Delhi District Court
Cbi vs . 1) Sumer Chand Gupta S/O Late Sh. M.L. ... on 7 October, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH EAST, SAKET
COURT, NEW DELHI.
RC No. 6/2006/EOWIX, CBI
Unique ID NO.02406R1010072007
CBI vs. 1) Sumer Chand Gupta S/o late Sh. M.L. Gupta
2) Sachin Gupta S/o Sh. Sumer Chand Gupta
Both R/o C3/6, Prashant Vihar, New Delhi85
3)Shipra Gupta D/o Sh. Sumer Chand Gupta
R/o 19 Bahubali Enclave, Near Karkardooma, Delhi110092
4) Vijay Kumar Bansal S/o Sh. Ram Avtar Bansal, R/o H. No. G2/78,
Rohini, Sector11, Delhi85.
07.10.2013
ORDER ON CHARGE
1.Pursuant to the orders dated 13.02.2006 passed by the Hon'ble High Court of Delhi in CWP No. 10066/2004 and CMS No. 15487/2005, CBI was directed to investigate the matter of allotment of land to 97 societies in the year 2000, on which PE1/2006/EOUVIII was registered against five societies by CBI on 20.03.2006 and thereafter it was converted into RC against accused Sumer Chand Gupta and other unknown persons for entering into a criminal conspiracy for committing cheating, fraud, forgery as well as use of forged documents as genuine.
2. It was alleged that accused Sumer Chand Gupta in conspiracy with some RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 1/23 other unknown accused persons had procured full control over the affairs and management of Sri Durga CGHS from 1997 onwards and in furtherance of his criminal conspiracy had introduced 32 new members in the society who were either his known or were in his relation and had also paid an amount of Rs.1.3 Crores to DDA for allotment of land arranged by him by raising loans from six separate financial institutions and had also started construction work at the site with his own assets and assistance from his relations. However, some of the relations had denied to have ever applied for membership of any of the societies or having been elected as members of the Management Committee. The documents of the society pertaining to resignations, enrollment of new members were never submitted by the accused for their verification in the office of RCS for the purpose of seeking approval from the Registrar Cooperative Societies after 1997 onwards and not only this, but also accused Sumer Chand Gupta himself had forged the documents for enrollment of his own relatives as the members of said society without even their knowledge solely with an object to gain control over the society and to obtain land from DDA at subsidized rates.
3. The said "Sri Durga CGHS" was registered on 20.01.1984 vide Registration No.1405 (GH) having its address at C/o Sh. Somnath Bhattarcharjee, New Delhi Kalibari, Mandir Marg, New Delhi1. The society was formed by Bengalis with one Sh. Provesh Kumar Kar as its secretary. A list of 150 members was also approved by the Registrar of Cooperative Society office on 18.06.1985 which was forwarded by it to DDA for allotment of land. However in view of the judgment passed by the Hon'ble High RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 2/23 Court of Delhi in Kaveri CGHS case, the allotment of land to the societies was to be done on their seniority of registration and as the offer of land to the present society was cancelled and there was very little hope for its allotment in near future, hence, some members of the then Management Committee had also siphoned of the contribution of the members for which the members were also constrained to move to Hon'ble High Court of Delhi to reclaim their contribution and as such the society became dormant from the year 199297 as no elections, audit, enrollment, registration were reported to the RCS office during the aforesaid period.
