Delhi District Court
Central Bureau Of Investigation vs . on 7 June, 2012
IN THE COURT OF SH.R P PANDEY; SPECIAL JUDGE-01 (CBI)
ROHINI COURTS:DELHI
CBI No.60/10
RC BD.1/2005/E0014 CBI/BS& FC/N.DELHI
U/S 120-B,420,467,468,471 IPC & 13 (2)/13(1)(d) PC
ACT 1988
ID NO.02404RO436712006(VEENA PANI CGHS)
Central Bureau of Investigation
Vs.
1.Narayan Diwakar s/o Late Chatti Lal r/o G-30, Masjid Modh, Greater Kailash Part-II, New Delhi-48
2. Daya Nand Sharma s/o Late Sh.Ram Diwaya r/o H.No.1378, Ist Floor, Rani Bagh,Delhi-34
3. Sh.Narayan Dutt Kaushik s/o Sh.Brahm Dutt Sharma r/o 2-A, Civil Line Enclave, Civil Line, Gurgaon, Haryana
4. U.S.Bhatnagar s/o Sh.Shiv Shankar Bhatnagar CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.1 of 33 r/o B-479, Type-II, Delhi Admn.Flats, Timar Pur, Delhi
5. Faiz Mohammad s/o Sh.Gulam Mohammad r/o 4794, Bara Hindu Rao, Near Sadar Bazaar, Pahari Dhiraj, Delhi-6
6. Gokul Chand Aggarwal s/o Late Sh.Jagdish Prasad r/o A-603, Ashoka Apartments, Sector-9 Rohini, Delhi-85
7. Kamal Singh s/o Late Sh.Bakhtawar Singh r/o H.No.677, Vill. & PO Samaipur Badli Delhi-42.
8. Balam Singh Aswal s/o Late Sh.Dhyan Singh r/o T-3/34, Kalyan Vaas, Delhi Govt.Flats Delhi Date of filing charge sheet : 30.11.05 Reserved for Order : 17.05.12 Date of Order : 07.06.12 ORDER ON CHARGE:
1. Arguments advanced by Ld.Public Prosecutor for CBI and the Ld. counsels for accused No.4 U.S.Bhatnagar, accused No.5 Faiz Mohammad, CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.2 of 33 accused No.6 Gokul Chand Aggarwal, accused No.7 Kamal Singh and accused No.8 Balam Singh Ashwal have been heard on charge and written arguments filed by/on behalf of accused No.1 Narayan Diwakar (in the form of composite written submissions on charge as well as his pending applications invoking the doctrine of parity in view of circular of CBI, objecting jurisdiction of this Court in view of A.Sabair's case and non-existence of the specific and proper complaint), accused No.2 Daya Nand Sharma and accused No.3 N.D.Kaushik have been perused vis-a-vis the charge sheet, statements of witnesses u/s 161 Cr.PC and documents relied upon by CBI.
2. As borne out from records, the Veena Pani Cooperative Group Housing Ltd. (for short Veena Pani CGHS) was registered with office of Registrar Cooperative Societies (for short RCS), vide registration No.596(GH) on 28.08.83 with 75 promoter members. Sh.Anil Kumar Jain was President, Deen Dayal Goyal was Secretary and Santosh Kumar Jain was Treasurer of the society. The society became defunct and was liquidated on 14.12.90. The society never changed its address till its liquidation.
3. In the year 2003-04, Gokul Chand Aggarwal @ Ajay Kumar CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.3 of 33 conspired with Narayan Diwakar, D.N.Sharma, N.D.Kaushik, U.S.Bhatnagar, Faiz Mohd., Kamal Kishore, B.S.Aswal and others to get the aforesaid society revived fraudulently and forwarded freeze list of its members to DDA for allotment of land. In furtherance of the said conspiracy , Gokul Chand Aggarwal submitted an application dated 14.09.03 to D.N.Sharma, AR (NW), requesting for cancellation of winding up order. D.N.Sharma marked that application to N.D.Kaushik, who processed it and put up note stating that the file of the society was not available. He requested that a circular may be issued to all branches for getting the file searched. D.N.Sharma recommended suggestion for issuance of circular, which was approved by accused Narayan Diwakar.
Circular was issued on 06.12.03 for search of main file. Pending report from branches/zones, N.D.Kaushik put a note, suggesting to conduct an inquiry under section 54 of the Act to know about existence and functioning of the society and reconstruction of file on the basis of record available with the society. Said proposal was put up before Sh.D.N.Sharma, who endorses it to accused Narayan Diwakar who approved it.
