Delhi District Court
Cbi vs A1. Sushil Kumar Sharma on 28 January, 2016
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS: DELHI
CBI No. 123/11
FIR No. RC9 (E)/2005/CBI/EOWII/N.Delhi
Under Sections 120B IPC r/w 420, 465, 467, 468 & 471 IPC and
under Sections 13(2) r/w S. 13(1)(d) of P C Act, 1988.
CBI
Versus
A1. Sushil Kumar Sharma,
S/o Sh. Surender Prakash Sharma,
R/o Qtr. No. 1516, TypeII,Gulabi Bagh,
Delhi110007
A2 Narender Kumar,
S/o Late Sh. Ram Karan,
R/o C741, Delhi Administration Flats,
Timarpur, Delhi 110024
A3 Sanjeev Bharti,
S/o Mahender Bharti Madan,
R/o C4C, Pocket14, Flat No. 113, Janak Puri,
New Delhi 110058.
A4 Ramesh Chandra,
S/o Sh. Agya Ram,
R/o CD52F, DDA Flat, Hari Nagar,
New Delhi 110064.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 1
A5 Narayan Diwakar,
S/o Sh. Chatti Lal,
R/o G30, Masjid Moth, GKII,
New Delhi34.
A6. Arjun Singh,
S/o Sh. Ram Swaroop,
R/o H. No. 12, Block No. 9, Spring Filed Colony,
Sector31, Faridabad, Haryana.
A7. Prem Narain Sharma,
S/o Sh. R. S. Sharma,
R/o Flat No. 231, Pocket5, Mayur Vihar,
PhaseI, New Delhi.
..... Accused
(Kabir Dham CGHS)
Date for reserving for judgment : 19.01.2016
Date of pronouncement of judgment : 28.01.2016
J U D G M E N T
I CASE OF THE PROSECUTION:
1. The case of the prosecution is that Kabir Dham Cooperative Group Housing Society Ltd. (in short 'CGHS') was initially registered on 11.6.1971 as Voltas Employees CGHS Ltd. with its registered office at 7/1, Asaf Ali Road, New Delhi. The society became inactive and was ordered to be wound up u/s 63 of Delhi Cooperative Societies Act, 1972 (in short 'DCS Act') read with Rule 94 of Delhi Cooperative Society Rules, 1973 (in short 'DCS Rules') on CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 2 30.11.1978. It is further alleged that in the year 2003 one Satya Prakash, a self styled Secretary of the society, made a request for the revival of the society and the society was ordered to be revived by Narayan Diwakar, the then RCS, Delhi. It is further alleged that none of the office bearers and members of the revived society were in existence at the addresses available on record including Satya Prakash, socalled Secretary of the society and the Oath Commissioner who had attested affidavits was also found to be nonexistent. It is also alleged that Sushil Kumar Sharma, Gr.IV, an Inspecting Officer and Sanjeev Bharti, Gr.II Stenographer had submitted false inspection report and election report respectively and Narender Kumar, Dealing Clerk, Ramesh Chandra, AR, Narender Singh Khatri, LDC & Reader to the RCS and Narayan Diwakar, the then RCS abused their official positions in the matter of revival of the society with a view to get the land allotted to the society at the subsidized rates from DDA.
2. It is further the case of CBI that the RCS directed the society vide its letter dated 02.07.1977 to hold the election as per the provisions of Section 30 (1) of DCS Act, 1972 and that the society was warned to face action in case they failed to elect the Management Committee (in short 'MC') of the society in accordance with the DCS Act & Rules. As the society failed to comply with the instructions of the RCS, one Sh. A. P. Jain, an RCS Official, was appointed as an Election Officer on 12.9.1977 to conduct the election of the society CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 3 within one month. Sh. A. P. Jain, instead of conducting the election, conducted inspection of the society and submitted an inspection report dated 30.10.1977 reporting therein that the society had failed to achieve its aims and objects. He further reported that the land offered by the DDA had not been accepted by them and the money deposited with the DDA had since been withdrawn and refunded to the members of the society. He also reported that in the General Body Meeting (in short 'GBM') of the society held on 03.07.1977, it was decided to dissolve the society as the members were no longer interested and were not in a position to pay the amount demanded by the DDA for allotment of land.
3. Further, it is the case of the prosecution that Sh. Ashok Bakshi, the then Dy. Registrar, RCS, issued a show cause notice dated 30.11.1977 to the society as to why the society should not be wound up u/s 63 of DCS Act, 1972 r/w S. 94 of DCS Rules, 1973. However, the society failed to file a reply to the said notice and, therefore, it was ordered to be wound up on 30.11.1978 and one Sh. B. P. Singh was appointed as a liquidator. Sh. Ashok Bakshi, Dy. Registrar, RCS had wound up the society in exercise of the powers delegated to him by Lt. Governor of Delhi u/s 3(2) of DCS Act, 1972 r/w Rule 3(2) of DCS Rules, 1973 which had been conveyed to him by Sh. Ganga Dass, Spl. Secretary (Cooperation) vide his letter dated 18.10.1977.
4. As per CBI, A6 Arjun Singh impersonated as 'Satya CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 4 Prakash', a nonexistent person and submitted a letter dated 11.06.2003 requesting for the revival of the society. He had also requested for change in the name of the society from Voltas Employees CGHS Ltd. to Kabir Dham CGHS having its registered office at B2/22, Yamuna Vihar, Shahdara, Delhi. Accused Narender Kumar, Dealing Assistant put up a note on 25.08.2003 recommending the appointment of Sushil Kumar Sharma (A1), Gr. IV as an Inspecting Officer u/s 54 of DCS Act which was recommended by Ramesh Chandra (A4), A.R. and approved by Narayan Diwakar (A5), the then RCS on 26.08.2003 and 02.09.2003 respectively. An order in this regard was issued by Ramesh Chandra, A.R. on 15.9.2003.
5. Further, Sushil Kumar Sharma (A1), Gr. IV submitted a false inspection report of having visited the office of the society at B2/22, Yamuna Vihar, Shahdara, Delhi on 25.09.2003. The society was not in existence at the said address and that no one by the name 'Satya Prakash' ever resided at the said address. Sushil Kumar Sharma also mentioned that the audit of the society was pending from 1997 to 2003 and that the proceedings register had been completed.
6. As per CBI, Sushil Kumar Sharma (A1), Gr.IV was contacted by Arjun Singh (A6) and Prem Narain Sharma (A7)and a typed note was handed over by them to Narender Kumar, Dealing Assistant who submitted the same to Ramesh Chandra, A.R. on 14.11.2003. The file was sent by Ramesh Chandra, A.R. to N. S. CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 5 Khatri, Reader to the RCS, who recorded that as per the orders of the RCS, inspection was got conducted u/s 54 of the DCS Act by Sushil Kumar Sharma, Gr. IV and recommended for the issuance of notice to the President/Secretary of the society for hearing on 09.12.2003. Narayan Diwakar, the then RCS approved the proposal on 27.11.2003 and the file was sent back to East Zone for verification of members and to ascertain the audit/election position.
