Delhi District Court
Cbi vs Narayan Diwakar Etc.(Delhi Census ... on 21 April, 2025
DLCT110007302019
IN THE COURT OF SPECIAL JUDGE (PC ACT) (CBI)-17
ROUSE AVENUE COURTS, NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068
In the matter of:
State (Central Bureau of Investigation)
versus
(1) Sh. Narayan Diwakar
son of late Chatti Lal
R/o G-30, Masjid Moth
Greater Kailash Part-II
New Delhi-48.
Permanent address:
Village and Post office Bairangnia,
Distt. Sitamarhi, Bihar.
(2) Sh. Sita Ram Goyal,
Son of Sh. Ram Dhari Goyal,
R/o 56-A, Suraj Nagar, Azadpur,
Delhi-33.
Permanent address:
Village & Post Office, Chandpur,
Delhi-81.
Proceedings qua him abated vide order dated 17.09.2012.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 1 of 185
(3) Sh. Faiz Mohd.
son of Shri Gulam Mohd.
R/o House No. 4794, Ahata Kidara
Bara Hindu Rao, Delhi.
(4) Sh. R.B. Chauhan
son of Shri K.S. Chauhan
R/o House No. 8, Plot No. 47, Panch Mahal Apartment
Patpar Ganj, IP Extension, Delhi-92.
Permanent address:
Village and Post Office Kandola
Patti, Pangarsua, Dev Paryag, Distt.
Pouri Garhwal, (Utranchal).
(5) Sh. Deen Bandhu Prasad
son of Shri Dhora Prasad
R/o House No. A-45, Sitapuri, Part-2
Gali No.3, New Delhi-45.
Permanent address:
Village and Post Office Basdeela
Distt. Chhapra Saran,
PS Jalalpur Bazar (Bihar).
(6) Sh. P.K. Thirwani
son of Late Sh. Moti Ram Thirwani
R/o House No. 348-E, Pocket-II
Mayur Vihar, Phase-1, Delhi-91.
(7) Sh. Munna Lal Sharma
son of Sh. Chhote Lal
R/o House No. C-6/249, Yamuna Vihar
Delhi-53.
(8) Sh. Ashutosh Pant
son of Shri Mahesh Chander Pant
R/o House No. B-160, Sadatpur Colony
Karawal Nagar, Delhi-94.
............ Accused persons
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 2 of 185
Date of Institution : 27.12.2006
Arguments concluded on : 17.03.2025
Judgment Pronounced on : 21.04.2025
For State : Mr. Neel Mani, Ld. Public Prosecutor
(through CBI)
For Defence : Mr. S.K. Bhatnagar, Ld. Advocate for accused
Faiz Mohd., accused Raj Bhushan Chauhan
and accused Deen Bandhu Prasad
Dr. Sushil Kumar Gupta, Ms. Sunita Gupta and
Mr. R.S. Ahuja, Ld. Advocates for accused
Ashutosh Pant.
Mr. Abhishek Prasad, Ld. Advocate for
accused Narayan Diwakar and accused Prahlad
Kumar Thirwani.
Mr. Anil Kumar and Ms. Pinky Singh,
Ld. Advocates for accused Munna Lal Sharma.
JUDGMENT
INTRODUCTION
1. The genesis of this case can be traced to order dated 02.08.2005 in Yogi Raj Krishna Cooperative Group Housing Society Ltd. vs Delhi Development Authority and others1 wherein the Delhi High Court vide order dated 02.08.2005 directed, the CBI to conduct a thorough investigation in all matters of 135 Co-operative Societies, on 1Writ Petition (Civil) No. 10066/2004 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 3 of 185 an apprehension that in connivance with office of Registrar of Co- operative Societies and office of DDA, the builders had taken over the Co-operative Movement in Delhi. It was opined "Land in Delhi is allotted at a pre-determined rate and not on the basis of the 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 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." . Delhi Census CGHS was one such Co-operative Group Housing Society which was investigated.
COMPLAINT
2. Sh. Rajesh Kumar, Inspector of Police, CBI, BS&FC, Delhi (hereinafter, referred to as 'the complainant') filed a complaint dated 22.12.2005 (D-2) before the Superintendent of Police, CBI, ACB CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 4 of 185 alleging that pursuant to order dated 02.08.2005 in W.P. (C) No. 10066/2004, a Preliminary Enquiry bearing No. PE.BD1/2005 (E) 2005 was registered against six Societies on 08.08.2005 by CBI, BS&FC, New Delhi and enquiry was conducted. Allegedly, as per the preliminary enquiry, during 1970-1980 or thereafter, a number of Group Housing Societies were registered at the office of Registrar, Co-operative Societies, New Delhi but in due course became defunct for not following mandatory requirements as per The Delhi Co-operative Societies Act, 1972 (hereinafter, referred to as 'DCS Act, 1972'). Thereafter, their winding up was ordered. However, a number of defunct societies were revived by the Registrar of Co-operative Societies (hereinafter, referred to as 'RCS') on the basis of false/fabricated documents and were recommended to DDA for allotment of land. Thus, allegedly, by abuse of Section 63(3) of DCS Act, 1972 the builders in league with officials of RCS caused wrongful gain to themselves and others.
2.1 As per enquiry, Delhi Census CGHS had been registered with registration No. 128 on 31.05.1971 having office at Laxmi Bai Nagar, New Delhi and was brought under liquidation on 23.03.1979 due to non-compliance of various provisions of DCS Act,1972. Further during enquiry, it was revealed that accused Narayan Diwakar, the then RCS, accused Sita Ram Goyal (since deceased) the then Assistant Registrar (West), accused Faiz Mohd., Group-II, Inspecting Officer, accused R.B. Chauhan, Dealing Assistant and accused Deen Bandhu Prasad, Election Officer (all officials working at the office of RCS, NCT CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 5 of 185 of Delhi) conspired with unknown persons to revive Delhi Census Cooperative Group Housing Society (hereinafter referred to as 'Delhi Census CGHS'). Allegedly in pursuance to the said conspiracy, accused Narayan Diwakar got the file reconstructed by accused R.B. Chauhan on latter's report that the original file of the Society was not traceable, on a letter dated 27.12.2003, of one Vishnu Rai, claiming to be the Hony. Secy. of the Society, requesting for revival of the Society. Accused Sita Ram Goyal (since deceased) allegedly, dishonestly appointed accused Faiz Mohammad to conduct enquiry into the working of the Society and accused Faiz Mohammad submitted a false inspection report dated 27.01.2003, both with regards to the address of the Society and its affairs. The said false inspection report was allegedly, dishonestly accepted by accused Sita Ram Goyal (since deceased) and accused Naryan Diwakar after which, accused Narayan Diwakar for corrupt and illegal consideration, facilitated revival of Society vide order dated 01.03.2004, on recommendation of accused R. B. Chauhan and accused Sita Ram Goyal (since deceased). Thereafter, accused Sita Ram Goyal (since deceased) sent the final list of members on 04.03.2004 to Assistant Registrar (Policy), Cooperative Societies, Govt. of Delhi, Parliament Street, for onward submission to DDA for allotment of land. Accused Deen Bandhu Prasad was appointed as the Election Officer of the Society by accused Sita Ram Goyal (since deceased) as per order dated 01.03.2004 of accused Narayan Diwakar and accused Deen Bandhu Prasad thereafter, submitted a false report about the elections of the Society.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 6 of 185 2.2 The complainant also alleged that accused Narayan Diwakar had confirmed the presence of Sh. Vishnu Rai in February 2004, before him, in notings in RCS file but enquiry revealed that Sh. Vishnu Rai, President and Sh. N.D. Pathak, Secretary of the Society were not residing at the given addresses. Also, Sh. V. K. Taneja, Smt. Uma Gupta and Smt. Poonam, all shown as members of the Managing Committee of the Society denied any association with the Society and the remaining members of the Management Committee were not traceable. Therefore, an apprehension was also expressed that the documents purportedly, executed by the Society were false and fabricated.
2.3 Complaint also mentioned that the office of Delhi Census CGHS was also not found to be existing at the given address at WZ-1198/1, Main Bazar, Rani Bagh, New Delhi as the property belonged to one Sh. V.K. Khanna, who had denied the existence of the Society at the given address at any point of time.
FIR
3. On the aforementioned complaint, FIR No. RC-DAI-2005- A-0068 (D-1) was registered on 22.12.2005, under Section 120B r/w 420, 467, 468, 471 IPC r/w 13(2) r/w 13(1)(d) of The Prevention of Corruption Act 1988 (hereinafter referred as 'P.C. Act') against the accused persons and investigation was marked to Sh. S.C. Bhalla, Inspector of Police, CBI, ACB, New Delhi.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 7 of 185 CHARGESHEET
4. Pursuant to the investigation, chargesheet under Section 120B IPC r/w 420, 468, 471 r/w 13(2) r/w 13(1)(d) of P.C. Act and 420/511 IPC, 468 and 471 Indian Penal Code (hereinafter, referred as 'IPC') against accused persons namely Narayan Diwakar, Sita Ram Goyal (since deceased), Faiz Mohd., R.B. Chauhan, Deen Bandhu Prasad, P.K. Thirwani, Munna Lal Sharma and Ashutosh Pant, was filed on 27.12.2006 before the then Duty Metropolitan Magistrate and was made over for consideration before the concerned Court.
4.1 Chargesheet qua all accused persons except accused Ashutosh Pant was filed without their arrest. Accused Ashutosh Pant arrested during investigation had been ordered to be released on bail on 13.09.2006.
4.2 Ld. Predecessor of this Court, vide order dated 23.08.2007, took cognizance of the offences and summoned all the accused persons.
4.3 All accused persons entered their appearance on 18.10.2007. Remaining accused persons also moved their bail application which were allowed vide order dated 08.02.2008.
4.4 In compliance of Section 207 of The Criminal Procedure Code, 1973 (hereinafter, referred to as 'Cr.P.C.'), documents were CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 8 of 185 supplied to the accused persons.
4.5 Thereafter, an application under Section 197 Cr.P.C. dated 31.07.2008 for discontinuing/dropping/terminating the prosecution was moved by accused Narayan Diwakar for want of requisite sanction for prosecution. The Ld. Predecessor of this Court vide detailed order dated 17.09.2008 dismissed the application observing as under:
"It was agitated on behalf of accused Narayan Diwakar that this Court should enter in to meticulous assessment of facts to ascertain as to whether he was discharging his official functions. At this juncture, the Court has to see global aspect of facts to find out that all the circumstances highlighted by prosecution form a complete chain of evidence. As detailed above, events narrated by the investigating agency show that accused Narayan Diwakar and his associates moved with a conspiracy and then offences were committed. At this stage, it is not possible to assess facts meticulously. Therefore, I do not find any force in the application. In case accused succeeds, after trial of the case, to show that he was not part of the conspiracy, he may raise issue of protection under section 197 of the Code at that juncture. With these observations, his application is declined."
4.6 Accused P.K. Thirwani also moved an application dated 12.03.2009 seeking stay over proceedings in absence of sanction for prosecution qua him under Section 197 Cr.P.C. However, Ld. Predecessor of this Court vide order dated 06.08.2009 dismissed the application opining as under :
"9. A defunct society was revived on the basis of an application of an impersonator / non-existent person. Accused P.K. Thirwani filed a false audit report, showing the address of the society as WZ 1198/1, Main Bazar, Rani Bagh, Delhi but no society was functioning there nor Vishnu Rai was its Honorary Secretary. These facts show that accused P.K. Thirwani was a part of criminal conspiracy to commit criminal misconduct. A sanction for his prosecution under Section 19 of the P.C. Act under Section 120-B r/w Section 420/468/471 IPC and Section 13 (2) r/w 13(1)(d) of P.C. Act and Section 15 of P.C. Act is already on CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 9 of 185 record. As such, there is no need for any sanction under Section 197 CrPC. The application is without merit and the same is dismissed, subject to the costs of Rs.500/-."
4.7 However, there is no material available on record which shows that the order was subjected to any challenge before the superior Court and as such, the issue qua him attained finality. Only an application dated 03.09.2009 seeking waiver of cost was moved by accused P.K. Thirwani.
4.8 Accused R.B. Chauhan also moved an application dated 26.03.2009 seeking to challenge the cognizance for want of sanction for prosecution under Section 19 of P.C. Act. He had challenged the validity of the sanction as the same had been granted by Sh. Anil Mehra, Director, Family Welfare, Government of NCT of Delhi as he was not competent to remove accused R.B. Chauhan from his office. On the same, vide order dated 06.08.2009, Ld. Predecessor of this Court treated the issue as triable.
CHARGE
5. Vide order dated 05.08.2010, the ld. Predecessor of this Court framed charges against the accused persons as under:
S. No. Name of Accused persons Sections
1. All accused persons Section 120B IPC r/w Section 419/420/467/468/471/IPC r/w Section 13(2) r/w 13(1)(d) CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 10 of 185 P.C. Act.
2. Accused Narayan Section 15 r/w Section 13(2) Diwakar, accused Sita r/w Section 13(1)(d) P.C. Act.
Ram Goyal (since
deceased), Deen Bandhu
Prasad, Faiz Mohammad,
R. B. Chauhan, and P.K.
Thirwani.
3. Accused Ashutosh Pant Section 419 IPC, Section 468
IPC.
4. Accused Ashutosh Pant Section 120B IPC r/w section and accused Munna Lal 420, 468 and 471 IPC.
Sharma PROSECUTION EVIDENCE
6. In order to prove the allegation, the prosecution has examined the following witnesses:
S PW Name of To prove Document Cross
No No. witnesses examination
1 PW1 Sh. Amar That he is not a Affidavit The accused
Singh member of Delhi dated persons did not
Census, CGHS but 16.02.2004 avail the
is or was a member Mark-X, opportunity to of United India page No. 31 cross examine Insurance CGHS and of D-13. this witness, had never sworn any despite affidavit to be given opportunity to Delhi Census being granted.
CGHS.
2 PW2 Sh. Sansar That he is not a Affidavit The accused
Chand Sharma member of Delhi dated persons did not
Census CGHS but 21.02.2004 avail the
was a member of Mark-X1. opportunity to United India Page No. 28 cross examine CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 11 of 185 Insurance CGHS but of D-13. this witness, subsequently despite resigned. He also opportunity deposed he had being granted. never sworn any affidavit to be given to Delhi Census CGHS. 3. PW3 Sh. Mangat That he is not a Affidavit The accused Ram member of Delhi dated persons did not Census CGHS but 16.02.2004, avail the
was a member of Mark -X2, opportunity to United India Page No. cross examine Insurance CGHS but 149 of D-13 this witness, subsequently despite resigned. He also opportunity deposed he had being granted.
never sworn any affidavit to be given to Delhi Census CGHS.
4. PW6 Sh. Ajay Jain That his father was a Affidavit The accused on behalf of his member of United dated persons did not father Late Sh. India Insurance 16.02.2004, avail the Madan Lal Jain CGHS and expired Ex. PW6/B, opportunity to on 17.06.1991. He Page No. cross examine never became a 132 of D-13. this witness, member of Delhi despite Census CGHS and opportunity his father also being granted.
deposed he had never sworn any affidavit to be given to Delhi Census CGHS.
5. PW7 Sh. Chander That he is not a Affidavit The accused Mani Pathak member of Delhi dated persons did not Census CGHS but 16.02.2004, avail the was a member of Ex.PW7/A, opportunity to United India Page No. 57 cross examine Insurance CGHS but of D-13 this witness, subsequently despite resigned. He also opportunity CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 12 of 185 deposed he had granted. never sworn any affidavit to be given to Delhi Census CGHS. 6 PW8 Sh. Raj Kumar That he was an Affidavit The accused Manchanda employee of United dated persons did not India Insurance 16.02.2004, avail the
Company but never Ex. PW8/A opportunity to became a member of Page No. 70 cross examine Delhi Census of D-13 this witness, CGHS. He also despite deposed he had opportunity never sworn any being granted.
affidavit to be given to Delhi Census CGHS.
7 PW9 Sh. Rajinder That he is a member Affidavit The accused Kumar Sharma of United India dated persons did not Insurance CGHS and 16.02.2004, avail the never became a Ex.PW9/A opportunity to member of Delhi Page No. cross examine Census CGHS. He 122 of D-13 this witness, also deposed he had despite never sworn any opportunity affidavit to be given being granted.
to Delhi Census CGHS.
8. PW10 Sh. R.P. That he retired as Affidavit The accused Malhotra Senior Divisional dated persons did not Manager, United 16.02.2004, avail the India Insurance Ex. opportunity to company but never PW10/A, cross examine became a member of Page No.143 this witness, any CGHS. He also of D-13 despite deposed he had opportunity never sworn any granted.
affidavit to be given to Delhi Census CGHS.
9. PW11 Sh. Girish That he retired as Affidavit The accused Chandra Senior Divisional dated persons did not Chopra Manager, United 16.02.2004, avail the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 13 of 185 India Insurance Ex.PW11/A opportunity to Company and he Page No. cross examine became a member 150 of D-13 this witness, of United India despite Insurance CGHS opportunity Limited. He also being granted. deposed he had never sworn any affidavit to be given to Delhi Census CGHS. 10. PW12 Sh. Deepak That he retired as Affidavit The accused Bahl Administrative dated persons did not Officer, United India 16.02.2004, avail the
Insurance Company Ex. PW12/A opportunity to and he became a Page No. 77 cross examine member of United of D-13 this witness, India CGHS despite Limited. He also opportunity deposed he had being granted.
never sworn any affidavit to be given to Delhi Census CGHS.
11. PW13 Smt. Prem Puri That she retired as Affidavit The accused Assistant Manager, dated persons did not United India 16.02.2004, avail the Insurance Company Ex.PW13/A, opportunity to and she became a page No. 76 cross examine member of United of D-13. this witness, India Insurance despite CGHS. She also opportunity deposed she had being granted.
never sworn any affidavit to be given to Delhi Census CGHS.
12. PW14 Sh. Lal Chand That he retired as Affidavit The accused Assistant, United dated persons did not India Insurance 16.02.2004, avail the Company and Ex.PW14/A opportunity to became a member Page No. cross examine of United India 141 of D-13 this witness, CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 14 of 185 Insurance CGHS. He despite also deposed he had opportunity never sworn any being granted. affidavit to be given to Delhi Census CGHS. 13. PW15 Sh. R.C. Sood He denied that he Affidavit This witness ever became a dated was only cross member of Delhi 16.02.2004, examined by Census CGHS Ex. PW15/A accused Page No. 26 Ashutosh Pant of D-13 and accused Deen Bandhu Prasad adopted the cross examination conducted by accused Ashutosh Pant. 14 PW16 Sh. Madan Lal That he retired as Affidavit This witness Thakur Assistant, United dated was only cross India Insurance 16.02.2004, examined by Company and is a Ex. accused member of United PW16/A, Ashutosh Pant India Insurance Page No. 43 and accused CGHS. He also of D-13 Deen Bandhu deposed he had Prashad. He never sworn any was re- affidavit to be given examined by to Delhi Census the Ld. Public CGHS. Prosecutor for the State. 15. PW17 Ms. Leena That she is a Affidavit This witness Baijal member of United dated was only cross India Insurance 16.02.2004, examined by
CGHS and never Ex. PW17/A accused Munna became a member of Page No. 85 Lal Sharma and Delhi Census of D-13 re-examined by CGHS. She also (Objected to the Ld. Public deposed she had on mode of Prosecutor for never sworn any proof by the State.
affidavit to be given counsel for to Delhi Census A-7 Munna CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 15 of 185 CGHS. Lal Sharma) 16. PW18 Sh. R.D. Joshi That he is a member Affidavit The accused of United India dated persons did not Insurance CGHS and 16.02.2004, avail the
never became a Ex. PW18/A opportunity to member of Delhi Page No. 15 cross examine Census CGHS. He of D-13. this witness, also deposed he had despite never sworn any opportunity affidavit to be given being granted.
to Delhi Census CGHS.
17. PW19 Sh. G.K. Gupta That he is a member Photocopy The accused of United India of persons did not Insurance CGHS and application avail the never applied for and for opportunity to paid subscription membership cross examine fees or gave any Ex.PW19/A this witness, affidavit to become (Objected to despite a member of Delhi on mode of opportunity Census CGHS. proof) being granted.
Photocopy of Receipt dated 10.01.1973 Ex.PW19/B (Objected to on mode of proof) Photocopy of affidavit dated 16.02.2004 filed by one Vishnu Rai, Ex.PW19/C showing witness as a member at Srl. No. 79 with Membership CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 16 of 185 No. 93, Ex.PW19/C (Objected to on the mode of proof). Photocopy of Membership List for UPC Ex.PW19/D mentioning the witness at Srl. No. 93. Photocopy of proforma of submission of list of member for verification finding mention of the witness Ex.PW19/E. Photocopy of consolidated list of members showing the witness at Srl. No. 79 with Membership No. 93, Ex.PW19/F. (Objected to on mode of proof). CBI vs Narayan Diwakar and Ors. Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 17 of 185 Original affidavit dated 16.02.20204 executed by the witness Ex. 19/G but he denied his signatures therein (objected to as the affidavit is not signed by the witness). 18 PW20 Sh. V.S. That he retired as Photocopy The accused Chopra Director General- of persons did not Manager of United application avail the India Insurance for opportunity to Company. He membership cross examine became member of Ex. PW20/A this witness, United India (Objected to despite
Insurance CGHS but on mode of opportunity later resigned and proof). being granted.
never applied for and
paid subscription or Photocopy
gave affidavit to of Receipt
become a member of dated
Delhi Census 16.08.1972
CGHS. Ex.PW20/B
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW20/C
given for
membership
.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 18 of 185
Photocopy
of affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW19/C
showing
witness as a
member at
Srl. No. 26
with
Membership
No. 40,
Ex.PW19/C
(Objected to
on the mode
of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Srl. No.
40.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
Ex.PW19/E.
Photocopy
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 19 of 185
of
consolidated
list of
members
showing the
witness at
Srl. No. 26
with
Membership
No. 40,
Ex.PW19/F.
(Objected to
on mode of
proof).
19. PW21 Sh. Hari Singh That he was a Photocopy The accused
member of United of persons did not
India Insurance application avail the
Company and never for opportunity to
applied for and paid membership cross examine subscription or gave Ex. PW21/A this witness, affidavit to become (Objected to despite a member of Delhi on mode of opportunity Census CGHS. proof). being granted.
Photocopy of Receipt dated 16.08.1972 Ex.PW21/B (Objected to on mode of proof) Affidavit dated 16.02.2004 Ex.PW21/C given for membership .
Photocopy of affidavit CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 20 of 185 dated 16.02.2004 filed by one Vishnu Rai, Ex.PW19/C showing witness as a member at Srl. No. 13 with Membership No. 27, Ex.PW19/C (Objected to on the mode of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
27.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl. No.27
Ex.PW19/E
Photocopy
of
consolidated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 21 of 185
list of
members
showing the
witness at
Sl. No. 13
with
Membership
No. 27,
Ex.PW19/F.
(Objected to
on mode of
proof).
20. PW22 Sh. N.P. That he retired as Photocopy This witness
Upadhyay Senior Assistant, of was cross
United India application examined by
Insurance Company for accused
and is a member of membership Ashutosh Pant United India Ex. PW22/A and accused Insurance CGHS. He (Objected to Deen Bandhu never applied for on mode of Prasad.
and paid proof).
subscription or gave
affidavit to become Photocopy
a member of Delhi of Receipt
Census CGHS. dated
16.08.1972
Ex.PW22/C
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW22/B
given for
membership
.
Photocopy
of
Membership
List for
UPC
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 22 of 185
Ex.PW19/D
mentioning
the witness
at Srl. No.
42.
21. PW23 Sh. Ashok That he was a Affidavit This witness
Kumar Tandon member of United dated was cross
India Insurance 16.02.2004 examined by
Company Ltd. but Ex.PW23/A accused
resigned and given for Ashutosh Pant
thereafter, never membership and accused
applied and paid . (page no. Deen Bandhu subscription or gave 142) Prasad.
affidavit to become
a member of Delhi Photocopy
Census CGHS. of list of
members for
verification
Ex.PW23/B
(colly)
showing the
witness at
Srl. No. 142.
Photocopy
of list of
members as
on
31.03.2003
Ex.PW23/C
showing the
witness at
Srl. No. 142.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW23/D
(colly)
showing the
witness at
Srl. No. 142.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 23 of 185
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Srl. No.
142.
22. PW24 Sh. Brij That he was a Affidavit This witness
Kishore Gupta member of United dated was only cross
India Insurance 16.02.2004 examined by
CGHS but later Ex.PW24/A accused
resigned and given for persons namely
thereafter, had never membership Ashutosh Pant, applied and paid . Faiz Mohd and subscription or gave P.K. Thirwani.
affidavit to become Photocopy a member of Delhi of list of Census CGHS and members for never received any verification communication from Ex.PW23/B the RCS Office (colly) pertaining to CGHS. showing the witness at To prove that he Srl. No. 72.
never attended any
meeting of the Photocopy
management of list of
committee. members as
on
To demonstrate that 31.03.2003
on perusal of list of Ex.PW23/C
members of Delhi showing
Census CGHS Ex. Palson Peter
PW23/B (Colly) at Sl.
(were his colleagues No.128 and
and friends who Madan Lal
were members of Jain at Srl.
United India No. 132
Insurance, CGHS). despite them
having
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 24 of 185
To prove that Sh. expired
Palson Peter and Sh. before 2000.
Madan Lal Jain had
already expired Photocopy
before the year 2000 of list of
and was still shown members as
as members in Ex. on
PW23/C as on 30.06.1978
31.03.2003. Ex.PW23/D
showing the
witness at
Sl. No. 72.
23. PW25 Sh. Umesh That his father was a Photocopy This witness
Aggarwal member of United of was only cross
(On behalf of India Insurance application examined by
his father late Company Ltd. and for accused Munna
Sh. J.N. never applied and membership Lal.
Aggarwal). paid subscription or in the name
gave affidavit to of Jai
become a member of Narayan
Delhi Census Aggarwal
CGHS. (his
deceased
The testimony of father)
this witness is also Ex.PW25/A
relevant to show that (Objected to
accused Faiz on mode of
Mohammad had proof).
never visited his
premises for Photocopy
physical verification of Receipt
of membership of dated
his late father who 15.03.1973
had already expired Ex.PW25/F
in May, 2003 and (D-14 Vol-
therefore, could not III)
have affirmed
affidavit dated Affidavit for
16.02.2004. membership
Ex.
PW25/B.
Affidavit
dated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 25 of 185
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
father of
witness as a
member at
Sl. No. 98
with
Membership
No. 112.
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
Photocopy
of Ration
Card of his
father Mark-
PW25X.
Letter dated
09.02.2005
by accused
Faiz
Mohammad
to the
Assistant
Registrar
(West)
showing the
name of
father of the
witness at
Sl. No.2
Ex.PW25/D
(Objected to
on mode of
proof).
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 26 of 185
Photocopy
of
consolidated
list of
members
showing the
name of
father of
witness at
Sl. No. 98
with
Membership
No.112,
Ex.PW19/F.
Photocopy
of list of
members for
verification
Ex.PW23/B
(colly)
showing the
father of the
witness at
Sl. No. 112.
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the father of
the witness
at Sl. No.
112.
Photocopy
of list of
members as
on
31.03.2003
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 27 of 185
Ex.PW23/C
showing his
father at Sl.
No.112.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW25/E
(Objected to
on mode of
proof)
Showing the
father of the
witness at
Sl. No.112.
24. PW26 Sh. Virender That he was a Photocopy This witness
Kumar Taneja member of United of was only cross
India Insurance application examined by
Company and never for accused
applied and paid membership persons namely subscription or gave Ex. PW26/A Deen Bandhu affidavit to become (Objected to Prasad and a member of Delhi on mode of Ashutosh Pant.
Census CGHS. proof).
To prove that no Photocopy
communication was of Receipt
received from the dated
office of RCS 15.03.1973
pertaining to Delhi Ex.PW26/D
Census CGHS. (Objected to
on mode of
To establish that he proof)
never attended any (Inadvertent
meetings of Delhi ly exhibited
Census CGHS. as
Ex.PW26/C
To prove that ).
no physical
verification of his Affidavit
membership had dated
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 28 of 185
been carried out. 16.02.2004
Ex.PW26/B
given for
membership
.
Affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing
witness as a
member at
Sl. No. 106
with
Membership
No. 120,
(Objected to
on the mode
of proof).
Photocopy
of Ration
Card
Ex.PW26/C
(Objected to
on mode of
proof).
Letter dated
09.02.2005
by accused
Faiz
Mohammad
to the
Assistant
Registrar
(West)
showing the
name of the
witness at
Sl. No.1
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 29 of 185
Ex.PW25/D
(Objected to
on mode of
proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
120.
Photocopy
of list of
members for
verification
Ex.PW23/B
(colly)
showing the
name of the
witness at
Sl. No. 120.
Photocopy
of list of
members as
on
31.03.2003
Ex.PW23/C
showing
him at Sl.
No.120.