4. Taking undue advantage of the said position, accused Sumer Chand Gupta had taken over the management and affairs of the society in the year 1997 and immediately thereafter he had introduced 33 new members including himself against the existing vacancies as on 11.05.1997 and 15.06.1997. The said members were either his relatives or friends/acquaintances. Their signatures on membership forms were forged. The Membership Forms/Membership Register/Election files/register, meeting register, etc. were also forged by Sumer Chand Gupta who had thereafter also got his own son Sachin Gupta elected as President, his brother in law Vijay Kumar Bansal and his daughter Shipra Gupta as secretary and Treasurer respectively and had taken over all the documents from the previous officer bearers of the society and himself started handling all the affairs of the society. He had also changed the address of the registered office of the society to his residence i.e. C3/6 Prashant Vihar, Delhi and had also opened a separate bank account No. 7510 in the name of the society in Oriental Bank of RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 3/23 Commerce, Prashant Vihar Branch on 7.8.1998 for which accused Sachin Gupta, Vijay Kumar Bansal and Shipra Gupta were appointed as Signatories to maintain the said account and he himself had become an introducer to the said account as he was already having an account No. 7447 with the said Branch. On 7.8.1998 itself, accused Sumer Chand Gupta was stated to have deposited a cash amount of Rs. 9.00 lacs in the said account. As per investigating agency, the said society was offered land in the year 1998 by the DDA and was also asked to deposit 35% of the cost of the said land. However, since the society was not functioning properly in 1997 and the older members were either not interested to pay for the costs of the land and they were not having any money with them and the others were not traceable, hence, the accused Sumer Chand Gupta had taken resignation from 65 old members of the society on 15.7.1998 and 25 old members of the society on 10.9.1998. All the aforesaid 90 old members were refunded their outstanding dues in the society partly through cheques issued from the bank account of society and partly in cash in the year 1998 itself and the balance was paid in the year 2005 when the society had became rich as new members had joined the same against the vacancies created by those resignations. As discussed earlier, Sumer Chand Gupta had also paid an amount of Rs. 1,34,60,250/ to DDA being 35% of the cost of land and had also given an assurance of introducing new members to the society and construction work at the plot was also commenced without obtaining any approval from the Registrar of Cooperative societies office for obtaining loan from private parties and acucsed Vijay Kumar Bansal had also rendered his assistance and cooperation to accused Sumer RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 4/23 Chand Gupta in making initial payment and when new members started joining the society, the cash deposits received from them were diverted either to pay back the financial institutions or to the private persons who had lend money to accused Sumer Chand Gupta. Thus, Sri Durga CGHS was allotted a plot measuring 8500 Sq. Mtr. at Sector 11, Dwarka PhaseI and accused Sumer Chand Gupta after taking permission from DDA got the same mortgaged with DCHFC and had paid the remaining 65% of the amount to DDA i.e. Rs.1,65,70,250/ and after receiving all the dues, the Commissioner (LD), DDA had handed over the possession of the said plot of land to the society on 02.07.2000.
5. It was alleged further that accused Sumer Chand Gupta acting in conspiracy with his son Sachin Gupta who was the President of the Society as well as his daughter Shipra Gupta who was the Treasurer of the Society had also issued cheques and thus withdrawn Rs.30 lacs by showing 23 initial members of the Society as having resigned from the same and the persons in whose favour the cheques were got issued were neither the members of the society nor even the enrollment forms and membership register had contained their genuine signatures at any point of time whatsoever. It was also found that accused persons acting in conspiracy with each other had also diverted the money not only in their own names but also in the names of one M/s Sippy Electronics and M/s Shri Radhika Exports and had also got encashed the said cheques.
6. It was further established as a fact on record that accused Sumer Chand Gupta had never produced any books of account, resignation/enrollment register, audited RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 5/23 copies of balance sheets of the society as well as accounts which were required to be submitted by him with the RCS office despite repeated requests and reminders sent to the Society by RCS in this regard, hence none of the member's resignations as well as enrollment was ever approved by the RCS through its office since 1997. It was revealed further that the construction work of the Society was entrusted to one M/s Antriksh Construction Company which was constituted by one Sh. Rajbir and Vijay Kumar Bansal who were in partnership with each other. However, later on some disputes occurred after some initial work of the construction at the said plot and the contract with the said company was discontinued by accused Sumer Chand Gupta who himself had carried out the remaining construction of all the 150 flats on his own by arranging the workers who were already known to him. M/s S.K. Consultants were the architectural Consultants of the said project.
7. It has been alleged further that accused Sumer Chand Gupta had also filled nomination forms during the year 2004 with the election officer one M/s Jyoti Dubey on which the signatures of the proposers and seconders as well as candidates were also forged by accused Sumer Chand Gupta himself in conspiracy with his son and daughter who were coaccused herein namely Sachin Gupta and Shipra Gupta.
8. It was also revealed later on that the existing members of the society had never received any agenda or any notice to attend the said meeting or elections and by indulging into these mal practices, accused Sumer Chand Gupta had further acquired control over the said Society alongwith his son and daughter.
RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 6/23
9. As per CBI, it was established on record that accused Sumer Chand Gupta himself was not eligible to acquire membership of the present society as he was already a member in Mangal Milan CGHS and Adarsh CGHS and his son Sachin Gupta who was also not eligible had become member of the said society.
