Delhi District Court
Cbi vs Narayan Diwakar(Radha Ballabh Cghs) on 23 January, 2024
IN THE COURT OF RAJESH KUMAR GOEL
SPECIAL JUDGE (PC ACT) (CBI)-16, ROUSE AVENUE
DISTRICT COURTS, NEW DELHI.
CBI Vs. Narayan Diwakar
( Radha Ballabh CGHS )
CBI No. 95/19
CNR No. DLCT110004002019
Central Bureau of Investigation
Versus
1. Narayan Diwakar
s/o Late Chatti Lal
r/o G-30, Masjid Moth, GK-II,
New Delhi-48
2. Sita Ram Goyal
( Proceedings already stand abated
vide order dated 03-10-2012)
3. Ram Nath
(Proceedings already stand abated
vide order dated 03-02-2020)
4. Raj Bhushan Chauhan
s/o Late Sh. Keshar Singh Chauhan
r/o House No.-8, Panchmahal Apartment,
Patparganj, I.P. Extension, Delhi-110092
5. Sanjeev Bharti
s/o Late Shri Mohindra Bharti Madan,
r/o Block C-4C, Pocket-14,
Flat No. 113, Janakpuri, New Delhi-110058
CBI Vs. Narayan Diwakar
( Radha Ballabh CGHS )
CBI No. 95/19 Date of Judgment 23.01.2024 (Page 1 of 186 )
CNR No. DLCT110004002019
6. Devender Mann
s/o Shri Devi Singh Mann r/o Plot-360,
B-Block, Sector-19, Dwarka-110075
7. Ashwani Sharma
S/o Late Sh. Ram Kishan Sharma ,
R/o 291A, Pocket-C, MayurVihar,
Phase-2, Delhi-91
8. Narender Mann
s/o Shri Devi Singh Mann
r/o B-502, Balaji Apartment,
Sector-14, Rohini-110085
9. Naveen Kaushik
S/o Late Sh. M.D. Sharma,
R/o 16C, Hans Vihar Apartment,
Sector-13, Rohini, Delhi-110085
10. Ashok Johri
s/o Late Sh. Mahi Lal Johri
r/o 27 A, Neel Kanth Apartment,
Plot No. 46 I.P Ext. Delhi 92
11. P.K Thirwani
S/o. Lt Sh. Moti Ram Thirwani
R/o. 348-E, Pkt II, Mayur Vihar, Phase - I,
Delhi 09
Date of Institution: 08-12-2006
Date of Arguments: 04.01.2024
Date of Judgment : 23-01-2024
CBI Vs. Narayan Diwakar
( Radha Ballabh CGHS )
CBI No. 95/19 Date of Judgment 23.01.2024 (Page 2 of 186 )
CNR No. DLCT110004002019
JUDGMENT
INTRODUCTORY FACTS
1. Vide order dated 02.08.2005, Hon'ble High Court of Delhi, passed in "Civil Writ Petition Number 10066/2004", while expressing the concern that there is a nexus between the builders, office of the Registrar of Cooperative Societies and DDA and they have taken over the Cooperative Movement in Delhi to make undue profit, directed the CBI to investigate the matter pertaining to 135 Co-operative Group Housing Societies (CGHS) including the present society namely Radha Ballabh CGHS. Pursuant to the order of Hon'ble High Court, a preliminary enquiry no. PE.BD1/2005/E/2005 was registered in CBI against few societies including Radha Ballabh CGHS and matter was enquired.
2. The preliminary enquiry is said to have been conducted by Sh Ghan Shyam Rai (PW44). During the enquiry, Sh. Ghansyam Rai seized various documents from S.L. Garg, Inspector CBI, Amar Das (PW37), Assistant Registrar, Office of RCS and Jagdish Kumar Dhingra and also seized the seal and rubber stamp of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 3 of 186 ) CNR No. DLCT110004002019 M/S Radha Ballabh CGHS Ltd.etc. On the basis of outcome of the Preliminary Enquiry report, subsequently, a regular case i.e. RC/BD- 1/2005/E/0015 dated 30.11.2005 u/s 120-B r/w 420,468,471 IPC and section 13(2) r/w Section 13(1)
(d) of P.C Act-1988 against the accused persons was registered.
FACTUAL MATRIX
3. The facts of the case as detailed in the chargesheet are that Radha Ballabh Cooperative Group Housing Society Ltd. (hereinafter referred to as 'the society') was registered with the Registrar of Cooperative Society (for short 'RCS'), New Delhi Vide Registration No. 1517 (GH) dated 2.02.1984 with 109 promoter members at 124, Maidan Gir Village, New Delhi. However, the society was wound up due to non observance of statutory requirements under Delhi Co-operative Societies Act 1972 (hereinafter referred to as 'the Act'). The society was lying defunct for a long time. The winding up order dated 10.8.1989 was passed by Shri Hans Raj (PW13), the then Dy. Registrar, office of the RCS.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 4 of 186 ) CNR No. DLCT110004002019
4. It is the case of prosecution that during the year 2003-2004 Narayan Diwakar (A-1), the then RCS, Delhi, S.R. Goel (A-2), the then Asstt. Registrar (West), RCS, Delhi, Ram Nath (A-3), the then Inspector Grade-II, Coordination Branch, RCS, Delhi, R.B.Chauhan (A-4), the then Dealing Assistant, West Zone, RCS, Delhi, Sanjeev Bharti (A-5), the then Steno, RCS, Delhi, Devender Mann (A-6), Private Person, Ashwani Sharma (A-7), Private Person, Narender Mann (A-8), Private Person, Naveen Kaushik (A-9), Private Person, Ashok Johri (A-10), Private Person and P. K. Thirwani (A-11), the then Sr. Auditor, Audit Branch, RCS, Delhi entered into a criminal conspiracy with a common object to cheat DDA for allotment of land to Radha Ballabh CGHS Ltd. on the basis of a false list of members forwarded to DDA by the office of RCS.
5. It is alleged that pursuant to the said criminal conspiracy Devender Mann (A-6), illegally took over the control of the affairs of defunct society and purchased the said society from Shri P.P. Wadhawa (since expired) for illegal consideration of about Rs. 14 lakhs and took out documents from him. Devender Mann (A-6), in conspiracy with Shri Ashwani Sharma CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 5 of 186 ) CNR No. DLCT110004002019 (A-7), Narender Mann (A-8), Naveen Kaushik (A-9) and Ashok Johri (A-10) forged the documents of the society to facilitate the illegal revival of the society. Devender Mann (A-6) also made available the stamps purported to be of the society to Ashwani Sharma (A-7) and provided the particulars of 51 new members to be added in the final list of 150 members besides 109 promoter members who were falsely shown to have been enrolled during the year 1986. The forged record prepared by Devender Mann (A-6) in conspiracy with aforesaid private persons was accepted by Narayan Diwakar (A-1), the then RCS for passing the order for revival of the society.
6. It is further alleged that an application dated 1.12.2003 was dishonestly submitted by Ashwani Sharma (A-7) in the assumed name of Shri Jai Prakash purported to be the President of the society, for the cancellation of winding up order dated 10.08.1989 through West Zone, Office of RCS. Investigation has disclosed that the original registered office address of the society was 124, Madan Gir Village, New Delhi 62, which was under the territorial jurisdiction of South Zone, office of RCS.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 6 of 186 ) CNR No. DLCT110004002019
7. The said application dated. 01.12.03 was processed by R.B. Chauhan (A-4), the then Dealing Assistant and Sita Ram Goyal (A-2), the then Assistant Registrar without verifying the fact that the society was under the territorial jurisdiction of South Zone, office of RCS. R. B. Chauhan (A-4) deliberately put up a proposal stating that the main file of the society was not traceable in the zone/office and he further proposed to issue a circular and to carry out inspection u/s 54 of the Act to verify the present status/factual position of the society. The said proposal was fraudulently recommended by S.R. Goyal (A-2), and dishonestly approved by Narayan Diwakar(A-1). Accordingly, a circular/order was issued by S.R. Goyal (A-2), AR (W) on 19.12.03 to trace out the main file of the society and to carry out the inspection of the office address of the society.
8. During the investigation, it was revealed that pursuant to the aforesaid criminal conspiracy, vide order no. F.47/1517/Coop./GH/W/788-789 dated 19.12.03, S.R.Goyal (A-2) deputed Ram Nath (A-3), Gr. II, Inspector (Coordination Branch), RCS Office to conduct an inspection of the society and to verify the records of society. Accused Ram Nath (A-3) is said to CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 7 of 186 ) CNR No. DLCT110004002019 have submitted a false report dated 12.1.04 without conducting any inspection and in his inspection report, falsely reported that he visited the office address of the society at C-369, Vikas Puri, Delhi and met Mr. Jai Prakash, President of the society who produced various records of the society. Accused Ram Nath (A-3) has also falsely submitted in his report that the membership register was found to be completed in all respects and there are 150 members in the society. It was further mentioned in the report that as per the record, society was registered at 4202, Tel Mandi, Pahar Ganj, Delhi but now society has shifted its office and is functioning from C-369, Vikas Puri, Delhi. But Investigation has disclosed that the society never functioned at 4202, Tel Mandi, Pahar Ganj, Delhi.
9. Accused Ram Nath (A-3) has also falsely submitted that audit of the society was pending since registration but now society has prepared the accounts upto March, 03, but the same has not yet been audited; as per proceeding register, last General Body Meeting was held on 26.10.03, members of society requested for revival and also discussed the change of address; society also held election as per the Act, Rules and bye CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 8 of 186 ) CNR No. DLCT110004002019 laws of the society on 26.10.03 and new Managing Committee has been elected; applications of members were found in order; resignation of members were also in order and their payment were made after approval of resignation in the Managing Committee meeting; all the records were found to be under the safe custody of Shri Jai Prakash, President of the society; copy of list of members were produced by the society during his inspection and he visited some of the addresses given by the members of the society and they confirmed that they are the members of the society; copy of their election card/ration card were taken by him.
10. According to the prosecution, the said report was falsely prepared by accused Ram Nath (A-3) in a criminal conspiracy with accused Ashwani Sharma (A-7) in his office and on his computer as confirmed by the Government Examiner of Questioned Documents (GEQD).
11. Investigation has further disclosed that pursuant to the above criminal conspiracy accused S.R. Goyal (A-2) issued circular no. F.47/1517/Coop./GH/ West/785 dated 19.12.03 to trace out the main file of the society with the observation CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 9 of 186 ) CNR No. DLCT110004002019 that in the event of no reply from the concerned zone within the stipulated period is received, it shall be presumed that no such file is lying in that zone. Copy of the circular was endorsed to all branch/zonal officers. Accused R.B. Chauhan (A-4) on 29.12.03, dishonestly proposed that no reply has been received from any of the zones in this regard till date, hence the society may be asked to furnish the original records along with relevant documents to reconstruct the file of the society. The said proposal was dishonestly accepted by S.R.Goyal (A-2) and accordingly letter no. F.47/1517/Coop/GH/W/815 dated 30.12.03 was delivered to accused Ashwani Sharma (A-7) @ Jai Prakash President/Secretary, Radha Ballabh CGHS at C-369, Vikas Puri, New Delhi- 18.
12. It is further stated that based on the false and concocted report of accused Ram Nath (A-3), accused Raj Bhushan Chauhan (A-4), Dealing Assistant, dishonestly put up another note on 19.1.2004 in which he (A-4) reproduced the inspection report of accused Ram Nath (A-3), and dishonestly accepted the false report submitted by him. Accused R.B. Chauhan (A-4) further dishonestly accepted the fraudulently prepared records of the society from accused Ashwani Sharma CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 10 of 186 ) CNR No. DLCT110004002019 (A-7) @ Randhir Singh, Secretary of the society and forged photocopies of various documents intending that the said forged documents shall be used as genuine for the purpose of revival of the society.
13. On the basis of aforesaid note, accused S.R. Goyal (A-2), AR (W) sent the file to accused Narayan Diwakar (A-1),Delhi, who dishonestly approved on 20.01.04, to issue a notice to the President/Secretary of the society for initial hearing on 3.02.04. Investigation further revealed that pursuant to the above criminal conspiracy accused N. Diwakar (A-1), the then RCS has fraudulently and unauthorizedly shown the presence of Smt. Rita Kaul (PW41), Advocate on behalf of the society on 3.02.04 in the proceeding sheets and directed for verification of records pertaining to membership, audit, election and to conduct spot verification of members.
14. It is stated that accused Ram Nath (A-3) was deputed by accused S.R. Goyal (A-2) vide order no. 130 dated 5.02.04 to conduct physical verification of members at random and to submit his report within three days. Accused Ram Nath (A-3) submitted a false report dated 12.02.04 wherein he has fraudulently CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 11 of 186 ) CNR No. DLCT110004002019 confirmed having visited the residence of members i.e Prem Prakash Arora (Membership No. 95), Shri Ravinder Jha (Membership No. 111), Shri Joginder Pal Singh (Membership No. 120), Shri Subhash Tuli (Membership No. 124), Shri Om Prakash (Membership No. 135), Shri Harish Narang (Membership No. 139), Shri Jawahar Singh (Membership No. 148), Shri Rakesh Prasad (Membership No. 152), Shri Randhir Singh (Membership No. 160).
15. On 20.1.04 Shri N.S. Khatri (PW40) issued a letter addressed to the President/Secretary of the society to appear before RCS on 3.02.04. The letter addressed to President/Secretary of the Society was given by him to accused Ashwani Sharma (A-7) by hand and file was sent to AR (W) for verification of the records and spot verification of members and to take photocopies of relevant documents from the members of the society. The investigation has disclosed that Shri Subhash Tuli, who expired on 11.2.2002, and Shri Prem Prakash Arora, Shri Joginder Pal Singh, Shri Om Prakash, Shri Rakesh Prasad were found non-existent. Shri Ravinder Jha, Shri Harish Narang, Shri Jawahar Singh, Shri Randhir Singh have CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 12 of 186 ) CNR No. DLCT110004002019 denied being verified by the RCS officials. S.R. Goyal (A-2) and R.B. Chauhan (A-4) prepared a false report dated 16.02.04 and dishonestly submitted before the RCS office to the following effects :-
a) That the original records were produced by the society and got verified.
b) That the list of 10 members who resigned prior to 30.06.86 got verified.
c) That the list of 51 members who were enrolled before 30.06.86 got verified.
d) That the election of MC members held on 26.10.03 has been verified in accordance with law, application forms, share money receipts and resolution of MC of newly enrolled members have been verified.
e) Fresh affidavits in respect of 150 members of the society have also been filed by the society.
f) That the inspection was conducted to ascertain the existence and functioning of the society and society is very much existence. However, it has been found that no society ever functioned from this address. Further it is alleged that the handwriting expert has opined that the signatures of Shri Jai Prakash, Shri Randhir Singh, Shri Jagdish, all executive members were forged by Ashwani Sharma (A-7) and the same has been denied by Shri Jai Prakash, Shri Randhir Singh and Shri Jagdish.
g) That present correspondence address of the society is 127, MIG Flats, Rajouri Garden, Delhi following resolution passed in the special general body meeting on 26.10.2003.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 13 of 186 ) CNR No. DLCT110004002019
16. According to the prosecution pursuant to the above criminal conspiracy accused S.R. Goyal (A-2) and accused R.B. Chauhan (A-4) on 16.02.04 dishonestly and fraudulently recommended to accused Narayan Diwakar (A-1), RCS, Delhi to consider (a) request for revival of the society u/s 63 (3) of the Act, 1972 and (b) approval of freeze list of 150 members for allotment of land. Accused Narayan Diwakar (A-1), the then RCS, Delhi on 17.02.04 prepared an order sheet wherein he had falsely shown presence of Smt. Rita Kaul, Advocate on behalf of society and dishonestly approved the aforesaid recommendation made by accused S. R. Goyal (A-2) and R.B. Chauhan (A-4).
17. It is alleged that accused Narayan Diwakar (A-1), RCS, Delhi on 03.03.04 has cancelled the winding up order dt. 10.08.89 of Radha Ballah CGHS Ltd. (Regd. No.1517/GH) and revived the society with immediate effect by dishonestly abusing his official position by corrupt or illegal means as public servant and fraudulently or dishonestly used as genuine the aforesaid false and forged documents viz. (1) false application for the cancellation of winding up order CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 14 of 186 ) CNR No. DLCT110004002019 dated 1.12.03, (2) false membership register, (3) false freeze list of members, (4) false list of resigned members, (5) false proceeding register of General Body Meeting regarding change of office address and election of new office bearers, which he knew or had reason to believe to be forged documents. Accused Narayan Diwakar (A-1), RCS, Delhi, in the above order, illegally held that Dy.Registrar was not competent to pass winding up order dt. 10.08.89 u/s 63 of the Act. Accused Narayan Diwakar (A-1) to facilitate the functioning of the illegally revived society, also unauthorisedly and illegally ordered that audit of the society shall be completed within two month's time and he also appointed accused Sanjeev Bharti (A-5), Gr. III, Stenographer as Election Officer to conduct the election of the Managing Committee of the society within two months.
18. Investigation has further revealed that pursuant to the above criminal conspiracy on 4.03.04 accused Sita Ram Goyal (A-2) dishonestly forwarded the list of 150 members to AR (Policy) who in turn forwarded the list of 35 societies including Radha Ballabh CGHS Ltd. to DDA for allotment of land. In this letter he has falsely mentioned that the above CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 15 of 186 ) CNR No. DLCT110004002019 society is functional as per the record of the Department. Investigation has further disclosed that Sita Ram Goyal (A-2) illegally forwarded the aforesaid list of 150 members to AR (Policy) in contravention to the conditions imposed in the revival order dated 3.03.2004 as neither audit report nor election report were received in the RCS office in compliance to the above order.
19. Investigation has further revealed that pursuant to the above conspiracy accused Sanjeev Bharti (A-5) the then Steno has fraudulently prepared the false election report of the society and signed the proceeding register in this regard. Accused Sanjeev Bharti (A-5) in criminal conspiracy with accused Naveen Kaushik (A-9) in his report fraudulently and dishonestly has shown presence of 33 members in the General Body Meeting alleged to be held on 24.04.04. Accused Sanjeev Bharti (A-5) has falsely shown election of following members as the Managing Committee without conducting any such elections:-
i. Shri Jai Prakash, President
ii. Shri Teil Ram Vice President
iii. Shri Randhir Singh MC Member
iv. Shri Jagdish MC Member
v. Sher Singh MC Member
CBI Vs. Narayan Diwakar
( Radha Ballabh CGHS )
CBI No. 95/19 Date of Judgment 23.01.2024 (Page 16 of 186 )
CNR No. DLCT110004002019
vi. Smt. Shakuntala Devi MC Member
vii. Smt. Ram Dulan MC Member
20. In the aforesaid report accused Naveen Kaushik (A-9) forged the signatures of 33 members. GEQD has confirmed the handwriting and signature of accused Sanjeev Bharti (A-5) and Naveen Kaushik (A-9).
21. Investigation has further revealed that in pursuant to the above criminal conspiracy P. K. Thirwani (A-11), the then Senior Auditor has prepared a false audit report dt. 02.04.04 and falsely shown an amount of Rs. 10,990/- as on 31.3.2003 available in the account of the society at DSC Bank, Darya Ganj, Delhi whereas as per statement of A/c of SB A/c No. GR 9 maintained with DSC Bank, Darya Ganj, Delhi credit balance in the account was Rs. 18,48649. On 28.2.2003 instead of conducting the Audit at the registered address of the society C-369, Vikas Puri New Delhi, Accused P.K. Thirwani (A-11) in criminal conspiracy with other co-accused persons namely Ashwani Sharma (A-7) and Naveen Kaushik (A-9) conducted the audit at the office-cum residence 227-C, Pkt-A, Mayur Vihar, Delhi-91 of accused Ashwani Sharma (A-7) by violating the provisions of Rule 84 CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 17 of 186 ) CNR No. DLCT110004002019 sub rule-5 of DCS Rule 1973. He has deliberately omitted to obtain mandatory signatures of three office bearers i.e. Shri Jai Prakash, President Shri Randhir Singh, Secretary and Shri Jagdish, Treasurer. Accused P.K. Thirwani (A-11), the then Sr. Auditor dishonestly abused his official position as public servant by corrupt or illegal means as a public servant with the object to show that illegally revived Radha Ballabh CGHS society was functional.
22. It is alleged that pursuant to the above criminal conspiracy accused Ashwani Sharma (A-7) @ Randhir Singh @ Jai Prakash in collusion with accused persons namely S.R. Goval (A-2). Ram Nath (A-3). R.B. Chauhan (A-4), Sanjeev Bharti (A-5) and P.K.Thirwani (A-11) prepared a fabricated and false inspection report of accused Ram Nath (A-3), election report of accused Sanjeev Bharti (A-5) and audit report of accused P.K. Thirwani (A-11) on his computer in his office and in collusion with accused Devender Mann (A-6) also fabricated the documents of the society to facilitate the illegal revival of the society. Further, accused Ashwani Sharma (A-7) @ Randhir Singh @ Jai Prakash in collusion with his nephew, who is co-accused Naveen Kaushik (A-9) CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 18 of 186 ) CNR No. DLCT110004002019 also fabricated the false documents and forged the signatures of various persons. Accused Ashwani Sharma (A-7) @ Randhir Singh @ Jai Prakash had been himself in contact with accused S.R. Goyal (A-
2), Ram Nath (A-3), R.B. Chauhan (A-4), Sanjeev Bharti (A-5), P.K. Thirwani (A-11) and with the RCS officials for the illegal revival of defunct Radha Ballabh CGHS Ltd. Society. GEQD has confirmed the forged signature of the following purported members on their affidavits:-
Shri Jai Prakash Shri Prem Prakash Shri Kamal Kumar Shri Subhash Tuli Smt. Birmo Smt. Sakuntla Devi Shri Ram Dayal Shri Jagdev Singh
23. Investigation has further revealed that pursuant to the above criminal conspiracy, accused Shri Narender Mann (A-8), in criminal conspiracy with accused Devender Mann (A-6), his brother, has forged the application form, membership register etc. of the Radha Ballabh CGHS Ltd. society to facilitate the illegal revival of the said society. GEQD has confirmed his handwriting and signatures on the membership register and writing on the application CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 19 of 186 ) CNR No. DLCT110004002019 form of purported members.
24. Investigation has further revealed that pursuant to the above criminal conspiracy accused Naveen Kaushik (A-9), nephew of accused Ashwani Sharma (A-7), has falsely mentioned the names and forged the signatures of 33 members in the election report and proceeding register of the society wherein the said members were falsely shown having participated in the General Body Meeting to facilitate the illegal revival of defunct Radha Ballabh CGHS Ltd.
25. Investigation has further revealed that pursuant to the above criminal conspiracy, accused Ashok Johri (A-10) alongwith accused Ashwani Sharma (A-7), fraudulently mentioned in the proceeding register presence of various members in his writing and also forged their signatures of members to facilitate the illegal revival of defunct society Radha Ballabh CGHS Ltd.
26. According to the prosecution, prior to the year 1997, nobody was interested in purchasing flats/plots at Dwarka and other places in Delhi. After CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 20 of 186 ) CNR No. DLCT110004002019 that the rates of the property/flats started to rise because Dwarka was considered as a part of South Delhi as it was near to Airport and the Govt had allotted land for construction of Hotels, Embassies and project of Metro Rail from Dwarka to Barakhamba and Shahdara to Rohini. These were the main reasons due to this the rates of property started rising high and property dealers were interested in sale/purchase of properties in Dwarka and started to make efforts to get the land at subsidized rate from RCS officials. To give effect to their ill design, accused persons adopted the aforesaid modus operandi for revival of defunct societies with the Criminal conspiracy of RCS officials.
27. During the investigation, GEQD opinion was obtained which confirms the questioned writings of accused S.R. Goyal (A-2), Ram Nath (A-3), R.B. Chauhan (A-4), Sanjeev Bharti (A-5), Ashwani Sharma (A-7), Narender Mann (A-8), Naveen Kaushik (A-9), Ashok Johri (A-10) and P.K. Thirwani (A-11), on the disputed documents.
28. During the investigation, sanction for prosecution has been accorded by the Competent CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 21 of 186 ) CNR No. DLCT110004002019 Authority against the public servants namely accused Sita Ram Goyal (A-2), Ram Nath (A-3), Raj Bhushan Chauhan (A-4), Sanjeev Bharti (A-5) and Prahlad Kumar Thirwani (A-11) and same has been filed alongwith the chargesheet.
29. It is stated that since, accused Narayan Diwakar (A-1), RCS, Delhi had retired from service w.e.f. 30.04.02, therefore, sanction for prosecution was not required for his prosecution.
30. As per the prosecution, the allegations against Ashwani Vig, Girdhari Lal Chawla and Jagdish Kumar Dhingra could not be substantiated, therefore, their names have been mentioned in column no. 12 of the Charge Sheet.