Photocopy
of list of
members as
on
30.06.1978
Ex.PW25/E
(Objected to
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 30 of 185
on mode of
proof)
showing the
witness at
Sl. No.120.
Photocopy
of
consolidated
list of
members
showing the
witness at
Sl. No. 106
with
Membership
No. 120,
Ex.PW19/F
25. PW27 Sh. Anand To prove that his Affidavit This witness
(On behalf of grandfather was a dated was only cross
his grandfather driver in United 16.02.2004 examined by
Late Sh. India Insurance was not of accused
Krishan Lal) Company and had his persons namely
never acquired the grandfather Deen Bandhu membership of Delhi and is Prasad and Census CGHS. Ex.PW27/A. Ashutosh Pant.
Being illiterate, he
only appended his Photocopy
thumb impression of Ration
instead of signing. Card
Also to establish that Ex.PW27/B.
his grandfather had (Incorrectly
expired on endorsed as
25.12.2004. PW27/C in
the file.)
Photocopy
of death
certificate of
Sh. Kishan
Lal
Ex.PW27/C.
(Incorrectly
endorsed as
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 31 of 185
PW27/B in
the file.)
26. PW28 Sh. Tajinder To prove that his Affidavit for This witness
Pal on behalf father was member membership was only cross of his deceased of United India dated examined by father Sh. Insurance CGHS but 16.02.2004 accused Roop Lal resigned from it and Ex. persons namely never ever became a PW28/A. Deen Bandhu member of Delhi Prasad and Census CGHS as Carbon Ashutosh Pant.
shown and that he Copy of
had expired on death
22.07.1998, itself. certificate of
late Sh.
Roop Lal
Ex.
PW28/B.
27. PW29 Sh. Ashok To prove that his Affidavit for This witness
Bhasin wife Smt. Anita membership was cross
(On behalf of Bhasin was an in the name examined by
his wife) Assistant Accounts of Smt. accused
Officer with United Anita persons namely
India Insurance Bhasin Ex. Deen Bandhu
Company and PW29/A. Prasad and
became a member of Ashutosh Pant.
United India
Insurance CGHS,
only.
28. PW30 Sh. S.P. To prove that he was Photocopy His further
Chhatwal a member United of examination in
India Insurance application chief was
CGHS and never for deferred for
applied to become membership want of his member of Delhi Ex. PW30/A specimen Census CGHS. (Objected to signature but on mode of thereafter the proof). witness was never Photocopy examined.
of Receipt dated 09.11.1972 Mark-30X CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 32 of 185 (Objected to on mode of proof) Affidavit dated 16.02.2004 Ex.PW30/B given for membership .
Affidavit dated 16.02.2004 filed by one Vishnu Rai, Ex.PW25/C showing witness as a member at Sl. No. 66 Ex.PW25/C (Objected to on the mode of proof).
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
mentioning
the witness
at Sl. No.
80.
Photocopy
of proforma
of
submission
of list of
member for
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 33 of 185
verification
finding
mention of
the witness
at Sl. No.76
membership
No. 80
Ex.PW19/E.
Further
examination
of the
witness was
deferred on
09.05.2013.
29. PW34 Smt. Poonam To prove that neither Photocopy The accused
Vasudeva was she a member of of persons did not
Delhi Census CGHS application avail the
nor did she attend for opportunity to
any meeting of the membership cross examine Society nor any in the name this witness, physical verification of Poonam despite of the membership Ex.PW34/A opportunity was carried out. being granted.
Affidavit for membership Ex.
PW34/B. Photocopy of list of members for verification Ex.PW23/B (colly) showing the witness at Sl. No. 119.
Photocopy
of
Membership
List for
UPC
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 34 of 185
Ex.PW19/D
mentioning
the name of
the witness
at Sl. No.
119.
Proceedings
of Special
General
Body
Meeting
dated
04.04.2004
Ex.PW34/C.
30. PW35 Sh. P. Raman To prove that he has Photocopy The accused
been a member of of persons did not
United India application avail the
Insurance CGHS for opportunity to
since 1980 and never membership cross examine applied for the Ex. this witness, membership of Delhi PW35/B. despite Census CGHS. opportunity Affidavit being granted.
He also deposed that dated
he never attended 16.02.2004
any meeting of Ex.PW35/A
CGHS nor seconded given for
any person in the membership
said Society as its .
office bearer.
List of
member as
on
30.06.1978
showing the
witness at
Sl. No. 140.
The list is
Ex.PW35/C.
Affidavit
dated
16.02.2004
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 35 of 185
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
witness as a
member at
Sl. No. 126
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
(colly)
mentioning
the witness
at Sl. No.
140.
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl.
No.129
Ex.PW19/E
31. PW36 Sh. Ummed To prove that he Photocopy This witness
Singh became a member of of was only cross
United India application examined by
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 36 of 185
Insurance CGHS in for accused
1979 and never membership persons namely joined any other Ex. PW36/A Munna Lal Housing Society or (Objected to Sharma and attended its meetings on mode of Ashutosh Pant. or received any proof).
communication from
the office of RCS
qua membership of Photocopy
Delhi Census of Receipt
CGHS. dated
21.09.1972
He denied Mark
acquaintance with PW36/X1
Sh. Vishnu Rai, (Objected to
alleged applicant. on mode of
proof)
To prove that list of
members of Delhi Affidavit
Census CGHS dated
Ex.PW23/B, Ex. 16.02.2004
PW19/F and Ex. Ex.PW36/B
PW25/C were given for
actually showing membership
members in United .
India Insurance
CGHS. Photocopy
of
proceeding
dated
16.08.1972
Mark
PW36/X2.
Photocopy
of
proceeding
dated
17.07.1977
Ex.PW36/C
(Objected to
on mode of
proof).
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 37 of 185
Photocopy
of
proceeding
dated
05.10.2003
Ex.PW36/D
(Objected to
on mode of
proof).
Photocopy
of
proceeding
dated
04.04.2004
already
Ex.PW34/C
(Objected to
on mode of
proof).
Photocopy
of proforma
of
submission
of list of
member for
verification
finding
mention of
the witness
at Sl. No.51
Ex.PW19/E
Photocopy
of
Membership
List for
UPC
Ex.PW19/D
(colly)
mentioning
the witness
at Sl. No.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 38 of 185
55.
Affidavit
dated
16.02.2004
filed by one
Vishnu Rai,
Ex.PW25/C
showing the
witness as a
member at
Sl. No. 51
(Objected to
on the mode
of proof)
Photocopy
of the same
is already
Ex.PW19/C.
32. PW37 Sh. I.P.S. To prove that List of The accused
Sondhi members shown in members of persons did not
Delhi Census CGHS United India avail the
are members of Cooperative opportunity to United India Group cross examine Insurance CGHS. Housing this witness, Society Ltd. despite To also prove that he as on opportunity had attested the 14.12.1981 being granted.
death certificate of Ex.PW37/A. late Sh. Saminder Nath Saha, affidavit Death of Ashish Peter qua certificate of death of his father, Saminder death certificates of Nath Shah late Sh. S.R. Handa Ex.PW37/B. and late Sh. Kushal Singh who were Attested members of United copy of India Insurance affidavit CGHS. filed by Ashish Peter affirming i.e. father Polson Peter CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 39 of 185 had expired Ex.PW37/C. Death certificate of Sh. S.R. Handa Ex.PW37/D. Death certificate of Sh. Kushal Singh Ex.
PW37/E.
33. PW42 Sh. K.S. To prove that he was Photocopy This witness Gandilok a member of United of was only cross India Insurance application examined by CGHS and never for accused applied for membership Ashutosh Pant.
membership as Delhi Ex. PW42/A
Census. (Objected to
on mode of
proof).
Photocopy
of Receipt
dated
10.01.1973
Ex.PW42/B
(Objected to
on mode of
proof)
Affidavit
dated
16.02.2004
Ex.PW41/A
-54A given
for
membership
34. PW44 Sh. E.S.N. To prove that he The accused
Moorthy retired as Deputy List of persons did not
General Manager members of avail the
United India United India opportunity to
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 40 of 185
Insurance Company Cooperative cross examine and became a Group this witness, member of United Housing despite India Insurance Society Ltd. opportunity CGHS but never as on granted.
applied for 14.12.1981
membership as Delhi Ex.PW37/A.
Census.
Affidavit
dated
16.02.2004
Ex.PW44/A
given for
membership
35. PW45 Sh. Shiv Singh To prove that he was Affidavit This witness
Rawat a member of United dated was cross
India Insurance 16.02.2004 examined by
CGHS and never Ex.PW45/A accused
applied for given for Ashutosh Pant.
membership as Delhi membership
Census.
36. PW46 Smt. Vijay To prove that he was Affidavit The accused
Aggarwal a member of United dated persons did not
India Insurance 16.02.2004 avail the
CGHS and never Ex.PW46/A opportunity to applied for given for cross examine membership as Delhi membership this witness, Census. despite opportunity being granted.
37. PW47 Sh. Chandan To prove that his Affidavit This witness Singh on father late Sh. Paan dated was cross behalf of his Singh was a 16.02.2004 examined by father Late Sh. member of United in the name accused No.8 Paan Singh India Insurance of Sh. Paan Ashutosh Pant.
CGHS w.e.f. 1979 Singh, father
but had resigned of the
from its membership witness
in 1984 and never Ex.PW41/A
joined any other -8 given for
Housing Society. membership
of Delhi
Census
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 41 of 185
CGHS.
38. PW48 Ms. Indu Arora To prove that she has Photocopy This witness
been a member of of was cross
United India application examined by
Insurance CGHS form Mark accused No.8
since 1979 and never A/PW48. Ashutosh
took membership of Pant. .
any other Group Affidavit
Housing Society. dated
16.02.2004
Ex.PW41/A
-66 given
for
membership
of Delhi
Census
CGHS.
39. PW49 Sh. Suresh To prove that he has Photocopy The accused
Chand Jangla been a member of of persons did not
United India application avail the
Insurance CGHS form Mark opportunity to
since 1979 and never A/PW49. cross examine took membership of this witness, any other Group Affidavit despite Housing Society. dated opportunity 16.02.2004 being granted.
Ex.PW41/A
-14 given
for
membership
of Delhi
Census
CGHS.
40. PW50 Sh. Sharad To prove that his Photocopy The accused
Aggarwal on father was not a of persons did not
behalf of father member of any Co- application avail the
Late Sh. operative Group form in the opportunity to
Dharam Chand Housing Society. name of Sh cross examine
Gupta Dharam this witness,
Chand despite
Gupta opportunity
(father of being granted.
the witness)
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 42 of 185
Mark
A/PW50.
Affidavit
dated
16.02.2004
in the name
of Dharam
Chand
Gupta
Ex.PW50/1
given for
membership
.
Attested
copy of
death
certificate of
Sh. Dharam
Chand
Gupta Mark
B/PW50.
41. PW54 Sh. Ved To prove that he Affidavit This witness
Sabharwal retired as Sr. dated was cross
Assistant from 16.02.2004 examined by
United India Ex.PW41/A accused
Insurance Company -50 given Ashutosh Pant.
and has been a for
member of United membership
India Insurance of Delhi
CGHS Census
CGHS.
** Photocopy of affidavit of Vishnu Rai dated 16.02.2004 which was initially exhibited as Ex.PW19/C was during the deposition of PW25 Sh. Umesh Aggarwal allowed to be replaced by its original Ex. PW25/C (On record in D-13).
6.1 Following witnesses were examined being the sanctioning CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 43 of 185 authority who passed the sanction orders as under:
S PW Name of witnesses To prove Document No No.
1. PW4 Sh. Sanction order This witness was R. Narayanaswami Ex. PW4/A cross examined by qua accused accused P.K. P.K. Thirwani. Thirwani. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity granted.
2. PW5 Brig. (Retired) Sanction order The accused persons S.K. Chaudhary dated did not avail the 08.11.2006, opportunity to cross Ex.PW5/A qua examine this witness, accused Deen despite opportunity Bandhu, LDC. granted.
3. PW39 Sh. Anil Mehra Sanction The accused persons Ex.PW39/A did not avail the qua accused R. opportunity to cross B. Chauhan. examine this witness, despite opportunity granted.
6.2 PW31 Sh. Pradeep Kumar Kapoor, UDC was examined to prove the signatures of accused Sita Ram Goyal (since deceased) having seen him write and sign during his official duties. He identified the signatures of accused Sita Ram Goyal (since deceased) as under:
Sl.No. File No. Nature of document Exhibit No. CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 44 of 185
1. D-12, Volume-I, Noting prepared on receipt Ex.PW31/A F-47/128 from of application for revival. (Colly).
pages No. 1/N to 19/N in file Ex.
PW55/G (colly)
2. Page No. 138/C Order dated 05.02.2004 Ex.PW31/B of D-1, Vol-I, passed by accused Sita F-47/128 in file Ram Goyal (since Ex. PW55/G deceased) for appointment (colly) of accused Faiz Mohd. to conduct physical verification of members of Delhi Census CGHS at random and submit report within three days.
3. Page No. 3/C to Notification No. Ex.PW31/C 5/C of D-12, F-47/128/Coop/GH/West/ (Colly) Vol-I, F-47/128 42 dated 13.01.2004 sent in file Ex. to Assistant Registrars of PW55/G (colly) other Districts intimating about the main file of Delhi Census CGHS not being traceable and seeking reply from them as to whether the file is inadvertently lying in their Zone.
Order No. F.47/128/Coop/GH/W/40- 41 dated 13.01.2004 vide which accused Faiz Mohammad was appointed as the Inspection Officer to verify the records of the Society and submit his report within 15 days of CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 45 of 185 the order.
Letter No. F.47/128/Coop/ GH/W/78 dated 23.01.04 written by accused Sita Ram Goyal (since deceased) to the President/ Secretary of Delhi Census CGHS directing him to arrange for submission of original records for re-
construction of the file.
4. Page No. 164 of Letter No. F.47/128/Coop/ Ex.PW31/D D-12 Vol-I, GH/W/227-228 dated (Colly) F-47/128 from 04.03.2004 sent by pages No. 1/N to accused Sita Ram Goyal 19/N. (since deceased) to Assistant Registrar (Policy) forwarding the list of 150 members of Delhi Census CGHS approved by the competent authority for onward transmission to DDA for allotment of land.
6.2.1 The witness also identified the signature of accused Narayan Diwakar [on pages 5/N, 6/N and 18/N in the same file Ex. PW55/G(colly) (D-12), Vol-I)]. He further identified the signature of accused Narayan Diwakar on photocopy of order dated 01.03.2004 and the order was marked as Mark A/31.The accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 46 of 185 6.3 PW51 Sh. Narendra Singh Khatri deposed on similar lines as PW31 Sh. Pradeep Kumar Kapoor to prove his initials and of accused Narayan Diwakar at pages 5/N, 18/N and 1/N of Ex. PW31/A (colly) and that letter dated 30.01.2004 Ex.PW51/A signed by him at point A was issued on approval of accused Narayan Diwakar2. The accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.4 PW52 Ms. Prem Gulati, UDC to prove signature of accused Sita Ram Goyal (since deceased) at point A, his handwriting at point B, initial of accused R. B Chauhan at point D on page 19/N of Ex.PW31/A (Colly). She also identified the signature of accused Narayan Diwakar at points B on pages 2/C, 4/C, 5/C, 138/C, 139/C to 144/C, 165/C and 169/C in Ex. PW31/C (colly) and of accused Sita Ram Goyal (since deceased) at point A on page No. 2/C Ex. PW31/C (Colly). She further identified the signature accused Sita Ram Goyal (since deceased) and accused Narayan Diwakar on Ex. PW31/D (Colly) and Mark-A/31. In addition she also tendered the following documents in evidence:
Sl. No. File No. Nature of document Exhibit No.
1. D-12, Vol-I, Inspection report under Ex.PW52/A. F-47/128 from Section 54 of DCS pages No.124C in Act,1972 of Delhi file Ex. PW55/G Census Coop. Group (colly). Housing Society Ltd.
2 Addressed to the President/Secretary of Delhi Census CGHS bearing Case No. RCS/021/04/130- 151
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 47 of 185 Regn. No.128 (GH).
2. D-12, Vol-I, Election of Managing Ex.PW52/B. F-47/128 from Committee of Delhi pages No.169C in Census Coop. Group file Ex. PW55/G Housing Society Ltd.
(colly) WZ-1198/1, Main
Bazar, Rani Bagh,
Delhi.
This witness was cross examined by accused Narayan Diwakar. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.5 PW32 Sh. Satya Prakash Sharma tendered the Production- cum-Seizure Memo vide which he had handed over audit report of Delhi Census CGHS from 1971-72 to 2002-03 to the CBI as Ex.PW32/A and the audit file as Ex. PW32/B. This witness was cross examined by accused P.K. Thirwani. Remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.6 PW33 Sh. B.B. Vij testified that he had been residing at House No. 103, Block-11, Subhash Nagar since 1978 and did not know Sh. Kishan Chand Gupta shown as the member of Delhi Census CGHS in Ex. PW23/B at Sl. No. 126 and denied that Sh. Kishan Chand Gupta ever resided at 103/11, Subhash Nagar, New Delhi. He also denied that any communication pursuant to UPC list Ex. PW19/D had been received at his residence addressed to Sh. Kishan Chand. The accused persons CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 48 of 185 did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.7 PW38 Sh Ashok Kumar to prove Production-cum-Seizure Memo Ex. PW38/A vide which a letter No. F.1(Misc)/COS (HQ)/05/83 dated 30.03.2006 along with Non-Judicial Stamp Sale Register, were handed over to the CBI. He tendered the letter bearing No. F.1(Misc)/COS (HQ)/05/83 dated 30.03.2006 as Ex.PW38/B. However, on 10.03.2014, his examination in chief was deferred at request of ld. P.P. for the State (through CBI) for want of some document. Thereafter, what is emerging from records is that the witness again appeared on 18.05.2022. Since, even then the document remained untraceable, he was offered for cross-examination. The accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted to them.
6.8 PW41 Sh. Awanish Kumar to prove that he was a Sub Vendor of stamps with Sh. P.R. Bhatia, Stamp Vendor and affidavit Ex.PW41/A1 to Ex. PW41/A85 had been sold by him on 14.02.2004. He also testified that one Sh. Anna Wankhade who used to get documents typed from Ravi Robinson, Typist, was a regular purchaser of stamp papers in bulk from the witness and other stamp vendors. The accused persons did not avail the opportunity to cross examine this witness, despite opportunity granted.
6.9 PW43 Sh. Virender Kumar Bansal, Assistant Registrar, Co-
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 49 of 185 operative Societies (Retired) to prove the procedures under DCS Act 1972, The Delhi Cooperative Societies Act 2005 and the Rules framed there under for registration of New Group Housing Society, maintenance of their business, audit of accounts, winding up and revival of Cooperative Group Housing Society. Further, he also explained as to how land is allotted to the group housing societies by the DDA. This witness was cross examined by Ld. Counsels for accused Narayan Diwakar, accused Faiz Mohd, accused R.B. Chauhan and accused P.K. Thirwani. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted to them.
6.10 PW53 Sh. Sanjeev Pathak (nephew of accused Munna Lal Sharma) who claimed to be an insurance agent with Oriental Insurance and LIC of India and in the past who has done electrical work in the office of accused Munna Lal Sharma. He denied to have been a member of Delhi Census CGHS or to have dealt with the work of the Societies. He turned hostile and was cross examined by Ld. Public Prosecutor for the State (through CBI). This witness was cross examined by accused P.K. Thirwani. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.11 PW55 Sh. S. C. Bhalla, Investigating Officer who deposed regarding the investigation carried out by him and tendered the following documents in evidence:
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 50 of 185 Sl. Nature of document. Exhibited as Document No. No. 1. FIR RC-DAI-2005-A-0068 Ex.PW55/A D-1 dated 22.12.2005 2. Complaint dated 22.12.2005 Ex. PW55/B D-2 3. Production-cum-Receipt Ex. PW55/C D-3 Memo dated 10.01.2006 4. Letter dated 14.03.2006 Mark-PW55/1 D-4. issued by Sh. Umesh Kumar (Colly). Agarwal addressed to the IO alongwith photocopy of death certificate of Jai Narain. 5. Letter issued by accused Ex.PW55/D D-9. Munna Lal Sharma to SP CBI ACB, New Delhi 6. Letter dated 28.06.2006 Mark-PW55/2 D-10 issued by Sh. Sanjay Kotiyal (Colly). addressed to the IO along with photocopy of death certificate of S.R. Handa. 7. GEQD Report No. Ex.PW55/E D-17 DXC-305/2006. 8. Production-cum-Receipt Ex. PW55/F D-19 Memo dated 06.09.2006 9. Volume 1 file No. 47/128 Ex. PW55/G D-12 of Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 10. Volume 2 File No. 47/128 of Ex. PW55/H D-13 Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 11. Volume 3 File No. 47/128 of Ex. PW55/I D-14 CBI vs Narayan Diwakar and Ors. Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 51 of 185 Registrar Cooperative (Colly) Societies pertaining to Delhi Census CGHS. 12. File pertaining to Delhi Ex. PW55/J D-16 Census CGHS. (Colly) 6.11.1 He also relied upon the following documents: Sl. Nature of document. Exhibited as Document No. No. 1. Production-cum-Seizure Already D-8 Memo dated 31.03.2006. Ex.PW38/A 2. Production-cum-Seizure Already D-11 Memo dated 17.07.2006. Ex.PW32/A 3. Files pertaining to Delhi Already D-15 Census CGHS. Ex.PW32/B 4. Specimen signature/writing Already Part of of Ashutosh Pant from S-1 Ex.PW56/E. D-21. to S-1535.
This witness was cross examined by all accused persons.
6.12 PW56 Sh. S. Saha (Handwriting Expert) to prove the following documents:
Sl. No. Nature of document. Exhibited as Document No.
1. Letter dated 04.08.2006 Ex. PW56/A D-17 received by GEQD, (Objected to Kolkata from SP CBI, on the mode ACB, Delhi. of proof as the said letter is not on judicial CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 52 of 185 record and the same was produced by the witness during deposition).
Objection is overruled as the permission to take it on record has not been challenged.
Also, it has
been relied
upon by the
defence to
show the
deficiencies in
the opinion of
the expert.
2. Opinion number Ex.PW56/B D-17
DXC-305/2006 dated
30.08.2006
3. Forwarding letter bearing Ex. PW56/C D-17
No. DXC-305/2006/1148
dated 30.08.2006
4. Reasons vide No. Ex.PW56/D D-17
DXC-305/2006. (Objected to
on the mode
of proof as the
said reasons
are not on
judicial record
and same was
produced by
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 53 of 185
the witness
during cross
examination).
However, in
the considered
view of this
Court, the
admissibility
and probative
value are
distinct
concepts. The
author himself
having proved
the same and
also, the
defence
counsels
reliance upon
the same to
assail the
opinion of the
expert, renders
the objection
futile. Thus,
objection is
overruled.
5. Specimen Ex.PW56/E. Part of
signature/writing of D-21.
Ashutosh Pant from S-1
to S-1535.
6. Forwarding letter dated Ex.PW56/
25.09.2006. DX1. (During
cross-
examination).
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019
ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 54 of 185
6.12.1 He also relied upon the following documents:
Sl. No. Nature of Exhibited as Document
document. No.
1. Questioned already D-13
documents from Ex.PW41/A
Q-1 to Q-309
This witness was cross examined by Ashutosh Pant. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.13 PW57 Sh. Sanjay Katyal to prove that he had provided copy of death certificate of his father in law Sh. S. R. Handa to CBI vide letter dated 28.06.2006 already Mark PW55/2 (Colly) (Part of D-10). The accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.14 PW58 Sh. Dhanesh Kumar Kakkar and PW59 Sh. Chob Singh, independent witnesses in whose presence, specimen handwritings / signatures of accused Ashutosh Pant already bearing Ex.PW56/E (Colly) had been taken. These witnesses were cross examined by Ld. counsel for accused Ashutosh Pant. The remaining accused persons did not avail the opportunity to cross examine this witness, despite opportunity being granted.
6.15 PW40 Sh. Amar Das, Assistant Registrar in the Office of RCS from 2005 to 2006 tendered his letter Ex. PW40/A (D-18) through CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 55 of 185 which he informed the Investigating Officer that registration register of Delhi Census CGHS was not available in the office. However, copy of registration certificate and revival order were already on file and their original was not available. Despite opportunity he was not cross examined by any of the accused persons.
7. Prosecution evidence was closed vide order dated 21.09.2003.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313 READWITH SECTION 281 CR.P.C.
8. Statement of accused Narayan Diwakar was recorded on 01.08.2023. He denied the incriminating evidences appearing against him or claimed ignorance about the same. In his defence, he stated that he had judiciously exercised his power as the Registrar of Cooperative Societies in compliance of Vikas Co-Operative Group Housing Society Ltd. Vs. Registrar Cooperative Societies & Others 3 as the winding up proceedings, if not completed within three years of the winding up orders, in view of Rule 105 of Delhi Cooperative Societies Rules, 1973 (hereinafter, referred to as 'DCS Rules, 1973'), the winding up proceedings automatically stood terminated. He also stated that sanction under Section 19 of P.C. Act and under Section 197 Cr.P.C. had not been obtained. He stated that both the sections are distinct and mandatory for a retired public servant. He relied upon the amendment introduced in the 3 Civil Writ Petition 1767/1986 decided on 21.11.1986 by Delhi High Court CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 56 of 185 year 2018 in P.C. Act which made it mandatory to seek sanction for prosecution even for retired public servant. He urged that sanction being a matter of procedure has retrospective effect. He also referred to M. Soundararajan vs State4 to also state that in view of amendment in paragraph 8 in part A of the Schedule to the Prevention of Money Laundering Act, 2002 (hereinafter, referred to as 'PMLA Act'), certain offences under P.C. Act are included in PMLA Act. Therefore, as the offence alleged against the accused is analogous and already in statute prior to the amendment, Chapter IV-A and Section 19 of P.C. Act, 2018 will fall away from the protection given under Article -20 (1) of the Constitution of India.
8.1 Accused Faiz Mohammad when examined under Section 313 denied all the incriminating evidences against him. Qua the testimonies of PW-25 (Sh. Umesh Agarwal), PW-26 (Sh. V. K. Taneja) and PW-34 (Ms. Poonam Vasudeva) he pleaded that he used to verify membership from the records of the Society and does not remember whether he visited their given addresses to physically verify their membership. He also stated that as per DCS Act, 1972, there is no mandate for physical verification of members. He stated that he had performed his duty in good faith. He mentioned that sanction under Section 197 Cr.P.C. was mandatory qua him and even otherwise, he pleaded protection under Section 95 of DCS Act, 1972. Summarily, he also stated that his tenure with Govt. of NCT was untainted and that 4 Crl. A.(MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30.10.2018 by Madurai Bench of Madras High Court CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 57 of 185 during trial of the present matter, no evidence had come on record to reflect that the accused had obtained any pecuniary advantage or cheated any person or used any forged document for cheating.
8.2 When statement of accused R. B. Chauhan was recorded on 10.07.2023, he denied the incriminating evidences appearing against him and pleaded false implication and that witnesses had not stated anything adverse against him. He challenged the order for sanction for prosecution stating that PW-39 (Sh Anil Mehra) was not the competent authority to remove the accused as at the relevant time, he was posted in the office of RCS and also claimed that the order was without application of mind.
8.3 Accused Deen Bandhu Prasad during his examination under Section 313 on 01.08.2023 denied to have committed any of the alleged offences. He stated that sanction for prosecution given by Brig. S. K. Chaudhary (Retired) which is Ex. PW5/A was not given by competent authority. He stated that he was LDC at the office of RCS and was entrusted with the job of Diary and Dispatch. According to him, the office bearers of Delhi Census CGHS had been elected unopposed and it were the members of the Society who had visited the RCS office for the election, who had prepared the requisite documents. He stated that he had not violated the provision of DCS Act,1972 and DCS Rules, 1973. He claimed that no departmental inquiry had been initiated against him. He denied to have favoured any person or to have played any role in revival of Delhi Census CGHS. He also claimed ignorance about the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 58 of 185 bogus records of the Society. He denied having demanded any bribe from anyone. He asserted that he had discharged his duties in good faith and was entitled to the protection under Section of DCS Act, 1972 and no prosecution could be lodged against him.
