Delhi District Court
Central Bureau Of Investigation vs . on 4 March, 2014
IN THE COURT OF SH.R P PANDEY:
SPECIAL JUDGE-01 (CBI) : ROHINI COURTS:DELHI
CBI No.77/08
RC-17(A)/2005/SCU-V/CBI/SCR-II/DELHI
U/S 120-B, 420, 468, 471 IPC & PC ACT 1988
ID NO.02404RO650672007 (SWARN CGHS)
Central Bureau of Investigation
Vs.
1. Gokul Chand Aggarwal
s/o Late Sh.Jagdish Prasad
r/o A-603 and 703 Ashoka Apartments
Plot No.36/2, Sector-9
Rohini, Delhi-85
2. Narayan Diwakar
s/o Late Chatti Lal
r/o G-30, Masjid Modh, Greater Kailash
Part-II, New Delhi-48
3. Daya Nand Sharma
s/o late Sh.Ram Diwaya Sharma
r/o-1378, Rani Bagh, Shgakur Basti
Delhi-34
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4. Uday Shankar Bhatnagar
s/o late Sh.S S Bhatnagar
r/o-B-4/74, Type-II, Delhi Administration Flats
Timar, Delhi
5. Faiz Mohammad
s/o Sh.Gulam Mohammad
r/o 3794, Ahata Kitara, Pahari Dheeraj
Pahari Dhiraj, Delhi-6
6. Ashwani Sharma s/o late R K Sharma
r/o-291A, Pocket-C, Mayur Vihar
Phase-II, Delhi
7. Naveen Kaushik s/o late Sh.M D Sharma
r/o-I-2/38, 2nd Floor, Sector-16, Rohini
New Delhi-110085
8. Kamal Singh s/o late Sh.Bakhtawar Singh
r/o-677, VPO-Badli, Delhi
Date of filing charge sheet : 29.03.07
Reserved for Order : 28.02.14
Date of Order : 04.03.14
ORDER ON CHARGE:
1. Accused/Gokul Chand Aggarwal (A-1); Narayan
Diwakar (A-2); Daya Nand Sharma (A-3); Uday Shankar
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Bhatnagar (A-4); Faiz Mohammad (A-5); Ashwani Sharma (A-6);
Naveen Kaushik (A-7) and Kamal Singh (A-8) have been charge
sheeted by CBI to face trial for the offences punishable u/s 120B
r/w Section 420, 468 & 471 IPC and Section 13(1)(d) of PC Act,
1988 besides for the substantive offences u/s 420/511/468/471
IPC and Section 15 r/w Section 13(1)(d) of PC Act.
2. Arguments on charge as advanced by ld.Public
Prosecutor for CBI and accused persons/their ld.counsels have
been heard. Besides, the written arguments as filed by accused
Gokul Chand Aggarwal (A-1), Daya Nand Sharma (A-3), Ashwani
Sharma (A-6) and Naveen Kaushik (A-7) have also been perused.
Accused/U S Bhatnagar (A-4) has filed an application u/s 239
Cr.PC for his discharge and at his request his application has
been treated as his written arguments on the point of charge.
Accused/Narayan Diwakar (A-2) has besides arguing on charge,
has also objected to the jurisdiction of this court to try the present
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case with reference to judgment of Hon'ble Supreme Court titled
as A Subair Vs. State of Kerala, 2009 CRI.LJ 3450, by filing an
application, which has also been considered.
3. As borne out of record, Swarn Co-operative Group
Housing Society (for short 'Swarn CGHS' or 'the society') was
registered with address as A-104, Phase-III, Ashok Vihar, New
Delhi-52 on 27.07.72 by the Registrar, Co-operative Societies,
Delhi (in short RCS). It was registered with 24 members and
thereafter some more members were enrolled/resigned and finally
list of 144 members was approved by 1974-75. Thereafter the
members of the society stopped taking interest in the affairs of the
society, which had failed to achieve the object for which it was
registered and it also failed to fulfill the statutory obligations as
provided under DCS Act 1972 and Rules framed thereunder.
Hence, an order dated 08.01.79 was passed under the signatures
of Sh.Ashok Bakshi, the then Dy.Registrar (DR), RCS office, Delhi
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liquidating the society.
4. The investigation disclosed that a request dated
08.08.03 was submitted by one Sh.Suresh Chand (accused Gokul
Chand Aggarwal allegedly posed himself as Suresh Chand, a
fictitious name) in the capacity of Secretary as Swarn CGHS
showing its address as 52, Samaypur Road, Libaspur, Delhi to the
RCS, Delhi for cancellation of winding up order and revival of the
society. The letter was processed in RCS office on 25.09.03 and
subsequent dates. As the original documents/file of the society
could not be located, therefore, the process was started by RCS
office on the basis of re-constructed documents supplied by the
society.
5. Accused/Faiz Mohammad (A-5) working as Head
Clerk in the RCS office put up notes on 02.12.03, 03.12.03 and
09.12.03 to AR(NW) mentioning the request of the society for
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cancellation of winding up order passed on 08.01.79 and for
approval of the final list of members for allotment of land. It is
alleged in the charge sheet that he had recommended
appointment of accused/U S Bhatnagar (A-4), Gr.III as Inspecting
Officer for verification of records/documents of the society to bring
out the factual position in this regard. The note was endorsed by
accused/D N Sharma, AR(NW) (A-3) and approved by
accused/Narayan Diwakar (A-2) then working as RCS, Delhi.
6. Accused/U S Bhatnagar (A-4), who was appointed as
Inspecting Officer vide order dated 24.10.03 issued by accused/D
N Sharma (A-3) u/s 54 of DCS Act to verify the
records/documents and to bring out the factual position of the said
society, was required to visit registered office of the society
personally and verify the documents but he did not visit the
registered office of the society either on 03.10.03 or any other
date and submitted a false inspection report on 30.10.03 bearing
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signatures of non existing person Suresh Chand as Secretary of
the society.
7. On inspection report submitted by A-4, accused/Faiz
Mohammad (A-5) submitted a note on 03.12.03 recommending
revival of the society u/s 63(3) of DCS AC and approval of the
freeze list of members for allotment of land. Accused/D N Sharma
(A-3), AR(NW) had endorsed the note to the reader of RCS and
on 04.12.03, accused/Narayan Diwakar (A-2) then working as
RCS, Delhi held his court and in his order he has mentioned that
Advocate Mehta attended the court representing the society and it
was also attended by the concerned zonal officer i.e. accused/D
N Sharma (A-3). He reserved the case for orders.
8. While hearing on 04.12.03, accused/Narayan Diwakar
(A-2) had ordered that the winding up order passed by
Dy.Registrar was without procedure since the reasons given were
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not adequate for initiating such an extreme step and he observed
that powers u/s 63 were not delegated to Dy.Registrar by the
competent authority. Pursuant to the order dated 04.12.03,
accused/Narayan Diwakar (A-2) issued orders dated 05.12.03
reviving the society.