31. Ultimately, the investigating agency came to the conclusion that there is a prima facie evidence oral and documentary to show that accused persons namely Narayan Diwakar (A-1), S.R. Goyal (A-2), Ram Nath (A-3), R.B. Chauhan (A-4), Sanjeev Bharti (A-5), Devender Mann (A-6), Ashwani Sharma (A-7), Narender Mann (A-8), Naveen Kaushik (A-9), Ashok Johri (A-10) and P.K. Thirwani (A-11) have CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 22 of 186 ) CNR No. DLCT110004002019 committed offences u/s 120-B r/w 420, 468, 471 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences u/s 15 r/w 13(1)(d) of PC Act, 1988 as against accused Narayan Diwakar (A-1), S.R. Goyal (A-2), Ram Nath (A-3), R.B. Chauhan (A-4), Sanjeev Bharti (A-5) and P.K. Thirwani (A-11) and substantive offences u/s 420/511, 468, 471 IPC as against Devender Mann (A-6), Ashwani Sharma (A-7), Narender Mann (A-8), Naveen Kaushik (A-9) and Ashok Johri (A-10) .
FILING OF CHARGESHEET AND COGNIZANCE OF OFFENCES
32. At the conclusion of the investigation, accused persons were chargesheeted on 8.12-2006 for the aforesaid offences .
33. Vide order dated 20.03.2007, cognizance of the offences was taken by the Ld. Predecessor of the Court and the accused persons were ordered to be summoned. After the compliance of the provision of section 207 CrPC, the present case reached at the stage of framing of charge.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 23 of 186 ) CNR No. DLCT110004002019 FRAMING OF CHARGES
34. Vide detailed order dated 14.06.2011, Ld. Predecessor of this Court decided the charges against the accused persons and on 12.7.2011, accused persons were charged as under:
1. Narayan Diwakar u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988
2. Sita Ram Goyal u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988
3. Ram Nath u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988
4. Raj Bhushan Chauhan u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988 CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 24 of 186 ) CNR No. DLCT110004002019
5. Sanjeev Bharti u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988
6. Devender Mann u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 420 r/w 511 IPC, 468,471 IPC
7. Ashwani Sharma u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 420 r/w 511 IPC, 468,471 IPC
8. Narender Mann u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 420 r/w 511 IPC, 468,471 IPC
9. Naveen Kaushik u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 420 r/w 511 IPC, 468,471 IPC
10. Ashok Johri u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 420 r/w 511 IPC, 468.471 IPC CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 25 of 186 ) CNR No. DLCT110004002019
11. P.K Thirwani u/s 120 B r/w 420/511 r/w 419, 468,471 IPC AND u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988
35. All the accused persons pleaded not guilty to the aforesaid charges so framed and claimed trial.
ABATEMENT OF PROCEEDINGS AS AGAINST THE ACCUSED SITA RAM GOYAL(A-2) AND RAM NATH (A-
3)
36. Here it is pertinent to mention that during the pendency of the present case, accused Sita Ram Goyal (A-2) and Ram Nath (A-3) expired and proceedings against them were abated vide order dated 03.10.2012 and 03.02.2020 respectively, of the Ld. Predecessor of this Court.
PROSECUTION WITNESSES
37. In order to prove its case, the prosecution has examined 60 (sixty) witnesses. For the sake of convenience, the witnesses have been categorized in different groups. Although, the detailed testimonies of the prosecution witnesses and their cross examinations, shall be discussed herein after in the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 26 of 186 ) CNR No. DLCT110004002019 subsequent para's, wherever necessary, however, it would be appropriate to discuss in brief the testimonies of these witnesses to have an overview of the nature and kind of evidence which has come on the record.
The witnesses who claim that they never become the members of the society.
38. According to the prosecution, a final list of 150 members, which was freezed and approved, was subsequently forwarded to the office of DDA by the office of RCS. It is the case of the prosecution that the said list was based upon forged and false documents. It is the further case of the prosecution that few persons who were shown as members, were never the members of the society. Out of those persons, some of them have appeared in the witness box and they have been examined as prosecution witnesses.
39. These witnesses have categorically stated that they never became members of the society at any point of time. They denied having executed any affidavit or attending meetings of the society, submission of membership application form, receipts regarding payment of membership fees, signatures on the proceedings or the membership register etc. The CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 27 of 186 ) CNR No. DLCT110004002019 witnesses examined by the prosecution in this regard are as under:
i. PW5 Manmohan Krishan
ii. PW6 Mani Ram
iii. PW7 Randhir Singh
iv. PW8 Jaiprakash
v. PW9 Jagdish
vi. PW10 Dr. Narender Singh
vii. PW14 Ranjana Arya
viii. PW15 Munish Talwar
ix. PW16 Ravinder Jha
x. PW17 Ram Dass Bhardwaj
xi. PW18 Kamal Kumar
xii. PW19 Vidya Pawar
xiii. PW20 Anil Kathuria
xiv. PW28 Kushal Tuli
xv. PW34 Harish Kumar Narang
xvi. PW35 Jawahar Singh
40. PW5 Manmohan Krishan Dhall, PW16 Ravinder Jha, PW17 Ram Das Bhardwaj were not cross examined by the accused persons despite the opportunity being given to them.
41. PW6 Mani Ram was cross examined on behalf of accused Sanjeev Bharti(A-5) and Ashwani Sharma (A-7) but not by rest of the accused persons despite the opportunity being given to them.
42. PW7 Randhir Singh, PW8 Jai Prakash, PW9 Jagdish, PW28 Kaushal Tuli were cross examined on behalf of the accused Sanjeev Bharti (A-5) but not by CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 28 of 186 ) CNR No. DLCT110004002019 rest of the accused persons despite the opportunity being given to them.
43. PW10 Dr. Narender Singh was cross examined on behalf of the accused Sanjeev Bharti (A-
5), Ram Nath (A-3, proceedings already stand abated), Naveen Kaushik (A-9) and accused P.K Thirwani (A-
11) but not by rest of the accused persons despite the opportunity being granted to them.
44. PW14 Ranjana Arya, PW15 Munish Talwar, PW34 Harish Kumar Narang and PW35 Jawahar Singh were cross examined on behalf of the accused Ashwani Sharma (A-7) but not by the rest of the accused of the accused persons despite the opportunity being granted to them.
45. PW18 Kamal Kumar, PW19 Vidya Pawar, PW20 Anil Kathuria, were cross examined by the accused Ram Nath (A-3, proceedings already stand abated), Raj Bhushan Chauhan (A-4), Naveen Kaushik (A-9) & P.K Thirwani (A-11) but not by rest of the accused persons despite the opportunity being given to them.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 29 of 186 ) CNR No. DLCT110004002019 The witnesses who became the members of the society at the time of its registration
46. The present society was registered vide registration no. 1517(GH) on 02.2.1984, with 109 Promoters members. Out of the aforesaid promoter members, three persons have been examined as prosecution witnesses, by the prosecution which are as under:
i. PW1 Ghansham Singh : He deposed that he was one of the member of Radha Ballabh CGHS and took the membership in the year 1984; he attended one meeting of the said society; the signatures on the affidavit ExPW1/A are not his signatures; list of the promoter members ExPW1/A-1, bears his name at serial no.19 and signatures at point A; membership register pertaining to Radha Ballabh CGHS ExPW1/A-2, bears his name at serial no.19 encircled in red and signatures at point A. PW1 was not cross examined by the accused persons despite the opportunity.
ii. PW2 Rajesh Gupta: He deposed that he remained one of the member of Radha Ballabh CGHS and the society never functioned at 4202, Tail Mandi, Pahar Ganj, New Delhi; the affidavit ExPW2/A does not bear his signatures at points A and affidavit only contains his name and his fathers name as correct; in the list of promoter members ExPW1/A-1, his signatures are at point A at serial no.24; in the membership register pertaining to the Radha Ballabh CGHS CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 30 of 186 ) CNR No. DLCT110004002019 ExPW1/A-2, his name is at serial no.24 encircled in red and his signatures are at point A. PW2 was cross examined by accused S.R Goel (A-2) against whom proceedings have already stand abated but not by rest of the accused persons despite the opportunity being given to them.
iii. PW30 Prem Shankar Tiwari: He deposed that he became a member of Radha Ballabh CGHS Ltd in the year 1984; application form for becoming member of Radha Ballabh CGHS Ltd. ExPW30/A bears his signatures at serial no.6 against his name; bye laws ExPW1/A-1 bear his signatures at serial no.6 at point B against his name; in the membership register for becoming member of Radha Ballabh CGHS Ltd ExPW1/A- 2, signatures shown at point A at serial no.6 against his name are not his signatures and relevant entry is encircled in red is ExPW30/B; signatures at points A and B on the purported affidavit dated 03.02.2004 ExPW30/C, are not his signatures and somebody has forged his signatures; he attended 1 or 2 meetings of the society at the beginning but thereafter, he never attended meeting of the society.
PW30 was cross examined on behalf of accused Ashwani Sharma(A-7) , but not by the rest of the accused persons despite the opportunity being granted to them.
The witnesses from the office of Registrar of Cooperative Societies (RCS)
47. The office of RCS is the controlling and supervising Government authority over the Co-
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 31 of 186 ) CNR No. DLCT110004002019 operative Group Housing Societies. It is a matter of fact that a file pertaining to each of such societies is maintained in the office of RCS from the stage of its formation and registration and all communications made with the society are placed in such a file by the office of RCS.
48. In the present case also, the allegations against the accused persons are that they submitted a false list of members which was based upon forged and fake documents. The file was processed in the office of RCS at different levels. Certain officials/officers during the relevant time who had dealt with the file pertaining to the present society were working in the office of RCS at various posts and finally all proposals were approved by the then Registrar, RCS.
49. The prosecution has examined the relevant officials/officers posted in the office of RCS during the relevant time who had dealt with the file pertaining to the present Society. These witnesses were examined to prove the proceedings, notings and certain communications between the office of the RCS and the society, as maintained in the office of RCS. In this CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 32 of 186 ) CNR No. DLCT110004002019 regard, prosecution has examined following witnesses from the office of RCS:
i. PW13 Hansraj: He was posted in the office of RCS as Dy. Registrar, Old Group Housing, New Group Housing, Administration w.e.f 30.6.1988 to 20.1.1991. He deposed that the copy of winding up order dated 09.8.1989,ExPW13/A was issued on 10.8.1988 under his signatures and he was competent to issue such an order as powers were delegated upon him as a Dy. Registrar PW13 was cross examined on behalf of accused Narayan Diwakar (A-1) but by rest of the accused persons despite the opportunity being given to them.
ii. PW37 Amar Dass: In the year 2005-06, he was posted as Assistant Registrar in the Office of Registrar of Co-operative Societies, Delhi. He deposed that vide letter dated 05.08.2006 ExPW37/A information was provided to the CBI that the original registration register of societies and winding up orders register, were not available in the office; Vide letter dated 31.03.2006 ExPW37/B, he informed CBI about availability as well as non- availability of the various original document.
PW37 was not cross examined by the accused persons despite the opportunity being given to them.
iii. PW 38 Dharambir Singh: He was posted as Head Clerk in the Office of Registrar of Co-operative Societies, Delhi from April, 2000 to July, 2003. He deposed that Option-cum-Appointment letter ExPW38/A was issued under the signature of J.S. Sharma, the then Assistant Registrar (Audit) CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 33 of 186 ) CNR No. DLCT110004002019 regarding appointment of accused P.K. Thirwani (A-11) as Auditor to conduct the audit of the society for the period 1983-84 to 2002-03.
PW38 was cross examined on behalf of accused Ram Nath (A-3, proceedings already stand abated), Raj Bhushan Chauhan(A-4) and P.K Thirwani (A-11) but not by rest of the accused persons despite the opportunity being given.
iv. PW40 Narender Singh Khatri: He was posted as LDC in the Office of RCS from 01.05.2000 to 05.09.2005. He deposed that noting ExPW40/A regarding issuing of notice U/S 63 (3) of DCS Act & Rules to the President/Secretary of the society for initial hearing on 03.02.2004 in the Court of RCS was made by him; ExPW40/B is a noting made by him i.e. order U/S 63 (3) of DCS Act have been passed, and copy of the same is placed in the file; noting below ExPW40/B was also made by him and is Ex.PW40/C; revival order dated 03.03.2004 ExPW40/D bear the signatures of accused Narayan Diwakar (A-1).
PW40 was cross examined on behalf of accused Narayan Diwakar (A-1), Ram Nath( A- 3, proceedings already abated), Raj Bhushan Chauhan (A-4), Sanjeev Bharti (A-5), Devnder Mann (A-6) and P.K Thirwani (A-11) but not by rest of the accused persons.
v. PW42 C.L Roy : He was posted as Superintendent in the Office of RCS, Delhi. He deposed that upon asking of the CBI, he had forwarded notification ExPW42/A regarding delegation of powers of RCS to Dy. Register Hansraj (PW13) to CBI.
PW42 was not cross examined by the accused persons despite the opportunity.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 34 of 186 ) CNR No. DLCT110004002019 vi. PW47 Sh. Yogi Raj : He was posted as Assistant Registrar (North-West) in the Office of Registrar of Co-operative Societies, Delhi during the year 2004 and at that time, he was also holding the additional charge of AR (Policy). He deposed that the list of the societies, including Radha Ballabh CGHS Ltd at serial no.33, which were approved for allotment of land enclosed with the correspondence dated 25.03.2004 ExPW47/A, was forwarded by him for DDA for allotment of land.
PW47 was cross examined by accused Sanjeev Bharti (A-5) and Devender Mann (A-6) but not by the rest of the accused persons despite the opportunity.
vii. PW49 Krishan Kumar: He was posted as Reader to Registrar of Co-operative Societies, Delhi in the year 2006 and at that time Sh. Satya Gopal was the RCS. He deposed that vide seizure memo Ex.PW48/A he had handed over original revival order dated 03.03.2004 ExPW49/A passed by accused Narayan Diwakar to Inspector of CBI.
PW49 was cross examined by accused Sanjeev Bharti (A-5), Devender Mann(A-6) and Narender Mann(A-8) but not by rest of the accused persons despite the opportunity.
viii. PW55 Asha Batra : She was posted as UDC in Office of RCS and was looking after the work of West Zone. She deposed that R.B. Chauhan (A-4) was also working in her office as LDC/Dealing Assistant. She has identified signatures of accused R.B Chauhan on various entries i.e ExPW55/A, ExPW55/B, ExPW55/C, ExPW55/D, ExPW55/E, ExPW55/F. She further deposed that these entries were regarding dispatch/receipt of various letters.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 35 of 186 ) CNR No. DLCT110004002019 PW55 was cross examined on behalf of accused Raj Bhushan Chauhan (A-4) but not by the rest of accused persons despite the opportunity being granted to them.
Witness to the proceedings of taking over of specimen signatures during the investigation.
50. Since, the main allegation of the prosecution is that the final list of 150 members which was submitted on behalf of the society to the office of RCS for onward transmission to DDA for allotment of land was based upon forged and fake documents, therefore, during the investigation specimen signatures/writings of certain person including some of the accused persons were taken by the IO and the same appears to have been sent to GEQD for examination. PW58 Tek Chand is the witness in whose presence the proceedings of taking over specimen signatures/writings were conducted by the IO/CBI.
51. PW58 Tek Chand deposed that during the year 2005 he was working as Sr. Assistant in CBI. He was directed by the AGM, SBI to report to the CBI office; he went to the CBI office where certain persons were present with the Inspector; he was told that these people are of the society and that their specimens would be taken; the specimens were taken and he CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 36 of 186 ) CNR No. DLCT110004002019 signed on such specimens taken; the specimens were of signatures, writings and stamps and he had witnessed taking of such specimens on more than one day.
52. He further deposed that pages bearing specimens S-1 to S-480 Ex. PW53/B-230 (colly.), specimens S-481 to S-614, Ex. PW53/B-231 (colly.), specimens S-615 to S-666, Ex. PW53/B-232 (colly.), specimens S-668 to S-702, Ex. PW53/B-233 (colly.), specimens S-703 to S-736, Ex. PW53/B-234 (colly.), specimens S-737 to S-763, Ex. PW53/B-235 (colly.), specimens S-764 to S-769, Ex. PW53/B-236 (colly.), specimens S-770 to S-810, Ex. PW53/B-237 (colly.), specimens S-811 to S-816, Ex. PW17/E (colly.), specimens S-817 to S-822, Ex. PW16/E (colly.), specimens S-823 to S-828, Ex. PW53/B-238 (colly.) , specimens S-829 to S-832, Ex. PW19/F (colly.), specimens S-833 to S-838, Ex. PW18/F (colly.), specimens S-839 to S-844, Ex. PW10/G (colly.), specimens S-845 to S-850, Ex. PW20/F (colly.), specimens S-863 to S-872, Ex. PW9/C (colly.), specimens S-873 to S-878, Ex. PW14/E (colly.), specimens S-879 to S-884, Ex. PW7/E (colly.), specimens S-879 to S-884, Ex. PW7/E (colly.) , CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 37 of 186 ) CNR No. DLCT110004002019 specimens S-885 to S-890, Ex. PW53/B-240 (colly.) , specimens S-891 to S-895, Ex. PW53/B-241 (colly.), specimens S-896 to S-900, Ex. PW6/D (colly.), specimens S-911 to S-913, Ex. PW53/B-243 (colly.), S-914 to S-916 , Ex. PW53/B-244 (colly.), S-917 to S-919 , Ex. PW53/B-245 (colly.), specimens S-920 to S-1216, Ex. PW53/B-247 (colly.) , specimens S-1217 to S-1278, Ex. PW53/B-248 (colly.), specimens S- 1279 to S-1967, Ex. PW53/B-246 (colly.), bear his signatures at point X on all the pages of the above specimens.
53. PW58 was cross examined by accused Sanjeev Bharti (A-5), Devender Mann (A-6), Ashwani Sharma (A-7), Narender Mann (A-8) and Naveen Kaushik (A-9) but not by rest of the accused persons despite the opportunity being given to them.
Sanctioning authority.
54. In the present case, six public servants namely accused Narayan Diwakar (A-1), Sita Ram Goyal(A-2, proceedings already stand abated), Ram Nath (A-3, proceedings already stand abated), Raj Bhushan Chauhan (A-4), Sanjeev Bharti (A-5) and P.K CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 38 of 186 ) CNR No. DLCT110004002019 Thirwani (A-11) were also made accused persons. During the relevant time, these accused persons were working in the office of RCS in different capacities. At the conclusion of the investigation they have also been chargesheeted. Since they were the public servants, requisite sanctions u/s 19 of Prevention of Corruption Act, 1988 were obtained by the IO and the same were filed on record. The authorities which had accorded the sanctions to prosecute the above named accused persons, have been examined as prosecution witnesses, which are as under:
i. PW 43 Vijay Kumar : He deposed that in the year 2006, he was posted as Director of Education, GNCT of Delhi; CBI had sought sanction for prosecution against Sanjeev Bharti, who was working as Stenographer, Grade-III in the Directorate of Education, GNCT of Delhi; after examining brief facts of the case, gist of statements of the witnesses and evidence, analysis of evidence amongst other documents, carefully gone through the report including the annexures and after duly applying his mind, he accorded sanction U/S 19 of PC Act, 1988 for prosecution of Sanjeev Bharti (A-
5) ; he passed detailed sanction order dated 27.11.2006 Ex.PW43/A and he granted sanction as he was the competent authority to remove Sanjeev Bharti (A-5) from office.
PW43 was cross examined on behalf of accused Sanjeev Bharti (A-5) and Devender Mann (A-6) but not by rest of the accused persons despite the opportunity being granted to them.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 39 of 186 ) CNR No. DLCT110004002019 ii. PW45 Ramesh Narayanaswami: He deposed that during the period 31.05.2006 to 30.11.2007, he was posted as Chief Secretary, GNCT of Delhi; P.K.Thirwani(A-11) was working as Superintendent in the Directorate of Education, GNCT of Delhi ; the CBI had sent its report through the Superintendent of Police for seeking sanction for prosecution in respect of the P.K.Thirwani U/s 19 of PC Act, 1988 in relation to case about revival of Radha Ballabh CGHS Ltd. who was working at that time as Auditor in the Office of RCS; The report contained brief facts of the case, gist of statements of the witnesses and evidence, analysis of evidence amongst other documents. he had carefully gone through the report including the annexures. After duly applying his mind, he accorded sanction U/S 19 of PC Act, 1988 ExPW45/A for prosecution of P.K. Thirwani (A-11); he had granted sanction as he was the competent authority to remove P.K. Thirwani (A-11) from office.
PW45 was cross examined by accused Raj Bhushan Chauhan( A-4) and P.K Thirwani (A-11) but not by the rest of the accused persons despite the opportunity.
iii. PW46 Dr. Anil Mehra : He deposed that in the year 2006, he was posted as Director, Health Services, Karkardooma, Shahdara, Delhi; CBI had sought sanction prosecution against Raj Bhushan Chauhan (A-4) and had sent its report and documents which was received by Directorate of Family Welfare; after processing the said file, same was put up before him for according sanction for prosecution in respect of Raj Bhushan Chauhan U/s 19 of PC Act, 1988; he had gone through the report and the documents annexed thereto; after applying my mind, he accorded sanction for prosecution against the R.B.Chauhan (A-4) vide detailed sanction order dated 06.11.2006 ExPW46/A; when he granted sanction, he was competent to remove R.B. Chauhan (A-4) from his office.
PW46 was cross examined on behalf of accused Raj Bhushan Chauhan (A-4) and P.K CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 40 of 186 ) CNR No. DLCT110004002019 Thirwani (A-11) but not by rest of the accused persons.
Expert Evidence
55. During the investigation certain specimen writings/signatures were sent to GEQD for examination by the CBI to establish the case of forgery and the role of accused persons who committed the forgery. The questioned documents alongwith the specimen writings and signatures were examined by the experts. These experts have been examined as prosecution witnesses, who are as under :
i. PW53 Trilochan Joshi : He deposed that he has more than 27 years of experience in the field of Forensic Document Examination and have examined several documents and appeared as an independent expert witness in various Courts throughout the country; the documents of this case were received from SP, CBI, BS & FC, New Delhi vide their letter no. 6647/RC.BDI/2005/E/0015 BS&FC, dated 30.06.2006 ExPW53/A1 ( 9 sheets, D-15) and letter no. 7231/RC.BDI/2005/E/0015 BS&FC, dated 31.07.2006 Ex.PW53/A2 (6 sheets, D-15). Further, documents were also received vide letter no. 8561/RC.BDI/2005/E/0015 BS&FC, dated 27.09.2006 Ex.PW53/A3 (3 sheets, D-15) respectively; various enclosed writings. Signatures and stamped impression were also received and after careful and thorough examination of the above documents, he came to the conclusion which is in his report no. CX-331/2006 dated 23.08.2006 ExPW53/C1 (D-41) ; the case was marked to Late Sh. I. S. Rao, the then Asstt. GEQD, who after CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 41 of 186 ) CNR No. DLCT110004002019 examination submitted the report bearing no.
CXCFD 503/2006 dated 14.11.2006 ExPW30/A; the detailed reasons for his opinion ExPW53/C2 are next to Ex. PW 53/C1 running into 20 pages bears his signature on each page at point A; the above documents were also examined independently by Late Sh. I. K Arora, Dy. Government Examiner of questioned documents and he too came to the same conclusion. The opinion Ex. PW 53/C1 bears signature of Late Sh. I.K Arora at point B on all three pages; the supplementary opinion no. CX- 331/2006 dated 23.10.2006 Ex. PW 53/C3 (D-41) bear his signature at point A on each page; the detailed reasons for supplementary opinion bear his signatures at point A on each page and said reasons are Ex. PW 53/C4; the documents for the supplementary opinion were also examined independently by Sh. I. K Arora, Dy. Government Examiner of questioned documents and confirmed the opinion given by him.
PW53 was cross examined by accused Sanjeev Bharti (A-5), Devender Mann (A-6). Ashwani Sharma (A-7), Narender Mann(A-8) and Naveen Kaushik (A-9) but not by other accused persons despite the opportunity being given to them.
ii. PW57 N.C Sood: He deposed that the he remained posted in GEQD, Shimla in the capacity of Director, GEQD in the year 2006 when the present case was referred there; documents of this case were referred in his laboratory from SP, CBI, BS&FC/New Delhi; Computer CPU/Hard Disk marked as QC-3 and computer printer marked as QCP-1 were received by his laboratory in another case bearing RC No. 9(E)/2005-EOW-I/DLI7438 dt. 08.10.2005 vide letter No. RC.9(E)/2005-EOW-I-DLI/7438 dt. 08.10.2005. Vide letter No. 7152/RCBDI/2005/E / 0015-BS&FC dt. 25.07.2006, expert opinion on documents were sought in the present case with reference to the said QC-3 and QCP-I; I the letter is Ex. PW57/A ; the case was marked to Sh. I.S. Rao, the then Assistant GEQD for examination who after examining the case prepared his report No. CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 42 of 186 ) CNR No. DLCT110004002019 CX/CFD-331/2006 Ex. PW57/B; forwarded the said report vide letter No. CXCFD-331/2006-539 dt. 16.08.2006 PW57/C; with said letter, there were two enclosures, first being the report of Mr. Rao along with annexures and the second being the said annexures namely a xerox reproduction stamped and marked QD1 to QD10, QD12 to QD277, QD288 to QD305 and computer printout marked CPQ1 to CPQ221 comprising of 503 sheets Ex. PW57/D (colly.).