4. Application dated 14.09.03 was signed in the name of Ajay Kumar by Gokul Chand Aggarwal. It was mentioned that the society was CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.4 of 33 registered at A-2/45, Rajouri Garden , Delhi, which is shifted to B-1428, Shastri Nagar, Delhi. It discloses that address of the society at Shastri Nagar, Delhi was incorrect and the society never existed on that address. Subhash Gupta and Ramesh Chand Gupta denied existence of the society at the said address in their statements made to the investigating officer. U.S.Bhatnagar abused his official position and submitted a false report dated 12.11.03 to the effect that he visited the society at B-1428, Shastri Nagar, Delhi on 08.11.03. He also mentioned in his report that Ajay Kumar, Secretary, met him and produced all relevant records. He informed that there were 147 members in the society and list of members was yet to be approved. He confirmed that the society changed its address to B-1428, Shastri Nagar, Delhi, in its General Body Meeting held on 17.08.03. According to him, membership register was complete in all respect and accounts of the society were unaudited, since its registration. However, accounts were ready up to date and were verified by him. He further confirmed that elections of the Management Committee was held on 17.08.03 in accordance with provisions of the Act. He detailed that Dinesh Kumar, Mukesh Kumar, Ajay Kumar, Shiv Kumar Gupta, Ajit Singh, Smt.Madhu Bala and Rita Devi were elected office bearers of the society, which committee members were fictitious and non-existent. During the course of investigation, all members of CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.5 of 33 the society were found to be fictitious. Report submitted by U.S.Bhatnagar on 12.11.03 was accepted by accused Narayan Diwakar for revival of the society in illegal manner.
5. It revealed that report prepared by U.S.Bhatnagar was typed on the computer of Ashwani Sharma in his office at Mayur Vihar. Hard disc on his computer was seized and GEQD opined that said report was prepared on the said computer. Gokul Chand Aggarwal visited office of Ashwani Sharma for preparation of documents of various societies and Veena Pani CGHS was one of them.
6. In pursuance to the report submitted by U.S.Bhatnagar, N.D.Kaushik put up a note requesting the competent authority to consider the revival of the society u/s 63(3) of DCS Act, 1972 and approve the freeze strength of 147 members for onward transmission to DDA for allotment of land. D.N.Sharma accordingly put up the file before accused Narayan Diwakar. He ordered for holding of initial inquiry on 09.12.03 and directed to call President/Secretary of the society for hearing. Notices were sent to Secretary/President which were received by Gokul Chand Aggarwal in assumed CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.6 of 33 names of Dinesh Kumar and Ajay Kumar, at the instance of accused N.D.Kaushik. Letter sent for ascertaining position of election and audit of the society was received by Gokul Chand Aggarwal in the assumed name of Dinesh Kumar/Ajay Kumar. On 02.01.04, photocopies of list of 147 members, copy of bye-laws, list of 41 members reported to have resigned prior to 30.06.86, photocopy of resignation letters and refund of share money, list of 48 members enrolled before 30.06.86, photocopy of application form , receipt of share money and admission fee, affidavits of individual members duly notarized, affidavit purported to have been filed by the Secretary of the society in respect of enrollment of members and final list of 147 members, copies of un-audited accounts of the society and copies of election of management committee were fraudulently accepted by N.D.Kaushik, which documents were forged by Gokul Chand Aggarwal. Gokul Chand Aggarwal put signatures of members on the affidavit which fact was confirmed by GEQD.
7. N.D.Kaushik submitted file to accused Narayan Diwakar through D.N.Sharma, AR, for revival of the society. File was sent back with directions of verification of members by visiting door to door at random. Faiz Mohd. was appointed as verification officer on 09.01.04 by D.N.Sharma . Faiz CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.7 of 33 Mohd. submitted a false and concocted verification report in respect of Raman Kumar, Ajit Singh, Anil Kumar, Ashok Wadhwa, Ms.Veena Khanna, Som Dutt, Nand Lal, Avinash Bajaj, Vijay Kumar, Satish Kumar, Ravinder Singh, Mohinder Singh, Aalok Kumar, Shiv Kumar Gupta and Smt.Vimla Jain. He did not conduct door to door verification and submitted a false report, projecting that aforesaid members were genuine. He also submitted copies of forged share certificates and share money receipts of members with his report. After report of Faiz Mohd. file was again put up to accused Narayan Diwakar through D.N.Sharma for revival of the society and approval of freeze list. Sh.Deen Dayal Goyal, Anil Kumar Jain and Satish Kumar Jain confirmed that the society never changed its address to B-1428, Shastri Nagar, Delhi. According to them, there were 75 members in the society and persons shown as members in the list and in affidavits, never became members of the society. On 22.01.04, accused Narayan Diwakar marked presence of Rita Kaul, Advocate, and ordered for revival on 31.03.04. He relied aforesaid false and forged documents, report of aforesaid officers and passed revival order dated 31.01.04.