9. Investigation disclosed that accused/Gokul Chand
Aggarwal (A-1) was posing as Suresh Chand as Secretary of the
society and his criminal conspiracy with accused/Narayan Diwakar
(A-2) and others is apparent from the fact that he had mentioned
in his note that Dy.Registrar had not followed proper procedure for
winding up and that he was not competent to pass such orders,
which contention was not correct as the earlier file for the period
when the winding up order was passed in respect of the society,
was not available and, therefore, his remarks were unwarranted.
10. Investigation also revealed that Sh.Ashok Bakshi then
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Dy.Registrar was competent to pass winding up order as powers
were delegated to him vide notification dated 18.10.77 issued by
Delhi Administration, Delhi. Sh.Mehta and Ms.Shweta, Advocates
shown as having attended the court of RCS on 04.12.03 and
25.12.03 denied of having ever attended court of RCS in
connection with revival of this society and there is no vakalatnama
available in the file in respect of these two advocates, which show
criminal conspiracy on the part of accused/Narayan Diwakar (A-2)
in revival of the society.
11. As regards list of members of Swarn CGHS containing
144 names which was approved by RCS, all pages of the list were
signed by accused/D N Sharma (A-3) and after revival of the
society he wrote a letter dated 09.12.03 to AR (Policy) for
forwarding the same to DDA for allotment of land.
12. Investigation revealed that Sh.Suresh Chand is non
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existent person and accused/Gokul Chand Aggarwal (A-1), who
was a regular visitor to the office of RCS, New Delhi as well as
known to the officers/officials of RCS had signed on the noting of
02.12.03 and 03.12.03 as Secretary of the society posing as
Suresh Chand in the margin of the note sheet.
13. Accused/Kamal Singh (A-8) appointed arbitrator of the
Swarn CGHS but he did not know how to conduct audit and he
only signed and submitted the audit report in respect of the
society without physically verifying the records and has shown
fictitious balance in cash books for various dates and even without
mentioning the branch of the DSC Bank where the account of the
society was maintained.
14. Investigation revealed that accused/Gokul Chand
Aggarwal (A-1) forged signatures in the name of Sh.Suresh
Chand as Secretary on revival application, inspection report and
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minutes of the meeting. He also forged signatures on affidavits of
88 members shown as members of the society and 55
applications for enrollments as members. He also signed as
S/Sh.Ajay Gupta as President, Suresh Chand as Secretary,
Praveen Kumar as Treasurer on audit report of the society, who all
are fictitious person. He also signed the list of members on behalf
of S/Sh.Ajay Gupta, Suresh Chand, Alamjit Singh Bedi, Vice
President, all fictitious persons. He also written name and
address of the society and names of promoter members of the
society and forged their signatures on the copy of bye-laws of
Swarn CGHS. He also forged registration certificate of the society
dated 27.07.72.
15. Investigation further disclosed that the stamp papers
do not bear the name and address of the stamp vendor, all
affidavits of 144 members as per the approved list of members of
the society are shown to have been sworn on 28.11.03 attested
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by Sh.Arun Kumar Gupta, Notary Public, who already expired on
15.01.02 and the affidavits are shown attested on 28.11.03 i.e.
after death of said Notary Public and thus are forged.
16. After revival of the society a copy of the list was
forwarded by accused/D N Sharma (A-3) to AR (Policy) which
contained the forged signatures of the office bearers of the
society and those signatures were made by accused/Gokul Chand
Aggarwal (A-1) on the list of members.
17. The opinion of GEQD, Hyderabad has been obtained
who opined that the signatures appearing as Suresh Chand-
Secretary, Ajay Gupta-President, Alamjit Singh Bedi-Vice
President and Praveen Kumar-Treasurer on the note sheet,
inspection report, affidavits, applications, photocopy of UPC list,
photocopy of nomination forms, election report and other
documents have been forged by accused/Gokul Chand Aggarwal
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who also forged signatures of 88 members. It is also opined by
GEQD that in addition to these documents, accused/Gokul Chand
Aggarwal (A-1) also forged the registration certificate of the
society.
18. Investigation revealed that accused/Naveen Kaushik
(A-7) had forged the writing on the proceeding register in addition
to the signatures on the nominations for the elections and the
resignations, which has been so opined by the GEQD,
Hyderabad. It is also revealed in the investigation that most of the
documents including inspection reports, letters, election reports,
affidavits, consolidated list of members resigned, enrolled,
receipts and payments and balance sheet etc used for revival of
Swarn CGHS were prepared on the computer of accused/Ashwini
Sharma (A-6), the hard disc of which has been seized and this
fact has been confirmed by expert of GEQD, Shimla.
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19. Based on the above facts, it has been alleged by CBI
that accused/Gokul Chand Aggarwal (A-1), Narayan Diwakar
(A-2), Daya Nand sharma (A-3), Uday Shankar Bhatnagar (A-4),
Faiz Mohammad (A-5), Ashwani Sharma (A-6), Naveen Kaushik
(A-7) and Kamal Singh (A-8) entered into criminal conspiracy and
in pursuant thereof cheated RCS office by forging documents and
thereby fraudulently induced RCS office to issue revival order of
Swarn CGHS on 05.12.03 and thus A-1 to A-8 committed offence
punishable u/s 120B IPC r/w section 420,468,471 IPC and
Section 13(2) r/w Section 13(1)(d) of PC Act. Accused/Gokul
Chand Aggarwa (A-1) has also committed substantive offences
u/s 420, 468 & 471 IPC and A-2, A-3, A-4, A-5 and A-8 committed
substantive offence u/s 15 r/w Section 13(1)(d) of PC Act, 1988.
20. Sanction for prosecution of accused/U S Bhatnagar
(A-4) and accused/Kamal Singh (A-8) under section 19 of PC Act,
1988 as accorded by the competent authority has been enclosed
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with the charge sheet.
21. During the course of arguments on charge, ld.Public
Prosecutor taken the court through the documents relied upon by
CBI and statements of witnesses recorded u/s 161 Cr.PC and
submitted that there is sufficient evidence to frame charge against
all accused persons.
22. Let us see how the averments of the charge sheet
have been substantiated by oral and documentary evidence
arrayed by the prosecution to prima facie show that there is
sufficient evidence in the matter. CBI has examined PW-4 to 12,
15, 16, PW-17 & PW-25 to the fact that they had never become
member of Swarn CGHS and not executed any documents
pursuant to the same although they have been shown inducted as
members of Swarn CGHS. PW-1/Pulkeet Jain has been
examined to show that his father Sh.Ravinder Kumar Jain, who is
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shown as member of Swarn CGHS had expired on 03.01.85, who
had never become member of Swarn CGHS. PW-2 has stated
that his three sons whose names are mentioned as members of
the society had never become its members and never executed in
this connection. PW-13 and PW-17 have also stated that the
documents showing their membership with the society have not
been written or signed by them. PW-18 has stated that neither he
nor his father had ever become member of the society.