8.4 Accused P.K. Thirwani was examined under Section 313 by the Ld. Predecessor of this Court on 10.07.2023. During examination, he stated that sanction order under Section 19 of P.C. Act (Ex. PW4/A) is not as per law as no receipt of document allegedly sent by the CBI to the sanctioning authority has been proved. Also, as per him, the order was mechanical and without application of mind. He pleaded ignorance regarding the list of members of Delhi Census CGHS. He also denied any role in the revival of Delhi Census CGHS and claimed that the investigation was unfair, biased and manipulated. He stated that he has been falsely implicated in the present case. He stated that as a Departmental Auditor in the Audit Branch of the RCS office from 13.05.2000 to 29.09.2004, it was his duty to conduct audit of various societies. In the present case, the audit of Delhi Census CGHS was marked to him by AR (Audit) Sh. J. S. Sharma after he obtained approval from the RCS, for the period 1971-1972 to 2002 -2003. Accordingly, he conducted the audit and submitted his report along with deficiencies noticed by him, to the AR (Audit). He stated that he had raised serious objections in his audit report which he would not have done if he was in collusion, with anyone. He also stated that his report is dated 15.12.2003 whereas, the freeze list of members of the Society was already sent by AR (West) [then accused Sita Ram Goyal (since CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 59 of 185 deceased)] to AR (Policy) (both at the RCS office) on 09.12.2003 for onward transmission to the DDA. He stated that he was not in picture till the revival of the Society and that since no land was allotted by the DDA, no wrongful loss had been caused to anyone, as such, there is no evidence of cheating or forgery or knowledge qua him. It has also been submitted by him that there is no evidence of demand or obtainment of pecuniary advantage and nothing incriminating was recovered during search of his house. He claimed that he did his duty in good faith and entitled to the protection under Section 197 of Cr.P.C. and under Section 19 of DCS Act, 1972.
8.5 Accused Munna Lal Sharma when examined under Section 313 by the Ld. Predecessor of this Court on 10.07.2023 claimed ignorance about incriminating evidences put to him. He also stated that he has been falsely implicated in the present case.
8.6 Accused Ashutosh Pant stated in his defence upon incriminating evidence being put to him that he is innocent. He stated that handwriting expert's report Ex. PW56/B is not proper as it does not justify the basis of his opinions. According to him, the reasons were fabricated later and are full of contradictions. He also stated that the investigation was perfunctory, biased, improper and shoddy. He also claimed that his specimen handwritings/signatures had not been taken.
DEFENCE EVIDENCE CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 60 of 185
9. In order to disprove the allegations, the accused persons have summoned the following witnesses in their defence:
Sl. Defence witness To prove Documents, if No. No. any
1. DW1 Sh. Yatin Sanction for prosecution Original file Thapar, Assistant accorded against accused bearing No. Section Officer, P.K. Thirwani. 7(A)/2/2006/DO Directorate of V/part file Vigilance and contains note Anti Corruption, sheets from page GNCT of Delhi 1/N to 17/N and (summoned by correspondence accused P.K. from page 1/C to Thirwani.) 346/C Original file bearing No. and 7(A)/2/2006/DO V contains note sheets from page 1/N to 10/N and correspondence from page 1/C to 44/C.
2. DW2 Sh. Guru Sanction for prosecution File No. Prasad Kardan, accorded against accused F3/709/05/DFW/ UDC, R. B. Chauhan (LDC) Estt/Pt containing Department of one note sheet Industries, Govt. pages 1/N and of NCT of Delhi. 2/N along with (summoned by correspondence accused R.B. page No. 1/C to Chauhan) 79/C.
3. DW3 Sh. Sanction for prosecution File No. CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 61 of 185 Praveen Sharma, accorded against accused 5(10)/Vig./Ao.NC Assistant Section Deen Bandhu Prasad, C/2014, Admn.
Officer, National UDC. Br/Vigilance Br.,
Cadet Corps, Chabiganj,
Headquarters, Kashmere Gate
Rohini, containing note
Sector-18,Delhi- sheet pages 1/N
89 to 7/N along with
(summoned by correspondence
accused Deen pages 1/C to
Bandhu Prasad) 47/C.
4. DW4 Sh. Saroj That accused Narayan Appreciation Chandra Diwakar as the RCS had letter dated Pradhan, lodged the website of the 25.07.2003 issued Principal, Delhi office of RCS. by Smt. Shailaja State Co- Chandra operative addressed to Sh.
Training Center, N. Diwakar,
New Delhi. Registrar (Co-
(summoned by operative), Old
accused Narayan Court Building,
Diwakar). Parliament Street,
New Delhi,
Ex DW4/A.
5. DW5 Ms. Neha Letter No. Ex. PW5/1.
Kaushik, F.5/1/2006/Estt./Coop./35 (D-38)
Assistant 05 dated 18.10.2007
Ahlmad in the addressed by the Dy.
Court of ld. Registrar (Admn.), Govt.
Special Judge Of NCT of Delhi, Office
(P.C. Act) of the Registrar Co-
(CBI)-15, operative Societies,
RACC, New Parliament Street, New
Delhi. Delhi to Sh. S. K. Jha,
(summoned by Sub-Inspector of Police, accused Raj CBI/EOU.IV, 5th Floor, Bushan Block No. 03, CGO CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019 FIR No. RC-DAI-2005-A-0068 page no 62 of 185 Chauhan) Complex, Lodhi Road, New Delhi.
Information regarding the Ex. DW5/2 and officers/officials and the Ex. DW5/3.
duty list of Registrar,
Joint Registrar, Deputy
Registrar, Assistant
Registrar etc .
FINAL ARGUMENTS
10. Final arguments on behalf of the State (through CBI) have been led by Sh. Neel Mani, Ld. Public Prosecutor. He led the Court through notings in file [(Ex. PW55/G (colly) (D-12), (Vol-I)] to demonstrate the urgency with which the accused persons (who are public servants) were dealing with the file suggestive of a predetermined conspiracy alongwith accused Ashutosh Pant and accused Munna Lal Sharma to revive Delhi Census CGHS on the basis of fabricated documents. It has been canvassed that the hastiness with which the reconstruction of the file was being considered is a circumstance which cannot be ignored. For example, the Ld. Public Prosecutor for the State (through CBI) drew the attention of the Court to noting dated 23.01.2004 [(on page no.2/N in file Ex. PW55/G (colly), (D-12), (Vol- I)] to demonstrate that the fair letter to be issued to Delhi Census CGHS, even before approval of re-construction of file had been ordered, shows that the accused persons had the apparent intention to revive Delhi Census CGHS. Thereafter, Ld. Public Prosecutor for the State (through CBI) referred to inspection reports Ex.PW25/D and Ex.PW52/A CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 63 of 185 prepared by accused Faiz Mohd. and argued that both the reports have been established to be fabricated. It has been submitted that even though PW Sh.Vishnu Rai, purported Secretary of the Society, could not be examined, there still are other evidences to prove that the reports are false. As regards report Ex.PW52/A, it has been submitted that the office of Delhi Census CGHS was not found operational at WZ-1198/1, Main Bazar, Rani Bagh, Delhi. Further, as regards report Ex.PW25/D, it has been submitted that through the evidence of PW-25 (Sh. Umesh Aggarwal), PW-26 (Sh. V.K. Taneja) and PW-34 (Smt. Poonam Vasudeva), it has been proved that even though Sh J.K. Aggarwal, Sh. V.K. Taneja and Ms. Poonam were shown as members of the Society whose physical verification had been done, they were neither the members of the Society nor had any physical verification being done qua them. Thereafter, it has been submitted that the application for revival of the Society [(page no. 1/C and 2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)] did not mention the name of the Secretary. However, how did the accused persons discern that the Secretary of Delhi Census CGHS / applicant was so called Vishnu Rai? It has been submitted that noting dated 20.01.2004 [(page no. 5/N in file Ex. PW55/G (colly) (D-12), (Vol-I)] mentions that the President of Delhi Census CGHS had shown the documents/original records to the Assistant Registrar [then accused Sita Ram Goyal (since deceased)] on the basis of which file had been reconstructed by the Zone. However, Ld. Public Prosecutor for the State (through CBI) submitted that there is no proceeding on record or any other proof as to when the President had appeared before the Assistant Registrar with the original record/documents. Hence, it has CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 64 of 185 been submitted that all accused persons had connived with each other to reconstruct the file on the basis of fabricated documents and revived the defunct CGHS. So far as the role of accused P.K. Thirwani is concerned, criminality in his acts have been inferred from the fact that audit report since the year 1971-1972 to 2002-2003 were all prepared at one go and all balance sheet and cash in hand certificates are print outs which was not a medium for creating electronic records in the 1970s. Further, qua accused Deen Bandhu Prasad, attention of the Court has been drawn to CGHS Minutes of Meeting dated 28.08.2003 (Ex.PW34/C) along with his election report (Ex.PW52/B) and to the testimonies of PW26 (Sh. V.K. Taneja) and PW34 (Smt. Poonam Vasudeva) to show that neither of them shown to have been elected to the post of Managing Committee, had participated in the so called election of the Managing Committee purportedly held on 04.04.2024. Qua the role of accused Ashutosh Pant, much emphasis has been laid on the report Ex. PW56/B of the handwriting expert PW56 (Sh. S.Saha) to urge that it has been established that affidavits contained in file [(Ex. PW55/H (colly) (D-13), (Vol-II)] of the office of Registrar of Cooperative Societies [(Ex. PW55/H (colly) (D-13), (Vol-II)] and affidavits Ex. PW41/A-1 to Ex. PW41/A-54, Ex. PW41/54A, Ex. PW41/A-55 to Ex. PW41/A-84, Ex.PW18/A, Ex. PW29/A, Ex.PW27/A, Ex. PW28/A, Ex. PW15/A, Ex. PW21/C, Mark DX/1, Mark DX, Mark DX2, Ex.PW44/A, Ex.PW20/C, Ex. PW27/B, Ex.PW16/A, Ex. PW36/B, PW7/A, Ex. PW8/A, Ex.PW24/A, Ex. PW13/A, Ex. PW12/A, Ex. PW17/A, Ex. PW19/G, Ex. PW25/B, Ex. PW50/1, Ex. PW34/B, Ex. PW26/B, Ex. PW9/A, Ex. PW6/8, Ex. PW35/A, Ex.PW14/A, Ex.PW23/A, Ex. PW10/A, Ex.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 65 of 185 PW11/A, Ex. PW25/C are not executed by the deponents and have been forged by accused Ashutosh Pant. Also relying on letter Ex. PW55/D (D-9) wherein accused Munna Lal Sharma acknowledged having purchased the documents of Delhi Census CGHS from accused Ashutosh Pant, it has been adumbrated that it is clinching enough to prove conspiracy between them.
10.1 It has also been submitted that valid sanctions under Section 19(1) P.C. Act qua accused P.K. Thirwani as Ex. PW4/A, qua accused Deen Bandhu Prasad as Ex. PW5/A and accused R.B. Chauhan as Ex. PW39/A have been obtained. So far as sanction under Section 197 (1) Cr.P.C. is concerned, it has been submitted that no such sanction is warranted as committing offence of forgery and cheating cannot be in discharge of official duty.
11. Final arguments on behalf of accused Narayan Diwakar have been advanced on behalf of Counsel Sh. Abhishek Prasad. Written submissions on his behalf have also been filed.
11.1 To begin with, attention of the Court was drawn to file [(Ex. PW55/G(colly) (D-12), (Vol-I)] and in specific to noting part of Ex. PW31/A(colly) [(Ex. PW55/G(colly) (D-12), (Vol-I)] which are dated 19.12.2004 and order dated 01.03.2004, passed by the accused as the Registrar of Co-Operative Society. It has been argued that perusal of the orders reveal that they were not only passed in the official capacity and based upon justifiable grounds upon which the winding up order dated CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 66 of 185 01.03.2009 (Mark A/31) has been cancelled. It has been vehemently argued that except for the file noting, there is no iota of evidence connecting the accused to the alleged conspiracy with the other accused persons. It has been submitted that the orders upon which criminality is attributed to the accused, were passed by him in discharge of his official duty and for want of Sanction under Section 197(1) of Cr.P.C., the accused could not have been summoned by the Court. Ld. Counsel placing reliance upon Z.U. Siddiqui Vs. Bal Kishan Kapoor and Ors.5, has argued that even if, the act complained of is malafide on the part of the accused, the same remains to be an act done in discharge of his official duty therefore, bar under Section 197 Cr.P.C. would be attracted. Referring to Amal Kr. Jha Vs. State of Chattisgarh & Anr.6, it has been further submitted that even any omission found to have been committed by a public servant in discharge of his duty, should be given liberal and vide construction so far as its official nature is concerned. Thereafter, Ld. Counsel for the accused alluded to Surinderjit Singh Mand & Anr Vs. State of Punjab & Anr.7 and vehemently submitted that the mandate of Section 197(1) Cr.P.C. is clear and the cognizance could not have been taken without sanction from the appropriate authority before launching prosecution against the accused. The rigour of Section 197(1) Cr.P.C. was further sought to be emphasized by drawing attention of the Court to the latest judgment in Directorate of Enforcement Vs. Bibhu Prasad Acharya, etc.8 wherein, the Apex Court has now also observed 5 2005 (82) DRJ 646 6 Criminal Appeal no. 396/2016 [Arising out of SLP[Crl.] No. 3584 of 2011] decided on 26.04.2016 by Supreme Court of India 7 Criminal Appeal No. 565/2016 (Arising out of SLP (Crl.) No. 3406 of 2008) decided on 05.07.2016 by Supreme Court of India 8 2024 INSC 843 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 67 of 185 that cognizance of offence under Section 3 punishable under Section 4 of the PMLA also cannot be taken without a sanction under Section 197(1) Cr.P.C. for an act done in discharge of official duty. It has further been adumbrated that it is no longer res integra that the question of sanction under Section 197(1) Cr.P.C. can be raised at any time even after the cognizance has been taken till the conclusion of the trial. Relying upon Shreekantiah Ramayya Munipalli Vs. State of Bombay 9 Ld. Counsel for the accused has argued that the act alleged against the accused could not have been done in any other way but in discharge of his official duty and as a quasi judicial authority 10 and is thus, judicial act which even if dishonest, could not have been taken cognizance of for want of sanction under Section 197 (1) Cr.P.C. The purpose and objective of Section 197 (1) Cr.P.C. was sought to be explained by drawing attention of the Court to para no. 11 of Anjani Kumar Vs. State of Bihar11 wherein it has been held as under :
"11. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient
9 AIR 1955 SC 287 10 Relying upon Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-Operative Bank Ltd. and Anr., 1967 AIR 1494 decided on 13.03.1967 11 Appeal (Crl.) 413/2000 decided on 24.04.2008 by Supreme Court of India CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 68 of 185 ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."
11.2 Finally, relying upon A. Srinivasulu Vs. The State Rep. By the Inspector of Police12, it has been submitted that it has now been verified by the Apex Court as under :
".....the observation contained in paragraph 50 of the decision of this Court in Parkash Singh Badal vs. State of Punjab13. 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
12 Criminal Appeal No. 2417 of 2010 decided on 15.06.2023 13 2007 (1) SCC 1 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 69 of 185 commission of the offence.
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, 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 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."
Hence, it has been canvassed that the trial against the accused stands vitiated.
11.3 On merits, after the Court was led through aforementioned orders of the accused, it has also been adumbrated that there is no illegality in them for the following reasons :
(a) Drawing the attention of the Court to Section 63(3) of DCS Act, CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 70 of 185 1972 read with Section 105 of DCS Rules, 1973 and placing reliance upon Vikas Co-Operative Group Housing Society Ltd. Vs. Registrar Cooperative Societies & Others (supra), it has been submitted that even if the winding up order dated 01.03.2004 (Mark A/31) had been passed, there is no material on record to prove that the liquidation proceedings had been taken to its logical end and thus, the only inference which can be drawn is that after the order of winding up of Delhi Census CGHS had been passed, the proceedings were neither closed within the mandated period of 3 years (after expulsion) and as such would be deemed to have been terminated and the society anyways stood revived.
(b) That the order categorically records the reasons upon which the revival of the society was necessitated and is as per law.
(c) That the order mentions that as the Registrar of Co-operative Society has relied upon reports which were duly forwarded by the Assistant Registrar of Cooperative Society and after due application of his mind and as the Registrar of Cooperative Society, which is a dispute resolving authority (proved vide testimony of PW43 (Sh. Virender Kumar Bansal), no role can be attributed to the accused in preparation of the list of members and records of Delhi Census CGHS.
(d) That from the testimony of PW-55 (Inspector S.C. Bhalla), it is further apparent that neither the aforementioned orders of the accused were challenged before the appropriate forum (as is provided under law qua dissatisfaction if any qua such orders) and there is no iota of evidence of any personal gain or advantage had been received by the accused.
(e) That by virtue of Section 93 (3) of DCS Act, 1972, the order of CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 71 of 185 the RCS is not amenable to scrutiny before any Court and hence, the merits of it cannot be adjudicated herein to affix liability upon the accused. Further reliance has been placed upon the following judgments :
(i) Gurmeeet Kaur Vs. Devender Gupta14
(ii) R. Balakrishna Pillai Vs. State of Kerala15
(iii) The Jungpura Coop. Transport Dev. Society Vs. Govt of NCT of Delhi and Ors.16
(iv) A. Sivaprakash Vs. State of Kerala17
(v) Madhu Koda Vs. State through CBI18
(vi) Soma Chakravarty Vs. State through CBI19
(vii) Jose @ Pappachan Vs. the Sub-Inspector of Police, Koyilany & Another20
(viii) Rekha Kakkar Vs. State of NCT of Delhi 21
12. Final arguments on behalf of accused Munna Lal Sharma have been advanced on behalf of Counsel Sh. Anil Kumar. Written submissions on his behalf has also been filed.
12.1 It has been argued that when the FIR was registered, the accused was not mentioned, therein. It has further been argued that out of the 59 witnesses examined by the prosecution, there is nothing incriminating which has been brought on record qua the accused. It has been adumbrated that the prosecution case qua the accused hinges upon handwritten letter which is Ex. PW55/D (D-9). However, the said letter 14 2024 INSC 967 15 1996 AIR 901 16 W.P.(C) 13358/2004 decided on 11.09.2006 by High Court of Delhi 17 Crl Appeal no. 131/2007 decided on 10.05.2016 by Supreme Court of India 18 Crl. A. 1186/2017 decided on 22.05.2020 by High Court of Delhi 19 Crl. Appeal No. 710/2007 (Arising out of SLP (Crl.) no. 552/2006) decided on 10.05.2007 by Supreme Court of India 20 Crl. Appeal no. 919/2013 decided on 03.10.2016by Supreme Court of India 21 Crl. M.C. 4572/2018, Crl. M.A. 31715/2018(stay) decided on 17.01.2025 by High Court of Delhi CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 72 of 185 is stated to be inadmissible in evidence for not having been duly proved. It has been submitted that during the investigation, there was no specimen handwriting of the accused which had been taken and subjected to forensic analysis. The only medium through which the document came to be exhibited is the testimony of PW-55 (Inspector S.C. Bhalla) and he was not competent to prove that it was in the handwriting of the accused. Also, it has been submitted that documents has interpolations where endorsements of purportedly, the then SP has been made, therein. Also, the prosecution failed to lead any cogent evidence to even substantiate the contents of the aforementioned letter and as such there is no material on record which corroborates the contents therein that the records of the society was sold to the accused by co-accused Ashutosh Pant for a sum of Rs.4 lacs which was subsequently, further sold by the accused to accused S.S. Chadha of Reliance Properties for Rs.4.25 lacs. Also, it has been argued that even though PW-55(Inspector S.C. Bhalla) deposed before the Court that the endorsement, therein, was made by Sh. N.M. Singh, the then concerned S.P. CBI. However, Sh. N.M. Singh was not examined and the custody of the documents and how it was procured has not been established. Additionally, it has been canvassed that the document would be inadmissible in evidence being hit by Section 25 of The Indian Evidence Act, 1892 (hereinafter, referred to as 'The Evidence Act') having been written by the accused to the police officials. Thereafter, the Court was led through the testimony of PW53 [(Sh. Sanjeev Pathak) (nephew of the accused)] and it has been submitted that the prosecution was unable to elicit any incriminating material from his testimony and the witness CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 73 of 185 did not support the case of the prosecution. Finally, on the aspect of invocation of Section 120B of IPC, reliance has been placed upon Ram Sharan Chaturvedi Vs. State of Madhya Pradesh 22 to emphasize the principal ingredients of criminal conspiracy and how the same is required to have been proved. It has been submitted that prosecution has failed to substantiate all its allegations against the accused by leading lead cogent and legally admissible evidence and there is no incriminating circumstance which is reliable and clinching to form chain of events which irresistibly points towards the guilt of the accused. Hence, it has been submitted that the accused cannot be convicted on the basis of mere conjectures and surmises and on fallible inference.
13. Dr. Sushil Kumar Gupta, Ld. Counsel for accused Ashutosh Pant led arguments on his behalf. The challenge to the handwriting expert's report (Ex. PW-56/B) is two pronged. Firstly, the Ld. Counsel for the accused has assailed the specimen handwritings / signatures purportedly taken from accused Ashutosh Pant and sought to be proved through PW58 (Sh. Dhanesh Kumar Kakkar) and PW-59 (Sh. Chob Singh) in whose presence they were purportedly taken by urging (a) That in all, during investigation there were about 1497 specimen writings taken of which, 1435 specimens were purportedly taken from accused Ashutosh Pant, therefore, it suggests biased investigation. (b) That testimony of PW58 (Sh. Dhanesh Kumar Kakkar) is not reliable as
(i) during cross examination, he deposed that he had visited CBI Office only once on 12.07.2006, whereas, drawing the attention of the Court to 22 Criminal Appeal No. 1066 of 2010 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 74 of 185 the specimen Ex. PW56/E (colly), it was demonstrated that the template on which the specimen writings23 have been taken is typed and mentions that the specimen writings have been taken on 11.07.2006. (ii) He did not check the identity of the person whose specimen writings were being taken (iii) He could not explicate how the specimen writings were taken i.e. whether on dictation or by seeing some paper or by on his own. (iv) That some specimen sheets have also not been signed by him and the Investigating Officer24. Also, it has been adumbrated that approximately 800 sheets signed by the witness were exhibited by him, all of the same date and therefore, it is suggestive of the fact that no individual lest, accused Ashutosh Pant would voluntarily write 800 pages in one day. As regards, PW59 (Sh. Chob Singh), it has been argued that he too is not reliable as (i) even though, he has stated that he has visited the CBI Office twice for the purpose, all the specimen writings tendered by him in evidence is of the same date. (ii) The witness deposed that he had checked the ID proof of the persons whose sample writings were being taken in his presence, however, it is evident from the arrest cum seizure memo that on 13.07.2006 when accused Ashutosh Pant had been arrested, no ID card was recovered from him. Therefore, the witness did not truthfully depose. (iii) He deposed that sample writings were taken on plain paper with nothing written or typed, thereon. However, the papers on which the samples were taken were typed. (iv) The witness also could not prove the signatures at points D on sheets S-91 to S-597 23 Sheets S-1 to S-89, S-49/1 to S-54/1, S85/1 to S-89/1, S-90, S-598 to S-262, S-262/1, S-627 to S-708, S-708/1, S-709 to S-750, S-856 to S-863, S-863/1, S-864 to S-908, S-912 to S-932, S-936 to S-938, S-942 to S-944, S-948 to S-1049, S-1049/1, S-1050 to S1089, S-1090 to S-1459 [All Part of Ex. PW56/E (colly)] 24 S-1090 to S-1459 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 75 of 185 and S-797 to S-855 which are that of the Investigating Officer. (v) As sheets S-91 to S-348, S-52 to S-363, S-367 to S-380, S-379/1, S-381 to S-404, S-505 to S-597 were shown to have been signed on 13.07.2006 after cutting the typed dated of 11.07.2006 in the template on the top and as S-751 to S-826 and S-830 to S-855 were dated 11.07.2006 and signed by the witness on 13.07.2006, material contradiction emerged in his testimony as to when the specimen writings witnessed by him actually had been taken or that he had not been present during the process and subsequently, signed the same. Additionally, Ld. Counsel for the accused also, lamented on the casual manner in which the purported specimen writings had been taken on account of contradictions in the testimonies of the independent witnesses and of the Investigating Officer and submitted that since there is enough material emerging from record casting doubts on the voluntariness of accused Ashutosh Pant to have even given the sample writings. Also, drawing the attention the Court to the testimony of PW55 (Inspector S.C. Bhalla), as he admitted that he had not enquired from Inspector Rajesh Kumar the source from which he had collected Ex. PW55/C (D-3), that he had not arrested accused Ashutosh Pant in this case, that specimen writings were taken by shown accused the documents and asking him to give his writings naturally, that no admitted writing and signature of accused Ashutosh Pant were taken, as dates on S-91 to S-348/1, S-352 to S-363, S-367 to S-404, S-505 to S-595 and S-1406 to S-1505 were over written without being explained, as he admitted that S-984 and S-1090 to S-1458 were not signed by him, S-1460 to S-1465, did not bear any date and S-1506 to S-1535 were neither signed by the witnesses nor the Investigating CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 76 of 185 Officer, once again, the sample writings on which opinion was obtained was casual, not voluntary and fabricated.
13.1 Reliance has been placed upon State of Rajasthan Vs. Dr. J.P. Sharma25 and Amarjit Singh Vs. State of U.P. 26 to urge that the onus is upon the prosecution to first establish that the specimen writings are of the accused. Further, alluding to M. Durga Prasad Vs. State of A.P.27 it has been impressed upon this Court that since the case is based upon circumstantial evidence, the principles governing the appreciation of evidence in a case of circumstantial evidence should be applicable and yet again that conviction should not be based solely upon uncorroborated testimony of the handwriting expert, moreso, as the specimen signatures were not obtained in open Court but during investigation by the CBI.
13.2 Secondly, Ld. Counsel for the accused then questioned the report and urged the Court to discard the same on account of following reasons:
(a) His reasons Ex. PW56/C were not a part of his opinions Ex.
PW56/B as it was not filed with the same and as such, the reasons were subsequently fabricated.
(b) Even though, he did prepare rough notes but did not make it a part either of his reasons or opinions.
(c) He admitted to have described / marked the documents by himself 25 1983 Crilj 858 decided on 01.03.1982 by Rajasthan High Court 26 1998 8 SCC 613 27 2003 (2) ALD (Crl) 545 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 77 of 185 but not so appearing from his opinions / reasons and as such, the outcome of the questionnaire given to him by the CBI changes. For example Q-310 to Q-340 and Q-322A, Q-323A, Q-324A and Q-324/1 were not found on the judicial record. Thereafter, as per Annexure Ex. PW56/A, only documents Q-1 to Q-324, Q 324A and Q-340 were sent by the CBI whereas in the abstract of opinion Ex. PW56/B, the witness has mentioned to have received exhibits Q-1 to Q-340, Q-322A to Q-324 A and Q-324/1 and also admitted that Q-325 to Q-329 and Q-322A, Q-323A and Q-324/1 were not mentioned in annexure A of questionnaire Ex. PW56/A, though mentioned in the query sheet. Also, specimen mentioned in case abstract in the report Ex. PW-56/B under the heading of details of standard documents are from S-1 to S-1593, S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 whereas S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 do not find mention in Annexure B of Ex. PW56/A which the witness stated are sub markings which were supplied alongwith original standard documents and the said markings were given by the witness at the time of the examination of the original documents. But thereafter, the attention of the witness was drawn to Ex. PW56/DX1 which is dated 25.09.2006, only documents Q1 to Q-340, S-1 to S-404, S-505 to S-765, S-767 to S-1170, S-1172 to S-1593 alongwith sub markings all in 567 sheets and one file running into 567 sheets had been returned to the CBI.
(d) He admitted to have examined photocopies of documents, but did not ascertain their source, admitted that line quality determination is CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 78 of 185 difficult from photocopies and pen stroke, pen lifts, re-touching, tremors, hesitation etc are difficult to determine from the photocopies.
(e) As, when the attention of the witness was drawn to Para 2 (10) of his reasons Ex. PW56/D, he admitted that he had not mentioned the alphabets of the words / signatures examined by him and even though he volunteered that the reason reflected the overall execution, formation of different letters and their commencement including combinations alongwith underscoring and other features, he also admitted that he had not recorded in his opinion the words "overall" and "other features".
(f) Similarly, his reasons from Para 2 (1) to 2 (9) when questioned he admitted that he has not mentioned the characteristics specifically word- wise or letter-wise. Considering that, he has given opinion in general, it has been advocated that his report is vague, inconclusive, incomplete and should not be relied upon by this Court.
13.3 Thereafter, relying upon Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee28, State of Himachal Pradesh Vs. Jai Lal29 and Ramesh Chand Aggarwal Vs. Regency Hospital Limited 30, it has been argued by the Ld. Counsel for the accused that this Court should not rely upon the report of the handwriting expert as it is not supported by proper reasonings and as from cross examination, the lack of expertise of the witness is also exposed as he has ignored basic principles of comparison of handwriting examination i.e. like is to be compared with like, as he has given opinion on general features and he also defied the 28 (2009) 9 SCC 221 29 1999 7 SCC 280 30 (2009) 9 SCC 709 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 79 of 185 fundamentals of handwriting examination as settled in Bhargav Kundalik Salunkhe Vs. State of Maharashtra31 and Ravjaippa Vs. Nilkanta Rao32. Reliance has also been placed upon Ram Narain Vs. State of U.P.33, Fakhruddin Vs. State of MP 34, Devi Prasad Vs. State35, Pandit Ishwari Prasad Misra Vs. Mohammad ISA36, Magan Bihari Lal Vs. State of Punjab37, Padum Kumar Vs. State of U.P.38 and Murari Lal Vs. State of M.P.39 to urge that opinion of the handwriting expert is not conclusive evidence and should not be relied upon without corroboration, in the facts and circumstances of the present case as demonstrated above.