7. Further, it is the case of the prosecution that Narender Kumar, Dealing Assistant in his note dated 14.11.2003 which was endorsed by Ramesh Chandra, A. R. on 21.11.2003 had given a list of members who had resigned from the membership of the society in 1979 which also contained the names of promoter members. All promoter members have stated that the society was dissolved in the year 1977 itself and, as such, there was no question of their submitting resignations in 1979 and filing affidavits in the year 2003. This note also contained a list of members which had been finally approved by the MC of the society. However, all these members were bogus and nonexistent. GEQD has confirmed that the names and addresses on 79 affidavits are in the hand of Arjun Singh who had also forged the signatures of members on two affidavits. Government Examiner of Questioned Documents (in short 'GEQD') has further opined that in respect of another 23 affidavits, the addresses on reverse had also been written by Arjun Singh while P. N. Sharma had signed on these CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 6 affidavits as deponent. GEQD has also confirmed that P. N. Sharma had filled in another 35 affidavits and also forged the signatures of deponents in respect of affidavits of remaining 38 members. None of the members could be found except Sh. R. C. Saini, a promoter member, whose signatures had also been forged without his knowledge. All these affidavits were shown as notarized by Sh. Mohd. Atique, Oath Commissioner. However, nobody by the name of Mohd. Atique had ever been appointed as Oath Commissioner by High Court of Delhi.
8. It is further the case of prosecution that the letter dated 09.12.2003 about the initial hearing before the RCS was handed over to Arjun Singh and in response to the said letter, Arjun Singh attended the court of RCS and impersonated as Satya Prakash on 09.12.2003. Narayan Diwakar, the then RCS, recorded the presence of Satya Prakash who was none else than Arjun Singh and the file was sent to East Zone for verification of members and to ascertain the audit/election position, fixing the date of hearing as 23.12.2003.
9. As per CBI, a false report dated 22.12.2003 was submitted by Narender Kumar, Dealing Assistant to Ramesh Chandra, A.R. that a list of members had been checked and verified. He also reported that the election of the society was held last on 20.4.2003. Narender Kumar, Dealing Assistant submitted a false report in as much as the members of the MC have been found to be nonexistent. CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 7 Further, the names of the members in the proceeding register were written by Arjun Singh and P. N. Sharma who had also forged the signatures of members. All these members have been found to be non existent. Ramesh Chandra, A. R. forwarded the note of Narayan Diwakar, the then RCS through N. S. Khatri, Reader to the RCS, with the remarks that unaudited account of the society would be submitted after its revival. On 23.12.2003, Narayan Diwakar recorded a note and marked the presence of Satya Prakash, Secretary and Ramesh Chandra, the then A.R. (East). Narayan Diwakar, the then RCS, passed an order without any justification in as much as the society had itself resolved for its dissolution as the members were not in a position to pay the cost of land offered to them by DDA. The said revival order also contained false and incorrect facts that the society had been continuously managing its affairs while the same had been dissolved in 1977 itself.
10. As per CBI, Sanjeev Bharti, Election Officer submitted a false report dated 12.03.2004 that he conducted the election of the society on 29.02.2004 in the Office of RCS, Delhi. However, the members shown to have been elected were nonexistent.
11. It is further the case of prosecution that a list of 151 members approved by Narayan Diwakar was forwarded by Ramesh Chandra, A.R. to A.R (Policy) on 29.12.2003 for onward transmission to DDA for allotment of land. GEQD has proved that P. N. Sharma CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 8 had forged the signatures as President & as Secretary on the approved list of 151 members forwarded to Yogi Raj, A.R. (Policy) for onward transmission to DDA for allotment of land to the society.
12. Sanctions for prosecution were obtained against accused Sanjeev Bharti (Election Officer), Sushil Kumar Sharma (Inspecting Officer) and Narendra Kumar (Dealing Assistant) from the Competent Authorities.
13. After the investigation, chargesheet was filed in the Court against all the accused persons for committing offences punishable under Prevention of Corruption Act, 1988 (in short 'PC Act') and Indian Penal Code, 1860 (in short 'IPC').
II. CHARGES FRAMED :
14. On the above allegations, Ld. Predecessor framed charges vide his order dated 22.07.2010 against all the accused persons as under:
(i) All accused : S.120 B r/w S. 419/420/467/468/471 IPC and u/s 13 (2) r/w S.13 (1) (d) of P.C. Act.
(ii) A1 to A5 : Section 15 r/w 13 (2) r/w S.13 (1) (d) of P.C. Act.
(iii) A6 and A7 : S.120B r/w 420,468,471 IPC & S.420,468,471 r/w 120B IPC. (iv) A6 : S.419 IPC.
All the accused persons pleaded not guilty and claimed trial.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 9 They were accordingly put to trial.
III. PROSECUTION WITNESSES :
15. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined 128 witnesses in all who may be clubbed in seven groups for convenience. The seven groups are as hereunder :
(a) Fake Members
(b) Members
(c) RCS Officials
(d) Sanctioning Authorities
(e) Fake Society's Address.
(f) Investigating Officer (IO) and GEQD
(g) Postmen.
(a) FAKE MEMBERS :
PW2 Jaswant Singh
PW10 Jagdish Chander Wadwa
PW11 Pramod Shekhar
PW12 Narender
PW13 Jitender Kashyap
PW15 Balraj
PW29 Dinesh Dhaiya
PW30 Ms. Harvinder Kaur
PW31 Rakesh Gupta
PW45 Daljit Singh
PW115 Mithlesh Chaturvedi
16. PW2 Jaswant Singh has deposed that he retired from M/s Voltas Ltd. in the year 1999 and is residing at D38 Shyam Nagar, New Delhi since 1979. As per this witness no person by the name Sh. CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 10 Sharda Ram S/o Shri Ram Singh ever resided in his house either as tenant or otherwise. Sh. Sharda Ram has been shown to be a member of Kabir Dham CGHS vide list of membersEx. PW 2/A; notesheet in file D2 (Ex.PW 2/C); correspondence page 363 (Ex. PW 2/D) and affidavit (Ex. PW 2/E). Letter sent to the said Sharda Ram through speed post returned undelivered vide Ex. PW 2/B. This PW was not crossexamined by any of the accused.
17. Similarly, PW10 Jagdish Chander Wadwa, PW11 Pramod Shekhar, PW12 Narender, PW13 Jitender Kashyap, PW15 Balraj, PW29 Dinesh Dhaiya, PW30 Ms. Harvinder Kaur, PW31 Rakesh Gupta, PW45 Daljit Singh, PW77 Ramesh Chand Saini, PW115 Mithlesh Chaturvedi have proved that R. K. Sood, Satya Prakash, Parkash Joshi, R. K. Aneja, Daya Ram, K. L. Sharma, Sheetal Prasad, M. L. Verma and Shobha Singh respectively never resided in their respective properties and they have been falsely shown to be members of Kabir Dham CGHS.
18. PW29 Dinesh Dhaiya has deposed that address 2131/3 Prem Nagar does not exist.
(b) RCS OFFICIALS
PW72 Smt. Pratibha Sharma
PW73 Anjum Masood
PW74 V. K. Bansal.