23. PW-19/Gaurav Gupta, son of notary public late
Sh.Arun Kumar Gupta, stated that affidavits of 144 members of
the society shown as attested by his father, in fact do not bear his
signatures/initials. He has stated that his father had expired on
15.01.02 and therefore, there was no question of him attesting the
affidavits subsequent to his death i.e. on 28.11.03.
PW-29/Awinash Kumar Tripathi, who is sub vendor of stamps,
stated that he is not able to identify the stamp vendor, who had
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sold the stamp papers on which the affidavits of 144 members
have been typed, as they do not bear any particulars of stamp
vendor. As per GEQD opinion 88 of these 144 affidavits have
been signed by Gokul Chand Aggarwal (A-1) in the name of
deponents.
24. PW-20/Gordhan Lal has proved that alleged members
of Swarn CGHS, namely, Gian Singh, Balwan Singh and Swaroop
Singh had already sold their properties in 1983.
25. PW-21/Ms.Shweta Mishra and PW-22/S P Mehta, who
were advocates and have been shown as appeared for society
before RCS on 25.11.03 and 04.12.03 respectively representing
the society, have stated that they never attended the court of RCS
on those dates and never represented any such society.
26. PW-23/Ravinder Kapur, who purchased the property in
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1985 and PW-24/Dwarka Nath Sareen, who purchased Ist and 2nd
floor of the property, after the same were constructed in 1996,
have stated that no society in the name of Swarn CGHS ever
functioned from A-104, Ashok Vihar, Phase-III, Delhi and they
have no connection with the said society. This shows that the
society which was registered with this address and wound up in
1979 was not functioning there since PW-23 purchased the house
in 1985.
27. PW-27/Sanjeev Bharti, who is RCS employee has
stated that he has not received the copy of the order dated
05.12.03, vide which he was appointed election officer to conduct
election of the society within 2 months and, therefore, he did not
conduct election of Swarn CGHS. He also identified signatures of
RCS officials in the file of Swarn CGHS. PW-30/N S Khatri and
PW-31/Yogi Raj are other officials/officers and will prove the
signatures/initials of the officials who dealt with the file of Swarn
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CGHS and they will also prove the process of submission of
applications.
28. PW-28 Paras Nath, Assistant (GH) is an officer of
DDA and he will prove the procedure followed by DDA for
allotment of land.
29. PW-32 to PW-37 are Postmen of the area, who will
prove the false addresses mentioned at the envelopes of speed
post sent in the names of persons shown as members of Swarn
CGHS.
30. PW-38 will prove that no person by the name of
Suresh Chand, Secretary of Swarn CGHS ever resided at 221,
Hakikat Nagar, Kingsway Camp, Delhi. This will prove that
Suresh Chand, which is assumed name of accused/Gokul Chand
Aggarwal (A-1), is a fictitious name/person.
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31. PW-40 and PW-42 have denied any association with
the Swarn CGHS but they know accused/Gokul Chand Aggarwal
(A-1). PW-41 has also proved that her deceased/husband-
Praveen Kumar Jain was never member of Swarn CGHS.
32. PW-45 and PW-46 will prove the procedure to be
followed for registration, liquidation and revival of co-operative
group housing societies.
33. PW-47 will prove the handwriting of RCS officials on
audit report. PW-49 and PW-50 are handwriting expert and they
will prove the handwriting expert's opinion. PW-51 and PW-52 are
the sanctioning authorities in respect of accused/Kamal Singh
(A-8) and U S Bhatnagar (A-4) for giving sanction u/s 19 of PC
Act.
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34. Besides statement of witnesses CBI has also relied
upon certain documents to prove the allegations mentioned in the
charge sheet against accused persons. FIR of the case is
document no.1, file of RCS pertaining to Swarn CGHS containing
pages 1/N to 16/N and 1/C to 225/C is D-2(i); pages 1/C to 326/C
is D-2(ii) and pages 1 to 37 and 145 notices, besides a noting on
page 1/N is D-2(iii), relevant certified copies of dispatch register is
D-3 and postal certificate/un-delivered letters sent to DDA is D-3.
D-7 will prove the non delivery of letters sent to
President/Secretary and members of Swarn CGHS by RCS.
35. D-8 will prove that Sh.Praveen Jain, alleged Treasurer
of the society had already expired on 06.05.92. D-9 will prove
submission of list by the Secretary of Swarn CGHS in office of
RCS which was forwarded to DDA for allotment of land. D-10 is
about postings of RCS officials/officers during relevant period.
D-11 will prove the audit of the society after revival. D-12 is
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specimen handwriting from S-1 to S-475 to prove the handwritings
of accused persons and forgery done by them. D-13 is opinion of
GEQD, Hyderabad which will prove the handwriting expert's
opinion, D-14 is the supplementary opinion by GEQD, Hyderabad,
D-15 is the opinion of GEQD, Shimla about the documents found
in hard disc seized from accused/Ashwani Sharma. D-16 & D-17
are the sanction orders u/s 19 of PC Act against accused/Kamal
Singh and U S Bhatnagar respectively. Besides the additional
document is a search/seizure memo prepared by CBI for recovery
of documents and hard disc from office of accused/Ashwani
Sharma which has to be proved by witnesses whose names are
mentioned in the additional list of witnesses.
36. Ld.counsel for accused/Gokul Chand Aggarwal (A-1)
could not appear for arguments on charge on his behalf.
However, written arguments have been filed by A-1 which are on
record. It is submitted by accused/Gokul Chand Aggarwal (A-1)
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that there is no sufficient ground for framing of charge against him
and offence u/s 420 IPC is also not attracted. It is submitted that
for framing of charge u/s 420 IPC, it is necessary that deceived
person had delivered some valuable security or property to
someone. He has also submitted that there is not even a single
averment of cheating by him and there is nothing in the charge
sheet that he had obtained any valuable security from the
complainant by false inducement and hence no charge u/s 420
IPC is made out against him. He submits that in this case the
offence of cheating was not complete as the land was not allotted
by DDA to Swarn CGHS pursuant to approved list of members
which was forwarded by RCS to DDA. As per the case of CBI, the
freeze list of members was got forwarded by accused no.1 from
RCS office to DDA in conspiracy with private persons and public
servants arrayed as accused in this case. But he could not
succeed in getting allotment of land. Thus the charge for attempt
to commit offence of cheating is certainly made out against him.
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37. He has further argued that even offence of forgery u/s
468 IPC is not made out as the forgery of documents should have
been for the purpose of cheating. The facts, as discussed above,
make out a clear intention and attempt on the part of A-1 to cheat
RCS office by getting the freeze list of members forwarded to
DDA and thereby making an attempt to take allotment of land
based on the said list and hence the forgery of documents
submitted by A-1 to RCS office comes within the purview of
Section 468 IPC. It was him who had submitted the documents to
RCS office along with letter purportedly signed by one Suresh
Chand, Secretary of Swarn CGHS, which signature has been
allegedly made by him.
38. Accused/Gokul Chand Aggarwal (A-1) has submitted
that the specimen handwritings sent to GEQD for expert's opinion
are not admissible in evidence. For this purpose, he has relied
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upon a judgment cited as Sapan Haldar and Anr. Vs. State, [Crl.