8. Kamal Singh submitted a false and manipulated audit report. He clandestinely accepted accounts documents, like balance sheet, receipts and CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.8 of 33 payments account, list of MC members, list of books of accounts and records, list of members registered during the year, 2002-03 from accused Gokul Chand Aggarwal. Gokul Chand Aggarwal forged signatures of Dinesh Kumar, Ajay Kumar and Shiv Kumar Gupta on the audit report. Kamal Singh wrongly submitted that society was having account with DSC Bank Ltd. without mentioning name of the branch. Dinesh Kumar, Ajay Kumar and Shiv Kumar Gupta were never authorized to maintain accounts of the society with the bank. Kamal Singh caused delivery of audit report to Gokul Chand Aggarwal, who was not authorized person to collect it. Balam Singh Aswal was appointed as election officer. Without conduting an election, he submitted a false report and manipulated that 38 members took part in elections, wherein Dinesh Kumar, Mukesh Kumar, Ajay Kumar, Shiv Kumar Gupta, Ajit Singh, Madhu Bala and Rita Devi were elected. Aforesaid persons were non-existent and no such elections took place. Accused Narayan Diwakar facilitated accused Gokul Chand Aggarwal @ Ajay Kumar to get the society revived, on the basis of bogus/forged documents. During the course of investigation, it emerged that accused Narayan Diwakar had revived 73 societies, during his tenure as RC. Accused Gokul Chand Aggarwal was having links with accused Narayan Diwakar and used to have contact him on his mobile phone. It has been established that CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.9 of 33 from 01.01.05 till July, 2005, Gokul Chand Aggarwal and Narayan Diwakar were in constant touch with each other through their mobile phones.
9. I have heard arguments advanced by Ld. Public Prosecutor for CBI and accused persons/their Ld. Counsels and also perused the written arguments submitted on behalf of accused No.1 Narayan Diwakar, accused No. 2 Daya Nand Sharma and accused No.3 (N.D.Kaushik).
10. Ld. Public Prosecutor has taken the court through the entire charge sheet and the documentary and the oral evidence arrayed by the prosecution to prove the charge against each of the accused persons to show that there is sufficient material to frame charge against all accused persons.
11. Accused Narayan Diwakar (A.1) has filed composite written arguments agitating several issues out of which some issues were already addressed when his application u/s 227 of Cr.PC was disposed of by the court vide detailed order dated 09.11.09. The remaining issues as agitated by him are now being considered.
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12. It has been argued by accused no.1 that no offence is made out u/s 13 of the PC Act as the prosecution has to prove that he had accepted either any bribe or any pecuniary advantage which is neither shown in the charge sheet nor statement of any of the prosecution witnesses recorded by IO. He has relied upon judgment cited as State of M P Vs.Sheetla Sahai & Ors., (2009) 3 RCR (Crl.) 835, wherein while awarding the tender, the accused public servants had allegedly put the Government to the loss to the extent of Rs. 1,02,46,200/-. However,Hon'ble Supreme Court held that the said award of contract was the need of the hour and that besides the fact that the accused had caused wrongful gain to the third party, section 13(1)(d) of PC Act shall still be not attracted as it requires that the award of the contract, given by the accused public servant was by abusing his position as a public servant. In Sheetla Sahai's case (supra), Hon'ble Supreme Court, after going through the facts of the case, had observed that decision of the accused therein at the relevant time, was rather in the interest of State. But in the present case, I find that the society was fraudulently got revived and land was sought to be allotted to the society with all fictitious members in conspiracy with other public servants and a private person, which do not show that the act was in the interest of State. Thus the facts of Sheetla Sahai's case could not be related to the facts of the CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.11 of 33 present case and as such the ratio of law propounded by Hon'ble Supreme Court in that case is not applicable to the facts & circumstances of the present case.
13. Accused/Narayan Diwakar (A-1) has also relied upon judgment titled as A Subair Vs. State of Kerala 2009 Crl.LJ 3450, but I find that the said case was primarily the case of illegal gratification where no demand could be proved. Since instant case is not the case involving illegal gratification, therefore, there is no force in the submission of accused that demand should have been one of the ingredients of the offence alleged against him, which is lacking. Thus, his claim for parity with accused in A subair's case (supra) is not tenable.
14. It has been argued by accused Narayan Diwakar (A.1) that his prosecution by CBI is bad as there is no proper and specific complaint for onset of investigation. In the instant case, the charge sheet shows that pursuance to the directions of Hon'ble Delhi High Court, vide order dated 02.08.05 passed in writ petition (Civil) No.10066/04, the CBI conducted a thorough investigation in the matter of 135 Co-operative Group Housing Societies and thereupon the CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.12 of 33 preliminary inquiry was registered on 08.08.05 by CBI against six societies including Veena Pani CGHS which was subsequently converted to regular FIR, as the preliminary enquiry had disclosed commission of cognizable offences by the accused persons. The charge sheet does not disclose any deviation of provisions of Cr.PC by the CBI while registering or investigating the instant case.