PW75 Gajender Pal Singh
PW81 Smt. Jyoti Dubey
PW95 Harish Chand Joshi
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 11
PW117 Ashok Bakshi
PW124 Adeshwar Prasad
19. PW72 Smt. Pratibha Sharma has deposed that she was working as LDC during the relevant period under ARSh. Ramesh Chandra. However, she could not identify the signatures of Sh. Ramesh Chandra on documents marked as MarkPW72/X1 to PW72/X3 and Ex. PW 2/A.
20. During her crossexamination she deposed that she was not called by the CBI during investigation and the above referred documents were not shown to her during investigation. She further deposed that no statement u/s 161 Cr.PC was given by her during investigation to CBI officials.
21. PW73 Anjum Masood was posted as Assistant Registrar, East Zone in RCS Office during the relevant period. He has deposed that files and documents were seized by CBI vide memo Ex. PW 73/A. He has further deposed that on the letter of revival of Voltas Employees CGHS, signatures of Narayan Diwakar are appearing at point A on Ex. PW 14/A who marked it to JR and the JR, in turn, marked the same to AR. He has further proved that accused Narayan Diwakar vide Ex. PW 73/G appointed accused Sushil Kumar Sharma as Inspecting Officer u/s 54 of DCS Act for approval of members of society and change of the name of the society. Dealing Assistant submitted the report to AR for revival of the society and for sending CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 12 the list of members to DDA for allotment of land vide Ex. PW 73/H. The name of the society was changed from Voltas Employees CGHS to Kabir Dham CGHS. He has also proved the notesheetEx. PW 73/J and orderEx.PW 73/A bearing the signatures of accused Narayan Diwakar. He has also proved the letterEx. PW 73/L written by accused Sanjeev Bharti regarding conducting the election of MC of Kabir Dham CGHS and the letterEx. PW 73/M by Sanjeev Bharti mentioning the list of candidates elected unanimously.
22. During his crossexamination this witness has deposed that Sanjeev Bharti never worked under his supervision and he has never seen him writing and signing during official course of his duties at any point of time. He has denied that documentsEx. PW 73/L and Ex. PW 73/M were signed or prepared in his presence. He has categorically stated that he has no personal knowledge about the contents of the file pertaining to Kabir Dham CGHS.
23. PW74 V. K. Bansal has deposed that he remained posted as Assistant Registrar in the Office of RCS w.e.f. 31.01.2004 to 31.05.2008. He has deposed regarding the practice and procedure prevalent in the Office of RCS for the revival of CGHS and re approval of the list of members. He has proved the DCS Act as Ex. PW 74/A, DCS Rules as Ex. PW 74/B and Compendium of Directives and Circulars/Notifications as Ex. PW 74/C.
24. During his crossexamination he has admitted that the CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 13 Election Officer was not under an obligation to verify the list of members supplied by the society before conducting the election. He has further admitted that if there is no contest, the Election Officer declares the names of the elected office bearers in the GBM of the society. He has further admitted that holding election is not a pre requisite for the revival of the society.
25. PW75 Gajender Pal Singh has deposed that he was appointed as liquidator of Voltas CGHS from the year 1991 to 1993. He has proved his letter to DDO as Ex. PW 75/A, letter to AR (Audit) as Ex.PW75/B and letter to General Manager, Delhi State Co operative Bank as Ex. PW 75/C for issuance of 'No Dues Certificates'.
26. PW81 Smt. Jyoti Dubey has deposed that she was working as Stenographer in the Office of RCS and can identify the signatures of accused Narayan Diwakar and of Mr. Khatri (Reader to RCS) as she has seen them writing and signing in the official course of her duties. She has identified the signatures of accused Narayan Diwakar on documentsEx. PW 73/G, Ex. PW 81/A, Ex. PW 73/J and Ex. PW 73/K. This witness was not crossexamined by any of the accused.
27. PW95 Hari Chand Joshi has deposed that he was posted as AR in the Office of RCS from 1974 to 1978. He has proved the various documents relating to the Voltas Employees CGHS during his tenure vide which show cause noticeEx. PW 95/E was issued to the CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 14 society in November, 1997 and the society was wound up vide order Ex. PW 95/F of Sh. Ashok Bakshi.
28. PW117 Ashok Bakshi has corroborated the testimony of PW95.
29. PW124 Adeshwar Prasad was working as Inspector in the Office of RCS during the period 1976 to 1979. He was appointed as Election Officer and proved his report as Ex. PW 73/E. He has corroborated the testimonies of PW73 and PW95.
(c) SANCTIONING AUTHORITY
PW1 C.M. Sharma
PW116 Siddharth Rao
PW126 Vijay Kumar.
30. PW1 Sh. C. M. Sharma, had accorded sanction for prosecution of Narender Kumar; PW116 Siddharth Rao had accorded sanction for prosecution of Sushil Kumar Sharma and PW126 Vijay Kumar had accorded sanction for prosecution of Sanjeev Bharti.
(d) MEMBERS
PW44 Durga Dutt
PW25 P. S. Oberoi
PW26 Ashok Kumar Bharee
PW27 Jai Narain Tyagi
PW28 Ashok Kumar Vij
PW77 Ramesh Chand Saini
PW125 Devki Nandan Aggarwal
31. PW44 Durga Dutt has deposed that Voltas Employees CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 15 CGHS was constituted for the employees of M/s Voltas Ltd. He became member of the said society in 1973. He had deposited Rs.100/ as membership fee and, thereafter, an amount of Rs.1000/ in the account of the society. The registered address of the said society was 7/1 Asaf Ali Road, New Delhi. As per this witness, in 19751976 the members of Voltas Employees CGHS could not pay the amount demanded by the DDA and, consequently, it was decided in the GBM that the society be dissolved. The RCS was informed in this respect and all the records of the society were deposited with the RCS office in the year 1976. He has further deposed that Satya Prakash was neither an employee nor a member of Voltas Employees CGHS. He has proved the minutes of first meeting of the said CGHS as Ex. PW 44/A. He did not resign from the membership of the society on 02.02.1979 but has been falsely shown to have resigned in the list of members. He has also proved the genuine list of members dated 30.6.1975Ex. PW 25/A wherein his name with other details are mentioned.
32. During his crossexamination he has deposed that he had personally gone to the RCS Office for depositing the record of the society and after that he lost interest in the society. He has denied the suggestion that the resignation letters from the members were obtained by the society before it was dissolved. He has further denied the suggestion that the employees of Voltas Ltd. tried to revive the society CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 16 after its dissolution.
33. PW25 P. S. Oberoi, PW26 Ashok Kumar Bharee, PW27 Jai Narain Tyagi and PW28 Ashok Kumar Vij have corroborated the testimony of PW44 Durga Dutt to the effect that they never resigned from the membership of the society and have been falsely shown to have resigned. PW77 Ramesh Chand Saini has deposed that he never executed affidavit Ex. PW 77/A and the same is a forged document.