PW57 was cross examined on behalf of accused Ashwani Sharma (A-7) but not by the rest of the accused persons despite the opportunity being given to them.
iii. PW59 Sh. P.N. Ramakrishnan: He deposed that request was received in his Laboratory in the name of Director vide the letter no. 3124/RCBD I2005/E/0015/CBI/BSFB/Delhi dated 14.06.2022 from the Head of Department, CBI, BSFB, New Delhi regarding making of 9 copies of the data in the pendrive, as per the orders of the Hon'ble Court; the data that was retrieved from the image of the two hard disk which was submitted by the CBI earlier vide the RC No. 4E/2006/EOU-VII New Delhi. He further deposed that data pertaining to the present society retrieved from the forensic image of the suspected digital storage media marked as Q-3 was given in 9 pendrives and in this regard, he submitted a report ExPW59/A. PW59 was cross examined on behalf of accused Ashwani Sharma (A-7) but not by rest of the accused persons despite the opportunity.
Witness from Delhi State Cooperative bank
56. PW39 Surinder Kumar Abrol deposed that in the year 2006, he was working as Accountant, Delhi State Co-operative Bank, Dariya Ganj Branch. At that CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 43 of 186 ) CNR No. DLCT110004002019 time, Smt. Shikha Verma was the Branch Manager; letter dated 25.04.2006 ExPW39/A addressed to R.K. Singh, Inspector CBI bears the signatures of Smt. Shikha Verma at point A and her at point B; Vide said letter, copy of statement of account no. 6189 in the name of Radha Ballabh CGHS Ltd. for the period August, 1984 to 30.09.2005, was forwarded; the certified statements of account are Ex.PW39/B (colly.), the certificate U/S 2A of Bankers Books of Evidence Act is ExPW39/C and certificate U/S 65 B of Evidence Act is Ex.PW39/D.
57. PW39 was cross examined on behalf of accused Ram Nath (A-3, proceedings already stand abated), Raj Bhushan Chauhan (A-4) and P.K Thirwani (A-11) but not by rest of the accused persons despite the opportunity being given to them.
Witnesses from CBI
58. In the present case, the FIR was registered pursuant to the order of Hon'ble High Court dated 02.08.2005. Initially, a preliminary enquiry was conducted by the CBI officer and at the conclusion of the preliminary enquiry, a regular case was registered. In the present case, following witnesses from the CBI CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 44 of 186 ) CNR No. DLCT110004002019 have been examined by the prosecution:-
i. PW44 Ghan Shyam Rai: He deposed that in the year 2005, he was posted as DSP in BS & FC, CBI, New Delhi; PE BD-1/2005/E/0004-BS&FC was registered and the enquiry was marked to him; During enquiry, he received various documents through receipt memo 10.08.2005 ExPW44/A from S.L. Garg, Inspector CBI, Amar Das, Assistant Registrar, Office of RCS and Jagdish Kumar Dhingra; vide production-cum-receipt memo dated 09.08.2005 ExPW44/B, he had received documents from Amar Das, Assistant Registrar (West), Office of RCS; vide receipt memo dated 12.09.2005 ExPW44/C, he had received documents from Jagdish Kumar Dhingra and also received seal 4 rubber stamps of M/s Radha Ballabh CGHS Lt.;
stamp impressions on plain paper are Ex.PW44/D1 & D2; After registration of the regular case i.e. RC/BD-1/2005/E/0015 dated 30.11.2005, he had handed over aforesaid receipt memos alongwith documents to Sh. R.K. Singh, Inspector (BS&FC), CBI .
PW44 was cross examined on behalf of accused Raj Bhushan Chauhan (A-4), P.K Thirwani (A-11), and Ashwani Sharma (A-7) but not by the rest of the accused persons despite opportunity.
ii. PW48 Vishal : He deposed that in the year 2006, he was posted as Inspector in CBI (BS&FC), New Delhi; Case RC BD1/2005/E/0015 was investigated by Inspector R.K. Singh of CBI (BS&FC), New Delhi; as per directions of Inspector R.K. Singh, he had seized the original revival order bearing no. RCS/004/04/312-17 dated 03.03.2004 from Sh.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 45 of 186 ) CNR No. DLCT110004002019 Krishan Kumar, Reader to RCS on 18.08.2006 vide seizure memo dated 18.08.2006 Ex.PW48/A. PW48 was not cross examined by the accused persons despite the opportunity being granted to them.
iii. PW50 Pradeep Kumar Khanna : He deposed that in the year 2005, he was posted as DSP in EOW-I, CBI, New Delhi: Case RC 9E/2005/EOW-I/Delhi was registered in EOW-I and was being investigated by CBI; he had prepared questionnaires Mark PW50/B1 & B2, to be sent to the GEQD for expert opinion and were forwarded to GEQD, Shimla vide letter Mark PW50/A, for expert opinion under the signature of Sh. Piyush Anand.
PW50 was not cross examined by the accused persons despite the opportunity being granted to them.
iv. PW51 Sham Lal Garg: He deposed that in the year 2005, he was posted as Inspector, CBI, EOW- II, Khan Market, New Delhi. One PE BD- 1/2005/E/0004-BS&FC was registered and the enquiry was marked to Sh. Ghan Shyam Rai, ; he had collected various documents from DDA and had handed over those documents to respective Enquiry Officers; He handed over documents related to Radha Ballabh CGHS Ltd. to Sh. Ghan Shyam Rai vide memo Ex.PW44/A .
PW51 was not cross examined by the accused persons despite the opportunity being given to them .
v. PW52 S.K Kashyap : He deposed that It is in further evidence against you, as deposed by PW52 Sh.S.K Kashyap that he remained posted as Addl. SP in BS & FC Branch of CBI during the year 2005 CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 46 of 186 ) CNR No. DLCT110004002019 and up to 03/04.01.2006; thereafter, he was transferred from BS & FC, Delhi to Kolkata as SP, CBI, ACB; a copy of FIR No. RC-15 (E) 2005 dated 30.11.2005 pertaining to this case was marked to him by Sh. Rajesh Nirwan, SP, CBI, BS&FC for investigation but he did not conduct any investigation in this case as he was pre-occupied in other cases and urgent matters; further, upon his transfer to Kolkata, the aforesaid case was transferred to Inspector R.K. Singh, CBI, BS & FC, New Delhi on 03.01.2006 and accordingly, he handed over a copy of the FIR, original Case Diary No. 1 & 2 and unused Case Diary in duplicate from Srl. No. 7360/004 to 7360/100, to Inspector R.K. Singh vide handing over memo dated 03.01.2006 Ex.PW52/A. PW52 was not cross examined by the accused persons despite the opportunity.
vi. PW60 Ram Kunwar Singh : He is the IO of the present case and carried out the investigation.
PW60 was cross examined by the accused persons at length.
Formal witnesses
59. Apart from above prosecution witnesses, prosecution has also examined following witnesses, who are formal in nature:-
i. PW3 Laxman Singh : He deposed that he never remained member of Radha Ballabh CGHS.; office of the said society never worked at his residence C-369, Vikas Puri, New Delhi-18 and no General Body Meeting or any kind of meeting ever took place at his residence; he do not know CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 47 of 186 ) CNR No. DLCT110004002019 any persons by the name of Jai Prakash, president of Radha Ballabh CGHS; The house was given on rent during the year 1983 to one Mr. Hari Kishan Lal and Mrs. Rekha Lal who were running a school in front of his house.
PW3 was not cross examined by the accused persons despite the opportunity.
ii. PW4 Rekha Lal : She deposed that earlier she was running a school in the name of St. Peter's Convent School, Vikas Puri, Delhi at C-369 and later on, it was shifted in the same locality in front of the said address; the school was started in the year 1981 ; C-453 was purchased by them ( PW4 and her husband) and earlier the place for running a school at C-369 was taken on rent by them from Sh. Laxman Singh Arya, owner of the said premises ; she had never heard or seen any office of society by the name of Radha Ballabh CGHS being run on C-369, Vikas Puri and after leaving the said premises, Sh. Laxman Singh Arya himself with family shifted to the said address.
PW4 was not cross examined by accused persons, despite the opportunity.
iii. PW11 Jati Singh Meena : He deposed that he resided at C-398, Albert Square, DIZ area, Gole Market, New Delhi, a government accommodation w.e.f June 2002 to June 2008 and no person by the name of Pran Nath s/o Hari Ram had ever resided on the said address during the aforesaid period.
PW11 was cross examined on behalf of accused Narender Mann (A-8) and Devender Mann (A-6) but not by the rest of the accused persons.
iv. PW12 Priyavart Chhikara : He deposed that his father Tejram expired on 30.03.2005; his father used to sign in Urdu; his father never told him during his lifetime if he ever became a member of Radha Ballabh CGHS.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 48 of 186 ) CNR No. DLCT110004002019 PW12 was not cross examined by the accused persons despite the opportunity.
v. PW21 Jai Prakash: He deposed that he remained posted as Postman in Post Office Palam Village from 1979 till 2006-2007 and in the year 2006, he was looking after beat no.10 i.e Raj Nagar Part-I Palam Colony, Delhi; the speed post letter dated 27.4.2006 ExPW21/A addressed to Vijay Kumar Saini was assigned to him for delivery: he visited the given address and his remarks and signature encircled in red at point A on the reverse of letter are ExPW21/A. He further deposed that the speed letter dated 24.1.2006 (D-86), addressed to Satish Kumar Vasta son of Sh. V.P Sharma, at RZ 686/221, Main Road, Palam Colony, Delhi ExPW21/B, was assigned to postman Sh. Ashwani Kumar, who was also posted in the Palam Village post office in the year 2006; Ex PW21/B bears the endorsement and his signature is at point A on the reverse of said letter.
PW21 was cross examined by accused Sanjeev Bharti (A-5) but not by the rest of the accused persons.
vi. PW22 Sh. Suresh Prasad: He deposed that he was posted as Postman in Mehrauli Post Office during the period 31.5.1997 - 19.11.2018 ; the speed post letter dated 28.4.2006 ExPW22/A addressed to Rajat Rashmi, H.NO 201/8, Ward No.2, Mehrauli, New Delhi, was assigned to him for delivery; he visited the given address and found that no such address was available; his endorsement and signature are encircled in red on ExPW22/A;
PW22 was not cross examined by the accused persons despite the opportunity.
vii. PW23 Raj Singh : He deposed that in the year 2006, he was posted as Postman in Vasant Vihar Post Office and was looking after beat no.6; Speed post letter dated 28.4.2006 addressed to Prakash CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 49 of 186 ) CNR No. DLCT110004002019 Singh s/o Sh. Babu Singh, B-4/46, LA, Colony, Vasant Vihar, New Delhi, ExPW23/A was assigned to him for delivery; he visited the given address and found that the said house was lying vacant; he made endorsement on the reverse of the said letter and had returned the said letter to the sender; his endorsement and signature are encircled in red at point A on the reverse of letter ExPW23/A PW23 was not cross examined by the accused persons despite the opportunity.
viii. PW24 Sheel Sagar: He deposed that Speed post envelope dated 28.4.2006 addressed to Sh. Jagvir Singh s/o Sh. Mahander Singh r/o C-409, Ganesh Nagar, New Delhi ExPW24/A was assigned to him for delivery; he went to the given address and found that no such address was available; he made the endorsement on the reverse of the said envelope and had returned the said letter to the sender; his endorsement and signature are encircled in red at point A on the reverse of envelope ExPW24/A. PW24 was not cross examined by the accused persons despite the opportunity being given to them.
ix. PW25 Paurush Kumar : He deposed that he was working as postman in Malviya Nagar Post Office, New Delhi 17 since 16.7.2002 (till 07.2.2019) and Vijay Prakash Sauda was also posted in the same post office ; speed post envelope having speed post receipt no. EE276196299IN of Chanakyapuri post office dated 28.4.2006 (D-176), ExPW25/A addressed to Tapan Kumar Ghughy s/o Sh. Bipin Ghughy, Merg, 23, Avenue 31379, Saket, New Delhi, bears endorsement and signature of Vijay Prakash Sauda at point A, encircled in red; said speed post ExPW25/A was attempted to be delivered by Vijay Prakash but The same could not be served as the said address was incomplete.
PW25 was not cross examined by the accused persons despite the opportunity.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 50 of 186 ) CNR No. DLCT110004002019 x. PW26 Ramesh : He deposed that in the year 2006, he was posted as postman in Safdarjung Enclave Post Office, New Delhi 29 and was having duty for delivery of letters/posts in beat no.12 Arjun Nagar; speed post envelope having speed post receipt no. EE297766756IN dated 24.1.2006 (D-83) of Chanakyapuri post office addressed to Sh. Kalicharan Sharma s/o Sh. Ganga Das r/o 109, Arjun Nagar, PO SDA, New Delhi,ExPW26/A was assigned to him for delivery in beat no.12; he visited the given address thrice but the said house was found locked and accordingly he made endorsement on the reverse of the side envelope ExPW26/A and returned the said envelope to the sender.
PW26 was not cross examined by the accused persons despite the opportunity.
xi. PW27 Devender Kumar : He deposed that he remained posted as Postman, Post Office Tilak Nagar from 1976 to 2006; the affidavit dated 07.02.2004 is shown to have been sworn by Jagdev Singh s/o Harphool Singh R/o A-77, Ashok Nagar, Delhi but there is no such address in Ashok Nagar in the Tilak Nagar Post Office area; affidavit dated 07.02.2004 shown to have been sworn by Om Prakash S/o Gyan Singh R/o 175, Samay Kunj Apartments, Vikas Puri, New Delhi but there is no such address in Vikas Puri area in the Tilak Nagar Post Office area. He further deposed that in the order dated 03.03.2004 pertaining to Radha Ballabh CGHS Ltd, the address of registered office of the said society has been shown as C-369, Vikas Puri, New Delhi but no correspondence belonging to said society was delivered by him at the said address between October, 2003 to 2005.
PW27 was cross examined on behalf of accused Sanjeev Bharti (A-5) but not by the rest of the accused persons despite the opportunity.
xii. PW29 Prem Chand Goel : He deposed that he is residing at C-1/194, Janak Puri, New Delhi since 1974; no one in the name of Prem Prakash Arroa is CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 51 of 186 ) CNR No. DLCT110004002019 known to him and he was not his tenant at any point of time ; in the affidavit dated 5.2.2004 ExPW29/A, one Prem Prakash Arora has wrongly been shown as resident of C-1/194, Janak Puri, New Delhi 110 058; relevant entry in the membership register of Radha Ballabh CGHS Ltd (D-32) at serial no.94 on page 8 encircled in red qua Prem Prakash Arora ExPW29/B is not correct nobody resided at the given address as tenant; no official from RCS office, Delhi ever visited at the above address to verify address of Prem Prakash Arora at any point of time.
PW29 was not cross examined by the accused persons despite the opportunity being given to them.
xiii. PW31 Shyam Lal Bansal : He deposed that his brother Sh. Shiv Narayan Bansal had purchased a house bearing no. 321, DESU Road, Shalimar Village, Opposite Masjid, Delhi-110088 in the year 1989 from one Sh. Prem Chand Goyal and since then, his family is residing in the said house and later on, in the year 2015, he purchased the said house from his brother; Ram Dayal Sharma is not known to him and he never remained tenant in the said house and no official from RCS, Delhi ever visited at the said house in connection with the verification of membership of Ram Dayal Sharma .
PW31 was cross examined by accused Sanjeev Bharti (A-5) but not by rest of the accused persons despite the opportunity being given to them.
xiv. PW32 N. Bhaskara : He deposed that he is residing in Government allotted flat no.1561,Delhi Administration Flats, Gulabi Bagh, Delhi 110 007, since 1996 and no person by the name of Rakesh Prasad ever resided in his flat; no official from RCS, Delhi ever visited at the said house in connection with verification of membership of said Rakesh Prasad; in the affidavit dated 07.02.2004 ExPW32/A his address has wrongly been mentioned as address of the deponent Rakesh Prasad;
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 52 of 186 ) CNR No. DLCT110004002019 PW32 was cross examined on behalf of accused Ashwani Sharma (A-7) but not by rest of the accused persons despite the opportunity.
xv. PW33 Iqbal Singh : He deposed that he runs a factory at 18, DLF, Moti Nagar, New Delhi and one Joginder Pal Singh was his employee from 1992 to 1995 and address of his factory at that time was WZ-125, Ram Nagar, Tilak Nagar, New Delhi; after Joginder Pal Singh left his employment in 1995, he had not seen him or heard about him; no official from RCS, Delhi ever visited at the said factory in connection with verification of membership of said Joginder Pal Singh; in the affidavit dated 07.02.2004 ExPW33/A, his factory address has been mentioned as address of the deponent Joginder Pal Singh which is incorrect.
PW33 was cross examined on behalf of accused Ashwani Sharma (A-7) but not by the rest of the accused persons despite the opportunity.
xvi. PW36 Om Prakash Wadhwa : He deposed that Prem Prakash Wadhwa was his younger brother who expired on 20.10.2003 in Canada and his death certificate is ExPW36/A. PW36 was not cross examined by the accused persons.
xvii. PW41 Rita Kaul : She deposed that she is a practicing Advocate since 1990 in Delhi; she never appeared in the office of Registrar of Cooperative societies in connection of revival proceedings of Radha Ballabh CGHS Ltd; in the noting at page 7/N dated 03.02.2004 at red encircled portion ExPW41/A, her presence has wrongly been shown by Narayan Diwakar; in noting page 16/N dated 17.02.2004 ExPW40/B, her presence has wrongly been shown by Naryayan Diwakar.
PW41 was not cross examined on behalf of accused Narayan Diwakar (A-1) but not by the rest of the accused persons despite the opportunity.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 53 of 186 ) CNR No. DLCT110004002019 xviii. PW54 Ashwani Vig: He deposed that he is doing business as a property dealer; he knew late SH. Prem Prakash Wadwa and Sh. Devender Mann was a contractor in the construction field; Devender Mann contacted him and asked him to arrange purchase of one society; he arranged a meeting between Sh. Wadhwa and Devender Mann; sh Wadhwa told him that he would pay him Rs 25000/- as commission.
PW54 was resiling from his previous statement, therefore, he was cross examined by Ld. Sr. PP for the CBI.
PW54 was cross examined on behalf of accused Sanjeev Bharti (A-5) and Narender Mann (A-8) but not by rest of the accused persons despite the opportunity.
xix. PW56 Sh. Girdhari Lal Chawla : He deposed that in the year 2004/2005, he was doing property dealing work. He has never been a member of any CGHS; in the year 2004, one Mr. Arora,property dealer advised him to invest in the CGHS and took him to the office of Devender Mann; Devender Mann(A-6) assured him that the papers of the society are fine and asked him to become a member of the society; he and his friend Jagdish gave Rs 10 Lakhs each to Mr. Mann for becoming the members of the society; his statement u/s 164 CrPC ExPW56/A was recorded; receipt memo dated 12.9.2005 is ExPW44/C, PW 56 was cross examined on behalf of accused Sanjeev Bharti A-6, Devender Mann (A-
6) and Narender Mann (A-8) but not by rest of the accused persons despite the opportunity being given to them.
60. Thereafter, vide order dated 11.07.2023, prosecution evidence was closed.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 54 of 186 ) CNR No. DLCT110004002019 STATEMENTS OF ACCUSED PERSONS UNDER SECTION 313 Cr PC
61. Statements of accused persons u/s 313 CrPC were recorded. A careful examination of the statements of accused persons u/s 313 CrPC would reveal that to most of the questions put to them, the reply given by them was either " I do not know", " It is a matter of record", "I have no knowledge" etc. except different answers given by them to few questions. Wherever there are specific allegations against a particular accused, the same have been denied by them.
62. Accused Narayan Diwakar (A-1), Raj Bhushan Chauhan (A-4), Sanjeev Bharti (A-5), Ashwani Sharma (A-7) and P.K Thirwani (A-11) opted to lead evidence in their defence.
DEFENCE EVIDENCE LED BY ACCUSED PERSONS By accused Narayan Diwakar (A-1)
63. Accused Narayan Diwakar has examined Sh.
Saroj Chandra Pradhan as DW4 in his defence. DW4 Saroj Chandra Pradhan deposed that during the relevant period he was working as System Analyst in CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 55 of 186 ) CNR No. DLCT110004002019 the office of RCS and during the period from 2003- 2004, Narayan Diwakar was the Registrar (RCS). He further deposed that under the directions of the competent authority, the status of every society including the list of members, management committee members, election status, audit etc. were to be updated on the website of the office of the RCS regularly and in this regard, a wide publicity relating to the launch of website of the RCS office was done and the RCS office was able to complete the computerization work and launching of the website of the RCS office; the work done was also duly recognized by the Delhi Government and letter of appreciation of was also given to the then Registrar, Sh. Narayan Diwakar; copy of letter of appreciation given by the Chief Secretary to the then RCS, Sh. Narayan Diwakar is Mark DW4/A. DW4 was cross examined by the Ld. PP (subs) for CBI.
64. Accused Ashwani Sharma (A-7), in his defence, has examined a witness from the Record room, RACC. DW1 Kuldeep, JA posted in the RACC has produced the file D-178 pertaining to a case titled as CBI Vs. Narayan Diwakar and Ors., CBI Case No. CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 56 of 186 ) CNR No. DLCT110004002019 217/2019, bearing FIR No. RC BD1/2005/E/0013. The said file D-178 was a part of the main file pertaining to Goswara No. 49/S/2021; said file D-178 having the proceedings pertaining to the taking over of specimen signatures of handwriting of one Sh. Sanjay Kumar S/o Sh. Lala Ram in that case, is ExDW1/A (colly.). DW1 was not cross examined by the Ld. PP (subs) for the CBI, despite opportunity.
65. Accused Raj Bhushan Chauhan (A-4) has examined DW2 Neha Kaushik , Asstt Ahlmad in the court of Sh. Anil Antil, Ld. Spl Judge, RADC and DW6 Guru Prasad Kardam from the Industry Department, Government of Delhi.
66. DW2 Neha Kaushik produced the file pertaining to the case titled as CBI Vs. Narayan Diwakar & Ors. (Om CGHS), containing a communication dated 18.10.2007 ( D-38 ) ExDW2/A (Colly) addressed to Sh. S.K. Jha, Sub Inspector of Police, CBI sent by the then Deputy Registrar (Admin), Office of RCS. DW2 was not cross examined by Ld. PP (Subs) for CBI, despite the opportunity.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 57 of 186 ) CNR No. DLCT110004002019
67. DW6 Guru Prasad Kardam, Senior Assistant, Industry Department, Government of Delhi, has produced the record pertaining to the sanction granted to prosecute Raj Bhushan Chauhan (A-4). The complete file alongwith all relevant papers pertaining to the grant of sanction is ExDW6/A (Colly). DW6 was not cross examined by the Ld. Sr. PP for the CBI.
68. Accused Sanjeev Bharti (A-5) has examined DW5 Yogesh Aggarwal from the Education Department, Vigilance Branch, GNCT of Delhi. DW5 has produced the record pertaining to the grant of sanction for prosecution of accused Sanjeev Bharti (A-
5). The complete file containing all the relevant papers is ExDW5/A (colly). DW5 was not cross examined by the Ld. Sr. PP for the CBI, despite the opportunity.
69. Accused P.K Thirwani (A-11) has examined DW3 Yatin Thapar from the Directorate of Vigilance, GNCT of Delhi. DW3 Yatin Thapar has produced the record pertaining to the sanction granted to prosecute accused P.K Thirwani (A-11). The entire proceedings including the correspondences pertaining to the sanction granted for prosecution of accused P.K CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 58 of 186 ) CNR No. DLCT110004002019 Thirwani (A-11) is ExDW3/A (Colly). DW3 was not cross examined by the Ld. PP (subs) for the CBI, despite the opportunity.
SUBMISSIONS MADE ON BEHALF OF THE CBI
70. Ms. Shashi Tiwari, Ld. PP for CBI has made the following submissions:
i. All the accused persons entered into a criminal conspiracy and created false and forged documents on the basis of which the present society was got revived to get the land alloted from the DDA at a cheaper rates.
ii. She has taken me to the testimony of PW53 Trilochan Joshi, GEQD and by referring to the report ExPW53/C1 given by the expert, she submitted that the forgery on the part of the accused persons stands established.
iii. She further submitted that accused Sanjeev Bharti(A-5) had given a false election report and accused P.K Thirwani (A-11) also submitted a false Audit report. She pointed out that both the aforesaid proceedings were conducted at the premises of accused Ashwani Sharma (A-7) and it has been established from the recovery of Hard disks during the search carried out at the premises of the accused Ashwani Sharma (A-7).
iv. Regarding the sanction to prosecute accused persons, Ld. Sr. PP submitted that authorities who had accorded sanction to prosecute accused persons were competent enough to grant sanction as at that CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 59 of 186 ) CNR No. DLCT110004002019 time, the accused persons were working under their supervision and control.
v. She submitted that prosecution has been able to prove its case beyond reasonable doubts against all the accused persons qua the charges framed against them and they are liable to be convicted.
vi. Ld. PP for the CBI has placed reliance upon following judgments:
(a) Hema Vs State of Madras , Criminal Appeal No.31 of 2013, Date of Decision 07-01-2013
(b) Murari Lal vs State of MP, 1980 AIR 531 SC
(c) K. Satwant Singh Vs. The State of Punjab 1960 AIR 266, 1960 SCR (2) 89
(d) State of Police Inspector Vs. Sri T. Venkatesh Murthy, Criminal Appeal No.997 of 2004, Date of Decision 10-04-2004.
(e) State of Bihar Vs Rajmangal Ram, Criminal Appeal No.708 of 2014, Criminal Appeal No.708 of 2014, Date of Decision 31-03- 2014.