13.4 So far as the allegation against accused Ashutosh Pant of having sold the fabricated documents of Delhi Census CGHS to accused Munna Lal Sharma is concerned, it has been argued that the only evidence to that effect which has been relied upon by the prosecution is Ex. PW55/D (D-9) purportedly a letter written in 2004, by accused Munna Lal Sharma to the Superintendent of Police. However, it has been submitted that the letter if written in 2004, as portrayed leads to a suggestion that it pre-empted the inquiry ordered by the Delhi High Court and the pending FIR. Even otherwise, it is hit by Section 25 of the Evidence Act being a confession given to the police officer and even 31 1995 SCC Online Bom 483 32 1960 SCC Online Kar 55 33 1973 2 SCC 86 34 AIR 1967 SC 1326 35 1964 SCC Online All 381 36 1962 SCC Online SC 88 37 1977 2 SCC 210 38 (2020) 3 SCC 35 39 1980, SCC (1) 704 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 80 of 185 if, it is treated as a statement given to the police under Section 161 of Cr.P.C., it is a signed statement contrary to the mandate of law under Section 162 (1) of Cr.P.C. Also, the letter was sought to be proved by the testimony of PW55 (Inspector S.C. Bhalla) and he was not competent to prove the same as he was neither the author nor had it been written in his presence. The source of the document also could not be established by PW55 (Inspector Sh. S.C. Bhalla). Thus, the document not having been proved and being inadmissible cannot be relied upon.
14. Sh. Abhishek Prasad, Ld. Counsel for accused P.K. Thirwani has submitted on his behalf that prosecution has failed to prove its case against accused P.K. Thirwani and he should be acquitted of the offences he has been charged. Drawing the attention of the Court to page no. 106 [(of file Ex. PW32/B, (D-15)], it has been argued that as per the same, the accused was appointed as the auditor on 02.03.2004 whereas the revival order Mark A/31 was already passed on 01.03.2004. Therefore, it has been canvassed that the audit report was never the premise upon which the revival of Delhi Census CGHS was passed and as such, there was also no meeting of minds of accused P.K. Thirwani with the remaining accused persons. Thereafter, the Court was led to Annexure 'A' from the brief summary of society given by the accused P.K. Thirwani (running from pages no. 98 to pages no. 108) of file Ex. PW32/B wherein, accused P.K. Thirwani gave 08 suggestions to improve the shortcoming he had noted during the audit for the period 1971-1972 to 2002-2003 of Delhi Census CGHS. It has been submitted that the prosecution did not examine even a single witness to prove that CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 81 of 185 audit reports were false. The only relevant witness qua accused P.K.Thirwani is PW32 (Sh. Satya Prakash Sharma) who merely proved handing over of the files pertaining to Delhi Census CGHS [Ex. PW32/B (D-15)] to the CBI vide production cum seizure memo dated 17.07.2006 (Ex. PW32/A). Further, it has been adumbrated that on page no. 107 of file Ex. PW32/B, it can be observed that the audit report was countersigned by Assistant Registrar (Audit) on 10.03.2004. Thus, it has been suggested that the report is much later to the issuance of revival order and was prepared under the supervision of the Assistant Registrar (Audit) who has not even been examined by the prosecution in this case. Finally, it has been also argued that the submission of the Ld. Public Prosecutor that the auditing was done for 24 years at one go and computerized balance sheets were prepared even though, for the relevant periods, the use of computes were not known, it has been rebutted that the accused has never denied that the audit report was prepared subsequently and it has to be borne in mind that the society was under
liquidation pursuant to liquidation order dated 23.03.1979 till its revival. Also, it has been submitted that since no land was allotted to Delhi Census CGHS, they could not have been major financial transactions of the society. Hence, it has been submitted that merely on the aforesaid ground, the documents cannot be presumed to be fabricated when in fact, the investigating agency did not seize any of the records of the society like cash book, voucher etc to show that the reports were not premised upon credible material.
14.1 Also, on the aspect of sanction under Section 19(1) of P.C. CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 82 of 185 Act, the only witness examined is PW-4 (Sh. R. Narayanaswamy). It has been submitted that perusal to his testimony shows that it is not apparent that he had applied his independent mind to the grant of sanction for prosecution as no material upon which his opinion was premised was adduced in evidence. As regards sanction for prosecution under Section 197(1) of Cr.P.C., it has been reiterated that it was mandatory as what ever was done by the accused was in discharge of his official duty. It has been submitted that prosecution has not led any evidence to show any criminality which can be attributed to accused P.K. Thirwani and the least, if the report was deficient in any manner, the maximum that could have been done was that departmental action could have been proposed against accused P.K. Thirwani.
15. Sh. S.K. Bhatnagar, Ld. Counsel for accused Faiz Mohd. has taken certain legal objections to the power of CBI to investigate the matter and also as to whether by virtue of Section 5 of the IPC, offences already catered to under DCS Act, 1972 could have been investigated and taken cognizance of. It is his submission that CBI could not have investigated the present allegations under Section 3 of the Delhi Police Establishment act as there is no notification authorizing it to investigate offences under DCS Act, 1972. Further, it has been submitted that DCS Act, 1972 is comprehensive in itself which also provides for punitive action under Section 82 of the Act and immunity from prosecution under Section 95 of DCS Rules, 1973 to the RCS and its officials. Hence, it has been canvassed that the initiation of criminal proceedings itself was illegal. Thereafter, another legal proposition was put forth by him to the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 83 of 185 effect that statement under Section 313 Cr.P.C. condenses the evidence recorded during trial and as per the same it is apparent that no evidence of commission of offences under Section 15 read with 13(1)(d) read with Section 13(2) of P.C. Act were put to the accused persons and as such, it is apparent that no such incriminating material is available on record.
15.1 On merits, it has been argued that accused Faiz Mohd. has been attributed the role of preparing false inspection report in furtherance of the conspiracy. However, it is submitted that as per Section 63(3) of DCS Act, 1972, there is no requirement of seeking any such inspection report to pass revival order nor are its modalities mentioned anywhere, which the accused allegedly violated. Drawing the attention of the Court to the revival order dated 01.03.2004 (Mark A/31) it has further been submitted that it does not take into account the inspection report of accused Faiz Mohd. and therefore, it could not be said that his report was the premise upon which the revival of Delhi Census CGHS took place. It has further been argued that Vishnu Rai the purported secretary of Delhi Census CGHS was neither examined by the prosecution during trial nor were his signatures/writings sent to CFSL for examination. Also, it has been adumbrated that the list of the members of Delhi Census CGHS was prepared on 03.02.2004 whereas the physical verification by accused was done on 05.02.2004. The physical verification report (Ex. PW25/D) is also not countersigned by any of the officers of RCS office and thus, it has been once again canvassed that his report was not material to the passing of the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 84 of 185 impugned revival order (Mark A/31). Further, it has been submitted that PW-25 (Sh. Umesh Aggarwal) and PW-26 (Sh. Virender Kumar Taneja) during cross-examination also could not explain how the ration cards came into the possession of accused Faiz Mohd. and so, it could not be definitively said that he did not conduct physical verification. It has been submitted that there is no iota of evidence that Delhi Census CGHS had become defunct as per Section 2(8) of The DCS Rules, 1973 and also, as per Section 93(3) of DCS Act, 1972, no revival order can be challenged before any forum least by way of this case. It has been argued that there is no evidence that the list of members was sent to DDA or that the land was allotted or that any wrongful loss / gain had been caused to anyone. It has been submitted that the conviction cannot be premised upon presumptions and assumptions without credible evidence. Finally, it has also been argued that sanction for prosecution under Section 197(1) fo Cr.P.C. should have been taken as the accused was acting in discharge of his official duties. It has also been adumbrated that there is no iota of material brought on record that accused Faiz Mohd. made any demand of bribe or received any bribe. To sum up, it has been argued that no departmental enquiry was also ever recommended by CBI against accused Faiz Mohd.
16. On behalf of accused R.B. Chauhan, written submission dated 23.09.2024 has been filed and has been relied upon. As per the written submissions, it has been averred that the prosecution has miserably failed to prove its case against the accused even on the test of preponderance of probabilities even though, they were required to prove CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 85 of 185 it beyond reasonable doubts. It is stated that none of the prosecution witnesses have established that the accused submitted a suggested note in the file of Delhi Census CGHS which he dealt with in routine as the LDC. It is stated that there is no documented procedure / rule or convention established, orally, that the file of Delhi Census CGHS was required to be processed in a particular manner and therefore, there has been illegality in the actions of the accused also, the prosecution has not proved any law/ rule/ circular/ guideline mandating physical verification of resigned and enrolled members and to verify the correctness of the documents produced by the Society by the Dealing Assistant (LDC). Relying upon cross examination of PW55 (Inspector S. C. Bhalla), it has been stated that no complaint had been received against the accused, during investigation and that no departmental action had been recommended against the accused.
16.1 Much emphasis has been made upon the role of the accused as the Dealing Assistant (LDC) as in such capacity, he was at the lowest rank and had produced the notes without any addition or concealment before his superior Assistant Registrar. He has relied upon duty chart Ex.DW6/A (colly)40 to show that he was carrying out work assigned by the Superior Officers. He has therefore, stated that the Society had shown records to the Assistant Registrar (West), the directions were issued by the RCS to the Assistant Registrar (West) for verification of the records of the Society and to conduct spot verification which as per proceedings dated 19.02.2004, was claimed by the Assistant Registrar 40 However, no such document was tendered in evidence.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 86 of 185 (West) to have been done by him and the revival order dated 01.03.2004 was passed by the RCS on such verification of records claimed by the Assistant Registrar (West) and therefore, no role is attributable to the accused. Thereafter, objection has been raised for want of sanction for prosecution under Section 197 (1) Cr.P.C. to urge that the accused had executed his official duties and as such, the act or omission, if any, is indisputably traceable to the discharge of his official duties. He has relied upon Indra Devi vs. State of Rajasthan and Anr. 41 and State of Rajasthan vs Yogesh Acharya42 to argue that protection Under Section 197(1) Cr.P.C is available to the junior most placed employee.
16.2 It has been also averred that there is no evidence on record to show that the accused had any knowledge about the alleged forgery of documents. It has also been stated that there is no evidence on record to prove that the accused demanded or obtained or attempted to obtain any pecuniary advantage for himself or any other person. Thus, relying upon K.R. Purushothaman vs. State of Kerala 43 it is stated that the accused cannot be convicted for commission of offence under Section 13(1)(d) of P.C. Act.
16.3 A contentious issue according to the accused is also the sanction order (Ex.PW39/A) issued under Section 19(1) of P.C. Act.
41 Criminal Appeal No. 593 of 2021 [ Arising out of SLP (Crl) No. 1605 of 2018 D. No.7196 of 2019] decided on 23.07.2021 by Supreme Court of India 42 (Vide which the Court gave protection as provided u/s 197 Cr. P.C to Jr. placed employee (Clerk). 43 (2005) 12 SCC 631 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 87 of 185 Relying upon CBI vs Ashok Kumar Aggarwal44, State of Tamilnadhu vs M.M. Rajendran45, Vineet Narain & Ors. vs Union of India & Anr.46, Mansukhlal Vithaldas Chauhan vs State of Gujarat47, Circular No. 21/33/98-PD dated 06.05.1999 and the CBI Manual, it has been averred that the sanction order is without application of mind and cannot be acted upon due to following reasons:
(a) DW2 Sh. Guru Prasad Kardam produced the file bearing No. F3/709/05/DFW/Estt/Pt regarding Sanction for prosecution of accused R. B. Chauhan (LDC), containing one note sheet pages 1/N and 2/N along with correspondence page No. 1/C to 79/C which establishes that the draft sanction order sent by the CBI was signed by the sanction authority without going through the relevant document.
(b) The prosecution failed to establish that entire relevant facts qua the accused had been placed before the sanctioning authority.
(c) Except SP's report, no relevant material particularly the note prepared by the accused/applicant in the file of revival of Delhi Census CGHS, was placed before and discussed by the sanctioning authority.
(d) The sanction order sent by the CBI was placed before the sanctioning authority on 02.11.2006 by the Dealing Assistant by inserting the name and designation of the sanctioning authority at the blank portion of the concluding page of the draft and thereafter, the sanctioning authority had merely signed on it and no order number is also mentioned thereupon.
44 Criminal Appeal No. 1838 of 2013 decided on 22.11.2013 by Supreme Court of India 45 (1998) 9 SCC 268.
46 AIR 1998 SC 889.
47 (1997) 7 SCC 622.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 88 of 185 16.4 Further, relying upon State of Maharashtra Through Deputy Superintendent of Police ACB Nagpur vs Devidas 48, it has been stated that signing of a mere draft sanction order indicates non-application of mind. Also, referring to Shri Anand Murlidhar Salvi vs The State of Maharashtra49, it has also been stated that conviction cannot be sustained if the draft sanction order was prepared by the junior officer of the sanctioning authority who merely carried out grammatical corrections and did not apply his mind and consciously scrutinized the records. Also, alluding to Nanjappa vs State of Karnataka50, it has been canvased that question of validity of sanction under Section 19(1) of P.C. Act can be raised at any stage as it goes to the competency of the Court trying the matter.
16.5 Apart from assailing the sanction order (Ex. PW39/A) on the ground of non-application of mind, it has also been challenged for not having been issued by the competent authority as during the relevant period when the alleged offence is stated to have occurred, the accused was officiating as the LDC at the office of the RCS and therefore, only the RCS would be the competent authority to remove him from service.
16.6 Finally, on the aspect of conspiracy, placing reliance upon K.R. Purushottam Vs. State of Kerala 51 and Ram Sharan Chaturvedi vs 48 Criminal Appeal No. 345 of 2002 decided on 08.09.2014 by High Court of Judicature of Bombay, Nagpur Bench 49 Crl. Appeal No. 1107 of 2004 decided on 23.02.2021 by High Court of Judicature at Bombay Criminal Appellate Jurisdiction 50 Crl. Appeal No. 1867 of 2012 decided on 24.07.2015 by Supreme Court of India 51 Criminal Appeal No. 495 of 2004 decided on 25.10.2005 by Supreme Court of India CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 89 of 185 The State of Madhya Pradesh52, it has been argued that the prosecution has failed to complete the chain of events to rule out a reasonable likelihood of innocence of the accused and therefore, conviction for offence of conspiracy cannot be premised upon conjectures and surmises.
17. On behalf of accused Deen Bandhu Prasad, Ld. Counsel Sh. S. K. Bhatnagar has argued that the role assigned to him in the criminal conspiracy is to have given a false election report that Ex. PW52/B whereby, the following office bearers were elected in the Managing Committee of Delhi Census CGHS on the basis of elections held on 04.04.2004:
Sl. For the post of Name of the candidates MS No. No. 1. President Sh. Vishnu Rai 118 2. Vice President Sh. N.D. Pathak 111
3. Managing Committee Member Sh. Dharam Chand 114
4. Managing Committee Member Sh. Rakesh Sharma 106
5. Managing Committee Member Sh. V. K. Taneja 120 6. Managing Committee Member Smt. Poonam 119
7. Managing Committee Member Smt. Uma Gupta 117 17.1 It has been canvassed that the report was submitted on 07.04.2004 which is much after the order of revival which is dated 01.03.2004 and therefore, there is no nexus of actions or meeting of mind with remaining accused persons, which has been proved by the 52 Criminal Appeal No. 1066 of 2010 decided on 25.08.2022 by Supreme Court of India CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 90 of 185 prosecution. Relying upon note on page No. 19/N [in file Ex.PW55/G (colly) (D-12), (Vol-I)], it is stated that the report was considered on 13.04.2004 and was merely taken on record. Thereafter, it has been submitted that the report has been assailed to be false. However, it has been argued that there is no material evidence adduced by the prosecution to establish that the report Ex.PW52/B was false. It is stated that it has not been proved as to what rules and modalities were required to have been followed by the accused which have been violated. It has thereafter, being submitted that the report mentions that the election was unopposed and therefore, there was no occasion for casting a votes. The Ld. Counsel for the accused alluded to previous election proceedings dated 05.10.2003 to submit that procedure followed was similar. It has been submitted that the affidavit furnished by the members of the Managing Committee have not been proved to be false as even the Notary, who attested those affidavits has been cited or examined as a witness.
17.2 Once again, it has been argued that sanction for prosecution under Section 197(1) Cr.P.C. was mandatory qua the accused who admittedly, is a public servant and was discharging his duty when he conducted the elections. It has also been submitted that sanction under Section 19(1) of P.C. Act is not valid as firstly, it has not been issued by the competent authority who by virtue of Section 19(2) of P.C. Act, was not competent to remove the accused from service at the time the offences are alleged to have been committed and secondly, it has been issued mechanically with no application of mind as even there is no CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 91 of 185 evidence of what documents were put up before the sanctioning authority.
17.3 It has also been submitted that due process of law has not been followed causing miscarriage of justice as there is no explanation for non-compliance of Section 5 of IPC, Section 82 (3) and Section 95 of DCS Act, 1972 and Section 197 and Section 314 of Cr.P.C. It has been submitted that as the CBI did not recommend any vigilance action against the accused, it implies that there was no criminality imputed upon the accused.
17.4 So far as the allegation of attempt to commit offences is concerned, relying upon Malkiat Singh vs State of Punjab53 it has been submitted that since mere sending of the list of members to DDA, would not have been sufficient for allotment of land and as, payment was required to be made and there is no evidence to establish that there was guarantee of payment for the allotment of land, the penultimate act was not complete to invoke even the allegations of attempt.
18. During the course of rebuttal arguments, Ld. Public Prosecutor for the State (through CBI) placed reliance upon the following judgments:
(a) Choudhury Praveen Sultana vs State of West Bengal 54, Prakash Singh Badal and Anr. vs State of Punjab and Ors.55, Sambhoo Nath 53 AIR 1970 SC 713 54 2009 Cri. L.J 1318, decided by Supreme Court on 07.01.2009 55 Appeal (Civil) 5636 of 2006 decided by SC on 06.12.2006 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 92 of 185 Misra vs State of U.P.56, Rakesh Kumar Mishra vs State of Bihar and others57, Amal Kumar Jha vs State of Chhatisgarh 58, Station House Officer, CBI/ACB /Bangalore vs B.A. Srinivasan and Anr. 59, K. Satwant Singh vs State of Punjab60, Raghunath Anant Govilkar vs State of Maharashtra61 and Harihar Prasad vs State of Bihar62 to urge that sanction under Section 197(1) Cr.P.C. is not required in the present case as it is not in discharge of official duty that the accused persons (who occupied public officers) entered into a conspiracy to indulge in criminal activities.
(b) Chittaranjan Das vs State of Orissa63 to submit that sanction under Section 19 of P.C. Act is not necessary qua public servants if they have retired.
(c) State of Maharashtra vs Sukhdeo Singh,64 Yash Pal Mittal vs State of Punjab65, State of Tamilnadu vs Nalini and 25 others 66, Kehar Singh vs State (Delhi Admin.)67, Baliram, Tikaram Marathe vs Emperor68, Bimbadhar Pradhan vs The State of Orissa 69 and Noor Mohammad Mohd. Yusuf Momin vs State of Maharashtra 70 to explain how conspiracy can be proved as it is hatched in private or in secrecy 56 Appeal (Crl.) 318 of 1997 decided by SC on 14.03.1997 57 Appeal (Crl.) 12 of 2006, decided by the SC on 03.01.2006 58 AIR 2016 Supreme Court 2082 59 Criminal Appeal No. 1837 of 2019 decided by the Supreme Court of India on 05.12.2019. 60 1960 Crl. L.J 410, Supreme Court decided on 28.10.1959 61 2008 AIR SCW 1375, Special Leave Petition (Crl. ) 5453 of 2007 decided by the Supreme Court on 08.02.2008 62 (1972) 3SCC89 decided by the Supreme Court of India 63 2011 Cri. L. J 4306 decided by Supreme Court on 04.07.2011. 64 1992 AIR 2100 Supreme Court decided on 15.07.1992 65 1977 AIR 2433 66 (1999) 5 SCC 253 67 1988 AR 1883 SCC 68 Crl Appeal No. 176, 209, 210, 211, 212 decided by the Court of Nagpur on 02.11.1944. 69 1956 AIR 469 70 1971 AIR 885 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 93 of 185 and it is not material that each conspirator would be known to the other, as even though, they worked with unity of object or purpose, there may be plurality of means achieving the goal.
(d) Murari Lal vs State of M.P. (supra) to canvas that the report of the handwriting expert without corroboration can be accepted.
(e) Ashok Debbarma @ Achak Debbarma vs State of Tripura 71 and Collector of Customs, Madras and others vs D. Bhoormul 72 to expound that the meaning of "beyond reasonable doubt" in criminal jurisprudence does not imply proof of impossible.
(f) Ram Narayan Popli vs CBI 73to define forgery,
(g) Neera Yadav vs CBI74 and Runu Ghosh vs CBI75 on what constitute criminal misconduct on the part of public servants.
ANALYSIS, APPRECIATION OF EVIDENCE AND REASONS
19. As the Court now proceeds to analyze the charge and evidence adduced to prove the same, it would be expedient to recapitulate alleged acts of the accused persons step by step.
19.1 Admittedly, the genesis of cancellation of the winding up order dated 01.03.2004 (Mark 31/A) of Delhi Census CGHS is an application dated 27.12.2003 [(pages no. 1/C and 2/C of file Ex. PW55/G(colly) (D-12), (Vol-I)], purportedly, submitted by the Secretary 71 Criminal Appeal Nos. 47-48 of 2013 decided by The Supreme Court of India on 04.03.2014. 72 1974 AIR 859 73 AIR 2003 Supreme Court 2748 74 AIR 2017 Supreme Court 3791 75 Crl. A. 482/2002 decided on 21.12.2011 by High Court of Delhi CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 94 of 185 of Delhi Census CGHS before the RCS and copy submitted to the Assistant Registrar (West) vide diary no. 2591 dated 09.01.2004 [page 2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)]. (It is the case of the prosecution that the said letter has not been issued by Sh. Vishnu Rai, the so called Secretary of Delhi Census CGHS but has been forged by accused Ashutosh Pant and it was he who appeared before the RCS by impersonating as Vishnu Rai.) 19.2 Thereupon, it was marked to Assistant Registrar (West) accused Sita Ram Goyal (since deceased) by RCS accused Narayan Diwakar [as per page no. 1/N of file Ex. PW55/G(colly) (D-12), (Vol-I), also Ex. PW31/A (colly)]. The Dealing Assistant i.e. accused R.B. Chauhan vide note dated 09.01.2004 put up the file before Assistant Registrar (West) accused Sita Ram Goyal (since deceased) and the note said as under :
"May kindly see the PUC received from the Secretary of the society reg cancellation of wind-up order and approve the list of members of Delhi Sensus CGHS Ltd., WZ-1198/1, Main Bazar, Rani Bagh, Delhi. The society vide PUC requested that they already removed all the short-comings on which the wind-up order were issued, therefore the society may be revived.
It is submitted here that the main file of the society is not available in the zone. If agreed, we may issue circular to all zones in this regard & in the meantime we may also initiate inspection u/s 54 of the DCS Act, 72 to verify the present status of the society.
Submitted for approval of 'XA' pl."
19.3 Thereafter, on 13.01.2004, accused R.B. Chauhan put up the note [page no. 2/N of file Ex. PW55/G(colly), (D-12), (Vol-I)] recording as under :
"As approved on pre-page, accordingly circular is placed apposite for CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 95 of 185 sig. pl. Further as regard to inspection u/s 54 is concerned, we may appoint Sh. Faiz Mohd, Gr-III(N/W) as an Inspection Officer to verify the records of the society & submit the report within 15 days. Accordingly letter is also placed apposite for approval/ sig, pl."
and Assistant Registrar (West) accused Sita Ram Goyal (since deceased) signed the draft circular on the same date i.e. on 13.01.2004. The circular no. F.47/128/Coop/GH/West/42 dated 13.01.2004 [(page no. 3/C of Ex. PW55/G(colly), (D-12), (Vol-I)] was issued by Assistant Registrar (West) accused Sita Ram Goyal (since deceased) requiring the other branches / zonal offices of the office the RCS to trace the file of Delhi Census CGHS and report the same to the West Zone within a week or else, it would be presumed that no such file is lying with them.
19.4 On 13.01.2004, order [(Page 4/C, of file Ex. PW55/G (colly) (D-12), (Vol-I)] was also issued, appointing accused Faiz Mohd. as "Inspecting Officer" to verify the records of the Society and submit his report within 15 days of this order.
19.5 Thereafter, on 23.01.2004 accused R.B. Chauhan put another note [(page 2/N in file Ex. PW55/G (colly), (D-12), (Vol-I)] as under:
"May kindly see a circular dtd 13-1-04 (P-3/C) was issued to all zones after getting approval from Competent Authority at 1/N, to search their zones & returned the main file, if found, within one week, since the main file of the society was not available, but till date, no reference is received from any zone in this regard.
In view of the aforesaid & as per approval of the Competent Authority dtd 9-1-04 (P-1/N), if agreed, we may go ahead accordingly & the society may be requested to submit / furnish the original records alongwith copy of Registration Certificate, Bye-laws & other relevant documents of the society for the reconstruction of the file of the CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 96 of 185 society.
Fair letter to society is also placed apposite for approval / sig. pl."
and Assistant Registrar (West) i.e. accused Sita Ram Goyal (since deceased) noted "Issue Pl." on the same date. Accused Faiz Mohd., on 27.01.2004 submitted his report [(page no. 124/C of file Ex. PW55/G (colly) (D-12), (Vol-I), also Ex. PW52/A)] as under :
"To The Asst. Registrar (West) Cooperative Societies, Govt. of NCT of Delhi, Parliament Street, New Delhi - 110001.
SUB:- Inspection Report U/s 54 of Delhi Coop. Societies Act, 1972 of the Delhi Sensus Coop. Group Housing Society Ltd. Regn.No.128(GH) Sir, In compliance of this office order no. F.47/128/GH/Coop/W/41 dated 13.01.2004 vide which under signed was appointed an Inspecting officer submission are as under :
1. I have visited at the office address of the society i.e. WZ-1198/1, Main Bazar, Rani Bagh, Delhi on 16.01.2004 and there I met Sh. Vishun Rai, Secretary of the Society.
2. Sh. Vishnu Rai, Secretary of the Society informed that no liquidation order has been received by the society from RCS officer, it is only came to know when he was visited at RCS office to know the status of the society.
3. As per record of the society the office address of the society was shifted from Opp. 1242, Laxmi Bai Nagar, New Delhi to WZ-1198/1, Main Bazar, Rani Bagh, Delhi vide managing committee resolution passed on 03.05.77 and subsequently approved by Special General Body meeting held on 17.07.77.
4. The Membership Register is complete in all respect.
5. The Audit of the society is pending since its registration i.e. 31.05.72 and the copy of unaudited accounts from 31.05.72 to 31.03.2003 enclosed.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 97 of 185
6. The proceeding register is also complete and the last Managing Committee meeting was held on 21.12.2003.
7. As per the records of the society the last election was held on05.10.2003 as per DCS rules (copy of General Body Meeting enclosed).
8. All the society records are found under the safe custody of the Sh. Vishnu Rai, Secretary of the society.
Dated : 27-1-04
- sd -
(Sh. Faiz Mohd.) Inspecting Officer Encl : 1. As mentioned above.
2. Inspection Report"
This report has been endorsed on 27.01.2004 by Assistant Registrar (West) accused Sita Ram Goyal (since deceased) stating as "urgently put up on file" .
19.6 Relying upon the inspection report Ex. PW52/A [(page no. 124/C, of file Ex. PW55/G(colly), (D-12), (Vol-I)], a note dated 28.01.2004 [(page no. 3/N, of file Ex. PW55/G(colly), (D-12), (Vol-I)] was put up by accused R.B. Chauhan as Dealing Assistant and it mentions the findings of the report and in addition, stipulates that the Secretary of Delhi Census CGHS had submitted photocopy of the Registration Certificate, Bye-laws of the Society and Minutes of first meeting of the promoters. Permission was sought for taking the aforesaid documents on record to reconstitute the file mentioning about the revival letter and that the Secretary of Delhi Census CGHS had stated that all the short-comings has been removed on the basis of which the Society has been wound-up. He noted that the file of the Society may be forwarded to the RCS for consideration and request to revive the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 98 of 185 Society under Section 63 of DCS Act, 1972 and initiate quasi judicial proceedings in this regard. Upon the same, Assistant Registrar (West) accused Sita Ram Goyal (since deceased) stated that " for kind consideration of the Ld. RCS, the details are test checked and found to be in order. For order Pl." and the file was sent to the Reader to the RCS. As per note dated 20.01.2004 (page no. 5/N, of file Ex. PW55/G(colly), D-12, Vol-I), Reader to the RCS sought permission of accused Narayan Diwakar, RCS for issuance of notice to the President / Secretary of the Society for initial hearing on 03.02.2004 before the RCS. The same was approved by the RCS on 30.01.2004 [(page no. 5/N, of file Ex. PW55/G(colly), (D-12), (Vol-I)]. Thereafter, on 03.02.2004 [(page no. 6/N of file Ex. PW55/G(colly), (D-12), (Vol-I)], the proceedings recorded are as under :
"Sh. Vishnu Rai, Hony, Secretary of the society present. Reader is directed to send the file to the concerned zone for verification of records pertaining to membership, audit and election. Besides, concerned AR is directed to conduct a spot verification of member and submit the report to this court.