15. It has been submitted by accused/Narayan Diwakar that there was no illegality in the order of setting aside the winding up of the society because as per the judgment of Hon'ble Delhi High Court in Vikas CGHS Vs. Registrar of Co-operative Societies & Ors. (Civil Writ No.1767/96) and as per Rule 105 of DCS Act, 1972, the winding up proceedings of a society has to be closed within one year from the date of winding up unless the period is extended by Registrar and proviso to Sub Rule 1 of Rule 105 provides that Registrar can extend the period not exceeding six months at time and the extension can only be granted for a period of three years. It was observed by Hon'ble High Court that in their view it has to be assumed that the order passed u/s 63 of DCS Act was cancalled and the society continues to exist. Thus, it has been submitted by accused/Narayan Diwakar (A.1) that even without his order the society in question was deemed to be existing and thus there was no impact of revival CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.13 of 33 order passed by him. In the present case, this issue is not in question and in fact the allegations against accused/Narayan Diwakar are very clear that he passed the order of cancellation of winding up of the society in conspiracy with other accused persons for the purpose of obtaining for himself or for private accused persons a valuable thing or pecuniary advantage i.e. allotment of land by DDA at cheaper rate and thus he abused his position as a public servant without holding any public interest while holding office as a public servant.
16. Arguing his application to invoke the doctrine of party, it has been submitted by accused/Narayan Diwakar (A.1) that as per circular No. 02/2010 dated 11.03.10, a policy decision was taken by CBI clarifying that the employees of National Agricultural Co-operative Marketing Federation of India Limited (NAFED) are not public servants under P.C.Act, 1988, hence there would be no requirement of seeking permission of the Government u/s 6 A of DSPE Act, 1946 or sanction of the Government for prosecution u/s 19 of the P.C.Act, 1988. Accused Narayan Diwakar (A.2) was working as a Registrar of Cooperative Societies and he was not an employee of a society registered under DCS Act, hence he or other employees of RCS can not claim parity with employees of NAFED, who may be employees of that cooperative society. CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.14 of 33 Thus, I find that none of the legal submission and applications of accused/Narayan Diwakar (A.1), as discussed above, hold any merits, hence dismissed.
17. Accused Narayan Diwakar has also relied upon judgment of Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar reported as 1979 Cri.LJ 153, wherein it was held by Hon'ble Supreme Court that while considering the question of framing of charge, the court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. This canon will have to be followed by the court to find out whether there is sufficient evidence against accused to frame charge against him.
18. Sh.S.K.Bhatnagar, Ld. counsel appearing for accused No.4 U.S.Bhatnagar, accused No.5 Faiz Mohd. and accused No.7 Kamal Singh has submitted that the FIR was registered in this case after four months of CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.15 of 33 registration of Preliminary Enquiry (PE) by CBI and there is no conspiracy found between the accused persons and CBI has got registered an FIR and implicated the accused persons. I find that the delay in registration of FIR after registration of the PE cannot be a ground for seeking discharge and the criminal conspiracy has to be deduced from the circumstances. He has also submitted that CBI has not investigated as to who were the persons behind accused Gokul Chand Aggarwal. This question is also beyond the scope of consideration by the court while framing the charge. He has submitted that there is nothing on record to show that society was revived on the basis of audit report submitted by accused No.7 Kamal Singh. In this respect the court will see as to whether the audit report furnished by Kamal Singh had been manufactured by him in pursuance of the criminal conspiracy as per the evidence arrayed by prosecution. He has also submitted that object of the conspiracy is not clear in the charge sheet. However, the charge sheet clearly shows that object of conspiracy was to get the Veena Pani CGHS fraudulently revived on the basis of false, fabricated and forged documents and get the freeze list of 147 members, (all of whom were fictitious persons) forwarded to DDA for allotment of land at a predetermined rate. He has submitted that statement of PW.11 & PW.12 cannot be believed as they were the property dealers by profession and it is very much possible that CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.16 of 33 the office of the society was working from their residence and they made statement against accused in order to save their own skin. This is not the stage when the veracity of the statements made by the witnesses has to be tested by the court. At this stage, court is required only to consider the statements of witnesses and the contents of the documents sought to be proved by prosecution to substantiate the charge, in order to find out that if the entire evidence is taken as true, whether it discloses a prima facie case against accused persons and whether all the evidence if taken on face of it, would be sufficient to bring home the guilt of the accused persons . He has also submitted that if the computer of PW Ashwani Sharma had been used for making false and forged documents then why he has not been made an accused in this case. This is not the stage when the court is required to look into the fact that Ashwani Sharma should have been made as accused in this case and therefore, value of statement of this witness has to be seen only as per its contents.
