10, for the period 12.06.1999 to 03.06.2001 (D-9), I found that said Register was exhibited in the testimony of PW45 who was the officer of CBI who had collected documents of Society in Question, during preliminary inquiry. That Register was not disputed by any of the accused persons. So, I found that it was the Register which Society in Question was maintaining for the relevant period concerned. That Register noted details of meetings for the period between 12.06.1999 to 03.06.2001 and same was prepared after Proceedings Register Ex.PW45/9 (D-8). I have already concluded that Register Ex.PW45/9 maintained record CBI Case No.189/2019 Page 448 of 591 CBI vs. B.M. Sethi & Ors.
which was false and forged, in my preceding paragraphs. So, said Proceedings Register Ex.PW45/10 was preceded by false/manipulated Proceedings Register. In other words, basis of creation of Register Ex.PW45/10 was false / manipulation. So, on the face of it, very bedrock on which Ex.PW45/10 stood, was bogus and hollow. It made the said Register Ex.PW45/10, baseless. Now in Register Ex.PW45/9 Accused Manoj Vats (A-11) was shown as elected officer bearer of Society in Question, through Special GBM dated 05.06.1999. Since that record was found by me to be false and forged, so election of Accused Manoj Vats (A-11) as officer bearer of Society was also falsely done. Now, in Register Ex.PW45/10, I found that it mentioned meetings of Managing Committee of Society of various dates. Amongst said meetings, in meeting dated 17.10.1999, it was shown that Ratish Maurya, Rajkumar and Inderjeet Kalucha had resigned from their respective memberships from Society in Question. Those persons were examined as PW5, PW6 and PW1, respectively. All the said witnesses in their respective testimonies, denied the fact that they had ever resigned from membership of Society in Question. They denied their signatures on the Resignation Letters, which were put to them. So, in the wake of said testimonies, which were never challenged by Accused Manoj Vats (A-11), I found that those witnesses were falsely shown as Members who had resigned from their memberships in Society in Question. In other words, meeting dated 17.10.1999 falsely noted that Ratish Maurya, Rajkumar and Inderjeet Kalucha had tendered their resignations from their CBI Case No.189/2019 Page 449 of 591 CBI vs. B.M. Sethi & Ors.
memberships of Society in Question, making the said meeting record false. Similarly in meeting dated 14.11.1999 at page 13 in Ex.PW45/10, it was noted that Yatish Maurya and Satish Maurya had resigned from their respective memberships in Society in Question. Those persons were examined as PW3 and PW4 by prosecution, respectively. Said witnesses deposed that they had never resigned from being Members of Society in Question, at any point of time. It made the said record of meeting dated 14.11.1999, a false record. Further, in meeting dated 09.06.2000 at page 29 in Ex.PW45/10, I found that persons namely Jagbir Singh and Ram Niwas had tendered their resignations from the membership of Society in Question. Now, said persons were examined as PW15 and PW10 respectively by prosecution. In their testimonies, they denied the fact that they had ever become Members of Society in Question. If that is so, then record pertaining to their resignations in meeting dated 09.06.2000, was false record. Another fact which I found relevant, was that in the said meeting record dated 09.06.2000, one Vijay Sharma was noted as a Member of Society, who had resigned from membership of said Society. Now said Vijay Sharma was examined as PW16 by prosecution. In his testimony PW16 deposed that he was co-brother-in-law of Accused Maha Nand Sharma (A-4) and that he was an illiterate person, who could sign in Hindi language only. He denied his signature in his alleged Membership Application Form Ex.PW16/1 at point 618 as said signature was made in English language. He further deposed that he had become Member of Society in Question through Sunil CBI Case No.189/2019 Page 450 of 591 CBI vs. B.M. Sethi & Ors.
Bhardwaj and said Sunil Bhardwaj might have filled all forms on behalf of him. His testimony, therefore, revealed that he was relative of Accused Maha Nand Sharma (A-4), which was never denied by Accused Maha Nand Sharma (A-4). Viewed from said perspective, I found that he seemed to be an interesting witness, who wanted to save Accused Maha Nand Sharma (A-4). Since, he was an illiterate person, so possibility of forms of Society including his resignation form, being filled by somebody else, as such cannot be ruled out. That was the only possibility, which I could see, based on his testimony. If that is so, then in the wake of his denial of his signatures on Membership Application Form, I found that there was every possibility that his signature on Resignation Letter at point Q-743, was not made by him. Moreso ever, said signature was made in English language. The manner in which he was shown as signing at point Q-743, reflected that it was made by a person who was well acquainted with English language. This conclusion only indicated that said signature of Vijay Sharma was false and forged. No other conclusion can be drawn, with regard to the same. The fact that Accused Maha Nand Sharma (A-4) had put his signatures at point Q-744, as confirmed by the Opinion of GEQD/Shimla, Ex.PW43/2, further indicated that Accused Maha Nand Sharma (A-4) had used the said false and forged document, for the purpose of preparing false record of Society for its revival, illegally. That was the only inference which one can draw after appreciating said documents. Further, I found that Accused Manoj Vats (A-11) had signed at points Q-326 and Q-325 in his affidavit CBI Case No.189/2019 Page 451 of 591 CBI vs. B.M. Sethi & Ors.
at page 259/C, which was part of Ex.PW45/4 (D-6). That record Ex.PW45/4 (D-6) was maintained by the office of RCS. In the said affidavit, Accused Manoj Vats (A-11) had declared that he was not owner of any immovable property in Delhi. That affidavit was dated 10.02.1999. GQED/Shimla in Ex.PW43/2 in para 22 had confirmed that those signatures were of Accused Manoj Vats (A-11) which clearly indicated that said affidavit was of Accused Manoj Vats (A-11).
184.9. Above-mentioned documents, therefore, indicated that Accused Manoj Vats (A-11) was not a sleeping Member of Society in Question. He knew about the activities of Society in Question, since 1986 when he had become Member of said Society. Those documents also indicated that he remained Office Bearer of Society in Question for quite substantial time. In such situation, he should have explained as to how above-mentioned manipulations occurred, during his tenure in the records of Society. He failed to do so, during trial. It only indicated that he wanted to hide truth from the Court. This conclusion only indicated existence of theory of his guilt and nothing else.
184.10. So, evidence brought on record by prosecution, was not merely incriminating against Accused Manoj Vats (A-11) with respect to his signature in meeting dated 27.01.1999. Evidence was much beyond that, as appreciated above. The evidence, in totality, reflected active participation of Accused Manoj Vats (A-11) in criminal conspiracy with other co-accused persons, for the CBI Case No.189/2019 Page 452 of 591 CBI vs. B.M. Sethi & Ors.
preparation of false and forged records, which accused persons used for getting the said Society revived, illegally.
Appreciation of Statement of Accused Manoj Vats (A-11), recorded under Section 313 CrPC 184.11. Accused Manoj Vats (A-11) had the occasion to explain said incriminating evidence, in his statement under Section 313 CrPC. Surprisingly, said statement fell flat as it was not explanatory in nature with regard to specific details of this case. That statement was based on denial of incriminating evidence and the claims viz., that he was falsely implicated in this case; that there was no evidence against him; that he had not gained illegally in this case; that no witness had deposed against him; that no offence was committed by him; that investigation was not fair and that he was a victim of partial treatment. Those claims remained bald claims, not supported by any fact or proof. If he was a victim, then he should have filed counter-case against CBI but he did not do so, for reasons best known to him. He failed to appreciate that this case was based on records of Society in which he was not only a Member, rather, an officer bearer also. I failed to understand that in his presence, how various Members were falsely shown as Members who had resigned from Society in Question. He failed to explain various blanks spaces in the records of Society. He did not explain as to whether Society had informed the office of RCS about the activities of Society as per the directives and if yes, then how said communications were done. So, he kept mum on material CBI Case No.189/2019 Page 453 of 591 CBI vs. B.M. Sethi & Ors.
particulars of this case. His statement under Section 313 CrPC was, therefore, inconsequential. I discarded it, accordingly.
184.12. So far as defence evidence of Accused Manoj Vats (A-11) was concerned, he stated in his statement under Section 313 CrPC that he wanted to lead defence evidence, but for reasons best known to him, he did not lead any evidence in his defence. So, his version did not get any support through defence evidence, which did not help his cause.
Written Submissions of Accused Manoj Vats (A-11) 184.13. Accused Manoj Vats (A-11) filed written submissions at the stage of final arguments, based on which he prayed for acquittal, in this case. I am appreciating said arguments, in my subsequent paragraphs.
184.14. Accused Manoj Vats (A-11), first, claimed that his role in this case was very limited, to the extent that he had signed one meeting dated 27.01.1999, which as per prosecution, was false. That claim of prosecution was supported by Opinion of handwriting expert but said expert Opinion had to be considered as weak evidence, as per judgment titled as Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210. That Opinion of expert did not establish that he had knowledge of criminal conspiracy, in this case and in this regard, he relied upon case law titled as Ramesh Chandra Aggarwal vs. Regency Hospital Ltd (2009) 9 SCC 709 . Said claims were not tenable. Reasons being, that he did not CBI Case No.189/2019 Page 454 of 591 CBI vs. B.M. Sethi & Ors.
understand the scope of present case completely, when he claimed that his role was limited to the extent of signing meeting dated 27.01.1999. I have already appreciated in my preceding paragraphs, that his role was beyond that. Same was done, on the basis of appreciation of record of this case. Same is not repeated here for the sake of brevity. It is sufficient to underline here, that Accused Manoj Vats (A-11) was not merely a Member who did not attend meetings of Society and had no role to play in the working of Society. He was an active Member and Office Bearer of Society and in said capacity had attended various meetings in which false records were prepared. So, his role was very wide in nature, in this case.
184.15. So far as Opinion of handwriting expert was concerned, no doubt said Opinion was a weak piece of evidence, if seen in isolation. At the same time, if corroboration was found from the records of a case based on direct or circumstantial evidence, then said expert Opinion, did not remain a weak evidence. In the case of Magan Bihari Lal (supra), it was noted in para 7 that " It is now well settled that expert Opinion must always be received with great caution and perhaps none so with more caution than the Opinion of a handwriting expert. There is profusion of presidential authority which holds that it is unsafe to base a conviction solely of expert Opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law". Said observations of Hon'ble Apex Court, no doubt, hold ground, as on date. At the same time in this case, it was not merely the CBI Case No.189/2019 Page 455 of 591 CBI vs. B.M. Sethi & Ors.
expert Opinion of GEQD/ Shimla, Ex.PW43/2 which prosecution brought on record but there were circumstantial evidence and testimonies of witnesses also, which I have appreciated above and which only indicated towards the guilt of accused. No other conclusion can be drawn based on appreciation of said evidence. So, in the light of said circumstantial evidence, Report of GEQD/Shimla, only corroborated and supported the same. Accused Manoj Vats (A-11) was found guilty of the offences with which he was charged, on the combining circumstantial evidence and Report from GEQD/Shimla. So said observations of Hon'ble Apex Court did not help the cause of accused. Even otherwise, in Magan Bihari Lal's case (supra), facts were different. In the said case, prosecution's case was based on offences punishable under Section 46B, 411 and 420 IPC read with Section 109 IPC. Same is not the situation here. So, said case law did not help the cause of Accused Manoj Vats (A-11). Aforesaid claims, therefore, stands discarded.
184.16. Accused Manoj Vats (A-11) next claimed that apart from Opinion of handwriting expert, there was no corroborating evidence, led by prosecution. No prosecution witness deposed against him and no fact established that he was part of criminal conspiracy, as alleged by prosecution. He relied upon case laws viz., Jnanendra Nath Ghose vs. State of W.B., AIR 1959 SC 1199, Rameshwar vs. State of Rajasthan, AIR 1952 SC 54 and Sheshanna Bhumanna Yadav vs. State of Maharashtra, (1970) 2 SCC 122. Said claims again were meritless. Reasons being, that this case was not based on Opinion of handwriting expert only, against Accused CBI Case No.189/2019 Page 456 of 591 CBI vs. B.M. Sethi & Ors.
Manoj Vats (A-11). It was based on circumstantial evidence also. The Opinion of handwriting expert in this case was corroborated by circumstantial evidence led by prosecution. It was also corroborated by the fact that Accused Manoj Vats (A-11) failed to cross-examine any of the prosecution witnesses, with regard to material particulars of this case. As such, he failed to bring on record, reliable and probable defence, in his favour. His explanations were vague, non-specific and general in nature. They did not help his cause.
184.17. Further, Accused Manoj Vats (A-11) referred to certain case laws which also did not help his cause. In Ramesh Chandra Aggarwal (supra), facts were different in comparison to fact of this case. In the said case, issue pertained to medical negligence. Same was not the situation here. In para 15 of the said judgment, it was noted "An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the judge to form his independent judgment by the application of these criteria to the facts, proved by the evidence of the case. The scientific Opinion evidence, if intelligible, convincing and tested, becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons, stated in support of his conclusions and the data and material furnished which form the basis of his conclusions". Said observation, therefore, indicated that it is the Court, which has to CBI Case No.189/2019 Page 457 of 591 CBI vs. B.M. Sethi & Ors.
appreciate the credibility of an expert, who is examined in a case. The credibility of such expert, has to be tested on the touchstone of reasons, he had given in his Report along with data and material he had collected. In the light of said understanding, coming back to present case, I have already appreciated the credibility of handwriting expert (PW43), in detail in my preceding paragraphs. Same needs no repetition. It is sufficient to conclude here that said witness was found by me to be trustworthy and reliable. His Report was based on reasons, which were trustworthy. Said Report only corroborated the prosecution version. Aforesaid case law, therefore, did not help the cause of Accused Manoj Vats (A-11). Therefore, above-mentioned arguments were discarded by me.
184.18. Accused Manoj Vats (A-11), next, claimed that ingredients of offences, for which he was charged, were not proved by prosecution. He claimed that conviction cannot be sustained on the sole basis of Opinion of handwriting expert. In this regard he relied upon case laws viz., Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, Ram Chandra vs. State of UP, AIR 1957 SC 381, S. Gopal Reddy vs. State of AP, (1996) 4 SCC 596 and Padam Kumar vs. State of Uttar Pradesh, 2020 (3) SCC 35. Said claims again did not help his cause. Reasons being, that this case was not based on Opinion of handwriting expert only. Circumstantial evidence also lend support to prosecution. Said appreciation is not repeated here for the sake of brevity. Offences for which Accused Manoj Vats (A-11) was charged, were proved by prosecution, beyond reasonable doubt.
CBI Case No.189/2019 Page 458 of 591184.19. The reference to case laws, as mentioned above, did not help his cause. In Ram Chandra's case (supra), offences punishable under Section 302/201/120B/364/386/34 IPC were involved. Same is not the situation here. Hon'ble Apex Court, in said case, appreciated the evidence of prosecution, pertaining to said offences and concluded that said evidence was not sufficient for the purpose of convicting appellants with said offences. So, circumstances involved in said case, were entirely different, in comparison to present case. In S. Gopal Reddy's case (supra), again offences under Section 420 IPC read with Section 4 of Dowry Prohibition Act, 1961 were involved. Same are not present in present case, before me. Further, in the said case, Hon'ble Apex Court noted the observation of expert in para 28 as ".....but no definite Opinion can be given on the basis of present standards extensive admitted writings are required for offering definite Opinion". Hon'ble Apex Court further noted that "Thus evidence of PW3, who was the handwriting expert was not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the Courts do not generally considered it as offering conclusive proof and therefore, safe to rely upon the same without seeking independent and reliable corroboration." Said observations, were based on appreciation of testimony of handwriting expert, who had deposed in that case. Same is not the situation here. I have already appreciated testimony of handwriting expert in this case, in detail, which I found trustworthy and reliable. That evidence of CBI Case No.189/2019 Page 459 of 591 CBI vs. B.M. Sethi & Ors.
handwriting expert was not alone, rather, it was supported by circumstantial evidence, as appreciated above. So, said case law did not help the cause of Accused Manoj Vats (A-11).
184.20. In Padam Kumar's case (supra), again facts were distinct, in comparison to the facts of this case as it was not a case under Prevention of Corruption Act. In the said case law, it was noted, "It is fairly well settled, that before acting upon Opinion of handwriting expert, prudence requires that Court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence". Said observation as such hold water, in criminal law jurisprudence, as on date. Keeping in mind said law, I have already appreciated above, the circumstantial evidence of this case, which supported the Opinion of handwriting expert. Therefore, said case law did not help the cause of Accused Manoj Vats (A-11). So, above-mentioned claims and case laws were discarded by me being inconsequential in nature.
184.21. Accused Manoj Vats (A-11) next claimed that benefit of doubt must be given to him in this case, as prosecution failed to adduce any substantive evidence apart from expert Opinion. That claim was not tenable for the reasons that there was no doubt which I found in the case of prosecution. So, keeping in mind said law, prosecution, in the case in hand, was able to present and prove a case which was not improbable. I did not find existence and probability of an alternate version of facts. So, above-mentioned claims of Accused Manoj Vats (A-11) stand discarded.
CBI Case No.189/2019 Page 460 of 591184.22. Accused Manoj Vats (A-11) further claimed that testimony of PW51 Anil Kumar Joshi was highly improbable and he had deposed at the behest of CBI as said witness had deposed after a gap of 19 years, from the date, when said witness had taken his specimen signatures on 07.11.2006. He denied that specimens Ex.PW49/24 (colly) were written by him. Those claims did not make his case probable and believable as I have already appreciated the testimony of said witness and have found him to be a trustworthy witness. Said reasoning, as such, met out above- mentioned arguments of Accused Manoj Vats (A-11). Same needs not repetition. Therefore, aforesaid claims of Accused Manoj Vats (A-11) stand discarded.
184.23. Lastly, Accused Manoj Vats (A-11) claimed that from the testimony of IO (PW49), doubt was created in the prosecution story as said witness had deposed that Accused Manoj Vats (A-11) was not benefited in any manner in present case. Further, investigation was shoddy and defective. Based on said doubts, benefit should be given to him. Those claims did not help his cause, for the reasons that non-receiving of any benefit by Accused Manoj Vats (A-11) was one fact. The other facts which I have already appreciated above, only hinted towards his guilt. If IO had failed to investigate the aspect of benefit received by Accused Manoj Vats (A-11), then said failure, by itself, was not sufficient for creating doubt in the prosecution version and evidence brought on record by prosecution. In the alternative, if IO did not find that Accused Manoj Vats (A-11) was benefited in any manner in this CBI Case No.189/2019 Page 461 of 591 CBI vs. B.M. Sethi & Ors.
case, then also that Opinion was not binding on this Court. Other evidence collected by prosecution, was relevant and that only hinted towards the guilt of Accused Manoj Vats (A-11). Therefore, aforesaid claims were discarded by me being inconsequential in nature.
184.24. Ld. counsel for Accused Manoj Vats (A-11) argued that Accused Manoj Vats (A-11) was a victim and for some reasons, he was made an accused. As such, no prosecution witness deposed against Accused Manoj Vats (A-11) and said accused was no connected with any other accused. Said arguments had no basis as Accused Manoj Vats (A-11) did not file any complaint against any co-accused or CBI, if he was a victim. He did not explain as to how he was a victim in this case. Record of this case, as already appreciated above, clearly indicated that he was connected with co- accused persons, as his name was reflected in various records of Society in Question. The inferences drawn on the basis of records of Society, only indicated that he was having knowledge about criminal conspiracy involved in this case and was also part of said criminal conspiracy.
184.25. Therefore, I conclude that during trial, Accused Manoj Vats (A-11) did not explain, as to when exactly, he had become Member of Society in Question, as his Membership Application Form was undated, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that he became Member in the year 1986. The fact that his name CBI Case No.189/2019 Page 462 of 591 CBI vs. B.M. Sethi & Ors.
was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that he had become a Member in the year 1986, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1986 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Manoj Vats (A-11) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
CBI Case No.189/2019 Page 463 of 591Appreciation of Record viz-a-viz Accused Vijay Thakur (A-12)
185. Allegations against Accused Vijay Thakur (A-12) as per charge-sheet, highlighting his role, were that he had projected himself to be President of Society and in that capacity, he had signed documents for opening bank account of Society bearing No.17000111335, in Global Trust Bank Ltd. which later on merged with OBC, since August 2004. Said bank account was opened on 26.02.2022. Accused Vijay Thakur (A-12) had signed necessary documents for opening of said bank account, along with Accused Vikas Madan (A-13) as Secretary, Accused Poonam Awasthi (A-14) as Treasurer and Accused Narinder Dhir (A-15) as Executive Member of Society in Question. All the said persons had projected themselves as authorized signatories of Society. Allegations were that Accused Vijay Thakur (A-12) in connivance with Accused Vikas Madan (A-13) had fraudulently opened the said bank account and had signed various documents, despite the fact that he was never elected as President of Society.
186. Accused Vijay Thakur (A-12) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 IPC.
187. In the light of said allegations and charges, I am now appreciating the evidence brought on record by prosecution.
CBI Case No.189/2019 Page 464 of 591Appreciation of Prosecution Evidence viz-a-viz Accused Vijay Thakur (A-12)
188. Record revealed that as per noting file of the office of RCS Ex.PW45/2 (D-4) Accused Vijay Thakur (A-12) was shown as one of the Members of Society at S.No.50, page 24/N and at S.No.115 page 29/N. In both the said entries of his name, I found that it was shown that he had become Member of Society in Question on 15.08.1990. That record was never challenged by Accused Vijay Thakur (A-12) and said record was, therefore, admitted by him. So, he became Member of Society in Question on 15.08.1990. As such, he was not alone. At S.No.56 on page 24/N and at S. No.21 at page 29/N, I found name of his brother Rajender Thakur as Member of Society in Question, who had become Member on 20.10.1990. Now, said Rajender Thakur was examined by prosecution as PW37 and in his testimony, said witness has deposed that Accused Vijay Thakur (A-12) was his brother.
188.1. Record further revealed that name of Accused Vijay Thakur (A-12) as Member of Society in Question was mentioned at S.No.115 at page 408/C, at S.No.115 at page 402/C, at S.No.115 at page 390/C and at S.No.115 at page 384/C. Said record was part of correspondence file of the office of RCS pertaining to Society in Question and was marked as Ex.PW45/4 (D-6), during trial. Again, said record revealed address of Accused Vijay Thakur (A-12), as B-94, Dilshad Colony, Delhi, which was similar to that of his brother Rajender Thakur. Now above-mentioned details of CBI Case No.189/2019 Page 465 of 591 CBI vs. B.M. Sethi & Ors.
Accused Vijay Thakur (A-12) and his brother Rajender Thakur were mentioned in the lists, which were annexed with letter dated 10.02.1999 and that letter was written by Accused Maha Nand Sharma (A-4), addressing Assistant Registrar (South) as it was signed by him at point Q-382, being President of Society in Question. The lists mentioning name of Accused Vijay Thakur (A-12) and his brother Rajender Thakur, were attested by Accused Maha Nand Sharma (A-4) being President of Society in Question. Said Accused Maha Nand Sharma (A-4) had signed the said lists at point Q-379. The Report of GEQD/Shimla, Ex.PW43/2 in para 4 confirmed the said signatures belonging to Accused Maha Nand Sharma (A-4). Said lists and letter of Accused Maha Nand Sharma (A-4) were part of Ex.PW45/4 (D-6). Again, said record was never challenged by Accused Vijay Thakur (A-12) during trial. It means that he admitted said record. The dates of admission of Accused Vijay Thakur (A-12) and his brother Rajender Thakur as Members of Society in Question, as mentioned in said record, matched with the dates, as mentioned in Ex.PW45/2 (D-4) as mentioned above.