10. In the light of aforesaid facts and circumstances, it was alleged that accused persons were to be summoned, tried and punished for the offences under Section 120B IPC read with Sections 420/368/371 IPC and alongwith substantive offences for the said particular transaction, and a FIR with the aforesaid allegations was registered by CBI on 02.11.2006 wherein it was also mentioned by it that it was not a case of a revived society.
11. After investigation of the case, charge sheet was filed and the cognizance of the offences was also taken against all the accused persons by my learned Predecessor vide her order dated 05.06.2009.
12. I have heard the arguments advanced at bar by the learned counsel Sh. R.P. Shukla appearing for the accused persons and Sh. Ratandeep Singh, learned APP for the CBI.
13. It has been argued and submitted by the learned APP for the CBI that the facts of this case are crystal clear and are sufficient to frame charges against the accused persons for the offences committed by them acting in conspiracy with each other because in the year 1990 itself DDA had already informed Shri Durga CGHS regarding its offer of allotment of land either at Dwarka or Narela area, but same could not be materialized because this offer of allotment was subsequently cancelled due to order RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 7/23 passed by the Hon'ble High Court of Delhi in Kaveri CGHS's case and hence, there was no scope in near future for the members of said society to get any land because there were offers of other societies as well who were older than the present society and as such those members started resigning from the society and asking back the refund of their deposit money because during examination of 20 old members it was revealed that the then office bearers of the society had also siphoned of their money.
14. It was submitted further that the society had remained dormant from the period 1992 till 1997 when accused Sumer Chand Gupta had taken over its affairs and had also introduced 33 new members including himself after coming to know that in the year 1998 offer of the land was going to be made by the DDA to the said society. 23 of the aforesaid members who were introduced by accused Sumer Chand Gupta in a fraudulent manner in the said society had also stated that their signatures on the membership register as well as enrollment forms were forged as they had never signed any such documents and even the opinion of GEQD appearing on those handwritings had also proved that accused Sumer Chand Gupta was the only person who had put those signatures on the documents of the aforesaid members.
15. The learned APP has also submitted that thereafter, accused Sumer Chand Gupta had made his son Sachin Gupta as the President and his brother in law Sh. Vijay Kumar Bansal as Secretary and his daughter Ms. Shipra Gupta as Treasurer of the Society by conducting bogus elections and he had also taken resignation of 90 old Bengali members and had also paid them their deposit money through cheques as well as RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 8/23 cash in the year 1998 and in the year 2005. Changing of bank account of the society by accused Sumer Chand Gupta and deposit of the amounts received from the new members as contributions in the aforesaid account has also been argued by the learned APP as one of the reasons sufficient enough to frame the charges for the offences against the accused persons.
16. It was also submitted by the learned APP for the CBI that 35 % of the cost of the land was raised by the accused Sumer Chand Gupta from private companies and individuals who were not connected with the said society and remaining 65 % of the cost of the land was raised by him by availing loan from Delhi Cooperative Housing Finance Corporation. He had further argued that in addition to many letters issued from the office of RCS, two show cause notices were also issued to the said society in the year 1998 as well as in the year 2003. But no documents were ever produced by the accused persons before RCS office and as such in the year 2004, the RCS was constrained to order for conducting elections of the society and the nomination forms as well as elections registers were also containing the forged signatures of the fraudulent members which fact was also revealed during examination of the documents by GEQD and his opinion expressed thereon. It had also been submitted that audit of the said society was also conducted by one Sh. Vijay Gupta, Chartered Accountant who was a penal C.A. Of RCS during the period 2006 who had also raised his objections in respect of many documents during the period 1998 till 2001 in his report submitted with the RCS. It has been further argued that accused Sumer Chand Gupta was also a member of Martland, RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 9/23 NSIC, Mangal Milan CGHS as well as Adarsh CGHS and was also facing trial in Martland CGHS and NSIC CGHS cases and apart from him, all his family members such as Smt. Shashi Gupta, Sachin Gupta, Shipra Gupta, Shilpi Gupta and Divya Jain were also the members of the same society whereas as per the prevalent rules and by laws, no other family member or blood relation of a member can acquire any membership in any society in which one of the family members or the intended member is a member. It was also stated that the building and structure of the society were constructed from the amounts deposited by 7080 new members as 24 old Bengali members were not traceable and even the 27 members introduced by Sh. Sumer Chand Gupta in the year 1998, were also found to be fraudulent, was also cited as reason for framing charge against the accused persons as such accused persons had acted contrary to the main objective behind Cooperative Housing Society Scheme being encouraged by RCS as well as government so as to benefit genuine members of the society. However, the present accused persons had completely taken over the control and management of the said society and had also acquired 30 odd flats with them to dispose of the same at a higher premium with the passage of time and lastly, it was submitted that one Smt. Divya Jain, wife of accused Sachin Gupta was also shown as a member of Sri Dugra CGHS in the membership Register as well as election file of Sri Durga CGHS and Smt. Divya on the other hand, had refrained herself from filing of any affidavit in respect thereof.