34. PW125 Devki Nandan Aggarwal was the founder member of the society. He has deposed that application for registration of the society under the name of Voltas Employees CGHS was submitted after the meeting held on 23.04.1971 which was attended by all 15 promoter members. He has proved the application for registration as Ex. PW 125/A; minutes of first meeting of promoter members as Ex. PW 44/A; his affidavit as Ex. PW 125/B; undertaking as Ex. PW 125/C; list of members as on 30.06.1975 as Ex. PW 25/A; audit report for the year 197475 as Ex. PW 125/D and the false affidavit allegedly filed by Satya Prakash falsely showing him to have resigned on 01.01.1979 as Ex. PW 2/D.
35. During his crossexamination he has categorically stated that till March, 1976 no person by the name of R. P. Kapoor was ever appointed as Secretary/President of the society and no amendment was made in the byelaws of the society.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 17
(e) FAKE SOCIETY'S ADDRESS
36. PW14 Ajay Mohan Sharma has deposed that he is/was residing at B2/22 Yamuna Vihar, Delhi since 1981. He never became member of Kabir Dham CGHS nor the aforesaid address was allowed to be used by anyone including Satya Prakash for the purpose of said society. He has further deposed that letter Ex. PW 14/A bearing the signatures of Satya Prakash falsely shows his above referred address as Satya Prakash never resided in the above said property of which his father is the owner. Similarly, he has further deposed that Sushil Kumar Sharma neither resided nor was authorised to use the above referred address for any purpose. He proved the other documents falsely showing his address as the registered address of Voltas Employees CGHS as Ex. PW 14/B, Ex. PW 14/C and Ex. PW 14/D.
37. During his crossexamination he has deposed that his house was not searched by the CBI. No notice was served upon him by the CBI for producing the record of Kabir Dham CGHS. He has denied the suggestion that his other family members were running the Kabir Dham CGHS from the aforesaid address.
INVESTIGATING OFFICER (IO) AND GEQD PW127 ACP Ashok Kumar Sharma PW128 T. Joshi.
38. PW127 ACP Ashok Kumar Sharma is the Investigating Officer of the case who investigated the matter and, thereafter, filed CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 18 the chargesheet in the Court.
39. PW128 T. Joshi is a handwriting expert who has proved the opinion/report and the reasons in support thereof as Ex. PW127/H and Ex. PW 127/H1 respectively.
(h) POSTMEN
Remaining PWs are postmen.
40. All the PWsPostmen working in different areas in Delhi and they have deposed that either the addressees of purported members of Kabir Dham CGHS were not residing at the given addresses or the addresses were found fake as no such addresses existed in their beats.
IV STAND OF ACCUSED UNDER SECTION 313 CR.P.C:
41. The statements of all the accused under Section 313 Cr.PC were recorded when a chance was given to explain the incriminating evidence against them. All the accused have claimed that they have been falsely implicated in this case. According to them, the prosecution witnesses are interested witnesses and have falsely deposed against them. None of the accused has examined any witness in his defence.
V. RIVAL CONTENTIONS :
42. Sh. N. P Srivastava, Ld. Sr. PP for the CBI has contended that CBI has proved its case against all the accused beyond reasonable doubt. According to him, all the public servants were in connivance CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 19 with private persons and they were helping them, actively and intentionally, so that Kabir Dham CGHS, a defunct society, be allotted land. All the accused persons falsely revived Kabir Dham CGHS. All the accused persons knew that Kabir Dham CGHS was a defunct society as there was no correspondence by the genuine office bearers of the society. It is further contended that in view of the judgment of Delhi High Court the land was to be allotted by the DDA on the basis of seniority which was fixed on the basis of date of registration of the society. According to Ld. Sr. PP for CBI, a newly created society would not have got any land and, therefore, false and forged documents were created with the active connivance of RCS officials. It was so done to project as if the said society was seeking its revival. Thus, it is contended that all the accused are liable to be convicted in the present case.
43. Sh. Abhishek Prasad, Ld. Counsel for accused A6 and A7 has contended that there is no evidence against these accused persons and they have been falsely implicated to save the real culprits. Ld. Counsel has drawn the attention of this Court to the cross examination of the IO. He has further contended that the opinion of GEQD simply has to be ignored because it is in complete violation of S.311A of Cr.PC which mandates that w.e.f 23.06.2006, the writing of a person required for investigation has to be taken under the orders of Magistrate. However, no such permission of the Magistrate was taken CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 20 for obtaining the specimen handwritings/signatures of A6 and A7. It is, thus, contended that obtainment of specimen handwritings/ signatures of these accused and its manner were in flagrant violation of law. These accused were neither members nor beneficiaries of the society and as no land was allotted to Kabir Dham CGHS, it cannot be assumed that they were coconspirators in commission of the offences. The investigation is tainted and motivated. There is no wrongful loss or wrongful gain to anyone. These accused are, therefore, liable to be acquitted. Ld. Counsel has also filed written submissions on behalf of A6 and A7.
44. As regards A5, Sh. Abhishek Prasad, Ld. Counsel has contended that the revival order of the society by A5 is neither illegal nor contrary to public interest. There is nothing on record that revival of the society was influenced by any corrupt or illegal means or was passed by A5 abusing his official position. Membership is the subject matter of the society and A5 had no role in it. It is further contended that the file was processed in its natural course and there was nothing unusual to raise suspicion. According to him, the cancellation of winding up order was passed under Section 63 (3) of DCS Act and there is no evidence to show that either A5 or other RCS officials had any knowledge that the documents submitted before them were forged documents. It is further contended that there is no evidence of any association of A5 with private persons including A6 and A7. There CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 21 is nothing on record to show that A5 gained any pecuniary advantage from anyone. Neither A5 nor his family members were members of Kabir Dham CGHS and, as such, he is not to be benefitted if the land would have been allotted by the DDA. According to Learned Counsel, there is nothing on record to show that any loss was caused to DDA or Government.
45. As regards, A1 and A2, Sh. S. K. Bhatnagar, Ld. Counsel has contended that these accused had no role to play in the revival of the society. There is nothing on record that these accused had knowledge that someone with the fake name of Satya Prakash was impersonating as office bearer of the Kabir Dham CGHS. Sh. S. K. Bhatnagar, Learned Counsel has further contended that these accused have been falsely implicated in the present case by the CBI. These accused were merely discharging their respective official duties and they had no reason whatsoever to disbelieve or suspect that the documents produced before them by private persons were forged and fabricated. According to him, even otherwise, it was merely a case of preparation and not an attempt. These accused being public servants enjoy immunity from prosecution under Section 95 of DCS Act. Lastly, he has contended that no wrongful loss or wrongful gain was caused to anyone and, as such, these accused are liable to be acquitted.
46. Sh. Anil Kumar, Ld. Counsel for A3 Sanjeev Bharti has contended that none of the prosecution witness has stated anything CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 22 against A3. According to him, A3 is liable to be acquitted in this case. He has filed written submissions.
47. A4 Ramesh Chandra has submitted that he has been falsely implicated in this case by the CBI. There is no evidence on record to connect him with the alleged offences. He has filed written submissions.