188.2. Further, I found that besides above-mentioned lists, letter of Accused Maha Nand Sharma (A-4) dated 10.02.1999, was accompanied with certain documents whose details were mentioned in the said letter as Affidavits of 125 Members (in original) duly signed and attested by the Notary Public, consolidated lists of Members resigned, consolidated list of Members enrolled, copy of Managing Committee Resolution, election record of the Society along with AGM Agenda and CBI Case No.189/2019 Page 466 of 591 CBI vs. B.M. Sethi & Ors.
photocopy of the Minutes, proof of dispatch of Agenda Notice (UPC) and Affidavit of Secretary (in original). Those documents were annexed with the said letter. In the consolidated list of Member enrolled, which was annexed with the above-mentioned letter of Accused Maha Nand Sharma (A-4), name of Accused Vijay Thakur (A-12) was mentioned at S.No.99 and name of his brother Rajender Thakur was mentioned at SNo.105. Again, dates of admissions of said Thakur brothers were similar to the one, which were mentioned in the documents Ex.PW45/2 (D-4) (as appreciated above). The said lists noted names of co-accused persons namely Accused Pankaj Madan (A-5), Accused Ashwini Sharma (A-6), Accused Manoj Vats (A-11), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15), besides Accused Maha Nand Sharma (A-4), who had signed the said lists at points Q-374 to Q-379. Said signatures of Accused Maha Nand Sharma (A-4) were confirmed by the Opinion of GEQD/Shimla Ex.PW45/2 in para 4. Further, I found that there was a list of Members of Society, to whom letters/communications were sent by Accused Maha Nand Sharma (A-4), on behalf of Society, as mentioned in the letter dated 10.02.1999. Said list was to be considered under the heading of "Proof of Dispatch of Agenda Notice (UPC)". In the said list name of Accused Vijay Thakur (A-12) and his brother Rajender Thakur were mentioned at S.No.115 & 121, respectively. Addresses of Accused Vijay Thakur (A-12) and his brother Rajender Thakur, again matched with their respective addresses as mentioned in the lists at page 407/C, 408/C, CBI Case No.189/2019 Page 467 of 591 CBI vs. B.M. Sethi & Ors.
395/C, 396/C, 383/C, 384/C, records of Ex.PW45/4 (D-6).
188.3. Further, I found that name of Accused Vijay Thakur (A-12) was mentioned as Member of Society in Question, at S.No.115 at page 199/C, in UPC list of Members, which was part of Agenda/ Notice dated 18.01.1999, issued by Accused Karamvir Singh (A-2), in the capacity of being Liquidator of Society in Question. That said list noted names of co-accused persons viz., Accused Maha Nand Sharma (A-4), Accused Pankaj Madan (A-5), Accused Ashwini Sharma (A-6), Accused Manoj Vats (A-11), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15). That Agenda/ Notice along with Report of Accused Karamvir Singh (A-2), mentioning his signatures at point Y6 and Y8 were part of correspondence file of office of RCS Ex.PW45/3 (D-5). Said record, prepared by Accused Karamvir Singh (A-2), was again, not disputed by Accused Vijay Thakur (A-12), during trial. In the said record, there was UPC list of Members, wherein address of Accused Vijay Thakur (A-12), was again similar to the one, as mentioned in Ex.PW45/4 (D-6). The said UPC list noted stamp of the concerned post office dated 18.01.1999.
188.4. Here, I must mention the document with the heading "Share Capital Summary", which was part of Audit Record Ex.PW45/3. In the said record at S.No. 182 on various pages viz., at page 258 (for the period 01.04.1990 to 31.03.1991), at page 276 (for the period 01.04.1992 to 31.03.1993), at page 283 (for the CBI Case No.189/2019 Page 468 of 591 CBI vs. B.M. Sethi & Ors.
period 01.04.1993 to 31.03.1994, at page 293 (for the period 01.04.1994 to 31.03.1995), at page 301/C (for the period 01.04.1995 to 31.03.1996), at page 319 (for the period 01.04.1997 to 31.03.1998) and at page 331 (for the period 01.04.1998 to 31.03.1999), name of Accused Vijay Thakur (A-12) was mentioned. Said record was part of Audit Report of Accused Urmila Gupta (A-9) [since expired]. Said Accused Urmila Gupta (A-9), in her lifetime during trial, had admitted her signature at points A & A1 on "Brief Summary of the Society" Ex.PW33/1. The above-mentioned record was part of said Audit Report.
188.5. The Membership Application Form of Accused Vijay Thakur (A-12) was dated 28.11.1999. It means that based on said application form, Accused Vijay Thakur (A-12) had applied with Society for becoming its Member on 28.11.1999.
188.6. Above-mentioned records, reflected that on one hand, name of Accused Vijay Thakur (A-12) was mentioned in the communications with Society, made with the office of RCS, much prior to 28.11.1999, mentioning the fact that he had become Member of Society in Question in the year 1990 and on other hand, there was this Membership Application Form of Accused Vijay Thakur (A-12), which reflected that he had applied with Society, for becoming its Member on 28.11.1999. Surprisingly, address of Accused Vijay Thakur (A-12) on all the above-mentioned documents was uniformly stated. So, I found that documents which Accused Maha Nand Sharma (A-4) had submitted with the office CBI Case No.189/2019 Page 469 of 591 CBI vs. B.M. Sethi & Ors.
of RCS and documents which Accused Karamvir Singh (A-2) had prepared, noted down the fact that Accused Vijay Thakur (A-12) had become Member of Society in Question, way back in the year 1990. Contrary to the same, his Membership Application Form was dated 28.11.1999. So, there were two categories of documents, reflecting the membership of Accused Vijay Thakur (A-12). At least, one category amongst the said documents, was false and forged. That was clear. In the light of said conclusion only one possibility remained, which is that documents with respect to Accused Vijay Thakur (A-12) being Member of society in question, were forged and fabricated, with ulterior motives. It only strengthened the case of prosecution.
188.7. Further, I found that name and signature of Accused Vijay Thakur (A-12), were mentioned in Proceedings Register of Society Ex.PW45/6 (D-55). That Register maintained record with respect to GBM of Society. That Register noted records of said meetings, dated 02.06.2002 and 17.08.2003. So, he was taking part in proceedings of Society in Question. He was not a sleeping Member of said Society. That record reflected his active participation in the affairs of Society. So, his role was not limited to him being a general Member of Society who had simply signed on documents dated 26.02.2002 for the purpose of opening bank account of Society, in the capacity of being President of Society. His role was beyond that. He should have explained the same, during trial but did not do so, for reasons best known to him. It did not help his cause.
CBI Case No.189/2019 Page 470 of 591188.8. Record further revealed that Accused Vijay Thakur (A-12) never was elected as President of Society in Question, at any point of time. Neither Proceedings Register of Society nor any other record of Society revealed that he was elected as President of Society at any point of time. So, documents he had signed on 26.02.2002, Ex.PW46/5, were wrongly and falsely signed by him. Those documents were signed by him in the capacity of being President of Society, which as a matter of fact, he was not. He did not dispute the signature on the said documents, submitted with the bank. He did not give any cogent, plausible and/or reasonable explanation as to why he had signed said documents as President of Society in Question. As such, said record was maintained by the concerned bank in ordinary course of its official duties and therefore, as per Section 114 Illustration (e) of IEA, 1872, presumption was that said record was true and correct. That presumption was never rebutted by Accused Vijay Thakur (A-12) during trial, either by cross-examining prosecution witnesses or by leading defence evidence. Therefore, his role was much beyond signing the said documents, which were part of Ex.PW46/5.
188.9. To make things worse for Accused Vijay Thakur (A-12), I found that his name was not mentioned in the list of Members of Society in Question Ex.PW45/8 (D-7). Then, there was Proceedings Register Ex.PW45/9 (D-8), maintained by the office of Society in Question. That Register was based on proceedings which took place in Society between 29.09.1983 to 05.06.1999. That Register was not complete as there were various blank spaces CBI Case No.189/2019 Page 471 of 591 CBI vs. B.M. Sethi & Ors.
in the proceedings dated 10.09.1988, 25.08.1989 and 11.04.1990, with respect to the name of Members who had attended the said meeting. Infact, at page 75 of the said Register, I found that date of said meeting was not mentioned and names of Members who had attended the said meeting, were also not mentioned. Said Register, therefore, indicated that there was only one possibility, which was, that it was prepared with the motive that necessary details of Members would be filled later on. No other possibility was seen by me with regard to preparation of said meeting records. In those proceedings, again name of Accused Vijay Thakur (A-12) was not mentioned. Now, since name of Accused Vijay Thakur (A-12) was communicated to the office of RCS by Accused Maha Nand Sharma (A-4) through various documents as Member of Society since 1990, so, absence of his name in above-mentioned records spoke volume about the fact that illegal activities and illegal preparation of records, were being done by the Members/ Office Bearers of Society in Question, including accused persons in this case. The aim was simply to get Society in Question revived, based on false and forged records. Accused Vijay Thakur (A-12) whose name was mentioned in said records, could not have escaped from his liability in such circumstances from the maintenance of said records. So, his name was continuously reflected in the records of Society, much prior to 1999, when he had claimed to have become Member of Society in Question. In other words, he could not have claimed that his role was very limited, to the extent that he had simply signed on documents dated 26.02.2002 (being part of D-21, CBI Case No.189/2019 Page 472 of 591 CBI vs. B.M. Sethi & Ors.
Ex.PW46/5 colly) and had no concern with Society, apart from that. The fact that his name was mentioned in records of Society, way prior to 26.02.2002 along with co-accused persons, only indicated that he was involved in criminal conspiracy, for getting Society in Question revived based on false and forged documents. That conspiracy, as such, materialized later on as office of RCS believed the said record to be true, based on which DDA allotted land to Society in Question. So, the whole illegal plan of accused persons, was executed.
188.10. Based on aforesaid appreciation, I found that prosecution was able to prove its case through the evidence, which was brought on record, against Accused Vijay Thakur (A-12).
Appreciation of Statement of Accused Vijay Thakur (A-12), recorded under Section 313 CrPC 188.11. So far as his Statement under Section 313 CrPC, was concerned, he did not answer the incriminating evidence, categorically. He replied by stating "I do not want to answer each of these questions put to me individually. I may be permitted to submit written statement as envisaged under Section 313 (5) CrPC". As such, he did not explain, as to why prosecution witnesses had deposed against him or why this case was filed against him or whether he wanted to lead defence evidence or whether he wanted to say anything else. He answered all the said questions, in the manner, highlighted above. So, he did not answer CBI Case No.189/2019 Page 473 of 591 CBI vs. B.M. Sethi & Ors.
the questions based on incriminating evidence, specifically when they were put to him.
188.12. So far as, his written statement under Section 313 (5) CrPC was concerned, he denied the fact that he was part of conspiracy as alleged by prosecution. He denied allegations of prosecution levelled against him and claimed that he acted as per law and bylaws of Society in Question. He claimed that he did not derive any benefit from the entire transaction. He highlighted that investigation done by IO was shoddy, as per him, IO did not investigate the matter for verifying the fact that his election was genuine or not. He claimed that he was a victim of unfair treatment, being done by prosecution.
188.13. Above-mentioned averments made by him in his written statement under Section 313 (5) CrPC, were general statements. They did not refer to any incriminating fact, as appreciated above, which was brought on record by prosecution. He did not file any counter-case against IO of this case and/or CBI, if he was victim in this case and was falsely implicated by CBI. Infact, he did not explain as to why he was falsely implicated in this case. In other words, he did not highlight the reason/s which was/were borne in mind by CBI, while implicating him as accused, in this case. So, his written statement under Section 313 (5) CrPC was bereft of any relevant fact/s. It was a statement, in general. As such, it failed to highlight any probable defence of accused and/or any short-coming in the case of prosecution. Therefore, I discarded it, being CBI Case No.189/2019 Page 474 of 591 CBI vs. B.M. Sethi & Ors.
inconsequential in nature.
188.14. Accused Vijay Thakur (A-12) did not lead any evidence in his defence, which did not help his cause.
Written Submissions of Accused Vijay Thakur (A-12) 188.15. Accused Vijay Thakur (A-12) filed written submissions at the stage of final arguments. I am appreciating said submissions, in my subsequent paragraphs.
188.16. The first claim of Accused Vijay Thakur (A-12) was that he was assigned no other role by prosecution except the fact that he acted as President of Society in Question for a day and in that capacity, he got bank account of Society opened, simpliciter. Said claim, as such, reflected that he did not fully grasp the case of prosecution. Reason being, that I have already concluded above, that his role was more than that of merely signatory to the documents for opening bank account of Society in Question in Global Trust Bank Ltd. Record of Society which was communicated to the office of RCS by Accused Maha Nand Sharma (A-4) and which was prepared by Liquidator appointed by office of RCS viz., Accused Karamvir Singh (A-2), as appreciated above, noted his name in the records. Those records reflected active participation of Accused Vijay Thakur (A-12) in the activities of Society. In such situation, Accused Vijay Thakur (A-12) could not have made himself separated, from the manipulations of records of Society. If he had read the records of CBI Case No.189/2019 Page 475 of 591 CBI vs. B.M. Sethi & Ors.
Society, then he owed explanation about the said highlighted manipulations, as appreciated above. If he had not read the records of Society, then he had to blame himself for it. Being a prudent reasonable person, placed in his situation, one would expect him to have gone through the record. Failure in this regard, by itself, did not make him an innocent person. Therefore, aforesaid claim is discarded by me being inconsequential in nature.
188.17. Accused Vijay Thakur (A-12) next claimed that prosecution failed to prove the fact that he had signed on documents dated 26.02.2002, which were never sent to FSL for comparison with his admitted signatures and no prosecution witness deposed that said signatures on the said documents, belonged to him. Said claims, again, had no merit as those documents were never disputed by him. Infact, those documents were part of records of bank concerned and presumption was that said record was maintained properly. That presumption was never rebutted by Accused Vijay Thakur (A-12). Therefore, aforesaid claims had no merit and thus, I discarded them.
188.18. Accused Vijay Thakur (A-12) further claimed that even if it is assumed, though not admitted that he had signed documents dated 26.02.2002, then those documents were also signed by Accused Vikas Madan (A-13) and Accused Poonam Awasthi (A-14) in the capacity of being Secretary and Treasurer of Society in Question. The cheque number 873202 was drawn on 27.02.2002 and it was signed by Accused Vikas Madan (A-13) and Accused CBI Case No.189/2019 Page 476 of 591 CBI vs. B.M. Sethi & Ors.
Poonam Awasthi (A-14) in their respective capacities along with late Sh. C.M. Madan, who was the father of Accused Vikas Madan (A-13) and Accused Pankaj Madan (A-5). As per him, case of prosecution was that Accused Pankaj Madan (A-5), Accused Vikas Madan (A-13) and their father Late Sh. C.M. Madan were the principal conspirators in this case. So, if late Sh. C.M. Madan was President of Society on 27.02.2002, then why said principal conspirators would have asked him to open bank account of Society in Question on 26.02.2002, unless, he was lawfully elected President. He further claimed that in hurry, for siphoning off money, said principal conspirators obtained signature of late Sh. C.M. Madan on a self-drawn cheque bearing No. 873202 by fraudulently misrepresenting late Sh. C.M. Madan as President of Society and by manipulating various Registers. IO did not investigate the matter by verifying the said facts. So, it was not verified by IO that Accused Vijay Thakur (A-12) was or was not duly elected President of Society in Question. IO also did not investigate the matter, for verifying as to who was the President of Society, if it was not Accused Vijay Thakur (A-12). Said claims did not absolve him from this case. Reasons being, that firstly said arguments indicated that Accused Vijay Thakur (A-12), in a way raised certain questions viz., Why he would have become President of Society in Question, for one day? Why IO did not investigate the matter for verifying who was the President of Society in Question, if it was not Accused Vijay Thakur (A-12)? If Late Sh. C.M. Madan was the President of Society in Question on 27.02.2002, CBI Case No.189/2019 Page 477 of 591 CBI vs. B.M. Sethi & Ors.
then why would imputed principal conspirators asked him to open bank account on 26.02.2002? All the said questions, on the face of it, revealed that Accused Vijay Thakur (A-12) was not having clear and cogent answers pertaining to the same. If he had become President of Society in Question, genuinely, then he would have answered those questions. It was never his case, that he was not the President of Society in Question, as on 26.02.2002 and that he had not signed the documents dated 26.02.2002. Coupled with the same, I found that he highlighted in his written submissions that IO had not investigated the fact regarding who were the bank officials who had cleared the cheque bearing unathorized signature in the name of President. above-mentioned questions and other claims raised by Accused Vijay Thakur (A-12), indicated that he himself had issues with the manner in which Late Sh. C.M. Madan was elected as President of Society in Question on 27.02.2002. He raised issues with regard to signature on cheque no. 873202, clearance of said cheque by bank officials and manipulations in various Registers by principal conspirators viz., Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13). So, he tacitly admitted that activities in Society in Question were not completely genuine. If he had claimed that activities in said Society were genuine and proper, then he would not have only raised questions, rather, must have answered the same. Reasons being, that said questions pertain to the internal working of Society in Question. Any outsider including IO could not have reached to the actual chain of events which happened in the working of Society, CBI Case No.189/2019 Page 478 of 591 CBI vs. B.M. Sethi & Ors.
pertaining to the aspects highlighted by Accused Vijay Thakur (A-12). His written submissions, as noted above, were made in circumlocution. The only purpose for making written submissions in said manner, which I gathered was that it was to hide true facts from the Court and in the alternative, for shifting the burden on Accused Pankaj Madan (A-5 ) and Accused Vikas Madan (A-13). That was the only impression which one can gather from said written submissions. This finding did not help the cause of Accused Vijay Thakur (A-12). It did not absolve him from this case. Infact, it entangled Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) with him in the criminal conspiracy, which I have found to be proved by prosecution, in my preceding paragraphs. Said claims, therefore, stand discarded.
188.19. Accused Vijay Thakur (A-12) next claimed that IO did not depose about various aspects viz., which election of Society was proper and in accordance with bylaws; which of its Office Bearers were genuinely elected and which were not; how many fictitious Members out of 125 or 90 Members were there. Further, IO did not admit the possibility that some Members not privy to the criminal afoot, might have generally participated in the affairs and management of Society. So, as per him, it was a case of defective investigation and prosecution case was not proved beyond reasonable doubt. Said claims had no merit. Reasons being, that questions, which IO had not answered, were pertaining to the working of Society in Question. Accused Vijay Thakur (A-12) who was a Member and President of Society in Question, was the best CBI Case No.189/2019 Page 479 of 591 CBI vs. B.M. Sethi & Ors.
person, who could have given specific details to the said questions, in his statement under Section 313 CrPC and/or in his defence. He failed on both accounts. In such circumstances, absence of answers with regard to above-mentioned questions, did not make the testimony of the IO false or doubtful. Evidence brought by prosecution was trustworthy and reliable as already appreciated above. Case of prosecution in the light of said appreciation was free from doubts. So, his aforesaid claims stand discarded.
188.20. Accused Vijay Thakur (A-12) further claimed that he had not derived any benefit by opening bank account in the name of Society in Question, by allegedly impersonating as its President. Again, said claim impliedly indicated that he admitted that he had got the bank account of Society opened, as was the case of prosecution, in the capacity of being President of Society. Now once, he had claimed that by doing said act of opening bank account for Society, he had not done anything illegal, he should have specifically explained as to how his said act was genuine by referring to specific rule/ law/ bylaw, governing Society in Question. He could have referred to the records of Society wherein he was genuinely elected as President of Society. Again, he failed to refer to said aspects based on law/records. Considering the large canvas of criminal conspiracy in question, his role of getting bank account of Society opened through his signatures had significance as amount was received from Delhi Cooperative Housing Finance Corporation Limited in the said account and amount of Rs.56,73,630/-, through DD No.942557, dated 27.02.2002 was CBI Case No.189/2019 Page 480 of 591 CBI vs. B.M. Sethi & Ors.
then transferred to DDA for allotment of land. So, the fact that he was not benefited, was not relevant as Society in Question was illegally allotted land through the use of said account. Therefore, his above-mentioned claims stand discarded.
188.21. Accused Vijay Thakur (A-12) next claimed that even if it was hypothesized that he was never elected as President of Society, even then merely opening a bank account might rendered him an impersonator but since, Global Bank Trust Ltd. could not impugn cheating by opening a bank account, his act of impersonation is rather innocuous. Said claim was of no consequence as act of Accused Vijay Thakur (A-12), by no stretch of imagination, can be said to be innocuous. His act had denouements in the shape of allotment of land in favour of Society. Further, I found that such hypothesis was based on whims of Accused Vijay Thakur (A-12). It had nothing to do with the evidence, brought on record by prosecution. What was relevant was the evidence brought on record. Even otherwise, such hypothesis was never put to any of the prosecution witnesses for checking its veracity. So said claim stands discarded being irrelevant in nature.
188.22. Further, he claimed that "statements and depositions of PWs are rife with averments that they signed on Proceedings Register, without even attending the meeting, held in connection with Safdurjung Society and inspite of that they were not held amenable to the charge of conspiracy, as they allegedly derived no CBI Case No.189/2019 Page 481 of 591 CBI vs. B.M. Sethi & Ors.
benefit from the transaction". Said claim indicated that he himself admitted that prosecution evidence was there on record, suggesting that various prosecution witnesses had signed on Proceedings Register, without attending those meetings. That admission only supported prosecution version. It did not help the cause of Accused Vijay Thakur (A-12), rather, it engulfed other accused persons in the criminal conspiracy in question. So above-mentioned claim stands discarded being irrelevant in nature.
188.23. Accused Vijay Thakur (A-12) next claimed that he was tried for his role and involvement in latter part of conspiracy, which was totally separate and distinct from former part of conspiracy, whose objects stood culminated on 26.04.1999. So, his trial was violative of his fundamental rights, as mentioned in Articles 20 and 21 of Constitution of India, 1950. Said claim again was meritless. Reasons being, that it was not the case of prosecution that there were two conspiracies in this case. Case of prosecution was clear, to the effect that accused persons criminally conspired together, to get the Society in Question revived on the basis of false and forged documents, so that land can be allotted to said Society by government. In the said conspiracy, records were falsely created, as appreciated above. Members were shown falsely in the records, though they never applied for it. Various Members were shown as Members who had resigned from their memberships, which they had not done. Not only private persons, rather Government officials/officers did not pay any heed to the evident falsity of records of Society, which indicated their active involvement.