17. The learned Defence counsel on the other hand had challenged the very RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 10/23 registration of the case itself under the present facts and circumstances and had also placed reliance on the case titled as Ms. Mayawati v. Union of India reported in AIR 2012 SC 3765 wherein it has been held that :
" As rightly pointed out that in the absence of any direction by this Court to lodge an FIR into the matter of alleged disproportionate assets against the petitioner, the Investigating Officer could not take resort to Section 157 of the Code of Criminal Procedure, 1973 (in short "the Code") wherein the Officer incharge of a Police Station is empowered under section 156 of the Code to investigate on information received or otherwise. Section 6 of the DSPE Act prohibits the CBI from exercising its powers and jurisdiction without the consent of the Government of the State. It is pointed out on the side of the petitioner that, in the present case, no such consent was obtained by the CBI and submitted that the second FIR against the petitioner is contrary to Section 157 of the Code and Section 6 of the DSPE Act. It is not in dispute that the consent was declined by the Governor of the State and in such circumstances also the second FIR number RC 0062003A0019 dated 05.10.2003 is not sustainable."
18. In the light of aforesaid ratio of the case relied upon by the defence, it has been argued and submitted by the learned Defence counsel that Hon'ble High Court of Delhi in CWP No. 10066/2004 had only directed the CBI to file the preliminary report in respect of 41 societies out of total 97 societies in respect of which illegalities were alleged. It has also been pointed out by the learned Defence Counsel that no such list RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 11/23 which was filed before the Hon'ble High Court of Delhi containing names of those 97 societies has been placed on record to show that the name of Sri Durga CGHS had also figured in the same and it was also one of those 41 societies in respect of which aforesaid directions were issued by the Hon'ble High Court of Delhi.
19. After hearing the learned APP for the CBI as well as learned Defence Counsel and perusing the statements of the witnesses recorded by the IO under section 161 Cr.P.C., I hereby observe that in total 127 PWs have been cited by the CBI out of which PW9, PW10, PW104 to PW127 are formal in nature.
20. However, PW5 who is an officer from the office of RCS (Registrar of Cooperative Society) i.e. Handuba had categorically stated that the RCS office had never approved any enrollment/resignations of the Sri Durga CGHS because the office bearers had failed to produce the original records in spite of several notices. Therefore, it cannot be said that any acts/omissions done by the accused persons in conspiracy with each other as alleged had caused any wrongful loss to one party and a corresponding wrongful gain to the other one.
21. CBI in its charge sheet had stated that plots of land were allotted to the cooperative group housing societies by government at subsidized rates. However, this contention of the Investigating Agency had been negated by its own witnesses themselves i.e. PW6 and PW7. PW6 Sh. K.G. Kashyap, Deputy Director, DDA had explained the entire process related to the allotment of lands to cooperative group housing societies and nowhere, he had stated about the allotment of land to the CGHS at RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 12/23 any subsidized rate. Rather he had talked about payment of 35% of premium of land in favour of DDA by the CGHS at the time of its initial allotment of plot and PW7 Sh. Paras Nath had also deposed on the same lines as deposed earlier by PW6.
22. PW8 Jyoti Dubey who was an official working with the office of RCS had categorically stated in her statement made to the IO that no anomaly or illegality or adoption of any mal practices of any kind was observed or found by her in the elections of Sri Durga CGHS held on 10.10.2004 where she was appointed as an Election Officer by her office to supervise the elections.