(f) L. Narayana Swami Vs State of Karnataka, Crl Appeal No. 721 of 2016, date of decision 06.09.2006.
(g) Rakesh Kumar & Ors. Vs State Criminal Appeal 19/2007, date of decision 27-08-2009
(h) Ritesh Sinha vs State of UP Crl. Appeal No.1189 of 2089.
(i) Chandran @Manichan@Maniyan Vs State of Kerala (Criminal Appeal No. 1530 of 2005).
Submissions made on behalf of the accused Narayan Diwakar (A-1)
71. Ld. Counsel for the accused has made following submissions:
i. The main argument of the Ld. Counsel for the accused was that the present proceedings are liable to be dropped against the accused for want of sanction u/s 197 CrPC.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 60 of 186 ) CNR No. DLCT110004002019 ii. It was further stated that the accused has passed the revival order in the capacity of the Registrar u/s 63 (3) of the Act and he had no knowledge about the alleged forgery committed by the other private accused persons.
iii. By referring to the report submitted by the co-
accused Ram Nath (A-3), it was stated that there was nothing on record for the accused Narayan Diwakar (A-1) to disbelieve his report and subsequently, the revival order came to be passed.
iv. The prosecution has failed to bring on record to show that the accused was ever involved in the commission of the offences in question; he has not received any monetary or pecuniary benefits and none of the prosecution witnesses has deposed against him .
v. The accused himself has argued vehemently that the CBI had no jurisdiction to investigate the present case, as the CBI is not empowered to investigate the cooperative cases.
vi. He has taken me to the provision of section 93 and 95 of the Act and the prosecution of the Registrar is specifically prohibited.
vii. Ld. Counsel for the accused (A-1) also on behalf of (A-7) has placed reliance on the following judicial pronouncements:
(a) Dr. Hori Ram Singh Vs. Emperor (1939 ) AIR FC 43
(b) Shreekantiah Ramayya Munipalli Vs CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 61 of 186 ) CNR No. DLCT110004002019 State of Bombay, AIR 1955 SC 287.
(c) Amrik Singh Vs. State of Pepsu, (AIR 1955 SC 309)
(d) Matajog Dobey Vs H.C Bhari, AIR 1956 SC 44
(e) State of Madhya Pradesh Vs. Sheetla Sahai, (2009) 8 SCC 617
(f) State of Bihar Vs Rajmangal Ram, (2014) 11 SCC 388
(g) Prof. N.K. Ganguly Vs. CBI New Delhi, (2016) 2 SCC 143
(h) P.K Pradhan Vs State of Sikkim CBI, AIR 2001 SC 2547
(i) R. Balakrishna Pillai Vs State of Kerala & Anrs, AIR 1996 SC 901
(j) Atchut Mucund Alornkar Vs. CBI , (2012) SCC Online Bom 1256
(k) N.R Saraiya Vs. UOI , (2017) SCC Online Bom. 5016
(l) Ashoo Surendranath Tewari Vs.CBI , (2020) 9 SCC 636
(m) Amod Kumar Kanth Vs. Association of Victim of Uphaar Tragedy and Anothers, 2023 SCC Online SC 578
(n) A. Srinivasulu Vs The State Rep. By the Inspector of Police, , 2023 SCC Online SC 578
(o) Devinder Singh Vs. State of Punjab , (2016) 12 SCC 87
(p) Rakesh Bhatnagar Vs Central Bureau of Investigation , 2023 SCC OnLine Del 7440, Submissions made on behalf of accused Raj Bhushan Chauhan(A-4)
72. Ld. Counsel for the accused has made following submissions:
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 62 of 186 ) CNR No. DLCT110004002019 i. During the course of trial, the prosecution produced a number of documents and examined 60 witnesses in support of the allegations against the accused, however, none of the prosecution witnesses has stated anything incriminating against the accused to substantiate the charges.
ii. Ld. Defence Counsel submitted that there is no specific statement from any prosecution witness that the accused made a false note in the file of the society maintained in the office of RCS.
iii. Ld. Counsel submitted that the accused, being the dealing assistant in the office of RCS, was at the lowest rank of hierarchy and had put up his note to the Assistant Registrar, which was part and parcel of his duty. There is no evidence indicating that a dealing assistant was required to personally verify the signatures on documents from individual members.
iv. He further submitted that during the trial, no evidence has come on record to show that the accused violated any provisions of the DCS Act, 1972, the DCS Rules, 1973, or any circular or notification issued thereunder.
v. Ld. Defence Counsel vehemently argued that there is no evidence on record to show that the accused had knowledge about the forgery in respect of the documents submitted on behalf of the society to the office of RCS.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 63 of 186 ) CNR No. DLCT110004002019 vi. Ld. Counsel for the accused submitted that there is no evidence on record suggesting that the accused has obtained or attempted to obtain any pecuniary advantage for himself or for any other person.
vii. He pointed out that no incriminating documents have been recovered from the accused, and there is no evidence on record to show that any wrongful loss was caused to society or the government, and no wrongful gain was caused to anybody by the alleged activities of the accused.
viii. By referring to the testimony of PW46 Dr. Anil Mehra, Ld. Counsel pointed out that PW46 had accorded the sanction for prosecution of the accused A-4 without going through the relevant records and without due application of mind. He submitted that the authority competent to accord sanction for prosecuting the accused would have been the authority competent to remove him from that office, i.e., the RCS office, but in the present case, it is not so.
ix. No sanction has been obtained u/s 197 CrPC, which was a mandatory requirement for prosecuting the accused under the offences under Indian Penal Code. It was argued that it is a well settled law that the sanction for prosecution under Penal Offences are separately required against the public servant u/s 197 CrPC in addition to the sanction for prosecution u/s 19 of PC Act.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 64 of 186 ) CNR No. DLCT110004002019 x. Ld. Counsel for the accused has placed reliance on the following judicial pronouncements:-
(a) K.R. Purushothaman Vs. State of Kerala, (2005) 12 Supreme Court Cases 631.
(b) CBI Vs. Ashok Kumar Aggarwal Crl. Appeal No. 1838/2013 date of decision 22.11.2013.
(c) State of T.N v. M.M Rajendran, (1998) 9 SCC 268.
(d) Sh. Anand Muralidhar Salvi Vs. The State of Maharashtra Crl. Appeal No. 1107 of 2004 date of decision 23.02.2021.
(e) State of Maharashtra, through Deputy Superintendent of Police, Anti Corruption Bureau, Nagpur Vs. Devidas s/o Narayanrao Bobde Crl. Appeal No. 345 of 2002 date of decision 08.09.2014.
(f) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat 1997 (4) R.C.R. (Criminal) 236.
(g) Dr. Subramaniam Swamy Vs. Dr. Manmohan Singh and another Civil Appeal No. 1193 of 2012 (Arising out of SLP (C ) No. 27535 of 2010) date of decision 31.1.2012.
(h) Nanjappa Vs. State of Karnataka, Crl Appeal No. 1867 of 2012.
Submissions made on behalf of Accused Sanjeev Bharti (A-5)
73. Ld. Counsel for accused has made the following submissions:
i. The accused was in no way concerned and had absolutely no role till the Society was revived on 03.03.2004. Hence, there is no question of his being party to criminal conspiracy for revival of the Society in question.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 65 of 186 ) CNR No. DLCT110004002019 ii. By referring to the revival order dated 03.03.2004, Ex.PW49/A, it was stated that the society was revived with immediate effect and the election of the Managing Committee of the Society in question was ordered only keeping in view the principles of natural justice and cooperative spirit. Bare perusal of the revival order shows that the election was not a precondition to the revival of the Society.
iii. It is not denied that DDA, the land-owning agency acts only on the approved list of members forwarded to it by the Office of RCS and DDA has nothing to do whether the election in the CGHS is held or not at the time of allotment of land to the CGHS or at the time of draw of lots.
iv. It was further stated that in the present case, the election was conducted on 24.04.2004, by the accused i.e after about one month of the approved freeze list of members having been sent by the office of RCS to DDA. As such, the aforesaid election conducted by the accused has no relevance at all not only for revival of the Society in question but also for sending the approved freeze list of members to DDA or for allotment of land to the Society.
v. It is further stated that during the relevant period, the last act on the part of office of RCS was to send the approved freeze list of members of the Society to DDA for allotment of land and thereafter nothing remained to be done on the part of office of RCS as far as the allotment of land to the Society by the DDA is CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 66 of 186 ) CNR No. DLCT110004002019 concerned.
vi. There is no evidence on record which would suggest that the alleged election report dated 26.04.2004 had ever been used for any purpose whatsoever by the office of RCS or by the office bearers of the society or by the DDA.
vii. In the present case there is absolutely no oral/documentary or circumstantial evidence on record to establish that the accused had any knowledge about any sort of conspiracy for revival of the society in question.
viii. There is no evidence on record to show that the accused had received any pecuniary advantage in any form from anybody at any point of time.
ix. It is the admitted case of the prosecution that no land was allotted by the DDA to the Society in question in this case. So there is no loss to anyone as the land was not allotted by DDA to the Society in question.
x. The accused acted bonafide and in good faith on the basis of a list of members provided by the Society, whose list had already been verified as mentioned in revival order dated 03.03.2004 Ex.PW49/A. xi. The election was conducted by the accused in the premises of the office of the Registrar, Cooperative Societies at Old Court's Building, Parliament Street, New Delhi, and it was a unanimous election. There was no contest CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 67 of 186 ) CNR No. DLCT110004002019 and hence no voting took place and the declaration of the names of the elected members was reduced to a formality only.
xii. The Society was responsible for the genuineness of the members present in the meeting and for the genuineness of the documents of the Society and for that this accused can not be held responsible.
xiii. Even if there was some irregularity or unintentional commission or omission, while conducting the election dated 24.04.2004, at the most same can be called an administrative lapse on the part of the accused ,which can be termed as an error of judgment and cannot give rise to a criminal liability for want of mens rea.
xiv. In the instant case, the office which is alleged to have been misused during 2004, was the office of Registrar, Cooperative Societies, GNCT of Delhi, whereas sanction for prosecution u/s 19 of P.C. Act, 1988 was given vide Sanction Order dated 27.11.2006, ExPW43/A by Director (Education), GNCT of Delhi, i.e. the office where the accused was working in 2006 . The office of Director (Education) was neither abused or misused.
xv. The sanction for prosecution (Ex.PW43/A) is an invalid sanction granted mechanically without application of mind and without following the due process of law xvi. The prosecution has failed to establish and satisfy the court by leading evidence that the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 68 of 186 ) CNR No. DLCT110004002019 entire relevant facts had been placed before the sanctioning authority of the accused.
xvii. Non-availability of sanction u/s 197(1) Cr.P.C.
for prosecution of accused under IPC offences, has made the trial void ab initio.
xviii. Ld. Counsel for accused has placed reliance on following judgments:
(a) K.R. Purushothaman Vs. State of Kerala, (2005) 12 Supreme Court Cases 631.
(b) Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh Crl. Appeal No. 1066 of 2010 date of decision 25.08.2022.
(c) Anil Kumar Bose Vs. State of Bihar (1974) SCC (4) 616.
(d) Dr. Subramaniam Swamy Vs. Dr. Manmohan Singh and another Civil Appeal No. 1193 of 2012 (Arising out of SLP (C ) No. 27535 of 2010) date of decision 31.1.2012.
(e) Mansukhlal Vithaldas Chauhan Vs. State of Gujarat 1997 (4) R.C.R. (Criminal) 236.
(f) Nanjappa Vs. State of Karnataka Crl.
Appeal No. 1867 of 2012 date of decision 24.7.2015.
(g) CBI Vs. Ashok Kumar Aggarwal Crl.
Appeal No. 1838/2013 date of decision 22.11.2013.
(h) Sh. Anand Muralidhar Salvi Vs. The State of Maharashtra Crl. Appeal No. 1107 of 2004 date of decision 23.02.2021.
(i) State of Maharashtra, through Deputy Superintendent of Police, Anti Corruption Bureau, Nagpur Vs. Devidas s/o Narayanrao Bobde Crl. Appeal No. 345 of 2002 date of decision 08.09.2014.
(j) Prof. N.K. Ganguly Vs. CBI New Delhi CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 69 of 186 ) CNR No. DLCT110004002019 Crl. Appeal No. 798 of 2015 date of decision 19.11.2015.
(k) Indra Devi Vs. State of Rajasthan, Crl.
Appeal No. 593 of 2021 date of decision 23.07.2021.
(l) A. Srinivasulu Vs The State Rep. By the Inspector of Police, Crl Appeal No. 2417/2010 date of decision 15.06.2023 (SC).
(m) Amod Kumar Kanth Vs. Association of Victim of Uphaar Tragedy and Anothers, Crl Appeal No. 1359/2017, date of decision 20.04.2023(SC).
(n) State Vs Mukesh Kumar Singh & Anr., Crl Revision Petition 462/2007 date of decision 03.04.2018 (DHC).
74. Ld. Counsel for the accused Devender Mann (A-6) has made following submissions:
i. There is no evidence (oral/documentary /circumstantial) of criminal conspiracy against the accused.
ii. Ld. Defence Counsel submitted that during the course of trial, no evidence has come on record that the accused or his family members were members of Radha Ballabh CGHS or derived any benefit out of the said Society in any manner whatsoever; that accused met or communicated with any co-accused concerning revival of the Society or regarding the affairs of the Society in any manner whatsoever; there is absolutely no evidence of any incriminating circumstances also against the accused, from which the irresistible conclusion of guilt of the accused could be inferred .
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 70 of 186 ) CNR No. DLCT110004002019 iii. Ld. Counsel for the accused further submitted that there is no evidence of forgery against the accused. None of the prosecution witnesses has deposed regarding forging of any document by the accused or for getting the documents forged by him from other co- accused persons, during the course of trial.
iv. By referring to the GEQD reports/opinions, Ld. Defence Counsel pointed out that even as per the reports/opinion, none of the questioned documents have been linked to the accused (A-6) and as such, there is absolutely no evidence of forging of any document by him during the course of trial.
v. Prosecution has failed to bring any evidence to show that the accused had purchased the society as alleged or he was having control over the society or that the control and affairs of the society was taken over by the accused from Prem Prakash Wadhwa during the year 2003, as alleged by the prosecution.
vi. By referring to the examination-in-chief of PW56 Girdhari Lal Chawla, Ld. Defence Counsel submitted that there was no identification of the accused by this witness in the court by the prosecution. He further submitted that during the cross examination of PW56 done on behalf of the accused A-6, PW56 could not identify the person whom, as per the prosecution, he had met as Mr. Devender Mann.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 71 of 186 ) CNR No. DLCT110004002019
75. Ld. Counsel for the accused Ashwani Sharma (A-7) and Naveen Kaushik (A-9) has made the following submissions:-
i. By referring to the testimony of PW50 Pradeep Kumar Khanna, he submitted that during the examination of PW50 certain documents which are only the photocopies, were given Mark by the prosecution but the same are not admissible in the evidence and could not be read in evidence.
ii. PW57 N.C Sood has merely identified the signatures of I.S Rao on the document and he himself has not examined anything. Merely identifying signatures on a particular document/report does not mean that the document or the report stands proved.
iii. Further, there is no certificate u/s 65B of Indian Evidence Act with the said report .This is also another dent in the case of the prosecution.
iv. Ld. Defence Counsel has taken me to the testimony of PW60 Ram Kunwar Singh (IO), examination in chief as well as cross examination, and pointed out that this witness is not truthful and there are various occasions on which he has misrepresented the facts. His testimony is wholly unreliable and liable to be rejected.
v. He further submitted that the specimen signatures/handwritings that are alleged to have been taken by the IO during the investigation, would indicate that it is next to CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 72 of 186 ) CNR No. DLCT110004002019 impossible to record such proceedings on a single day.
vi. By referring to the aforesaid proceedings particularly S-440, pertaining to the accused Ashwani Sharma (A-7), Ld. Defence Counsel submitted that the alleged specimen signatures of A-7 from S-1 to S-480 were taken on 14.06.2006 on one sheet i.e S-440 and on 15.6.2006, his purported specimen signatures were alleged to have been taken on 233 sheets and on 16.06.2006, his specimen signatures were taken on 245 sheets.
vii. Ld. Defense Counsel, by referring to the defence evidence produced by the accused, pointed out that the specimen signatures and handwritings of one Sanjay Kumar were also taken by the CBI on the said dates, i.e., 14.06.2006, 15.06.2006, and 16.06.2006, in another case, Narayan Diwakar & Ors (Birla Udyog CGHS). He further submitted that comparing the proceedings of that case with the proceedings that are allegedly recorded in the present case would make it clear that these proceedings cannot be relied upon for the reason that the specimen writings pertaining to A-7 containing the title of the present case are lying in the Birla Udyog CGHS file. He further submitted that these specimens were sent to GEQD for examination, and in light of the aforesaid fact, the reports of the PW58 and PW60 are not credit worthy and are doubt full.
viii. Ld. Counsel for the accused persons has relied upon the following judicial authorities:-
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 73 of 186 ) CNR No. DLCT110004002019
(a) Sudir Engineering Co. v. Nitco Roadways Ltd. (1995) 34 DRJ 86
(b) U.Sree V.U.Srinivas (2013) 2 SCC 114
(c) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
(d) J.Yashoda V. K.Shobha rani, (2007) 5 SCC 730
(e) Kaliya v. State of M.P (2013) 10 SCC 758
(f) State of Maharashtra v. Damu 2000 6 SCC 269
(g) Keshav Dutt Vs State of H.R. 2010 9 SCC 286
(h) Ramji Dayawala & Sons Vs. Invest Import 1981 1 SCC 80
(i) Rajesh &Anr Vs. State of M.P 2023 SCC Online SC 1202.
76. Ld. Counsel for the accused Narender Mann (A-8) has made the following submissions:-
i. There is no evidence (oral/documentary/ circumstantial) of criminal conspiracy against the accused.
ii. Ld. Defence Counsel submitted that during the course of trial, no evidence has come on record that the accused or his family members were members of Radha Ballabh CGHS or derived any benefit out of the said Society in any manner whatsoever.
iii. He further submitted that there is no evidence
on record that the accused met or
communicated with any co-accused
concerning revival of the Society or regarding the affairs of the Society in any manner whatsoever, or that accused in any way was concerned or had participated in the revival CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 74 of 186 ) CNR No. DLCT110004002019 proceedings of the Society.
iv. By referring to the testimonies of the prosecution witnesses, Ld. Defence Counsel submitted that none of the prosecution witnesses have deposed anything incriminating against the accused specifically so as to substantiate the allegations against him that he forged/wrote any document.
v. There is absolutely no evidence on record during trial as to what overt act was committed by the accused in the present case.
vi. It was argued that the GEQD report Ex.PW53/C1 is unreliable. As per the GEQD report, the only evidence, even as per the case of the prosecution, against the accused is that the writing portion of Q.179 to Q.182 and the writing portions of Q.1093, Q.1097, Q.1099, Q.1109, Q.1111, Q.1125, Q.1143, Q.1145, Q.1157, Q.1159, Q.1171, Q.1173, Q.1175 and Q.1183 are of the accused but there is no opinion about the signatures on the said questioned documents and as such the signatures on the said questioned documents have not been attributed to the accused.
vii. Ld Counsel submitted that the prosecution has failed to prove that the specimen on the examination of which the expert opinion has been rendered, pertained to the accused and was given by him voluntarily and in the presence of an independent witness.
viii. Ld. Counsel for the accused has placed reliance upon following judicial CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 75 of 186 ) CNR No. DLCT110004002019 pronouncements:-
(a) K.R. Purushothaman Vs. State of Kerala, (2005) 12 Supreme Court Cases 631.
(b) P.K Narayanan Vs. State of Kerala,1994 III AD S.C (Cr) 141
(c) Ram Sharan Chaturvedi Vs. The State of Madhya Pradesh Crl. Appeal No. 1066 of 2010 date of decision 25.08.2022.
(d) Basi Bewa & Ors. Vs.. Raimani Majhiani ,2023 SCC Online Orissa 2293.
(e) Sapan Haldar & Anr. Versus State, Crl, A.804/2001, decided on 25.05.2012, DHC
(f) Mohd Ibrahim & Ors. V. State of Bihar, (2009) 3 SCC (Crl) 929
(g) Sheila Sabastian vs R. Jawaharaj (2018) 7 SCC 581
(h) S. Gopal Reddy Vs. State of A.P. (1996) 4 SCC 596.
(i) Murari Lal vs State of MP, 1980 AIR 531 SC
(j) Union of India Vs. Prafulla Kumar Samal and Anr, AIR 1979 SC 366
77. Ld. Counsel for accused Ashok Kumar Johri ( A-10) has made following submissions:-
i. There is no evidence against the accused connecting to the offences in question.
ii. It is a fundamental principle of law that prosecution has to prove its case beyond reasonable doubt and in the present case, the prosecution has miserably failed to achieve that standard.
iii. Nobody has suffered wrongful loss and no one has received the monetary or pecuniary benefit, as land was never alloted in the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 76 of 186 ) CNR No. DLCT110004002019 present case.
iv. Even as per the case of the prosecution, it is a case of attempt only therefore, the charges u/s 120 B IPC are sustainable.
v. By referring to the testimony of PW53 Trilochan Joshi, Ld. Counsel submitted that the evidence of the handwriting expert is only a corroborative piece of evidence and solely on the basis of the same, the accused cannot be convicted.
vi. Challenging the taking over of specimen signatures/handwritings of the accused, Ld. Counsel submitted that the testimony of PW58 Tek Chand, who is stated to be an independent witness, is not reliable and he is a stock witness of the prosecution.
vii. By referring to the testimony of PW60 Ram Kunwar Singh, who is the IO of the present case, Ld. Counsel submitted that the IO could not answer certain questions and if his testimony is read in its entirety, there would be no difficulty in rejecting the same, as testimony of PW60 is not convincing and reliable.
viii. Ld. Counsel for the accused has placed reliance on the following judicial pronouncements:
(a) Magan Bihari Lal Vs. State of Punjab (1977) 2 SCC 210.
(b) Murari Lal Vs. State of M.P. (1980) 1 SCC 704.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 77 of 186 ) CNR No. DLCT110004002019
78. Ld. Counsel for accused P.K Thirwani A-11 has made following submissions:
(a) Allegations against the accused P.K Thirwani (A-11), are that he was appointed as Auditor to conduct the audit of the society for the period 1983-84 to 2002-03 and had submitted a forged Audit Report but the prosecution has not been able to prove its case against the accused.
(b) Ld. Defence Counsel vehemently argued that the Audit Report was duly verified by the other officers of the RCS office and no deficiency or violation was ever reported, as such.
(c) It was further submitted that although the Audit Report is said to have been forged by the accused P.K Thirwani(A-11) but it has not been explained as to what forgery has been done in the Audit Report.
(d) By referring to the testimonies of the prosecution witnesses, Ld. Defence Counsel submitted that none of the witness has said anything incriminating against the accused P.K Thirwani(A-11),
(e) He further submitted that none of the prosecution witnesses have said that accused P.K Thirwani (A-11) has violated any of the provisions of the DCS Act, 1972 and accused cannot be held guilty only on the basis of allegations for the offence under Prevention of Corruption Act.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 78 of 186 ) CNR No. DLCT110004002019
(f) No monetary or pecuniary benefit has been caused to the accused due to the alleged act of the accused.
(g) Neither the accused nor any of his family members ever become the member of the present society.
(h) The revival order in the present case was passed well before the submission of the Audit Report and that was not a precondition for allotment of land by the DDA.
DISCUSSION AND ANALYSIS
79. I have perused the record and heard the Ld. Sr. PP for CBI and the Ld. Counsels for accused persons at length.
80. The main allegation against the accused persons is that they all entered into a conspiracy to cheat the office of RCS and DDA and in furtherance of the said conspiracy got approved the freeze list of 150 members of the present society on the basis of fake and forged documents for getting the land alloted from DDA at a cheaper rate. It is alleged that the office of RCS and DDA was fraudulently and dishonestly induced by the accused persons for ulterior motives. In the present case, no land has been allotted, therefore, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 79 of 186 ) CNR No. DLCT110004002019 the accused persons have been charged for the offence of attempt only qua the substantial offences in addition to the offence of criminal conspiracy under 120 B IPC.
81. . In the case in hand, certain facts are not in dispute. A careful examination of the deposition of prosecution witnesses including their cross examination done on behalf of the accused persons, the statement of accused persons recorded under section 313 CrPC, the written submissions filed on behalf of the accused persons etc., would reveal that following facts have not been questioned by the accused persons and CBI as well:-
I. Radha Ballabh CGHS Ltd was registered on 02.02.1981, vide registration no. 1517 (GH) with 109 Promoter Members.
II. Subsequently, that society was wound up due to non compliance of certain statutory requirements under Delhi Co-Operative Society Act,1972. The winding up order was passed on 10.08.1989.
III. The said society was revived vide order dated 03-03-2004 by accused Narayan Diwakar (A-1) and a list of 150 members was approved.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 80 of 186 ) CNR No. DLCT110004002019
82. There are two sets of accused persons. One set consists of public servants, who were posted in the office of RCS during the relevant time and second set of accused persons is of the private accused persons, who alleged to have entered into criminal conspiracy with public servants for achieving their ulterior motive of getting the land allotted at a cheaper rate from the DDA. In the present case, as far as the first set of the accused persons, who are the public servants, is concerned, their stand is that whatever acts have been done by them, it was done absolutely as per the rules and law and none of the provisions of any Act, including DCS Act has been violated by them. According to them, there was no occasion for them to doubt the genuineness of documents as submitted on behalf of the society. It was next to impossible for them to verify whether the documents being furnished on behalf of the society, are either forged or false as they are not experts to examine the documents. It is further stated by them that whatever record was submitted on behalf of the society, the same was processed and the society was revived.