(A).804/2001)]. The same judgment has also been relied by
ld.counsel for accused/Naveen Kaushik and we will see the
impact of said judgment while discussing the arguments of
ld.counsel for accused/Naveen Kaushik (A-7).
39. Role of accused/Gokul Chand Aggarwal (A-1) is
prominent and as per the charge sheet, he had forged the
signatures in the name of one Suresh Chand, as Secretary on the
revival application, inspection report and minutes of the meeting.
He also allegedly forged signatures of 88 persons on various
affidavits which have been shown as affirmed by those persons,
signatures of 55 applicants shown enrolled as members,
signature of Sh.Ajay Gupta, as President, Suresh Chand, as
Secretary and Praveen Kumar as Treasurer on the audit report of
the society whereas all those persons are fictitious person and he
forged signatures of S/Sh.Ajay Gupta, Suresh Chand and Alamjit
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Singh Bedi (VP) on the list of members and all these persons are
found to be fictitious person. GEQD opinion (D-13 to D-15) is
available which will prove that various questioned documents in
respect of revival applications, inspection report and minutes of
meeting in D-2(i), affidavits of 88 persons in D-2(ii) from page no.
1/C to 143/C, 55 applications of enrollments in D-2(ii) from page
188/C to 314/C, audit report of the society in D-2(i) from page 8/C
to 147/C, forged signatures of Ajay Gupta, Suresh Chand and
Alamjit Singh Bedi in D-9(i) and bye-laws in D-2(i) from page
148/C to 116/C and registration certificate, D-2(i) page 173/C have
been forged in the handwriting of accused/Gokul Chand Aggarwal
(A-1). Thus, there is sufficient evidence arrayed by the
prosecution to show that a prima facie case exists against him to
frame charge for offences, as alleged.
40. Accused/Narayan Diwakar (A-2) has argued that this
was not a case in which the society was finally wound up and so
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could not be revived. He has submitted that the society was
under liquidation when it was revived by his orders and hence
there was no requirement of any document for the purpose of
revival of the society as the registration of the society was not yet
cancelled by the date on which order of revival was passed by
him.
41. Accused/Narayan Diwakar (A-2), relying upon a recent
judgment of Hon'ble Delhi High Court in A K Ganju Vs. CBI (Crl.M
C No.2384/11) in Crl.M A No.8693/11 (judgment delivered on
22.11.13), submitted that the ratio of the aforesaid judgment
squarely applies to his case as like A K Ganju, who was doing his
duties under MCD Act, he has also been doing his duties under
DCS Act and Rules framed thereunder and as such the offences
of IPC and PC Act can not be attracted against him. After going
through the judgment of Hon'ble Delhi High Court in A K Ganju
Vs. CBI (supra), I find that the facts of the said case are materially
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08
Page No.27 of 68
different from the present case and moreover this case has been
registered on the basis of directions given by Hon'ble High Court
of Delhi in CWP No.10066/04 dated 02.08.05 and, therefore, there
is no point in agitating that even the FIR of the present case is
liable to be quashed as it is similar to the case of A K Ghanju
(supra) where the Hon'ble High Court of Delhi was pleased to
quash the charge sheet. Further, in that case Hon'ble High Court
had exercised powers under Section 482 Cr.PC which are not
available to subordinate courts.
42. Accused Narayan Diwakar has argued that this was
not a case in which the society was wound up and so could not be
revived. He has submitted that the society was under liquidation
when it was revived by the orders of RCS/accused Narayan
Diwakar hence there was no requirement of any documents for
the purpose of revival of the society as the registration of the
society was not yet cancelled by the date on which order of
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revival was passed by accused Narayan Diwakar.
43. He has relied upon an order of Division Bench of
Hon'ble Delhi High Court in Vikas CGHS case to submit that it
was the duty of RCS to pass revival order when the application
was made by the society for its revival. He has relied upon
Sections 6 and 78 IPC to submit that when a person is bound to
do certain acts as per the law or as per the Judgment/order of the
court, he cannot be held guilty of doing that act.
44. He urged that RCS was supposed to pass a
mechanical order reviving the society as he was obliged to do so
under the law. He has submitted that in no case an application
for revival has been dismissed by the RCS and moreover, such an
order passed by the RCS was an appealable order against which
the appeal could be preferred to the Lt. Governor under Chapter
XI of DCS Act, 1972. He has thus urged that no illegality has
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been committed by him for which a charge could be framed qua
him.
45. It is pertinent to note that the order of revival passed
by the accused Narayan Diwakar is not being challenged before
this court. What is in question is his involvement in criminal
conspiracy with other accused persons in order to get revived
Swarn CGHS on the basis of forged and fabricated documents
and get the list of 144 fake members of society, approved and
forwarded to DDA for the purpose of allotment of land by DDA at
cheaper rates.
46. He has submitted that he was posted as Registrar of
Cooperative Societies during the relevant period, holding hearings
and passing quasi judicial orders as per provisions of DCS Act,
1972. During the disposal of his official duties as RCS, he was
assisted by subordinate staff including the senior officers such as
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Joint Registrar of Co-operative Society and Assistant Registrar of
Co-operative Society who were further assisted by other
subordinate staff including their dealing clerks. The relevant
enquiry under DCS Act was got conducted through the
subordinate staff and on furnishing reports recommending revival
of the society, he passed statutory orders u/s 63(3) of DCS Act,
1972. He has drawn attention of the court towards the provisions
of rule 105 of DCS Rules, 1973 alongwith Judgment of Hon'ble
High Court in Vikas CGHS Vs. Registrar of Co-operative
Societies & Ors. (Civil Writ No.1767/96) dated 21.11.86.
47. On careful perusal of the provisions of rule 105 and
the order of Hon'ble High Court in Vikas CGHS case, I find that it
is laid down that on expiry of 3 years from the date of order for
winding up of the society, the liquidation proceedings are deemed
to have been terminated and an order to that effect has to be
passed by the Registrar. In the instant case, no order was
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passed by the RCS to that effect.
48. However, accused/Narayan Diwakar wants that the
court should accept that the purport of law laid down by Hon'ble
High Court in Vikas CGHS case (supra) is that on expiry of period
of 3 years from the date of winding up order, the society is
automatically revived by virtue of provisions of 105 as interpreted
by Hon'ble High Court, unless it is liquidated within that period.
However, neither rule 105 nor the order of Hon'ble High Court lays
down that there would be automatic revival of the society if it is not
liquidated within a period of three years of passing of the winding
up order. Even if it is taken that the spirit of the aforesaid rule and
order of Hon'ble High Court is that the society is deemed to has
been revived on expiry of period of three years on the date of
passing of the winding up order, in that case RCS was not
required to pass a revival order more so in pursuance of criminal
conspiracy and based on the forged and fabricated
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documents/reports.