CBI Case No.189/2019 Page 482 of 591Accused persons including Accused Vijay Thakur (A-12) did not explain specifically as to how they had conducted themselves in a lawful manner, while dealing with the affairs of Society. So, there were no two conspiracies. If that is so, then rest of the arguments of Accused Vijay Thakur (A-12), fell flat. There was no violation of any fundamental right of Accused Vijay Thakur (A-12), in this case, in the light of above-mentioned conclusion. above-mentioned claims of Accused Vijay Thakur (A-12) stand discarded being inconsequential in nature.
188.24. Lastly, Accused Vijay Thakur (A-12) claimed that no explanation to the Charge framed was sought from him in his examination under Section 313 CrPC. It was again a baseless argument. Reason being, under Section 313 CrPC., Law mandates that Court has to put incriminating evidence to accused, seeking his explanation. Law does not mandate that contents of Charge has to be put to an accused, for seeking his explanation under Section 313 CrPC. So, said argument was not only baseless, factually rather, it had no support of law. Therefore, above-mentioned claim of Accused Vijay Thakur (A-12) stands discarded.
188.25. Ld. counsel for Accused Vijay Thakur (A-12) argued that there were two criminal conspiracies viz., one, prior to 26.04.1999 which was based on the object that Society in Question must be revived and second conspiracy was after 26.04.1999 for the purpose of securing plot of land from DDA. He argued that prior to 26.04.1999, Accused Vijay Thakur (A-12) had no role to CBI Case No.189/2019 Page 483 of 591 CBI vs. B.M. Sethi & Ors.
play. Since, Accused Vijay Thakur (A-12) was a private person, so, he could not have been tried under PC Act. Said arguments did not help the cause of Accused Vijay Thakur (A-12). On the contrary, they supported prosecution version as by virtue of said arguments, Ld. Counsel for Accused Vijay Thakur (A-12) admitted that there were "criminal conspiracies", involved in this case. Coupled with the same, I have already noted in my preceding paragraphs that name of Accused Vijay Thakur (A-12) was mentioned in the records of Society much prior to 26.04.1999. As such, Accused Vijay Thakur (A-12) did not give any explanation as to how his name was mentioned in the records of Society, way prior to 26.04.1999. So, he was involved in the criminal conspiracy in this case. There was only one criminal conspiracy, as per the case of prosecution, which was to get Society in Question revived on the basis of false & forged documents, for the purpose of allotment of land by DDA. That conspiracy aim was achieved, as per record. Even otherwise, said arguments of Ld. Counsel for Accused Vijay Thakur (A-12), only saw light of the day, at the stage of final arguments. They were absent, during trial. So, they were an after- thought and I discarded the same, accordingly.
188.26. Ld. counsel for Accused Vijay Thakur (A-12) further argued, by referring to Account Opening Form Ex.PW46/5 which noted signature of Accused Vijay Thakur (A-12). He claimed that Accused Vijay Thakur (A-12) was not elected President of Society in Question and was falsely shown to be President of Society in Question in the said document. He argued by raising a question that CBI Case No.189/2019 Page 484 of 591 CBI vs. B.M. Sethi & Ors.
why would he open bank account of Society in Question by signing the form, if C.M. Madan who was the President of Society, was alive, at that time? He claimed that investigation was not done with regard to the said aspect. Coupled with the same, he argued that signature of Accused Vijay Thakur (A-12) was not sent to FSL for analysis and that nobody had seen Accused Vijay Thakur (A-12) signing the documents. All the said arguments did not help the cause of Accused Vijay Thakur (A-12). Firstly, said arguments clearly indicated that name of Accused Vijay Thakur (A-12) as President of Society in Question was falsely mentioned in Ex.PW46/5. Now, in the wake of above-mentioned claim of Accused Vijay Thakur (A-12), said document Ex.PW46/5 became a false and forged document. Accused Vijay Thakur (A-12) was a Member of Society in Question and he should have explained as to how his name was mentioned under the heading of being President of Society in Question. He failed to explain the same.
188.27. So far as signature of Accused Vijay Thakur (A-12) on Ex.PW46/5 was concerned, as such, Accused Vijay Thakur (A-12) never disputed his said signature during trial. Infact, I observed that signatures in Ex.PW46/5, were complete but Accused Vijay Thakur (A-12) only made initials while signing under the charge, levelled against him on 26.09.2018 and in his statement under Section 313 CrPC. What Accused Vijay Thakur (A-12) forgot was that his first alphabet on all the said signatures, made on three different occasions, was the same. It only indicated that he had signed in Ex.PW46/5. Infact, he did not claim that he had not signed CBI Case No.189/2019 Page 485 of 591 CBI vs. B.M. Sethi & Ors.
Ex.PW46/5 which indicated his admission of said signatures. Coupled with the same, I found that Accused Vijay Thakur (A-12), could have placed on record any public document of the period i.e. 26.02.2002 when Ex.PW46/5 was shown to be signed by him. Had he placed on record his admitted signature, around the time i.e. 26.02.2002, I could have appreciated further his defence. So, he acted smartly but it did not help his cause. Instead of raising a specific defence, in his favour, he argued the matter through his counsel, in circumlocution which did not make him an innocent person.
188.28. Ld. counsel for Accused Vijay Thakur (A-12) further argued that IO did not know as to when criminal conspiracy was hatched. Further, IO did not depose as to when criminal conspiracy started and when it ended. Further, he pointed out that IO did not investigate about persons from S.No.91 to 125, as mentioned in the list of Members, submitted to the office of RCS. Further, IO did not explain as to why Accused Vijay Thakur (A-12) would open bank account by signing Account Opening Form. Again, said arguments were based on absolutely wrong appreciation of facts of present case. This case was not based on direct evidence. It was not the situation that some specific person had come to CBI and had lodged his complaint against the illegal activities in Society in Question for the purpose of its revival, in conspiracy with officials of the office of RCS. The situation was that Hon'ble High Court of Delhi had noted manipulations and illegalities in the records of Societies, which were created in 1970s and 1980s, in its order, CBI Case No.189/2019 Page 486 of 591 CBI vs. B.M. Sethi & Ors.
passed in the year 2006. Based on said observations, directions were passed by Hon'ble High Court of Delhi for registration of case by CBI. This case was one amongst such cases, registered by CBI. The task with CBI, in this case, was to collect evidence, pertaining to records of Society, ranging from 1983, when Society in Question was created, till its status in 2006 when case was registered by CBI. In such circumstances, this case had to be viewed and appreciated. The arguments of Ld. Counsel for Accused Vijay Thakur (A-12) regarding short-comings in investigation again did not create any doubt with regard to incriminating evidence, brought on record by prosecution. This case was based on circumstantial evidence. The circumstances only indicated guilty of Accused Vijay Thakur (A-12) and no other theory was possible. So, above- mentioned argument stands discarded.
188.29. Ld. counsel for Accused Vijay Thakur (A-12) further argued that Accused Vijay Thakur (A-12) did not deposit or withdrew any money. As per him, it was Madan family members who were involved in deposition and withdrawing of money. Here, I must clarify that by Madan family members, he meant Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13). Said arguments again did not help his cause as it indicated involvement of Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) in this case. It also indicated that Accused Vijay Thakur (A-12) was passing the buck onto Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) with regard to illegalities, pertaining to wrong handling of finances of Society in Question. It only supported CBI Case No.189/2019 Page 487 of 591 CBI vs. B.M. Sethi & Ors.
prosecution version. Therefore, said arguments stand discarded.
188.30. Lastly, Ld. Counsel for Accused Vijay Thakur (A-12) argued that even if, for the sake of argument, it was believed that Accused Vijay Thakur (A-12) had signed in Ex.PW46/5, then also, Accused Vijay Thakur (A-12) had acted bonafidely by doing so. Again, said argument did not absolve Accused Vijay Thakur (A-12) from this case. Reason being, that said signatures by itself was not the only fact against him. There were other incriminating facts against Accused Vijay Thakur (A-12) like reflection of his name in the records of Society much prior to 26.04.1999, the fact that he was falsely shown as President of Society in Question in Ex.PW46/5 which he had signed also and likewise, other aspects, already appreciated by me in my preceding paragraphs. Same needs no repetition and same be read part of reasoning in this paragraph. So, Accused Vijay Thakur (A-12) had not acted bonafidely while signing Ex.PW46/5. Aforesaid arguments stand discarded, accordingly.
188.31. Therefore, I conclude that during trial, Accused Vijay Thakur (A-12) did not explain as to when exactly, he had become Member of Society in Question, as his Membership Application Form, pertained to the year 1999, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that he became Member in the year 1990. The fact that his name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, CBI Case No.189/2019 Page 488 of 591 CBI vs. B.M. Sethi & Ors.
noting that he had become a Member in the year 1990, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1990 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Manoj Vats (A-11), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Vijay Thakur (A-12) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Vikas Madan (A-13)
189. Role of Accused Vikas Madan (A-13) as per charge- sheet was that he along with Accused Pankaj Madan (A-5) had CBI Case No.189/2019 Page 489 of 591 CBI vs. B.M. Sethi & Ors.
received all the records of Society in Question, from Accused Maha Nand Sharma (A-4), after coming to know that his name and that of his brother Accused Pankaj Madan (A-5), did not figure-in, in the freeze list, which was sent by the office of RCS to DDA for allotment of land. So, it resulted in a dispute between him and his brother on one side and Accused Maha Nand Sharma (A-4) on the other side. After receiving records from Accused Maha Nand Sharma (A-4), he along with his brother started running the Society. During his tenure, list of 10 and 15 resigned Members of Society was sent to the office of RCS on 21.10.1999 and 16.11.1999, respectively. Thereafter, list of 25 new Members was sent to the office of RCS on 26.12.1999 in which his name, his brother's name and his father's name (Late Sh. C M Madan) were mentioned. On 27.12.1999, another list of 25 resigned Members of Society was sent to the office of RCS. Various Members denied that they had signed their Resignation Letters and same was confirmed in the Opinion of GEQD/Shimla. Further, during his tenure, Society opened bank accounts in Global Trust Bank Ltd. and SBI. DDA disbursed Rs.86,73,630/- in favor of Society during his tenure and certain cheques were issued by Society, which were signed by him, in favor of his brother Accused Pankaj Madan (A-5). Those cheques were signed without approval from Society. So, in said manner he along with other accused persons had not managed the affairs of Society, legally.
189.1. Based on above-mentioned allegations and evidence collected by IO, Accused Vikas Madan (A-13) was charged with CBI Case No.189/2019 Page 490 of 591 CBI vs. B.M. Sethi & Ors.
offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 IPC.
189.2. Keeping in mind above-mentioned facts, I am now appreciating the evidence, brought on record by prosecution and in defence.
Appreciation of Prosecution Evidence viz-a-viz Accused Vikas Madan (A-13) 189.3. To start with, I found name of Accused Vikas Madan (A-13) in certain official record of the office of RCS which also noted the date, when he had become Member of Society in Question. I am referring to the said record in my subsequent paragraphs.
189.4. As per noting file of the office of RCS Ex.PW45/2 (D-4), name of Accused Vikas Madan (A-13) was found by me at S.No.111, at page 29/N. Against his name, it was mentioned that he had become Member of Society in Question on 15.08.1990. Coupled with the same, I found that his name was mentioned at S.No.111, in the list of Members of Society, which accompanied letter dated 10.02.1999, written by Accused Maha Nand Sharma (A-4), in the capacity of being President of Society in Question, addressing Assistant Registrar (South), Cooperative Societies Cell, Old Court Building, Parliament Street, New Delhi. That letter and CBI Case No.189/2019 Page 491 of 591 CBI vs. B.M. Sethi & Ors.
list of Members, was at page 413/C and 408/C, respectively. Name of Accused Vikas Madan (A-13) was also mentioned at page 402/C at S.No.111. The address of Accused Vikas Madan (A-13) in the said entries, was noted as 61, Jagriti Enclave, Delhi-110092. The date, when he had become Member of Society in Question, was mentioned as 15.08.1990. That record was attested by Accused Maha Nand Sharma (A-4), in the capacity of being President of Society in Question. All the said record, was part of correspondence file of Society in Question with the office of RCS Ex.PW45/4 (D-6). Signatures of Accused Maha Nand Sharma (A-4) in the said record at point Q-379 and Q-382, were duly confirmed by GEQD/ Shimla in the Report Ex.PW43/2.
189.5. In addition to that, his involvement with Society can be further seen from the document with the heading "Share Capital Summary", which was part of Audit Record Ex.PW45/3. In the said record his name was mentioned as a Member of Society at S.No.178, on various pages viz., at page 258 (for the period 01.04.1990 to 31.03.1991), at page 276 (for the period 01.04.1992 to 31.03.1993), at page 283 (for the period 01.04.1993 to 31.03.1994, at page 293 (for the period 01.04.1994 to 31.03.1995), at page 301/C (for the period 01.04.1995 to 31.03.1996), at page 319 (for the period 01.04.1997 to 31.03.1998) and at page 331 (for the period 01.04.1998 to 31.03.1999). Said record was part of Audit Report of Accused Urmila Gupta (A-9) [since expired]. Said Accused Urmila Gupta (A-9), in her lifetime during trial, had admitted her signature at points A & A1 on "Brief Summary of the CBI Case No.189/2019 Page 492 of 591 CBI vs. B.M. Sethi & Ors.
Society" Ex.PW33/1. The above-mentioned record was part of said Audit Report.
189.6. Further, I found that his name along with above- mentioned address, at Jagriti Enclave was mentioned at S.No.111, at page 199/C, which was enclosed with the Report of Accused Karamvir Singh (A-2) as mentioned at page 208/C in Ex.PW45/3 (D-5), duly signed by him at point Y8. The Agenda / Notice dated 18.01.1999 accompanied with said Report was duly signed by Accused Karamvir Singh (A-2) at point Y6. Said Agenda/ Notice along with Report, were duly admitted by Accused Karamvir Singh (A-2) during trial and same were marked as Ex.A-3/1. That Special GBM was dated 27.01.1999.
189.7. Above-mentioned record, which was never disputed by Accused Vikas Madan (A-13), during trial, reflected that he had become Member of Society in Question on 15.08.1990 and had attended meeting, conducted by Accused Karamvir Singh (A-2), in the capacity of being liquidator, appointed by the office of RCS, on 27.01.1999. Said record, therefore, clearly proved that Accused Vikas Madan (A-13) had become Member of Society in Question on 15.08.1990. In other words, he was a Member of Society in Question, prior to revival of said Society. Said record also indicated that Accused Maha Nand Sharma (A-4) and other accused persons, arrayed by prosecution in this case, were acquainted of him, prior to revival of Society in Question.
CBI Case No.189/2019 Page 493 of 591189.8. This brings me to the Membership Application Form of Accused Vikas Madan (A-13), which was dated 28.11.1999. That form, therefore, indicated that Accused Vikas Madan (A-13) had applied with Society, for becoming Member of said Society on 28.11.1999. That form, therefore, contradicted above-mentioned record.
189.9. To make things worse for Accused Vikas Madan (A-13), I found that his name was not mentioned in Membership Register Ex.PW45/8 (D-7). I failed to understand, as to why his name was not mentioned in said Register which was the very back bone of Society, reflecting its Members.
189.10. Based on above-mentioned records, it was clear that one uniform specific date, when Accused Vikas Madan (A-13) had become Member of Society in Question, was not mentioned. In other words, some record reflected that he had become Member of Society in Question on 15.08.1990 and some reflected that he had applied with Society on 28.11.1999, for becoming Member of said Society. Record was also there, which all together did not mention his name. Here, I must emphasis that all the said records, wherein his name was mentioned, noted down his address as 61, Jagriti Enclave, Delhi-110092. So, said record with regard to date of membership of Accused Vikas Madan (A-13), was not uniform. It only indicated that either all record was false and forged or some record was false and forged. Whatever the case may be, onus rested on Accused Vikas Madan (A-13) to have explained, as to why said CBI Case No.189/2019 Page 494 of 591 CBI vs. B.M. Sethi & Ors.
discrepancy regarding his membership was there. He was not simply a Member of Society in Question. He had been Office Bearer of said Society. In such capacity, he had the responsibility, to reflect that he was a bonafide Member of Society. One of the aspects which could have reflected his bonafide, was the specific date of his membership. That aspect should have been proved by him and him only. He could not have taken the shield of claiming that same had to be proved by prosecution. Reason being, that record was not created by prosecuting agency. It was the record of the Society where he was an active Member and Office Bearer. In such capacity, the record should have reflected his membership on one date specifically and clearly. So based on such appreciation, I conclude that record regarding his membership was false and forged. It did not help his cause. It only supported the version of prosecution.
189.11. After considering above-mentioned record, various questions arose viz., how can Accused Vikas Madan (A-13) claiming himself of becoming Member of Society in Question after revival of Society in Question in 1999, was known to co-accused Maha Nand Sharma (A-4), way back in the year 1990? How come address of Accused Vikas Madan (A-13) was mentioned in the records, prepared prior to revival of Society in Question? How come his name was not mentioned in the Register pertaining to membership of Society in Question? How come Audit Report reflected his name being a Member, prior to revival of Society in Question? All the said questions remained unanswered during trial.
CBI Case No.189/2019 Page 495 of 591By bringing said record, in evidence, prosecution discharged its burden and onus shifted on Accused Vikas Madan (A-13), for explaining / answering said question. Accused Vikas Madan (A-13) failed to do so.
189.12. Above-mentioned record also indicated that there was complete possibility of him knowing other accused persons. Possibility to the contrary was next only to impossible. Reason, I am concluding so, was that said record noted signatures of Accused Maha Nand Sharma (A-4) and Accused Vikas Madan (A-13) had taken records of Society from Accused Maha Nand Sharma (A-4). That fact was never denied by Accused Vikas Madan (A-13), during trial. Infact, in his written submissions, he admitted that he had received the records of Society from Accused Maha Nand Sharma (A-4). Coupled with the same, I found that list of Members was prepared by Accused Karamvir Singh (A-2) in the capacity being Liquidator, appointed by the office of RCS, for conducting meeting in Society in Question. So, said record was communicated to the office of RCS and was prepared by persons, in their official capacities. In such circumstances, to say that persons who had prepared and signed said record, without knowing Accused Vikas Madan (A-13), would be an unbelievable and improbable conclusion. The only possibility based on said record which I could make out, was that it was prepared by the concerned accused persons, in conspiracy with Accused Vikas Madan (A-13), in a false manner.
CBI Case No.189/2019 Page 496 of 591189.13. Besides that, I found that Accused Vikas Madan (A-13) became Office Bearer of Society in Question, by virtue of Annual GBM dated 03.06.2001, as per Proceedings Register Ex.PW45/10 (D-9) for the period 12.06.1999 to 03.06.2001. The said record of Annual GBM reflected that it was chaired by Accused Maha Nand Sharma (A-4). It also reflected that signatures of various Members were mentioned at page 60 and 61 but their names were not mentioned against their signatures. Why their names were absent? That was a material question which Accused Vikas Madan (A-13) should have answered, as he had attended the said meeting. He did not answer the said question, during trial. It only indicated that said meeting record was forged and false. It also indicated that it was created by Accused Vikas Madan (A-13) in conspiracy with Accused Maha Nand Sharma (A-4) and other accused persons viz., Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15), as they had also attended the said meeting and their names were mentioned in the said record.
189.14. Apart from above record, I found that in Proceedings Register of Society Ex.PW45/7, it was mentioned that Smt. Anju Sharma had resigned from her membership, as per meeting of Society dated 19.09.2001. Further, in meeting dated 15.07.2002, it was noted that Anil Sharma had resigned from his membership from Society in Question. Further, in meeting dated 12.09.2002, it was noted that Dushyant Sharma @ Binni Vats had resigned from his membership from Society in Question. All the said persons were examined as PW31, PW13 and PW14 respectively. Said CBI Case No.189/2019 Page 497 of 591 CBI vs. B.M. Sethi & Ors.
witnesses testified in their respective testimonies that they had never resigned from Society in Question. Accused Vikas Madan (A-13) did not cross examine the said witnesses and therefore, their oral testimonies remained unchallenged. It means that it was brought on record by prosecution that above-mentioned witnesses were wrongly and falsely removed from Society in Question, by virtue of meetings, as referred above, noted in Ex.PW45/7. Said meetings were attended by Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. Therefore, said false record was created in conspiracy with co-accused persons by Accused Vikas Madan (A-13).
189.15. Now coming to the aspects of financial transactions, I found that by virtue of Resolution dated 26.02.2002, Accused Vikas Madan (A-13) was authorized to operate the bank account of Society, which was opened in Global Trust Bank, Connaught Place, New Delhi. Said Resolution at page 83, was part of Ex.PW46/5 (D-14 to D-49). After getting said authorization, Accused Vikas Madan (A-13) issued certain cheques, in his own favour and withdrew money from the accounts of Society. Details of said cheques, are mentioned below:
Cheque No. Dated Amount
275668 10.12.2005 Rs.3,00,000/-
312891 27.09.2005 Rs.2,00,000/-
329201 05.01.2006 Rs.8,00,000/-
329202 19.01.2006 Rs.2,50,000/-
329203 20.01.2006 Rs.1,00,000/-
Total Rs.16,50,000/-
CBI Case No.189/2019 Page 498 of 591
CBI vs. B.M. Sethi & Ors.
189.16. Accused Vikas Madan (A-13) did not dispute his signatures on said cheques. It means that he had withdrawn a sum of Rs.16,50,000/- from the account of Society. Why did he withdrew said amounts? He should have answered said question. He failed to do so, during trial. Infact, details of said cheques and purpose of withdrawal of said amounts, were nowhere mentioned in any Proceedings Register of Society in Question. Therefore, said Proceedings Register did not note down the said details of money transaction with respect to account of Society. Said absence of details, only indicated that there was malafide in the mind of accused persons who had signed the proceedings in Proceedings Register, for hiding truth regarding said money transactions. It made the said record forged and false. So, I conclude that Accused Vikas Madan (A-13) had withdrawn said money from the account of Society, illegally and had wrongfully gained from said amounts. Execution of said cheques and withdrawal of amounts mentioned from said cheques, were never disputed by him, during trial. So, he wrongfully utilized the funds of Society in Question by withdrawing said amounts from the account of Society.
Appreciation of Statement of Accused Vikas Madan (A-13), recorded under Section 313 CrPC 189.17. In his statement under Section 313 CrPC, Accused Vikas Madan (A-13), replied by showing his ignorance towards incriminating evidence put to him. He raised the issue of faulty CBI Case No.189/2019 Page 499 of 591 CBI vs. B.M. Sethi & Ors.
investigation but did not explain how said faulty investigation, prejudice him. He failed to answer above-mentioned aspects which were reflected in the records of Society. He claimed that he was wrongfully charge-sheeted but did not give any explanation as to why, he was wrongfully charge-sheeted by CBI. In other words, he failed to explain, as to why CBI wanted to implicate him in this case, without any reason. He also answered in the same manner as Accused Pankaj Madan (A-5) and Accused Poonam Awasthi (A-14) had answered to the incriminating evidence, put to them under Section 313 CrPC. As such, I have already appreciated the statements of said accused persons, recorded under Section 313 CrPC and have concluded said statements to be of no consequence, for the purpose of acquittal of said accused persons. Said appreciation is not repeated here for the sake of brevity. Suffice it is to conclude that Accused Vikas Madan (A-13) did not explain the incriminating evidence as appreciated above in a proper, reasonable and believable manner.