In view of above, case is adjourned for 19.02.2004."
19.7 On 04.02.2004, the matter was marked by the Assistant Registrar (West) accused Sita Ram Goyal (since deceased) to the Dealing Assistant accused R.B. Chauhan to put up a note dated 05.02.2004 alongwith the draft of order for spot verification. Assistant Registrar (West) accused Sita Ram Goyal (since deceased) thereupon, endorsed it stating that "Fair is signed Ask Mr. Faiz Mohd, Gr-III to expedite Pl." on 05.02.2004. Accordingly, accused Faiz Mohd. submitted his report dated 09.02.2004 [(in file Ex. PW55/I(colly) CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 99 of 185 (D-14), (Vol III) also Ex. PW25/D)] which stated as under :
"In compliance to your letter/order dtd 05-2-04 the undersigned visited the residence the residence of the following members of the Society as per list submitted by the Society and they have confirmed that they are the member of the Delhi Sensus CGHS and also given the photocopy of their residence proof:-
s.no. M.No. Name of the
Member
01. 120 VK Taneja
02. 112 JN Aggarwal
03. 111 ND Pathak
04. 113 RP Sharma
05. 115 DG Gupta
06. 117 Uma Gupta
07. 119 Poonam
08. 118 Vishnu Rai
09. 121 Mahender Kumar
19.8 Subsequently, the Dealing Assistant accused R.B. Chauhan
put up the case for revival of Delhi Census CGHS relying upon copies of the Registration Certificate, registered Bye-laws [(page no. 125 to page no. 130 of file Ex. PW55/G(colly), (D-12), (Vol-I)], liquidation order dated 23.03.1979 [(page no.132 of file Ex. PW55/G(colly), (D-12), (Vol-I)], application for cancellation of winding up order dated 01.03.2004 [(page no. 1/C to page no. 2/C of file Ex. PW55/G(colly), (D-12), (Vol-I)] and copy of minutes of meeting of the Special General Body Meeting dated 05.10.2003 [(page no. 109 to page no. 113 of file Ex. PW55/G(colly), (D-12), (Vol-I)], six point affidavit of President / Secretary [(page no. 152 to page no. 153/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], inspection report of accused Faiz Mohd. dated CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 100 of 185 27.01.2004 [(page no. 123/C to page no. 124/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], Bye-laws [(page no.125/C to page no. 130/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], list of 150 members Ex. PW23/B [(page no.139/C to 144/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], consolidated list of members as on 30.06.1986 [(page no. 211/C to page no. 214/C of file Ex. PW55/I(colly), (D-14), (Vol- III)], photocopy of application of members [(page no. 1/C to 136/C of file Ex. PW55/I (colly), (D-14), (Vol-III)], photocopies of receipts of share money [(page no. 137/C to 203/C of file Ex. PW55/I (colly), (D-14), (Vol-III)], photocopies of minutes of managing committee meetings in which enrollments of members were approved (Mark 36/X-2) [(page no. 204/C to 210/C of file Ex. PW55/I (colly) (D-14), (Vol-III)], spot verification report of accused Faiz Mohd. [(Page no.
235/C, of file Ex. PW55/I(colly) also Ex. PW25/D, (D-14), (Vol-III)], affidavits of 150 members [(page no. 1/C to page no. 150/C of file Ex. PW55/H(colly) (D-13), (Vol-II)], affidavits [(page no. 145/C to page no. 150/C of file Ex. PW55/G(colly), (D-12), Vol-I)] and affidavit of the Secretary of the Society [(page no. 151/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], unaudited accounts of society of March, 2003 [(page no. 6/C to page no. 102/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], agenda notice dated 25.08.2003 for holding of Special General Body Meeting of Society on 05.10.2003 [(page no. 116/C to page 114/C of file Ex. PW55/G(colly), (D-12), (Vol-I)] and service proof of agenda notice to all members of the society [(Page no.103/C to 108/C of file Ex. PW55/G(colly), (D-12), (Vol-I)] to withdraw liquidation order dated 23.03.1979 and for revival of the society and approval of final list of CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 101 of 185 150 members [(page no. 7/N to page no. 17/N of file Ex. PW55/G (colly) (D-12), (Vol -I)]. The note dated 16.02.2004 was endorsed on 17.02.2004 by Assistant Registrar (West) mentioning " for kind perusal and approval of the RCS, N. Delhi" and sent to the Reader of the RCS. On 19.02.2004, a hearing was held before the RCS and the following order was passed :
"Sh. Vishnu Rai, Hony. Secretary of the Society present. The concerned zonal AR is also present and stated that an inspection U/s 54 of the DCS Act, 1972 was done by an Inspector of the Department who has given his favorable report. He further stated that he has checked up and verified each and every paper submitted by the society. The society has also submitted list of members as on date. The documents regarding holding of election are also scrutinized and found the same in order and as per DCS Act and Rules. He further stated that the society has prepared its books of accounts and submitted un-audited accounts till 31.03.2003. The concerned zonal officer finally recommended the case for the revival of the society.
The winding up order passed by the then Dy. Registrar shows that proper procedure was not followed while winding up the society as the reasons given were not adequate for initiating such an extreme step for winding up the society. If there was any mis-management in the society, it was appropriate to initiate action U/s 32 for setting the right working of the Society and then restoring the cooperative management. Such orders for winding up without proper application of mind is not conducive for revitalization and re-strengthening of the cooperative movement in Delhi.
During the course of arguments, the Secretary of the society also mentioned that Dy. Registrar who had passed order U/s 63 of DCS Act, 1972 was not competent to decide the matter U/s 63.
There is nothing on record that such powers U/s 63 exercisable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time order was passed, large number of societies were wound up without any valid and convenient reasons. It also appears that the society was not given sufficient opportunity either to reply to the SCN issued or to rectify the shortcomings mentioned in the notice issued by the RCS.
In view of the above, case is reserved for orders."
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 102 of 185 The detailed order dated 01.03.2004 was also subsequently, placed on the file. The letter was then marked by Assistant Registrar (West) accused Sita Ram Goyal (since deceased) to the Dealing Assistant i.e. accused R.B. Chauhan on 03.03.2004, who as per the note dated 03.03.2004 drafted the letter to Assistant Registrar (Policy) which was thereafter, signed and directed to be issued by Assistant Registrar (West) i.e. accused Sita Ram Goyal (since deceased), on 04.03.2004.
19.9 On 13.04.2004, another note was put up by the Dealing Assistant accused R. B. Chauhan [(page no.19/N of file Ex. PW55/G(colly), (D-12), (Vol-I)] stating that the Election Officer accused Deen Bandhu Prasad has submitted his report alongwith list of elected members of the managing committee and the same was to be approved to be taken on record by Assistant Registrar (West) accused Sita Ram Goyal (since deceased).
19.10 Accused Deen Bandhu Prasad gave his report Ex. PW52/B on 07.04.2004, as per which, he reported that he was appointed as Election Officer vide Order bearing Case No. RCS/021/04/306-011 dated 01.03.2004 [(page no 159/C to 163/C of file Ex. PW55/G(colly), (D-12), (Vol-I) also Mark A/31)] and he had conducted the election on 04.04.2004 and results had been pronounced on the same day and the minutes of the Special General Body Meeting [(page 167 of file Ex. PW55/G(colly), (D-12), (Vol-I) also Ex. PW34/C)], had been recorded. According to the election result, the following persons had been appointed as Office Bearers in the managing committee of Delhi Census CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 103 of 185 CGHS :
S.No. Name of Member M.No. Post
1. Vishnu Rai 118 President
2. N.D. Pathak 111 Vice-President
3. V.K. Taneja 120 Member
4. Dharam Chand 114 -Do-
5. Uma Gupta 117 Member (Women)
6. Poonam 119 -Do-
7. Rakesh Sharma 106 Member
19.11 A letter which had been issued to Assistant Registrar
(Policy) Ex. PW31/D dated 04.03.2004 bearing no.
F.47/128/Coop/GH/W/227-28 [(page no. 164/C of file Ex.
PW55/G(colly), (D-12), (Vol-I)] was also sent by the Assistant Registrar (West) accused Sita Ram Goyal (since deceased).
ALLEGATIONS OF FORGERY, USE OF FORGED DOCUMENTS AND CONSPIRACY TO FORGE AND USE FORGED DOCUMENTS.
20. As per the prosecution, letter for revival of Delhi Census CGHS [(pages 1/C and 2/C of file Ex. PW55/G(colly), (D-12), (Vol-I)], affidavits of purported members contained [(in file Ex. PW55/H(colly) (D-13), (Vol-II)], application forms [(page no. 1/C to page no 136/C of file Ex. PW55/I(colly), (D-14), (Vol-III)], subscription receipts [(page no. 137/C to page no. 203/C of file Ex. PW55/I(colly) (D-14), (Vol-III)], minutes of meeting of Delhi Census CGHS and list of members of Delhi Census CGHS are false documents.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 104 of 185 20.1 The allegations in specific are that accused Ashutosh Pant has forged 150 affidavits of different persons for which he is facing trial under Section 468 IPC. Accused Ashutosh Pant and accused Munna Lal Sharma have been charged for criminal conspiracy of forging and using the affidavits, fake membership records and other documents for reviving the society and thus to have cheated the office of RCS. All accused persons are also facing charges of criminal conspiracy for forgery and use of forged documents. Thus, it is material to first delve upon what constitutes the offence of forgery and the use of forged documents.
20.2 Section 467, 468 and 471 of IPC stipulate as under :
"467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1 [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record.-- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged 3 [document or electronic record], shall be punished in the same manner as if he had forged such [document CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 105 of 185 or electronic record]."
20.3 While defining forgery, the Apex Court in Md. Ibrahim & Ors. Vs. State of Bihar & Anr.76, has held as under :-
"9. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document.-A person is said to make a false· document or false electronic record -
First.-Who dishonestly or fraudulently -
(a)makes, signs, seals or executes a document or part of a document;
(b)makes or transmits any electronic record or part of any electronic record;
(c)affixes any digital signature on any electronic record;
(d)makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to 76 (Criminal Appeal No.1695 of 2009) (2009) 13 (ADDL.) S.C.R. 1254 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 106 of 185 forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. [Note: The words 'digital signature' wherever it occurs were substituted by the words 'electronic signature' by Amendment Act 10 of 2009)."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
(10.1.) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person,· or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. (10.2.) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(10.3.) The third is where a person dishonestly or fraudulently causes, any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he ' a document; or (iii) he obtained a altered or tampered document by practicing deception, or from a person not in control of his senses."
20.4 To drive home the criminality of act of forgery, it is incumbent upon the prosecution to prove beyond reasonable doubt (a) CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 107 of 185 that the document is false (b) that the accused has prepared the false document (c) with the intention to defraud.
21. For convenience, the alleged forged documents can be classified as under :
(a) Application for revival of Delhi Census CGHS [(page 1/C and 2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)]
(b) Photocopies of applications for membership [(file Ex. PW55/I (colly)(D-14 Vol-III)]
(c) Subscription receipts [(in file Ex. PW55/I (colly)(D-14), (Vol-III)]
(d) Affidavits of purported member making declarations of being eligible to become a member of Delhi Census CGHS [(Ex. PW55/H(colly) (D-13), (Vol-II)]
(e) Minutes of Meeting dated 16.08.1972, 09.11.1972, 10.01.1973, 15.03.1973, 21.05.1973 and 16.08.1977.
(f) Consolidated list of members of Delhi Census CGHS (Ex.
PW19/F)
(a) Application for revival of Delhi Census CGHS [ (page no. 1/C and page no. 2/C of file Ex. PW55/G (colly) (D-12), Vol-I)] 21.1 To begin with, the application for revival is stated to have been forged and moved by accused Ashutosh Pant, impersonating as Vishnu Rai. However, no evidence has been led on the aforesaid aspect. The best evidence to prove the same, could have been examination of PW Vishnu Rai however, he could not be examined on behalf of the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 108 of 185 prosecution as on account of his medical condition, the witness was dropped from the array of witnesses vide order dated 28.07.2022 77 at request of Ld. Public Prosecutor for the State (through CBI). The other means to have established that the letter was forged by accused Ashutosh Pant was either the report of a handwriting expert or a witness who was acquainted with the handwriting and signature of Vishnu Rai but no such evidence was tendered by the prosecution during trial. Further, by examination of any other witness who was present during hearing before the RCS, it could have been established that accused Ashutosh Pant had appeared before the RCS impersonating as Vishnu Rai. But, no evidence has been gathered other than the statement of PW Vishnu Rai during investigation and the same could not be proved. Hence, there is no iota of material to establish that the application for revival of Delhi Census CGHS has been forged and that accused Ashutosh Pant is the author of the application for revival of Delhi Census CGHS (on page 1/C and 2/C of file Ex. PW55/G (Colly) (D-12 Vol-I) impersonating as PW Vishnu Rai.
(b) Photocopies of applications for membership [(file Ex. PW55/I (colly) (D-14), Vol-III)] 21.2 The next set of documents purportedly forged are the set of photocopies of applications for membership contained in file [Ex. PW55/I(colly), (D-14), (Vol-III)]. Through the examination of PW19 (Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW21 (Sh.Hari Singh), 77 Witness was summoned on 11.02.2021, 05.07.2022 and 28.07.2022 but it was reported that he was confined to bed and on liquid diet. Further, that he was not able to speak and was frail.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 109 of 185 PW22 (Sh. N.P. Upadhyay), PW25 (Sh. Umesh Aggarwal), PW26 (Sh. Virnder Kumar Taneja), PW30 (Sh. S.P. Chatwal), PW34 (Ms. Poonam Vasudeva), PW35 (Sh. P. Raman), PW36 (Sh. Umed Singh), PW42 (Sh. K.S. Gandilok), PW48 (Ms. Indu Arora), PW49 (Sh. Suresh Chand Jangla) and PW50 (Sh. Sharad Aggarwal), it has been demonstrated by the prosecution that application forms Ex. PW19/A, Ex. 20/A, Ex. PW21/A, Ex. PW22/A, Ex. PW25/A, Ex. PW26/A, Ex. PW39/A, Ex. PW34/A, Ex. PW35/B, Ex. PW36/A, Ex. PW42/A, Mark A/PW48, Mark A/PW49 and Mark A/PW50 are false documents as they have not been given by the purported applicants. However, there is no iota of evidence vide which prosecution has been able to establish that the application forms have been forged by accused Ashutosh Pant, only, as from the questionnaire Ex. PW56/A, it is observed that no examination of the handwriting on the application forms was sought and PW56 (Sh. S. Saha) has also during his testimony not proved the same to have been written by either accused Ashutosh Pant or accused Munnalal Sharma. Therefore, there isn't material on record to conclusively opine that accused Ashutosh Pant and accused Munna Lal Sharma, only have prepared the false application forms in furtherance of their conspiracy. An objection has been taken qua mode of proof of some of the applications namely Ex. PW19/A, Ex. PW20/A, Ex. PW21/A, Ex. PW22/A, Ex. PW25/A, Ex. PW26/A, Ex. PW36/A and Ex. PW42/A. The aforesaid applications forms part of report Ex. PW25/D submitted by accused Faiz Mohd. who also as the Inspecting Officer claimed that he had checked the Society records (as mentioned in Ex. PW52/A) and found them to be in the custody of Sh. Vishnu Rai. However, it has been CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 110 of 185 the case of the prosecution that during investigation the original records were not recovered and accused Ashutosh Pant only, had impersonated as Vishnu Rai, the non production of original application forms has been sought to be explained by the prosecution. Even otherwise, the documents have been marked for identification and it has sufficiently been established that they have not been given by the mentioned applicants. Hence, the objection stands overruled.
(c) Subscription receipts [(in file Ex. PW55/I (colly) (D-14), (Vol-
III)] 21.3 The other set of documents which are claimed by the prosecution to be false are the subscription receipts contained in file [(Ex. PW55/I (colly), (D-14), (Vol-III)]. Once again testimonies of PW19 (Sh. G.K. Gupta), PW20 (Sh V.S. Chopra), PW21 (Sh. Hari Singh), PW22 (Sh. N.P. Upadhyay), PW25 (Sh. Umesh Aggarwal), PW26 (Sh. Virender Kumar Taneja), PW36 (Sh. Umed Singh) and PW42 (Sh. K.S. Gandilok) are not controverted to the effect that copies of subscription receipts Ex.PW19/B, Ex. PW20/B, Ex. PW21/B, Ex. PW22/C and Ex. PW42/B respectively, have not been issued to them and no payments have been made by them against the receipts. Therefore, the factum that the receipts are false documents has been established. The genuineness of the receipts is also assailed in view of the fact that all the aforementioned witnesses have not been traversed on their testimonies that they have never applied to become a member of Delhi Census CGHS and therefore, the occasion for them to have paid CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 111 of 185 the subscription fees would not have arisen against which the subscription receipts have purportedly been issued.
21.4 Fabrication of the subscription receipts has been attributed to accused Ashutosh Pant in conspiracy with accused Munna Lal Sharma in furtherance of a larger conspiracy with other accused persons to revive Delhi Census CGHS based upon the false documents. Therefore, the next onus which the prosecution is required to discharge is that the subscription receipts have been made by accused Ashutosh Pant and accused Munna Lal Sharma. However, from the questionnaire Ex. PW56/A, it is observed that no examination of the handwriting on the subscription receipts was sought and PW56 (Sh. S. Saha) has also during his testimony not proved the same to have been written by either accused Ashutosh Pant or accused Munna Lal Sharma. Therefore, there isn't material on record to conclusively opine that accused Ashutosh Pant and accused Munna Lal Sharma, only have prepared the false subscription receipts in furtherance of their conspiracy.
(d) Affidavits of purported member making declarations of being eligible to become a member of Delhi Census CGHS [(Ex. PW55/H(colly), (D-13), (Vol-II)] 21.5 To prove that the declaratory affidavits contained in file [(Ex. PW55/H(colly), (D-13), (Vol-II)], are false documents, the evidence led can be categorized as under :
(a) Evidence of witnesses who have deposed that the either they or their family members have not affirmed the affidavits. PW1 (Sh. Amar CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 112 of 185 Singh), PW2 (Sh. Sansar Chand Sharma), PW3 (Sh. Mangat Ram), PW6 (Sh. Ajay Jain) to PW30 (Sh. S.P. Chatwal), PW34 (Ms. Poonam Vasudeva) to PW36 (Sh. Umed Singh), PW42 (Sh. K.S. Gandilok), PW44 (Sh. E.S.N. Moorthy) to PW50 (Sh. Sharad Aggarwal) and PW54 (Sh. Ved Sabharwal) have testified that affidavits Mark X, Mark X/1, MarkX2, Ex. PW6/B, Ex. PW7/A, Ex. PW8/A, Ex. PW9/A, Ex.
PW10/A, Ex. PW11/A, Ex. PW12/A, Ex. PW13/A, Ex. PW14/A, Ex. PW15/A, Ex. PW16/A, Ex. PW17/A, Ex. PW18/A, Ex. PW19/G, Ex. PW20/C, Ex. PW21/C, Ex. PW22/B, Ex. PW23/A, Ex. PW24/A, Ex. PW25/B, Ex. PW26/B, Ex. PW27/A, Ex. PW28/A, Ex. PW29/A, Ex. PW34/B, Ex. PW35/A, Ex. PW36/B, Ex. PW41/A-54A, Ex. PW44/A, Ex. PW45/A, Ex. PW46/A, Ex. PW41/A8, Ex. PW41/A-66, Ex. PW41/A-14, Ex. PW50/1 and Ex. PW41/A50, respectively are therefore, false documents.
(b) PW 41 Sh. Awanish Kumar (sub-vendor of stamp papers working with Sh. P.R. Bhatia, vendor of stamps), has deposed that the affidavits (Ex. PW41/A1 to Ex. PW41/A85, Ex. PW36/B, Ex. PW6/B, Ex. PW7/A, Ex. PW8/A, Ex. PW9/A, Ex. PW10/A, Ex. PW11/A, Ex PW24/A, Ex. PW13/A, Ex. PW12/A, Ex. PW13/B, Ex. PW14/A, Ex PW17/A, Ex. PW19/G, Ex. PW23/A and Mark X2) are on stamp papers purchased in bulk by one person whose name the witness could not recall. (The prosecution has also examined PW38 Sh. Ashok Kumar to prove that the aforesaid affidavits had been issued to stamp vendor Sh. PR Bhatia however, as already recorded above, the non judicial stamp sale register remained untraceable during trial and the witness was offered for cross examination on 18.05.2022 but despite opportunity he CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 113 of 185 was not cross examined. However, as also none of the accused persons have cross examined PW41 Sh. Awanish Kumar that the stamp papers had been sold by PW 41 Sh. Awanish Kumar, as sub-vendor of Sh. PR Bhatia, to one person in bulk in the considered view of this Court, the non production of non judicial stamp sale register would not be fatal to the case of the prosecution so far as the issue of non-judicial stamp papers to the purported deponents is concerned.)
(c) Handwriting expert's report Ex. PW56/B and opinion Ex. PW56/D being incriminatory for forgery of the affidavits [(in file Ex. PW55/H (colly), (D-13, Vol-II)] qua accused Ashutosh Pant who has allegedly forged them in pursuance of the larger conspiracy with the remaining accused persons.
21.6 The prosecution has heavily relied upon handwriting expert's report Ex. PW56/B and reasons Ex. PW56/D to prove that the declaratory affidavits have been forged and created by accused Ashutosh Pant, only. However, Ld. Counsel for accused Ashutosh Pant has assailed the report with opinions as already mentioned in paragraph no. 12 to 12.3. The objections raised by Ld. Counsel for accused Ashutosh Pant are now being discussed as under :
(a) Firstly, that sample specimen writings and signatures are not admitted and have not been proved to have been taken from accused Ashutosh Pant lest voluntarily.
21.6.1 Section 45 of the Evidence Act, provides as under :
CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 114 of 185 " 45. Opinions of experts.--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 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
Thus, when the opinion of a handwriting expert whether A has written a document, is relied upon, it is also a relevant fact that the document from which the comparison of the disputed writing has been made is either proved or admitted to have been written by A. 21.6.2 In State of Rajasthan Vs. Dr. J.P. Sharma (Supra), it has been held as under :
"17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not....."
emphasis supplied 21.6.3 The material witnesses to establish that the specimen CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 115 of 185 writings and signatures S-1 to S-1535 of accused Ashutosh Pant had been taken voluntarily are PW55 (S.C. Bhalla), PW58 (Sh. Dhanesh Kumar Kakkar) and PW59 (Sh. Chob Singh). Ld. Counsel for accused Ashutosh Pant has laid emphasis on inability of PW58 (Sh. Dhanesh Kumar Kakkar) to explicate how specimen writings were taken, his failure to check the identity of accused Ashutosh Pant, omission to sign S-1090 to S-1459 both by him and the Investigating Officer and to have signed the remaining specimen writings / signatures purportedly taken in his presence on 12.07.2006 whereas, the template on which specimens were taken mention the date as 11.07.2006 as grounds to discard his testimony. Similarly, from cross examination of PW59 (Sh. Chob Singh), it has been sought to be demonstrated that he may not have been a witness to the specimen writings and signatures purportedly taken from accused Ashutosh Pant as he did not truthfully depose on the identity of accused Ashutosh Pant having been verified by him, inability to clarify whether the specimen writings and signatures were taken on plain paper or typed template, of how they were taken and also his failure to identify the signature of the investigating officer on sheets S-91 to S-597 and S-797 to S-855. Also, Ld. Counsel for the accused raised doubts on the witness being present when the purported specimen writings and signatures were taken as S-751 to S-755 shown to have been taken on 11.07.2006 have been signed by the witness on 13.07.2006 and S-839 to S-841 shown to be dated 12.07.2006 have been signed on 13.07.2006. As already mentioned above, the Investigating Officer has not appended his signatures on the specimen / writings.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 116 of 185 21.6.4 So far as, specimen writings and signatures S-91 to S-597 and S-797 to S-855 taken in presence of PW59 (Sh. Chob Singh) are concerned, it is observed from records that S91 to S-597 signed by PW59 (Sh. Chob Singh) on 13.07.2006 have been obtained on even date (as mentioned after correction on the template above) and S-797 to S-838, S-842 to S-855 signed on 13.07.2006 have been obtained as per template on 11.07.2006, S 839 to S841 signed by the witness on 13.07.2006 has been obtained on 12.07.2006. Even though he stated that he had attended the office of CBI twice for the aforesaid purpose and with surety stated on 13.07.2006, it has not been cleared whether his other visit was on 11.07.2006 or 12.07.2006. It can also be seen from records that S-1 to S-89/1, S-599 to S-750 and S-856 to S-1459 are all purportedly taken on 11.07.2006 but PW58 (Sh. Dhanesh Kumar Kakkar) had signed them on 12.07.2006. The witness maintained during his cross examination that he had visited the CBI Office only on 12.07.2006. These discrepancies assume importance because PW-55 (Inspector S.C.Bhalla) also stated as under during his cross examination:
"XXXXX A-8 Ashutosh Pant ....
...The specimen handwriting and signatures of Ashutosh Pant were taken once as per normal practice. I do not remember if any admitted signatures / handwriting of Ashutosh Pant were procured... ...
"There is overwriting on the date on S-91 to S-348/1, S-352 to S-363, 3-367 to S-404, S-505 to S-595 and S-1466 to S-1505. I do not remember who made the overwriting. (Vol. The date was mentioned on the printed specimen sheets and the overwriting of the date had occurred as the actual date was mentioned after overwriting when the witness and the person whose specimen handwriting / signatures were taken appeared). It is correct that S-984, S-1090 to S-1458 do not bear my signatures. (Vol. It might have left inadvertently). It is correct that S-1460 to S-1465 do not bear my signatures and of the witness and CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 117 of 185 further that it do not bear any date. It is correct that S-1506 to S-1535 do not bear my signatures and of the witness. (Vol. Some sheets contained signatures of Ashutosh Pant)."
Thus, material contradiction has been elicited from the examination of independent witnesses which raise doubt regarding their presence when the specimen writings and signatures had been taken. Hence, through them, it also could not be established beyond reasonable doubts that the specimen writings and signatures were given voluntarily. Therefore, the Court is constrained to observe that the specimen writings and signatures have been taken callously and on behalf of accused Ashutosh Pant reasonable doubts have been raised as regards the identity of the specimen writings and signatures being his, only.
(b) Secondly, reliability of handwriting expert's report Ex. PW56/B
22. It is no longer res integra that report of a handwriting expert is admissible provided it is also shown " that he has made 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. Also, an expert is not a witness of fact. His evidence is really of an advisory character." It is also his duty to provide the Court with the necessary scientific material for testing the accuracy of his conclusion and enabling the Court to form an independent opinion. His credibility is dependent upon the reasons given to support his conclusions and the data and material furnished which form the basis of his conclusions. Reliance is placed upon Malay Kumar Ganguly Vs. Sukumar Mukherjee (supra), State of H.P. Vs. Jailal and ors (Supra), Ramesh CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 118 of 185 Chandra Agrawal V. Regency Hospital Limited78.
22.1 In Fakhruddin Vs. State of Madhya Pradesh (Supra), qua proof of identity of handwriting, it has been observed as under :
"10. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Section 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.
11. Both Under Section 45 and Section 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 ones, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings 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 78 Air 2010 Supreme Court 806 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 119 of 185 observation that it is safe to accept the opinion whether of the expert or other witness."
emphasis supplied.
22.2 In Ram Naraian Vs. State of Uttar Pradesh (supra) , the Apex Court held as under:
"6. In our view, the legal position enunciated in Fakhruddin (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein.
Now it is no doubt true that the opinion of a hand-writing 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 mere ground that comparison hand-writing is generally considered as hazardous and inclusive and that the opinion of the hand-writing expert has to be received with considerable caution. ..."
22.3 Also, in Murari Lal Vs. State of Madhya Pradesh (supra) which has been relied upon by the Ld. Public Prosecutor for the State (through CBI) as well as Ld. Counsel for accused Ashutosh Pant, it has been opined as under :
""11. We are firmly of the opinion that 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. 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 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 120 of 185 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."
22.4 However, while acting on the report of a handwriting expert, the caution to be exercised has been clearly explained in Devi Prasad Vs. State (supra) as under :
"26. ... Indeed, 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 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 au 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 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 121 of 185 be believed or not."
27. 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 focussed 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."