49. He has further submitted that as per the provisions of
Section 13(1)(d) of PC Act, 1972, it is required that the accused
public servant should be recipient of valuable thing or pecuniary
advantage but in the instant case there is not even allegation to
this effect. The careful reading of provisions of Section 13 (1)(d)
would shows that it is not always necessary that the public
servant, should by corrupt or illegal means, obtain valuable things
or pecuniary advantage for himself only. It may be obtained 'for
himself or for any other person'. Thus there is no substance in the
submissions made by accused Narayan Diwakar.
50. He has also submitted that no land was allotted by
DDA pursuant to the revival order passed by him and hence no
offence is committed by him or other accused persons even u/s
511 of Cr.PC. In this case all the steps were taken by accused
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persons for getting allotment of land from DDA in the name of
society which had ultimately not fructified. Thus, though there
may not be elements to constitute a completed offence u/s 420
IPC and section 13(1)(d) r/w section 13 (2) of P.C.Act but the facts
alleged are sufficient to constitute offences of conspiracy and
attempt to commit offences u/s 420 IPC and section 13(2) r/w
Section 13(1)(d) P.C.Act, besides offence under section 468 and
471 IPC r/w section 468 IPC.
51. Accused Narayan Diwakar has also pointed out that
there is lack of evidence in the present case and that he was not
having a knowledge about the commission of offence which is a
necessary element to constitute an offence of conspiracy. In this
respect the evidence arrayed by the prosecution in this case is
prima facie showing that there is sufficient material to impute the
knowledge on the accused officials of RCS including accused
Narayan Diwakar to make out a prima facie case against all of
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them.
52. He has also filed submissions by way of application
challenging the jurisdiction of this court to try the present case. He
has also relied upon the Judgment of Hon'ble Supreme Court in
A.Subair Vs. State of Kerala, 2009 Cri.LJ 3450 wherein the
Hon'ble Supreme Court has held that a presumption u/s 20
P.C.Act cannot be drawn where complainant was not examined to
prove the demand of bribe by the appellant who was a clerk at
Regional Transport Office and allegedly demanded bribe for
delivery of the driving license. It was held that mere recovery of
the currency notes was not sufficient proof of demand and
acceptance and hence conviction of the appellant was improper.
He has relied upon the observation made by Hon'ble Supreme
Court in para 10 of judgment, wherein it was held that in the
absence of proof of demand or request from public servant for a
valuable thing or pecuniary advantage, the offence under Section
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Page No.35 of 68
13 (1)(d) cannot be held to be established. The case before
Hon'ble Apex Court was the trap case u/s 7 of P.C.Act and
Section 13(2) r/w Section 13 (1)(d) of P.C.Act, where allegations
of specific demand and acceptance of bribe was a necessary
element of the offence. The facts of the case in hand are
materially different from the facts of the case of A.Subair (supra).
Therefore, I am of the view that the accused Narayan Diwakar
cannot take shelter of Judgment of Hon'ble Supreme Court in
A.Subair(supra) for claiming discharge in the present case, as
the observation of the Hon'ble Supreme Court in A.Subair's case
(supra) were in the facts and circumstances peculiar to that
specific case.
53. Accused Narayan Diwakar has further submitted that
he was Registrar of Cooperative Societies at the relevant time
when the alleged offence had taken place and the process of the
functioning of RCS is that the note is initiated and put up by
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Page No.36 of 68
Dealing Assistant who submits his note to AR and then AR
submits note to DR and ultimately it reaches to the RCS. He has
submitted that if anything has been done at the lower level, he
cannot be held responsible for the same. The case of the
prosecution herein is that accused Narayan Diwakar, the then
RCS, alongwith his other officials had entered into a conspiracy to
commit the crime as alleged in this case. And pursuant to that
conspiracy he had cancelled the winding up order of the society
and approved the list with fake members. Hence the submission
of accused Narayan Diwakar that he was acting in good faith and
only on the basis of note given by his subordinate officials, is his
defence plea which cannot be considered at this stage. For an
offence of conspiracy, it is not necessary that there should be
direct evidence as it is derived from the circumstantial evidence
which may be proved in trial. It is also settled position of law that
the charge can be framed even on the basis of strong suspicion.
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Page No.37 of 68
54. Sh.S K Bhatnagar, ld.counsel for A-4/U S Bhatnagar,
A-5/Faiz Mohammad and A-8/Kamal Singh has submitted that
they being public servants u/s 21 IPC, hence protected u/s 197
Cr.PC. He has submitted that these accused public servants
were performing their duties for which they have been charged in
the present case and thus the CBI has committed an error in not
obtaining the sanction for their prosecution u/s 197 Cr.PC.
55. The ld.Public Prosecutor for CBI has submitted that
sanction to prosecute a public servants u/s 197 Cr.PC is not
required particularly in the facts and circumstances of the case as
it was not the part of the official duty of accused-public servants to
enter into the criminal conspiracy with his other co-accused
persons for forging the proceedings register and other documents
and then approve the freeze list of 144 members based on those
forged records and forwarding the same to DDA for allotment of
land to the society.
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Page No.38 of 68
56. He has also relied upon judgment cited as Prakash
Singh Badal Vs. State of Punjab, (2007) 1 SCC 1 to contend
that the acts attributed to the accused can hardly be termed as
part of their administrative duties and the protection u/s 197 Cr.PC
is only meant for honest employees.
57. Answering to a reference, the full bench of Hon'ble
Allahabad High Court in Smt.Neera Yadav Vs. CBI (Bharat
Singh) 2006(2) RCR (Crl.) 765 after discussing the judicial
precedents on the issue, concluded that the offence under the
Prevention of Corruption Act, 1988 as well as charge of Criminal
Conspiracy, can not be said to constitute acts in discharge of
official duty. (Para 127).
58. This well settled position of law has been re-affirmed
by Hon'ble Supreme Court in Raghunath Anant Govilkar Vs.
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08
Page No.39 of 68
State of Maharashtra & Ors., 2008(1) RCR (Criminal) 1042, as
under:-
That apart, the contention of the respondent that for
offences under Sections 406 and 409 read with Section 120-B sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This court has stated the correct legal position in " Srreekantiah Ranatta Munnipslli Vs. State of Bombay, AIR 1955 SC 287 and Amrik Singh Vs. State of Pepsu, AIR 1955 SC 309" that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, 1972 (3) SCC 89 as follows:-
" 66. The next point was with regard to consent or sanction. There is no doubt that in respect of B P CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.40 of 68 Sinha consent was properly given by the Deputy Commissioner. So consent was also given in respect of N K Banerjee and Harihar Prasad by the Chief Secretary. This is not a case of sanction or consent under Section 196A of the Code of Criminal Procedure. On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli Vs. State of Bombay and Amrik Singh Vs. State of Pepsu was as follows:
" It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary."
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.41 of 68 The real question, therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they can not be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
59. In State of M P Vs. Sheetla Sahai & Ors., 2009 Crl.LJ 4436, it was observed by Hon'ble Supreme Court that section 197 Cr.PC do not extend its protective cover to every act or omission done by public servant in service but restricts its scope of operation to only those acts or omissions which are done CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.42 of 68 by the public servant in discharge of the official duty. Thus, where the alleged act done by the public servant is merely a cloak for doing the objectionable act, the protection u/s 197 Cr.PC is not available.