Appreciation of Defence Evidence, led by Accused Vikas Madan (A-13) 189.18. Accused Vikas Madan (A-13) examined DW3 S.K Bangia in his defence, who placed on Court record, the records of Society Ex.DW3/2. Said record was inconsequential as Accused Vikas Madan (A-13) failed to explain its relevance. In the written submissions which he filed at the stage of final arguments, he did not explain, as to why he had examined said witness in his defence CBI Case No.189/2019 Page 500 of 591 CBI vs. B.M. Sethi & Ors.
and why he placed on record, said records of Society. Even otherwise, said record pertain to the Liquidation Proceedings of Society in 2019. This case pertained to the year 2006. Therefore, it had no relevance for the purpose of adjudication of this case. Thus, testimony of DW3 did not help his cause. I discarded it accordingly.
189.19. Based on aforesaid appreciation, I conclude that Accused Vikas Madan (A-13), in conspiracy with other accused persons, had prepared false and forged records of Society, for the purpose of cheating the office of RCS. The said effort materialized as Society in Question, after revival, was allotted land by DDA and therefore, in said manner DDA was also cheated.
Written Submissions of Accused Vikas Madan (A-13) 189.20. In addition to that, I find that he had filed written submissions at the stage of final arguments, raising certain issues, based on which he sought acquittal in this case. Same are appreciated by me, in by subsequent paragraphs.
189.21. Accused Vikas Madan (A-13) claimed that he had become Member of Society on 05.12.1999 and became Office Bearer of Society after said Society was revived. So as per him, he became Member of Society in Question after offence stood committed. He denied his role in revival of Society and claimed that he had no association with Society, when it was revived. Further, he claimed that had there been any connivance between CBI Case No.189/2019 Page 501 of 591 CBI vs. B.M. Sethi & Ors.
him and other accused persons prior to revival of Society, then Minutes of Meeting, prior to revival of Society, must have noted his signatures. So, offences under Section 471 and 478 IPC were not made out against him. Said claims were not tenable. Reasons being, that based on appreciation of record of Society, I have already concluded that it was not confirmed that Accused Vikas Madan (A-13) had become Member of Society in Question on 05.12.1999. Record revealed that date of his membership was mentioned as 15.08.1990 in the noting file and correspondence of the office of RCS. Said record was not disputed by him during trial. The Membership Register did not reflect his name. So, his claim that his role only started after revival of Society in Question was not believable and probable. It was clear that he was Member of Society in Question, prior to its revival. above-mentioned claims of Accused Vikas Madan (A-13), therefore, stand discarded.
189.22. Accused Vikas Madan (A-13) next claimed that there was no evidence showing his involvement in conspiracy with other accused persons, for revival of Society in Question. As such, all the events had occurred, prior to his membership in Society in Question. He was arrayed as accused for the reason that he had signed cheques, which were issued in favor of his brother Accused Pankaj Madan (A-5) and also on account of faulty investigation. Further, IO had failed to produce Election Report on record for showing that he had the authority to open the bank account in the name of Society and for signing the cheques. Further, he claimed that this case was not based on misappropriation of funds of CBI Case No.189/2019 Page 502 of 591 CBI vs. B.M. Sethi & Ors.
Society. Those claims again had no merits. Reasons being, that I have already appreciated above that record of Society reflected his active involvement in the affairs of Society, which also included the fact that he had withdrawn amounts from account of Society, illegally. His acquaintance with co-accused persons based on record, was another aspect which indicated the possibility of involvement of criminal conspiracy between him and co-accused persons. Absence of answers by him with respect to material defects in the records of Society, only indicated that he wanted to hide truth from the Court. above-mentioned claims of Accused Vikas Madan (A-13), therefore, stand discarded.
189.23. Further, Accused Vikas Madan (A-13) claimed that all the records of Society including alleged fake resignations were received from former officer bearer and co-accused Maha Nand Sharma (A-4), by him, when he was elected as Secretary of Society. All the resignations of Members, which were shown during his tenure as Office Bearer of Society, were attested and forwarded by Accused Maha Nand Sharma (A-4), as suggested by meeting records D-55 and D-56. The Report of GEQD/Shimla also confirmed signatures of Accused Maha Nand Sharma Sharma (A-4), who had attested the resignations in document D-12. He claimed that he along with other Office Bearers namely Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) were under a bonafide belief that resignations which were attested and forwarded by co-accused Maha Nand Sharma (A-4) were genuine as during his tenure, not even a single complaint was received from CBI Case No.189/2019 Page 503 of 591 CBI vs. B.M. Sethi & Ors.
any Member of Society, highlighting the fact that such Members were falsely shown as Members who had resigned or that they had no interest in Society. Said claims again were not tenable. Reasons being, that he along with co-accused persons had not acted bonafidely, in running the affairs of Society. Records were not properly maintained, for reasons best known to him and co-accused persons. The very fact that nobody questioned the evident short- comings in the records of Society, indicated the possibility of presence of criminal conspiracy between all accused persons. Various Members clearly deposed that they never resigned from Society in Question and that fact was never countered by Accused Vikas Madan (A-13), through cross-examination, by giving suggestions to the contrary. above-mentioned claims of Accused Vikas Madan (A-13), therefore, stand discarded.
189.24. Accused Vikas Madan (A-13) next claimed that none of the prosecution witnesses had deposed anything against him. Most of the public witnesses had got their membership, either through Ved Prakash (as per the testimonies of PW19, PW20, PW21, PW22, PW23, PW24, PW25 and PW26) and said Ved Prakash was neither made an accused nor a witness in this case. Further, PW11, PW28, PW29, PW30, PW48 and other witnesses did not deny the fact that they had taken membership of Society or resigned from Society. Those witnesses admitted receiving back their money after they had resigned from Society, which indicated that they were not wrongfully inducted or shown as Members who wrongfully resigned from Society. None of the Members, who were examined CBI Case No.189/2019 Page 504 of 591 CBI vs. B.M. Sethi & Ors.
as prosecution witnesses, claimed in their testimonies that their contributions were put to loss. Said claims again were meritless. Reasons being, that Accused Vikas Madan (A-13) failed to appreciate that this case was based on circumstantial evidence. His expectations that prosecution witnesses should have deposed directly against him, specifying his illegal conduct, were his own expectations which had no basis. Relevant aspect was the evidence which was brought on record by prosecution, which I have already appreciated above. The facts viz., that some Members had received back their deposited money and that some Members had not denied their membership, by itself did not absolve accused from this case. The aspects highlighted above indicating illegalities in the working of Society were never answered by him, during trial. above- mentioned claims of Accused Vikas Madan (A-13), therefore stand discarded.
189.25. Accused Vikas Madan (A-13) next claimed that he had handed over all the records of Society, in good faith, to Investigating Officer of CBI. He had handed over the records of Society, in the same condition without alteration, suppression, addition or interference, which he had received from Accused Maha Nand Sharma (A-4). He did not derive any benefit from said records. He had no prior knowledge or occasion or reason to doubt the said documents to be incomplete, forged, manipulated or fabricated. IO did not question him with regard to falsity of said records during investigation. So, his role was confined solely to forwarding what he had received and beyond that he had no CBI Case No.189/2019 Page 505 of 591 CBI vs. B.M. Sethi & Ors.
participation, involvement or complicity. He denied his involvement in any conspiracy with other co-accused persons, based on said submissions. Said claims did not absolve him from this case. Reasons being, that the aspect of him and other accused persons acting in good faith, was not reflected by the records of Society. If they had acted in good faith, then why they did not go through the records of Society? Why they believed the records to be gospel truth? Why various Members denied that they had not resigned from Society in Question but were shown as resigned Members in the Proceedings Register of Society? Why records of Society were not completely filled? Why different dates of memberships of Accused Vikas Madan (A-13) were there in the records? Absence of answers to the said questions and likewise, only indicated that accused persons had not acted bonafidely rather they had ill motive of getting the Society in Question revived, illegally. above-mentioned claims of Accused Vikas Madan (A-13), therefore stand discarded.
189.26. Accused Vikas Madan (A-13) next claimed that he was falsely implicated in this case and IO had not examined all persons who were Executive Members during his tenure. Further, IO had not examined persons through whom many prosecution witnesses had taken membership of Society, like Ved Prakash. Said claims were meritless, again. Reasons being, that evidence brought on record by prosecution was relevant which this Court had to appreciate, primarily. The evidence which IO had not collected, by itself, did not make out a ground of acquittal of accused, as CBI Case No.189/2019 Page 506 of 591 CBI vs. B.M. Sethi & Ors.
Accused Vikas Madan (A-13) failed to bring on record the facts and circumstances which prejudiced him due to incomplete investigation of IO. The claims made above were bald claims, not supported by any factual evidentiary proof. above-mentioned claims of Accused Vikas Madan (A-13), therefore, stand discarded.
189.27. Accused Vikas Madan (A-13) further claimed that he along with Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) were made accused persons in this case as during their tenure as officer bearers of Society, Accused Pankaj Madan (A-5), who had become Member of Society for a short period of time, had advanced loan to Society, bonafidely. All the said accused persons had become Members of Society after it was revived. So, they did not commit any offence, as alleged by prosecution. Said claims were meritless as said claims remained bald claims, which were not supported by any evidence. The very aspect of advancement of loan to Society by Accused Pankaj Madan (A-5), was never explained by Accused Vikas Madan (A-13) during trial. He failed to answer the purpose of said loan, terms & conditions of said loan, reason of not disclosing said loan details in Proceedings Register and likewise other aspects during trial. Merely by claiming that he had acted bonafidely, did not solve any purpose, as record was contrary to the said claims. above-mentioned claims of Accused Vikas Madan (A-13), therefore stand discarded.
189.28. Accused Vikas Madan (A-13) further claimed that he along with Accused Pankaj Madan (A-5), Accused Narinder Dhir CBI Case No.189/2019 Page 507 of 591 CBI vs. B.M. Sethi & Ors.
(A-15) and Accused Poonam Awasthi (A-14) were not beneficiary in any manner and they exited from the Society. They were not allotted any flat and they had not relation with any association / relation with co-accused persons who were allotted flats. So, there was no wrongful loss to any person. He denied that he along with said accused persons had committed offence of cheating punishable under Section 420 IPC. Said claims did not make him an innocent person. Reasons being, that Society in Question was allotted land by DDA and that was an admitted fact. That allotment was not based on genuine and legal documents. That allotment was based on illegal, false and forged documents. So, Society was benefited by the allotment of land, in an illegal manner. Construction of flats and allotment of flats in such circumstances became immaterial, as it was the never the case of prosecution that accused persons were benefited by illegal allotment of flats. The case of prosecution was based on allegations that accused persons had created false and forged documents, for the purpose of revival of Society in Question so that land could be allotted to said Society. That case was duly proved by prosecution, beyond reasonable doubt. The illegalities which Accused Vikas Madan (A-13) and other accused persons had committed, with regard to working and revival of Society in Question, as appreciated in this judgment, were never explained by him and other accused persons during trial. Therefore, above- mentioned claims of Accused Vikas Madan (A-13), therefore, stand discarded.
CBI Case No.189/2019 Page 508 of 591189.29. Accused Vikas Madan (A-13) next claimed that Audit Report of Society for the period 2001-2002 to 2011-2012, which was brought on record during defence evidence, clearly suggested that there was no tempering or manipulations with the accounts of Society. Said records only indicated that he along with Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) were elected as Office Bearers of Society for some time. Said claims did not help his cause. Reasons being, that Accused Vikas Madan (A-13) had withdrawn amounts from Society, without any reason and Accused Pankaj Madan (A-5) had been paid by Society for some unknown and unexplained loan by Society, with the signatures of Accused Vikas Madan (A-13). Said payments by Society were never accounted to in Proceedings Registers of Society. Those payments were never informed to the office of RCS. Reason for said conduct was never explained, during trial. Further, Audit Report was prepared by Accused Urmila Gupta (A-9) [since expired]. In the said Audit Report, again there were various manipulations which were never explained during trial by any of the accused persons. Since, Accused Urmila Gupta (A-9) who has expired, was arrayed as one of the accused by prosecution, so, there was every possibility that she did not highlight the short-comings in the records of Society, intentionally. The Audit Report of Society for the year 2001-2002 to 2011-2012, did not remove the manipulations, as observed by me, in the records prior to said time line. So, said Audit Reports did not help the cause of accused persons including Accused Vikas Madan (A-13). above-mentioned CBI Case No.189/2019 Page 509 of 591 CBI vs. B.M. Sethi & Ors.
claims of Accused Vikas Madan (A-13), therefore stand discarded.
189.30. Lastly, Accused Vikas Madan (A-13) claimed that there was no suspicion of the involvement of above-mentioned accused persons. He claimed that he along with above-mentioned accused persons were victims who were wrongly prosecuted in this case. Said submissions did not help his cause and the cause of other accused persons, he had referred. Reasons being, that had that been the situation, he and co-accused persons should have examined themselves in this case under Section 315 CrPC. It is only then that could have explained their grievances. They failed to do so, for reasons best known to them. Infact, they did not Register any FIR against CBI or any other person with respect to allegations, levelled against them, in this case. In such circumstances, they could not have claimed that they had become victims in present case. I have already appreciated above the documents and circumstances, which only indicate existence of theory of guilt of Accused Vikas Madan (A-13) and other co-accused persons. No other theory was possible in the facts & circumstances of this case. above-mentioned claims of Accused Vikas Madan (A-13), therefore stand discarded.
189.31. Therefore, I conclude that during trial, Accused Vikas Madan (A-13) did not explain, as to why, he had received money through cheques from Society by issuing cheques in his own favour. He had received records of Society in Question from Accused Maha Nand Sharma (A-4) illegally as said factum was not CBI Case No.189/2019 Page 510 of 591 CBI vs. B.M. Sethi & Ors.
mentioned in Proceedings Register of Society and it was not informed to the office of RCS. He did not explain, during trial, as to when exactly, he had become Member of Society in Question, as his Membership Application Form, pertained to the year 1999, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that he became Member in the year 1990. The fact that his name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that he had become a Member in the year 1990, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1990 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Vikas Madan (A-13) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused CBI Case No.189/2019 Page 511 of 591 CBI vs. B.M. Sethi & Ors.
Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Poonam Awasthi (A-14)
190. Role of Accused Poonam Awasthi (A-14) as per charge- sheet, was based on facts viz., that account of Society in Question in Global Trust Bank Ltd. was opened by her and other Office Bearers of Society in Question; that she had signed most of the cheques of Society in Question, along with Accused Vikas Madan (A-13) and that she along with co-accused Vikas Madan (A-13) and Accused Narinder Dhir (A-15) had opened bank account in the name of Society in OBC, Connaught Place Branch in connivance with Accused Vijay Thakur (A-12). Consequently, the said bank accounts received money, which was part of loan, which Society in Question had secured from Delhi Cooperative Housing Financial Society Ltd.
190.1. Based on above-mentioned allegations and evidence collected by IO, Accused Poonam Awasthi (A-14) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)
(d)(iii) of PC Act 1988. She was also charged with offence punishable under Section 420 IPC.
CBI Case No.189/2019 Page 512 of 591190.2. Keeping in mind above-mentioned facts, I am now appreciating the evidence, brought on record by prosecution.
Appreciation of Prosecution Evidence viz-a-viz Accused Poonam Awasthi (A-14) 190.3. As per prosecution, the cheques which she had signed, as Office Bearer (in the capacity of being Treasurer of the Society) resulted in payments to Accused Pankaj Madan (A-5) and to Accused Vikas Madan (A-13), by Society. She did not dispute her signatures on said cheques. Those cheques are Ex.PW46/5 (colly). Details of said cheques are mentioned below:-
Sr. No. Cheque No. Dated Amount
1 269609 13.12.2004 Rs.1,60,000/-
2 100931 06.12.2004 Rs.1,00,000/-
3 269610 21.12.2004 Rs.3,00,000/-
4 100929 03.12.2004 Rs.20,000/-
5 873204 04.11.2004 Rs.1,50,000/-
6 873205 11.11.2004 Rs.2,00,000/-
7 873207 09.11.2004 Rs.35,000/-
8 100926 18.11.2004 Rs.1,00,000/-
9 100927 29.11.2004 Rs.40,000/-
10 100928 30.11.2004 Rs.1,00,000/-
11 275650 30.07.2005 Rs.1,00,000/-
12 275651 20.01.2005 Rs.1,00,000/-
13 275654 10.05.2005 Rs.1,00,000/-
14 275655 14.05.2005 Rs.9,50,000/-
15 275657 19.05.2005 Rs.2,50,000/-
16 275659 01.06.2005 Rs.4,50,000/-
CBI Case No.189/2019 Page 513 of 591
CBI vs. B.M. Sethi & Ors.
17 275662 27.07.2005 Rs.2,00,000/-
18 275670 03.01.2006 Rs.2,60,000/-
19 275675 10.06.2005 Rs.50,000/-
20 275676 07.06.2005 Rs.5,50,000/-
21 275678 08.06.2005 Rs.3,75,000/-
22 275668 10.12.2005 Rs.3,00,000/-
23 312891 27.09.2005 Rs.2,00,000/-
24 329201 05.01.2006 Rs.8,00,000/-
25 329202 19.01.2006 Rs.2,50,000/-
26 329203 20.01.2006 Rs.1,00,000/-
Total Rs.62,40,000/-
(Rupees Sixty Two
Lacs Forty
Thousand)
190.4. Above-mentioned details of cheques, which noted her signatures, therefore, indicated that with her consent and knowledge, money was received by Society as loan and that money was withdrawn by Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) from said Society. So far as receiving of money by Society was concerned, that fact cannot be seen in isolation. It was the result of illegal activities of co-accused persons along with her, based on preparation of false and forged records, which resulted in revival of Society in Question and subsequent disbursement of loan. So said loan was disbursed, on the basis of false and forged documents, prepared by accused persons, in conspiracy with her. The next aspect was withdrawal of money by Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13). Again, she did not explain as to why said accused persons had CBI Case No.189/2019 Page 514 of 591 CBI vs. B.M. Sethi & Ors.
withdrawn money from the account of Society. Her non- explanation in this regard, did not make her an innocent person.
190.5. Besides that, she had signed Account Opening Forms of Society with respect to account opened by Society in banks viz., SBI, which was part of Ex.PW35/1 (colly) and Global Trust Bank Ltd. (now OBC), which was part of Ex.PW46/5 (colly). Those forms were filled by her, as part of bigger conspiracy, as aim was to get land allotted, on the basis of false representation of records. Here, I must mention that I failed to understand, as to what was the need of opening bank accounts of Society in more than one bank. Being Treasurer of Society, she should have explained the reason of opening of bank accounts in more than one bank. Failure of explanation with regard to the same also did not help the cause of Accused Poonam Awasthi (A-14).
190.6. Further, signatures in above-mentioned documents and her capacity of being Treasurer of Society were not disputed by Accused Poonam Awasthi (A-14). It means that she actively participated in the affairs of Society in Question. If that is so, then she should have explained as to what were the reasons of short- comings in the records of Society, as noted above in preceding paragraphs. She should have explained the nature of her duties and the extent of her acquaintance with co-accused persons. As such, she should have explained her position in Society in Question. She failed on all accounts. Neither she gave any suggestion to any prosecution witnesses regarding above-mentioned aspects nor she CBI Case No.189/2019 Page 515 of 591 CBI vs. B.M. Sethi & Ors.
explained the same in her statement, recorded under Section 313 CrPC. Further, she did not lead any evidence in support of her defence. She claimed in her statement under Section 313 CrPC that this case was false. Further, she claimed that investigation was faulty. As such, she did not explain as to why this case was false. She did not explain also as to how investigation was faulty and how she was prejudice by alleged faulty investigation.
Appreciation of Statement of Accused Poonam Awasthi (A-14), recorded under Section 313 CrPC 190.7. In her statement under Section 313 Cr.P.C, Accused Poonam Awasthi (A-14) claimed that there was no investigation with regard to whether there was any discrepancy in running Society or its bank account. She denied that she was benefited in any manner. Further, investigation was not done with regard to Office Bearers of Society, who were elected at different times. As per her, all Members were inducted as per rules of Society and none of the Members, during her tenure, was bogus Member. She also claimed that none of the Members was known to her. She also claimed that all the Members were scrutinized by SDM (Returning Officer) during the election, conducted in 2006, after her tenure and SDM did not find any person who was not fit to be a Member of Society. The charge-sheet did not mention said facts. Apart from that, she claimed that all the Resignation Letters were duly attested and forwarded by Accused Maha Nand Sharma (A-4). Since, none of the Members ever complained about their resignations and no CBI Case No.189/2019 Page 516 of 591 CBI vs. B.M. Sethi & Ors.
discrepancy was found in the working of Society, during her tenure, so she claimed the investigation was shady and biased.
190.8. All the above-mentioned explanations of Accused Poonam Awasthi (A-14) did not make out any ground for acquitting her, from this case. There are plenty of reasons, for coming to said conclusion. To start with, she did not explain the blank spaces in Proceedings Register and Membership Register of Society. Since, she was a Treasurer of Society, so she had access to those documents. If that is so, then for the said false and forged records of Society, she was also answerable. Merely by claiming that everything was correct in the working of Society, by itself was not sufficient. PW14 Dushyant Vats deposed in his testimony during trial, that he never resigned from Society, though his Resignation Letter was on record. He was a witness, who was a Member of Society in Question, during the tenure of Accused Poonam Awasthi (A-14). So, Accused Poonam Awasthi (A-14) cannot claim that no Member of Society in Question was removed on the basis of false Resignation Letter. Various Members were falsely shown in the records of Society, though they were not. Such Members were PW8 K. Manoj Kumar Subudhi, PW9 Rakesh Dabas, PW10 Ram Niwas and PW13 Anil Sharma. The Opinion of GEQD/Shimla noted that handwriting and signatures of concerned Members were not in their handwriting in the records of Society. Further, Society did not respond to the notices/reminders issued from the office of RCS, from July 1985 till January 1998 but there was no reason, assigned by Society for said inaction. Now, CBI Case No.189/2019 Page 517 of 591 CBI vs. B.M. Sethi & Ors.
Membership Application Form of Accused Poonam Awasthi (A-14), which was part of Ex.PW45/11 (D-10) was undated. It was not clear as to when she had become Member of Society in Question. That Membership Application Form, was part of record, which contained Membership Applications Forms of other Members like Ved Prakash, Amit Mittal, Veena Puri, Gurvinder Singh etc. Those Members had become Members of Society in the year 2002. So, since Membership Application Form of Accused Poonam Awasthi (A-14) was part of said record, there can be possibility that exact date and year, were not mentioned inadvertently. In other words, she might have become Member of Society in the year 2002. Even if, it is believed that she had become Member of Society in Question, in the year 2002, then also issue remained with regard to her membership as her name was mentioned in the list of Members at S.No.190 in Ex.PW45/2 (D-4) which specify that she had become Member of Society in Question, in the year 1999. She did not explain the said discrepancy, regarding her membership during her trial.