48. In support of their respective contentions, learned Counsel for all the accused persons have also relied upon several judgments which I would refer to at appropriate places. I have gone through the written submissions filed on behalf of the accused persons.
VI EVALUATION OF EVIDENCE AND FINDINGS :
(A) SANCTION :
(i) A1, A2 and A3
49. Sh. S. K. Bhatnagar, learned Counsel has raised serious objection with respect to the validity of sanctions. It is contended that sanction orders are nonest in law as the same have not been obtained from the competent authorities. According to him, even otherwise, the sanction orders have been accorded without application of mind. As per Ld. Sr. PP for CBI, there is no illegality in grant of sanction and the sanction orders are with proper application of mind.
50. The sanction for prosecution of an accused under the P.C. Act is not a mere formality and it has to be accorded after complete satisfaction. Sanction order must be demonstrative of the fact that CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 23 there had been proper application of mind on the part of the sanctioning authority. Simultaneously, it has also to be kept in mind that this provision does not intend that a public servant who is alleged to be guilty should escape the consequences of his criminal act by raising technical plea about invalidity of the sanction. This section safeguards the innocent but does not shield the guilty.
51. PW1 Sh. C. M. Sharma, had accorded sanction for prosecution of Narender Kumar; PW116 Siddharth Rao had accorded sanction for prosecution of Sushil Kumar Sharma and PW126 Vijay Kumar had accorded sanction for prosecution of Sanjeev Bharti. All these PWs have deposed that they had perused the documents before granting sanction. During their crossexamination nothing has come on record that the sanctions were accorded by them without due application of mind.
52. Further, it has been contended by Ld. Counsel Sh. S. K. Bhatnagar that sanction for prosecution should have been taken from that particular officer only who was posted as competent authority at the time of commission of the offence. This argument is devoid of any merit. The only thing required to be seen is whether the sanction has been obtained from the competent authority or not. The judgmentsR. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684 and Prakash Singh Badal Vs. State of Punjab, 2006 (4) Crimes 388 (SC) are not applicable to the facts of the present case. It is the settled law that CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 24 merely because there is any omission, error or irregularity in the matter of according sanction, that would not affect the validity of the proceeding unless such error, omission or irregularity results in failure of justice. Though not referred to or relied upon, for taking this view I am supported with the judgment of Apex Court reported as State of Bihar Vs. Rajmangal Ram, Crl. Appeal No. 709710 of 2010 decided on 31.03.2014. From the perusal of evidence on record, there is nothing to show that there was any failure of justice or serious prejudice to the accused because of alleged improper sanction.
53. Further, it has been contended by Sh. S. K. Bhatnagar, Ld. Counsel for A1 and A2 and Sh. Anil Kumar, Ld. Counsel for A3 that no mandatory sanctions were obtained under Section 197 Cr.P.C. and, therefore, A1, A2 and A3 could not have been prosecuted for IPC offences. In support of their contention, Ld. Counsel have relied upon judgmentN. K. Ganguly vs. CBI, 2015 (12) SCALE 500. This contention does not hold water as the prosecution is not required to seek sanction for prosecuting the accused persons twice. When an accused is granted sanction for prosecution for offences under IPC Act as well as PC Act, there is no need for again obtaining sanction under Section 197 Cr.P.C. If the contention of learned Counsel is accepted, the purpose of Section 19 of the PC Act and the legislative intent would be frustrated. Though not referred to or relied upon, for taking this view I am supported with the judgment CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 25 Neera Yadav Vs. CBI, (2006) 2 All. LJ 442. Similar is the view taken by our Delhi High Court in judgment reported as Dharambir Khattar Vs. CBI, (2009) 159 DLT 636. The judgment relied upon by Ld. Counsel is not applicable to the facts of the present case as in the present case sanctions for prosecuting A1, A2 and A3 were obtained for prosecuting these accused for the offences under PC Act as well as under IPC.
54. On careful perusal of entire testimony of PW1 Sh. C. M. Sharma, PW116 Siddharth Rao and PW126 Vijay Kumar, I am of the opinion that A1, A2 and A3 have not been able to show any substantial or compelling reason which may persuade me to hold that sanction orders qua them are invalid or nonest law
(ii) A4 and A5
55. So far as A4 Ramesh Chandra and A5 Narayan Diwakar are concerned, no sanctions were obtained either under Section 19 of PC Act or under Section 197 IPC by the CBI before prosecuting them. It is contended that in the absence of sanction, A4 and A5 could not have been prosecuted by the CBI and, therefore, they are liable to be acquitted on this ground alone. In support of their contention, they have relied upon judgmentsState vs. Labh Singh, 2015 (3) SCC (Cri) 601 and N. K. Ganguly (Supra). On the other hand, Ld. Sr. PP for CBI has contended that these accused have been charged for committing the offence of criminal conspiracy under Section 120B IPC and, as CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 26 such, it was not part of their duty, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. It is, thus, contended that want of sanction under Section 197 Cr.PC was no bar for their prosecution. In support of his contention, Ld. Sr. PP for CBI has relied upon judgmentHari Har Prasad Vs. State of Bihar, 1972 (3) SCC 89.
56. The judgmentsLabh Singh (Supra) and N. K. Ganguly (Supra) squarely covers the point in issue. A4 and A5 had already retired when the chargesheet was filed against them in the Court of Spl. Judge CBI. Thus, no sanction was required for prosecuting them for the offence(s) under PC Act. Unlike Section 19 of PC Act, the protection under Section 197 Cr.PC is available to A4 and A5 even after their retirement. Thus, I am of the view that this Court could not have taken cognizance against them insofar as the offences punishable under IPC are concerned. Therefore, insofar as charges under Section IPC are concerned, A4 and A5 are acquitted for want of valid sanction under Section 197 Cr.PC.
(iii) A6 and A7
57. Sh. Abhishek Prasad, Ld. Counsel has contended that A6 and A7 were Government Servants at the time of filing of charge sheet. However, no sanction was obtained from the competent authority and, therefore, they are liable to be acquitted. This contention of the Ld. Counsel is misconceived. A6 and A7 were not CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 27 working in the Office of RCS at the relevant time. The alleged offences cannot be said to have been committed by them being the public servants in discharge of their official duties. Their alleged acts have no sufficient connection with their official duties. Thus, there was no requirement for obtaining sanctions under Section 197 Cr.PC against them.
(B) CHARGES UNDER
IPC
58. All the accused have vehemently contended that there was no cheating as there was no wrongful loss to anyone and there was no corresponding wrongful gain to anyone and, therefore, the ingredients of Section 415 IPC are not attracted to the present case. According to them, there is nothing on record to suggest that any loss was caused either to the DDA or the RCS. The crucial ingredient being missing, the accused cannot be convicted for the offence of cheating.