60. Hon'ble Supreme Court in Choudhary Praveen Sultana Vs. State of Bengal & Anr., 2009 Crl. J, 1318 observed that if the office of a public servant is misused for doing things which are not otherwise permitted under the law, such acts can not claim the protection of Section 197 Cr.PC and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence in respect of prosecution for such excesses or misuse of authority no protection can be demanded by the public servant concerned.
61. Thus while considering the requirements of sanction as contemplated by Section 197 Cr.PC, the court has to make the CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.43 of 68 balance between the protection granted to the public servant and the safeguard available to the citizens against the excess of the erring public servants. The aforesaid acts of accused/U S Bhatnagar, Faiz Mohammad and Kamal Singh, by no stretch of imagination, can be said to be the acts done by them in the official discharge of their duties or purported to be acts in the discharge of their official duties.
62. Under a similar situation where the orders passed by the Special Courts (CBI) dismissing applications of the officials of RCS claiming protection u/s 197 were assailed before Hon'ble High Court by filing revision petitions, the Hon'ble High Court, vide order dated 02.02.09, while dismissing the Criminal Revision Petition No.593/08 (also nos.528/08, 556/08, 573/08, 574,08, 575/08, 576/09 and 577/08) observed, as under:-
" 9. In the considered view of this Court, there is no CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.44 of 68 merit in each of these petitions. The essential charge against all these petitioners is for the offences of criminal conspiracy under Section 120-B IPC. The judgments referred to by the petitioners do not come to the assistance at all. In Anjani Kumar, it was found that the complaint filed against the Government official was a counter blast to the action taken by him in his official capacity. The facts in the instant case are of course very different. The facts in Sankaran Moitra were also very different. In Bholu Ram the Supreme Court held, after referring to the judgment in Prakash Singh Badal Vs. State of Punjab that " offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official duty'." It was also pointed out that the question of mens rea could only be decided at the time of trial and that " a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings.
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.45 of 68 Hence, proceedings could not have been quashed on the ground of want of sanction in the present case."
10. In the considered view of this Court the decision of the Supreme Court in Prakash Singh Badal and Bholu Ram is a complete answer to the contentions raised by the petitioners.
63. In view of the above discussion, I am of the opinion that prima facie the alleged acts of accused/U S Bhatnagar, Faiz Mohammad and Kamal Singh were dehors their official duties and, therefore, they are not entitled to the protection u/s 197 Cr.PC. However, it is made clear that nothing said herein would have bearing on the merits of the case and if at the end of the trial, it is found that they were in fact performing their official duties only, then the effect of absence of sanction u/s 197 Cr.PC can be considered at that stage. It is worthwhile to note that accused/U S Bhatnagar (A-4) had earlier moved an application CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.46 of 68 u/s 197 Cr.PC which was withdrawn by him on 12.10.09 and on same date he had filed an application u/s 19 of PC Act which was dismissed on merits by the court on 21.12.09. Application filed by accused/Narayan Diwakar (A-2) claiming protection u/s 197 Cr.PC was already dismissed by the court vide order dated 14.08.08.
64. Sh.S K Bhatnagar, ld.counsel appearing for accused/U S Bhatnagar (A-4) has then submitted that accused/U S Bhatnagar has done his statutory duty of carrying out inspection and verification on the basis of records which he found from the office bearers of society. He has submitted that he had perused those documents which were produced by the society and thereafter given his report and hence can not be held criminally liable. His submissions about innocence of accused/U S Bhatnagar are away from the facts which have been brought on record during the investigation as it has been found that the office of the society did not exist at 52, Samaypur Road, Libaspur, Delhi, CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.47 of 68 which has been shown as office address of the society in inspection report dated 30.10.03 and he has shown having visited this house for any verification. It has also been revealed that Sh.Suresh Chand is a non existent person, hence there was no question of Suresh Chand meeting accused/U S Bhatnagar at the office of the society for producing any documents for his verification. In D-7, there is an envelope for sending speed post by RCS office which returned with remark of postman dated 01.01.05 that such society do not exist there. His report submitted to RCS office is shown as prepared on the computer of accused/Ashwani Sharma (A-6) as opined by GEQD (D-15) amongst other documents.
65. He has then submitted that there was statutory duty of CBI to conduct search at the premises of the society to find out the records of the society at its office but CBI did not conduct any search. It has come in evidence collected by CBI during CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.48 of 68 investigation that there was no such office of society existing at the given address, therefore, there was no question of conducting search by CBI at 52, Samaypur Road, Libaspur, Delhi. Ld.defence counsel has submitted that report of accused/U S Bhatnagar was not a pre-requisite for revival of the society and the membership of particular individuals was the prerogative of the society and hence the RCS office had nothing to do with it. In fact the case is that in order to get the society revived with names of false members, all accused persons conspired together and hence a fake inspection was got conducted through accused/U S Bhatnagar in order to bring on record a false report along with forged and fabricated documents to lend the credence to the claim of private accused persons to revive Swarn CGHS on the basis of those documents which were collected and put on record by accused/U S Bhatnagar in connivance with other accused persons.
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.49 of 68
66. As regards accused/Kamal Singh (A-8), Sh.S K Bhatnagar, ld.counsel has submitted that there is no evidence against him as accused/Kamal Singh had given audit report of the accounts of the society after revival order was passed and the list of approved members was already transmitted by RCS office to DDA for allotment of land. From charge sheet and evidence on record, it transpires that the direction for carrying out audit was given by accused/Nrayan Diwakar, then RCS while passing the order cancelling the winding up order, directing that it was subject to the condition that pending audit shall be got conducted within two months. And pursuant to that order accused/Kamal Singh, Departmental Auditor of RCS office had submitted false audit report for the period 1972-73 to 2002-03 i.e for 30 years which report is D-11 in which he obtained signatures of Sh.Ajay Gupta as President, Sh.Suresh Chand as Secretary and Sh.Praveen Kumar as Treasurer, who all are non existent persons and as per GEQD opinion all these signatures have been done by Gokul CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.50 of 68 Chand Aggarwal (A-1). All the fake and forged financial statements of society were accepted by accused/Kamal Singh for authenticating that everything was in order whereas he even did not mention as to in which branch of DSC Bank, the account of society was maintained. No society office or its records were existing at any address, mentioned as office address of the society or its registered office or address of Suresh Chand as per the statements of PW-23/Ravinder Kapoor, PW-24/Dwarka Nath Sareen and PW-38/Sudershan Gupta, as also D-7. Even if the audit report was submitted by accused/Kamal Singh after the list of members was forwarded by RCS office to DDA for allotment of land, it merely suggest that accused officials of RCS office were very much confident that accused/Kamal Singh will submit the audit report/financial statements as suits their purpose. Had he not submitted the bogus audit report or reflected the factual position, the fraud and forgery committed by remaining accused persons could be easily detected, which itself shows his CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.51 of 68 involvement in the criminal conspiracy.