190.9. Further, it was not relevant that any Member of Society had or had not raised issue with regard to his/her resignation, prior to registration of FIR in question. Substantive evidence of prosecution witnesses, which was recorded during trial, was relevant. Coupled with the same, she did not explain, as to why office of RCS, was not timely informed as per rules / law / instructions with regard to change in membership of Society in Question. It does not lie in her mouth, to say that all the Members CBI Case No.189/2019 Page 518 of 591 CBI vs. B.M. Sethi & Ors.
were properly admitted in Society in Question and relevant Members had properly resigned from Society in Question.
190.10. The claim of Accused Poonam Awasthi (A-14) that nothing illegal happened, during her tenure, was not tenable. Reason being, that after she had become Office Bearer in Society in Question, she should have checked the records of Society as a prudent Office Bearer of Society. If she had not done so, then she cannot blame anybody else for the short-comings in said records, as highlighted above. If she had checked the previous records of Society, she should have brought the same to the knowledge of Registrar of Cooperative Societies, for showing her bonafide. She failed on both accounts. So, she did not act like a reasonable prudent Treasurer, placed in her position.
190.11. Even otherwise, Proceedings Register Ex.PW45/10 for the period from 12.06.1999 to 03.06.2001, noted her name in annual GBM dated 03.06.2001. The said record of meeting was not complete as names of persons, who had attended said meeting, were not mentioned against their respective signatures. So, said meeting record did not reflect that it was record of a genuine meeting. That meeting had taken place during her tenure. So, she owed explanation with regard to said short-coming. She did not give any explanation, with regard to the same, during trial. So, her argument of no illegal activity, being done during her tenure, was a baseless argument.
CBI Case No.189/2019 Page 519 of 591190.12. To make things worse, her name was not mentioned in Membership Register Ex.PW45/8 (D-7). I failed to understand as to why her name was not there in said Register. Accused Poonam Awasthi (A-14) did not explain the same, during trial, which did not help her cause.
190.13. Apart from that, the fact regarding criminal conspiracy between Accused Poonam Awasthi (A-14) and Accused Maha Nand Sharma (A-4), was reflected from the record Ex.PW45/4. That record was a record of office of RCS. In the said record, name of Accused Poonam Awasthi (A-14) was mentioned at S.No.107 under the heading "Consolidated List of Members Enrolled" at page 360/C. Same was attested by Accused Maha Nand Sharma (A-4), at point Q-374. The Opinion of GEQD/Shimla Ex.PW43/2 confirmed the signatures of Accused Maha Nand Sharma (A-4) at said point. That entry noted that she had become Member of Society in Question on 20.10.1990. Another document, which reflected her acquaintance with Accused Maha Nand Sharma (A-4) since 1990, was document pertaining to list of Members of Society, which was part of Ex.PW45/4. In the said file, name of Accused Poonam Awasthi (A-14) appeared at S.No.123, page 407. That document was also attested by Accused Maha Nand Sharma (A-4) at point Q-379. Signatures of Accused Maha Nand Sharma (A-4), at said point was confirmed by GEQD/Shimla in its Report Ex.PW43/2. Her involvement with Society can be further seen from the document with the heading "Share Capital Summary", which was part of Audit Record Ex.PW45/3. In the said record, at CBI Case No.189/2019 Page 520 of 591 CBI vs. B.M. Sethi & Ors.
page 258 (for the period 01.04.1990 to 31.03.1991) at S.No.190, at page 276 (for the period 01.04.1992 to 31.03.1993) at S.No.190, at page 283 (for the period 01.04.1993 to 31.03.1994 at S.No.190, at page 293 (for the period 01.04.1994 to 31.03.1995) at S.No.190, at page 301/C (for the period 01.04.1995 to 31.03.1996) at S.No. 190, at page 319 (for the period 01.04.1997 to 31.03.1998) at S.No.190 and at page 331 (for the period 01.04.1998 to 31.03.1999) at S.No.190. Said record was part of Audit Report of Accused Urmila Gupta (A-9), since expired. Said Accused Urmila Gupta (A-9), in her lifetime during trial, had admitted her signature at points A & A1 on "Brief Summary of the Society" Ex.PW33/1. The above- mentioned record was part of said Audit Report. Those documents clearly indicated and proved that she was acquainted with Society and Accused Maha Nand Sharma (A-4), since the year 1990. So, she could have claimed that she had become Member of Society, on 05.12.1999, as claimed by her in her written submissions. It made her said submissions, false.
190.14. The statement of Accused Poonam Awasthi (A-14), recorded under Section 313 CrPC, was based on her denial. It lacked her proper, reasonable and believable explanation with regard to incriminating evidence. I have already appreciated the said statement in my preceding paragraphs. Suffice it is to conclude that said statement did not help her cause.
190.15. Accused Poonam Awasthi (A-14) initially stated in her statement under Section 313 CrPC, that she wanted to lead defence CBI Case No.189/2019 Page 521 of 591 CBI vs. B.M. Sethi & Ors.
evidence, but she did not lead any such evidence. Why she wanted to lead defence evidence and why she did not lead any defence evidence, remained buried, during trial. She did not explain the same. The net result is that she did not led any defence evidence for probabilizing her defence.
Written Submissions of Accused Poonam Awasthi (A-14) 190.16. Besides aforesaid aspects, I find that Accused Poonam Awasthi (A-14) had raised certain aspects in her written submissions which are appreciated by me in my subsequent paragraphs.
190.17. She claimed that she was made accused in this case, only for the reason that she was signatory to certain cheques which were issued in favour of Accused Pankaj Madan (A-5) & Ors. and that she had signed some bank Account Opening Forms, without any authorization and capacity. Her said understanding was wrong and incomplete. It was not merely her signatures which she did rather, the circumstances in which she had made those signatures, were relevant. I have already appreciated above said circumstances, which were incriminating against her and which she did not answer, to any extent during trial. So, her said submissions stand dismissed.
190.18. Accused Poonam Awasthi (A-14) further claimed that this case was not a case of misappropriation of funds of Society, rather was a case of conspiring in wrongful and dishonest revival CBI Case No.189/2019 Page 522 of 591 CBI vs. B.M. Sethi & Ors.
of Society. She denied misappropriating funds of Society and forging documents of Society. Again, said submissions did not give any strength to her case. Reason being, that she was charged with the offence of criminal conspiracy, read with offences punishable under Section 420/468/471 IPC. The criminal conspiracy aspect was clearly visible from the records. It was proved by prosecution, based on above-mentioned appreciation of evidence. So, her said claim regarding misappropriation of funds was a baseless argument. Fact remains that Society in Question was revived on the basis of false and forged documents and in the process, offices of RCS and DDA were cheated, by the acts of accused persons.
190.19. Accused Poonam Awasthi (A-14) next claimed that IO had done faulty investigation. Again, said aspect had no merit as she failed to highlight the fault in the investigation, which was of such extent that evidence brought on record by prosecution, would have become doubtful. This case was based on records of Society in Question. Those records spoke for themselves. Accused Poonam Awasthi (A-14) did not give any explanation with regard to short- comings in said records and her own conduct with regard to ignoring the said short-comings in records. Those short-comings were not merely irregularities. Those were efforts made intentionally, to somehow complete the records, so that Society in Question can get revived somehow. Officials / Officers of office of RCS, as arrayed by prosecution in this case, were also party to the said criminal conspiracy. Therefore, in the light of said CBI Case No.189/2019 Page 523 of 591 CBI vs. B.M. Sethi & Ors.
appreciation, argument based on faulty investigation, by itself did not absolve her from the charges which were levelled on her.
190.20. In her written submissions, Accused Poonam Awasthi (A-14) claimed that she had performed her official duties and responsibilities. The record of Society was contrary to the said claim. She did not explain as to how she was cautious by performing her duties and responsibilities. So, her said claim was vague and inconsequential. I dismissed it accordingly.
190.21. Accused Poonam Awasthi (A-14) also claimed that she had signed cheques to co-accused Accused Pankaj Madan (A-5) for the purpose of refunding loan amount, extended by co-accused Accused Pankaj Madan (A-5) to Society and issuance of said cheques, was strictly withing the framework of her role and responsibilities as Treasurer of Society. Said claim again has no merit, as she did not give details of loan and terms & conditions of said loan which Society had received from Accused Pankaj Madan (A-5). She did not refer to any records of Society, which noted that Accused Pankaj Madan (A-5) advanced loan to the Society. So, her said claim stand dismissed, being baseless in nature.
190.22. Accused Poonam Awasthi (A-14) further claimed that her association with Society only began after the freeze list was submitted before the office of RCS and Society was revived. So, there was no conspiracy, before her involvement with the affairs of Society. Said claim was baseless as it was not supported by any CBI Case No.189/2019 Page 524 of 591 CBI vs. B.M. Sethi & Ors.
document. She failed to answer as to how her name was mentioned in various records, as mentioned in para ** of this judgment, which reflected that she had become Member of Society in Question, way prior to submission of freeze list with the office of RCS. So, her stand claim stands dismissed.
190.23. Lastly, Accused Poonam Awasthi (A-14) claimed that none of the prosecution witnesses deposed against her. Said claim has no merit as she failed to appreciate that this case was based on circumstantial evidence. The oral testimonies and documentary proofs, along with expert Opinion, as appreciated above, only indicated that only one theory was present in this case, which was based on guilt of Accused Poonam Awasthi (A-14) with respect to the charges, levelled against her. No other theory was possible in the given facts and circumstances of this case.
190.24. Therefore, I conclude that during trial, Accused Poonam Awasthi (A-14) did not explain, as to when exactly, she had become Member of Society in Question, as his Membership Application Form, pertained to the year 1999, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 reflected that she became Member in the year 1990. The fact that her name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that she had become a Member in the year 1990, indicated that Accused Maha Nand Sharma (A-4) knew her, through records since 1990 and based on CBI Case No.189/2019 Page 525 of 591 CBI vs. B.M. Sethi & Ors.
the same, I draw inference that she was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that her name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13) and Accused Narinder Dhir (A-15) also. So, based on said record, only one inference can be drawn, which is that Accused Poonam Awasthi (A-14) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
Appreciation of Record viz-a-viz Accused Narinder Dhir (A-15)
191. In the charge-sheet, it was mentioned that Accused Narinder Dhir (A-15) had signed Account Opening Form on 26.02.2002, besides other Office Bearers of Society in Question, in Global Trust Bank Ltd., which later on merged with OBC since CBI Case No.189/2019 Page 526 of 591 CBI vs. B.M. Sethi & Ors.
August 2004. Further, he had signed in Account Opening Form with respect to SBI, Friends Colony Branch, New Delhi, on 12.04.2003, along with other Office Bearers of Society in Question. Based on said forms, Society was given Account No.17000111335 in Global Trust Bank Ltd. and Account No.75066 in SBI. He had signed two cheques, on behalf of Society in the capacity of being authorized signatory, though he was not approved by Society, to do so. He was father-in-law of Accused Pankaj Madan (A-5). Those were the facts which were revealed during investigation, against him, highlighting, that he was part of criminal conspiracy with Accused Pankaj Madan (A-5), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13) and Accused Poonam Awasthi (A-14).
191.1. Based on the said investigation, Accused Narinder Dhir (A-15) was charged with offences punishable under Section 120-B read with 420/ 468/ 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988. He was also charged with offence punishable under Section 420 IPC.
Appreciation of Prosecution Evidence viz-a-viz Accused Narinder Dhir (A-15) 191.2. The role of Accused Narinder Dhir (A-15) in criminal conspiracy, as alleged by prosecution, has to be appreciated from the beginning when he became Member of Society in Question.
CBI Case No.189/2019 Page 527 of 591191.3. Records revealed that as per noting file of the office of RCS, Ex.PW45/2, name of Accused Narinder Dhir (A-15) was mentioned at S.No.116 at page 29/N. Against his name, it was mentioned that he had applied for becoming Member of Society in Question through an application on 12.08.1990 and he became Member on 15.08.1990. He did not dispute the said document, throughout trial. It clearly indicated and proved that he had become Member of Society in Question on 12.08.1990. In the wake of said record, he should have explained as to how his name figured-in, in the said record, which he did not do, during trial. His claim that he had become Member of Society in Question, after its revival, became unbelievable, in the light of said record.
191.4. Further, I found that as per the file maintained by the office of RCS, Ex.PW45/3 (D-5), a Report of Accused Karamvir Singh (A-2) was mentioned at page 208/C. That Report was prepared by Accused Karamvir Singh (A-2), in the capacity of being Liquidator of Society in Question. That Report was enclosed with three documents viz., copy of Agenda, copy of Minutes of Special GBM and copy of UPC list. Now copy of UPC list at page 199/C, mentioned name of Accused Narinder Dhir (A-15) at S.No.116. The Report of Accused Karamvir Singh (A-2) noted signature of concerned Assistant Registrar with date "09.02.1999". Society in Question as per record was revived on 26.04.1999. In the light of said Report of Accused Karamvir Singh (A-2), it was clear that said accused, in the capacity of being Liquidator had found Accused Narinder Dhir (A-15) as Member of Society in CBI Case No.189/2019 Page 528 of 591 CBI vs. B.M. Sethi & Ors.
Question, prior to revival of Society. In the light of said appreciation, I found that claim of Accused Narinder Dhir (A-15) that he had become Member of Society in Question, after it was revived, to be a baseless claim.
191.5. The involvement of Accused Narinder Dhir (A-15) with Society can be further seen from the document with the heading "Share Capital Summary", which was part of Audit Record Ex.PW45/3. In the said record, his name was mentioned as a Member of Society at S.No.183, on various pages viz., at page 258 (for the period 01.04.1990 to 31.03.1991), at page 276 (for the period 01.04.1992 to 31.03.1993), at page 283 (for the period 01.04.1993 to 31.03.1994, at page 293 (for the period 01.04.1994 to 31.03.1995), at page 301/C (for the period 01.04.1995 to 31.03.1996), at page 319 (for the period 01.04.1997 to 31.03.1998), and at page 331 (for the period 01.04.1998 to 31.03.1999). Said Accused Urmila Gupta (A-9), in her lifetime during trial, had admitted her signature at points A & A1 on "Brief Summary of the Society" Ex.PW33/1. during trial. The above-mentioned record was part of said Audit Report. Those documents clearly indicated and proved that Accused Narinder Dhir (A-15) was acquainted with Society and Accused Maha Nand Sharma (A-4), since the year 1990. So, he could not have claimed that he had become Member of Society after its revival. That was the only logical and probable inference, which can be withdrawn. No other theory or inference can be deduced from the said record, with regard to his membership in Society in Question.
CBI Case No.189/2019 Page 529 of 591191.6. There was another document which must be mentioned here. Same was part of Ex.PW45/4 (D-6). It was list of Members of Society in Question, which Accused Maha Nand Sharma (A-4) had submitted along with his letter dated 10.02.1999 to the Office of Assistant Registrar (South) Cooperative Society Cell, Old Court Building, Parliament Street, New Delhi-110001. The said letter dated 10.02.1999 mentioned signature of Accused Maha Nand Sharma (A-4) at point Q-382. Report of GEQD/Shimla Ex.PW43/2, in para 4 opined, that said signature at point Q-382 was of Accused Maha Nand Sharma (A-4). In the said list of Members of Society in Question, at S.No.116 at page 408/C, name of Accused Narinder Dhir (A-15) was mentioned. Against his name, it was mentioned that he had become Member of Society in Question on 15.08.1990. That list was signed by Accused Maha Nand Sharma (A-4) at page 407 at point Q-379. The Report of GEQD/Shimla Ex.PW43/2, confirmed the fact in para 4, that Accused Maha Nand Sharma (A-4) had signed at point Q-379 in the said list of Members of Society in Question. As such, said letter and list of Members, were never disputed by Accused Narinder Dhir (A-15), during trial.
191.7. The Membership Register of Society Ex.PW45/8 (D-7) did not mention the name of Accused Narinder Dhir (A-15), at all. Based on said Register, I failed to appreciate as to when exactly Accused Narinder Dhir (A-15) became Member of Society in Question.
CBI Case No.189/2019 Page 530 of 591191.8. Lastly, I must refer to Membership Application Form of Accused Narinder Dhir (A-15) at page 77 in Ex.PW45/11 (D-10) which mentioned the date of 28.11.1999. I failed to understand as to how his said Membership Application Form, could have noted down said date, in the light of above-mentioned records of Society. It only indicated that said form was forged and fabricated.
191.9. The net result is that claim of Accused Narinder Dhir (A-15) regarding him becoming Member of Society in Question after its revival did not match with the records of Society, as appreciated above. It did not help his cause. It only indicated that he was trying to cover up truth from the Court but his efforts, failed.
191.10. Further, I must mention here the record of Proceedings Register Ex.PW45/9 (D-8) for the period 29.09.1983 to 05.06.1999. In the said Register, details of Annual GBM dated 11.04.1990 were mentioned at page 64 to 67. Said meeting record was not complete as names of Members, who had attended said meeting, were not mentioned completely. There were blank spaces in the said meeting record. Accused Narinder Dhir (A-15) never explained the reason of said blank record of meeting dated 11.04.1990, during trial. Infact, he did not explain any aspect with respect to blank spaces in the said Proceedings Register, at all, during trial. Said non-explanation on his part only indicated that he wanted to hide truth from the Court. Once, he had become Office Bearer of Society in Question in the year 2001, he had access to the CBI Case No.189/2019 Page 531 of 591 CBI vs. B.M. Sethi & Ors.
said records and if that is so, then he should have gone through the said records. If he had gone through said records, then he owed an explanation regarding the said blank spaces. If he had not gone through the said record, then he has to blame himself only for not going through the said record. In either case, he failed to remove doubts regarding veracity of above-mentioned records. He was not a layman having no concern with Society. He was an Office Bearer of Society who took active participation in the working of Society as reflected by the records pertaining to Account Opening Forms and Cheques he had signed. So, he could not have turned blind eye towards the falsity in said records of Society.
191.11. Further, I must mention the Proceedings Register Ex.PW45/10 (D-9) for the period 12.06.1999 to 03.06.2001. In the said Register, at page 60, details of proceedings of Annual GBM held on 03.06.2001 were mentioned. In the said meeting, he was elected as Member of Managing Committee. Again, that meeting mentioned signatures of various Members at page 60 and 61 but names of said Members were not mentioned. That Register noted records of various meetings of Society and most of the said meetings were chaired by Accused Maha Nand Sharma (A-4). Presence of Accused Maha Nand Sharma (A-4), Accused Poonam Awasthi (A-14) and Accused Vikas Madan (A-13) in the said Proceedings Register, only indicated existence of criminal conspiracy between them. Otherwise, how was it possible that Accused Narinder Dhir (A-15) had signed at page 60 and 61, without mentioning his name, against his signatures. The manner in CBI Case No.189/2019 Page 532 of 591 CBI vs. B.M. Sethi & Ors.
which said record was prepared, only indicated that it was done, for giving impression, that Society was functioning properly, though it was not.
191.12. This brings me to Proceedings Register Ex.PW45/7 (D-56). In the said Register, I found record of Managing Committee Meeting dated 28.02.2002 at page 16. That meeting was attended by Accused Narinder Dhir (A-15). In the said meeting, fact regarding payment to the DDA and deposition of land money were discussed but it did not mention the fact regarding Society receiving loan from Accused Pankaj Madan (A-5). Infact, there was no agenda in any of the meetings of Society, which reflected that Society had received loan of some specific amount on some specific date based on some specific conditions, from Accused Pankaj Madan (A-5). So Accused Narinder Dhir (A-15) did not prove the fact that Society had ever received any loan from Accused Pankaj Madan (A-5), through said record.
191.13. The said Proceedings Register Ex.PW45/7 at page 29 noted that PW13 Anil Sharma had tendered his resignation which was accepted by the Managing Committee of Society. Now PW13 Anil Sharma, in his testimony, had testified that he had never given any Resignation Letter of his membership to Society, as he had never become Member of said Society, at any point of time. So, said record of meeting dated 15.07.2002, signed by Accused Narinder Dhir (A-15) and other co-accused persons, was false record based on the testimony of PW13 Anil Sharma. Similarly, CBI Case No.189/2019 Page 533 of 591 CBI vs. B.M. Sethi & Ors.
PW31 Anju Sharma had testified in her testimony that she had never become Member of Society in Question. She denied that she ever resigned from said Society. Contrary to the said deposition, I found that in Managing Committee Meeting dated 19.09.2001, it was mentioned that said PW31 Anju Sharma had given resignation of her membership in Society in Question, which was approved by the said Committee. So, said meeting record became false based on testimony of PW31. Accused Narinder Dhir (A-15), who had attended said meeting on 19.09.2001, did not give an explanation with regard to said contradiction. Similarly, PW17, Papkesh Kumar Bhardwaj, who was relative of Accused Maha Nand Sharma (A-4), had deposed that he had never given his resignation from membership of Society in Question but meeting dated 15.10.2001, which was signed by Accused Narinder Dhir (A-15) also noted that Papkesh Bhardwaj had resigned from membership of Society in Question. It made the said meeting dated 15.10.2001 false and fabricated.
191.14. Based on above-mentioned appreciation, I also found that Accused Maha Nand Sharma (A-4) was acquainted with Accused Narinder Dhir (A-15), way prior to revival of Society in Question. Had that not been the position, then name of Accused Narinder Dhir (A-15) would not have been mentioned in the records of Society, reflecting his membership, to be relating back to the year 1990. All in all, Accused Narinder Dhir (A-15) raised false plea before the Court regarding his membership in Society in CBI Case No.189/2019 Page 534 of 591 CBI vs. B.M. Sethi & Ors.
Question. That was the only conclusion which I could have drawn, based on appreciation of evidence on record.
191.15. Now coming to the aspects of Accused Narinder Dhir (A-15), signing bank Account Opening Forms for Society and two cheques signed by him, in favour of Accused Pankaj Madan (A-5).
191.16. Accused Narinder Dhir (A-15) had signed in Account Opening Form of Society addressed to SBI, which was part of Ex.PW35/1 (colly) (D-31) as President of Society in Question. That form was undated and said fact only hinted towards the falsity aspect only. Further, he was authorized signatory, in terms of Resolution dated 26.02.2002 (at page 83), part of Ex.PW46/5, to deal with said account of Society, opened in Global Trust Bank Ltd., along with co-accused persons. Said record only indicated that Accused Narinder Dhir (A-15) and other co-accused persons of Society, despite having knowledge about false and fabricated record of Society, did not stop, rather proceeded further and got the said bank accounts opened in the concerned banks. The said bank accounts were opened, for financial transactions. So, Accused Narinder Dhir (A-15) and other co-accused persons working for Society, had no fear of law while getting the said bank accounts opened for financial transactions, based on false and fabricated records.