28. An objection put forward to the opinion of the expert in this case is that he has admitted that there are deliberate attempts at disguise in a number of writings. The existence of disguise certainly makes the task of the expert and of the court more difficult. The obstacles placed by it are, however, not insurmountable. Certain rules have been formulated and discussed by Dr. Harrison, the Director of the Home Office Forensic Science Laboratory in Britain in his book on "Suspect Documents" (1958), as guides for piercing the disguise. These are as follows:
1. "Most Disguise is Relatively Simple in Nature.
2. "Disguised Handwriting Exhibits less Fluency and Poorer Rythm than the Normal Hand.
3. "Any Change in Slope Introduced as Disguised is Rarely Constant.'
4. "Disguised Handwriting often Contains Altered Letters"
5. 'The Internal Consistency of Handwriting is Disturbed by the Introduction of Disguise."
6. "Originality in Disguise is Rare."
7. 'Disguise is Rarely Consistent."
8. 'Certain Features are Rarely Disguised." 29 Another objection put forward against Mr. Gregory as an expert witness in this case was that he had been acting as a consulting expert of the C. I. D. of Uttar Pradesh. It was, therefore argued that he could not be impartial in his opinions but must be presumed to be interested in making the prosecution case successful. It has also been suggested that experts are bound to give opinions in favour of parties consulting them. The duty and interest of an expert, if he CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 122 of 185 wants his individual opinion to carry some weight and enjoy a good reputation is to be scrupulous and impartial. If the expert has some professional pride or even regard for his own self interest, he will not, for the sake of some small immediate advantage, jeopardise the value of his opinion and degrade the status of his profession by making his knowledge and skill serve as tools of dishonest parties. An expert who gives dishonest opinions is quite certain to be exposed by ruthless cross-examination and to be soon found out by astute courts which do not and should not readily accent expert opinions without rigorously testing what an expert has to say. I do not think that a presumption is a legitimate weapon for demolishing the testimony of an expert with such a back-ground and standing as those revealed by Mr. Gregory. His opinions could certainly be demolished by superior reasons to support contrary conclusions or by convincing proof that they are not honest.
30. 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. 31 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.
32. The 4th and 5th classes of evidence mentioned above--the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 123 of 185 witnesses who proved the handwritings and the document upon which the writings exist--will be considered by me in relation to each accused appellant as no general question relating to all the evidence of either of these two types, not covered by other questions already discussed, has been raised in this case except one involving an interpretation of the explanation to Section 47 Indian Evidence Act. It was argued that fee witnesses who had not seen the accused persons writing so much or in such a way as to become familiar with their writings could not be said to be really acquainted with me handwritings of the accused. In my opinion, the degree to which a person is acquainted with the handwriting of another is really a question of fact which can only affect the value of his evidence."
Emphasis supplied 22.5 Also, in Padum Kumar Vs. State of UP (supra) it has been held as under:
"16. It is fairly well settled that before acting upon the opinion of the hand-writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. In Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, the Supreme Court held as under:
4....True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the quality of credibility or incredibility being one which an expert shares with all other witnesses - but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable Rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial 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 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 124 of 185 decides. His duty "is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence)."
5. .......
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled"
"in questions as to identity of handwriting" is expressly made a relevant fact......... So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
23. In the light of the above enunciations, the Court shall now proceed to appreciate the opinion / report Ex. PW55/C of the handwriting expert examined as PW56 (Sh. S. Saha).
24. At the outset, opinion expressed in paragraph no. 3 to 16 of Ex. PW56/C qua signatures Q-34 of Sh. P. Kaul, Q-42 of Sh. Somnath, Q-52 of Sh. R.C. Sood (on affidavit Ex. PW15/A), Q-54 of Sh. Hari Singh Sharma (on affidavit Ex. PW21/C), Q-62 of Sh. Amar Singh (on Mark X), Q-74 of Sh. Jalaur Singh, Q-76 of Sh. Manohar Lal Malik, Q-86 of Sh. Madan Lal Thakur (on affidavit Ex. PW16/A), Q-140 of Sh. R.K. Manchanda (on affidavit Ex. PW8/A), Q-170 of Ms. Leena Baijal (on affidavit Ex. PW17/A), Q-182 of Sh. K.D. Joshi (on affidavit Ex. PW41-A/A46), Q-192 of Smt. Ved Sabharwal (Ex. PW41/A50), Q-196 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 125 of 185 of Sh. Kashmiri Lal (on affidavit Ex. PW41/A52) and Q 244 of Sh. Rajender Kumar Sharma on affidavit Ex. PW9/A is excluded from consideration as no admitted specimen beyond S-1535 have been adduced in evidence for the Court to appreciate the grounds on which the opinion has been given upon the aforementioned questioned signatures. However, what is relevant for the prosecution is the opinion expressed in paragraph no. 2 of the report Ex. PW56/C which is as under :
"The person who wrote the blue enclosed writings stamped and marked S1 to S49, S49/1, S50, S50/1, S51, S51/1 , S52, S52/1, S53, S53/1, S54, S54/1, S55 to S85, S85/1, S86, S86/1, S87, S87/1, S88, S88/1, S89, S89/1, S90 to S379, S379/1, S380 to S626, S626/1, S627 to S708, S708/1, S709 to S863, S863/1, S864 to S1049, S1049/1, 1050 to S118, S118/1, S1119 to S1211, S1211/1, S1212 to S1535 also wrote the red enclosed writings similarly stamped and marked Q1 to Q15, Q17 to Q21, Q23, Q28, Q30, Q32, Q34, Q36, Q38, Q40, Q42, Q48, Q50, Q52, Q54, Q58, Q60, Q62, Q66, Q68, Q76, Q78, Q80, Q84, Q86, Q88, Q90, Q92, Q94, Q96, Q100, Q102, Q104, Q106, Q114, Q116 to Q135, Q137 to Q141, Q143 to Q145, Q150, Q152, Q154, Q156, Q158, Q160, Q162, Q164, Q166, Q168, Q170, Q172, Q174, Q178, Q182, Q184, Q188, Q190, Q192, Q194, Q196, Q198, Q200, Q202, Q212, Q214, Q216, Q218, Q220, Q244, Q248, Q250, Q252, Q254, Q258, Q260, Q262, Q264, Q266, Q268, Q270, Q272, Q274, Q280, Q282, Q284, Q286, Q288, Q296 as well as the writings whose photostatic reproduction have bee marked Q324A, Q325 to Q336, Q338, Q339 and Q340 (subject to the condition that they are the true reproduction of their respective originals)."
24.1 In the considered view of this Court, the opinion given in paragraph no.2 of the report Ex. PW56/C and reasons Ex. PW56/D are not convincing due to following reasons :
(a) The identity of the admitted specimen writings and signatures has not been established as that of accused Ashutosh Pant for reasons already discussed in paragraph no. 20.6.5.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 126 of 185
(b) The questioned writings on the declaratory affidavits are from Q-1 to Q-309. The reasons upon which the opinion is premised is "cumulative consideration of various similarities in the writings habit occurring in them." Thereafter, minute similarities and inconspicuous details information of the letters have been lifted from words like "the , that, this, therefore, of, following, society, hereby, Bye-laws, day, only, office, president, authorized, declaration, etc., which are not appearing in affidavits and probably have been lifted from Q-310 and beyond which are not on record for the perusal of this Court and reasonable doubts on their examination has been demonstrated by Ld. Counsel for the the defence through the following cross examination :
"As per letter sent by CBI to our Lab Ex. PW56/A the questioned documents sent to us as mentioned in annexure A are from Q-1 to Q324, Q-324-A and Q-340 and the specimen sent to us as mentioned in annexure B were from S-1 to S-1593 It is correct that in the case abstract of my opinion Ex. PW56/B, I have mentioned that the documents received by lab under the heading details of exhibits are from Q-1 to Q-340 and Q-322A, Q-324A and Q-324/1 as per forwarding letter.
It is correct that Q-325 to Q-329 and Q-322A, Q-323A and Q-324/1 are not mentioned in annexure A of Ex. PW56/A. Vol. These are mentioned in the query sheet of the said forwarding letter.
The specimen as mentioned in the case abstract under the heading details of exhibits of standard documents are from S-1 to S-1593, S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 as per forwarding letter.
It is correct that S-49/1 to S-54/1, S-85/1 to S-89/1, S-379/1, S-626/1, S-708/1, S-863/1, S-1049/1, S-1118/1 and S-1211/1 are not mentioned in annexure B of Ex. PW56/A. Vol. These are the sub marking which were supplied alongwith the original standard documents and the same were marked by me with the said numbers at the time of examination of the original documents.
It is correct that vide forwarding letter dated 25.09.2006 the lab had returned the original documents to the forwarding authority CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 127 of 185 through special messenger. The forwarding letter is Ex. PW56/DX1. The writings on this letter are in the handwriting of Mr. N.L. Paite and then Assistant Central Grade-1 officer working in our office and I have identified his handwriting and signature in the said letter as he has worked with me and I am well acquainted with his handwriting and signature.
The documents which have been returned back by the lab to the forwarding authority has been mentioned at point A to A in encircled in red on Ex. 56/DX1.
...
It is correct that the reasons given by me in sub para 10 of para 2 of my reasons Ex. PW56/D is related to fixing authorship of certain signatures of the concerned persons. It is correct that in these reasons I have not mentioned the alphabets of the words/signatures examined by me. Vol. However, this particular para reflects the overall execution, formation of different letters and their commencement including combinations alongwith underscoring and other features related to the concerned persons. It is correct that I have not mentioned the word "other features" and "overall" in the above para.
...
Witness has been shown S-91 to S-348, S-352 to S-363, S-367 to S-378, S-379 to S-380, S-381 to S-404, S-505 to 597. Q. In these specimen writing sheets there is a cutting of the date at the top of the sheet. Were these cutting their at the time when you examined these specimen signatures.
A. I do not remember.
It is correct that the reasons mentioned by me from sub para 1 to sub para 9 of para 2 of Ex.56/D pertains to writing.
It is wrong to suggest that the words selected in sub para 1 to sub para 8 of para 2 of Ex.56/D are nowhere there in Q-1 to Q-309. ..."
(c) The witness has acknowledged that he did not ascertain the generation of the photocopy of mark Q 324 A, Q 325 to Q 336 to Q 340 (though not available on record for appreciation by this Court) and that there are limitations in examination of handwritings on the basis of photocopies as he admitted during his cross examination as under :
"...
It is correct that I did not ascertain the generation of the photocopy and I have examined a zerox copy. Sometimes it is true that in the case of a photocopy, line quality determination is difficult. It is correct that CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 128 of 185 the features like pen stroke, pen lifts, re touching, tremors, hesitation etc., are difficult to determine in case of a photocopy. ..."
(d) The expert has given a general overview and admitted that he has not mentioned that he has compared a particular writing with a particular questioned specimen when he also admitted the following :
"It is correct that I have not mentioned that the particular questioned writing was matched with particular questioned specimen writing. Vol. I have examined overall features.
...
It is correct that in the general writing characteristics like movement, alignment, speed, spacing, relative size and proportion of letters, I have not given any details of these characteristics in my reasons. Vol. Although I have not mentioned the above characteristics specifically word wise or letter wise but the same has been mentioned in my reasons as on overall features related to the examination of the handwriting which was mentioned already in the above question."
(e) There is contradiction evident from questionnaire Ex. PW56/A, report Ex. PW56/C and letter Ex. PW56/D1 as to what data and material were supplied by the investigating agency and examined by the handwriting expert.
(f) The prosecution also could not prove that it was accused Ashutosh Pant only who had impersonated as Vishnu Rai and that accused Ashutosh Pant had also forged the aforementioned documents.
24.2 Thus, this Court is compelled to be circumspect on accepting the report of the handwriting expert Ex. PW55/C without corroboration. It has not been established that the opinion of the handwriting expert in the present case is infallible. Hence, it has also not been conclusively proved that accused Ashutosh Pant had forged the declaratory affidavits, either.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 129 of 185
(e) Minutes of Meeting dated 16.08.1972, 21.09.1972, 09.11.1972, 10.01.1973, 15.03.1973, 21.05.1973 and 16.08.1977.
25. As regards aforementioned minutes of meeting from 16.08.1972 to 16.08.1977, it is observed from record that all have been conducted under the Presidentship of Sh. K.L. Soni. However, the falsity of the minutes of meeting is established by the testimony of PW-36 (Sh. Umed Singh) who clearly stated that Sh. K.L. Soni was the original member of United India Insurance CGHS. It has also been deposed by the witness that he himself had never participated in the meetings dated 16.08.1972 (Mark PW36/X2), 17.07.1977 (Ex. PW36/C)(objected to on mode of proof), 05.10.2003 (Ex. PW36/D)(objected to on mode of proof) and 04.04.2004 (Ex. PW34/C)(objected to on mode of proof). (However, the documents though objected on mode of proof being photocopies, the prosecution has explained the reason for reliance on photocopies. Also their relevance so far as evidencing the presence or not of PW36 (Sh.Umed Singh) is explained. They are also the documents once again taken on record during inspection by accused Faiz Mohd. therefore, the objection is overrulled). Even PW34 (Ms. Poonam Vasudeva) has deposed that she never participated in meeting dated 04.04.2004 even though she was shown as one of the participant at sl. no. 14. It has also been demonstrated from the testimony of PW1 (Sh. Amar Singh), PW2 (Sh. Sansar Chand Sharma), PW3 (Mangat Ram), PW7 (Sh. Chandermani Pathak), PW8 (Sh. R.K. Manchanda), PW9 (Sh. Rajinder Kumar Sharma), PW10 (Sh. R.P. Malhotra), PW14 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 130 of 185 (Sh. Girish Chander Chopra), PW12 (Sh. Deepak Bahl), PW13 (Sh. Prem Puri), PW-14 (Sh. Lal Chand), PW15 (Sh. R.C. Sood), PW16 (Sh. Madan Lal Thakur), PW17 (Ms. Leena Baijal), PW18 (Sh. R.D. Joshi), PW19 (Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW21 (Sh. Hari Singh), PW22 (Sh. N.P. Upadhyay), PW23 (Sh. Ashok Kumar Tandon), PW24 (Sh. B.K. Gupta), PW25 (Sh. Umesh Aggarwal s/o Late Sh. Jai Narayan Aggarwal), PW26 (Sh. Virender Kumar Taneja), PW27 (Sh. Anand grandson of Late Krishan Lal), PW29 (Sh. Ashok Bhasin husband of Late Anita Bhasin), PW34 (Ms. Poonam Vasudev), PW35 (Sh. P. Raman), PW36 (Sh. Ummed Singh), PW42 (Sh. K.S. Gandilok), PW44 (Sh. E.S.N. Moorthy), PW45 (Sh. Shiv Singh Rawat), PW47 (Sh. Chandan Singh on behalf of his father Late Pan Singh), PW49 (Sh. Suresh Chand Jangla), PW50 (Sh. Sharad Aggarwal on behalf of his father Sh. D.C. Aggarwal) and PW54 (Sh. Ved Sabharwal) that though they were shown to have been introduced as the member of Delhi Census CGHS through the aforesaid minutes of meetings, they denied to have ever acquired the membership of Delhi Census CGHS. Thus, it has been proved that the minutes of meetings are fabricated.
25.1 Be that as it may, there is no iota of evidence through which the prosecution has been able to establish that the minutes of meeting are in the handwriting of accused Ashutosh Pant, only. As already discussed above, the handwriting expert's report (Ex. PW56/B) is not convincing to be acted upon.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 131 of 185
(f) Consolidated list of members of Delhi Census CGHS (Ex.
PW19/F)
26. So far as the consolidated lists of 150 members are concerned, there are lists which the prosecution has relied upon as under :
(a) Ex. PW19/C photocopy of affidavit dated 16.02.2004 filed by Vishnu Rai affirming 135 members who had joined Delhi Census CGHS on 16.08.1972, 21.09.1972, 09.11.1972, 28.11.1972, 10.01.1973, 15.03.1973, 21.05.29173 and 16.08.1977, respectively. (The same was objected to on mode of proof. However, considering that it forms part of admitted Inspection Report Ex. PW25/A and Ex. PW25/D wherein the accused Faiz Mohd. claimed to have checked the original records which the prosecution has explained could not be seized during investigation, reliance on secondary evidence is explained. 79 Therefore, the objection is overruled.
(b) Ex. PW19/D which is photocopy of list of members with addresses to whom UPCs had been sent.
(c) Ex PW19/E(Colly) photocopy of proforma for submission of list of members for verification
(d) Ex. PW19/F consolidated list of members enrolled (forming part of report (Ex. PW25/D) given by accused Faiz Mohd. ( Objected to on mode of proof as the witnesses had no role in preparation of the same. However, it is a list which forms part of report Ex. PW25/D 79 During cross-examination dated 16.11.2022 conducted on behalf of accused Ashutosh Pant PW-55 (IO/S.C. Bhalla) stated "I do not remember now if I had seized original membership register, proceeding register, AGM and election register, books of accounts, applications for membership and applications for resignations, bank statements of the society but whatever documents I had seized have been filed along with the charge-sheet..."
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 132 of 185 prepared by accused Faiz Mohd. on inspection and verification of records. Therefore, the objection is overruled.)
(e) Ex. PW23/B photocopy of list of members of Delhi Census CGHS for verification
(f) Ex. PW23/C list of members of Delhi Census CGHS as on 31.03.2003
(f) Ex. PW23/D photocopy of list of members as on 30.06.1978.
26.1 It has been the case of the prosecution that the list of members are fabricated and fake members had been introduced by obtaining details of members of United India Insurance CGHS having office at Mayur Vihar Phase I, Delhi - 91. Such a list of members of United India CGHS has been proved as Ex. PW37/A by Sh. I.P.S. Sodhi who was examined as PW-37. During his testimony he stated as under:
"I have seen one list of members of United India CGHS running into 9 pages. I had handed over the said list of members to the CBI. I identify my signature at Point A as a President of United India CGHS on all the nine pages of the said list. The said list is now collectively exhibited as Ex. PW37/A. Neither I nor any of the members of United India Insurance CGHS were member in Delhi Censes CGHS.
I have gone through the list of members of Delhi Census CGHS placed in file D-12 Volume I from pages 141/C (including 142/C) to 139/C. I stated that most of the members shown in this list are members in United India CGHS. The name of the persons who are member in United India CGHS are appearing in this list at serial no. 89, 90, 91, 93, 94, 95, 96, 97, 99, 100, 101, 103, 104, 107, 108, 110, 116 on page 141/C and further names are appearing at page no. 142 at serial no. 60, 63, 64, 66, 67, 69, 70, 71, 72, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87 and further names are appearing at page no. 143/C at serial no. 30, 34, 36, 38, 39, 40, 42, 51, 52, 53, 55, 56 and further names are appearing at page no. 144/C at serial CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 133 of 185 no. 1, 2, 3, 7, 8, 11, 13, 15, 17, 18, 19, 21, 22, 23, 26, 28, 29 and further names are appearing at page no. 140/C at serial no. 125, 126, 127, 128, 129, 130, 132, 135, 136, 137, 138, 139, 140, 142, 143, 144 and further names are appearing at page no. 139/C at serial no. 146, 147, 149. I state that almost all the member were shown as a member of Delhi Census CGHS were employees of United India Insurance Company and were members in United India CGHS. However, they have been shown as a member of Delhi Sensus CGHS. They were never members in Delhi Sensus CGHS."
He also confirmed that Late Samindernath Shah, Late Paulson Peter, Late SR. Handa and Late Sh. Kushal Singh who have been shown as members at Sl. no. 05, 128, 51 and 78, respectively had already expired on 26.12.1995, 28.03.1993, 16.06.1996 and 02.07.1997, respectively.
26.2 The testimony of PW37 (Sh. I.P.S. Sondhi) qua lifting of details of members of United India Insurance CGHS and being used for preparation of the list of 150 consolidated members of Delhi Census CGHS is further corroborated by the testimonies of PW1 (Sh Amar Singh), PW2 (Sh. Sansarchand Sharma), PW3 (Sh. Mangat Ram), PW7 (Sh. Chander Mani Pathak), PW8 (Sh. Raj Kumar Manchanda), PW9 (Sh. Rajinder Kumar Sharma), PW10 (Sh. R.P Malhotra), PW11 (Sh. Girish Chandra Chopra), PW12 (Sh. Deepak Bahl), PW13 (Smt. Prem Puri), PW14 (Sh. Lal Chand), PW15 (Sh. R.C. Sood), PW16 (Sh. Madan Lal Thakur), PW17 (Smt. Leena Baijal), PW18 (Sh. R.D. Joshi), PW19 (Sh. G.K. Gupta), PW20 (Sh. V.S. Chopra), PW 21 (Sh. Hari Singh), PW22 (Sh. N.P. Upadhyay), PW23 (Sh. Ashok Kumar Tandon), PW24 (Sh. Brij Kishore Gupta), PW25 (Sh. Umesh Aggarwal), PW26 (Sh. Virender Kumar Taneja), PW27 (Sh. Anand), PW28 (Sh. Tajinder CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 134 of 185 Pal), PW29 (Sh. Ashok Bhasin), PW33 (Sh. B.B. Vij), PW34 (Sh. Poonam Vasudeva), PW35 (Sh. P Raman), PW36 (Sh. Umed Singh), PW42 (Sh. K.S. Gandilok), PW44 (Sh. E.S.N. Moorthy), PW45 (Sh. Shiv Singh Rawat) PW46 (Sh. Vijay Aggarwal), PW48 (Ms. Indu Arora), PW49 (Sh. Suresh Chand Jangla), PW50 (Sh. Sharad Aggarwal) and PW54 (Sh. Ved Sabharwal).
26.3 Thus, so far as, the consolidated list of members of Delhi Census CGHS is concerned, it has been established beyond reasonable doubts that the members shown are fake.
26.4 However, the onus of the prosecution further extended to prove that the creation of the fake list of members was attributable accused Ashutosh Pant in conspiracy with accused Munna Lal Sharma. The lists are electronically generated and there is no evidence led that accused Ashutosh Pant had in conspiracy with accused Munna Lal Sharma used particular computer system and printer to generate the lists. Also, some light could have been thrown upon creation of the lists by also proving that the accused Ashutosh Pant only in his own handwriting had also fabricated minutes of meeting dated 16.08.1972, 21.09.1972, 09.11.1972, 10.01.1973, 15.03.1973, 21.05.1973 and 16.08.1977 through which the fake members are shown to have been introduced in Delhi Census CGHS as from the testimony of PW36 (Sh. Ummed Singh) it has also been established Sh. K.L. Soni shown to have presided over the meetings of managing committee of Delhi Census CGHS was never a member of Delhi Census CGHS but was a member CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 135 of 185 of United India Insurance CGHS. Except for inconsequential improvements in the testimony of the witness, nothing credible has been elicited to disbelieve him qua the minutes of meeting being fabricated. However, evidence beyond reasonable doubts has not been led for reasons already discussed above80 that the authorship of the minutes of meeting is that of accused Ashutosh Pant.
26.5 As a circumstance to show that accused Ashutosh Pant had been acting in conspiracy with accused Munna Lal Sharma, much emphasis has been laid by the prosecution upon a handwritten letter Ex. PW55/D (D-9) by accused Munna Lal Sharma to the Police Commissioner, CBI, ACB and marked to the Investigating Officer. However, as has been rightly argued by Ld. Counsel for accused persons, the letter has not been duly proved as the Investigating Officer was not competent to prove the same because it was not written in his presence. Hence, the document is not admissible in evidence. Further, the only other evidence, the prosecution is trying to latch upon to prove conspiracy between accused Ashutosh Pant and accused Munna Lal Sharma is the testimony of PW53 (Sh. Sanjeev Pathak) which merely demonstrates that he was the nephew of accused Munna Lal Sharma and had seen Ashutosh Pant at his office. However, considering that the witness denied having conducted the election of Delhi Census CGHS on 28.09.2003 and there is no analysis by a handwriting expert of his election report to connect him to it. There isn't sufficient material to conclude that there was a nexus between accused Ashutosh Pant and 80 paragraph nos. 24 and 24.1 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 136 of 185 accused Munna Lal Sharma.
26.6 This Court is constrained to observe that the investigating agency has adopted a subpar and unprofessional approach during investigation, so much so, that the resultant effect is that even though there could have been a strong suspicion of fabrication of records and impersonation by the accused persons, it has not been established before the Court.
27. The next issue in respect of the allegations of forgery which requires deliberation is the offence punishable under Section 471 IPC making it punishable, the fraudulent and dishonest use as genuine of any document or electronic record which the accused persons knew or had reason to believe to be forged.
27.1 Once, the prosecution failed to prove that accused Ashutosh Pant impersonated as Vishnu Rai, office bearer of Delhi Census CGHS; that he also forged the affidavits; that he in conspiracy with accused Munna Lal Sharma fabricated other documents of Delhi Census CGHS and that they are the private persons who moved the application for cancellation of winding up order dated 29.03.1979, the charge that they had used the forged documents as genuine with knowledge or reason to believe that the documents are forged, also falls flat. There is no iota of evidence before this Court to render a finding on the said charge. Consequently, even the charge of them conspiring with the public servants in fabrication of the documents and use thereof, cannot be CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 137 of 185 sustained. It is here that the Court is also of the view that since ingredients of offence punishable under IPC are not being proved, the technical objection raised by the accused persons who are public servants regarding absence of sanction for prosecution under Section 197(1) of Cr.P.C. qua them for conspiracy to commit offences punishable under IPC requires no deliberation. Even otherwise, qua accused P.K. Thirwani the issue attained finality in view of order dated 06.08.2009 which has not been challenged.
ALLEGATIONS OF COMMISSION OF OFFENCE BY PUBLIC SERVANTS UNDER SECTION 15 READWITH SECTION 13(2) READWITH SECTION 13(1)(D) OF P.C. ACT
28. The charge is premised upon the accusation that the accused public servants namely accused Narayan Diwakar as the then RCS, accused Sita Ram Goyal (since deceased) as the then Assistant Registrar (West), accused Faiz Mohd. as the then Head Clerk (North West Zone), accused R.B. Chauhan as the then Dealing Assistant, accused Deen Bandhu Prashad as the then Election Officer and accused P.K. Thirwani as the then Official Auditor with dishonest intention, committed misconduct and entered into a criminal conspiracy with co- accused persons Ashutosh Pant and Munna Lal Sharma (private individuals) to revive a defunct society (which had been ordered to be wound up vide order dated 23.03.1979), on the basis of forged and fabricated documents (namely forged application under Section 63(3) of DCS Act, 1972 [pages 1/C and 2/C of file Ex. PW55/G (colly) (D-12), Vol-I)], application forms [page no.1/C to page no. 136/C of file Ex.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 138 of 185 PW55/I(colly), (D-14), (Vol-III)], fabricated freeze list of members [page no.139/C to 144/C of file Ex. PW55/G(colly), (D-12), Vol-I)], forged affidavits of members [(page no. 145/C to page no. 150/C of file Ex. PW55/G(colly), (D-12), Vol-I)], forged subscription receipts [pages no. 137/C to page no. 203/C of file Ex. PW55/I (colly)(D-14), Vol-III)] and then forwarded the aforesaid fabricated freeze list of members to DDA to induce it to allot land to Delhi Census CGHS at a pre- determined rate.
29. Before adverting to the merits of the accusations, the Court deems it appropriate to deal with certain technical objections which have been taken by the Ld. Counsel for the accused persons who are public servants to urge that the trial against the accused persons for offences punishable under relevant sections of P.C. Act stands vitiated. The objections on technical ground can be identified as under :
(a) That since the offences under DCS Act, 1972 are not notified under Section 3 of The DSPE Act, the CBI was not empowered to investigate the matter.
(b) That as per Section 95 of DCS Act, 1972 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.
(c) That sanction for prosecution under Section 19 of P.C. Act is not valid.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 139 of 185 29.1 The Court now proposes to address the issues as under :
(a) Whether CBI was not empowered to investigate into the alleged offences ?
29.1.1 Ld. Counsel for accused Faiz Mohd. and R.B. Chauhan has emphasized that the CBI was not empowered to investigate offences already catered to under DCS Act, 1972 in view of Section 3 of DCS Act, 1972 read with Section 5 of IPC.
29.1.2 However, in the reasoned view of this Court, it cannot be lost sight of that what has been investigated are offences punishable under IPC and P.C. Act and not under DCS Act, 1972 for which the CBI had been duly empowered vide notification no. 228/8/89.AVD-II dated 07.09.1989.
29.1.3 Hence, the objection is without any merit.
(b) Is immunity under Section 95 of DCS Act, 1972 available to the accused?
29.1.4 In Narayan Diwakar Vs. CBI81 a similar question arose which was answered as under :
15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Co-
operative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising 81 ILR (2006) 1 Delhi 517 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 140 of 185 and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large remifications in the society."
emphasis supplied.
29.1.5 Reliance is also placed upon R.K. Srivastava Vs. CBI W.P. (Crl.) 11/2020, Crl.M.A. 54/2020 & Crl.M.A. 4107/2020 dated 24.03.2022.
29.1.6 Even otherwise, the onus was upon the defence to prove "good faith". However, there is no evidence adduced either affirmative or through cross-examination of prosecution witnesses that the public servants conducted themselves in "good faith". Therefore, the submission being devoid of merit deserves rejection.