67. Ld.counsel has further submitted that the revival of the society by RCS can not be interfered by this court as it is barred specifically u/s 93(3) of DCS Act. This provision of DCS Act has no bearing on the criminal prosecution of the accused person as here the revival order is not in challenge but the accused persons are being prosecuted for commission of different offence under IPC and PC Act.
68. Sh.Neeraj Verma, Advocate appearing on behalf of accused/D N Sharma (A-3) has submitted that accused no.3 was working as AR, Co-operative Societies at the relevant time having no practical knowledge about the day to day working of RCS office as he was posted to RCS office on 10.06.03 after his ad- hoc promotion as DANICS officer and he being a new officer had followed the same procedure which was in existence at the time of CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.52 of 68 joining to RCS office. He has submitted that accused no.3 had believed on the competence of Niranjan Singh, who was earlier dealing assistant and he had put up a note on 20.10.03 to appoint accused/U S Bhatnagar (A-4), Gr.II Inspector to verify and examination the records of the society u/s 54 of DCS Act, 1972 and to bring out the factual position of the society and he had simply forwarded the same to JR, RCS and that whatever he has done in good faith and without any involvement in conspiracy on his part.
69. As regards accused/Faiz Mohammad (A-5), his counsel Sh.S K Bhatnagar has submitted that in the charge sheet, it has been wrongly mentioned that he had put up a note dated 15.10.03 proposing to appoint accused/U S Bhatnagar (A-4) as Inspecting Officer u/s 54 of DCS Act whereas the said note was put up by previous dealing assistant/Niranjan Singh. Although, it is not the stage where this fact is required to be adjudicated but CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.53 of 68 even if it is presumed that this note dated 15.10.03 (page 3/N of D-2) was put up by Sh.Niranjan Singh and not by Sh.Faiz Mohammad, yet it is admitted position that notes dated 02.12.03, 03.12.03 and 09.12.03 (D-2) have been put up by him under his signatures. It was he who entertained accused/Gokul Chand Aggarwal (A-1) on 02.12.03 when he obtained signature of accused/Gokul Chand Aggarwal as one Suresh Chand on the margin of note (Q-1) page 7/N of D-2. It was accused/Faiz Mohammad, who had put up the detailed note available on page 8/N to 15/N dated 03.12.03 to the superior authorities for considering request for revival of the society u/s 63(3) of DCS Act and approve freeze list of 144 members. In his note dated 03.12.03 at page 14/N & 15/N, he had stated that all original records pertaining to the election of the managing commitee of the society held on 27.07.03 were called for verification and placed on record. As reflected from his note dated 02.12.03 (7/N of D-2), he also purportedly verified all the records of the society which are CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.54 of 68 all forged and fabricated documents showing that Suresh Chand (fictitious person) Secretary of Swarn CGHS attended his office with original records. He also obtained signature of accused/Gokul Chand Aggarwal (A-1) as Suresh Chand on left margin of his note in the name of Suresh Chand (Q-1).
70. As regards accused/Ashwani Sharma (A-6) the allegation is that most of the document including inspection reports, letters, election reports, affidavits, consolidated list of members resigned/enrolled members, receipts and payments, balance sheet etc used for revival of Swarn CGHS, were prepared on the hard disc of his computer, which has been confirmed by GEQD report. While the GEQD report in this respect (D-15) was already on record, the CBI also brought on record the additional document and additional list of witnesses with permission of the court. The additional document is the photocopy of search/seizure list dated 01.08.05 (original available in another societies case) in CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.55 of 68 respect of search conducted at office premises of accused/Ashwini Sharma in his presence vide which certain documents and 3 computer hard discs were seized. The names of witnesses S/Sh.Naresh Kumar Sharma, Ravinder Kumar Bansal and Dinesh Kumar Nijhavan have been mentioned in additional list of witnesses.
71. Sh.Harsh Khanna, Advocate appearing for accused/Ashwini Sharma (A-6), besides making oral submissions also filed written arguments. He has submitted that although the documents have been taken on record by the court vide order dated 18.11.13, same are neither admissible nor constitute any evidentiary value for the relevant facts in issue in the present case and the same are otherwise not admissible in law. He has also relied upon provisions of 65A and 65B of the Evidence Act in respect of admissibility of electronic records. He has submitted that the GEQD report is only an opinion and not any conclusive CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.56 of 68 proof, on the basis of which he can be prosecuted.
72. He has relied upon judgment of Hon'ble Supreme Court in Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, (2009)(1) SCC (Crl.) 51, in which it was held by Hon'ble Supreme Court that if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.
73. From the judgment relied upon by accused, it is clear that even the grave suspicion can be a ground for framing of charge. The fact narrated above and evidence arrayed by the prosecution prima facie show that accused/Ashwini Sharma was involved in the criminal conspiracy, as a result of which, the defunct society was got revived by accused persons on the basis of forged and fabricated documents. So far as the arguments of CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.57 of 68 ld.counsel about the evidentiary value of the document is concerned, same can be agitated at the time of final arguments based on evidence which may surface in trial and this is not the stage when court has to meticulously deal with the evidentiary value of the documents/hard disc recovered from possession of accused, on the basis of which, it is reasonable to believe that accused/Ashwini Sharma is involved in this case.
74. Ld.counsel for accused/Ashwini Sharma has further relied upon judgment of Hon'ble Delhi High Court in Rajib Mukhopadhyaya & Ors. Vs. Registrar, Co-operative Societies, 141 (2007) DLT 321 (DB) to submit that the judgment of Hon'ble Delhi High Court in said judgment squarely applies to the present case. From careful perusal of entire judgment, I find that the same is entirely on different facts & circumstances of the case which at all does not apply to the facts & circumstances of instant matter. CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.58 of 68
75. He has also relied upon judgment of Hon'ble Supreme Court cited as AIR 1998 SC 2410, (2007) 6 SCC 236 and 2004(1) JCC 10 but I find that none of these judgments help accused/Ashwini Sharma to claim discharge in the matter. He has also relied upon orders passed by Hon'ble Delhi High Court in A P Narang's case which has already been discussed earlier while discussing the arguments as advanced by accused/Narayan Diwakar (A-2). He has then relied upon order passed by Hon'ble Delhi High Court in criminal revision petition no.397/10 and 398/10 and WP(C) No.2441/2011 dated 23.05.11 but these orders do not help accused in any manner.
76. As regards accused/Naveen Kaushik (A-7), Sh.S K Bhatnagar, Advocate, has argued that CBI has not pointed out as to which documents have been forged by accused/Naveen Kaushik and whether those documents were used by him. Besides arguing on his behalf, written arguments have also been CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.59 of 68 filed.
77. It has been argued by ld.counsel for accused/Naveen Kaushik (A-7) that the specimen handwriting and signatures obtained from accused without permission of the court, can not be admitted into evidence and hence the opinion of GEQD based on the same in respect of questioned documents can not be relied upon. In this respect, he has relied upon judgment of the Full Bench of Hon'ble Delhi High Court delivered in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB), wherein the Hon'ble Delhi High Court had laid down that an investigating officer, can not obtain handwriting sample or signature sample from a person accused of having committed an offence, which power was not available even to the courts prior to insertion of Section 311 A of Cr.PC and thus, in cases where the IO has obtained such samples without permission from the Magistrate the same was held to be inadmissible in evidence.