191.17. So far as two cheques issued by Accused Narinder Dhir (A-15) in favour of Accused Pankaj Madan (A-5) were concerned, CBI Case No.189/2019 Page 535 of 591 CBI vs. B.M. Sethi & Ors.
those cheques were cheque bearing No.275675 dated 10.06.2005 for an amount of Rs. 50,000/- and cheque bearing No.275662 dated 27.07.2005 for Rs.2 Lacs. Accused Narinder Dhir (A-15) had to explain the specific reason based on which he had signed said cheques as one of the authorized signatory of Society in Question, in favour of Accused Pankaj Madan (A-5). He failed to give any explanation, with regard to the same, during trial. Infact, there was no entry / record in Proceedings Register of Society which noted the purpose of issuance of said cheques in favour of Accused Pankaj Madan (A-5). The only conclusion which I drew, based on appreciation of said cheques was that, Accused Narinder Dhir (A-15) wanted illegal enrichment of Accused Pankaj Madan (A-5), causing wrongful loss to Society and also the fact that he wanted to give impression of Society being run in proper manner. No other conclusion can be drawn with regard to issuance of said cheques. It only pointed towards the fact that Accused Narinder Dhir (A-15) had issued said cheques, in criminal conspiracy with other accused persons for the purpose of illegally benefiting Accused Pankaj Madan (A-5).
Appreciation of Statement of Accused Narinder Dhir (A-15), recorded under Section 313 CrPC 191.18. So far as Statement of Accused Narinder Dhir (A-15), recorded under Section 313 CrPC was concerned, again, it was based on evasive replies. He did not give any explanation with regard to incriminating evidence, put to him. He claimed viz., that CBI Case No.189/2019 Page 536 of 591 CBI vs. B.M. Sethi & Ors.
investigation was faulty; that he was falsely implicated in this case; that there was not discrepancy in running of Society or bank accounts of Society; that no Member had any grievance against him; that all the Members were inducted as per rules of Society; that no Member was personally known to him and that SDM concerned during his tenure had scrutinized the Members. Again, said claims were bald claims. They were not supported by any factual proof. They did not explain the manipulations in the records of Society, as noted above. Therefore, said explanations did not help his cause. I discarded the same being inconsequential in nature.
191.19. Accused Narinder Dhir (A-15) did not lead any defence evidence. In this case, there were various facts pertaining to his membership and functioning of Society in Question, within his knowledge, which he could have explained by entering into witness box, under Section 315 CrPC. It was necessary as explanations given by him in response to incriminating evidence put to him under Section 313 CrPC, had no support as he had not given any specific fact-based suggestion to prosecution witnesses based on said explanations. His evidence, in such circumstances, would have given support to his said replies. Since, he did not examine himself, so it did not help his cause.
Written Submissions of Accused Narinder Dhir (A-15) 191.20. This brings me to his written submissions, where he raised certain issues. Accused Narinder Dhir (A-15) filed written CBI Case No.189/2019 Page 537 of 591 CBI vs. B.M. Sethi & Ors.
submissions, at the stage of final arguments, in which he mentioned the grounds, based on which, he wanted acquittal in this case. Same are appreciated by me in my subsequent paragraphs.
191.21. Accused Narinder Dhir (A-15) claimed that he had merely signed certain cheques and documents pertaining to account opening in bank with respect to Society in Question. So, by merely signing those documents, he claimed that no illegality was done by him. That claim was not tenable, as said signatures on bank Account Opening Forms and Cheques, were not to be seen and appreciated, in isolation to other circumstances of this case. Those signatures were seen and appreciated by me as an act being part of larger conspiracy based on revival of Society in Question in illegal manner. Those signatures also reflected that Accused Narinder Dhir (A-15) knew that there were manipulations in the records of Society and despite that, he knowingly signed on said documents. The net result of said signatures was that Society received loan amount in its account. Said signatures also resulted in disbursement of amounts to Accused Pankaj Madan (A-5). They also led to creation of bank related documents of Society. On cursory look, those documents reflected that Society was functioning properly but after going deep into records of Society, I found those documents to be mask, covering illegal activities of Society. This conclusion did not help the cause of Accused Narinder Dhir (A-15) and therefore, above-mentioned claim was discarded by me being merit less.
CBI Case No.189/2019 Page 538 of 591191.22. Accused Narinder Dhir (A-15) further claimed that this case was not based on misappropriation of funds of Society. He denied that he had fabricated or forged documents of Society. So, his implication as accused in this case was not reasonable. Again, said claim had no merits. Reason being, that said claim again was a bald claim. It was not based on any proof or reasons. I have already noted and appreciated the fact regarding issuance of two cheques by him in favor of Accused Pankaj Madan (A-5). In the light of any plausible explanation by him regarding the reason of issuance of said cheques, I find that he was instrumental in diverting the funds of Society, to the loss of bonafide Members of Society. Those bonafide Members who had paid membership fee for becoming Members of Society in Question, did not expect that their money would be diverted in said manner by him. As such, by issuing said cheques, he cheated the bonafide Members of Society in Question, who would not have become Members of Society in Question, but for the impression that such Society was running bonafidely. The acts of Accused Narinder Dhir (A-15) were not bonafide. The said cheques resulted in illegal enrichment of Accused Pankaj Madan (A-5) and wrongful loss to Society. Therefore, aforesaid claims were discarded by me being baseless in nature.
191.23. Next, Accused Narinder Dhir (A-15) claimed that he had become Member of Society in Question, after said Society was revived. So, there was no question of him colluding with other co- accused persons, for the purpose of revival of said Society. He explained that his signatures were not present on Minutes of CBI Case No.189/2019 Page 539 of 591 CBI vs. B.M. Sethi & Ors.
Meetings or documents submitted before Registrar of Cooperative Societies, for the purpose of revival of Society in Question. Those claims had no merits, again. As such, he did not explain the reason(s), as to why Accused Maha Nand Sharma (A-4) in various records had mentioned his name in the list of Members, noting the fact that he had become Member of Society in Question in the year 1990 (details of the same are already mentioned above in preceding paras which are not repeated here for the sake of brevity). He did not give any explanation with regard to said evident manipulations in records of Society. His above-mentioned claims again are not based on any reason or proof. They did not explain the discrepancies, highlighted above. Therefore, I discarded them being inconsequential in nature.
191.24. Accused Narinder Dhir (A-15) claimed further that investigation done by CBI suffered from serious infirmities, as IO failed to take into possession the Election Report of Society which would have established that he was duly elected as an Office Bearer of Society. Therefore, in such capacity, he was authorized to sign bank Account Opening Form and other documents on behalf of Society. That claim was baseless as records, brought on record by prosecution, did not reflect uniform date when he was elected as Office Bearer of Society in Question. He did not give any explanation with regard to the same, during trial. What IO could have collected, during investigation, was not relevant in the given circumstances of this case. What was relevant was, the evidence which he collected during investigation and which was brought on CBI Case No.189/2019 Page 540 of 591 CBI vs. B.M. Sethi & Ors.
record by prosecution, during trial. So, aforesaid claims were discarded by me being irrelevant in nature.
191.25. Accused Narinder Dhir (A-15) further claimed that his signatures on bank Account Opening Forms with respect to SBI and OBC, were done by him within the framework of his role and responsibilities as President of Society. He had signed the cheques for refunding the loan amount extended to the Society. Those claims had no merits, as he did not explain as to what he meant by "within the framework of his role and responsibilities as President of Society"? It could not have been that he had the power and responsibility to pay Accused Pankaj Madan (A-5) any amount of Society, without any reason. When he had issued above-mentioned two cheques in favor of Accused Pankaj Madan (A-5), on behalf of Society, he should have come up with proper and reasonable explanation for issuance of said cheques. He failed on that account. Being President of Society in Question was not a fluke. Being President of Society in Question meant that he was burdened with responsibility of running the Society in a proper, reasonable, lawful and correct manner. He could have done so, only when he had considered the previous records of Society, noting down the wrong doings of co-accused persons which he should have notified to Members of Society and to the office of RCS. He failed on said accounts. So, he did not perform his duties, properly and legally. He just shut his eyes from the evidence of manipulation of records, for reasons best known to him. The only conclusion, which I can draw is that he did so, intentionally in a malafide manner.
CBI Case No.189/2019 Page 541 of 591191.26. Lastly, he claimed that no RCS official had testified against him, to the effect that he was pursuing with RCS office with regard to Society in Question. Besides that, none of the prosecution witnesses mentioned his name in any manner or highlighted any irregularity, done by him. So, testimonies of prosecution witnesses reflected that they had no grievances against him. Their testimonies reflected that either they remained Members of Society or their money was refunded. Said claims also were not tenable. Reason being, that this case was based on circumstantial evidence. The circumstances, as appreciated above, only hinted towards his guilt. No other possibility or theory was present in this case. In other words, there was absence of theory of his innocence, based on appreciation of circumstances of this case. The circumstantial evidence, as appreciated above, did not help his cause and those reasons, which are not repeated here for the sake of brevity, only made his above-mentioned claims, meritless.
191.27. The written submissions of Accused Narinder Dhir (A-15) did not help his cause. Same are discarded by me, accordingly.
191.28. Therefore, I conclude that during trial, Accused Narinder Dhir (A-15) did not explain, as to when exactly, he had become Member of Society in Question, as his Membership Application Form, pertained to the year 1999, whereas, other record of Society i.e. Noting File Ex.PW45/2 and Proceedings Register Ex.PW45/9 CBI Case No.189/2019 Page 542 of 591 CBI vs. B.M. Sethi & Ors.
reflected that he became Member in the year 1990. The fact that his name was mentioned in the lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999, noting that he had become a Member in the year 1990, indicated that Accused Maha Nand Sharma (A-4) knew him, through records since 1990 and based on the same, I draw inference that he was involved in criminal conspiracy with Accused Maha Nand Sharma (A-4). Otherwise, how was it possible that his name and address were mentioned in the said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with his letter dated 10.02.1999. The said lists of Members, furnished by Accused Maha Nand Sharma (A-4) along with letter dated 10.02.1999 which was part of Ex.PW45/4, also noted names of Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13) and Accused Poonam Awasthi (A-14) also. So, based on said record, only one inference can be drawn, which is that Accused Narinder Dhir (A-15) had conspired with said accused persons for the purpose of revival of Society in Question, based on falsification and forgery in records of Society. The said conspiracy engulfed Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16), who were Public Servants. The result of said criminal conspiracy was that land was allotted to Society in Question by DDA. So, departments of DDA & RCS were cheated due to use of said false and forged records.
CBI Case No.189/2019 Page 543 of 591Appreciation of Record viz-a-viz Role of Accused Gopal Dixit (A-16)
192. Record revealed that Accused Gopal Dixit (A-16) was charge-sheeted by CBI, by putting him in column no.12. Court summoned him vide order dated 10.07.2008. Subsequently, vide order dated 12.09.2018, he was charged with offences, punishable under Section 120-B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act. He was also charged with offence punishable under Section 13(2) read with Section 13(1)(d)(iii) of PC Act.
Appreciation of Prosecution Evidence viz-a-viz Accused Gopal Dixit (A-16) 192.1. Allegations against Accused Gopal Dixit (A-16), which led to framing of Charges against him, were that he had passed the Revival Order of Society in Question on the basis of forged/ false documents, without any public interest, with a view to cause pecuniary gain to himself and to co-accused persons.
192.2. Role of Accused Gopal Dixit (A-16), based on record of this case can be seen from the Noting File Ex.PW45/2. In the said file, noting dated 21.12.1998, formed the bed-rock of Revival Order, passed by Accused Gopal Dixit (A-16) with respect to Society. Said noting is mentioned in verbatim, below :-
"May kindly see PUC received from President of Society regarding revival of Society. The GB Meeting of the Society, held on 29.11.1998 in which decision was taken for revival of CBI Case No.189/2019 Page 544 of 591 CBI vs. B.M. Sethi & Ors.
Society. In this reference, it is stated vide office letter No.F.47/917/NGH/South/Coop/944 dated 31.07.1995 CP-204/C in which I.C. Saini, GD-III has been appointed as Liquidator of the Society. Sh. I.C. Saini has been T/F from to this department. If agreed, we may appoint another Liquidator of this office for further process the case. Submitted for order please".
192.3. Below the said noting was another noting dated 22.12.1998 in which, Accused Karamvir Singh (A-2) was appointed as Liquidator of Society in Question.
192.4. So, by way of above notings, one can clearly make out that Society in Question was not working in ordinary course of its business. Infact, those notings reflected that concerned official of RCS had proposed appointment of Liquidator of Society and followed by proposal of Accused Karamvir Singh (A-2) to be appointed as Liquidator of said Society. The first noting dated 21.12.1998 also mentioned about request from President of Society regarding revival of the same.
192.5. Above-mentioned facts, should have put Accused Gopal Dixit (A-16) on guard. Reason being, that Society was not working, at that time. He should have been very cautious in approaching and dealing with revival of said Society. That approach should have been reflected in the records of said file.
192.6. Accused Gopal Dixit (A-16) simply signed below the said notings and did not give any observations or findings on the said notings. Considering the gravity of matter, he should have given some observations regarding the said notings. He did not do CBI Case No.189/2019 Page 545 of 591 CBI vs. B.M. Sethi & Ors.
so and his said conduct, reflected that he shied away from giving objective assessment of the situation in the record. It did not help his cause.
192.7. Moving further, above-mentioned notings were succeeded by different notings of different dates, which included notings, pertaining to Liquidator concerned seeking permission to call Special GBM of Society in Question and permission being given by the office in that regard. Finally, after conducting Special GBM, the Liquidator viz., Accused Karamvir Singh (A-2), gave proposal on 18.02.1999 for cancellation of order of winding-up of Society. Those notings were then placed before Accused Gopal Dixit (A-16), who made following noting on 26.02.1999 :-
"The matter has been examined in detail on page 13/N to 16/N. In view of the decision taken in the first meeting of the Working Committee of Delhi Cooperative Development Board under the Chairmanship of Hon'ble Chief Minister on 01.05.1998 that each and every case of liquidated Society should be examined strictly on merit and put up to the Minister with recommendation before reviving the Society. The present case has been examined on merit and put up for consideration of the competent authority as well as for consideration of approval of the Hon'ble Development Minister".
192.8. Above-mentioned noting was cryptic in nature. Accused Gopal Dixit (A-16) did not explain as to what efforts, he made before observing, "The matter has been examined on merit". He did not refer to the records of Society. I failed to understand as to how he could not see blank spaces in Proceedings Register Ex.PW45/9. It was incumbent on him, to have appreciated the CBI Case No.189/2019 Page 546 of 591 CBI vs. B.M. Sethi & Ors.
record, after going through it, in detail and reflecting it in any manner in record, if not noting, that he had personally considered the record of Society in Question. The reason, I am saying so, is that, in the said very noting, Accused Gopal Dixit (A-16) referred to the view of Working Committee of Delhi Cooperative Development Board, noted in meeting dated 01.05.1998, to the effect that, "Each and every case of liquidated Society should be examined strictly on merit....". That expression was not appreciated by Accused Gopal Dixit (A-16) in true letter & spirit. His noting reflected that he was in hurry, in completing the necessary procedural formalities for getting the Society in Question revived through his office. The said hurry did not appear to be bonafide in the given circumstances of this case. It did not help his cause.
192.9. Further, I find that Accused Gopal Dixit (A-16) was not an ordinary official in the office of RCS. He was Registrar in Cooperative Societies. So, he was a Senior Officer whose responsibility was also more than other officials of said office. Same can be gauged from the fact that based on his noting dated 26.02.1999, the concerned Minister for Development, Food & Supplies and concerned Development Commissioner/ Secretary, Cooperative Societies, approved the revival of Society in Question. So, his noting dated 26.02.1999 had great significance. Accused Gopal Dixit (A-16) did not appreciate the said significance of his noting and performed his duties, in a manner which only helped the cause of Society in Question. His notings were not made on the CBI Case No.189/2019 Page 547 of 591 CBI vs. B.M. Sethi & Ors.
basis of objective assessment of the record. They were subjective in nature and attracted malafide, on his part.
192.10. Finally, on the basis of getting approval from Minister for Development, Food & Supplies and concerned Development Commissioner/ Secretary, Cooperative Societies, Accused Gopal Dixit (A-16) passed order dated 26.04.1999 Ex.A-4/1 for revival of Society in Question.
192.11. Said order Ex.A-4/1 has to be appreciated, in detail. Same is mentioned below in verbatim:-
ORDER Whereas the Safdarjung CGHS Ltd. was registered with this department on 18.11.83 at Sl.No.917 with the object to acquire land and construction of first for its members and, Whereas the society was woundup vide order No. F.47/ 917/NGH/ Coop./ 13196 to 13200 dt.6.11.90.
And whereas the liquidator was appointed vide order No. F.47/917/NGH/Coop./S/02-06 dt.8.1.99 to take action and submit Report after taking the views/Opinion of the members of the society regarding the request for revival/ withdrawal of liquidation order dt.6.12.90.
And the liquidator convened the general body meeting of the members and recommend for the revival of the Society.
Now, after consideration of the circumstances and the facts of the case, I, Gopal Dixit, RCS in exercise power vested in me U/S 63(3) of DCS Act, hereby order the revival of Safdarjung CGHS Ltd, subject to the following conditions :-
a) The society shall get all pending audit completed within one month.
b) The society shall get the list of members verified by this department within two months from the issue of this letter.CBI Case No.189/2019 Page 548 of 591
c) The society shall abide by all the provisions of Coop.Act/Rules and directives issued by the department from time to time.
d) The Election of the society shall be conducted by an Election Officer appointed by this department within a period of one month.
192.12. Above-mentioned order noted down the chain of events, leading to passing of said order. That order also noted down the fact that Society in Question was revived. The Revival Order was subject to four conditions, mentioned therein. Those conditions, were such that they should have preceded the revival of Society in Question. In other words, if Society in Question was not properly audited or Members of Society were not verified or Society had not complied with the necessary law, pertaining to its working, then, it should not have been revived, at the very first instance. The issue can be looked from another angle also, which is that, if such order was passed by Accused Gopal Dixit (A-16) then, he should have also put condition in the order, with regard to the manner in which, compliance of said conditions had to be done. That aspect was absent altogether. So, in the wake of said order, Society in Question was revived but there was no mechanism, based on which, office of RCS, could have verified that those conditions were met with, within stipulated time. Accused Gopal Dixit (A-16) never explained during trial, that he made efforts, for making sure, that those conditions were complied with. So, his mechanical approach in performing his duties continued after passing of said Revival Order also. It only hinted towards the fact that he wanted revival of CBI Case No.189/2019 Page 549 of 591 CBI vs. B.M. Sethi & Ors.
Society in Question, in conspiracy with co-accused persons, based on false/ forged records, by hook or by crook.
192.13. During course of trial, Accused Gopal Dixit (A-16) did not give any explanation with regard to above-mentioned aspects. So, the only conclusion, which, I can draw with regard to the conduct of said accused is that, he was in conspiracy with other accused persons for achieving the aim of getting the Society in Question revived. So, he did not perform his duties like a reasonable prudent person, placed in his situation. The manner in which he had performed his duties was mechanical in nature. Only one possibility remained behind his said conduct and that was, that he wanted to help co-accused persons, in getting society in question revived for the purpose of allotment of land, under a pre- planned conspiracy. That was the only theory and possibility which one can see in this case against accused Gopal Dixit (A-16).
192.14. So far as, prosecution witnesses are concerned, Accused Gopal Dixit (A-16) did not cross-examine any prosecution witnesses except PW43/ GEQD Expert and PW49/IO. So, he basically accepted the testimonies of said witnesses which mean that he admitted the facts viz., that some witnesses were not Members in Society in Question but were shown as Members in said Society and that some Members were falsely shown as Members who had resigned from Society. It also reflected that Accused Gopal Dixit (A-16) was under misconception, for reasons best known to him, to the effect that he had performed his duties CBI Case No.189/2019 Page 550 of 591 CBI vs. B.M. Sethi & Ors.
properly. It was the said misconception of Accused Gopal Dixit (A-16) which did not allow him to answer above-mentioned short- comings in his working during trial.
Appreciation of Statement of Accused Gopal Dixit (A-16) under Section 313 CrPC 192.15. Accused Gopal Dixit (A-16) responded to the incriminating evidence, by stating that evidence, brought on record by prosecution did not concern him. He claimed that he was put in column no.12 by prosecution, because of lack of evidence. Said replies, reflected his ignorance towards the record of this case. Reason being, that despite being put under column 12, this Court had found sufficient material to summon him in this case. That order was succeeded by Order on Charge. So far as, Summoning Order is concerned, he did not challenge it before Hon'ble High Court of Delhi. He challenged the Order on Charge by filing Crl. Rev. P 1162/2018 but withdrew it. The net result is both the said orders, were never challenged by him and they attained finality. Once, Accused Gopal Dixit (A-16) was charged with the concerned offences, he should have become cautious as he should have appreciated that from the perspective of the Court, there was incriminating material against him. He failed to maintain that cautious approach. He did not consider the evidence, brought on record by prosecution in correct perspective.
192.16. Accused Gopal Dixit (A-16) confirmed in his statement under Section 313 CrPC that he wanted to lead defence evidence CBI Case No.189/2019 Page 551 of 591 CBI vs. B.M. Sethi & Ors.
but did not lead any evidence. His said conduct only reflected that he was casual in approach.
192.17. When he was asked by the Court, if he wanted to say anything else, he replied by giving details of his appointment in the office and by disclosing the duties of his office. He referred to the notings, he made in Noting File Ex.PW45/2. So, he failed to utilize that opportunity also. Reason being, he merely reiterated the facts which were brought on record by prosecution. He failed to explain as to what mind he himself had applied in his official capacity for giving notings and for passing Revival Order of Society in Question. He was expected to reveal as to what considerations, he had borne in mind, before passing Revival Order of Society in Question. He precisely did not explain the same. The facts, he mentioned, in response to the above-mentioned question, only reflected his academic knowledge about the records of this case. Therefore, that reply is discarded by me being irrelevant in nature.
192.18. The statement of Accused Gopal Dixit (A-16), recorded under Section 313 CrPC, therefore, did not help his cause, as he failed to give precise response to the incriminating evidence and he failed to give response, based on his personal reflection of the record, brought on record by prosecution.
192.19. To make things worse for himself, Accused Gopal Dixit (A-16) did not lead any defence evidence for countering above- mentioned conclusion.
CBI Case No.189/2019 Page 552 of 591Written submissions of Accused Gopal Dixit (A-16) 192.20. In his written submissions, Accused Gopal Dixit (A-16), referred to the record of this case and claimed that he may be acquitted from this case, on various grounds which are appreciated below:-
(i). No evidence of meeting with Accused Maha Nand Sharma (A-4) 192.21. Accused Gopal Dixit (A-16) stated that no evidence has come on record to the effect that he had met with Accused Maha Nand Sharma (A-4) at any point of time. That argument is not tenable. Reason being, that no doubt Accused Gopal Dixit (A-16) did not meet Accused Maha Nand Sharma (A-4), physically as per record but documents, brought on record by prosecution revealed that Accused Gopal Dixit (A-16) knew about the issue of revival of Society in Question right from very inception, when co-accused Accused Maha Nand Sharma (A-4) had filed written application for revival of Society in Question. That application was dated 01.12.1998 and it noted signature of Accused Gopal Dixit (A-16) on the top left side with green colour pen. Further, noting dated 18.01.1999 in Ex.PW45/2 mentioned that Accused Maha Nand Sharma (A-4), on behalf of Society had come to the office on 18.01.1999 and had handed over the relevant record of Society for revival of the same, to the office of RCS. Those facts, on one hand, clearly prove that Accused Maha Nand Sharma (A-4) had visited the office of RCS and on other hand, they indicated that Accused Gopal Dixit (A-16) knew about Accused Maha Nand Sharma (A-4) CBI Case No.189/2019 Page 553 of 591 CBI vs. B.M. Sethi & Ors.
and relief, sought by Accused Maha Nand Sharma (A-4), from the very starting. It cannot be said that Accused Gopal Dixit (A-16), simply had made notings in Ex.PW45/2 without knowing the contents of letter dated 01.12.1998. The conduct of Accused Gopal Dixit (A-16), as already appreciated above, only indicated that he knew Accused Maha Nand Sharma (A-4) and helped Accused Maha Nand Sharma (A-4) in getting Society in Question revived, on the basis of false/ forged documents.