19. Accused D.N.Sharma (A.2) has filed written arguments submitting that he was promoted as Ad-hoc DANICS Officer on 10.04.03 and posted as A.R.(NW.II) on 10.06.03 having no practical knowledge about day to CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.17 of 33 day working of RCS office and no training was imparted to him about applicable laws/rules so he simply followed the ongoing practice of RCS office for revival of a cooperative group housing society. He has submitted that he was also not aware that date of 31.10.03 has been fixed by DDA to send the list of revived societies. There may be force in such submission of accused D.N.Sharma but these are his defence which can be tested in trial only.
20. Accused N.D.Kaushik (A.3) has also filed written arguments and submitted that he was only an UDC in the North West Zone of RCS office and he had simply put up a note on the basis of documents provided to him by the society and therefore, he has no role in the order of revival passed by RCS and had no access or connection with the private person i.e.Gokul Chand Aggarwal (A.6). We will shortly see his role in subsequent paragraphs of this order.
21. Sh.Abhishek Prasad, Ld. counsel for accused No.6 Gokul Chand Aggarwal and accused No.8 Badam Singh Aswal has submitted that accused persons have been falsely implicated in this case as they had simply done duties assigned to them.
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22. Now we will see the nature of allegations in the light of evidence arrayed by the prosecution to prove the allegations against all accused persons. During investigation it is found that the originally Veena Pani CGHS was registered in the office of RCS vide registration No.596(GH) on 28.08.83 with 75 promoter members. The society had never changed its address since formation to its liquidation on 14.12.1990. The society was wound up in the year 1990 due to non observance of statutory requirements and as such remained defunct till September, 2003 when accused Gokul Chand Aggarwal (A.6) by using name of Ajay Kumar presenting himself as Secretary of Veena Pani CGHS, in conspiracy with accused officials of RCS, New Delhi fraudulently revived the society and got forwarded its freeze list of members to DDA for allotment of land based on bogus and forged documents and inspection report etc. to get the land allotted in the name of society from DDA at subsidized rates, submitted an application dated 14.09.03 to Assistant Registrar (NW) of RCS office on the letter head of the society, requesting to cancel the winding up order. The said application of accused Gokal Chand Aggarwal @ Ajay Kumar (A.6) was marked by accused D.N.Sharma (A.2) to accused N.D.Kaushik (A.3) who processed the application in the file and put up the note stating that the CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.19 of 33 main file of the society was not available as it was not traceable (D.2 page 1/N). He also proposed vide his note dated 22.09.03 to issue circulars to all the branches/zones of RCS checking the file which was put up to RCS by accused D.N.Sharma (A.2) and after approval the circular was issued. Again on 03.11.03 (D.2 page 2/N) U.N.Bhatnagar was appointed to carry out the inquiry u/s 54 of DCS Act to know the factual position of the society. Letter in this respect issued to accused U.S.Bhatnagar on 07.11.03 is (D.2 page 164/C) signed by accused D.N.Sharma. In the note of accused N.D.Kaushik, which was put up by him to the RCS, processed through accused No.2 (D.2 page 3/N), he had suggested name of accused U.S.Bhatnagar, Grade-III Inspector to carry out inspection (D.2 page 3/N), which was approved by accused Narayan Diwakar, RCS.
23. GEQD opinion available showing that signatures in the name of Ajay Kumar, Secretary of the society was forged by accused Gokul Chand Aggarwal (A.6) who had mentioned that the society was registered at A-2/45, Rajouri Garden, Delhi and was shifted to B-1428, Shastri Nagar , Delhi. CBI has examined PW.11 & PW.12 Sh.Satish Gupta and Sh.Ramesh Chand Gupta to show that no such society ever existed at B-1428, Shastri Nagar, Delhi. They CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.20 of 33 also stated that U.S.Bhatnagar , Inspector of RCS never visited their house regarding verification of the society. The owner of A-2/45, Rajouri Garden, Delhi has been examined as PW.13 Sh.Yatinder Kumar Ahluwalia who stated that he did not receive any correspondence in the name of Veena Pani CGHS at his address and no person has ever visited regarding verification of said society. Thus it is clear that accused U.S.Bhatnagar (A.4) Inspector of RCS office had not met any of the office bearers of Veena Pani CGHS. The report of U.S.Bhatnagar (A.4) is available as D.2 page 168/C. He never visited the office of Veena Pani CGHS although he has stated in his report that he visited the office of the said society on 08.01.03. U.S.Bhatnagar (A.4) also mentioned in the report that Ajay Kumar, Secretary of the society had produced all the relevant records informing him that there were 147 members existing in the society. He has also confirmed that as per the records the society had shifted its address from A-2/45, Rajouri Garden, New Delhi to B-1428, Shastri Nagar, Delhi which is a forged in view of statement of PW.11,12 & 13. He also stated that records of the society were found in the safe custody of Ajay Kumar- Secretary of the society who was, in fact, a non existing person and it was accused Gokul Chand Aggarwal (A.6) who represented himself as Ajay Kumar by signing the documents as such.