59. PW125 Devki Nandan Aggarwal was the promoter member of Kabir Dham CGHS who became member of Kabir Dham CGHS in 1971. He has categorically deposed that the society stopped functioning in 19751976 but was falsely shown to have revived. The other members i.e. PW25, PW26, PW27, PW28 and PW44 have corroborated the testimony of PW125. It has also been proved that the registered address of the society was 7/1 Asaf Ali Road, New Delhi as has been deposed by the prosecution witnesses. However, it has been proved from the testimony of PW14 Ajay Mohan Sharma CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 28 that his address B2/22 Yamuna Vihar, Delhi has been falsely shown to be the address of the society in letter Ex. PW 14/A and other documents Ex. PW 14/B to Ex. PW 14/D. Thus, it has been established that no office of the society was operating from the said address and fake address was used to show that the society was having its office at the said address and the proceedings of the society were forged and fabricated. Thereafter, the same were filed in Office of RCS with an object to revive the Kabir Dham CGHS.
60. From the testimonies of postmen, it has been established that either the addressee were not residing at the given addresses or the addresses were found fake as no such addresses existed. The testimonies of postmen prove that nonexistent persons were made fake members of the society.
61. Thus, from the testimonies of above referred witnesses it has been proved by the prosecution that the Kabir Dham CGHS stopped functioning from 19751976 but in September 2003, false documents were submitted for the revival of Kabir Dham CGHS by creating false records.
62. During investigation, questioned documents along with specimen signatures/handwritings of accused were sent to GEQD, Shimla for obtaining opinion. PW128 Sh. Mohinder Singh has proved opinions/reports and the reasons in support thereof.
63. Sh. Abhishek Prasad, Ld. Counsel has contended that CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 29 GEQD opinion dated 14.7.2006 (Ex. PW 127/H and supplementary opinion dated 17.8.2006 ( Ex. PW 127/H1) are concocted documents and cannot be relied upon. According to him, GEQD opinion and Supplementary GEQD opinion are faulty and are not reliable as they are not based on any scientific approach. These were prepared just on the advice of CBI. He has seriously disputed the manner in which his specimen handwritings and signatures were taken during the investigation. According to him, the specimen handwritings/signatures had been taken without the orders of the Court. The opinion of GEQD has to be ignored as it is in violation of S.311A Cr.PC and Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB). Thus, this evidence cannot be said to be incriminating against accused persons. It is an admitted fact that no such permission was taken for obtaining the specimen handwriting of accused persons. In support of his contention, he has relied upon judgmentsRaj Kumar Vs. State, Crl. A 582/2012 decided by the Delhi High Court on 18.10.2012; Parkash Chand Vs. State, Crl. A 342/1999 decided by Delhi High Court on 18.3.2014; Sanjay Vs. State; Crl. A 1151/2010 decided by Delhi High Court on 24.11.2014 and Bharat Aneja Vs. State, Crl. A 652/2011 decided by Delhi High Court on 20.3.2015. According to him, in view of these judgments no reliance can be placed on judgment Ravinder Singh @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436, relied upon by Ld. Sr. PP for CBI.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 30
64. The reliance placed upon S.311A Cr.P.C, Sapan Haldar (Supra) and other judgments referred in para hereinabove are of no help to accused persons in view of the judgment of the Apex Court on the same issue. In Ravinder Singh @ Dara Singh (Supra), the Apex Court has held that the Investigating Officer has power to take specimen signatures during the investigation even without permission of the Court and that report of such an expert based on such specimen signatures/handwritings could be used as evidence.
65. It is the case of the CBI that A6 and A7 forged certain documents/affidavits and in conspiracy with other coaccused persons got revived Kabir Dham CGHS which was lying defunct. It is also the case of the CBI that A6 Arjun Singh impersonated as Satya Prakash and submitted a letter dated 11.06.2003 requesting for revival of the society. However, there is nothing on record to establish that it was A6 who had submitted the said application in the office of RCS for the revival of the society. Thus, the charge under Section 419 IPC against A6 has not been proved by the prosecution and, as such, he is liable to be acquitted for the said offence.
66. The present case is based on circumstantial evidence. It is the settled law that in case of circumstantial evidence the facts must be established beyond reasonable doubt and the facts established should form a chain of events so closely associated with each other as to CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 31 exclude the possibility of any other hypothesis other than the guilt of the accused persons. In the present case, the complete chain of events proving beyond reasonable doubt the involvement of accused persons has not been established by the prosecution for the following reasons:
(a) It is apparent from the record that Sh. Haroon Yusuf, Minister of Development Revenue and Sh. Sarfaraj Ahmed, Ex. MP were approached by the Secretary of the Kabir Dham CGHS for the revival of the society. Two separate letters on their respective letter heads (document nos. 126/C and 127/C in file D1) are on record and have been produced by the prosecution itself in the Court. It is the settled law that the documents filed by a party can be read against them even if they are not proved in accordance with law. The IO did not examine the aforesaid persons during the investigation of the case. The examination of these persons would have established the identity of the person(s) who had approached them for the revival of the society.
(b) Notary Sh. C. B. Arya whose seal of attestation is appearing on the affidavits/documents from pages 359/C to 369/C in file D2 Vol. II (Ex. PW 127/B2 collectively) was never examined. Similarly, Sh. R.P. Bhatia, Stamp Vendor whose stamps are appearing in all the affidavits from pages 337/C to 183/C was also not examined. The examination of these witnesses would have thrown light as to who had approached them. No register was seized from the said Sh. R.P. CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 32 Bhatia to prove the details of the persons who would have purchased the stamp papers from him.
(c) It has not been conclusively proved by the CBI that Mohd. Atique, Oath Commissioner whose stamps are appearing in several affidavits was a nonexistent person. IO has placed on record the letter dated 23.5.2006 (D7)Ex. PW 127/C written by Sh. Girish Sharma, Dy. Registrar (Gen.) Delhi High Court wherein it is stated, "I am directed to refer to your letter, refer to above, and to inform that as per the records of this Court, during the period inquired about, there was no person by the name of Mohd. Atique upon whom the powers of Oath Commissioner were conferred by this Court". The said letter was issued in response to the letter dated 12.4.2006 of the CBI. However, the letter dated 12.4.2006 was not filed by the IO which could have proved the fact of period of enquiry against which the letter Ex. PW 127/C was issued by Delhi High Court. Thus, it has not been proved during which period Mohd.Atique was not conferred with the powers of Oath Commissioner by the High Court. Even otherwise, the said letter Ex. PW 127/C has not been proved in accordance with law as Sh. Girish Sharma was neither cited as a witness nor examined as a witness by the CBI during trial of the case.