192.22. Even otherwise, physical meeting of Accused Gopal Dixit (A-16) with Accused Maha Nand Sharma (A-4) was not very material in this case, in comparison to the meeting of minds between them. That meeting of minds for the purpose of criminal conspiracy, can be seen from the conduct of Accused Gopal Dixit (A-16), who performed his duties as a mere formality without considering the false/ forged record, submitted by Accused Maha Nand Sharma (A-4).
(ii). No evidence against Accused Gopal Dixit (A-16) 192.23. It was claimed by Accused Gopal Dixit (A-16) that prosecution failed to bring on record any evidence, which could have indicated that he had knowledge of illegal acts of co-accused persons. He referred to th cross-examination of PW49 who was the IO of this case, to highlight the facts viz., that no complaint was lodged against Accused Gopal Dixit (A-16); that no incriminating evidence was brought on record against Accused Gopal Dixit (A-16); that Accused Gopal Dixit (A-16) and his family members CBI Case No.189/2019 Page 554 of 591 CBI vs. B.M. Sethi & Ors.
were not beneficiary of Society; that Accused Gopal Dixit (A-16) did not violate any rule or regulation; that no person complained about having suffered any loss on account of actions of Accused Gopal Dixit (A-16) and that there was no irregularity which was found in the processing of file by the office of Accused Gopal Dixit (A-16).
192.24. All the above-mentioned facts were admitted by PW49, in his testimony. Admission of those facts by PW49 are not binding on this Court. Law requires, (as mentioned above, in preceding paras which is not repeated here for the sake of brevity) that this Court has to appreciate the evidence, brought on record by parties, objectively. So, view/ Opinion/ acts of IO of this case, are not something which should be made the basis for discarding other evidence, brought on record by prosecution. Principle of falsus-in- uno, falsus-in-omnibus, is not applicable in India. So, even if, it is believed that IO did not get any evidence against Accused Gopal Dixit (A-16) during investigation, then also, it does not mean that rest of the evidence, as already appreciated above, has to be discarded. The testimony of IO reflected, what investigation he did and what is his Opinion about Accused Gopal Dixit (A-16). Based on said testimony, one may argue that investigation was not proper and complete. One may also argue that IO could not collect incriminating evidence against Accused Gopal Dixit (A-16). But those arguments, if for the sake of convenience are believed to be true, would be limited to the testimony of IO only. Those arguments will not cast any doubt on the testimonies of other CBI Case No.189/2019 Page 555 of 591 CBI vs. B.M. Sethi & Ors.
witnesses and other evidence, collected by prosecution. Beyond that, Court is not supposed to look into the evidence of IO, for the purpose of appreciating record of this case. In the wake of said appreciation, testimony of IO by itself did not absolve Accused Gopal Dixit (A-16) from this case and therefore, arguments based on reference to facts which IO deposed in his testimony, did not help the cause of Accused Gopal Dixit (A-16).
(iii). Prosecution barred as no Sanction taken under Section 197 CrPC 192.25. Accused Gopal Dixit (A-16) claimed that prosecution against him in this case was barred, as CBI had not taken Sanction under Section 197 CrPC. In support thereof, he relied upon case laws viz., N.K. Ganguly (supra), A. Sreenivasa Reddy vs. Rakesh Sharma (2023) 8 SCC 711, Rakesh Bhatnagar (supra) and G.C. Manju Nath (supra).
192.26. Aforesaid argument again is meritless. Reasons being, firstly, that Accused Gopal Dixit (A-16) was charge-sheeted by CBI and in the charge-sheet itself, in column no.12, it was noted that he was a retired government servant. That fact was never disputed by him. So, on the date of filing of charge-sheet, admittedly, Accused Gopal Dixit (A-16) was a retired government servant. Now, in State of Orissa vs. Ganesh Chandra Jew (2004) 8 SCC 40, it was held that "if the accused Public Servant had ceased to be a Public Servant, on the date, when the Court took cognizance CBI Case No.189/2019 Page 556 of 591 CBI vs. B.M. Sethi & Ors.
of the offences, under the Prevention of Corruption Act, Section 197 CrPC is not attracted. Same was held in State of Himachal Pradesh vs. M.P. Gupta (2004) 2 SCC 349 and S.K. Zutshi vs. Sri Bimal Debnath 2004 (50) ACC 198 (SC).
192.27. In the wake of said judgments, it is clear that Sanction under Section 197 CrPC, was not required in present case against Accused Gopal Dixit (A-16) who was a retired Public Servant at the time of filing of charge-sheet and at the time, when Court took cognizance of offences, in this case.
192.28. So far as, Sanction under Section 19 of PC Act is concerned, said Sanction was also not required as Accused Gopal Dixit (A-16) ceased to be a Public Servant, on the date, when this Court had taken cognizance of offences. Reliance in this regard is placed upon case law titled as R.S. Nayak vs. A.R. Antulay (supra).
192.29. So, argument, based on want of Sanction under Section 197 CrPC and under Section 19 PC Act stands dismissed.
(iv). Prosecution barred under Section 95 of DCS Act 192.30. Accused Gopal Dixit (A-16) claimed that prosecution was barred in this case in view of Section 95 of DCS Act, 1972 which mandates that no suit, prosecution or other legal proceedings shall lie against the Registrar in respect of anything in good faith done or purporting to have been done under this Act.
192.31. Aforesaid reference to the provision of DCS Act was CBI Case No.189/2019 Page 557 of 591 CBI vs. B.M. Sethi & Ors.
misplaced. Reason being, that Accused Gopal Dixit (A-16), was found by me, to be involved in the offence of criminal conspiracy with other co-accused persons for committing offences, punishable under Section 420/468/471 IPC. Further, I have concluded that Accused Gopal Dixit (A-16) had performed his duties, malafidely. So, he did not perform his duties, "in good faith", as was required in Section 95 of DCS Act. The reasoning, in this regard, is not repeated here for the sake of brevity.
(v). No evidence for conspiracy under Section 120-B IPC 192.32. Accused Gopal Dixit (A-16) claimed that prosecution failed to prove that he was part of any criminal conspiracy, punishable under Section 120-B IPC. Again, said argument was not tenable, in view of appreciation, done in preceding paragraphs. Contents of the same are not repeated here for the sake of brevity.
192.33. Accused Gopal Dixit (A-16) was not a person who was simply sitting on fences. He was actively involved in the process of revival of Society in Question. His notings were cryptic and only supported the cause of co-accused persons. His conduct did not reflect the conduct of a responsible and diligent Registrar, placed in his situation, before whom record like that of Society in Question, was placed. The provisions of DCS Act viz., Sections 3, 8, 9, 10, 11, 15, 16 & 29 amongst other provisions, give great powers to Registrar, Cooperative Societies to supervise, control and guide the working of Society in Question. Accused Gopal Dixit (A-16) failed CBI Case No.189/2019 Page 558 of 591 CBI vs. B.M. Sethi & Ors.
to appreciate the powers he had by virtue of said provisions of the Act. He intentionally overlooked short-comings in the records of Society in Question, which in the given circumstances, only indicated that he was hands-in-glove with co-accused persons in getting the Society in Question revived.
192.34. Here, I must also mention that in this case, Society in Question which was created in the year 1983 and it continued to work properly till mid 1985 as per the notings in Noting File Ex.PW45/2. Around July 1985, reminders from the office of RCS started getting issued towards Society in Question but Society did not respond to the said notices and reminders. It continued till order of its liquidation was passed in the year 1990, as per noting dated 25.09.1990, which noted "Discussed. Since, audit has not yet been done, we may liquidate. Other charges can be incorporated as observation". As per noting dated 07.11.1990, it was noted, "May please see that Liquidation Order is issued on 06.11.1990. If agreed, we may send the file to DR (Liquidator)".
192.35. In the wake of said notings, it was clear that Society in Question did not inform the office of RCS about the activities which it was doing between mid 1985 to November 1990.
192.36. Further, Accused Maha Nand Sharma (A-4) vide letter dated 01.12.1998, had approached the office of RCS for revival of Society in Question. That letter is part of file Ex.PW45/3.
CBI Case No.189/2019 Page 559 of 591192.37. The net result is that between mid 1985 till December 1998, Society in Question did not inform the office of RCS, as to what activities, it was doing, during the said time. Accused Gopal Dixit (A-16) being Registrar of Cooperative Societies, should have been conscious and cautious about the said fact. He did not correspond with Society prior to passing of Revival Order, as to what Society in Question was doing during the said time. He did not make any inquiry, in that regard, at any point of time. His said inaction, only benefited co-accused persons and led to allotment of land in favour of Society. His said conduct only indicated that he was in criminal conspiracy with co-accused persons. No other conclusion can be drawn in this regard.
192.38. Further, I take judicial notice of the directives and instructions of the office of RCS (Delhi Administration) dated 08.11.1983, 17.06.1986, 26.03.1990 and 07.06.1990. The relevant portions of said directives are mentioned below:-
Directives dated 08.11.1983 -
.....However, the enrollment of new Members be taken up strictly as per Rule 30 of Delhi Cooperative Societies Rules, 1973, cases of expulsion under Rule 36 of Delhi Cooperative Societies Rules, 1973 would continue to be send to the Registrar, Cooperative Societies for approval. Directives dated 17.06.1986 -
..... The acceptance of resignation shall be communicated in writing by registered post to the member concerned and specific mention of registration and date etc. of the letter by which a member concerned was informed shall be made in the communication sent to this office which shall convey objection, if any, within 60 days of the receipt of the letter failing which the resolution of the Managing Committee shall become final.CBI Case No.189/2019 Page 560 of 591
CBI vs. B.M. Sethi & Ors.
Directives dated 26.03.1990 -
1. ..... The prescribed letter informing the resigned member about the acceptance of the resignation by the Managing Committee is enclosed herewith as Annexure 'B'. The forwarding letter intimating the details of resigned members to be submitted to the Office of Registrar, Cooperative Societies is enclosed herewith as Annexure 'C'.
2. While enrollment of new member(s) shall continue to be taken up strictly as per Rule 30 of the Delhi Cooperative Societies Rules, 1973, the following information shall also be provided at the time of forwarding the case of each...... new enrollment.
1. Name of the member
2. Photocopy of application along with proof of residence for enrollment.
3. Photocopy of entries in respect of application as provided under Rule 30 of the Delhi Cooperative Rules.
4. Agenda of the Managing Committee considering the case of enrollment.
5. Resolution of the Managing Committee accepting the admission of the member.
6. Detail indicating the source of vacancy for each new enrollment (whether due to resignation or cessation-
specifying therein the name(s) of the member(s) resigned, expelled, ceased).
7. Proof of acceptance of offer and receipt of Admission Fee, Share Money, other sums alongwith declaration on oath in the form of an affidavit already prescribed. Directives dated 07.06.1990 -
1. While forwarding the case of Resignation to the Registrar's Office, a photocopy of the letter of resignation be sent instead of the original letter as mentioned in the directive dated 26.03.1990.
2. In the directive dated 26.03.1990, a period of 60 days has been prescribed for conveying objections, if any, by the Department to the Society before return of the money to the resigned member. This period is now, reduced to 30 days, but no enrollment will be made by the Society during this period of 30 days against the vacancy so caused. However, if any resigned member is desirous of obtaining refund of his CBI Case No.189/2019 Page 561 of 591 CBI vs. B.M. Sethi & Ors.
deposits earlier, he may approach the Assistant Registrar/ Deputy Registrar (Group Housing) with the proof of his identity so that the Department can convey its No Objection to the Society forthwith, in such an event the Society will be free to refund the amount to the resigned member and also enroll a new member without waiting for the expiry of 30 days.
3. Further, all the Societies are required to furnish an upto date list of their members as on the date of issue of this directive. The list of members as on 31st March, every years as contemplated under Rule 37 of Delhi Cooperative Societies Rules, 1973 is to be sent to this office by every Society in the coming years without fail, in the proforma already prescribed.
4. It is also hereby clarified that the directive issued on 26.03.1990 was in supersession of the one issued on 17.06.1986 on the same subject. This directive dated 26.03.1990 is hereby modified shall come into force with immediate effect.
192.39. above-mentioned directives, therefore, indicated that Society in Question could not have conducted its affairs and working, without informing the office of RCS. Whether, matter pertained to enrollment of new Members or resignation of old Members or Members being expelled or passing of resolutions regarding expulsion or resignation of Members, office of RCS had to be informed by Society in Question, from time to time, as per the time limit, mentioned in those directives.
192.40. Accused Gopal Dixit (A-16), nowhere claimed during trial, as to how he complied with said directives and instructions. He did not explain, as to why he did not appreciate the said instructions, while passing Revival Order of Society in Question. He simply did not consider those directives, while passing order of revival of Society in Question. His said conduct was not a mere CBI Case No.189/2019 Page 562 of 591 CBI vs. B.M. Sethi & Ors.
irregularity. His conduct was intentional and it was done with the purpose of getting Society in Question, revived. So, he was part of criminal conspiracy with co-accused persons for the purpose of commission of offences viz., 420/468/471 IPC.
192.41. Accused Gopal Dixit (A-16) by passing Revival Order in said manner, did an act which had colour of corruption and illegality. He did so for co-accused persons, so that, they can get Society in Question revived. That Society was a valuable thing and therefore, he committed offence, punishable under Section 13(2) read with 13(1)(d)(iii) of PC Act.
(vi). No evidence for offences punishable under Section 420/468/471 IPC 192.42. Accused Gopal Dixit (A-16) claimed that offences punishable under Section 420/468/471 IPC were not proved by prosecution.
192.43. The said claim again is not tenable.
192.44. At the very outset, I must mention that Accused Gopal Dixit (A-16) was not independently charged with offences punishable under Section 420/468/471 IPC. He was charged with said offences, in conjunction with Section 120-B IPC.
192.45. Now, I have already concluded that Accused Gopal Dixit (A-16) had done acts, in criminal conspiracy with co-accused persons. I have also concluded in my preceding paragraphs that CBI Case No.189/2019 Page 563 of 591 CBI vs. B.M. Sethi & Ors.
Society in Question was revived on the basis of false & forged documents. Both office of RCS and DDA believed the said forged documents to be genuine documents and allotted land to Society in Question. Therefore, said offices were cheated by the actions of Accused Gopal Dixit (A-16) and co-accused persons. Therefore, offences, punishable under Section 120-B IPC read with offences punishable under Section 420/468/471 IPC were proved by prosecution.
192.46. Ld. counsel for Accused Gopal Dixit (A-16) argued that said accused was placed in column no.12 by prosecution and there was no evidence against said accused. No witness deposed against Accused Gopal Dixit (A-16) and whatever Accused Gopal Dixit (A-16) did, was as per rules. So, there was no mensrea, motive or involvement of Accused Gopal Dixit (A-16) in any criminal conspiracy. Said arguments were baseless as I have already appreciated in detail the wrongful manner in which Accused Gopal Dixit (A-16) had performed his duties. As such, Accused Gopal Dixit (A-16) did not give any explanation with regard to the said wrongful manner, in which, he had performed his duties. Only possibility remained that he did so with ulterior motives and with mensrea, for giving illegal benefit to Members of Society in Question, arrayed in this case as accused persons. No other possibility was found by me, as against Accused Gopal Dixit (A-16).
CBI Case No.189/2019 Page 564 of 591192.47. So, Accused Gopal Dixit (A-16) committed offence of criminal misconduct, as mentioned in Section 13 (1)(d)(iii) of PC Act, as he prepared favourable note in the Noting File, supporting the cause of Accused Maha Nand Sharma (A-4) and other accused persons for revival of Society in Question. That favourable note was prepared by him, without observing manipulations in the records of Society. It was prepared by him, subjectively and in an arbitrary manner, without giving any plausible reasons. So, his said act helped co-accused persons in getting Society in Question revived for the purpose of allotment of land by DDA. He did so, in conspiracy with other co-accused persons. His Order for Revival of Society in Question Ex.A-4/1, was mechanically prepared by him, without appreciating the consequences of the same and without appreciating the antecedents of Society in Question. He ignored manipulations and forgery in the records of Society, in conspiracy with co-accused persons. The acts of Accused Gopal Dixit (A-16) resulted in causing pecuniary advantage to Accused Maha Nand Sharma (A-4) and other co-accused persons as land was allotted to Society in Question by DDA. In the alternative, since, land was allotted by DDA to Society in Question, based on false & forged documents of Society including the record, prepared by Accused Narender Kumar (A-3), so, said Society through Accused Maha Nand Sharma (A-4) and other accused persons got valuable thing in the shape of said land.
CBI Case No.189/2019 Page 565 of 591A Holistic View Of The Case Of Prosecution
193. Before concluding, I must mention here as to what case was proved by prosecution beyond reasonable doubt on the basis of circumstantial evidence, if viewed, comprehensively, as a whole.
193.1. The expression "beyond reasonable doubt" needs a closer look.
193.2. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt, based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial, if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. Vague hunches cannot take the place of judicial evaluation. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of accused persons arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. Exaggeration of the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape, is not doing justice. Reliance in this regard is placed on case laws titled as Sheela Sebastian vs. R. Jawaharraj (2018) 7 SCC 581; Bhagwan Jagannath Markad vs. State of Maharashtra (2016) 10 SCC 537, Chhotanney vs. State of UP AIR 2009 SC CBI Case No.189/2019 Page 566 of 591 CBI vs. B.M. Sethi & Ors.
2013; Ramesh Harijan vs. State of UP (2012) 5 SCC 277, Sucha Singh vs. State of Punjab (2003) 7 SCC 643 and State of UP vs. Ashok Kumar Srivastava AIR 1992 SC 840.
193.3. Hon'ble Apex Court in case titled as Sushil Kumar Tiwari vs. Hareram Sah & Ors 2025 Live Law (SC) 864 , observed, "The principle of beyond reasonable doubt has been misunderstood to mean any and every doubt in the case of prosecution......... A reasonable doubt is one that renders the version of prosecution as improbable and leads the Court to believe in existence and probability of an alternate version of the facts".
193.4. So, in the wake of above mentioned case laws, it is clear that reasonable doubt means a doubt which is created on the basis of reason and common sense. It is not to be based on whims of a person. Few flaws in investigation which do not go to the root of the matter, cannot be made the basis of acquitting an accused. The rights of accused, involved in a criminal matter, as such, should not be protected on the basis of recognizing trivialities in the matter.
193.5. Reverting back to facts of present case, I find that accused persons failed to appreciate the background in which this case was registered by CBI. This case was not registered, on the basis of complaint of an aggrieved person. It was registered on the directions of Hon'ble High Court of Delhi in Writ Petition Proceedings, already mentioned hereinabove. Hon'ble High Court noted that based on record placed before it, prima-facie there were existence of illegalities in the manner land was allotted to various CBI Case No.189/2019 Page 567 of 591 CBI vs. B.M. Sethi & Ors.
Societies, which were 135 in total. Said background in which present FIR was registered by CBI, should have cautioned to the accused persons, to the effect that case was registered on the directions of Hon'ble High Court, based on record. As such registration of FIR, in this case, was not motivated. It was not based on any whims. It was based on precise observations of Hon'ble High Court of Delhi, based on record. Ordinarily Hon'ble High Court doesn't pass such like orders. If it was passed in this case, then it was a serious affair. Accused persons failed to appreciate the same while facing trial in this case. It was the lack of awareness on said aspect, which resulted in accused persons not cross-examining prosecution witnesses on relevant particulars and not giving proper explanations to the incriminating evidence, put to them under Section 313 CrPC. Further, said lack of awareness, resulted in absence of Defence Evidence for some accused persons and unbelievable Defence Evidence being led by rest of them.
193.6. Further, holistic view of this case revealed that accused persons failed to appreciate that concept of Cooperative Society is based on benefit of public at large. That concept is not based on giving benefits to family members of a particular person. Now, in this case, Accused Maha Nand Sharma (A-4) made various Members in Society in Question viz., PW7, PW12, PW16, PW17 & PW18. All the said witnesses were relatives of Accused Maha Nand Sharma (A-4), as per their respective testimonies. Further, Accused Ashwani Sharma (A-6) was related to PW13 & PW31 who were shown as Members in Society in Question. Further, CBI Case No.189/2019 Page 568 of 591 CBI vs. B.M. Sethi & Ors.
PW19, PW20, PW21 to PW26 deposed that they had become Member of Society in Question through V.P. Aggarwal. Said V.P. Aggarwal was friend of late Sh. C.M. Madan and Accused Pankaj Madan (A-5) and Accused Vikas Madan (A-13) were sons of late Sh. C.M. Madan. Further, PW27 & PW28 deposed that they had become Member of Society in Question through Accused Pankaj Madan (A-5). PW29 had deposed that he was son of late Sh. V.P. Aggarwal and late Sh. V.P. Aggarwal was friend of late Sh. C.M. Madan. PW1 to PW6 had deposed that they had become Member of Society in Question through Accused Sudershan Tandon (A-8). The net result is that above-mentioned accused persons had made their known ones and family members as Members of Society in Question. The very fact that said family members and known ones were made Members of Society in Question, frustrated the very object of creation of Cooperative Society in Question. Malafide intention was seen by me, right from the very inception, in the wake of said manner in which Members were made in Society in Question. The offence of criminal conspiracy, was present, for the purpose of giving benefits to limited number of persons, right from very inception.
193.7. None for the accused persons gave any explanation whatsoever regarding blank spaces and manipulations in the records of Society, during trial. Since, accused persons had the occasion to go through said records, prior to investigation, they should have explained the reasons behind said blank spaces and CBI Case No.189/2019 Page 569 of 591 CBI vs. B.M. Sethi & Ors.
manipulations in the records of Society, which I have noted in preceding paragraphs of this Judgment.
193.8. Proper working of Society, as per rules and bylaws, was never probablized by accused persons, during trial.
193.9. Various prosecution witnesses viz., PW11 - Narender Kumar Awasthi, PW14 - Dushyant Vats, PW18 - Shyam Sunder Bhardwaj, PW48 - Deepak Aggarwal deposed that they had become Members of the Society in Question but they were not allotted any flat in the Society and that their money, which they had deposited with Society for becoming Member of Society, was never returned to them. So, they were cheated in said manner by accused persons.
193.10. The documents brought on record by prosecution were not objected to by the accused persons, on the mode of proof or admissibility. So, they admitted the veracity of said documents and that is why they were appreciated in the manner, as mentioned in preceding paragraphs on the premise that said documents were not manipulated by CBI or any other persons except accused persons.