83. On the contrary, Ld. Sr. PP the CBI submitted that even these accused persons were much aware of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 81 of 186 ) CNR No. DLCT110004002019 the facts that false and forged documents have been produced by the society and despite that the society was revived and the freezed list of 150 members was approved. According to her, the entire process took place with pre-planned conspiracy for getting the land alloted at a cheaper rate from DDA.
84. Registrar Cooperative Society has been empowered to revive a Group Housing Society under section 63 (3) of the Act. As per section 63(3) of the Act, Registrar may cancel the order of the winding up of CGHS at any time, in any case where in his opinion the society should continue to exist. The words " any time" and " in any case where" indicate that Registrar is vested with the power of cancellation of winding up without any restrictions or impediments. The only condition is that the Registrar has to satisfy himself that the society should continue to exist. It is purely the satisfaction of the Registrar, formed on the basis of material available on record. Such a power to the Registrar appears to be in a way unfettered and unrestricted.
85. Having said so, at the same time, it should not be misunderstood or misinterpreted that said CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 82 of 186 ) CNR No. DLCT110004002019 power which lies with the Registrar, can be used even for ulterior design and against the law. Meaning thereby, the revival of a group housing society by the Registrar per se is not an illegal act but if it was done on the basis of false and forged documents then one shall be answerable. So long the revival is based upon genuine documents and is done in a legal way, nobody can question it, but not otherwise. Now, it is to be seen whether the revival of the present society and approval of the list of 150 members was based upon false and forged documents or not?
86. In the present case, prosecution has examined 60 witnesses which have already been categorized as under:-
(i) witnesses who never became members of the society.
(ii) witnesses who were the promoter members of the society.
(iii) witnesses from the office of RCS.
(iv) witness from the office of State Cooperative Bank.
(v) Sanctioning Authorities who had granted sanction to prosecute the public servants, who have been arrayed as accused persons.
(vi)witnesses from GEQD.
(vii) witnesses from the CBI.
(viii) Formal witnesses CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 83 of 186 ) CNR No. DLCT110004002019
87. Regarding the first category of witnesses i.e who have deposed that they never became the members of the present society, the evidence which has come on record is that certain documents like application forms, affidavits, receipts, etc.,do not bear their signatures. These witnesses have denied having executed or signed such documents. From their testimonies, at the most it can be inferred that aforesaid documents were not executed by them and someone has forged the same. They are admittedly not the witnesses to any forgery allegedly done by the private accused persons. Merely, on the basis of their testimonies, it cannot be concluded that since the witnesses have denied having executed the documents therefore, the same have been forged by the accused persons only.
88. Similarly, the rest of the witnesses are also not the witnesses to any forgery. To establish the charge of forgery, the testimonies of some of the prosecution witnesses may be relevant i.e PW53 Trilochan Joshi, PW58 Tek Chand and PW60 Ram Kunwar Singh, who is the IO. PW53 Trilochan Joshi, a witness from GEQD, is said to have examined the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 84 of 186 ) CNR No. DLCT110004002019 questioned documents and had given his report. PW58 Tek Chand is a witness in whose presence, the specimen signatures/writings alleged to have been taken by the IO during the investigation and the same were sent to the GEQD for comparison and examination.
89. PW53 Trilochan Joshi has given the report on the basis of specimen signatures/handwritings sent to them by the CBI. The entire process of examination of documents by an expert can be looked at three stages i.e i) taking over of specimen signatures/handwritings pertaining to the accused persons (ii) sending the same to the GEQD alongwith questioned documents and
(iii) the report of the GEQD given after examination, on the basis of material sent to them.
90. In order to bring home the guilt against the accused persons, prosecution was under obligation to establish beyond all doubt that all the above mentioned processes at different stages were done and executed in accordance with law and there is no doubt in either of the said processes. In case it is found that there is a serious doubt in the story of the prosecution at any stage of the process, then obviously benefit would go CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 85 of 186 ) CNR No. DLCT110004002019 to the accused persons.
91. Adverting to the first stage i.e taking over specimen signatures/handwriting of the accused persons, at the first instance, I may refer to the testimony of PW58 Tek Chand. It is being claimed by the prosecution that all such proceedings of taking over of specimen signatures and handwritings were recorded in the presence of PW58. But, if the testimony of PW58 Tek Chand is put to close scrutiny viz-a-viz the testimony of PW60 Ram Kunwar Singh and the documents on record, one of the conclusion would be that such proceedings are not free from doubt.
92. PW58 Tek Chand deposed that he was working as a Sr. Assistant in State Bank of India in 2005 and was attached with Mr. N.K. Handa, AGM, SBI. Mr. N.K Handa directed him to report to the CBI office. Accordingly, he went to the CBI office. In the said office, there were certain persons present with the Inspector. He was told that these people are of the society and that their specimens would be taken. He further deposed that he was told that he has to be a CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 86 of 186 ) CNR No. DLCT110004002019 witness to the taking of such specimens. Accordingly, the specimens were taken and he signed on such proceedings. The specimens were of signatures, writings and stamps. He had witnessed taking of such specimens on more than one day. PW58 was cross examined on behalf of the accused Sanjeev Bharti (A-
5), Devender Mann (A-6), Ashwani Sharma (A-7), Narender Mann (A-8) and Naveen Kaushik (A-9), and not by the rest of the accused persons despite the opportunity.
93. The cross examination of PW58 is not so lengthy and is relevant for just decision of the present case, therefore, the same is being reproduced as under:-
" My statement was not recorded by CBI in this case. No order in writing was given to me by my AGM to go to CBI office in this case. I do not remember how many days I visited the CBI office for the purpose of witnessing taking of specimens in this case. I had visited the CBI office in other cases also but I cannot tell in how many cases I had gone. I cannot tell how many persons' specimens were taken in my presence in the present case nor can I tell the number of persons whose specimens were taken in the other cases. I cannot tell the date/day or month when I had visited the CBI office in this case. I cannot tell whether specimens of a person were taken on a single day or on more than one day. The CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 87 of 186 ) CNR No. DLCT110004002019 typed portion on the pages on which the specimens have been taken were printed in my presence. I did not put the date on which the specimens were taken under my signatures. I cannot tell whether the date was mentioned on all the sheets on which the specimens were taken. I was not shown any order of the court allowing taking of specimens of the people whose specimens were taken. The specimens of the writings were taken by those people copying from a document. It is wrong to suggest that the specimens were not taken in my presence. It is wrong to suggest that I am stock witness of CBI and as such had signed the sheets on which the specimens were taken later on. It is wrong to suggest that I have deposed falsely.
XXXXX by Sh. R.S. Ahuja, Ld. Counsel for A7 Ashwani Sharma and A9 Naveen Kaushik.
I do not remember the time when I used to reach the CBI office. I used to straight away go to the Inspector to whom I was asked to report by my AGM. I do not remember the name of the Inspector. On every visit, I had met a different Inspector. At the time of taking specimens, there was sometimes only one person whose specimens were to be taken or sometimes more people. I cannot tell how much time was taken to give specimens on one sheet of paper. I do not remember the time I used to leave the CBI office. No I-card of the person whose specimens were taken was shown to me prior to the specimens being taken of that person. I do not remember the total number of sheets of specimens being taken on any particular day.
At this stage, the witness is shown specimens S-481 (D-
43), already Ex. PW53/B-231 (colly.). The printed portion was printed in my presence whereafter the specimens were taken. I then signed the sheet. When the specimens were taken, the underlying in blue, the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 88 of 186 ) CNR No. DLCT110004002019 portion written in red (the S number) and the stamp (of GEQD) were not there. The person whose specimens were taken signed the sheet in my presence where after I had signed it. No other person signed the sheet in my presence. Once I had signed the sheet, no correction was made in the sheet in my presence.
At this stage, the witness is shown specimens S-1 (D-42), already Ex. PW53/B-230 (colly.). I do not remember whether the corrections in the said sheet viz., change in the date by hand and parentage by hand were made in my presence or not. I do not remember regarding the corrections in the other sheets, S-2 to S-216. It is wrong to suggest that no specimens were obtained in my presence. It is wrong to suggest that I am stock witness of CBI. It is wrong to suggest that I have deposed falsely at the behest of CBI."
94. According to PW58 Tekchand, the typed portion on the pages on which the specimens have been taken, was printed in his presence; he did not put the date along with his signatures; the specimens of the writing were taken by the people copying from a document; on every visit he (PW58) had met a different Inspector. When this witness was shown the proceedings of taking over of specimen signatures/ handwriting pertaining to the accused Naveen Kaushik (A-9) ExPW53/B-231 (colly), he replied that the printed portion was printed in his presence and thereafter specimens were taken. He further replied that the person whose specimens were taken, signed CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 89 of 186 ) CNR No. DLCT110004002019 the sheet in his presence and then he endorsed the same by signing it and no other person signed the sheet in his presence. He has categorically stated that no correction in the sheet was made in his presence.
95. PW60 Ram Kunwar Singh, IO of the present case deposed that specimen signatures/writings of accused Ashwani Sharma (A-7) ExPW53/B- 230( colly), of accused Naveen Kaushik (A-9) ExPW53/B-231 (colly), of accused P.K Thirwani (A-
11) ExPW53/B-233 (colly), of accused Sanjeev Bharti (A-5) ExPW53/B-234 (colly), of accused Raj Bhushan Chauhan (A-4) ExPW53/B-237 (colly), of accused Narender Mann (A-8) ExPW53/B-246 (colly), of accused Devender Mann (A-6) ExPW53/B-247 (colly) and of accused Ashok Kumar Johri (A-10) ExPW53/B-248 (colly), were taken in the presence of independent witness namely Sh. Tek Chand (PW58), the then Sr. Assistant, LHO/SBI.
96. During his cross examination done on behalf of the accused persons, PW60 Ram Kunwar Singh replied that, he had not taken any permission from the Court before taking the specimen signatures/writings of the accused persons; he had not collected admitted CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 90 of 186 ) CNR No. DLCT110004002019 signatures/writings of the accused persons of the contemporary period; admitted that there is no record to the effect that any written communication was sent to Tek Chand (PW58), who is a independent witness to the said proceedings. PW60 further admitted that he had not taken the counter signature of the accused persons in token of having given the said specimen writing/signatures by them except the signatures of the accused Naveen Kaushik (A-9). He further admitted that no date has been mentioned along with the signatures of independent witness Sh. Tek Chand (PW58) and denied the suggestions that the aforesaid proceedings are forged and have been manipulated by him.
97. If the testimonies of PW58 Tek Chand and PW60 Ram Kunwar Singh, are read together, then the taking over of the specimen signatures /Handwritings of accused persons itself would be doubtful.
98. If PW58 Tek Chand is to be believed then no correction in the aforesaid proceedings took place in his presence and typed portion on the proceedings was typed in his presence. The typed portion in the aforesaid proceedings is basically case particulars, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 91 of 186 ) CNR No. DLCT110004002019 date, name and the particulars of the accused, which is available at the top of the proceedings and at the bottom of each page, the name of the witness and the IO along with designation have been typed and at the space available in between these two typed portion, the specimen writings were taken, which is difficult to believe.
99. Here I may mention that a careful perusal of all the proceedings pertaining to the taking over of specimen signatures/handwriting of the accused persons would indicate that the way the proceedings have been taken, would reveal that the same are not free from doubts. Almost, in every such proceedings there is a correction in the dates and on few pages even in the name also. Admittedly, the corrections were not made in the presence of independent witness PW58 Tek Chand and the same appears to have been made later on by the IO PW60 Ram Kunwar, which is not permissible. Making an independent person a witness to such proceedings, is not a mere formality. Rather, the same is done to ensure that accused persons have given their specimen signatures/writings voluntarily and without any outside pressure. Once such proceedings are complete in the presence of the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 92 of 186 ) CNR No. DLCT110004002019 independent witness, no one is allowed to change or alter the said proceedings without the endorsement of the independent witness.
100. Further PW58 Tek Chand has categorically stated that the person whose specimen were taken has signed the sheet in his presence and thereafter, he (PW58) had signed it and thereafter no correction was made in that sheet in his presence. If that is so, then all such proceedings should have been counter signed by the accused persons also, but except the signatures of accused Naveen Kashik (A-9), no other accused persons have signed the same. This has created further doubt in the story of prosecution.
101. Now take the taking over of the specimen signatures and handwritings of the accused Ashwani Sharma (A-7) during the investigation. PW60 deposed that during the investigation, he had taken the specimen signatures/writings of accused persons, as well as of suspects and witnesses; the file placed at D- 42, from page 1 to 480, S-1 to S-480, is having the specimen signatures/writings of accused Ashwani Sharma (A-7); the specimen signatures/writings of Ashwani Sharma (A-7) were taken in the presence of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 93 of 186 ) CNR No. DLCT110004002019 independent witness namely Sh. Tek Chand (PW58), the then Sr. Assistant, LHO/SBI; the specimen signatures/writings of accused Ashwani Sharma (A-7) is already Ex. PW53/B-230(colly.) which bears the signatures of said Sh. Tek Chand (PW58) at point X and his signatures on each and every page at points A.
102. During his cross examination PW60 admitted that when he took over the investigation of this case and as per the FIR, it was shown that the father of Ashwani Sharma (A-7) had already expired; he has shown his ignorance whether he had taken the specimen signatures/writing of a person namely Sanjay Kumar son of Lala Ram residence of 6/72, 3rd Floor, Old Rajender Nagar, Delhi in the case pertaining to Birla Udyog CGHS during the same time when the purported specimen/writings of the accused Ashwani Sharma(A-7) were taken in the present case. He was shown the proceedings pertaining to the taking over of specimen signatures/writings of accused Ashwani Sharma (A-7), Ex. PW53/B-230 (colly.). By pointing out specifically a particular page of the aforesaid proceedings, the witness was asked that at the top of the page it is mentioned "Sanjay Kumar S/o Lala Ram D-O-B 10.11.1964 R/o 6/72, 3rd Floor, Old CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 94 of 186 ) CNR No. DLCT110004002019 Rajender Nagar, Delhi, RC No. BD1/E/2005/0013 dated 14.06.2006", what he has to say? The witness (PW60) has answered as under:-
"At that time there was a shortage of papers at the time of taking the specimen signatures/writings, therefore, certain loose sheets having the particulars of said Sanjay Kumar, as narrated herein above, were used in the present case for taking over the specimen signatures/writings of the accused Ashwani Sharma. I have struck the name of said Sanjay Kumar by using the pen which was already available on the said page and the particulars of accused Ashwani Sharma were mentioned by me in my handwriting. I forget to correct the RC Number pertaining to the Birla Udyog Society and the date of birth and the address of said Sanjay Kumar".
103. The said page which was referred to was exhibited as Ex. PW60/X2. PW60 admitted that he had not taken the signature of accused Ashwani Sharma (A-7) on this page; he had made the aforesaid corrections in the name of said Sanjay Kumar as mentioned by him in the presence of the witness Tek Chand; the aforesaid corrections does not have the initial of said Tek Chand (PW58). Since, Tek Chand (PW58) had already signed at the bottom of the page, therefore, he did not take his initial at the place of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 95 of 186 ) CNR No. DLCT110004002019 correction; that on 14.06.2006 the specimen signature/writings of accused Ashwani Sharma(A-7) was taken at only one Ex. PW60/X2. PW60 denied that in the proceedings, Ex. PW53/B-230 (colly.) on various pages at the top the word "LALA" has been corrected as "LATE" or that as and when the specimen signatures/writings of an accused is taken, normally the accused is asked to sign the said proceedings at the bottom also as a token of that his specimen signatures have been taken. PW60 further admitted that the signature of accused Ashwani Sharma(A-7) as a token of endorsement of taking over of his specimen signatures/writings have been taken only on few pages i.e. from S-441 to S-452 and not on the rest of the pages.
104. I have perused the proceedings of taking over of specimen signatures/handwritings pertaining to the accused Ashwani Sharma(A-7) ExPW53/B-230. A careful perusal of the same would reveal that there is a correction in the " date" and the word " Late" almost on each and every page of the said proceedings. During the defence evidence led on behalf of the accused Ashwani Sharma(A-7), the proceedings ExDW1/A (colly) of taking over of specimen CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 96 of 186 ) CNR No. DLCT110004002019 signatures and writings of one person namely Sanjay Kumar s/o Lala Ram in the case bearing RC.BD1/E/2005/0013 ( Birla Udhyog Society) were produced. The prosecution has not denied the said proceedings ExDW1/A (colly). It is also evident that in that case also, Sh. Ram Kunwar Singh(PW60) was the IO.
105. Coming back to the proceedings ExPW53/B-
230, pertaining to the accused Ashwani Sharma(A-7) with regard to taking over of his signatures and handwriting, it is evident that one of the said proceedings which appears to have been recorded on 14.6.2006, S-440 ExPW60/X2, the page, which is having the particulars of said Sanjay Kumar s/o Lala Ram, and also the case particulars of Birla Udhyog i.e RC/BD1/E/2005/2013, the IO has changed the name of Sanjay Kumar by pen to Ashwani Sharma s/o late Ram Kishan Sharma, but no correction was made in the particulars of the FIR, as found mentioned in the said page.
106. Thus, in view of my aforesaid discussion, I have no difficulty in arriving at a conclusion that the process of taking over of specimen CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 97 of 186 ) CNR No. DLCT110004002019 signatures/handwriting pertaining to the accused persons is shaky and not free from doubts. There is material contradiction between the testimony of PW58 Tek Chand and PW60 Ram Kunwar Singh, in this regard. Once, the doubt has been created, the benefit would accrue in favour of the accused persons. Thus, the next two stages i.e sending such specimen signatures/handwriting to the GEQD alongwith questioned documents and examination of the same by the GEQD would not be of any help to the prosecution, as taking over of the specimen signatures/handwritings of accused persons itself is in the doubt and not convincing and reliable.
107. Moreover, other evidence as adduced by the prosecution is also not sufficient to convict the accused persons for the alleged offences for which they have been charged. Beyond reasonable doubt is the legal burden of poof required to affirm a conviction in a criminal case. It goes without saying that in a criminal case, the prosecution bears the burden of proving that accused is guilty beyond all reasonable doubts. Meaning thereby, the prosecution must convince the Court by adducing evidence that there is no other reasonable explanation that can come CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 98 of 186 ) CNR No. DLCT110004002019 from the evidence presented at trial. If the aforesaid test is applied to the facts and circumstances of the present case, this court has no difficulty to hold that the case of the prosecution is full of doubts, lapses, infirmities and on the basis of the evidence available on record, the accused persons cannot be held guilty, which is evident from the discussion being made in ensuing para's.
108. In the present case, pursuant to the directions of Hon'ble High Court dated 02.08.2005, initially a Preliminary Enquiry was initiated by the CBI and on the basis of the outcome of the said preliminary Enquiry, a regular case was registered on 30.11.2005. The copy of the FIR ExPW60/A is on the record. As per the column no. 12 of the said FIR, the First Information Report has been given in Annexure II attached with the FIR.
109. Perusal of the Annexure II would indicate that there are clear cut allegations against Ashwani Vig (PW54), Girdhari Lal Chawla (PW56) and Jadgish Kumar Dhingra. For the sake of convenience, the allegations made in the FIR are reproduced as under:
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 99 of 186 ) CNR No. DLCT110004002019 "..... enquiry in respect of Radha Ballabh Group Housing Society Ltd.,bearing registration no. 1517(GH) has revealed that this society was registered on 02.02.1984 and brought under liquidation on 10.08.1989. Enquiry has further revealed that Sh.Narayan Diwakar, the then RCS, Sita Ram Goel, Assistant Registrar, ram Nath, Inspector Grade II, Raj Bhushan Chauhan, Sub Inspector, Sanjeev Bharti, Steno, all officials working in the office of RCS, NCT of Delhi, were parties to a criminal conspiracy alongwith Sh. Devender Mann, Sh. Ashwani Sharma, Sh. Ashwani Vig. Sh. Girdhari Lal Chawla, Sh. Jagdish Kumar Dhingra and other unknown private persons during the year 2003-2004 in the matter of revival of this society...
Enquiry has further revealed that Devender Mann, Contractor, Shri. Ashwini Vig and Shri Ashwani Sharma, brokers illegally took over the control of the affairs of the Society and enrolled 6-7 new members as Executive Committee Members of the Society. They entered into a criminal conspiracy with the aforesaid officials of RCS who revived the Society for illegal consideration. In pursuance of the said criminal conspiracy, false records and affidavits were created and submitted to RCS for reviving the Society.
Enquiry has further revealed that the control of the Societ was illegally transferred for illegal consideration by Shri. Devender Mann to S/Shri Girdhari lal Chawla and Jagdish Kumar Dhingra after having dishonestly revived the Society by false and forged documents.
Enquiry further revealed that the aforesaid officials of RCS including Sh. Narayan Diwakar, the then CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 100 of 186 ) CNR No. DLCT110004002019 RCS were deliberately party to the above conspiracy alongwith Sh. Devender Mann, Sh. Ashwani Sharma, Sh. Ashwani Vig, Sh. Girdhari Lal Chawla, Sh. Jagdish Kumar Dhingra and others unknown in fraudulently reviving this society which had been wound up on 10.8.1989. This society was dishonestly and fraudulently revived on the basis of fake/false documents without proper enquiry/verification and its fake membership list was approved and sent to the Delhi Development Authority for allotment of land with the intention to cause wrongful gain to themselves/others. "
110. From the contents of the FIR itself, it is abundantly clear that Ashwani Vig (PW54), Jagdish Kumar Dhingra and Girdhari Lal Chawla (PW56) were not only named in the FIR but there are clear cut allegations against them but they have not been named as accused persons in the present case for the reasons best known to the IO. Even no cogent explanation has been given by the IO for not making them accused persons. However, in the chargesheet, in para no.22, it was simply stated by the IO that allegations against Ashwani Vig(PW54), Girdhari Lal Chawla (PW56) and Jagdish Kumar Dhingra could not be substantiated, therefore, their names have been mentioned in the column no. 12(i) of the Chargesheet.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 101 of 186 ) CNR No. DLCT110004002019
111. Here it is pertinent to note the cross examination of PW60 regarding investigation carried out by him qua aforesaid three persons, which is being reproduced as under:-
(Recorded on 11-07-2033, at page No. 2&3, XXX done on behalf of accused Ashwani Sharma) "It is correct that three persons Girdhari lal Chawla, Jagdish Kumar Dhingra and Ashwani Vig were named as accused as per the FIR.
It is correct that as per Ex. PW44/C, documents of Radha Ballabh CGHS Limited were handed over by Jagdish Kumar Dhingra to the Preliminary Inquiry Officer Sh. Ghanshyam Rai.
I did not examine Jagdish Kumar Dhingra during the investigation. I had not called him to join the investigation as he was not required. Jagdish Kumar Dhingra was not the member of the society nor he was the member of the Managing Committee. Jagdish Kumar Dhingra was the custodian of the documents through the accused Devender Kumar Mann.
Ques: In what capacity did Jagdish Kumar Dhingra holds the records as their custodian when he was neither the President nor the Secretary of the society?
Ans: It was revealed by Girdhari lal Chawla and Ashwani Vig that he had taken the records after the society was revived on a deal for further process of material but in the meantime the PE was registered and documents were seized from him.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 102 of 186 ) CNR No. DLCT110004002019 Ques: As per your investigation, were Girdhari lal Chawla, Jagdish Kumar Dhingra and Ashwani Vig are part of the deal entered into the devender Kumar Mann?
Ans: Girdhari lal Chawla and Ashwani Vig were present while the discussion with Devender Mann was made and documents were handed over by him. Since, the role of all three persons did not surface, therefore, the statement of Girdhari lal Chawla and Ashwani Vig were recorded under Section 161 Cr.P.C. as well as 164 Cr.P.C. by a Magistrate. The same is placed on record also.
It is wrong to suggest that I have deliberately not investigated Jagdish Kumar Dhingra as I wanted to protect him for the reasons best known to me.
I cannot say as to when the last election of the society was held prior to taking over the records seized from Jagdish Kumar Dhingra. Vol. All the records seized have been filed before the Hon'ble Court after GEQD opinion.
Ques: As per your charge-sheet you have mentioned "after the revival of the society Devender Mann sold the society to Girdhari Lal Chawla and Jagdish Kumar Dhingra for illegal consideration" Whether the said statement mentioned in your charge-sheet is correct or incorrect?
Ans: That is a matter of record.
Court ques: Did Jagdish Kumar Dhingra and Girdhari lal Chawal had purchased the society for consideration?
Ans: Initially, it surfaced that the money was involved but later on there was no evidence to the effect that the society was sold by accused Devender Mann to Girdhari lal Chawla and Jagdish Kumar Dhingra for consideration.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 103 of 186 ) CNR No. DLCT110004002019 It is correct that despite the aforesaid factual position as replied by me, I did not interrogate or investigate Jagdish Kumar Dhingra.
It is nothing on record to suggest that when Jagdish Kumar Dhingra took over the records from Devender Mann, any writing in that regard took place."