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24. During investigation it was found that all 147 members of the society were fictitious persons but the forged and fabricated report, which was prepared by U.S.Bhatnagar (A.4), was accepted by accused Narayan Diwakar- RCS for the purpose of illegal revival of the society. It was also found that the false report of U.S.Bhatnagar was got prepared in the computer of Sh.Ashwani Sharma in his office at Mayut Vihar and hard disc of his computer was seized by CBI and during examination of the hard disc , the GEQD opined and given report that inspection report of U.S.Bhatnagar was prepared in the said hard disc. Statement of PW Ashwani Sharma has also been recorded by CBI. Thus, there is sufficient evidence arrayed by prosecution to show that inspection report was forged and fabricated by accused U.S.Bhatnagar (A.4) without actually visiting the office of the society and in connivance with the accused Gokul Chand Aggarwal (A.6) and his appointment for this purpose was deliberately done by accused Nos. 1, 2 & 3 in conspiracy with each other.
25. On the basis of report of U.S.Bhatnagar (A.4) a note was again put up by accused N.D.Kaushik (A.3) on 20.11.03 (D.2 page 4/N) stating therein that accused U.S.Bhatnagar (A.4) had visited the office of the society at B-1428, CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.22 of 33 Shastri Nagar, Delhi where Sh.Ajay Kumar, Secretary of the society produced all the relevant records, the membership register is complete and the accounts were prepared up to date as per proceeding register and last managing committee was held on 19.08.03, elections of managing committee of the society were held on 17.08.03 as per the DCS Act and rules and that all the records were found in the safe custody of Ajay Kumar-Secretary of the society. Thus he sought revival of the society u/s 63(3) of DCS Act and approval freeze list of 147 members for onward transmission to DDA.
26. Accused D.N.Sharma(A.2) accordingly put up the file to RCS. Accused Narayan Diwakar (A.1) directed issuance of notice to the society u/s 63(3) of DCS Act for 09.12.03 (D.2 page 5/N). On 09.12.03, presence of Ms.Shweta -Advocate representing the society was shown in the order sheet by accused Narayan Diwakar but Ms.Shweta -Advocate was examined by CBI who stated that she did not appear before RCS and she has not filed any vakalatnama.
27. The matter was then placed before RCS on 06.01.04 wherein he has shown presence of Sh.S.P.Mehta representing the society. Statement of CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.23 of 33 Sh.S.P.Mehta, Advocate has been recorded and he denied having appeared before RCS in this case. There is no vakalatnama of the society in his favour. Vide his order dated 06.01.04 accused Narayan Diwakar directed for physical verification as well as door to door survey of the members at random whereupon accused Faiz Mohd. (A.5) was appointed by accused D.N.Sharma (A.2) to conduct door to door physical verification of the members at random vide his note dated 09.01.04. Accused Faiz Mohd. had verified 15 members i.e. 10% of the total members and had submitted the copies of their false/forged share certificates and cash receipts by mentioning that he had physically verified the members whereas a number of witnesses have been examined by CBI to show that either the address of these fictitious members were wrong or no such person was found ever residing at the said addresses, which show that accused Faiz Mohd. did not visit any member for physical verification of his membership and had falsely certified the copies of their receipts and share certificates as produced to him by accused No.6.
28. The copy of the letter meant for the President/Secretary of the society was received by Sh.Gokul Chand Aggarwal (A.6) in the assumed names of Dinesh Kumar and Ajay Kumar at the instance of N.D.Kaushik(A.3). A letter CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.24 of 33 was also issued to President/Secretary of the society for production of original records which was also received by Sh.Gokul Chand Aggarwal (A.6) at the instance of N.D.Kaushik (A.3) in the assumed name of Sh.Dinesh Kumar and Ajay Kumar. It was accused Gokul Chand Aggarwal who had produced the records of the society before accused N.D.Kaushik (A.2), Dealing Assistant on 02.01.04 and all records produced by him were fraudulently accepted by accused N.D.Kaushik. All of them were found forged by accused Gokul Chand as per GEQD opinion. The certificate of registration and bye-laws of the society, submitted by accused Gokul Chand Aggarwal (A.6) is shown as signed by J.R of RCS Sh.S.P.S.Bhati, who has been examined by CBI and has stated that the signatures on certificate of registration and bye-laws are not his signatures and somebody has forged the same.
29. The affidavits on the stamp papers of Rs.10/- each of 147 members of the society were submitted by accused Gokul Chand Aggarwal (A.