23. As observed earlier PW9 and PW10 were formal in nature being bank officials who had placed on record the documents relating to seizure memos as well as clearance of cheques issued on behalf of Sri Durga CGHS by its office bearers Sachin Gupta and Shipra Gupta.
24. PW12 had stated that accused Sumer Chand Gupta was a member of one other Adarsh Cooperative Group Housing Society having its registration No. 308(E) GH and he himself was having a membership No. 184 and was thereafter also allotted Flat No. 111 on 9.1.1988.
25. PW13 to PW32 are none other than the relatives as well as close friends and acquaintances of accused Sumer Chand Gupta who had categorically stated to the IO that neither they had ever applied for any membership with the society of accused i.e. Sri Durga CGHS nor they had signed any document in that regard and all their RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 13/23 signatures appearing on the documents shown to them were forged and fabricated. However, it is interesting to note that none of the aforesaid witnesses had raised any finger of suspicion or had expressed their doubts on either/any of the accused persons as the one who could have forged their signatures or had manipulated the records in their names. Rather PW17 and PW25 namely Ashok Kumar Gupta and Parmod Kumar Gupta both sons of Sh. Kanhaiya Lal Gupta had also stated that initially they had all their plans to obtain the membership in the said society and had also paid Rs. 4.75 lacs and Rs. 3.5 lacs, respectively to the accused Sumer Chand Gupta for the said purpose but they had also denied their signatures on the documents shown to them by the IO during investigation. Similarly, PW26 Parshant Sharma, Advocate had also admitted the genuineness of his membership of the society but had simultaneously denied his signatures on the documents.
26. PW27 Sh. Ram Niwas Singhla whose statement was emphasized by the learned APP appearing for CBI that he had never resigned from the society had further stated that the amount of Rs. 40,000/ which was initially paid by him to the society to obtain the membership was also got refunded to him by accused Sumer Chand Gupta and his signatures were stated to be forged and fabricated on the documents shown to him. It was also stated by him that he had never resigned from the membership and had also attended the Bhumi Pujan of the said society. However, it is pertinent to point out here itself that by accepting the refund of amount paid by him to obtain the membership in the society, his membership automatically stood forfeited and cancelled and hence, RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 14/23 there was no need and occasion for him to have resigned from the membership as contended by him before the Investigating Agency (CBI).
27. PW28 i.e. Vipul Singla had not only admitted the payment of Rs. 1.45 lacs made by him to obtain the membership of the society but had also admitted his signatures on the affidavit, attendance register of Bhumi Pujan and meeting register but had only denied his signatures on an application. Similarly though PW29, PW30 and PW31 as well as PW32 had also denied the fact of having ever applied for the membership of the said society or about the genuineness of the signatures or handwritings of these witnesses appearing on any of the documents allegedly filled by them, but no suspicion or doubt has ever been raised by either of the witnesses against either of the accused persons involved in the present case. Similarly, PW33 to PW36 had also admitted the genuineness of the signatures of these witnesses appearing on their resignation letters as well as they had also claimed to have received the refunds of the amounts which were paid by them to the society to obtain membership. Not only this, but also, PW35 had rather gone to the extent of saying that he had also attended meetings of the society on many occasions and PW33 Kamal Nain Grover had attended the Bhoomi Poojan Ceremony of the society.
28. So far as PWs 37 to 40 are concerned, they have also admitted the genuineness of their membership in the said society and had also claimed to have attended the Bhumi Pujan function as deposed by PW40, however, they had stopped making further payments to the society because accused Sumer Chand Gupta was stated RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 15/23 to have been demanding very higher amount under the garb of escalation of cost of the construction.
29. Similarly, PWs 41 to 83 had also admitted their memberships to be genuine, however, some of them had only denied their signatures on membership register or on election register and their main grievance pertained to noncalling of AGM by accused Sumer Chand Gupta as well as the details of receipts and expenditures of society not being shared by Sumer Chand Gupta with the other members of the society. Though, this lapse on the part of accused Sumer Chand Gupta might have amounted to a wrong under the Cooperative Societies Act or rules made there under, however, only because of this lapse, no criminal liability can be fastened on his shoulders as has been alleged in the present case.