(Recorded on 11-07-2033, at page No. 7&8) "During the course of my investigation nothing has come on record to suggest that Girdhari Lal Chawla was the President or member of the Managing Committee or Member of the Society at any point of time.
I do not remember whether I had taken the specimen handwriting or signature of Girdhari Lal Chawal during the course of investigation.
It is correct that I had also obtained four rubber stamps of Radbha Ballabh CHGS which was taken into custody by Sh. Ghansham Rai from Sh. Jagdish Kumar Dhingra whose stamp impression have been marked at D-3/5 and D-3/6.
Ques: Did you inquire from Girdhari Lal Chawla during the course of the investigation as to in what capacity did he sign the stamp impression marked D-3/5 and D-3/6 on the pages already Ex. PW44/D-1 and Ex. PW44/D-2?
Ans: At the time when the aforesaid stamps were handed over to the PEO by Jagdish Kumar Dhingra at that time signature of Girdhari Lal Chawla were also taken. I cannot say as to in which capacity the signatures of Girdhari Lal Chawla were taken.
Ques: From where and how did you take the specimens of the stamp impression marked as S-911 to S- 913, S-914 to S-916 and S-917 to S-919?
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 104 of 186 ) CNR No. DLCT110004002019 Ans: It is correct that the specimens of the stamp impression were taken from the stamps seized by Sh. Ghansham Rai from Sh. Jagdish Kumar Dhingra in the presence of independent witness.
The file placed at D-22, already Ex. PW7/G and Ex. PW60/AD was seized from the office of RCS vide seizure memo already Ex. PW44/B. The aforesaid is having Vol. I, II, III and IV as seized from the office of RCS.
It is correct that the stamps which were taken from Jagdish Kumar Dhingra were with me at the time when the aforesaid file placed at D-22 was sent to GEQD for examination.
It is wrong to suggest that the aforesaid file was stamped by me with the stamp of the society and then the same was sent to GEQD for examination."
112. From the aforesaid cross examination of PW60, it is abundantly clear that the documents and the rubber stamps pertaining to the present society were recovered by PW44 Ghan Shyam Rai from the possession of Jagdish Kumar Dhingra. It has also come on the record that Girdhari Lal Chawla (PW56) has also witnessed the handing over of the documents to PW44 Ghan Shyam Rai by Jagdish Kumar Dhingra but it has not been explained as to in what capacity the documents and the rubber stamps were in the possession of Jagdish Kumar Dhingra. As per the IO, Jagdish Kumar Dhingra was neither the member of the present society nor he was the office bearer of the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 105 of 186 ) CNR No. DLCT110004002019 Managing Committee of the Society. In the background of the fact that, aforesaid persons were named in the FIR itself, which came to be registered on the basis of the outcome of Preliminary Enquiry conducted by PW44 Ghan Shyam Rai, it was the duty of the prosecution to explain beyond reasonable doubt the conduct and the role of the aforesaid persons particularly Jagdish Kumar Dhingra, which is not there.
113. Further, one of the allegations made by the prosecution is that accused Deveder Mann (A-6) has sold the present society to Jagdish Kumar Dhingra for a consideration but according to the IO, later on it was revealed that no such money transaction was involved. Even if, accused Devender Mann(A-6) had sold the society with or without consideration to Jagdish Kumar Dhingra and subsequently, documents pertaining to the society were found in the possession of Jagdish Kumar Dhingra, in that eventuality the IO should have at least examined and interrogated Jagdish Kumar Dhingra during the investigation, knowingly well that he is named accused in the FIR. But, this was admittedly not done again for the reasons best known to the IO. There is nothing on record suggesting to on CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 106 of 186 ) CNR No. DLCT110004002019 what basis a clean chit was given by the IO to Jagdish Kumar Dhingra and other persons, who were named in the FIR.
114. It is also alleged that the aforesaid transaction took place in the presence of Girdhari Lal Chawla (PW56) and Ashwani Vig (PW54) but they have not supported the case of prosecution. Rather, during their deposition when their attention was drawn towards the accused Devender Mann(A-6), present in the court, PW54 Ashwani Vig denied the suggestion that accused Devender Mann(A-6) is the same person as referred to by him during his examination in chief. He categorically stated that he does not know this accused (Devender Mann A-6). Similarly, PW56 Girdhari Lal Chawla, during his cross examination, when he was asked to identify accused Devender Mann (A-6), he could not identify the accused Devender Mann(A-6) as the same Devender Mann, as referred to by him .
115. It is true that IO is the master of the investigation and nothing prevents him from placing the persons in column no.12, if there is no evidence against those persons. Even he is not precluded from CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 107 of 186 ) CNR No. DLCT110004002019 making that person a prosecution witness but at the same time it has to be explained logically and within the ambit of law.
116. The record would indicate that out of aforesaid three persons namely Ashwani Vig (PW54), Girdhari Lal Chawla (PW56) and Jagdish Kumar Dhingra, the name of two persons found mentioned in the list of witnesses filed alongwith the chargesheet. Not only that, it has come on record that during the investigation, the statements of Ashwani Vig (PW54) and Girdhari Lal Chawla (PW56) were recorded u/s 164 CrPC.
117. Again, I may reiterate that it is settled proposition of law that it is within the power of the Investigating Officer to take a call as to who is to be made an accused or a prosecution witness but he has to explain about the reasons of change of decision and that too when person, who is named in the FIR, has been made a prosecution witness. The entire chargesheet is silent on this aspect. There is not even a whisper as to when the aforesaid persons were made prosecution witnesses and when their statements u/s 164 CrPC were recorded. If out of the aforesaid three CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 108 of 186 ) CNR No. DLCT110004002019 persons, two persons namely Ashwani Vig (PW54) and Girdhari Lal Chawla (PW56) were made prosecution witnesses, then there was no occasion for the investigating officer to place them in column no.12 and at the same time to mention their names in the list of witnesses.
118. One may argue that the aforesaid discrepancy is merely an irregularity on the part of the investigating officer and that would not affect the case of the prosecution but things are not so simple. It would be evident during the discussions in ensuing paras as to how the case of the prosecution initially rested on the aforesaid allegations itself and the stock of the evidence available against those accused persons, which goes to the root of the matter.
119. This court is conscious of the fact that in case of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Sometime, there may be highly defective investigation in a case. In that eventuality, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 109 of 186 ) CNR No. DLCT110004002019 should be given to the accused.
120. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. (Karnel Singh v. State of M.P. (1995) 5 SCC 518 , C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567 ).
121. Now, if the aforesaid test is applied to the facts and circumstances of the present case, then it would be difficult to arrive at a conclusion that this is a case of merely defective investigation. Rather, it is abundantly clear that the present case is lacking fair investigation and the story of the prosecution is full of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 110 of 186 ) CNR No. DLCT110004002019 doubts, deviations, lapses and non application of the mind which ultimately would extend the benefit of doubt to the accused persons.
122. One of the allegations against the accused Devender Mann (A-6) is that he had purchased the present society from P.P Wadhawa and then sold out the same for a consideration to Girdhari Lal Chawla (PW56) and Jagdish Kumar Dhingra. According to the prosecution, which appears from the record, Ashwani Vig (PW54) is a witness to the aforesaid transaction but both the aforesaid witnesses namely Ashwani Vig (PW54) and Girdhari Lal Chawla (PW56) have not supported the case of the prosecution in this regard.
123. Ashwani Vig has appeared in the witness box and he has been examined as PW54. He deposed that he is doing business of property dealing and he knows Devender Mann, who was not present in the court on that day when his testimony was recorded i.e on 13.03.2020. He has deposed about that Devender Mann contacted him as he was entrusted to purchase the society; he arranged a meeting between P.P Wadhwa and Mr. Mann; Mr. Mann agreed to purchase the society for an amount of Rs 14 Lakh; in the second CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 111 of 186 ) CNR No. DLCT110004002019 meeting they meet privately and he (PW54 Ashwani Vig) has not witnessed the same; for that transaction,Mr. Mann agreed to pay Rs 25 thousand as commission but no such commission was paid to him.
124. Since PW54 Ashwani Vig was resiling from his previous testimony, he was cross examined by Ld. Sr. PP for the CBI. The case of the prosecution which was put to PW54 by way of suggestions was denied by PW54 Ashwani Vig though he admitted to have given a statement u/s 164 CrPC ExPW54/PX-2 to CBI.
125. During the cross examination by the CBI, attention of PW54 Ashwani Vig was drawn towards the accused Devender Mann (A-6) but he had denied that he is the same Devender Mann as referred to him in his examination-in-chief. PW54 categorically denied that he knew this Devender Mann (A-6). From the record, it is evident that on 13.03.2020, accused Devender Mann (A-6) was present in the court but he was not identified by the PW54 Ashwani Vig on specific attention by the Ld. Sr. PP for the CBI and the witness turned hostile even on the identification also.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 112 of 186 ) CNR No. DLCT110004002019
126. Similarly, PW56 Giridhari Lal Chawla deposed that he was doing property dealing work; one property dealer Mr. Arora advised him to invest in the CGHS and took him to the office of Devender Mann; Mr. Mann and Mr. Arora showed him some documents about the society and asked him to become a member of the society; CBI Seized the papers ExPW56/A from Jagdish Kumar Dhingra who got the same from from Mr. Devender Mann and Jagdish Arroa; he and his friend Jagdish gave Rs 10 Lakhs each Mr. Mann for becoming the members of the society; his statement u/s 164 CrPC was recorded; receipt memo dated 12.9.2005 ExPW44/C bear his signatures.
127. During the cross examination of PW56 done on behalf of accused Sanjeev Bharti (A-5), Devender Mann (A-6) and Narender Mann (A-8), PW56 Giridhari Lal Chawla replied that he can identify the said Devender Mann if shown to him. The witness was asked to look around in the court and if possible to identify the said Mr.Devender Mann. After seeing around, the witness replied that the Devender Mann (A-6) is not the said Devender Mann whom he had met as Mr. Mann.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 113 of 186 ) CNR No. DLCT110004002019
128. From the testimony of PW54 Ashwani Vig and PW56 Girdhari Lal Chawla, the allegations of the prosecution that the present society was sold out by accused Devender Mann(A-6) for illegal consideration remain unproved. Both the aforesaid witnesses have categorically stated that the person present in the court is not the same Devender Mann with whom the transactions had taken place or they had met.
129. PW44 Ghanshyam Rai, the then DSP, CBI was the officer who had conducted the Preliminary Enquiry in the present case pursuant to the directions of the Hon'ble High Court. PW44 Ghanshyam Rai deposed that during the enquiry he had received various documents through receipt memo from Sh. S.L Garg, Inspector, CBI, Sh. Amar Dass (PW37), Assistant Registrar and Jagdish Kumar Dhingra; vide receipt memo dated 10.08.2005 ExPW44/A, he had received documents from S.L Garg, Inspector CBI; vide memo dated 09.08.2005 ExPW44/B, he had received documents, as mentioned in the memo from Amar Dass (PW37), the then Assistant Registrar, office of the RCS and vide order dated 12.09.2005, he had received documents, as mentioned in the memo from said Jagdish Kumar Dhingra ExPW44/C. He CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 114 of 186 ) CNR No. DLCT110004002019 further deposed that he has also received 4 rubber stamps of the present society namely M/S Radha Ballabh CGHS Ltd., and had obtained stamp impression on plain paper ExPW44/D-1 and D2. He further deposed that after registration of regular case on 30.11.2005, he had handed over the receipt memo's alongwith documents to Sh. R. K Singh (PW60), IO of the present case.
130. During his cross examination on behalf of the accused persons, PW44 Ghan Shyam Rai replied that it took around 4-5 months for conducting Preliminary Enquiry; he had recorded the statement of some of the witnesses except formal witnesses and seizure memo and he had annexed the said statements with the Preliminary Enquiry Report. He further replied that the documents were lying with the Malkhana after he gave his Preliminary Enquiry report as the documents always remain in Malkhana. PW44 has denied the suggestion that documents were not lying in the Malkhana.
131. From the testimony of PW44 Ghan Shyam Rai, two things are clear i.e during the Preliminary Enquiry, PW44 has taken certain documents alongwith CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 115 of 186 ) CNR No. DLCT110004002019 4 stamps of M/S Radha Ballabh CGHS Ltd. from the possession of Jagdish Kumar Dhingra and the same were handed over by him, after registration of the a regular case, to the IO of the present case namely Inspector R.K Singh (PW60).
132. Although, he has stated that he had deposited the Preliminary Enquiry Report alongwith documents with the Malkhana but there is nothing on record suggesting the same. In case the documents alongwith Preliminary Enquiry report were deposited by him with the CBI Malkhana, there was no occasion for him to hand over the same to the IO R.K Singh (PW60). In that eventuality, the documents could have been taken by Insp. R.K Singh (PW60) from the Malkhana and not from PW44 Ghan Shyam Rai, as he had not role in the present matter after he submitted his report of Preliminary Enquiry and same was deposited to the Malkhana alongwith documents. Moreover, no record like Malkhana Register etc was produced before this court.
133. A careful perusal of the aforesaid memo's, as referred to by PW44 Ghan Shayam Rai i.e ExPW44/A, ExPW44/B and ExPW44/C, would indicate that on the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 116 of 186 ) CNR No. DLCT110004002019 last page of the aforesaid memo there is endorsement "re-handed over to Sh.R.K Singh in his case RC BD1/2005/E/0015". The said endorsement indicates that documents were handed over by PW44 Ghan Shyam Rai and were taken by Inspector R.K Singh (PW60). During the examination of IO Insp. R.K Singh (PW60), has identified his signatures on the aforesaid memos proving the aforesaid endorsement.
134. Further, PW52 S.K Kashyap deposed that he was posted as Addl. SP in CBI from the year 2005 and upto 03/04/1.2006 and thereafter, he was transferred to Calcutta Branch CBI. He deposed that initially the investigation of the aforesaid case was marked to him after registration of the case dated 30.11.2005 and he had not conducted any investigation in the case; as directed by the then SP, CBI, the aforesaid case was transferred to Insp. R.K Singh (PW60) on 07.1.2006; accordingly he handed over the copy of the FIR, original Case Diary 1 and 2 and unused Case Diary in duplicate to R.K Singh (PW60) vide aforesaid memo dated 03.01.2006, ExPW52/A.
135. As per the testimony of PW52 S.K Kashyap, the investigation of present case was handed over to CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 117 of 186 ) CNR No. DLCT110004002019 R.K Singh (PW60) on 03.01.2006, which is further supported and corroborated by the fact that the handing over of the documents by PW44 Ghan Shyam Rai vide aforesaid endorsement, as referred to herein above on the receipt memos ExPW44/A, ExPW44/B, ExPW44/C on 04.01.2006. Meaning thereby, prior to 03.1.2006, Insp R.K Singh (PW60) was not in picture at all. The Preliminary Enquiry in the present case was initiated pursuant to the order of Hon'ble High Court dated 02.08.2005 and it was concluded by registration of a regular case on 30.11.2005. It is not clear that, till the documents were handed over to IO Insp. R.K Singh (PW60), whether the documents were actually deposited with Malkhana or it remained with PW44 Ghan Shyam Rai, a doubt has been created in this regard also.
136. Now, take the testimony of PW60 Ram Kunwar Singh, he deposed that initially the aforesaid FIR was entrusted to S.K Kashyap (PW52) but subsequently on 02.12.2005, this case was entrusted to him for investigation and accordingly case diary used and blank pages were handed over to him vide handing over memo ExPW52/A which bears his signatures also at point B. the aforesaid deposition of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 118 of 186 ) CNR No. DLCT110004002019 PW60 Ram Kunwar Singh is contrary to the record and the statement of PW52 S.K Kashyap. The record would indicate that the investigation was handed over to PW60 on or after 03.01.2006 and not on 02.12.2005, as deposed by PW60. A careful examination of testimony of PW60 Ram Kunwar Singh ( examination in chief and cross examination) would reveal that the witness is not truthful and his testimony does not inspire confidence of this court and found to be not reliable for the various reasons, as discussed in the succeeding para's.
137. During his examination in chief recorded on 22.03.2023 at page no. 5, PW60 deposed that at the very initial stage, search has been conducted at the office and residence of accused Ashwani Sharma (A-7) in another case registered with EOW and hard disk of their computers were seized; this information was given by DIG, EOW Zone to other branches including CBI, BS&FC, where the present case was registered; search list dated 01.08.2005 carried out by EOW at the aforesaid premises ExPW60/C (colly) is shown to PW60 and he (PW60) identified the signatures of Inspector Naresh Sharma at point 'A' while deposing that he has seen him writing and signing. When the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 119 of 186 ) CNR No. DLCT110004002019 said search list dated 01.08.2005 , admittedly prepared by Inspector Naresh Sharma was given ExPW60/C (colly), objection was taken by accused Ashwani Sharma (A-7) about the mode of prove stating that this is a photocopy.
138. Since, Inspector Ram Kunwar Singh (PW60) is nowhere related to the said search and was not in picture, following Court Question was put to this witness:
Court Question: Whether you ever worked with said Sh. Naresh Sharma in the same branch?
Answer I never worked with him in the same branch but I have seen him signing and writing many times.
Court Question: As you stated that you never worked with him in the same branch, how you could you see him signing and writing?
Answer Many times, I used to visit his office and during that visit I had seen him signing and writing.
Court Question: Can you identify the signature of all the officers working in the CBI at that time where you had made such visits?
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 120 of 186 ) CNR No. DLCT110004002019 Answer: No. But in the present case, I remember.
139. From the aforesaid answers given by PW60 Ram Kunwar Singh, he is claiming to have seen Inspector Naresh Sharma signing and writing many times though he has not worked with him in the same branch. PW60 used to visit the office of Inspector Naresh Sharma and he remembered the signatures of Inspector Naresh Sharma in the present case, although, he could not identify the signatures of the officers working in CBI at that time.
140. But during his cross examination done on behalf of the accused Ashwani Sharma (A-7), recorded on 11.07.2023, PW60 replied that he does not know as to in which branch, Inspector Naresh Sharma was posted and period of his posting; he does not know if Inspector Naresh Sharma is working in BS&FC Branch, Chankya Puri but at that time when he (PW60) was conducting the investigation, he(Inspector Naresh Sharma) was not there. PW60 further replied that he had never worked with Inspector Naresh Sharma and he was hearing his name for the first time on 11.07.2023 when his cross examination was being CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 121 of 186 ) CNR No. DLCT110004002019 recorded. Ld. Defence Counsel further put a question to him, which is as under:-
Ques: I put it to you that during your examination-in chief recorded on 22.03.2023 at page no. 5 you have deposed that you have seen Insp. Naresh Sharma writing and signing and on the basis of which you identify his signatures at point A on the search list, already Ex. PW60/C but today you replied that you do not know Insp. Naresh Sharma and you have heard his name first time today in the court. Which statement of you is correct i.e. Statement recorded on 22.03.2023 or the reply given by you today as recorded herein above?
Ans: My deposition as made on 22.03.2023, as referred to herein above is correct.
Today, I replied that I do not know Insp. Naresh Sharma because I was not able to recollect his name and I missed his name.
141. The aforesaid deposition of PW60 would make it crystal clear that PW60 not only made a contradictory statement but mis-represented the facts before this Court. Initially, he claimed to have familiar and acquainted with the signatures of Inspector Naresh Sharma but later on during his cross examination, he denied even knowing Inspector Naresh Sharma. When he was confronted with his earlier statement, then he again took a U-turn and deposed that deposition as made on 22.03.2023 is correct and his reply given on CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 122 of 186 ) CNR No. DLCT110004002019 11.07.2023 is not correct as he was not able to recollect the name of Inspector Naresh Sharma as he missed it. Such type of clarification is not expected from an officer and that too the IO of the present case. This all has created a serious doubt in the story of prosecution and the testimony of this witness being not trustworthy, is liable to be thrown out outrightly.
142. PW44 Sh Ghan Shyam Rai deposed that in the year 2005, during the preliminary enquiry, he had received various documents through receipt memos from S.L. Garg, Inspector CBI, Amar Das, Assistant Registrar, Office of RCS and Jagdish Kumar Dhingra vide memos ExPW44/A, ExPW44/B and ExPW44/C respectively. PW44 Sh. Ghan Shyam Rai further deposed that after registration of the regular case i.e. RC/BD-1/2005/E/0015 dated 30.11.2005, he had handed over aforesaid receipt memos along with documents to Sh. R.K. Singh, Inspector (BS&FC), CBI (PW60). During his cross examination on behalf of the accused Ashwani Sharma(A-7), PW44 replied that he had recorded the statements of some of the witnesses except formal witnesses to seizure memo and he had annexed the said statements with his preliminary enquiry report.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 123 of 186 ) CNR No. DLCT110004002019
143. PW60 Ram Kunwar Singh during his examination in chief deposed that the record seized vide receipt memo ExPW44/C was handed over to him after registration of FIR and the receipt memo bears his signature at point C. During his cross examination on behalf of the accused Ashwani Sharma (A-7) recorded on 11-07-2023, PW60 replied that the material collected during the course of preliminary enquiry was received by him but it did not contain the statements of the witnesses recorded during the course preliminary enquiry. PW60 admitted to have collected the documents seized by the Preliminary Enquiry Officer from various sources including private persons.
144. From the testimonies of PW44 Ghanshyam Rai and PW60 Ram Kunwar Singh, it is crystal clear that whatever documents were collected during the preliminary enquiry the same were handed over to the PW60, except one variation that PW44 is claiming to have handed over the statements of witnesses also record by him during the course preliminary enquiry, whereas the same has been denied by PW60. But the record would indicate that said documents were not CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 124 of 186 ) CNR No. DLCT110004002019 filed by the IO PW60 along with the charge sheet. Here it is pertinent to refer to the testimony of PW60 in this regard. For the sake of convenience the relevant portion of the cross examination done on behalf of the accused Ashwani Sharma (A-7) of PW60 is being reproduced as under:-
" It is correct that on the document already Ex. PW44/C at serial no. 2, there is a reference of resignations in respect of the society which was received by the Preliminary Inquiry officer. I do not remember if I had filed the aforesaid resignations along with the charge- sheet or not. It is wrong to suggest that I have not deliberately placed the aforesaid resignations on the judicial record along with the charge-sheet and I am deliberately avoiding the answer that no such resignations were filed.
It is correct that on the document already Ex. PW44/C at serial no. 6, there is a reference of audit report for the period 2003-2004 in respect of the society which was received by the Preliminary Inquiry officer. I do not remember if I had filed the said audit report along with the charge-sheet or not. It is wrong to suggest that I am deliberately avoiding to answer that I had not filed the said audit report as I had not filed the audit report deliberately along with the charge-sheet.
It is wrong to suggest that I have not deliberately filed the said audit report along with the charge-sheet because from the audit report it could have been easily find out as to who has been President, Secretary, Treasurer of the society during the period 2003-2004.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 125 of 186 ) CNR No. DLCT110004002019 It is further wrong to suggest that the said audit report could have made it very clear that during the year 2003- 2004, Jagdish Kumar Dhingra and Girdhari Lal Chawla were in the complete control of the society.
It is correct that on the document already Ex. PW44/C at serial no. 16, there is a reference of receipts issued to members of the society from page 1 to 102 in respect of the society which was received by the Preliminary Inquiry officer. I do not remember if I had filed the said receipts along with the charge-sheet or not. It is wrong to suggest that I am deliberately avoiding to answer that I had not filed the said receipts as I had not filed the receipts deliberately along with the charge-sheet.
It is wrong to suggest that I had deliberately not filed the receipts as the same contained the writings of Jagdish Kumar Dhingra and Girdhari Lal Chawla and I wanted to protect them."
145. It is not the case of the prosecution that the aforesaid documents, as referred to during the cross examination of PW60 Ram Kunwar Singh, have been filed by them along with the charge sheet. It is true that it is also within the power of the IO to take a call as to which documents are to be relied upon by him and which are not. But in the present case it is not so. The said documents were duly collected by him from the preliminary enquiry officer PW44 as admitted by him. In that eventuality there was no occasion for him not to file the said documents on record. It is not the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 126 of 186 ) CNR No. DLCT110004002019 case of the IO that he had deposited the said documents with Makhana, CBI. It has not been clarified as to what happened to those documents after these were collected by him from the preliminary enquiry officer PW44 Ghanshyam Rai. The concern shown by the accused person in this regard can not be ignored.
146. Further, one of the allegations against the accused Ashwani Sharma (A-7) and Devender Mann (A-6) is that they both had exchanged conversations through their mobile phones 9811016781 and 9811211548 used by them respectively. During the examination of PW60 he was shown a letter no. Nil dated 03.11.2006 of Hutch Company regarding call details in respect of Ashwani Sharma (A-7) bearing mobile no. 9811016781 and Devender Mann (A-6) bearing mobile no. 9811211548 containing page 1 to
24. In this regard PW60 deposed that this letter was provided by Sh. Anu Anand, Executive - Legal and Regulatory, Hutchinson, ESSAR Mobile services Ltd., C-45, Okhla Phase-II, New Delhi-110020. The said letter is exhibited as Ex. PW60/Q(colly.). During investigation, it was revealed that Ashwani Sharma (A-7) and Devender Mann (A-6) had exchanged CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 127 of 186 ) CNR No. DLCT110004002019 conversations through these mobile numbers. But prosecution has failed to prove that there was any communication between the aforesaid accused persons as alleged. Here it would be relevant to look at the cross examination of PW60 regarding the above allegation, which is being reproduced as under:-
" At this stage, the witness is confronted with a document already exhibited as Ex. PW60/Q (colly.) and witness is asked whether it is correct that the above said document is not addressed to him (witness) and it does not bear his signature.