(d) Sh. Abhishek Prasad, Ld. Counsel has relied upon judgmentsKanchan Singh Dholak Singh Thakur Vs. State of Gujrat, AIR 1979 SC 1011; Chanderkant Vs. State, 1992 (1) SCC 473; Shashi CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 33 Kumar Vs. Subodh Kumar, AIR 1964 SC 529 and Magan Bihari Lal Vs. State of Punjab, AIR 1977 SC 1091 on the point that it is not safe to rely upon the opinion of handwriting expert unless corroborated in material particulars. He has vehemently contended that PW127 (IO) had by exercise of undue influence and by way of manipulations obtained antedated concocted reports favourable to CBI. Sh. Anil Kumar, Ld. Counsel for A3 has placed and reliance upon judgments Ishwari Prasad Mishra Vs. Mohd. Isa, AIR 1963 SC 1728 and S. Gopal Reddy Vs. State, 1996 CLJ 3237 on the point that evidence given by handwriting expert can never be conclusive. The GEQD opinion is unworthy of credit for the following reasons:
(i) A6 and A7 were granted bail by Ld. Spl. Judge, CBI vide order dated 25.09.2006 (Ex. PW 127/D1) and till that date the GEQD opinions were awaited. This fact finds mentioned in the said bail order and has also been admitted by the IO during his crossexamination. The GEQD opinion Ex. PW 127/H is dated 14.07.2006 while supplementary opinion is dated 17.08.2006. Thus, GEQD had already given opinion prior to order dated 25.09.2006 of Spl. Judge CBI.
(ii) The diary no. of the letter sent by CBI to GEQD and referred to in opinion dated 14.07.2006Ex. PW 127/H at S. No. 3 is shown as 5251 dated 8.4.2006 against which the opinion was sent whereas the diary no. with date of letter CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 34 written by CBI to High Court, as reflected in letterEx. PW 127/C (D7), is 4353 dated 12.4.2006. It is a matter of common practice that any letter written on a prior date in respect of any investigation has lower diary no. It has been admitted by the IO during his crossexamination that the diary no. increases with date. Thus, there is no explanation from the side of prosecution as to how a letter dated 12.4.2006 has the diary no. 4353 while the letter dated 8.4.2006 has the diary no. 5251. Thus, the possibility of manipulation cannot be ruled out.
(iii) The GEQD opinion appears to have been prepared without applying scientific analysis as the reports lack any qualitative analysis or demonstration on the fundamental aspects such as movement, skill, speed, line quality, degree of slant, spacing, alignment, relative sizes, proportion of letters, natures of commencing and terminal strokes etc. on which the science of handwriting is based. PW128 has admitted these lapses in the reports during his cross examination.
(iv) During the crossexamination of PW128, it has come on record that several affidavits which are questioned documents were having the initials 'PNS' and 'AS' written on the top of them. It shows that for obtaining GEQD opinion, CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 35 hints were provided by the CBI on the questioned documents by writing the aforesaid initials. The initial 'PNS' stands for A7 P. N. Sharma while 'AS' stands for A6 Arjun Singh.
(v) About 500 sample sheets purportedly written by A6 were sent to GEQD but no opinion was given against him in report dated 14.7.2006 Ex. PW 127/H. However, those sample handwritings were not filed by the CBI in the Court. There is no explanation as to why GEQD was unable to give an opinion in its first report.
(vi) On a large number of specimen writings there is neither any date nor signatures/thumb impression of the person whose specimen were obtained by the CBI. This fact has been admitted by PW128 during his crossexamination.
(vii) No independent witness was examined to prove taking of specimen handwriting/signatures from accused.
(viii) In Kanchan Singh Dholak Singh Thakur (Supra), it has been held that when the report of the handwriting expert has been disbelieved on most material points, it is hazardous to record conviction of the accused on the opinion of the handwriting expert. In Chanderkant Vs. State (Supra), it has been held by the Apex Court if the prosecution evidence is not reliable, no conviction can be sustained only on the opinion of the handwriting expert.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 36 OFFENCES BY PUBLIC SERVANTS
67. Sh. Abhishek Prasad, learned Counsel for A5 has contended that A5 had no dishonest intention. It is a case of mere breach of procedure. According to him, A5 cannot be convicted under Section 13(1)(d) read with 13(2) of PC Act. In support of his contention, he has relied upon judgments-Union of India Vs. Majour J. S. Khanna, 1972 Cri. LJ 849; K. R. Purushothaman Vs. State of Karela, (2005) 12 SCC 631; A. Subair Vs. State of Kerala, 2009 Cri. LJ 3450; Major S. K. Kale Vs. State of Maharashtra, AIR 1977 SC 822; S. P. Bhatnagar Vs. State of Maharashtra, AIR 1979 SC 826; Abdulla Mohammed Pagarkar Vs. State, AIR 1980 SC 499; Subhash Parbat Sonvana Vs. State of Gujrat, 2002 Cri. LJ. 2787, R. Balakrishna Pillai Vs. State of Kerela, AIR 2004 SC 1012 and A. K. Ganju Vs. CBI, Cri. MC No. 2384 of 2011 decided on 22.11.2013 by Delhi High Court.
68. Sh. S. K. Bhatnagar, learned Counsel for A1 and A2 has contended that there was no mens rea on the part of these accused and they are liable to be acquitted. In support of his contention, he has relied upon judgments- S.Swaminathan Vs. State of Delhi, 2008 Cri. LJ 1957 and Anil Kumar Bose Vs. State of Bihar, AIR 1974 SC 1560.
69. I have gone through the judgments cited before me. In Major J. S. Khanna (supra) it was observed by the Apex Court that regarding the allegation that the firm M/s Auto Stores was non CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 37 existent firm, there was no conclusive evidence to show that the accused knew that there did not exist any such firm. It was further held that though the accused might not have been careful or was grossly negligent, yet his action was not actuated with criminal intent. As regards the irregularities in the procedure committed by the accused, it was held that such a breach of procedure did not mean fraud or any other criminality.
70. In S. P. Bhatnagar (Supra), the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused Contractor with regard to a contract of rock cutting by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. In those circumstance, the Apex Court held that accused cannot be said to have acted with dishonest or corrupt motive or abused his position in having the contract in question entrusted to accused.
71. In Abdul Mohammed Pagarkar (supra), the Apex Court found that the work was got executed in flagrant disregard to the relevant rules. However, it was held that such disregard did not amount to any of the offences alleged against the accused.
72. In Major S. K. Kale (supra) also, the Apex Court found that in the facts of the case, the accused cannot be said to have used any corrupt or illegal means.
73. In A. K. Ganju (supra), our Delhi High Court speaking CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 38 through Hon'ble Mr. Justice Suresh Kait quashed the chargesheet on the ground that the CBI had failed to establish as to which unauthorized construction had been done by which accused and who were the officials with whom the conspiracy was hatched.
74. In Anil Kumar Bose (supra), it was held by the Apex Court that the evidence adduced must establish beyond reasonable doubt mens rea on the part of the accused. It was further held that it will not be correct to impute guilty intention merely from the failure on the part of the accused to perform his duties or to observe the rules of procedure laid down in the duty chart in a proper manner which could be said to be an administrative lapse only.
75. In S. Swaminathan (Supra), it has been held by our Delhi High Court that merely certifying a statement of fact based on the record produced by the company, the chartered accountant cannot be held liable for conspiracy.
76. I have gone through the judgments. There is no dispute regarding the legal preposition laid down in the abovereferred judgments.