30. Further, one of the most important witness in this case is Sweta Gupta @ Divya Jain who also happened to be the wife of accused Sachin Gupta. She had categorically stated to the IO that membership of the society was taken by her in the year 2000 and thereafter, it was somewhere in the year 2002 that she had married Sachin Gupta, hence, the allegation that she as well as her husband Sachin Gupta had filed false affidavits claiming that no other family member of their family including spouse was having any membership of any other society cannot stand on its own legs because when the affidavit related to Sachin Gupta was filed by him in the year 2002, it is not clear as to whether he was a Bachelor or married at that time and neither any investigation into this aspect of the matter was got conducted by CBI and furthermore, since no approval RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 16/23 of enrollment/resignation was accorded to the society by the office of RCS hence, they had not acquired any right, title, interest or status either in the management or in the affairs of the said society.
31. PWs 83 to 103 were also stated to be all genuine members having their genuine memberships and they had also admitted their resignations from the society as well as the fact of obtaining the refund of the amounts deposited by them while obtaining the membership.
32. So far as the allegations regarding accused Sachin Gupta and his wife Shipra Gupta @ Divya Jain in respect of memberships of other societies are concerned, no such document has been placed on record by the IO to corroborate such fact.
33. Virtually, none of the witnesses examined by the Investigating Agency in the present case had uttered even a single word against accused persons namely Sachin Gupta, Shipra Gupta as well as Vijay Kumar Bansal and it appears that they have been implicated in the present case merely by virtue of their official positions because as per the chargesheet itself, in fact it was accused Sumer Chand Gupta who had got his son elected as President and his brotherinlaw Vijay Kumar Bansal as Secretary and his daughter Shipra Gupta as Treasurer of the society, however, once CBI itself is claiming that the entire show was being run by none other than accused Sumer Chand Gupta alone, then considering the fiduciary relationship in which the remaining three accused persons were standing against Sumer Chand Gupta being his son, brotherinlaw as well RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 17/23 as daughter, there was no reason for them not to obey the wishes of Sumer Chand Gupta without raising any doubt or suspicion regarding his intentions behind such wishes. In the absence of any wrongful gain being caused to all or anyone of these accused persons or any witnesses uttering even a single word against them, I have no hesitation in holding that there is no material available on record against either of the aforesaid three accused persons which would justify framing of any charge against them. Accordingly, accused Sachin Gupta, Shipra Gupta and Vijay Kumar Bansal are hereby discharged from the allegations as leveled against them in the present charge sheet.
34. So far as the role of accused Sumer Chand Gupta is concerned, it has been submitted by learned APP appearing for the CBI that GEQD has given a positive opinion regarding his handwriting and also that he was the person who was solely managing the entire show which was also deposed by other PWs as well that he was running the society like a private limited company and in view of the GEQD opinion there is sufficient evidence on record to frame charges against him. However, as observed earlier, none of the witnesses in respect of whom the alleged forgery was stated to have been committed for obtaining membership of the society in their names had pointed out or raised any finger upon this PW and also in view of the fact that the alleged specimen writings of accused Sumer Chand Gupta obtained on 10th May, 2007 were not so obtained by the IO with the permission of any Competent Magistrate, hence, they have lost their entire evidentiary value and admissibility in evidence and furthermore, in view of the fact that the alleged witness to the taking of specimen RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 18/23 writings and signatures of accused Sumer Chand Gupta namely Kishan Lal working as Senior Steno at MCD was not even cited as a wetness in the present case, I have no hesitation in holding that the Investigating Agency itself had made the entire circumstances look very suspicious and in view of the law with respect to the appreciation of opinion of a handwriting expert as laid down by superior courts in the cases reproduced here as under: A Constitution Bench of the Hon'ble Supreme Court in the matter of Shashi Kumar Bannerjee Vs. Subodh Kumar Bannerjee AIR 1964 SC 529 had held that "the expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence". In the present case, the direct evidence is to the contrary and the circumstances are neither proved nor conclusive. Further, in Magan Bihari Lal Vs. State of Punjab 1977 Cri. LJ 711, a Division Bench of the Hon'ble Supreme Court of India observed that " It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 19/23 cannot of itself form the basis for a coviction".
The Hon'ble Supreme Court of India in the matter of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. (2009) 9 SCC 709 had held that "15. An expert is not a witness of fact and his evidence is really of an advisory character..... The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusion".