6) in assumed name of Ajay Kumar-Secretary of the society. It has been found in the investigation that all the stamp papers were purchased on 18.11.03 and 21.10.03 by Gokul Chand Aggarwal (A.6) from stamp vendor Satvir, who has also been examined by CBI. The same were shown as notarized from Sh.Arun CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.25 of 33 Kumar Gupta, Notary Public on 24.12.03, whereas Sh.Arun Kumar Gupta had already passed away on 15.01.02 and thus there was no question of his notarizing the said affidavits. Son of Sh.Arun Kumar Gupta namely Sh.Gaurav Gupta has been examined to this effect that his father had already expired and the signatures of Notary on the affidavits in the name of his father are forged one. The signatures of members were fraudulently made by accused Gokul Chand Aggarwal and the GEQD has confirmed the same.
30. On receipt of copies of above mentioned documents the file was again submitted by accused N.D.Kaushik (A.3) to Narayan Diwakar (A.1) through D.N.Sharma (A.2) recommending for revival of the society. Accused Narayan Diwakar (A.1) had sent back the file with the direction to carry out verification of the members at random by visiting door to door (D.2 page 16/N). Pursuant to the said direction of accused Narayan Diwakar (A.1), accused Faiz Mohd. (A.5) -Grade II Inspector was appointed for this purpose by accused D.N.Sharma (A.2) on recommendation of accused N.D.Kaushik(A.2) vide order dated 09.01.04. Accused Faiz Mohd. (A.5) submitted a false verification report in respect of 15 members out of 147 members i.e. comprising 10% of the total membership, but he in fact did not conduct any door to door verification and CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.26 of 33 submitted the false report that 15 members were genuine. He had submitted false/bogus share certificates and share money receipts of 15 members with his report which is available on the list of members (D.2 page 202/C to 205/C). He also noted that the original share certificate and membership fee receipts of these members were verified and in this respect he made remarks on their copies (D.2 page 171/C to 200/C). On submission of physical verification report by Faiz Mohd. (A.5), pursuant to the criminal conspiracy between all accused persons, the file was again put up to RCS Narayan Diwakar (A.1) by D.N.Sharma (A.2), Assistant Registrar for revival of the society and forwarding the freeze list to DDA for allotment of land vide a note dated 22.01.04. The note was prepared by accused N.D.Kaushik (A.3) which was forwarded/recommended by D.N.Sharma (A.2) and ultimately it was accused Narayan Diwakar who had shown presence of Ms.Rita Kaul-Advocate representing the society and the presence of accused D.N.Sharma is also shown and thereupon he reserved the case for orders which was ultimately passed on 29.01.04 (D.30). Mrs. Rita Kaul has been examined by CBI and she denied having represented the society before Narayan Diwakar-RCS. Thereupon freeze list of members of Veena Pani CGHS was forwarded by D.N.Sharma (A.2) vide its letter dated 30.01.04 (D.2 page 206/C). The original CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.27 of 33 promoter members of Veena Pani CGHS, namely Sh.Deen Dayal Goel- Secretary, Sh.Anil Kumar Jain -President and Sh.Santosh Kumar Jain-Treasurer were examined by CBI amongst other witnesses who confirmed that the society address was at U-53/A, Shakar Pur, Delhi -92 and they never shifted the address of the society till date. They also stated that there were 75 members in the society and the persons whose names were shown in the affidavits and freeze list of the society have never been the members of original Veena Pani CGHS Ltd. They also stated that the account of the society was in DSC Bank, Darya Ganj, Delhi.
31. While passing the order dated 29.01.04, on the basis of false and forged documents submitted by accused/Gokul Chand Aggarwal (A-6) processed and recommended by N.D.Kaushik (A.3) and D.N.Sharma (A.3), false inspection report submitted by accused/U S Bhatnagar (A-4) and false verification report submitted by accused/Faiz Mohammad (A-5), RCS/Narayan Diwakar (A.1) observed that the society is revived with immediate effect subject to the condition that audit of the society be conducted and he also appointed Sh.B S Aswal, Gr.IV (A-8) as Election Officer with direction to conduct election of the managing committee of the society within two months of the issue of the said CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.28 of 33 order dated 29.01.04.
32. Pursuant to the criminal conspiracy, accused/Kamal Singh (A-7) submitted a false and manipulated audit report (D-4) as he did not make audit of society at its office and did not inspect the genuine records of the society. He had clandestinely accepted the account documents like balance sheet, receipt and payment account, list of managing committee members, list of books of account and records, list of members resigned during the year 2002-03 from accused/Gokul Chand Aggarwal (A-6), although all these documents were not genuine which were in fact forged by accused/Gokul Chand Aggarwal (A-6) by making signatures in the name of S/Sh.Dinesh Kumar, President, Ajay Kumar, Secretary and Shiv Kumar Gupta, Treasurer.