77. In order to ascertain whether the public servants actually connived with private persons, notings in the files are very important and vital. The Court can always draw logical and natural inferences from such notings. Ld. Sr. PP has relied upon judgment Runu Ghosh Vs. CBI, Crl. A. No 482 of 2002, decided on 21.12.2011, wherein it CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 39 has been held by our High Court of Delhi that offences of corruption are done under the cloak of official duties and in a shrouded manner and, therefore, the only evidence available is notesheets written or approved by public servants. It has further been held that Court would be fully justified to draw appropriate inferences from such notesheets.
78. It is appropriate to refer to these notings, in brief, for drawing an inference if public servants were indulging in corruption. Before proceeding further, it is pertinent to mention here that in the present case the representatives of Kabir Dham CGHS had directly approached the RCS by moving an application dated 11.6.2003 with a request for revival of the society.
79. Vide noting dated 25.8.2003 at page no. 5/N (Ex.PW73/G), approval of an inquiry u/s 54 of the DCS Act under Sh. Sushil Kumar Sharma (A1) was sought to be conducted and the same was approved by A5 Narayan Diwakar on 02.09.2003. Inspection Officer was appointed vide order dated 16.9.2003.
80. Inspection Officer submitted his report after conducting the enquiry vide notesheet 7/N.
81. On 27.11.2003, A5 approved issuance of notice under Section 63 (3) of DCS Act to the President/Secretary of the society for initial hearing on 9.12.2003 vide notesheet 14/N.
82. On 9.12.2003, Sh. Satya Prakash appeared before A5 and the matter was adjourned to 23.12.2003 for ascertaining the CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 40 audit/election position of the society vide notesheet 14/N.
83. Notesheets reveal that AR (East), after going through the record produced by the society, requested A5 for revival of the society as well as for approval of the freeze list of members for allotment of the land.
84. On 23.12.2003 (16/N), Satya Prakash, Secretary of the society appeared before A5 who after hearing the arguments reserved the matter for orders.
85. Finally on 29.12.2003 (Ex. PW 73/A), A5 ordered for revival of the society as AR (East) had already verified the list of members submitted by the society. However, the said order was subject to the condition that the election of Managing Committee of the society be conducted within two months.
86. It is not at all necessary to burden this judgment by quoting various provisions of DCS Act and Rules as under the law RCS has ample powers to order the cancellation of winding up order if the liquidation proceedings are not completed within the stipulated period. Under Section 13(1)(d) of the PC Act, this Court is required to assess if the public servants had abused their position as public servants thereby obtaining for themselves or for any other person any valuable thing or pecuniary advantage. In other words, this Court is required to assess if all the concerned officials of RCS had abused and misused their public offices in such an endeavor. In my opinion, the CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 41 complicity of public servants is not evident in the present case and for reaching the said conclusion, following facts are relevant:
(a) PW127 Ashok Kumar (IO) during examination in chief as regards A1 Sushil Kumar Sharma has deposed to the effect, "...he (A1) submitted a false report after taking a sum of Rs.5000/ from P. N. Sharma and Arjun Singh." As regards A2 Narender Kumar, he has deposed to the effect, "he (A2) knew that Arjun Singh and P. N. Sharma were impersonating as Satya Prakash, Secretary of Voltas CGHS Ltd. He took the consideration of Rs.10,000/ from Arjun Singh and P. N. Sharma in accepting the forged documents which he knew were forged". It is not the case of the prosecution in the chargesheet that A1 and A2 accepted bribe from A6 and A7. There is no witness for the same. It is the duty of the IO to investigate the matter fairly. If IO had witnessed the bribe being accepted by A1 and A2, he could not have been entrusted the job of conducting the investigation. In case the IO had no personal knowledge about the aforesaid pecuniary advantage taken by A1 and A2, then it is a hearsay evidence which is not admissible under the law.
(b) There is nothing on record to show that A1 to A5 had obtained any pecuniary advantage for their official acts or they were in constant touch with A6 and A7 for the revival of Kabir Dham CGHS.
(c) It is the case of the prosecution that A3 conducted CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 42 the proceedings as per directions of RCS after the conditional revival order was passed by the RCS. It is the settled law that the prosecution has to prove its case beyond any reasonable doubt by legally admissible evidence. It is also the settled law that the prosecution has to stand on its own legs and cannot take the help of any loophole in the defence of the accused. A3 is alleged to have submitted a false election report dated 12.3.2004 along with false election proceedings in respect of the elections allegedly conducted by him on 29.2.2004. However, no evidence was adduced during the trial to substantiate the evidence against him as none of the witness produced during trial has identified the writings/signatures of A3 on the alleged election report dated 12.3.2004 and the alleged election proceedings dated 29.2.2004. Only one witness i.e. PW73 Sh. Anjoom Masood was produced during the trial to identify the writings/signatures of A3. However, in his crossexamination PW73 has categorically deposed that he was in no position to identify the writings/signatures of A3.
(d) CBI has produced the CFSL report to substantiate the allegations against A3. PW128 Sh. T. Joshi has given opinion only on two signatures marked Q644 (list of elected candidates) and Q645 (letter dated 12.3.2004). However, no opinion has been given with regard to any writings/signatures on the election proceedings dated 29.2.2004. A3 has seriously disputed that the specimen writings (S18 to S25) pertain to him. No independent witness was produced CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 43 during trial to prove that the said specimen handwritings pertain to A3. Only IO, an interested witness, has proved the specimen handwritings/signatures of A3.
(e) As already stated in para 54 of this judgment, no sanction was obtained against A4 and A5 under Section 197 Cr.PC. Hence, they cannot be convicted for the offences punishable under the IPC.
(f) PW72 Smt. Pratibha Sharma has not identified the signatures of A4 Ramesh Chandra on various notesheets marked as Mark PW72/X1 to PW 72/X3 and Ex. PW 2/A.
(g) There is nothing on record to show meeting of minds of accused for doing an illegal act or an act by illegal means which is an essential ingredient of conspiracy. It is the settled law that mere knowledge would not be per se sufficient to make anyone co conspirator.
87. It is the cardinal principle of criminal justice that whenever there is doubt, the benefit of doubt must be given to the accused. It is also the settled law that suspicion, howsoever strong, cannot take place of proof. Mere error of judgment or wrong decision or even negligence does not amount to culpability. Thus, the prosecution has not been able to prove its case against accused persons beyond reasonable doubt.
CBI No. 123/11 CBI Vs. Sushil Kumar Sharma & Ors. (Kabir Dham CGHS) Page 44 VII CONCLUSION :
88. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of the considered opinion that prosecution has failed to prove its case against all the accused persons beyond reasonable doubt. Hence, the accused persons are hereby acquitted of all the charges levelled against them in the present case. Their personal bonds are cancelled and respective sureties are discharged. In term of Section 437 (A) Cr.PC, all the accused persons are directed to furnish their personal bonds in the sum of Rs.25,000/ with one surety in the like amount within one week for a period of six months for their appearances before the High Court of Delhi in the event the CBI wishes to file an appeal challenging the present judgment.
89. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to record room.
Announced in the open Court (PRAVEEN KUMAR) today i.e on 28.01.2016. Special Judge, CBIIII PC Act, Rohini Courts, Delhi.
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