(c) Whether sanction under Section 19 of P.C. Act is invalid?
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 141 of 185 29.1.7 Qua grant of sanction under Section 19 of P.C. Act, accused R.B Chauhan and accused Deen Bandhu Prashad have challenged the sanction order Ex.PW39/A and Ex. PW5/A, respectively for lack of competency of PW-39 (Sh. Anil Mehra) and PW-5 (Brig.(Retd). S.K. Choudhary) as they were not competent to remove the accused persons from service at the relevant time when the alleged offences occurred. In this regard, it is pertinent to recall that vide order dated 06.08.2009, the issue was left open to be decided after trial on an application dated 26.03.2009 which had been moved by accused R.B. Chauhan.
29.1.8 At the outset, what can be gathered from examination of PW39 (Sh. Anil Mehra) is that he claimed both competency as well as stated that he had applied his independent mind to the documents produced before him for grant of sanction for prosecution Ex. PW39/A. At that stage, he was not cross-examined by accused R.B. Chauhan. Subsequently, in his defence accused R.B. Chauhan sought production of file no. F3/709/05/DFW/Estt/Pt. through DW3 (Sh. Praveen Sharma). On the basis thereof, without affording opportunity to PW-39 to explain any short comings, the defence seeks to rely upon the same. However, that itself is not sufficient to dislodge the un-controverted testimony of PW39 (Sh. Anil Mehra).
29.1.9 Similarly, when PW5 Brig (Retd.) S.K. Choudhary appeared to prove sanction order Ex. PW5/A, his testimony on his competency and application of mind was not controverted. Yet, CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 142 of 185 subsequently, during defence evidence accused Deen Bandhu Prashad examined Sh. Praveen Sharma who merely produced file No. 5(10)/Vig./Ao/NCC/2014 which was never put for explanation to the sanctioning authority, for deficiencies, if any. Here, what can also be observed from File no. 7(A)/2/2006/D that as accused R.B. Chauhan and accused Deen Bandhu Prashad were non-gazetted officers , the file was sent to the HODs of the Family Welfare Department and NCC Department where they were posted. The onus was upon the accused persons to show that the HODs were not competent to remove them from service. There is a presumption under Section 114 Illustration (e), Indian Evidence Act, 1872 that official acts have been regularly performed and so, with no credible material, the regularity in marking the matter to the aforesaid HODs is not rebutted.
29.1.10 Additionally, the Court also seeks to place reliance upon State of Bihar and Ors. Vs. Rajmangal Ram82 wherein it has been held as under :
"5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is--whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of 82 (2014) 4 SCR 602 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 143 of 185 sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck.
emphasis supplied 29.1.11 Therefore, the argument that sanction orders Ex. PW5/A and Ex. PW39/A are invalid is rejected as it is apparent from the examination of the relevant witnesses that the accused persons did not discharge the onus to avail the benefits of the precedents, circulars and manuals relied upon by them.
29.1.12 The challenge to the sanction order (Ex. PW4/A) as per arguments led by accused P.K. Thirwani is for non-application of mind for non production of material upon which opinion of PW4 (Sh. Narayanawamy) was premised. However, once DW1 (Sh. Yatin Thapar) produced file number 7(A)/2/2006/DOV, the stand of the accused appears self-contradictory. Even otherwise, perusal of the aforesaid file demonstrates that sufficient material had been placed before the sanctioning authority to form an independent opinion.
29.1.13 The prosecution has through examination of PW4 (Sh. R. CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 144 of 185 Narayanaswami, then Worthy Chief Secretary, Govt of NCT of Delhi) proved sanction order Ex. PW4/A. During his cross-examination, nothing material was elicited to raise doubts either on his competency and on non-application of mind. The witness maintained that he was empowered to remove accused P.K.Thirwani from service as the Chief Secretary and thus, was competent to grant sanction for prosecution under Section 19 of P.C. Act. As regards non-application of mind, the witness has denied the same. What can be evaluated from file no. 7(A)/2/2006/DOV/part file produced by DW1 (Sh. Yatin Thapar) is that sufficient material to form an opinion whether prosecution should not be launched as it is frivolous, mischievous and unscrupulous.
30. Now proceedings on merits, at the outset, the Court deems it appropriate to observe that even though the charge framed may not specifically mention certain details and ingredients of offences under sub-clauses (i), (ii) and (iii) of Section 13(1)(d) of P.C. Act, it would not be material as no error or omission or irregularity occasioned substantial prejudice as the particulars of the actions have already been explained in the charge framed against the accused persons. Reliance is placed upon Runu Gosh Vs. CBI (Supra).
30.1 Criminal misconduct has been defined in Section 13 of P.C. Act stipulates as under:
"13. Criminal misconduct by a public servant :
1. A public servant is said to commit the offence of criminal misconduct -
...
...
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 145 of 185 ...
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or"
and is punishable under Section 13(2) of P.C. Act as under :
"13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine."
30.2 Also, Section 15 of P.C. Act provides as under :
"15. Punishment for attempt - whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 shall be punishable with imprisonment for a term [which shall not be less than two years but which may extend to five years]."
30.3 It is trite law that while trying offence under Section 13(1)
(d) read with Section 13(2) of P.C. Act, the Court does not punish a public servant for erroneous decision, but for corruption. The essential ingredients required to be proved for conviction under Section 13(1)(d) of P.C. Act has been crystallized as under in Neeraj Dutta Vs. State (Govt. of NCT of Delhi)83.
"5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant,namely, -
(i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his 83 Crl Appeal No. 1669 of 2009 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 146 of 185 position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.
iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).
vi) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.
vii) therefore, to make out an offence under this provision, there has to be actual obtainment.
viii) since the legislature has used two different expressions namely "obtains" or "accepts", the difference between these two must be noted.
6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5SCC 86 ("Subash Parbat Sonvane"), it was observed that mere acceptance of money without there being any other evidence would notbe sufficient for convicting the accused under Section 13(1)(d). In Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically used the word "accepts" or "obtains". As against this, there is departure in the language used in sub-section (1)(d) of Section 13 and it has omitted the word "accepts" and has emphasized on the word "obtains". In sub- clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the word"obtains". Therefore, there must be evidence on record that the accused"obtains" for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or that he obtained for any person any valuable thing or pecuniary advantage without any public interest.
It was further observed with reference to Ram Krishan vs. State of Delhi AIR 1956 SC 476 ("Ram Krishan"), that for the purpose of Section 13(1)(a) and (b) of the Act:
"It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour."
30.4 Thereafter, in para no. 8, the Apex Court has explained that expression "accept" means "to take" or "receive" with a consenting mind. Further, that consent can be proved by leading evidence of prior agreement and from circumstances surrounding the transaction itself CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 147 of 185 without proof of such agreement. So far as the term "obtain" is concerned, it has been explained to mean "secure" or "gain" (something) as a result of request or effort. On the case of obtainment, the initiative vests in the person who receives and in that context a demand or request from him will be primary requisite for an offence as it has been held as under:
"8. ..... According to this Court, "obtain" means to secure or gain (something) as a result of request or effort. In the case of obtainment, the initiative vests in the person who receives and, in that context, a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the 1947 Act unlike an offence under Section 161 of the Indian Penal Code (for short, 'IPC')., which, can be,established by proof of either "acceptance" or "obtainment".
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 148 of 185 case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and
(ii)respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant,would be an offence of obtainment under Section 13 (1)
(d)and (i) and (ii) of the Act.
e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
emphasis supplied CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 149 of 185 30.5 Very recently in the State of Karnataka Vs. Chandrasha84, the Supreme Court has yet again reiterated the dictum in Neeraj Dutta Vs. State (Govt of NCT of Delhi) (supra).
30.6 Also, in A. Subair Vs. State of Kerala 85 it has been held as under :
"8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
9. In the case of C.K. Damodaran Nair v. Government of India86, this Court had an occasion to consider the word "obtained" used in Section 5(1 )(d) of the Prevention of Corruption Act, 1947 (now Section 13(1)(d) of Act, 1988), and it was held:
"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2)of the Act is concerned. For such an offence prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) - and not under Section 5(1)
(c), (d) or (e) of the Act. "Obtain" means to B secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment"."
10. The legal position is no more res integra that primary requisite of an offence under Section 13(1 )(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or 84 2024 INSC 928 85 [2009] 9 S.C.R. 1058 86 (1997) 9 SCC 477 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 150 of 185 pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
Thus, proof of demand or request for valuable thing or pecuniary advantage emanating from a public servant is a material ingredient to be proved for Sec 13(1)(d)(i) and (ii) either by direct evidence or to be inferred from circumstantial evidence.
30.7 Further, so far as offence defined under Section 13(1)(d)(ii) of P.C. Act is concerned, it requires that the public servant "abused his position as a public servant" and obtained for himself or any other person, any valuable thing or pecuniary advantage. In Narayanan Nambiar Vs. State of Kerala87 while dealing with erstwhile Section 5(1)
(d) of P.C. Act, 1947, "abuse" was interpreted as misuse i.e. using the position for something for which it is not intended. Hence, decision / conduct of public servant must be dishonest amounting to corruption. Further, in C. Surendranath and Anr. Vs. State of Kerala 88, the Kerala High Court has observed as under :
"12. A reading of Section 13(1)(d) of the PC Act would reveal that a public servant can be prosecuted only if he has abused his position as a public servant and obtained for himself or any other person any valuable thing or pecuniary advantage. The intention of the legislation is not to punish a public servant for erroneous decision, but to punish for corruption. To fall within the four corners of sub-clause
(ii) of Clause (d) of sub-section (1) of Section 13 of the PC Act, the decision/conduct of the public servant must be dishonest, amounting to corruption.
13. To attract the term 'abuse' as contained in Section 13(1)(d) of the PC Act, the prosecution has to establish that the official concerned used his position for something it is not intended. The sum and substance of the discussion is that dishonest intention is the gist of the offence under 87 AIR 1963 SC 1116 88 Crl. M.C. No. 1071/2022 dated 17.01.2024 CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 151 of 185 Section 13(1)(d) of the PC Act."
30.8 Also in Runu Ghosh Vs. CBI (Supra) , it has been explained as under :
"130. Now, the expression "abuse" of office by an accused is not new; it has been in the lexicon - in the context of corruption laws, for over six and a half decades. The best exposition of what action would be "abuse" is to be found in Narayana Nambiar (supra):
The juxtaposition of the work 'otherwise' with the words 'corrupt or illegal means', and the dishonest implicit in the word 'abuse' indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case.
131. Counsel for the parties have referred to several decisions, which have been noticed and dealt with in an earlier part of this judgment. For an act to be "abuse" there is a need to prove an element of dishonesty."
30.9 Distinctively, Section 13(1)(d)(iii) of P.C. Act defines criminal misconduct by a public servant to also include an act of the public servant who while holding office as such public servant obtains for any other person any valuable thing or pecuniary advantage without any public interest. In Runu Ghosh Vs. CBI (Supra), in paragraph no. 66, it has been held that to prove the offence under Section 13(1)(d)(iii), "What the prosecution has to establish, in accordance with law, is that the public officer obtained for someone else-not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest.
30.10 Public interest has been explained in Babu Ram Verma Vs. State of Uttar Pradesh ( decided on 12.07.1971) as under :-
CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 152 of 185 "17. What is the meaning and scope of "public interest."? Public interest in common parlance means an act beneficial to the general public. An action taken in public interest necessarily means an action taken for public purpose; public interest and public purpose are well-known terms, which have been used by the framers of our Constitution in Articles 19, 31 and 304(b). It is impossible to precisely define the expression 'public interest' or 'public purpose'.
The requirements of public interest vary from case to case. In each case, all the facts and circumstances would require a close examination in order to determine whether the requirements of public interest or public purpose were satisfied."
emphasis supplied 30.11 In Runu Ghosh Vs. CBI (Supra), the Delhi High Court further observed as under:
"126 ......As long as any decision of a Minister or executive agency is based on reason, and is not arbitrary, or does not suffer from the odium of ulterior motives, or is not based on irrelevant considerations, courts will not question its wisdom. However, the test always in such cases is whether the decision was such as someone acting reasonably, on the basis of the materials available, would have taken. The test of public interest is paramount; if it appears that the decision is taken without public interest in mind, and unreasonably or manifest disregard to the consequence that such act would be severe undermining of public interest, and that such decision would result in a third party obtaining pecuniary advantage, without public interest, the decision maker has to take responsibility for the consequences."
emphasis supplied 30.12 It is also no longer res integra that whereas, to drive home the criminality of offences punishable under Section 13(1)(d)(i)&(ii) of P.C. Act, it is incumbent on the prosecution to prove dishonest intention, it is not essential to prove mens rea to convict an accused for offence punishable under Section 13(1)(d)(iii) of P.C. Act. Reliance is placed upon Runu Ghosh Vs. CBI (Supra) wherein it is held as under:
"70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 153 of 185 of terms such as "habitually accepts" "agrees to accept" "attempts"
"consideration which he knows to be inadequate" "dishonestly or fraudulently misappropriates.." (property "entrusted to him or "allows any other person so to do"); "corrupt or illegal" "abusing his position" are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii).
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary pre-requisite or pre-condition which the prosecution has to establish, from the conduct of a public servant.....
....
73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court- the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
....
77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) "without public interest", are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 154 of 185 agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" "without public interest" needs to be spelt out.
78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servant‟s decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining"
"pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest. This offence- under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servant's overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1) (d)
(iii). In other words, if the public servant is able to show that he CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 155 of 185 followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servant‟s functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
.....
81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard, (i.e. the prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
82. It would be useful to in this context, take recourse to certain examples. For instance, in not adopting any discernable criteria, in awarding supply contracts, based on advertisements calling for responses, published in newspapers having very little circulation, two days before the last date of submission of tenders, which result in a majority of suppliers being left out of the process, and the resultant award of permits to an unknown and untested supplier, would result in advantage to that individual, and also be without public interest, as the potential benefit from competitive bids would be eliminated. Likewise, tweaking tender criteria, to ensure that only a few applicants are eligible, and ensure that competition (to them) is severely curtailed, or eliminated altogether, thus stifling other lines of equipment supply, or banking on only one life saving drug supplier, who with known inefficient record, and who has a history of supplying sub-standard drugs, would be acts contrary to public interest. In all cases, it can be said that the public servant who took the decision, did so by manifestly failing to exercise reasonable proper care and precaution to guard against injury to public interest, CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 156 of 185 which he was bound, at all times to do. The intention or desire to cause the consequence may or may not be present; indeed it is irrelevant; as long as the decision was taken, which could not be termed by any yardstick, a reasonable one, but based on a complete or disregard of the consequence, the act would be culpable.
83. The test this Court has indicated is neither doctrinaire, nor vague; it is rooted in the Indian legal system. A public servant acts without public interest, when his decision or action is so unreasonable that no reasonable man, having regard to the entirety of circumstances, would have so acted; it may also be that while deciding or acting as he does, he may not intend the consequence, which ensues, or is likely to ensue, but would surely have reasonable foresight that it is a likely one, and should be avoided. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case; the standard however, is objective. Here, one recollects the following passage of Justice Holmes in United States v. Wurzbach 1930 (280) US 396:
"Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk."
emphasis supplied 30.13 This Court is also conscious that the prosecution primarily is relying upon circumstantial evidence to drive home the criminality of the accused persons and it is settled law that in cases which are premised upon circumstantial evidence , the inference of guilt of an accused can only be made if all incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypothesis other than his guilt and the Court has to ensure that chain of events are cogent and leave no reasonable doubt in the judicial mind. Reliance is placed upon Neeraj Dutta Vs. State (Govt. of N.C.T. of CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 157 of 185 Delhi) (Supra). Here, the Court also draws strength from the following observations in Runu Ghosh Vs. CBI (supra):
"132. As regards criminal conspiracy, that is one, under Section 120- B, IPC. The gist of what constitutes the offence was summed up pithily by the Supreme Court, in E.G. Barsay v. State of Bombay AIR 1961 SC 1762 (an enunciation that was affirmed and applied in several later decisions, such as Ajay Aggarwal v Union of India 1993 (3) SCC 609; Yashpal Mittal v State of Punjab 1977 (4) SCC 540;
State of Maharastra v Som Nath Thapa 1996 (4) SCC 659; Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596):
―The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. 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. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.
133. There is no doubt that evidence of criminal conspiracy is hard to come by. When such agreements are made, people are not expected to commit themselves in writing; nor are all conspirators necessarily aware of the entire plan, which may be known only to a handful.
However, for the Court to draw a conclusion that there was criminal intent, and meeting of minds, there has to be strong circumstantial evidence pointing to the conspiracy....
....
151. ..... Halsbury's Laws of England (Fourth Edition, Volume 11, Para 58) states that:
―Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do at lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be expressed or implied or in part express and in part implied. But the conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 158 of 185 until the conspiratorial Egremont is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to Exh. you to the illegal conduct, not the execution of its. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not however, necessary that each conspirator should have been in communication with every other.
152. Criminal conspiracy is likened to a march under a banner, with the conspirator as a participant, who may continue or choose to opt out of the march, at some stage, or join at another, without changing the words on the banner (Ajay Agarwal v Union of India AIR 1996 SC 1637). Similarly, in Bimbadhar Pradhan v State of Orissa AIR 1956 SC 469, the nature of the offence (of criminal conspiracy) was explained as follows:
―the offence of criminal conspiracy consists in the very agreement between two or more persons to commit a criminal offence irrespective of the further consideration whether or not those offences have actually been committed. The very fact of the conspiracy constitutes the offence and it is immaterial whether anything has been done in pursuance of the unlawful agreement. But in this case the finding is not that Government money had not been misappropriated or that the accounts had not been falsified...
In State of Maharstra v Som Nath Thapa 1996 (4) SCC 649, the Supreme Court stated as follows:
..to 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 conspiracy, that each of the conspirators had the knowledge of what the collaborator would do...
153. Direct evidence is seldom forthcoming to establish conspiracy. Stealth privacy and secrecy are usually its hallmarks. More often than not, Courts have to infer conspiracies on the basis of the facts and all the surrounding circumstances. The conduct of what the alleged conspirators do and the trail they leave in their wake is often determinative weather they commit the crime. It was held (Mohammed Usman Mohammed Hussain Maniyar v State of Maharastra AIR 1981 SC 1062) that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 159 of 185 perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication.
154. In this case, there is no direct evidence to establish criminal conspiracy. It is in such cases that the Court considers the totality of circumstances.
...
...and the circumstance so proved should point to only the accused being the author of the crime, and none else. ..."
30.14 Reverting to the facts of the present case, the Court is now proceeding to analyze the role played by the public servants in revival of Delhi Census CGHS. The Court shall also scrutinize the role of the accused public servants to ascertain if they were acting in conspiracy with each other and private persons with the larger objective of cancelling the winding up order of Delhi Census CGHS on the basis of fake documents and membership and attempting to seek allotment of land at per-determined rate to Delhi Census CGHS which was in the control of few private persons.
30.15 It would also be convenient to refer to the provisions of DCS Act, 1972 and DCS Rules, 1973 that governed the liquidation of a CGHS and is subsequent revival.
30.16 Chapter IX of DCS Act, 1972 deals with winding up of Cooperative Societies and the sections relevant to the present controversy stipulates as under :
""63. Winding up of co-operative societies.
(1)If the Registrar, after an inquiry has been held under section 55, or an inspection has been made under section 56, or on receipt of an application made by not less than three-fourths of the members of a co-operative society, is of opinion that the CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 160 of 185 society ought to be wound up, he may issue an order directing it to be wound up.
(2)The Registrar may of his own motion make an order directing the winding up of a co-operative society-(a)where it is a condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than ten, or(b)where the co- operative society has not commenced working or has ceased to function in accordance with co-operative principles. (3)The Registrar may cancel an order for the winding up of a co-operative society, at any time, in any case where, in his opinion, the society should continue to exist. (4)A copy of such order shall be communicated by registered post to the society and to the financing institutions, if any, of which the society is a member.
(5)Notwithstanding anything contained in this section no co- operative bank shall be wound up except with the previous sanction in writing of the Reserve Bank.
66. Liquidator.
(1)Where the Registrar has made an order under section 63 for the winding up of a co-operative society, the Registrar may appoint a liquidator for the purpose and fix his remuneration. (2)A liquidator shall, on appointment, take into his custody or under his control all the property, effects and actionable claims to which the society is or appears to be entitled and shall take such steps as he may deem necessary or expedient, to prevent loss or deterioration of, or damage to, such property, effects and claims. He may carry on the business of the society so far as may be necessary with the previous approval of the Registrar.
(3)Where an appeal is preferred under section 76, an order of winding up of a co-operative society made under section 63 shall not operate thereafter until the order is confirmed in appeal:Provided that the liquidator shall continue to have custody or control of the property, effects and actionable claims mentioned in sub-section (2) and have authority to take the steps referred to in that sub-section.
(4)Where an order of winding up of a co-operative society is set aside in appeal, the property, effects and actionable claims of the society shall revest in the society.
67. Powers of liquidator.
(1)Subject to any rules made in this behalf, the whole of the assets of a co-operative society, in respect of which an order for winding up has been made, shall vest in the liquidator appointed under section 66 from the date on which the order CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 161 of 185 takes effect and the liquidator shall have power to realise such assets by sale or otherwise.
(2)Such liquidator shall also have power, subject to the control of the Registrar,-
(a)to institute and defend suits and other legal proceedings on behalf of the co-operative society by the name of his office;
(b)to determine from time to time the contribution (including debts due and costs of liquidation) to be made or remaining to be made by the members or past members or by the estates or nominees, heirs or legal representatives of deceased members or by any officers or former officers, to the assets of the society;
(c)to investigate all claims against the co-operative society and subject to the provisions of this Act, to decide questions of priority arising between claimants;
(d)to pay claims against the co-operative society including interest up to the date of winding up according to their respective priorities, if any, in full or rateably, as the assets of the society may permit; the surplus, if any, remaining after payment of the claims being applied in payment of interest from the date of such order of winding up at a rate fixed by him but not exceeding the contract rate in any case;
(e)to determine by what persons and in what proportions the costs of the liquidation are to be borne;
(f)to determine whether any person is a member, past member or nominee of deceased member;
(g)to give such directions in regard to the collection and distribution of the assets of the society as may appear to him to be necessary for winding up the affairs of the society;
(h)to carry on the business of the society so far as may be necessary for the beneficial winding up of the same;
(i)to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging to have any claim, present or future, whereby the society may be rendered liable;
(j)to make any compromise or arrangement with any person between whom and the society there exists any dispute and to refer any such dispute to arbitration;
(k)after consulting the members of the society, to dispose of the surplus, if any, remaining after paying the claims against the society, in such manner as may be prescribed; and
(l)to compromise all calls or liabilities to calls and debts and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, subsisting or supposed to subsist between the society and a contributory or alleged contributory or other debtor or person apprehending liability to CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 162 of 185 the co-operative society and all questions in any way relating to or affecting the assets or the winding up of the society on such terms as may be agreed and take any security for the discharge of any such call, liability, debt or claim and give a complete discharge in respect thereof.
(3)When the affairs of a co-operative society have been wound up, the liquidator shall make a report to the Registrar and deposit the records of the society in such place as the Registrar may direct."
30.17 In assistance thereof, Chapter 9 of DCS Rules, 1973 provides as under :
"94. Procedure for issue of Winding up Order.
1. Before passing the order under section 63, the Registrar shall give an opportunity to the society to show cause against the proposed order. The show cause notice shall be sent to the President of the Society as its registered address under registered post. The service of this notice will be complete after 48 hours of the posting of the letter properly addressed and pre-paid, containing the notice. The notice shall state the grounds on which the order under section 63 is proposed to be made.
2. After considering the reply from the Society which shall be supported by the resolution its committee, or if no reply is received by the Registrar within fifteen days of the service of the notice under sub-rule (1), he Shall proceed to pass the order under section
63.
3. The order passed under section 63 and sub-section (1) of section 66 shall be communicated to the President of the society in the manner specified under sub-section (4) of section 63, at the registered address of the Society. The communication will be complete as soon as the letter containing the order is so posted.
4. The order referred to in sub-rule (3) shall also be published in the official Gazettee.
5. The order referred to in sub-rule (3) shall take effect from the date of order notwithstanding whether or not it is published in the official Gazette and shall operate in favour of all creditors, contributories, debtors and any other persons, having custody, possession and control over any asset or record of the society.
96. Procedure to be followed by the Liquidator
1. The liquidator shall, as soon as the order of winding up of a co- operative society takes effect, publish by such means as he may think proper, a notice requiring all claims against the co-operative society, the winding up of which has been ordered to be submitted to CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 163 of 185 him within one month of the publication of the notice. All liabilities recorded in the account book of a co-operative society shall be deemed if so facto have been duly submitted to him under this sub- rule.
2. The liquidator may fix time within which the creditors are to prove their debts or claims. If no claim is made within two months of the date of order of winding up, the liquidator may refuse to entertain such claims.
3. The liquidator soon after his appointment shall take charge of the books of accounts and other documents of the society and all its assets. There shall be prepared immediately on the relevant date a statement as to affairs of the society containing the following particulars:-
(a) the assets of the society stating separately the case balance in hand and at the Bank, if any, and the negotiable securities, if any, held by the society;
(b) its debts and liabilities;
(c) the names and addresses and occupation of its creditors stating separately the amount of secured and unsecured debts and in the case of secured debts, particulars of the securities given;
(d) the debts due to the society and the names, residences and occupations of the persons from whom they are due and amount due; and
(e) such other information as may be called by the Registrar.
4. The statement required to be prepared under sub-rule (3) shall be made on the basis of the record of the society. audit reports, and on the basis of the statements made by the members of the committee at the relevant date or by the person who is at that date, the Manager, Secretary or Treasurer or other officer of the Society. The liquidator shall examine them on oath. This statement shall be submitted by the liquidator to the Registrar within twenty one days of the date of his appointment or within such extended time not exceeding three months from the date of the said order."
30.18 As per Section 89 of DCS Act, 1972 liquidator is also a public servant within the meaning of Section 21 of The IPC.
30.19 So far as cancellation of winding up order of a CGHS is concerned, the Registrar of the Cooperative Societies derives his power from Section 63(3) of DCS Act, 1972.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 164 of 185
31. Admittedly, vide order dated 23.03.1979 [(copy of which is on page no. 132 of file Ex. PW55/G (colly) (D-12), (Vol-I)], Sh. Ashok Bakshi, then Deputy Registrar had passed an order for winding up of Delhi Census CGHS for non-compliances of the provisions of DCS Act, 1972 and had appointed Sh. M.L. Pahuja as the Liquidator for Delhi Census CGHS. Copy of the order was issued to the Liquidator and the erstwhile President / Secretary of Delhi Census CGHS at its office at 1424 Lakshmi Bai Nagar, Delhi apart from other offices mentioned on it. Thereafter, after a lapse of almost 25 years application for cancellation of winding up order (dated 01.03.2004) of Delhi Census CGHS, dated 27.12.2003 was moved on 06.01.2004 against diary no. 2591 [pages 1/C and 2/C of file Ex. PW55/G (colly) (D-12), (Vol-I)].
31.1 Upon receipt of the application, (purportedly moved by the Secretary, whose identity was not established during trial), accused R.B. Chauhan as Dealing Assistant put up the first note on 09.01.2004. As per the same, it was suggested that since the file of Delhi Census CGHS was not traceable in the Zone, circular be issued to all Zones in this regard. Accordingly, on approval on even date by accused Sita Ram Goyal (since deceased) and Narayan Diwakar, on 13.01.2004, a draft circular was signed which is on page no. 3/C [(of file Ex. PW55/G (colly) (D-12), (Vol-I)]. It purportedly has been received at the offices of all Assistant Registrars of South West Zone, South, Central / New Delhi, East, North West, North and North East on 13.01.2004, itself. It can be noticed that there are some over writings on the dates of receipt.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 165 of 185 However, as per note dated 23.01.2004 [(on page 2/N of file Ex. PW55/G (colly) (D-12), (Vol-I)], no response was received from any of the Zones in this regard.