After going through the same, the witness says, it is correct that the aforesaid document does not bear my signature and it has not been addressed to him. Vol. It is addressed to SP, CBI. Since Inspector is not authorized to communicate with such type of authority, therefore, the said document was addressed to SP, CBI.
It is correct that the aforesaid document was not marked to me by SP, CBI through an endorsement.
It is correct that the documents which were sent along with the set of document Ex. PW60/Q (colly.) do not bear any stamp or signatures of anybody from Hutchinson, Essar Mobile Services. It is also correct that along with the aforesaid document, we did not receive any certification u/s 65B Indian Evidence Act.
It is correct that I did not examine Sh. Anu Anand, Executive of Hutchinson, Essar Mobile Services who had sent the said document. It is also correct that I did not collect the customer application form in respect of the mobile phone referred to in Ex. PW60/Q (colly.).
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 128 of 186 ) CNR No. DLCT110004002019 It is wrong to suggest that the document Ex. PW60/Q (colly.) is a fabricated document.
It is wrong to suggest that accused Devender Mann was not using the mobile phone 9811211548 at any point of time as alleged. It is incorrect to suggest that there was no evidence on record to the effect that accused Devender Mann had exchanged any conversations with Ashwani Sharma through the said mobile phone or for that matter through any other mode"
147. From the aforesaid testimony of PW60 Ram Kunwar Singh, it is clear that prosecution made an unsuccessful attempt to prove the letter dated 03.11.2006, given on behalf of the Hutchison Essar Mobile Services Ltd., through PW60 Ram Kunwar Singh, who is the IO of the present case, by giving ExPW60/Q (colly). It is a well settled proposition of law that merely giving an exhibit mark to any document does not mean that the document stands proved. A document has to be proved as per Indian Evidence Act. Sh.Anu Anand, Executive, Legal and Regulatory of the aforesaid is the author of the said letter dated 03.11.2006. He was not examined or interrogated by the CBI. Not only that, the Customer Application Form (CAF) pertaining to the mobile number 9811016781 ( belonging to the accused Ashwani Sharma A-7) and 9811211548 ( belonging to accused Devender Mann (A-6)) have not been CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 129 of 186 ) CNR No. DLCT110004002019 collected. Further, the requisite certificate u/s 65 (B) of Evidence Act was also not taken. In the absence of the same, the aforesaid documents which were given ExPW60/Q (Colly) would not be of any help to the prosecution. Thus, the prosecution has further failed to prove the allegation that there was a conversation between the accused Ashwani Sharma (A-7) and Devender Mann (A-6) by using the aforesaid mobile phones.
148. I have considered the rival submissions and perused the record. Before I proceed further, it would be apposite to remind ourselves that this is a case where there is no eyewitness account of the forgery. Prosecution seeks to bring home the charge levelled on the accused persons by relying on certain circumstances. As to when on strength of evidence circumstantial in nature conviction can be lawfully sustained, the law is well settled that the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established; these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so far complete that there is no escape from the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 130 of 186 ) CNR No. DLCT110004002019 conclusion that within all human probability the crime was committed by the accused; the circumstances should be consistent only with the hypothesis regarding the guilt of the accused; and they must exclude every possible hypothesis except the one to be proved. Further, the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby that they 'must' or 'should' and not 'may be' established ( Sharad Birdhichand Sarda v. State of Maharashtra (1984)4 SCC
116.)
149. In addition to the above, while dealing with a criminal trial, the Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused 'must be' and not merely 'may be' guilty before the Court proceeds to convict him. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973)2 SCC 793, Hon'ble Supreme Court, elaborating upon the above principle, observed that the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
150. Adding on to the aforesaid legal principles, in Devi Lal v. State of Rajasthan(2019) 19 SCC 447 a three-
judge Bench of Hon'ble Supreme Court, held that in a CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 131 of 186 ) CNR No. DLCT110004002019 case based on circumstantial evidence where two views are possible, one pointing to the guilt and the other to his innocence, the accused is entitled to the benefit of one which is favourable to him. The relevant portion of the judgment is extracted below:--
"18. ... Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. ... in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him."
151. In light of the discussion above, I have no hesitation in holding that the prosecution has failed to prove a chain of incriminating circumstances as to conclusively point out that in all human probability it was the accused persons or any one of them, and no one else, who had committed the offences in question. In a nutshell, it is a case where the prosecution failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required for conviction on a criminal charge.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 132 of 186 ) CNR No. DLCT110004002019 CONSIDERATION OF THE SUBMISSIONS MADE ON BEHALF OF THE ACCUSED PERSONS (PUBLIC SERVANTS) REGARDING ISSUE OF SANCTION TO PROSECUTE THEM
152. On this front, the thrust of the arguments on behalf of the accused persons was three folds, Firstly, as there is no sanction under section 197 CrP.C, therefore accused persons can not be prosecuted for the offences under Indian Penal Code and consequently they are entitled to be acquitted even for the offences under Prevention of Corruption Act, 1988 also. Secondly, the sanction given under section 19 of the Prevention of Corruption Act, 1988, is not a valid sanction as there was no application of mind by the competent authority while granting the sanction and Thirdly, the authorities, who had granted the sanction in the present case, were not competent Authority to accord sanction to prosecute the accused persons.
There is no Sanction under Section 197 Cr.P.C.
153. In the present case the accused persons, who were public servants, at the time of the commission of the offences in question, have been charged for the offenses u/s 120 B r/w 420/511 r/w 419, 468,471 IPC and u/s 13(1) (d) punishable u/s 13 (2) r/w section 15 of P.C Act, 1988. It is an admitted case of prosecution CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 133 of 186 ) CNR No. DLCT110004002019 that no sanction has been obtained under section 197 Cr P.C.
154. The learned counsels appearing for the said accused persons vehemently argued that the sanction under Section 197 of the CrPC was mandatory to prosecute the accused persons for the offences under the IPC. They would submit that the accused persons cannot be prosecuted for the offences under IPC without valid sanction under Section 197 of the CrPC and in these circumstances continuation of the criminal prosecution for the offences under the IPC would be nothing but a gross abuse of the process of law and would lead to serious miscarriage of justice. It was further stated that in case this court comes to the conclusion that sanction under section 197 was required, in that eventuality the charges under the P.C Act, 1988, would also not stand as in the absence of criminal conspiracy, substantive offences would go automatically. After placing the reliance on decision of the case of Rakesh Bhatnagar (supra), it was argued that the acts of the accused persons are squarely covered with terminology "offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty," as available under CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 134 of 186 ) CNR No. DLCT110004002019 aforesaid provision of law.
155. On the contrary, Ld Sr PP for the CBI submitted that in view of the judgment of Hon'ble Supreme Court in the case of Satwant Singh (supra), there was no requirement to have the sanction under section 197 CrP.C. as sanction under section 19 of the P.C. Act 1988 is there. She further submitted that even this court, in one of the similar cases, has already rejected the aforesaid contention as made on behalf of the accused persons.
156. Section 197 of the CrPC reads as under:
"197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 135 of 186 ) CNR No. DLCT110004002019 the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Penal Code, 1860. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub-
section (3), no court shall take cognizance of any CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 136 of 186 ) CNR No. DLCT110004002019 offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
157. Section 197 of the Cr PC provides that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State Government is CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 137 of 186 ) CNR No. DLCT110004002019 accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.
158. Ld counsels appearing for the accused persons have relied upon numbers of judgments as noted previously. The law pertaining to the grant of sanction under Section 197 is no longer res integra. It is not denied that one of the essential requirements of Section 197 Cr. P.C. is that an accused should be alleged of having committed an offence while acting or purporting to act in discharge of his official duty. Almost all judicial precedents on Section 197(1) have turned on these words. But there must be a reasonable connection between the act and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
159. In the case of A. Srinivasulu (supra), as relied upon by the accused persons, it was held:-
"29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 138 of 186 ) CNR No. DLCT110004002019 description contained in the Twelfth item of Section 21 of the IPC, were 'public servants' within the definition of the said expression under Section 21 of the IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)
(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under the IPC and the PC Act."
160. It is true that this court in a similar case , had rejected the aforesaid plea as raised by the accused persons for the reasons as recorded therein and the final observation made was as under:-
"The present offences committed by the accused persons can not be treated as connected with discharge of their official duties. Therefore there is no requirement of sanction under section 197 Cr P.C".
161. But now there is change of circumstances due to the judgment of our own high court, wherein it was categorically held that in such types of cases, in addition to the sanction under section 19 of P.C. Act,1988, sanction under section 197 CrP.C. is also required to prosecute the accused for the offences under Indian Penal Code. In that case the main allegation also appears to be illegal revival of a group housing society. The said judgment is squarely and CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 139 of 186 ) CNR No. DLCT110004002019 directly applicable to the facts and circumstances of the present case and can not be ignored and this court cannot have a different interpretation from that of Hon'ble High Court.
162. In the case of Rakesh Bhatnagar(supra), It was held that :-
"62. According to the ratio laid down in A. Srinivasa Reddy (supra), the individual against whom the allegations are made, ought to be a 'Public Servant' whose appointing authority is the Central Government or the State Government to entitle him to the protection under section 197 Cr. P.C. and not to every public servant. In the present case, undoubtedly, the petitioner is a DANICS officer and his appointing authority is the Central/State Government. There is equally no doubt in the mind of this Court that the allegations against the petitioner are of offences in the discharge of his official duties and as such the rigors of N.K Ganguly (supra) shall apply on all fours and it would be imperative for the prosecution to have obtained the sanction under section 197 Cr. P.C. As such, it is apparent that the prosecution of the petitioner for the aforesaid offences in the absence of the appropriate sanction under section 197 Cr. P.C. would be untenable.
63. Mr. Goel did not dispute the fact that there is no sanction under section 197 Cr. P.C. obtained from the Competent Authority against the petitioner. Having regard to the said admission, and also considering the ratio laid down by the aforesaid CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 140 of 186 ) CNR No. DLCT110004002019 authoritative judgments of the Supreme Court, this Court quashes the charges framed against the petitioner under sections 420, 468 and 471 read with 120B IPC."
163. Having noted the aforesaid proposition of law on the requirement of sanction under section Section 197 of the Cr PC, it is to be seen what is the effect in the present case for not having the said sanction .
164. If we look at the provision of section 197 CrP.C., it is available only to such public servants, whose appointing authority is either the Central Government or the State Government and not to every public servant.
165. In the case of A. Sreenivasa Reddy v. Rakesh Sharma, (2023) 8 SCC 711 , it was held by Hon'ble Supreme Court that:-
"41. Sub-section (1) of Section 197CrPC shows that sanction for prosecution is required where any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Article 311 of the Constitution lays down that no person, who is a member of a civil service of the Union or State or holds a civil post under the Union or State, shall be CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 141 of 186 ) CNR No. DLCT110004002019 removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of Section 197CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant."
166. Adverting to the case in hand, there are eleven accused persons, who were chargesheeted by the CBI, out of which six accused persons namely Narayan Diwakar(A-1), Sita Ram Goyal(A-2), Ram Nath(A-3), Raj Bhushan Chauhan(A-4), Sanjeev Bharti (A-5) and P.K Thirwani(A-11) are the public servants. During the pendency of the present case, accused Sita Ram Goyal (A-2) and Ram Nath (A-3) expired and proceedings against them were abated vide order dated 03.10.2012 and 03.02.2020 respectively, of the Ld. Predecessor of this Court. That being so, as far as public servants are concerned, only four accused persons namely Narayan Diwakar(A-1), Raj Bhushan Chauhan(A-4), Sanjeev Bharti(A-5) and P.K Thirwani (A-11) are facing trial.
167. As far as accused Narayan Diwakar(A-1) is concerned there is no dispute that his appointing authority was either central government or state CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 142 of 186 ) CNR No. DLCT110004002019 government, therefore, the protection as available under section 197 CrP.C. is to be granted to him. Rest of the accused persons namely Raj Bhushan Chauhan(A-4), Sanjeev Bharti(A-5) and P.K Thirwani(A-11) are neither the appointee of central government nor of state government. Thus, they are not entitled to the said benefit.
168. In view of my aforesaid discussion the charges against the accused Narayan Diwakar (A-1) for the offences under section 120 B r/w 420/511 r/w 419, 468,471 IPC are liable to be dropped for want of valid sanction under section 197 CrP.C. The application moved on behalf of the accused Narayan Diwakar(A-1) u/s 197 CrPC is disposed off accordingly.
EVEN THE SANCTION UNDER SECTION 19 OF PC ACT,1988 IS NOT A VALID SANCTION AS THERE IS NO APPLICATION OF MIND
169. Here it is pertinent to mention that in the present case, it is not denied that at the time when the cognizance of offences was taken, accused Narayan Diwakar (A-1) was no longer in service and he had already retired. That being so in terms of section 19 of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 143 of 186 ) CNR No. DLCT110004002019 prevention of corruption act 1988 (prior to its amendment), no sanction under section 19 P.C. Act 1988, was required to prosecute a retired public servant.
170. In the case of CBI v. B.A. Srinivasan, (2020) 2 SCC 153, it was held by Hon'ble Supreme Court that:-"
"13. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing "that the protection available to a public servant while in service, should also be available after his retirement".
That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act."
171. Accused persons namely Raj Bhushan Chauhan (A-4), Sanjeev Bharti(A-5) and P.K Thirwani(A-11) have led defence evidence in their defence, whereby the files as maintained in the office of respective sanctioning authority, pertaining to the grant of sanction, were summoned. By referring to the same Ld defence counsel tried to establish that there CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 144 of 186 ) CNR No. DLCT110004002019 was no application of mind while granting the sanction, therefore the same is liable to be rejected. It was vehemently argued that the sanction orders were just signed mechanically on the basis of draft orders sent by the CBI and requisite material was never sent for perusal of the sanctioning authority as required under their own CBI manual.
172. Per contra, Ld Sr PP for the CBI submitted that the records of the present being voluminous, therefore it was not sent alongwith the SP'S report but the IO of the present case himself had taken personally the entire material to sanctioning authority and the same was perused by them and sanction was granted, therefore, the contention of the accused persons that there was no application of mind while granting the sanction , has to be rejected.
173. Since the requirement of obtaining sanction is contained in Section 19(1) of the PC Act, it would be proper to reproduce the same. For our purposes, reproduction of sub-section (1) of Section 19 of the PC Act shall suffice which I reproduce herein below:
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 145 of 186 ) CNR No. DLCT110004002019 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
174. As is clear from the plain language of the said section, the court is precluded from taking "cognizance" of an offence under certain sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. Further, in case cognizance has already been taken and later on it is revealed that there is no 'Valid Sanction', in that case proceedings are to be dropped.
175. The public policy behind providing immunity from prosecution without the sanction of the State is to insulate the public servant against harassment and CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 146 of 186 ) CNR No. DLCT110004002019 malicious prosecution. This protection is only to ensure that a public servant serves the State with courage, confidence, and conviction. Statutory provisions requiring sanction before prosecution either under Section 19 of the PC Act also intend to serve the very same purpose of protecting a public servant. These protections are not available to other citizens because of the inherent vulnerabilities of a public servant and the need to protect them. However, the said protection is neither a shield against dereliction of duty nor an absolute immunity against corrupt practices. The limited immunity or bar is only subject to a sanction by the appointing authority.
176. The Hon'ble Apex Court in the case of Mohd.
Iqbal Ahmed v. State of Andhra Pradesh (1979 Cri LJ 633) has observed as under:
"The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."
177. The Privy Council in the case of Gokul-chand Dwarkadas Morarka v. The King (AIR 1948 PC 82) has observed as under:
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 147 of 186 ) CNR No. DLCT110004002019 "The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government has an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient."
178. In the case of Bhagwan Mahadeo Sathe Versus State and Another, 2010 SCC OnLine Bom 2350, it was held that:-
" 12. In the present case, the record indicates that the draft sanction letter was forwarded to the sanctioning authority along with the other papers. The actual sanction which is granted is verbatim reproduction of the draft sanction. This also clearly discloses that there was a non-application of mind while granting sanction to prosecute. Under all these circumstances, in my view, the prosecution has failed to establish its case beyond reasonable doubt. The judgment and order passed by the Sessions Court is set aside and the Appellant is acquitted for the offences of which he is charged. The Appellant is on bail. His bail bond shall stand cancelled. Appeal is, accordingly, allowed and disposed of."
179. In the case of CBI v. Ashok Kumar Aggarwal, (supra), it was held that:-
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 148 of 186 ) CNR No. DLCT110004002019 " 13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority.
This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 149 of 186 ) CNR No. DLCT110004002019 granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non- application of mind.
16. In view of the above, the legal propositions can be summarised as under:
16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
180. In the case of the State of T.N. v. M.M. Rajendran ,(1998) 9 SCC 268, Hon'ble Supreme Court dealt with a case under the provisions of the 1988 Act, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 150 of 186 ) CNR No. DLCT110004002019 wherein the prosecuting agency had submitted a very detailed report before the sanctioning authority and on consideration of the same, the competent authority had accorded the sanction. Hon'ble Supreme Court found that though the report was a detailed one, however, such report could not be held to be the complete records required to be considered for sanction on application of mind to the relevant material on record and thereby quashed the sanction.
181. Accordingly, CBI immediately issued a circular dated 6-5-1999 to give effect to the observations made in the said judgment and directed that all the investigating officers to give strict adherence to the said observations made by Hon'ble Supreme Court. The CBI Manual was amended accordingly, adding Para 22.16, wherein it was directed that in view of the said judgment in M.M. Rajendran (1998) 9 SCC 268 , it was imperative that along with the SP's report, the branches must send the copies of all the relied upon relevant material "including the statements of witnesses recorded by the investigating officers under Section 161 CrPC as well as statements under Section 164 CrPC recorded by the Magistrate to the authority competent to grant sanction CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 151 of 186 ) CNR No. DLCT110004002019 for prosecution". Further, the investigating officer concerned shall be deputed to the competent authority to produce the relevant material for perusal of the competent authority and this fact be recorded in the case diary of the case concerned.
182. Para 22.16 of the CBI Manual reads as under:
"22.16. On completion of investigation in a case covered in Items 22.15.1 and 22.15.2, even CBI shall send its report to the administrative authority along with relevant statements of witnesses recorded during investigation and the documents. The judgment of the Supreme Court in the State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268 and Circular No. 21/33/98-PD dated 6-5-1999 issued by the Policy Division are also referred to in this regard."
183. In the case of Vineet Narain v. Union of India [(1998) 1 SCC 226, to prevent the erosion of the rule of law, Hon'ble Supreme court issued a large number of directions to various authorities. Relevant part of the directions issued to CBI reads : (SCC p. 270, para 58) "58. (I)(12) The CBI Manual based on statutory provisions of CrPC provides essential guidelines for the CBI's functioning. It is imperative that CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 152 of 186 ) CNR No. DLCT110004002019 officials concerned."
184. Thus from the above, it is evident that the CBI Manual, being based on statutory provisions of CrPC, provides for guidelines which require strict compliance. More so, in view of the fact that the ratio of the judgment of Hon'ble Supreme Court in M.M. Rajendran case has been incorporated in the CBI Manual, the CBI Manual itself is the best authority to determine the issue at hand. The court has to read the relevant provisions of the CBI Manual alone and no judgment of the Hon'ble Supreme Court can be a better guiding factor under such a scenario.
185. Adverting to the case in hand, as noted herein above, qua the sanction under section 19 of P.C.Act,1988, as far as public servants are concerned, only three accused persons namely Raj Bhushan Chauhan(A-4), Sanjeev Bharti (A-5) and P.K Thirwani (A-11), where sanction under section 19 of P.C.Act,1988, is a relevant factor, are facing trial. Their sanctioning authorities have been examined by the prosecution.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 153 of 186 ) CNR No. DLCT110004002019
186. PW45 Ramesh Narayan Swami deposed that during the period from 31.5.2006 to 30.11.2007, he was posted as Chief Secretary, GNCT of Delhi and accused P.K Thirwani (A-11) was working as Superintendent in the Directorate of Education GNCTD at that time,when he accorded the sanction to prosecute the accused P.K Thirwani (A-11). He further deposed that a report having the brief facts of the case, gist of statement of witnesses and the evidence, analysis of evidence along with other documents was received by him and after going through the same, he had accorded the sanction ExPW45/A to prosecute the accused P.K Thirwani (A-11).
187. During the cross examination, he has denied that he was not competent to accord that sanction or that he had signed the sanction order without going through any documents or statement of witnesses. He has also denied that he had signed a draft sanction order sent by CBI. Regarding the perusal of the Audit Report by him, allegedly given by accused P.K Tirwani (A-11), PW45 replied, he does not remember as to whether the said audit report was shown to him or not before he granted the sanction.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 154 of 186 ) CNR No. DLCT110004002019
188. Accused P.K Thirwani (A-11) has examined one Sh.Yatin Thapar in his defence as DW3, who produced the relevant file ExDW3/A (colly) having the proceedings/correspondences maintained in the office of Directorate of Vigilance, GNCTD pertaining to the sanction which was granted in respect of accused P.K Thirwani (A-11).
189. DW3 Yatin Thapar has not been cross examined by the prosecution despite the opportunity. Meaning thereby, prosecution is not disputing the record/file ExDW3/A, produced in the defence of the accused.
190. A perusal of the aforesaid file ExDW3/A ( colly) would indicate that vide communication dated 27.09.2006, CBI had made a request to the Chief Secretary cum CEO, Directorate of Vigilance, Govt of NCT of Delhi, that a sanction u/s 19 of the PC Act may be accorded from the competent authority for prosecuting the accused Sita Ram Goyal (A-2, proceedings already stand abated), Ram Nath (A-3, proceeding already abated), R.B Chauhan (A-4), Sanjeev Bharti (A-5) and P.K Thirwani (A-11). In the said communication it has also been specifically CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 155 of 186 ) CNR No. DLCT110004002019 mentioned that along with the SPs report, draft sanction orders are also being sent. The record would further indicate that one single SP report was sent. As per the index of the said report, the draft sanction orders pertaining to the aforesaid accused persons, calendar of evidence (oral), calendar of evidence ( documentary) and statement of accused persons were also sent.
191. The calendar of evidence (Oral) speaks about the name of the witness and the documents/record to be proved by him. The calendar of evidence (documentary) indicates the nature of documents collected during the investigation which would be used for proving certain facts and allegations, as made against the accused persons. The SP report, as noted herein above, is also accompanied with the statement of the accused, which appears to have been recorded by the IO of the present case during the investigation.
192. PW46 Dr. Anil Mehra deposed that in the year 2006, he was posted as Director, Health Services, Karkardooma, Shahdara. He further deposed that CBI had sought sanction to prosecute accused Raj Bhushan Chauhan (A-4) and he after going through the report CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 156 of 186 ) CNR No. DLCT110004002019 and documents accorded the sanction ExPW46/A to prosecute the accused R.B Chauhan(A-4). During his cross examination, he replied that his office had prepared the summary of the allegations which were mentioned in the sanction order and that summary was prepared on the basis of the CBI report. He has denied the suggestion that he has simply signed the sanction order on receipt of the noting made by his office without applying his mind.
193. PW43 Sh. Vijay Kumar, deposed that in the year 2006, he was posted as a Director of Education; CBI had sent its report through the Directorate of Vigilance for seeking sanction to prosecute the accused Sanjeev Bharti (A-5) and the said report sent by the CBI contained brief facts of the case, gist of statement of witnesses and evidence, analysis of evidence and other documents. He further deposed that after going through the report, including the annexures, he had accorded the sanction ExPW43/A to prosecute the accused Sanjeev Bharti (A-5).
194. During his cross examination, PW43 admitted that they had received the report of the SP, CBI alongwith calendar of evidence both oral and CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 157 of 186 ) CNR No. DLCT110004002019 documentary, statement of witnesses and analysis of evidence amongst other documents. On the question being put to him regarding the role of the accused Sanjeev Bharti (A-5), PW43 replied he had granted the sanction on the basis of the record sent by the CBI through Directorate of Vigilance. He further replied that he does not remember if he had received a draft sanction order from CBI or not. PW43 has denied that he was not competent to accord the sanction and he had not applied his mind while granting the said sanction.
195. Accused Sanjeev Bharti (A-5) has also examined one witness in his defence namely Sh.Yogesh Aggarwal as DW5. DW5 Sh. Yogesh Aggarwal has produced a file ExDW5/A from the office of Education department, vigilance Branch, NCT of Delhi pertaining to the grant of sanction for prosecution of accused Sanjeev Bharti (A-5).
196. Here it is pertinent to mention that the perusal of the file ExDW3/A (colly) would indicate that the SP's report alongwith its annexures was originally sent by the CBI to the office of Chief Secretary cum CVO, Directorate of Vigilance. The noting dated 6.10.2006, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 158 of 186 ) CNR No. DLCT110004002019 maintained in the aforesaid file would indicate that the matter pertaining to the accused Sanjeev Bharti (A-5) was proposed and then directed to be sent to the Director of Education as accused Sanjeev Bharti (A-5) was, at that time, working in the said office. Similarly, the matter pertaining to the accused R.B Chauhan (A-4) was proposed and directed to be sent to the Directorate of Family Welfare as accused R. B Chauhan (A-5), at that time, was working there.