193.11. No suggestion was given by accused persons, to the effect that accused persons had taken such and such efforts to make sure that PWs, who were initial members, know as to what is happening in Society and why it is so happening; no suggestion was given by accused persons, based on bonafide approach of accused persons in conducting the Society meetings was put to the CBI Case No.189/2019 Page 570 of 591 CBI vs. B.M. Sethi & Ors.
PWs and also, no suggestion was given by the accused persons to prosecution witnesses as to how new members come in and how old resigned.
193.12. Investigation, in this case, was a tough challenge for CBI. The documents were prepared by Members of Society, many years back. All the concerned members and officers of RCS were mum. None of them wanted to disclose true facts regarding working of Society in Question. Any other person, besides said Members and Officers of RCS, had no knowledge about the working of the Society in Question. Thankfully, documents of Society in Question were available. Those documents opened pandora box of illegalities, manipulations, cheating, forgery and fabrication of records by accused persons. So, investigation by IO was basically limited to the collection of documents of Society and getting same examined by Expert. He did exactly that. So, IO performed his duty of investigating the present matter, within the above-mentioned limitations.
193.13. Accused persons failed to appreciate that this case was not based on direct evidence. They expected that some specific person will come and depose against them in a particular manner, highlighting ingredients of offences with which they were charged. That expectation was wrong as it was based on improper appreciation of circumstances which prevailed in this case, as highlighted above. This case was based on circumstantial evidence in which documentary evidence played pivotal role. There were CBI Case No.189/2019 Page 571 of 591 CBI vs. B.M. Sethi & Ors.
oral testimonies of witnesses and expert opinion which together, only hinted towards the guilt of accused persons.
193.14. The fact that various accused persons did not cross- examine the prosecution witnesses, to any extent, again was reflection of their improper gauging of gravity of this matter.
193.15. What investigation was not done, was not relevant. What investigation was done, was relevant. The evidence, which was brought on record by prosecution, was relevant and evidence which was not brought on record by prosecution was not relevant.
193.16. Accused persons failed to answer following questions:-
a) Why CBI would falsely implicate them in this case ?
b) Why prosecution witnesses would depose against them ?
c) Why Society did not respond to the notices/ reminders of the office of RCS?
d) Why record - Membership & Proceedings Register were not completely filled?
e) Why there were forgeries in the records of society ?
f) Why all the facts regarding affairs of society in question were not mentioned in the Proceedings Register of Society ?
g) Why society through its office bearers did not keep the office of RCS, abreast with the proceedings of society, in a timely manner?
h) Why there were discrepancies in the records of society pertaining to the date of enrollments of members of society ?CBI Case No.189/2019 Page 572 of 591
193.17. Besides that, they failed to explain manipulations in the records of the Society, to any extent. They did not examine themselves under Section 315 CrPC as facts regarding working of Society in Question were within their knowledge and they could have lifted the veil of allegations, levelled against them by disclosing true facts, as per their version. They failed to do so for reasons best known to them. It did not help their cause.
194. Criminal Conspiracy, in this case, had taken place amongst accused persons who were directly or indirectly linked with the working of Society in Question. All the records of society, pertaining to its working, were prepared in society only. They were not prepared elsewhere. So, accused persons who were members of society amongst other accused persons, should have the knowledge as to how and in what circumstances those documents were prepared. Besides that, there were officials of the office of RCS who had the occasion to go through the records of the society but they also did not see, what was obvious in the records of society. In other words, said officials did not see forgeries and manipulations in the records of society, which one can see from naked eye. Accused Ashutosh Pant by committing forgery in the records of the society, as already appreciated in this judgment, did his part, reflecting his active involvement. So, all the accused persons knew what they were doing. All of them had personal interests and that is why they did not bring on record any plausible, CBI Case No.189/2019 Page 573 of 591 CBI vs. B.M. Sethi & Ors.
reasonable and believable probable defence, in their favour. The only inference one can draw, is that there was meeting of minds amongst all the accused persons, to do their respective acts in forging and falsifying records of society for getting the said society revived, illegally, for the purpose of allotment of land. The conduct of accused persons throughout trial remained evasive. They projected that they did not know anything about the case of prosecution while responding to incriminating evidence put to them u/s 313 Cr PC. Their conduct during trial reflected that they were hiding truth from the court with ulterior motives. Just like the case of prosecution which was clear and specific, accused persons should have come up with their version, clearly. They failed to do so. Since their personal interests were present, so they kept silent, during trial and did not explain the manipulations in the documents of Society. They did so as there was meeting of minds. It was not a sheer coincidence that they kept mum, during trial.
194.1. Besides that, I find that accused persons, in this case, can be divided into three categories viz., Category 1 - Members of Society in Question viz., Accused Maha Nand Sharma (A-4), Accused Pankaj Madan (A-5), Accused Ashwani Sharma (A-6), Accused Sudershan Tandon (A-8), Accused Manoj Vats (A-11), Accused Vijay Thakur (A-12), Accused Vikas Madan (A-13), Accused Poonam Awasthi (A-14) and Accused Narinder Dhir (A-15).
CBI Case No.189/2019 Page 574 of 591Category 2 - Officials/Officers of RCS Office viz., Accused Karamvir Singh (A-2), Accused Narender Kumar (A-3) and Accused Gopal Dixit (A-16).
Category 3 - Person who is neither Member of Society in Question nor official in the office of RCS viz., Accused Ashutosh Pant (A-7).
194.2. Considering overall record of this case, as noted in preceding paragraphs, I must mention here my findings with regard to each Category of accused persons.
(A). Category 1 Accused Persons (A.1). Above-mentioned category of accused persons were
found guilty of the offences with which they were charged. The relevant aspects behind said findings, are broadly stated below :-
(A.2). Said accused persons failed to appreciate the fact that Society in Question did not respond to the notices issued by the office of RCS, on multiple occasions, leading to initiation of winding-up proceedings of said Society, in correct perspective. Had they appreciated the said fact correctly, they would have come up with exact reasoning, as to why Society acted in said non- responsive manner. None of them explained the same during trial and kept mum, for reasons best known to them. It was a fact based on circumstances which was against them.
(A.3). None of the accused persons who were members of Society in Question paid any heed to the issues relating to the CBI Case No.189/2019 Page 575 of 591 CBI vs. B.M. Sethi & Ors.
records of Society viz., that certain members who were examined by prosecution as prosecution witnesses denied their signatures on Proceedings Register, Resignation Letters, Affidavits, Membership Register and Membership Application Forms. They did not pay any heed to the fact that false members were shown in the records of the Society.
(A.4). They failed to answer questions which arose on the basis of record of Society in Question viz., Why Members were falsely shown in the records of the Society? Why Members denied their signatures in the records of Society? Why there were blank spaces in the records of Society? Why there were contradictions in the records of Society? Such like questions, should have been answered by Category 1 accused persons.
(A.5). The elections in Society in Question were not regularly conducted. Proceedings were not prepared regularly. Society was not audited regularly. None of the accused persons falling in Category 1 explained the reason behind said short-comings in the working of Society in Question.
(A.6). Why Society changed its official address without mentioning in the Proceedings Register and without intimating the office of RCS? Why Society stopped responding to the notices of the office of RCS? Such like questions were also not answered by accused persons, falling in Category 1.CBI Case No.189/2019 Page 576 of 591
CBI vs. B.M. Sethi & Ors.
(A.7). Further, claim of accused persons that there was no meeting of mind, remained bald claim. Names of all the accused persons were reflected in different records of society, one way or the other. How did their names figure-in, in the said records of Society? Were they aware of their names in the records of Society? If they were aware of their names, then what did they do, for showing that acted bonafidely for maintaining said records properly and correctly? If they were not aware of their names in said records, then what steps they took against the concerned person/persons who had falsely mentioned their names in the said records? Such questions and question of like nature were material questions. Once their names find mention in the records of Society, onus shifted upon accused persons for explaining the circumstances in which their names were so mentioned in the said records. Accused persons failed to appreciate the same.
(A.8). Accused persons failed to appreciate the fact that they were making allegations amongst each other. For example, Accused Sudershan Tandon (A-8), in his written submissions, stated that forgery in records of Society and criminal conspiracy took place amongst other accused persons, except him after a decade of him ceasing to be Member of said Society. Accused Vijay Thakur (A-12) argued that there were two conspiracies in this case viz., one prior to revival of Society in Question and other, after revival of Society in Question.CBI Case No.189/2019 Page 577 of 591
CBI vs. B.M. Sethi & Ors.
(A.9). Accused persons failed to answer following relevant questions, categorically with reasons and proof, during trial :-
a) Whether accused persons acted bonafidely in their respective capacities?
b) Did they take adequate precautions to reflect clean conduct?
c) Whether they were related? d) Did they use shortcut to achieve ultimate object of getting allotted plots through society? e) Why was the society defunct and why all of a sudden it was desired to get it revived ? f) Whether aims and objectives of Society under the DCS Act
were met out when procedure of revival started ?
g) Whether old members were informed about revival efforts and if yes how ?
h) What was the criteria for selecting new Members in Society?
i) Whether adequate precautions taken for revival of Society?
(A.10). Accused persons failed to appreciate the fact that documents of Society, in this case, were prepared by the Members of Society. They were not prepared by any other person. If there were manipulations in said records, then Members of Society who had signed the proceedings and whose names were mentioned in the said records had the duty to explain the same. Such Members cannot simply brush aside the manipulations in the records of Society, just like that. They cannot shift the burden of proving the manipulations in the said records on prosecution. After all said CBI Case No.189/2019 Page 578 of 591 CBI vs. B.M. Sethi & Ors.
documents were documents of the Society.
(A.11). The accused persons failed to appreciate that in this case, none of the Members of Society, had come up with any complaint and reason was very simple. Reason was, that every Member of Society in Question, by hook or by crook, wanted residential accommodation in Delhi at a very small cost. That greed sealed the lips of Members of the Society. So each and every Member of Society, who was made accused in this case, acted in a manner, as if no illegality was done while managing the affairs of the Society and as if all the rules / bylaws were followed. Once, illegalities were highlighted, concerned accused persons who were Members of Society started making excuses, which were baseless.
(B). Category 2 Accused Persons (B.1) In the record note of discussions of meeting dated
01.05.1998 (part of Ex. PW-45/3, D-5), following observations were made by the Members, who had attended said meeting which was chaired by Sh. Saheb Singh, the then Chief Minister of Delhi.
" It was decided that each and every case of liquidated societies should be examined strictly on merit and put up to the Minister with recommendations before reviving the society"
It means that Category 2 accused persons had to examine the records of the society, strictly and then had to make recommendations. Their conduct as appreciated in this Judgment based on evidence brought on record, by prosecution, reflected that CBI Case No.189/2019 Page 579 of 591 CBI vs. B.M. Sethi & Ors.
they simply believed the records of society, true and correct without observing the obvious manipulations, forgeries and tampering in the said records. So they did not follow the mandate of above mentioned observations, recorded in the meeting, which was conducted prior to revival of society in question. It was noted in the said minutes of meeting that Registrar Cooperative Societies had circulated the background note for the first meeting of working committee of Delhi Cooperative Development Board and based on the said note discussions took place. So said meeting was conducted when Registrar, Cooperative Societies had prepared the background note. Category 2 accused persons, cannot claim that they had no knowledge about said Minutes of Meeting as Office of RCS was completely involved in the said meeting. In the background of said appreciation, Category 2 accused persons should have explained during trial as to how they performed their duties in strict compliance of said Minutes of Meeting. No such explanation was given by said accused persons during trial. It only indicated that they wanted to help co-accused persons , for getting society in question revived, illegally, with ulterior motives. This conclusion only helped the case of prosecution.
(B.2) Why said category of accused persons simply believed the version of Accused Maha Nand Sharma (A-4), to be gospel truth? Why said category of accused persons did not go through the records of Society in Question? Why adequate precautions were not taken for conducting elections and Special GBM by Accused Narender Kumar (A-3) and Accused Karamvir Singh (A-2) CBI Case No.189/2019 Page 580 of 591 CBI vs. B.M. Sethi & Ors.
respectively? Why objective assessment of the records of Society by said category of accused persons was not done? Such like questions were never answered by Category 2 accused persons during trial.
(C). Category 3 Accused Person (C.1) Accused Ashutosh Pant (A-7) was the only person who
was neither Member of Society in Question nor official in the office RCS. He failed to explain as to why he forged records of Society in Question? Absence of answer to the said question, only indicated that he was involved in criminal conspiracy with co- accused persons for getting the Society in Question revived.
195. Above-mentioned findings were not based on appreciation of bits and pieces of facts. It was based on complete assessment of record of this case. The inferences drawn above only indicated the guilt of accused persons with the offences with which they were charged. No other possibility or theory was possible. In other words, there was no possibility that I could have concluded that accused persons were innocent persons. All the accused persons, either kept mum or evasively answered or transferred the responsibility of giving proper explanation or highlighted the short- comings in investigation. They did all acts apart from explaining their own conduct. They should have known that they were related to the affairs of Society in Question by one reason or the other. Therefore, they should have come up with reasonable and probable CBI Case No.189/2019 Page 581 of 591 CBI vs. B.M. Sethi & Ors.
defence. That reasonable and probable defence precisely was absent in this case. Therefore, prosecution was able to prove its case beyond reasonable doubt, based on circumstantial evidence which only pointed towards the fact that accused persons were guilty of the offences with which they were charged.
Offences Proved Against Accused Persons And Conclusion
196. Accused Karamvir Singh (A-2) was a RCS official. He was appointed as Liquidator. In the said capacity, as Public Servant, he conducted Meeting dated 27.01.1999 and prepared false record, pertaining to said Meeting. He prepared a favourable note/ report for the purpose of revival of Society in Question with other co-accused persons and on the said basis, Society in Question was revived. He did said acts, for benefiting private persons, malafidely. He did not perform his duties bonafidely. Due to said acts, freeze list of 90 fictitious Members was approved and sent to DDA. Thereafter, land was allotted by DDA in favour of Society in Question. He did said acts, in conspiracy with other accused persons. Only such conclusions, based on inferences from the record, were possible, against him. Accordingly, by doing said acts, Accused Karamvir Singh (A-2) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 13(2) read with Section 13(1)(d) (iii) of PC Act 1988.
CBI Case No.189/2019 Page 582 of 591197. Accused Narender Kumar (A-3) was a RCS official and he was appointed as Election Officer, officially. In the said capacity, he submitted false Election Report for benefiting private persons (co-accused persons, involved in this case). Therefore, he abused his official position, as a Public Servant. He did said acts malafidely with ulterior motives. He did not explain, as to why, he performed his duties in said manner. So, his acts led to pecuniary advantage to private persons, without any public interest. The act of submitting a false Election Report without date, on the basis of meeting held on 05.06.1999 was an illegal act. It was based on his reliance on false and forged documents. It was done by him in conspiracy with other co-accused persons. The offices of RCS and DDA were cheated. In the process, Accused Narender Kumar (A-3) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 13(2) read with Section 13(1)(d)
(iii) of PC Act 1988.
198. Accused Maha Nand Sharma (A-4), was Member of Society. He prepared forged & fabricated documents, in conspiracy with other accused persons, which were furnished by him before the office of RCS. The office of RCS was induced into believing that those documents were true and correct, fraudulently by him. The office of RCS, based on said false belief, proceeded further and revived Society in Question and later on, sent the file to the office of DDA. The office of DDA again was induced into belief that said CBI Case No.189/2019 Page 583 of 591 CBI vs. B.M. Sethi & Ors.
record was true and correct and therefore, land was allotted in favour of Society. Accused Maha Nand Sharma (A-4) did said acts in conspiracy with co-accused persons. Accordingly, by doing said acts, Accused Maha Nand Sharma (A-4) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 & 471 IPC.
199. Accused Pankaj Madan (A-5) was a Member of Society. He created false and forged documents, which were furnished before the office of RCS. The office of RCS was induced into believing that those documents were true and correct, fraudulently by him. The office of RCS, based on said false belief, proceeded further and revived Society in Question and later on, sent the file to the office of DDA. The office of DDA again was induced into belief that said record was true and correct and therefore, land was allotted in favour of Society. Accused Pankaj Madan (A-5) did said acts in conspiracy with co-accused persons. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA/ Bank and to cause unlawful gain to himself and co-accused persons got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question. Said false & forged documents were used in the office of RCS/ DDA/ Bank. He did said acts knowing that the records of Society in Question were forged and fabricated. He took over the working of Society and started controlling its finances/ bank CBI Case No.189/2019 Page 584 of 591 CBI vs. B.M. Sethi & Ors.
accounts, in a wrongful manner, in conspiracy with other co- accused persons. The money collected by Society from government bank, based on submissions of false & fabricated records in the office of RCS, led to allotment of land to Society in Question. Accordingly, by doing said acts, Accused Pankaj Madan (A-5) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
200. Accused Ashwani Sharma (A-6) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA and to cause unlawful gain to himself and/ or co-accused persons, created/ prepared and got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, related to Society in Question and said documents were used in the office of RCS, for the purpose of revival of Society in Question. Consequent thereto, Society in Question was revived after approval of freeze list of fictitious Members and on the basis of the same, land was allotted by DDA in favour of Society in Question. Accordingly, by doing said acts, Accused Ashwani Sharma (A-6) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420, 468 & 471 IPC r/w Section 468 IPC.
CBI Case No.189/2019 Page 585 of 591201. Accused Ashutosh Pant (A-7) was not a Member of Society in Question. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA and to cause unlawful gain to himself and/ or co-accused persons, created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, related to Society in Question and said documents were used in the office of RCS, for the purpose of revival of Society in Question. Consequent thereon, Society in Question was revived after approval of freeze list of fictitious Members, on the basis of which, land was allotted by DDA in favour of Society in Question. Accordingly, by doing said acts, Accused Ashutosh Pant (A-7) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420, 468 & 471 IPC r/w Section 468 IPC.
202. Accused Sudarshan Tandon (A-8) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA and to cause unlawful gain to himself and co- accused persons, created/ prepared and got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question and said documents were used in the office of RCS, for the purpose of revival of Society in Question. Consequent thereto, Society in Question was revived after approval of freeze list of fictitious Members, on the basis of which, land was allotted by DDA in favour of Society in Question.
CBI Case No.189/2019 Page 586 of 591Accordingly, by doing said acts, Accused Sudarshan Tandon (A-8) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420, 468 & 471 IPC r/w Section 468 IPC.
203. Accused Manoj Vats (A-11) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA and to cause unlawful gain to himself and co- accused persons, got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question and said documents were used in the office of RCS/ DDA and on the basis of such forged and fabricated documents, Society in Question was revived after approval of freeze list of fictitious Members and land was allotted by DDA in favour of Society in Question. Accordingly, by doing said acts, Accused Manoj Vats (A-11) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
204. Accused Vijay Thakur (A-12) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA/ Bank and to cause unlawful gain to himself and co- accused persons, got created/ prepared forged and fabricated CBI Case No.189/2019 Page 587 of 591 CBI vs. B.M. Sethi & Ors.
documents, in conspiracy with co-accused persons, relating to Society in Question. Said forged documents were used in the office of RCS/ DDA/ Bank. He knew that the records of Society in Question were forged and fabricated but despite that he started controlling its finances/ bank accounts, as a President along with other co-accused persons. On the contrary, he was never elected President of Society in Question. He arranged money with other co-accused persons, which was deposited to the office of DDA, as price of the land, which was allotted to Society in Question. Thereafter, land was allotted by DDA in favour of Society in Question. Accordingly, by doing said acts, Accused Vijay Thakur (A-12) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
205. Accused Vikas Madan (A-13) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA/ Bank and to cause unlawful gain to himself and co- accused persons, got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question. Said documents were used in the office of RCS/ DDA/ Bank, which he knew to be forged & fabricated. Thereafter, he took over the Society and started controlling its finances/ bank accounts along with other co-accused persons. He arranged money with other co-accused persons and same was deposited to the office of DDA, as price of the land allotment. The CBI Case No.189/2019 Page 588 of 591 CBI vs. B.M. Sethi & Ors.
land was, thereafter, allotted to Society in Question. Accordingly, by doing said acts, accused Vikas Madan (A-13) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
206. Accused Poonam Awasthi (A-14) was a Member of Society. She fraudulently, dishonestly and knowingly, in order to cheat the office of RCS / DDA/ Bank and to cause unlawful gain to herself and co-accused persons, got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question. Said documents were used in the office of RCS/ DDA/ Bank, which she knew to be forged & fabricated. Thereafter, she took over the Society and started controlling its finances/ bank accounts along with other co-accused persons. She arranged money with other co-accused persons and same was deposited to the office of DDA, as price of the land allotment. The land was, thereafter, allotted to Society in Question. Accordingly, by doing said acts, accused Poonam Awasthi (A-14) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
207. Accused Narinder Dhir (A-15) was a Member of Society. He fraudulently, dishonestly and knowingly, in order to cheat the office CBI Case No.189/2019 Page 589 of 591 CBI vs. B.M. Sethi & Ors.
of RCS / DDA/ Bank and to cause unlawful gain to himself and co- accused persons, got created/ prepared forged and fabricated documents, in conspiracy with co-accused persons, relating to Society in Question. Said documents were used in the office of RCS/ DDA/ Bank, which he knew to be forged & fabricated. Thereafter, he took over the Society and started controlling its finances/ bank accounts along with other co-accused persons. He arranged money with other co-accused persons and same was deposited to the office of DDA, as price of the land allotment. The land was, thereafter, allotted to Society in Question. Accordingly, by doing said acts, accused Narinder Dhir (A-15) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 420 IPC.
208. Accused Gopal Dixit (A-16) was Registrar in the office of RCS. He abused his official position, as a Public Servant, with a view to cause pecuniary advantage to private persons, without any public interest and illegally passed order for revival of Society in Question, on the basis of false & fabricated documents. He did so, in conspiracy with other co-accused persons and due to this reason, freeze list of 90 fictitious Members was approved and sent to DDA and thereby land was allotted by DDA in favour of Society in Question. Accordingly, by doing said acts, Accused Gopal Dixit (A-16) committed offences punishable under Section 120B read with 420, 468, 471 read with 468 IPC and Section 13(2) read with CBI Case No.189/2019 Page 590 of 591 CBI vs. B.M. Sethi & Ors.
Section 13(1)(d)(iii) of PC Act 1988 and he also committed substantive offence punishable under Section 13(2) read with Section 13(1)(d) (iii) of PC Act 1988.
209. Therefore, I conclude that all the accused persons in conspiracy with each other, committed offences with which they were charged besides committing concerned substantive offences. Thus, prosecution was able to prove the charges, levelled against accused persons, beyond reasonable doubt, on the basis of circumstantial evidence. No other theory, consistent with the innocence of accused persons was possible. All the above- mentioned accused persons are convicted in above-mentioned terms, accordingly. Digitally signed by PRASHANT SHARMA PRASHANT Date:
Announced in the Open Court SHARMA 2025.10.13 11:22:51 on 13th October 2025 +0530 (Prashant Sharma) Spl. Judge (PC Act): CBI-15 Rouse Avenue District Court New Delhi/13.10.2025 CBI Case No.189/2019 Page 591 of 591