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78. On the other hand, ld.Public Prosecutor has relied upon a judgment of Hon'ble Supreme Court in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 and a recent judgment of Hon'ble Supreme Court in Umesh Kumar Vs. State of Andhra Pradesh, 2013 IX AD (SC) 581 (decided on 06.09.13). Ld.Public Prosecutor has drawn attention of the court towards para no.27 of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), which is as under:-
27. It is settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.61 of 68 methods was not the procedure established by law (Vide:Yusufalli Esmail Nagree Vs. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia Vs. R K Birla & Ors., 1970 (2) SCC 888; R M Malkani Vs. State of Maharashtra, AIR 1973 SC 157; Pooran Mal Vs. Director of Inspection, Income Tax, New Delhi & Ors, AIR 1974 SC 348 and State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC
600).
79. In view of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), it is clear that even if evidence is procured illegally by the investigating authority, same is admissible. Hence, at this stage of charge, it would not be proper to take a view that opinion of GEQD based on the comparison of questioned writings/signatures with the sample handwriting/signatures obtained from accused is admissible or inadmissible in evidence. This plea can be heard and adjudicated at the stage of judgment based on the evidence which may ultimately surface after trial.
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80. Relying upon judgments cited as Nathmlal Vs. State of M P, AIR 1966 SC 43, Anil Kumar Bose Vs. Stae of Bihar, AIR 1974 SC 1560 and S Swaminathan Vs. State of Delhi, 2007 (4) JCC 2750, he has submitted that mens rea is one of the essential ingredients for constituting an offence. Mens rea surfaces after trial of the case and hence court is not required to meticulously appreciate as to whether the acts alleged to have been performed by accused/Naveen Kaushik were backed by requisite intention or knowledge at this stage of framing of charge. He has also relied upon judgments cited as 2007 IV AD (Delhi) 173, 2004(1) JCC 110, (1994) 5 SCC 152, AIR 1977 SC 1091 and AIR 2003 Kerala 191 to submit that CBI has not pointed out in the charge sheet as to where the documents allegedly forged by accused/Naveen Kaushik have been used. There is no confusion in the charge sheet that the documents which are allegedly forged by accused/Naveen Kaushik have been used by accused/Gokul Chand Aggarwal (A-1) and other accused persons for revival of CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.63 of 68 Swarn CGHS and approval of freeze list of its 144 members. He has relied upon an order passed by Hon'ble High Court of Delhi in Shobha Tomar Vs. Vijay Co-operative Group Housing Society on 08.03.13 {WP(C) No.1536/2013)} where Hon'ble High Court dismissed writ petition filed by petitioner claiming that she had not resigned from membership of the society although she did not contribute a single penny for purchase of land and construction of flat. There is nothing in this order which can help accused/Naveen Kaushik to claim discharge. He has also raised some of those issues which have been agitated by accused Narayan Diwakar, as already discussed.
81. The specific allegations against accused/Naveen Kaushik is that he forged the writings on the proceeding register in addition to the signature on the nomination forms for the elections and the resignations which has been confirmed by opinion of GEQD, Hyderabad (D-13). As per opinion expressed by GEQD CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.64 of 68 writings at Q-894 to Q-902, Q-886 to Q-892, Q-706, Q-748, Q-749, Q-752 to 761 and Q-904 to 910 have been written by the person whose specimen handwritings are on sheets S-223 to S-325 i.e of accused/Naveen Kaushik. The questioned writings from Q-894 to Q-902 available on copies of proceedings register {D-2(1) page 172/C to 163/C}, Q-886 to 892 & Q-706 available on nomination form {D-2(1) page 186/C to 180/C}, Q-748 & Q-749 on resignation form and receipt {D-2(ii) page 325/C}, Q-752 to Q-761 on resignation form and receipts {D-2(ii) page 323/C to 319/C}, Q-904 to Q-910 on resignation forms and receipts {D-2(ii) page 328/C to 319/C} as per opinion of GEQD (D-13) match with specimen handwritings of accused/Naveen Kaushik (A-7).
82. Sh.Bhatnagar, ld.counsel for accused/U S Bhatnagar, Faiz Mohammad, Naveen Kaushik and Kamal Singh has relied upon judgments of Hon'ble Supreme Court in State of Maharashtra Vs. Mohd.Yakub & Ors, AIR 1980 SC 1111 and CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.65 of 68 Aman Kumar Vs. State of Haryana, 2004 (2) CCC 212 (SC) to submit that the acts alleged to have been committed by accused were short of an attempt as they were at the stage of preparation only. He has submitted that unless the allotment of land was offered by DDA to the society, the attempt was not complete. In my view once the forged and fabricated list of members of the society, which was got approved on the basis of forged and fabricated documents from RCS and the same was submitted by RCS office to DDA for allotment of the society, all efforts on behalf of accused persons were complete. Hence, accused persons had already crossed the limit of preparation and had attempted to cheat DDA for allotment of land after getting approved list from RCS office on the bass of forged and fabricated documents/reports.
83. In view of sufficient documentary and oral evidence arrayed by the prosecution to prove the case against the accused CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08 Page No.66 of 68 persons, as discussed above, I find that a prima facie case to frame charge u/s 120 B r/w 420/468/471 r/w 468 IPC and section 13 (2) r/w 13 (1) (d) of P.C.Act, 1988, is made out against accused Gokul Chand Aggarwal (A-1); Narayan Diwakar (A-2); Daya Nand Sharma (A-3); Uday Shankar Bhatnagar (A-4); Faiz Mohammad (A-5); Ashwini Sharma (A-6); Naveen Kaushik (A-7) and Kamal Singh (A-8). Besides, a prima facie case to frame charge for substantive offence u/s 15 r/w Section 13 (1)(d) of PC Act, 1988 is made out against accused public servants, namely, Narayan Diwakar (A-2), Daya Nand Sharma (A-3), Uday Shankar Bhatnagar (A-4), Faiz Mohammad (A-5) and Kamal Singh (A-8). Additionally, a prima facie case to frame charge for substantive offences u/s 420 r/w 511, 468 and 471 r/w 468 IPC against accused/Gokul Chand Aggarwal (A-1); u/s 468 and 471 r/w Sec. 468 IPC against accused/Uday Shankar Bhatnagar (A-4) and Kamal Singh (A-8); and u/s 468 IPC against accused/Naveen Kaushik (A-7), are also made out.
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84. It is, therefore, ordered that the charge be framed against accused persons accordingly. It is clarified that nothing said herein shall prejudice the final outcome of trial.
Announced in the open ( R.P.PANDEY )
Court on 04.03.14 SPL.JUDGE, CBI (01)
ROHINI COURTS, DELHI
CBI Vs. Gokul Chand Aggarwal & Ors (Swarn CGHS) CBI No.77/08
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