197. Thus, the record would indicate that vide communication dated 16.10.2006, the SP report along with its annexures were sent from the office of Directorate of Vigilance, Govt of NCT of Delhi, to the office of Director (Education), Govt. of NCT of Delhi, in relation to accused Sanjeev Bharti (A-5). Meaning thereby, the copy of the SP report along with the annexures, as noted herein above were sent to the office of Director (Education ) having the draft sanction orders pertaining to the aforesaid accused persons, calendar of evidence (oral), calendar of evidence (documentary) and statement of accused persons.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 159 of 186 ) CNR No. DLCT110004002019
198. On the same line, the record would further indicate that vide communication dated 16.10.2006, the SP report along with its annexures were sent from the office of Directorate of Vigilance, Govt of NCT of Delhi, to the office of Directorate of Family Welfare, Govt. of NCT of Delhi, in relation to accused R.B Chauhan (A-4). Meaning thereby, the copy of the SP report along with the annexures, as noted herein above were sent to the office of Directorate of Family Welfare, Govt. of NCT of Delhi also, having the draft sanction orders pertaining to the aforesaid accused persons, calendar of evidence (oral), calendar of evidence ( documentary) and statement of accused persons.
199. The sanction orders of the aforesaid accused persons are running into 6-7 pages each. The relevant parts thereof read as under :
SANCTION ORDER Ex PW46/A OF ACCUSED RAJ BHUSHAN CHAUHAN (A-4) "...18. AND WHEREAS the aforesaid acts of Sh. Raj Bhushan Chauhan, Dealing Asstt. constitutes the commission of offences punishable u/s 120-B IPC r/w 420, 468, 471 IPC and Section 13(2) r/w Section 13(I) (d) of P.C. Act, 1988 and substantive offences u/s 15 of PC Act, 1988 r/w 13(1)(d) of PC Act.
19. AND WHEREAS I, Dr. Anil Mehra, Director, being CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 160 of 186 ) CNR No. DLCT110004002019 the authority competent to remove the said Shri Raj Bhushan Chauhan from the office, after carefully examining the relevant statement of witnesses recorded during the course of investigation, documents collected by the Investigating Agency in record to the said allegations and the facts and circumstances of the case, consider that the said Shri Raj Bhushan Chauhan should be prosecuted in the court of law for commission of the aforesaid offences.
NOW THEREFORE, I, Dr. Anil Mehra, Director, do hereby accord sanction u/s 19(1) of Prevention of Corruption Act, 1988 for the prosecution of the said offences and any other offences punishable under any other provisions of law in respect of the acts aforesaid and for taking the cognizance by the court of competent jurisdiction.
SANCTION ORDER Ex PW43/A OF ACCUSED SANJEEV BHARTI "...16. AND WHEREAS the aforesaid acts of Sh. Sanjeev Bharti, Election Officer constitutes offences punishable u/s 120-B IPC r/w 420, 468, 471 IPC and Section 13(2) r/w Section 13(I) (d) of P.C. Act, 1988 and substantive offences u/s 15 r/w 13(1)(d) of PC Act, 1988.
17. AND WHEREAS I, VIJAY KUMAR ,DIRECTOR OF EDUCATION being the authority competent to remove the said Sh. Sanjeev Bharti from the office, after carefully examining the relevant statement of witnesses recorded during the course of investigation, documents collected by the Investigating Agency in record to the said allegations and the facts and circumstances of the case, consider that the said Sh. Sanjeev Bharti should be prosecuted in the court of law for commission of the aforesaid offences.
18. NOW THEREFORE, I, VIJAY KUMAR ,DIRECTOR OF EDUCATION do hereby accord sanction u/s19(1) of Prevention of Corruption Act, 1988 for the prosecution of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 161 of 186 ) CNR No. DLCT110004002019 the said offences and any other offences punishable under any other provisions of law in respect of the acts aforesaid and for taking the cognizance by the court of competent jurisdiction."
SANCTION ORDER Ex PW45/A OF ACCUSED P. K. THIRWANI "...AND WHEREAS the aforesaid acts of Sh. Prahlad Kr.Thirwani, the then Sr Auditor in RCS office ,New Delhi now Supdt./Gr-I(DASS) in Education Department, GNCT, constitutes the commission of offences punishable u/s 120-B IPC r/w 420, 468, 471 IPC and Section 13(2) r/w Section 13(I) (d) of P.C. Act, 1988 and substantive offences u/s 15 r/w 13(1)(d) of PC Act, 1988.
AND WHEREAS, I, R. Narayanswami, Chief Secretary , Delhi being the authority competent to remove the said Sh. Prahlad Kr.Thirwani, the then Sr Auditor in the office of Registrar of Cooperative Societies, Parliament Street , New Delhi, presently posted as Supdt./Gr-I(DASS) in Education Department, GNCT from the office, after carefully examining the relevant statement of witnesses recorded during the course of investigation, documents collected by the Investigating Agency in regard to the said allegations and the facts and circumstances of the case, consider that the said Sh. Prahlad Kr.Thirwani should be prosecuted in the court of law for commission of the aforesaid offences.
NOW THEREFORE, I, R. Narayanswami, Chief Secretary, Delhi do hereby accord sanction u/s 19(1) of Prevention of Corruption Act, 1988 for the prosecution of said Sh. Prahlad Kr.Thirwani, the then Sr Auditor in the office of Registrar of Cooperative Societies, Parliament Street , New Delhi, presently posted as Supdt./Gr-I(DASS) in Education Department, GNCT for the said offences and any other offences punishable under any other provisions CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 162 of 186 ) CNR No. DLCT110004002019 of law in respect of the acts aforesaid and for taking the cognizance by the court of competent jurisdiction.
200. The settled position of law is that the validity of the sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 163 of 186 ) CNR No. DLCT110004002019 apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
201. Before proceeding further, it may be pertinent to note that the aforesaid sanction orders speak of consideration of the relevant statement of witnesses recorded during the course of investigation, documents collected by the Investigating Agency in regard to the said allegations and the facts and circumstances of the case but the same is silent about consideration of statements recorded under Section 161 CrPC and statements recorded by the Magistrate under Section 164 CrPC.
202. The same can not be brushed aside as it goes to the root of jurisdiction and clearly shows the extent to which there could be application of mind while granting the sanction. It has come on the record that CBI had not sent the complete record to the sanctioning authority.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 164 of 186 ) CNR No. DLCT110004002019
203. The crux of allegations against the aforementioned accused person is that a) accused R.B. Chauhan (A-4) dishonestly accepted the fraudulently prepared records of the society from accused Ashwani Sharma (A-7) @ Randhir Singh, Secretary of the society and forged photocopies of various documents and processed the application dated 01.12.03 for cancellation of winding up order on the basis of a false and concocted report of co accused Ram Nath (A-3),b) Accused Sanjeev Bharti (A-5) has fraudulently prepared the false election report of the society and signed the proceeding register in this regard, c) Accused P. K. Thirwani (A-11), the then Senior Auditor has prepared a false audit report dt. 02.04.04. Even these above mentioned documents were not sent to sanctioning authorities along with the SP'S Report. Mere reference in the said report about the said allegations would not be sufficient. This court is unable to understand as to how and on what basis the sanctioning authority, in the absence of said important and relevant material documents, arrived at the conclusion for granting the sanction.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 165 of 186 ) CNR No. DLCT110004002019
204. Here it is pertinent to note the testimony of PW60 Ram Kunwar, IO of the present with regard to the investigation carried out by him for obtaining the sanction orders to prosecute the accused persons. During his cross examination done on behalf of the accused Sanjeev Bharti (A-5) , he replied that he had sent all the documents to the sanctioning authority including statements of witnesses recorded under section 161 and 164 Cr. P.C along with the SP's Report. During his cross examination done on behalf of the accused Raj Bhushan Chauhan (A-4) , PW60 replied that broadly stated the material/documents sent to the competent authority along with the report for seeking the sanction, consisted of all the records seized from the office of RCS, private persons, statement of witnesses recorded under section 161 CrPC.and other documents seized during the investigation. It has also come on the record that regarding the draft sanction orders PW60 replied that he does not remember whether the draft sanction order was sent or not to the sanctioning authority.
205. The aforesaid deposition of PW60 is contrary to the record. As noted herein above, no such material or documents were sent to the sanctioning authority CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 166 of 186 ) CNR No. DLCT110004002019 along with the SP's Report. His testimony is not trustworthy at all and is liable to be rejected.
206. Moreover, the contention of Ld Sr PP for CBI that the records of the present case being voluminous, therefore it was not sent alongwith the SP'S report but the IO of the present case himself had taken personally the entire material to sanctioning authority and the same was perused by them , is also without any basis , simply for two reasons, Firstly, the noting file produced from the office of sanctioning authority during the defence evidence, is silent about calling of the IO by the sanctioning authority. There is nothing on record indicating that the IO of the present case ever appeared before the sanctioning authority as claimed. Secondly, during his cross examination, PW60 replied that he was never called by the sanctioning authority of accused Sanjeev Bharti before granting sanction to prosecute him so how it can be believed that he was called in respect of the rest of the accused persons.
207. Further, as already noted, alongwith the SP's Report draft sanctions orders pertaining to all the accused persons were also sent. A careful scrutiny of CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 167 of 186 ) CNR No. DLCT110004002019 the draft sanction orders would reveal that the sanctions actually accorded by the competent authorities are nothing but the verbatim reproduction of draft sanction orders except the name and designation of sanctioning authority.
208. It is true that even the draft order can also be placed before the sanctioning and after going through the material, competent authority may sing the draft order, but this is not possible in case the requisite material has not been sent. In the case of Indu Bhushan Chatterjee v. State of West Bengal AIR 1958 SC 1482 , it was held that the draft sanction order can be placed before the competent authority along with the material and if the competent authority after perusing the material signs the draft sanction order it cannot be said to suffer from non-application of mind. But in the present case it has come on the record that requisite records and material was never sent to the sanctioning authority, therefore, in the absence of the same draft sanction orders were signed.
209. In view of my aforesaid discussion, it is evident that only SP's report along with a list of evidence (oral) and list of evidence (documentary) CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 168 of 186 ) CNR No. DLCT110004002019 were sent to the sanctioning authority for the purpose of seeking sanction. The statements of witnesses and other relevant documents were not sent to the sanctioning authority as per the own case of CBI. The observation in the said sanction orders that "consideration of the relevant statement of witnesses recorded during the course of investigation, documents collected by the Investigating Agency in regard to the said allegations" is factually incorrect. The aforesaid facts make it clear that the sanctioning authorities had not considered the entire material available with the investigating agency and there is no application of mind while granting the sanction.
SANCTIONING AUTHORITY WERE NOT COMPETENT TO GRANT THE SANCTION
210. Next argument of Ld. Counsels for the accused persons is that sanctioning authorities were not competent to remove the accused persons as at the time ,the offence in question alleged to have been committed , accused persons were working in the office of RCS and in that case the competent authority would have been the Registrar, RCS. That being so, the sanction granted by them has no value in the eyes CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 169 of 186 ) CNR No. DLCT110004002019 of law and solely on this basis ,accused persons are entitled for acquittal.
211. While replying to the aforesaid contention, Ld Sr PP for CBI submitted that, the sanctioning authority were duly competent to accord the sanction to prosecute the accused persons and sanction given by them is a valid sanction . She further submitted that even if there is no sanction order still in view of the case law of L. Narayana Swamy(supra), there is no requirement of sanction to prosecute the above mentioned accused persons, as they were already transferred to some other office at the time of taking the cognizance of the offences by this court.
212. To buttress their stand, Ld. Counsels of the accused contended that the judgment of the L. Narayana Swamy (Supra) cannot be applied to the facts and circumstances of the present case, as the explanation attached to section 19 of PC Act, is to be applied retrospectively. Ld. Defence Counsels have taken me to the explanation attached to the aforesaid provision of law and submitted that even if a public servant is holding an office other than the office during which the offence is alleged to have been committed, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 170 of 186 ) CNR No. DLCT110004002019 the sanction under section 19 of the PC Act to prosecute such public servant is must.
213. According to the Ld. Counsel for the accused persons, the said judgment is no more applicable, because that judgment was passed in the year 2016 but the explanation was brought into force by way of appointment in the year 2018. That being so, the provision of law would prevail over the said judgment as the explanation attached to the section 19 of the PC Act being clarificatory in nature, is to be applied retrospectively and not prospectively. It was further pointed out that as on date, the law as settled by way of the judgment in the case of L. Narayana Swamy(Supra) is not in existence, therefore, the same cannot be applied today and the same might have been relevant prior to the amendment made in section 19 of P.C Act in the year 2018.
214. Ld Defence Counsels have further placed reliance on the following case laws:-
(a) R.S Nayak vs A.R Antulay and others, (1984) 2 SCC 183
(b) CIT vs Podar Cement Pvt. Limited , (1997) 5 SCC 482
(c) Allied Motors vs CIT, (1997) 3 SCC 472
(d) Brij Mohan Das Laxman Das v. CIT Allahabad, (1997) 1 SCC 352
(e) Jamshedpur Motor Accessories V. UOI , 1991 189 ITR 70
(f) Zile Singh v. State of Haryana, (2004 8 SCC 1) CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 171 of 186 ) CNR No. DLCT110004002019
(g) National Agricultural Coop. Marketing Federation of India Ltd. Vs. Union of India, (2003) 5 SCC 23
(h) Shyam Sunder Vs. Ram Kumar, (2001) 8 SCC 24
(i) L.Narayana Swami Vs. State of Karnataka, (2016) 9 SCC 598
(j) Abhay Singh Chautala Vs CBI, (2011) 7 SCC 141
(k) Parkash Singh Badal Vs State of Punjab , (2007) 1 SCC 1
(l) K.Karunakaran Vs. State of Kerala, (2007) 1 SCC 59
(m) S.A Venkataraman Vs State, AIR 1958 SC 107
215. According to the prosecution, the explanation attached to the section 19 P.C. Act is to be applied prospectively and not retrospectively.
216. In the case of L. Narayana Swamy (supra) as relied by Ld PP for CBI, one of the questions referred to was "Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the protection under Section 19(1) of the PC Act, though he continues to be a public servant, albeit on a different post"? In that case Hon'ble Supreme Court held:-
"21. It clearly follows from the reading of the judgments in Abhay Singh Chautala v. CBI, (2011) 7 SCC 141 and Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 that if the public servant had abused entirely different office or offices than the one which he was holding on the date when cognizance was taken, there was no necessity of sanction under Section 19 of the PC Act. It is also CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 172 of 186 ) CNR No. DLCT110004002019 made clear that where the public servant had abused the office which he held in the check-up period, but had ceased to hold "that office" or was holding a different office, then sanction would not be necessary. Likewise, where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction. However, one discerning factor which is to be noted is that in both these cases the accused persons were public servants in the capacity of Member of Legislative Assembly by virtue of political office. They were not public servants as government employees. However, a detailed discussion contained in these judgments would indicate that the principle laid down therein would encompass and cover the cases of all public servants, including government employees who may otherwise be having constitutional protection under the provisions of Articles 309 and 311 of the Constitution."
217. Here, I may refer to another case of K. Veeraswami v. Union of India, (1991) 3 SCC 655 , wherein , it was held:-
49. It is said that Section 6 envisages that the authority competent to remove a public servant from the office should be vertically superior in the hierarchy in which the office exists. Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servants against whom sanction is sought from the sanctioning authority. Where the office held by the public servant is not a part of vertical hierarchy in which there is an authority above the public servant, then, Section 6 can have no CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 173 of 186 ) CNR No. DLCT110004002019 application. We have been referred to the observations of Desai, J., in R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183 "That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office."
50. With the utmost respect, we are unable to agree with the above observations. It seems to us that these observations were not intended to lay down the law that the authority competent to grant sanction for prosecution of a public servant should be vertically superior in the hierarchy in which the office of the public servant exists. That was not the issue in that case. The observations therefore, are not meant to be and ought not to be regarded as laying down the law. It has been said almost too frequently to require repetition that judgments are not to be read as statutes. In our opinion, it is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public servant CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 174 of 186 ) CNR No. DLCT110004002019 should be vertically superior in the hierarchy in which the office of the public servant exists.
There is no such requirement under Section 6. The power to give sanction for prosecution can be conferred on any authority. Such authority may be of the department in which the public servant is working or an outside authority. All that is required is that the authority must be in a position to appreciate the material collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative. Under our enactment the power has been conferred on the authority competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prosecution for an offence under that Act has been conferred upon the Attorney General or Solicitor General.
218. Since, explanation attached to the section 19 of the PC Act was also referred to, therefore, I may reproduce the same as under:
Explanation. - For the purposes of sub-section (1), the expression "public servant" includes such person
(a)who has ceased to hold the office during which the offence is alleged to have been committed; or
(b)who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 175 of 186 ) CNR No. DLCT110004002019
219. It is not in dispute that the said explanation was added by way of amendment in the year 2018. Prior to that explanation, the settled proposition of law was that in case a public servant has already retired from the service, prior to taking cognizance of the offence, in that eventuality, no sanction under section 19 of the PC Act is required to prosecute him. Similarly, in view of the law laid down in the case of L. Narayana Swamy(supra), no sanction was required to prosecute a public servant holding an office other than the office during which the offence is alleged to have been committed. It is also a matter of fact that the judgment of L. Narayan Swami ( Supra), came in the year 2016. Now, the moot question for consideration is whether the said explanation is to be applied retrospectively or prospectively?
220. Before proceeding further, I may refer to the latest case of "Sree Sankaracharya University of Sanskrit and Others , 2023 SCC OnLine "SC 640 on this subject. In this case , few judgements as relied upon by Ld defence Counsels ,as noted hereinabove, have also been referred to, so I will be mentioning the relevant observation of Hon'ble Supreme Court made in this case only , which is as under:-
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 176 of 186 ) CNR No. DLCT110004002019 "52. From the aforesaid authorities, the following principles could be culled out:
i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.
ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-
amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.
iii) An explanation/clarification may not expand or alter the scope of the original provision.
iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively."
221. From the aforesaid judgment, it is no more res-integra that if a statute including the explanation is of merely a clarificatory of the previous law, it has to be applied retrospectively. At the same time, even if an explanation has been described as a clarification, CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 177 of 186 ) CNR No. DLCT110004002019 the court is not bound to accept the same but has to examine the nature of the amendment for arriving at a conclusion whether it is in reality a clarificatory or a declaratory provision. It has also to be seen whether it comes within the ambit of substantive amendment which is intended to change the law and which would apply prospectively only.
222. Adverting to the present case, it is not denied that previous sanction of a competent authority is required to prosecute the public servant in terms of section 19 of the PC Act. One should not forget that under section 19 of the PC Act, the court is precluded from taking the cognizance of an offence in case there is no sanction as required under the said provision of law. This provision of law is to be considered at the time of taking cognizance. This court is conscious of the fact that the question of sanction can be raised by the accused persons at any stage even after taking the cognizance, but in case there is no sanction at all, the court cannot take the cognizance of the offence. That controversy needs to be decided at that stage only. At the later stage, the competency of authority who had accorded the sanction or there is no application of mind in giving the sanction, can be questioned and as CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 178 of 186 ) CNR No. DLCT110004002019 such there is no prohibition. In the present case, the cognizance of the offence was taken on 20-03-2007. At that time, the sanctions to prosecute the accused person who are the public servants, were taken and filed alongwith the chargesheet. At that time, said explanation was not there. That being so, even if there was no sanction, in view of the law laid down in the case of L. Narayana swamy (supra), it would not make any difference and will not affect the case of the prosecution.
223. Moreover, prior to the amendment vide which the explanation was inserted to section 19 of the PC Act, as stated herein above, the law was that no sanction is required to prosecute the accused persons who have either retired or holding an office other than the office during which the offence is alleged to have been committed.
224. Now, by way of the explanation, the said law was completely changed. Now, the law is that even if a public servant, accused of commission of an offence under the PC Act, has retired or holding an office other than the office during which the offence is alleged to have been committed, in that situation also the CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 179 of 186 ) CNR No. DLCT110004002019 sanction under section 19 of the PC Act to prosecute such public servant is required. The said explanation cannot be termed as merely a clarificatory in nature. It has made a new law which is absolutely contrary to the earlier law in existence prior to the amendment. At that time, i.e at the time of taking cognizance of the offences, the prosecution has taken all necessary steps, as required under the law and it was not in their anticipation that this law is going to be changed in future. Thus, I am of the considered opinion that aforesaid explanation attached to section 19 of the PC Act, shall be applicable prospectively and not retrospectively . Accordingly, even if there was no sanction on the date of the cognizance i.e on 20-03-2007 in the present case or sanction found to be invalid due to non application of mind, it would not affect the case of the prosecution, in view of the law laid down in L. Narayana Swamy (Supra).
225. Before parting with the judgment, here it is pertinent to mention that during the argument, accused Narayan Diwakar (A-1) challenged the power of the CBI to investigate the present case. According to him, CBI had no jurisdiction to register an FIR and then to investigate the matters pertaining to the Cooperative CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 180 of 186 ) CNR No. DLCT110004002019 Group Housing Societies as it is against the section 3 of The Delhi Special Police Establishment Act, 1946.
226. It is an admitted fact that in the present case, the CBI had been directed to investigate the matter pertaining to 135 Co-operative Group Housing Societies (CGHS) including the present society by the Hon'ble High Court of Delhi vide order dated 02.08.2005 and pursuant to the said order initially Preliminary Enquiry was registered and later on the regular case came to be registered. That being so, no one can be allowed to raise the said objection to the effect that CBI had no jurisdiction to investigate the present matter. If the accused had any grievance against the order of Hon'ble High Court of Delhi, the remedy lies somewhere else and not before this court. Thus, the contention of the accused Narayan Diwakar (A-1) being devoid of merits is hereby rejected.
CONCLUSION
227. In the case of Kailash Gour v. State of Assam, (2012) 2 SCC 34, Hon'ble Supreme Court held:-
"43. At any rate, the legal proposition formulated by Bedi, J. based on the past failures does not appear to us to CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 181 of 186 ) CNR No. DLCT110004002019 be the solution to the problem. We say with utmost respect to the erudition of our Brother that we do not share his view that the reports of the Commissions of Inquiry set up in the past can justify a departure from the rules of evidence or the fundamental tenets of the criminal justice system. That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-à-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice.
44. The prosecution, it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless of whether the crime is committed in the course of communal disturbances or otherwise. In short, there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for anything specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything."
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 182 of 186 ) CNR No. DLCT110004002019
228. In another case of Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 Hon'ble Supreme Court held:-
"29. We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW 5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 183 of 186 ) CNR No. DLCT110004002019 been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the malkhana of the police station. He has admitted that the seized articles were not sent to the forensic science laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the forensic science laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eyewitnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order [Sunil Kundu v. State of Jharkhand, Criminal Appeal No. 1762 of 2004, decided on 20-8-2007 (Jhar)] . The appellant-accused are in jail. We direct that the appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3 Nageshwar Prasad Sah and A-4 Hira Lal Yadav be released forthwith unless otherwise required in any other case."
CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 184 of 186 ) CNR No. DLCT110004002019
229. If the aforesaid test is applied to the totality of the facts and circumstances of the present case, then there would be no difficulty in arriving at a conclusion that the lapses and irregularities as noted by this court in previous discussions go to the root of the matter and can not be ignored. The amount of evidence that is necessary and needed to prove an allegation in a criminal trial in the court is generally called "the standard of proof". The higher the stakes are, the higher the standard of proof will be. In criminal proceedings, proving a crime must be beyond a reasonable doubt in all elements of the offence.
230. Adverting to the case at hand, "Clear and convincing evidence" is missing. The prosecution has tried to prove its case on the basis of evidence adduced which is not sufficient to bring the guilt home against the accused persons. As noted, a serious doubt has been created in the story of prosecution. A few instances of evidence here and there, would not be sufficient for the prosecution to achieve the standard required to prove a criminal case. In view of the shaky and doubtful nature of the evidence adduced it would CBI Vs. Narayan Diwakar ( Radha Ballabh CGHS ) CBI No. 95/19 Date of Judgment 23.01.2024 (Page 185 of 186 ) CNR No. DLCT110004002019 be unsafe to convict the accused persons.
DECISION
231. In view of my aforesaid discussions, all the accused persons namely Narayan Diwakar (A-1), Raj Bhushan Chauhan(A-4), Sanjeev Bharti (A-5), Devender Mann (A-6), Ashwani Sharma (A-7), Narender Mann (A-8), Naveen Kaushik (A-9), Ashok Johri (A-10) and P.K Thirwani (A-11) are acquitted from the charges framed against them. Their sureties are discharged.
232. File be consigned to record room after due compliance.
RAJESH Digitally signed by
RAJESH KUMAR GOEL
KUMAR Date: 2024.01.24
GOEL 16:57:23 +0530
(Rajesh Kumar Goel)
Special Judge (PC Act) (CBI) 16
Rouse Avenue District Courts
New Delhi/ 23.1.2024
Announced in the Open Court
today i.e: 23.01.2024
CBI Vs. Narayan Diwakar
( Radha Ballabh CGHS )
CBI No. 95/19 Date of Judgment 23.01.2024 (Page 186 of 186 )
CNR No. DLCT110004002019