31.2 This circumstance is material to ascertain as to whether sufficient efforts had been made to locate the records of Delhi Census CGHS and to not have created an opportunity for the miscreants to seek cancellation of the revival order of Delhi Census CGHS on fabricated records. On consideration of material on record what can be assessed is that adequate steps were not taken to locate the record of Delhi Census CGHS because (a) it was not ascertained from the appointed Liquidator Sh. M.L. Pahuja as to whether the records were with him and whether notice of liquidation proceedings had been issued to the managing committee of Delhi Census CGHS and (b) even though, the copy of Registration Certificate dated 31.05.1972 of Delhi Census CGHS is on record [at page no.131 of file Ex. 55/G (colly), (D-12), (Vol-I)] as per which it had its office at 1242, Lakshmi Bai Nagar, Delhi, it is not explained by the Dealing Assistant accused R.B. Chauhan, Assistant Registrar Sita Ram Goyal (since deceased) and accused RCS Narayan Diwakar as to what bore on their mind to not follow up with the concerned zone if no response was received. There is no explanation emanating from the file [Ex. PW55/G(colly) (D-12), (Vol-I)] as to what was the pressing urgency to act on the application moreso, when it was moved after 25 years of the winding up order. The noting dated 23.01.2004 also demonstrates that hastily, proposal was moved for reconstruction of the file seeking copy of Registration Certificate, Bye-
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 166 of 185 Laws and other relevant documents from the Society and the unexplained imperativeness to even have a draft of such a letter already on record for approval. Pursuant thereto, on 23.01.2004 itself, accused Sita Ram Goyal (since deceased) also signed the letter [on page 5/C of file Ex. PW55/G(colly) (D-12), (Vol-I) also part of Ex. PW31/C (Colly)] without having a deliberation on the same. The file noting still then does not reflect that it was decided that the file indeed was misplaced requiring re-construction. Requisite due diligence and reasonable care was not exercised in tracing the file and it afforded an opportunity for creation of false records on the basis of which intentionally the revival order dated 01.03.2004 came to be premised. Therefore, the argument on behalf of the accused Narayan Diwakar that in view of the findings in the Vikas Cooperative Group Housing Society Limited (Supra) that liquidation proceedings were not taken to its logical end and so, by virtue of Section 105 of DCS Act,1972, Delhi Census CGHS anyways stood revived, holds no ground as there is no material on record evidencing that any inquiries from appropriate sources for example like Liquidator and the Financing Bank were made in that regard. Rather, absolute reliance has been placed upon the fictitious managing committee of Delhi Census CGHS.
31.3 Moving forward, accused Faiz Mohd. in pursuance to noting dated 09.01.2004 [(page 1/N of file Ex. PW55/G (colly) (D-12), (Vol-I) also part of Ex. PW31/A (colly)] was appointed vide letter dated 13.01.2004 [(page no. 4/C of file Ex. PW55/G(colly), (D-12), (Vol-I) also part of Ex. PW31/C (colly)] to conduct inspection of Delhi Census CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 167 of 185 CGHS under Section 54 of DCS Act, 1972 within 15 days of the order. However, from perusal of file [Ex. PW55/G (colly)(D-12), (Vol-1)], it is clear that copy of the order authorizing inspection under Section 54 of DCS Act, 1972 was not sent in compliance of Rule 86(2) of DCS Rules, 1973 to the Financing Bank. Accordingly, accused Faiz Mohd. filed report Ex. PW52/A which for the following reasons is not well founded:
(a) As per his report, the Society was operating from WZ 1198/1, main Bazar, Rani Bagh, Delhi where it had shifted as per decision taken in the meeting of the managing committee on 03.05.1977 and approved by the Special General Body Meeting dated 17.07.1977. Thus, it was brought under the West Zone, specifically where the accused persons were exercising their jurisdiction. In view of discussions in paragraph nos. 24 and 24.1, it has already been concluded that the Minutes of Meeting dated 03.05.1977 and 17.07.1977 are false. As per the complaint (Ex.
PW55/B) given by Inspector Rajesh Kumar and proved by PW55 (Inspector S.C. Bhalla), it is mentioned that during preliminary enquiry the Society was not found to be existing at the aforementioned address and the property belonged to one Sh. V.K. Khanna who denied the existence of the society there. However, none of the accused persons during cross-examination have traversed the testimony of PW55 (Sh. S.C. Bhalla) qua his proving of the complaint (Ex. PW55/B).
(b) That one Sh. Vishnu Rai, Secretary of the Society who met at the office stated that no liquidation order had been received but application for cancellation of winding up order [on page no. 2/C of file Ex. PW55/G(colly) (D-12), (Vol-I)] specifically stipulates the Society was wound up vide order no. 46/47/128/H/Coop./759 dated 23.03.1979. Still CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 168 of 185 no enquiry was made in that regard from the Liquidator or the Deputy Registrar on whose order winding up was directed despite the winding up order dated 23.03.1979 mentioning that copy of the order was sent to the Ex-Office Bearers of the Managing Committee of the Society. Rather, blind faith was imposed on the purported verbal representation of the purported Secretary of Delhi Census CGHS that no liquidation order was conveyed to the Society despite the fact it was also mentioned that all short comings in the functioning of the Society had been removed. A question arises is that if the liquidation order was not in the knowledge of the purported Secretary of Delhi Census CGHS, how was there an awareness of the shortcomings that were required to be corrected and in pursuance whereof, [from pages no. 151/C to 153/C in file Ex. PW55/G(colly) (D-12), (Vol-I)], the purported Office Bearers of the Managing Committee of Delhi Census CGHS gave affidavits in support of the revival proceedings identifying the shortcomings to be corrected which was also relied upon at the time of ordering revival of Delhi Census CGHS. Any reasonable due diligence could have yielded the correct factual position.
31.4 Thereafter, accused R.B. Chauhan prepared note dated 28.01.2004 [(page no. 3/N of file Ex. PW55/G(colly), (D-12), (Vol-I)] enumerating the findings of report Ex. PW52/A of accused Faiz Mohd., stating that the Secretary of the Society pursuant to letter dated 21.01.2004 had submitted photocopies of documents namely Registration Certificate, Bye-laws of the Society and Minutes of the first meeting of the promoters. However, there is no proof of service of the CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 169 of 185 letter upon the Office Bearers of Delhi Census CGHS either physically or through registered post. The same were then sought to be placed before the RCS accused Narayan Diwakar for taking them on record for re-construction and for revival of the Society and initiation of quasi judicial proceedings. Therefore, re-construction of file was pre- meditated as well as vide the same noting proposal was also made for initiation of revival proceedings by accused R.B. Chauhan and it was endorsed by accused Sita Ram Goyal (since deceased) to the effect that he had test checked the details and found them to be in order. In the comprehensive note dated 16.02.2004 and specifically page no. 8/N [of file Ex. PW55/G (colly) (D-12), (Vol-I)], accused R.B. Chauhan records and the same is approved by accused Sita Ram Goyal (since deceased) that "In compliance with the directions of the worthy RCS, (Page 6/N) the Secretary of the societies has produced / submitted the original records and documents pertaining to membership, audit and election, etc for verification and the same was counter-checked/verified and found in order." Here, an unanswered question is that as per letter dated 23.01.2004, the office bearers of Delhi Census CGHS had been directed to "arrange for submission of original records alongwith copy of Registration Certificate, Bye-laws and other relevant documents / correspondences" within a week and as per accused Faiz Mohd., the original documents of CGHS were available, but within 05 days itself, only, photocopies of the documents were submitted but there is no noting as to when and by whom original records, if at all, were produced upon which accused Sita Ram Goyal (since deceased) test checked the details. There also is no application from the Office Bearers CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 170 of 185 of Delhi Census CGHS for submission of record in compliance of letter dated 23.01.2004 [page 5/C of file Ex. PW55/G(colly) (D-12), (Vol-I)]. Hence, there is no transparency from record as to how the documents were received at the office of the RCS and as to whether the authenticity was ascertained by the public servants as claimed by them considering that re-construction of record is a salient process. This also assumes further importance as the Reader to the RCS as per note dated 20.01.2004 [at page 5/N of file Ex. PW55/G(colly) (D-12), (Vol-I)] records that the file was reconstructed by the Zone on the basis of the original records and the documents shown to accused Sita Ram Goyal (since deceased) by the President of the Society.
31.5 Yet, when the file was put up before accused Narayan Diwakar for approval of noting dated 28.01.2004 [page no. 3/N of file Ex. PW55/G(colly), (D-12), (Vol-I)], he merely endorsed the same for a hearing for 03.02.2004 [(page no. 6/N of file Ex. PW55/G(colly), (D-12), (Vol-I)] and did not question the irregularities in the conduct of his sub-ordinates as observed above enabling the re-construction of file on un-verified material. There is no speaking order either administrative or quasi judicial vide which he deliberated upon the material upon which re-construction of the file was processed. So much so that during hearing on 03.02.2004, the order does not reflect upon the basis on which quasi judicial proceedings for revival of the Society had been initiated upon a "reconstructed file" for which there was no noting of reconstruction being approved by him upon consideration of noting dated 13.01.2004 and 23.01.2004 [page no. 2/N of file Ex.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 171 of 185 PW55/G(colly) (D-12), (Vol-I)]. This indicates the unspeaking approval accorded by accused Narayan Diwakar to his sub-ordinates to continue reconstructing the file without proper due diligence.
31.6 Rather, vide the said order a step ahead was directed for verification of membership, audit and election by the concerned Zone and spot verification of members. Interestingly, accused Sita Ram Goyal (since deceased) on 05.02.2004 yet again, appointed accused Faiz Mohd. to conduct the spot verification expeditiously (again evidencing the urgency with which the officials had been acting) whose report Ex. PW25/D [(in file Ex. PW55/I (colly) (D-14), (Vol-III)] is false further creating a circumstance pointing towards the concert with which the officials of Registrar of Cooperative Societies were acting. The falsity of the report is evident because as per his report, he had conducted spot verification from the following members :
s.no. M.No. Name of the
Member
01. 120 VK Taneja
02. 112 JN Aggarwal
03. 111 ND Pathak
04. 113 RP Sharma
05. 115 DG Gupta
06. 117 Uma Gupta
07. 119 Poonam
08. 118 Vishnu Rai
09. 121 Mahender Kumar
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ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 172 of 185
but of them, the prosecution examined Sh. V.K. Taneja as PW26, Sh. Umesh Aggarwal as PW25, being the son of Late (Sh.) J.N. Aggarwal, and Smt. Poonam Vasudeva as PW34 and all the aforementioned witnesses have unanimously testified that no physical verification had been conducted of their membership. During their cross-examination the defence has not been able to elicit any response which would render their testimonies unreliable. Even though it has been argued that there is no requirement under Section 63(3) of DCS Act, 1972 to seek any inspection report and also that modalities for inspection are not mentioned anywhere, in the considered view of this Court, the Registrar is empowered to cancel an winding up order of a cooperative society at any time, in any case where in his opinion, the society should continue to exist. Thus, the opinion is to be premised upon credible material and what else but assimilation of data and information that the society is operating as per the Act. To ascertain the same, inspection under Section 54 of the Act would be necessitated. So far as the modalities for inspection are concerned, Chapter 7 of DCS Rules, 1973 provides for the same. Therefore, the argument is without merits. As regards the submission that the report Ex PW52/A and Ex. PW25/D of accused Faiz Mohd. was not the basis for revival of the Society is belied by the order Mark A/31, itself. To raise doubts on the case of the prosecution qua accused Faiz Mohd. merely because there is no explanation offered as to how copies of ration cards of Sh. J.N. Aggarwal and PW26 (Sh. Virender Kumar Taneja) came into his possession, would be taking a myopic view as it has also been proved that the list of members of United India Insurance CGHS has been lifted to introduce fictitious CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 173 of 185 members in Delhi Census CGHS.
31.7 Relying upon the above material on 19.02.2004, accused Narayan Diwakar as the RCS reserved the matter for orders on the application. It cannot be lost sight of that at that moment, he was acting in the quasi judicial capacity and was required to take an independent view of the matter. However, the tenor of his order reflects that he was merely recording the submissions of the Zonal Assistant Registrar {i.e. accused Sita Ram Goyal (since deceased)} and also observed that the latter had "finally recommended the case for the revival of the society." Further, it is observed by him that the Secretary of the Society who was appearing in his court and whose presence is marked as Vishnu Rai, stated that the Deputy Secretary who had passed the winding up order dated 23.03.1979 was not competent. Upon which, the RCS observed that the material on record did not show that such power was exercisable by the Deputy Registrar. Ultimately, order dated 01.03.2004 came to be passed. Accused Narayan Diwakar as the RCS should have independently verified the jurisdiction exercised by the Deputy Registrar and not merely acted on the representation of the Secretary of the Society. Here, it cannot be lost sight of that there is a presumption of genuineness of official acts under Section 114 Illustration (e) of The Evidence Act, 1872 and it is also mentioned in Sanction Orders Ex.PW4/A, Ex. PW5/A and Ex. PW39/A that as per order no. 9(38)/68- Coop/8636-42 dated 18.10.1977 issued by Special Secretary (Coop.), Delhi Administration, Delhi, the Deputy Registrar, Cooperative Societies was conferred with all powers of the RCS under DCS Act CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 174 of 185 1972 and DCS Rules, 1973. Also, even though accused Sita Ram Goyal (since deceased) claimed to have perused the original records, there is no explanation why accused Narayan Diwakar while exercising his quasi judicial power should not have himself, independently, appreciated the requisite material brought on record. This yet again, is a material circumstance suggesting prior meeting of minds of the officials at the Office of Registrar of the Cooperative Societies. Hence, the argument on his behalf that his order for revival of Delhi Census CGHS (Mark 31/A) was premised upon reports duly forwarded by the Assistant Registrar of the Cooperative Society i.e. accused Sita Ram Goyal (since deceased) after due application of mind fails to inspire any confidence. Also, the refuge under Section 93(3) of DCS Act, 1972 is not available to the accused as we are not questioning the decision but the manner in conduct of accused Narayan Diwakar in passing order Mark 31/A and the extraneous considerations in doing so.
31.8 The order for revival of Delhi Census CGHS which is dated 01.03.2004 [at page no. 163/C of file Ex. PW55/G (colly) (D-12), (Vol- I) also Mark A/31] issued the following directions:
"In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed. I, N Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 23-03-1979 issued to the DELHI CENSUS LTD (Reg. No.128/GH), in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the DELHI CENSUS CGHS LTD (Regd. No. 128/GH), is hereby revived with immediate effect, as the concerned Asstt. Registrar has already verified the list of 150 members, submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 175 of 185 In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. Deen Bandhu Prasad, Gr.IV, of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President / Secretary of the Society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the Society as per law."
31.9 Hence, revival of Delhi Census CGHS was subjective to the completion of audit within 02 months and elections of the managing committee of the Society, also within 02 months. Accordingly, accused Deen Bandhu Prasad steps into the picture as the Election Officer. He filed his report Ex. PW52/B [(pages No.169C in file Ex. PW55/G (colly) (D-12), (Vol-I)] stating that he had conducted the elections on 04.04.2004 and declared the result on the same date. He also informed that minutes of Special General Body Meeting in that respect had been recorded. The election result and copy of minutes of meeting (Ex. PW34/C(colly) was also filed. However, again the sham election proceedings stood exposed through the testimony of PW26 (Sh. V.K. Taneja), PW-34 (Smt. Poonam Gupta) and PW36 (Sh. Umed Singh) who stated that they were neither the members of Delhi Census CGHS nor had joined any such CGHS. It has been argued on behalf of accused Deen Bandhu Prashad that his election report was merely taken on record and was not the basis for revival of Delhi Census CGHS. However, the argument outrightly needs to be discarded as the order (Mark 31/A) for revival of Delhi Census CGHS was subject to the elections being conducted within 02 months.
CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 176 of 185 31.10 Finally, in pursuance of the directions contained in the order dated 01.03.2004 (Mark 31/A) accused P.K. Thirwani has conducted the audit of Delhi Census CGHS for the period 1971-1972 to 2002-2003 and submitted his report to the Assistant Registrar (Audit) countersigned by him on 10.03.2004. It has been argued on behalf of the accused that no criminality can be affixed on his conduct as his appointment as the auditor is dated 02.03.2004 which is after the passing of the revival order dated 01.03.2004 (Mark 31/A). However, in this regard one cannot lose sight of the fact that order dated 01.03.2004 (Mark 31/A) was subject to pending audit being completed within two months. Therefore, the nexus between preparation of the audit report in file Ex. PW32/B and revival of Delhi Census CGHS stands established. It has also been argued that there is no iota of evidence that the audit report is false and the only witness examined qua the audit report is PW32 (Sh. Satya Prakash Sharma) who is only a witness to the chain of custody of the audit files. Also, refuge has sought to be taken behind the Assistant Registrar (Audit) under whose supervision it is claimed that the report was prepared and the genuineness of the act of accused P.K. Thirwani is also demonstrated from his observations qua shortcomings observed by him in his report.
31.11 Here, it would be relevant to allude to the Chapter VII of DCS Act, 1972 which provides for the audit of the society :
"Chapter VII Audit, Inquiry, Inspection and Surcharge
53. Audit.
(1)The Registrar shall audit or cause to be audited by a person authorised by him by general or special order in writing in this CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 177 of 185 behalf, the accounts of every co-operative society at least once in each year.
(2)The audit under sub-section (1) shall include an examination of overdue debts, if any, the verification of the cash balance and securities, and a valuation of the assets and liabilities of the society. (3)The person auditing the accounts of a co-operative society shall have free access to the books, accounts, papers, vouchers, stock and other property of such society and shall be allowed to verify its cash balance and securities.
(4)The directors, managers, administrators and other officers of the society shall furnish to the person auditing the accounts of a co- operative society all such information as to its transactions and working as such person may require.
(5)The Registrar or the person authorised by him under sub-section (1) to audit the accounts of a co-operative society shall have power where necessary-
(a)to summon at the time of his audit any officer, agent, servant or member of the society, past or present, who he has reason to believe can give valuable information in regard to transactions of the society or the management of its affairs; and
(b)to require the production of any book or document relating to the affairs of, or any cash or securities belonging to, the society by any officer, agent, servant, or member in possession of such books, documents, cash or securities and in the event of serious irregularities discovered during audit, to take them into custody. (6)If at the time of audit the accounts of a society are not complete, the Registrar or the person authorised by him under sub-section (1) to audit, may cause the accounts to be written up at the expense of the society.
(7)Audit fee, if any, due from any co-operative society shall be recoverable in the same manner as is provided in section 75."
31.12 Chapter 7 of DCS Rules, 1973 provides for the procedure for the audit and the relevant Rule is as under :
"84. Procedure for appointment of Auditors and for conducting Audit.
1. The audit of accounts of societies shall be conducted by departmental auditors appointed by the Registrar or by certified auditors appointed by the Registrar from time to time on such terms and conditions as he deems fit.
Provided that the Registrar shall draw the panel of departmental auditors and certified auditors in advance, at least, six months before the close of the year so that statutory audit of society is CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 178 of 185 complete in time to enable the society to hold its annual general body meeting as provided under section 29 and also to file income tax returns as prescribed under the law. Where the total sales, turnover or gross receipts of a society exceeds Rs. 4Q,00,000/- (or figure as amended from time to time as per Income Tax Law) in a year, a Tax Audit under section 44(AB) of the Income Tax Act shall also be (inducted by the certified auditors for which additional fee shall be paid as prescribed by the Registrar from time to time. An auditor can undertake the audit of a society for a maximum period of three years. It shall be the duty of the society to select an auditor from the panel approved by the Registrar and inform about the selection to the Registrar within fifteen days of selection through the registered post. If the society foils to get its statutory audit completed within six months of the close of the cooperative year, the Registrar shall be competent to get the audit conducted at the cost risk and liability of the members of the committee of a society who have failed to get the audit of the society conducted in time. The fee shall be a charge against the delinquent officials of the committee of the society and shall be recoverable as an arrears of land revenue. (Amended on 6.8.97)
2. While fixing charges on account of services rendered by the auditors which are payable to them, the Registrar shall beside other things' have regards to the turnover or sale or working capital of the society. (Added on 9.9.88)
3. The amount fixed under clause (1) above which is payable to the departmental auditors shall be deposited in the Govt. account and the amount payable to the certified auditors, appointed by the Registrar shall be paid to them directly as per provisions contained in schedule IV of these Rules. (Added on 9.9.88) Explanation -
1. For purposes of this Chapter, audit shall include annual or periodical audit, continuous or concurrent audit and test or super audit and re-audit.
2. For purpose of this rule, "a certified auditor" includes: -
(a) a Chartered Accountant with in the meaning of the Chartered Accounts Act, 1949,
(b) a lesson who hold Govt. Diploma in Coop. Accounts or Govt. Diploma in Cooperation and Accountancy.
(c) a person who has served as an auditor in the Co-operative Department of any State Government or under the Registrar and whose name has been included by the Registrar in the panel of certified auditors maintained and published by him in the official Gazette at least once in every year.
4. The audit under sub-section (1) ofsection53 shall in all cases extend back to the last date of the previous audit and shall be CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 179 of 185 carried out up to the last date of the co-operative year immediately, preceding the audit or where the Registrar so directs in the case of any particular society or class of societies such other date as may be specified by the Registrar.
5. Unless the Registrar directs other wise, the audit of a co- operative society shall be conducted in the registered office of the society.
6. Previous intimation shall be given to the society before the audit is commenced.
7. The officers and employees of the society shall give the audit officers all assistance necessary for the completion of the audit and for this purpose in particular prepare such statements and take such action with regard to the verification or examination of its accounts the may require.
8. (i) The audit report shall state:-
(a) whether or not the audit officer has obtained all the information's and explanations which he required.
(b) whether or not in his opinion the balance-sheet and the profit and loss accounts referred to in the report are drawn up in conformity with the law;
(c) whether or not such balance-sheet exhibits a true and correct account of the state of affairs of the society according to the best of his information and the explanations given to him and as shown by the books of the society:
(d) whether, in his opinion, books and accounts have been kept by the society as required under the Act, the rules and the bye-laws:
(e) whether there has been any material impropriety or irregularity in the expenditure or in the realisation of money due to the society:
(ii) Where any of the matter referred to in sub-clauses (a), (b), (c) or (d) Of clause (8) (i) is answered in the negative or in the affirmative with any remarks, the report shall state the reason for such answer with facts and figures, in support of such reasons.
9. The audit report shall also contain schedules with full particulars of : -
(i) all transactions which appear to be contrary to the provisions of the Act, the rules or the bye-laws of the society:
(ii) all sums which ought to have been brought have not been brought into account by the society;
(iii) any material impropriety or irregularity in the expenditure or in the realization of money due to the society;
(iv) any money or property belonging to the society which appears to the auditor to be bad or doubtful debt; and
(v) any other matter specified by the Registrar in this behalf.
10. The summary of audit report as prepared by audit or shall be read out in general meeting. The audit report together with its CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 180 of 185 accompaniments shall be open to inspection by any member of the society. The Registrar may, however, direct that any portion of the audit report which appears to him to be of objectionable nature or not justified by facts shall be expunged and the portion so expunged shall not form part of the audit report.
11. The audit officer shall examine the monetary transactions of a society in so far as may be necessary for the purpose of ascertaining whether there has been any material impropriety or irregularity in the expenditure for on the realization of moneys due to the society and whether any transaction infringes any provisions of the Act, rules or bye-laws, or any directions of the managing committee. In case of difference of opinion between the audit officer and the society in regard to the propriety of any of its monetary transactions the Registrar shall decide the matter and his decision shall be final.
12. If the result of the audit held under the last preceding rules discloses any defects in the working of a society, the society shall, within three months from the date of audit report, explain to the Registrar the defects or the irregularities pointed out by the auditor, and take steps to rectify the defects and remedy irregularities, and report to the Registrar in Form 16 the action taken by it thereon, the compliance report shall continue to be submitted till all the defects are rectified or irregularities remedied to the satisfaction of the Registrar. The Registrar may also make an order directing the society or the officers to take such action as may be specified in the order to remedy the defects, within the time specified therein, where the society concerned is a member of a federal society."
31.13 Thus the rule provides that an Auditor can undertake the audit of the society for a maximum period of 03 years. Here the appointment of Sh. P.K. Thirwani as the auditor for the lumpsum period of 1971-1972 to 2002-2003 on the very day following the revival order dated 01.03.2004 throws up unanswered questions on the conduct of the officials of the RCS office. There is no explanation as to why accused P.K. Thirwani undertook the audit for an extended period beyond 03 years when the directions issued to him was not as per law. There is no material on record or led in evidence which shows that he had registered CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 181 of 185 any protest against being assigned audit for the period not contemplated by DCS Rules, 1973. To merely justify his acts for having been appointed by the Assistant Registrar (Audit) who as per sanction order Ex. PW4/A had denied having signed the audit report is not sufficient to absolve accused P.K. Thirwani. Accused did not examine the Assistant Registrar (Audit) to controvert the claim of the prosecution. As per instructions to the Chartered Accountant for audit89, Clause 4 directs the CA / Auditor to comply with provisions of Rule 84 of DCS Rules 1973. As per the same, part B requires that it is also the duty of the Auditor to confirm whether the society is operating from the registered office. Also, as per Rule 84 (5) of the Act, audit was required to be done at the registered office of the society unless the Registrar otherwise directs. However, the audit report in file Ex. PW32/B (colly) is not in compliance, thereof. The manner in which accused P.K. Thirwani, only was appointed as an auditor in violation of Rule 84 of DCS Rules, 1973 and pursuance thereof, he gave an audited report spanning approximately over 34 years without complying with mandated requirements is a material circumstance suggesting that he acted in conspiracy with the remaining public servants to revive Delhi Census CGHS. Merely because certain objections / suggestions were noted by him does not accord genuineness to his report.
31.14 On behalf of accused R.B. Chauhan, it has been submitted that he did not submit any suggestive note and merely dealt with the file of CGHS in a routine manner and being the lowest in rank, he had 89 As available in file Ex. 32/B alongwith copy of Option Form Cum Appointment Letter of the CA / Auditor CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 182 of 185 produced the notes without any addition and concealment before his superior i.e. Assistant Registrar accused Sita Ram Goyal (since deceased). However, the Court has already scrutinized his role above and there is also no explanation emanating from record how the false documents were accepted moreso, when as the Dealing Assistant, the accused was also a custodian of the file and actively prepared notes favouring reconstruction of the file on the basis of false documents.
31.15 In view of the above discussion, this Court is convinced that the prosecution has led sufficient evidence to establish that the aforementioned public servants have abused their position as public servants and have also acted against public interest, in facilitating cancellation of winding up order dated 29.03.1979 and consequently, forwarding list of 150 fake members of Delhi Census CGHS to the Assistant Registrar (Policy) for onward submission to DDA for allotment of land to Delhi Census CGHS vide letter Ex. PW31/D in frustration of the object of the Cooperative Group Housing Societies. Their detailed overt acts had the capacity to allow concentration of land parcels in the hands of the select few who could derive benefit from the same, defeating the objective of group housing societies.
32. However, it is now to be answered whether the incriminating circumstances discussed above which are determinative of the identity of the accused persons as public servants, abuse of public office and actions undertaken against public interest are sufficient to establish the allegation of charge of Section 120B IPC readwith 15 CBI vs Narayan Diwakar and Ors.
Criminal Case No. 10/2019 ID No. 164/2019FIR No. RC-DAI-2005-A-0068 page no 183 of 185 readwith Section 13(2) readwith Section 13(1)(d)(i),(ii)&(iii) of P.C. Act?
33. On anxious consideration given to evidence (direct or circumstantial), this Court is of the view that the answer has to be in the negative due to following reasons :
(a) So far as, allegations under Section 15 readwith Section 13(2) readwith Section 13(1)(d) sub-clause (i) and (ii) of P.C. Act are concerned, there is no iota of evidence to establish obtainment by way of demand and acceptance / obtainment or attempt, thereof, by the public servants either for themselves or for identifiable private individuals.
(b) As regards offence defined under Section 15 readwith Section 13(1)(d)(iii) of P.C. Act is concerned, attempt of obtainment of valuable thing namely land herein, without public interest entailed proving either directly or circumstantially that it was for accused Ashutosh Pant and accused Munna Lal Sharma. However, the prosecution miserably failed to establish the identity of the private individuals for whom the accused public servants attempted to obtain, the valuable thing / pecuniary advantage. Thus, the allegation of conspiracy between accused public servants and private individuals, therefore, cannot stand as the chain of circumstantial evidence is not complete.
(c) It has not been proved that the letter for allotment of land from the RCS Office to the Office of DDA had been sent. It has only been proved that accused Sita Ram Goyal (since deceased) then CBI vs Narayan Diwakar and Ors.Criminal Case No. 10/2019 ID No. 164/2019
FIR No. RC-DAI-2005-A-0068 page no 184 of 185 Assistant Registrar (West) had sent a letter bearing no. F.47/128/Coop/GH/W/227-28 dated 04.03.2004 Ex. PW31/D to Assistant Registrar (Policy) at the RCS office.
34. Hence, in view of the above discussions, the accused persons are acquitted of the offences charged with. Bail bonds stands cancelled. Sureties discharged. Original documents filed alongwith the bail bonds be returned to the rightful claimants on cancellation of endorsements, if any.
35. In compliance of Section 437A Cr.P.C., the accused persons are directed to file fresh bail bonds for a sum of Rs.50,000/- each alongwith one surety of like amount on same terms and conditions as mentioned in order dated 24.05.2024 of the Ld. Predecessor of this Court.
36. File be consigned to records.
Digitally signed by VIJETA VIJETA SINGH SINGH RAWAT Pronounced in open Court RAWAT Date:
2025.04.24 on 21.04.2025 13:19:00 +0530 (Vijeta Singh Rawat) Special Judge (PC Act) (CBI)-17 Rouse Avenue Courts, New Delhi 21.04.2025.
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