33. Accused/Kamal Singh (A-7) has submitted his audit report(D.
4) on the basis of forged documents without visiting the office of society. In the audit report he has stated that society was having its account with DSC Bank Limited without mentioning the place of the branch in which it had account and during investigation it was revealed that original society was maintaining its account in DSC Bank Limited, Darya Ganj as per the statement of witnesses, CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.29 of 33 S/Sh.Anil Kumar Jain, President, Deen Dayal Goyal, Secretary and Santosh Kumar Jain, Treasurer, who were the promoter members and office bearer of the society and as per the account only they were the signatories for the account authorized to operate the same. Thus, it has been found that accused/Kamal Singh deliberately did not verify about the existence of account in the bank nor inspected any certificate from the bank in this respect. He also caused delivery of audit report to accused/Gokul Chand Aggarwal (A-6) even though he was not authorized person of the society and he verified the membership and individual accounts of the members which were found totally false.
34. Accused/B S Aswal (A-8) , who was appointed Election Officer by the order of RCS dated 29.01.04 submitted election report dated 17.02.04 (D-8) to AR (NW) on 24.03.04, without actually conducting any election of the society. False and manipulated election report show that 38 members had attended election at RCS office who had elected S/Sh.Dinesh Kumar, Mukesh Kumar, Ajay Kumar, Shiv Kumar Gupta, Ajit Singh, Smt.Madhu Bala and Smt.Rita Devi as office bearers of the society, whereas these persons are non- existent and in fact all 147 members are non -existent persons and statement of witnesses have been recorded in this respect to show that either their addresses CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.30 of 33 are not existent or these persons were never residing at the given address.
35. GEQD has opined (D.18) that signatures of President, Secretary and Treasurer, namely, Dinesh Kumar, Ajay Kumar and Shiv Kumar Gupta were forged by accused/Gokul Chand Aggarwal (A-6) on the documents and the said society got revived on the basis of bogus/forged documents.
36. The investigation had shown that accused/Narayan Diwakar (A-1) was in regular contact with accused/Gokul Chand Aggarwal through his Mobile No.9818479140. Accused Narayan Diwakar (A-1) had contacted accused/Gokul Chand Aggarwal (A-6) 69 times on his mobile no.9811111871 and 15 times on his mobile no.9871789595. Accused/Narayan Diwakar (A-1) had also contacted accused/Gokul Chand Aggarwal (A-6) at his landline no. 55498106 during the period 01.01.05 to July, 2005.
37. CBI had recorded statement of as many as 98 witnesses and arrayed amongst total 116 witnesses and relied upon as many as around 210 documents to prove each and every allegation against the accused persons. CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.31 of 33
38. Sanction for prosecution of accused public servants, namely, N D Kaushik (A-3); U S Bhatnagar (A-4); Kamal Singh (A-7) and B S Aswal (A-8) have been obtained u/s 19 of PC Act which are available on record. As accused Narayan Diwakar (A-1) and D N Sharma (A-2) and Faiz Mohammad (A-5) are no longer in service, therefore, no sanction was required for their prosecution.
39. In view of above discussion of facts and evidence arrayed by the prosecution to prove the case, I find that a prima facie case to frame charge u/s 120 B r/w Section 420/468/471 r/w section 468 IPC, Section 13 (2) r/w 13 (1) (d) of P.C.Act, 1988 is made out against accused Narayan Diwakar (A.1), D.N.Sharma (A.2), Narayan Dutt Kaushik (A-3), U S Bhatnagar (A.4), Faiz Mohd.(A.5), Gokul Chand Aggarwal (A.6) , Kamal Singh (A.7) and B S Aswal (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 against accused public servants Narayan Diwakar (A.1), D.N.Sharma (A.2), Narayan Dutt Kaushik (A-3), U S Bhatnagar (A.4), Faiz Mohd.(A.5), Kamal Singh (A.7) and B S Aswal (A.8). The prima facie case to frame charge for substantive offences u/s 420 r/w Section 511/468/471 r/w 468 IPC is made out against accused Gokul Chand Aggarwal (A.6) and substantive offences u/s 468 and 471 r/w 468 against accused U S CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.32 of 33 Bhatnagar (A.4) and Faiz Mohd.(A.5), Kamal Singh (A.7) and B S Aswal (A.8) are also made out. I, therefore, direct that the charge be framed against accused persons accordingly.
40 It is clarified that nothing in this order shall be taken as comments on the merits of the case.
Announced in the open ( R.P.PANDEY ) Court on 07.06.12 SPL.JUDGE, CBI (01), ROHINI COURTS, DELHI CBI Case No.60/10 CBI Vs. Narayan Diwakar etc.(Veena Pani CGHS) Page No.33 of 33