The Hon'ble Supreme Court of India in the matter of Bhagwan Kaur Vs. Maharaj Krishan Sharma AIR 1973 SC 1346 held that "........... The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert".
35. It is pertinent to mention that collecting of the alleged specimens and then sending the same for comparison by the Investigating Officer was completely illegal and contrary to the law as laid down by the Hon'ble Supreme Court in State of UP Vs. Ram Babu Misra 1980 AIR SC 791, Sukhvinder Singh & Ors. vs. State of Punjab (1994) 5 SCC 152 and a three Judge Bench Judgment of the Hon'ble Delhi High Court in the case of Sapan Haldar Vs. State 191 (2012) DLT 225. In Sapan Haldar's case, while answering the reference, the Hon'ble High Court had held that an Investigating Officer during investigation cannot obtain a handwriting sample or a signature sample from a RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 20/23 person accused of having committed an offence. In light of the above decisions, the opinion of the handwriting expert, on the basis of the specimens so collected was therefore, rendered of no consequence and had no value in the eyes of law.
36. The present case was in fact entirely based on circumstantial evidence and the law in respect of the same had been laid down by the Apex Court in several cases. It has been consistently held by the Apex Court that where a case rests squarely on the circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The Hon'ble Supreme Court in the matter of State of UP vs. Ashok Kumar Srivastava AIR 1992 SC 840 held that "This Court has time out of number, observed that while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt".
In Mustkeem @ Sirajudeen Vs. State of Rajasthan 2011 (3) JCC 2117 it has been held that the circumstances from which an inference as to the guilt of the RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 21/23 accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
37. In view of the aforesaid lengthly discussion, I have no hesitation in holding that the GEQD opinion which is nothing more than an expert's opinion is only a piece of corroborative evidence and not the substantive evidence and in the absence of any other substantive piece of evidence against the accused it would not be of any help to the prosecuting agency to place its sole reliance on the same. Further it is the settled position of law that though in such type of cases, State represents the interests of a victim but there is always a sufferer, a real victim in existence who, because of his peculiar status has to be represented by the State in the larger interest of the society. So if the facts of the present case are examined from that point of view, then either DDA or RCS should have been the victims in the matter which is not even the case in hands as none of the said departments has made any complaint of cheating at the hands of accused at any point of time whatsoever. Further it is also not clear in the given facts of this case as to upon whom the deceitful means or fraud was played by accused persons with a dishonest intention to cheat him/her because no victim to the said act had ever come forward. Though, it is a settled position of law that while taking a decision with respect to framing of charge against any accused persons, the court is not required to evaluate the evidence available on record in such a meticulous manner so as to arrive at a conclusion of conviction or otherwise at that stage itself. However, it has also been held that the evidence available on record must inspire some confidence and should be sufficient enough to bring the acts within the four corners of an offence as defined in the books of law. As held earlier, in order to place any reliance on the evidence which is purely corroborative in nature, the existence of RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 22/23 substantial evidence though howsoever meek it may be, has to be essentially present on record as has been held in cantina of judgments. Hence, it shall not be prudent or advisable to frame the charge against any of the accused persons solely on the basis of corroborative recorded piece of evidence alone available on record.
38. Since all the remaining accused persons have already been discharged from the allegations of all the offences leveled against them and it is also the settled position of law that a person cannot under any circumstance be deemed to have conspired with himself. Hence, neither any offence of conspiracy or any of the substantive offences is made out against the present accused as well.
38. Accordingly, I hold that prima facie there is no incriminating substantive evidence available against the accused Sumer Chand Gupta as well to frame the charges for any of the offences as alleged to have been committed by him and it shall not at all be safe to solely rely upon the opinion of GEQD alone which is otherwise also a very weak kind of corroborative evidence. Accordingly, accused Sumer Chand Gupta also stands discharged in this case. Bail bonds and surety bonds of all the accused persons have been cancelled and discharged. However, they are directed to furnish their bail bonds in terms of Section 437A Cr.P.C. in the sum of Rs. 25,000/ each within ten days from the date of this order.
ANNOUNCED IN THE OPEN COURT (LOKESH KUMAR SHARMA) TODAY ON 07.10.2013. CMM/SE/Saket Court/New Delhi RC NO.6/2006 CBI vs. Sumer Chand Gupta etc. 23/23